Llyasah Dupree Dba 360 Degrees Beauty Academy v. Boniuk Interests, Ltd
2015 Tex. App. LEXIS 8151
Tex. App.2015Background
- Dupree leased commercial space from Boniuk (84‑month lease beginning Jan 2008) with escalating minimum rent and additional CAM/tax/utility charges; lease provided remedies for late/nonpayment including repossession.
- Roof damage and business disruption in 2008 led to a written lease amendment (Sept. 26, 2008) that abated three months’ rent and deferred portions of rent with a $500/month payback for 24 months beginning Oct. 2009.
- By Dec. 18, 2009, Dupree owed about $41,499; she gave a $20,000 cashier’s check and executed a $21,499 promissory note payable in 60 monthly $440 installments; parties disputed whether the $21,499 was paid in cash or credited to Dupree’s account.
- Dupree made only a few payments, submitted checks Aug–Dec 2010 with notes asking landlord to hold deposit until funds cleared, and failed to cure defaults; landlord issued default notices, accelerated, and changed locks in March 2011.
- Dupree sued for breach of lease and fraud; Boniuk counterclaimed for breach of lease and breach of the note. After a bench trial, the court entered take‑nothing on Dupree’s claims and awarded Boniuk approximately $119,665 plus interest and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court improperly considered parol evidence about how Note principal was delivered | Dupree: Note was an unambiguous promise to pay her $21,499 in cash; surrounding testimony that it was credited was barred by parol evidence rule | Boniuk: Note silent as to manner of disbursement; testimony that principal was applied as credit explains surrounding circumstances and does not vary the Note’s terms | Court: Admission allowed; testimony did not contradict Note and was not barred by parol evidence rule — overruled issue |
| Whether evidence established Dupree tendered rent (Aug–Dec 2010) so she did not breach lease | Dupree: Delivered checks for those months and authorized deposit; landlord declined to deposit without showing checks would bounce, so tender was sufficient | Boniuk: Notes on checks conditioned deposit; tender must be unconditional and make funds immediately available | Court: Checks with hold requests were not unconditional tenders; even if those months had been paid, other unpaid months support breach — overruled issue |
| Whether lease amendment lacked new consideration and was unenforceable | Dupree: Amendment merely modified preexisting obligations without new consideration | Boniuk: Landlord gave up ~three months’ rent and deferred amounts (benefit to tenant and detriment to landlord), inducing Dupree to remain as tenant | Court: Amendment supported by new consideration (abatement/deferment) and enforceable — overruled issue |
| Whether admitting business records (Exhibit D3) constituted fraud or required exclusion | Dupree: Exhibit D3 contained known inaccuracies and was offered to deceive the court; should have been excluded | Boniuk: Admitted Exhibit D3 and acknowledged inaccuracies at trial; plaintiff’s counsel expressly waived objection | Court: Dupree waived objection at trial by stating no objection; evidentiary ruling not preserved — overruled issue |
Key Cases Cited
- Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994) (bench‑trial sufficiency standards and review of findings)
- Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (factual sufficiency standard)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (factfinder’s role and sufficiency review)
- Houston Exploration Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462 (Tex. 2011) (parol‑evidence rule and surrounding circumstances)
- DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34 (Tex. App.—Houston [1st Dist.] 2008) (note terms cannot be varied by parol evidence)
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (burden on appellant to show adverse finding is against great weight)
- Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307 (Tex. App.—Houston [1st Dist.] 2004) (valid tender requires unconditional production of funds)
- Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227 (Tex. 1986) (contract modifications require consideration)
- Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) (definition of consideration as benefit or detriment)
- Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303 (Tex. App.—Houston [14th Dist.] 2003) (consideration may be benefit to promisor or detriment to promisee)
- Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231 (Tex. 2007) (evidentiary‑ruling review and waiver by failure to object)
- Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323 (Tex. 2011) (elements of fraud claim; reliance requirement)