Group Hospital Services, Inc. v. One & Two Brookriver Center
704 S.W.2d 886
Tex. App.
1986
Check Treatment

*1 TEX. CODE CRIM.PROC.ANN. art. 20.19

(Vernon 1977). State, In Tarpley v.

S.W.2d 525 (Tex.Crim.App.1978), appel

lant argued grand did not

consider all testimony the available before returned an indictment him. The “go Court refused to behind the actions of grand jury to determine whether suffi justify

cient evidence existed to the return Id. at 532. We have

of an indictment.” second-guess

also refused to grand jury type of situation. Burkhalter v.

State, 223 (Tex.App . —Cor

pus 1982), pet. improvi dism’d as Christi

dently granted, 655 S.W.2d 208 (Tex.Crim.

App.1983). Appellant’s fourth and final

ground of error is overruled. of the trial court is af-

firmed. SERVICES,

GROUP HOSPITAL INCORPORATED, Appellant, v. AND

ONE TWO BROOKRIVER CENTER, Appellee.

No. 05-84-00228-CV. Appeals Texas,

Court of

Dallas.

Jan. 1986.

Rehearing Denied Feb. *2 Dallas, appellant. Cooper,

R. Brent Jr., Dallas, appellee. Figari, E. Ernest STEPHENS, WHITHAM Before HOWELL, JJ.

HOWELL, Justice. Two dispute. This a contract One (Landlord) brought suit Center Brookriver (Ten- Service, Inc. Group Hospital ant) charges allegedly owed to Land- amount attributable to normal electrical us- lord under a lease age. occupan- After the commencement of asserting counterclaimed that Landlord had cy, Tenant to pay refused Landlord for violated the Deceptive Trade Practices Act. charges, after hours conditioning air as- TEX.BUS. & seq. COM.CODE 17.41 et serting billing” that Landlord was “double (Vernon Supp.1985). The trial court direct- by charging per both the $50 flat *3 ed a verdict for Landlord on the counter- hour fee and “extraordinary for electrici- Following jury verdict, claim. a ty.” part Tenant claimed that the $50 went favor of Landlord and Tenant now hourly charge electricity included need- appeals points. affirm, on nineteen operate conditioning. ed to air Land- modifying judgment. the trial court’s argued lord conditioning that the air parties agree- entered into a charge replacement reflected and mainte- space March, ment for office an tower in electricity. nance costs and not include parts signifi- 1980. Three lease are payments, After some initial Tenant also dispute. “operating cant to this cost pay to extraordinary electricity refused provision” obligated pay Tenant to certain charges claiming that Landlord vio- costs, operating defined including heating, provision calling sep- lation the lease for cooling utilities, that costs in exceeded metering argued arate equipment. It that (“base costs”). the base Landlord any agreement representative between its oper- was to furnish an advance estimate modify and Landlord could not the terms of ating beginning year. costs at the of each the lease a because lease clause forbids Any excess of estimated base costs over oral modifications and because the Statute monthly was to to be added rent. purported of Frauds modifica- rendered year, At end of each the difference disputed Tenant unenforceable. also between estimated costs and actual costs charges pay and refused to would be reconciled. provision.” cost filed Landlord conditioning “air provision” required categories suit to collect the three conditioning only Landlord to air charges. during normal business hours. Tenant was error, point In its com- first Tenant request conditioning entitled to air directing plains the trial erred per hours at $50 hour. Deceptive a verdict for Landlord on the Finally, “extraordinary electricity Practices Tenant Trade Act counterclaim. provision” charge Landlord for allowed pro- alleged that Landlord had violated extraordinary by electrical deemed “represent- forbidding seller vision a from to be Landlord. Electrical current was ing agreement that an or involves confers supplied through obli- meters. Tenant was remedies, rights, obligations or which gated pay extraordinary electricity for involve, or have or which monthly. prohibited by & COM. law.” TEX.BUS. finished, rep- being As the facilities were (Vernon 17.46(b)(12) Supp. ANN. CODE § subcon- parties resentatives of the and the 1985). falsely rep- accused Landlord is At weekly meetings. tractors held one (1) resenting for both that it could: bill meeting the contractor informed electrical conditioning air extra and the amount separate Landlord and meters extraordinary electricity to air attributable equipment item would each of Tenant’s lease, (2) (3) conditioning, orally modify the $100,000. par- approximately Neither provided electricity bill for metering, ty willing for the through single a meter. single suggested that a the subcontractor succinctly position is employed. be found that meter “The down stated its brief. case boiled (1) parties agreed Landlord would meant.” controversy over what the lease meter, (2) would single nothing than con (3) suit more involves electricity, and bill Tenant for all the of con interpretation. Mere breach tract Landlord would credit allowing of contract every breach a DTPA claim. tract will not Century Forest DTPA claim. Treating Dura-Wood be into a claim to elevated (5th Industries, Cir. 675 F.2d some must contain We believe that case Development v. 1982); overreaching victimizing element USLife Ashford Services, Estate Real DTPA claim. unwary in order to create a Dannenmaier, (Tex.1983); Holloway respon- parties this contract were Both (Tex.Civ.App. — Fort coun- people, sible well advised business dism'd). us Tenant asks Worth provided explicitly Had the contract sel. claim can based hold that DTPA charge per $50 could both that Landlord upon interpretations of con erroneous sys- operating conditioning the air hour for allowing recovery under tract. Cases hours, plus the cost of the elec- tem after 17.46(b)(12) predicate liability uniformly consumed, not have tricity Tenant could interpretive misrep rather than on factual by claiming escaped obligation its DTPA *4 Royal Insurance Co. Globe resentations. that Landlord unconscionability. It follows Inc., Consultants, v. Bar 577 S.W.2d 688 unconscionably placing in not act (Tex.1979) (agent falsely insur stated that also interpretation on the contract. We are vandalism); Leal v. policy ance covered error opinion any that was harmless Barn, (Tex. Furniture response in of the fact that view (false 1978) representation ability to for of issues, of Land- jury the found favor plan); George paid layaway feit funds interpretation the lord’s of contract. Chevrolet, Polk, v. Pharis Inc. (Tex.App. through attack Points five twelve [1st Dist.] - Houston (terms writ) of contract no written varied agreement findings regarding an jury’s the Wagner agreement); party’s oral from billing ex parties the about between Morris, (Tex.App 658 S.W.2d 230 jury traordinary electricity. . -Hous The found 1983, writ) (vendor falsely ton [1st Dist.] parties agreed that the that growing that represented sale included single through a electricity supply would “place party crops). We are reluctant to monthly and that Tenant would meter damages the of treble under onerous threat for the base the of a credit after deduction compel adversary to he seek to his should found that jury further electrical use. according the terms as perform contract oral any claim that the had waived Tenant parties.” English upon by agreed the the under agreement unenforceable was Fischer, (Tex.1983). in the of Frauds or a cluase Statute a verdict was Tenant also that Finally, the forbidding oral modification. its that Land- improperly directed on claim es- had jury that Tenant’s conduct found behavior was an unconscionable lord’s asserting an topped it unenforceabili from un- of The DTPA defines course conduct. ty claim. practice “an act or action as conscionable ques- central points boil down one which, person’s ... results to a detriment agreement oral enforceable? tion. Is the the re- gross disparity between value in a it is. We hold that in a transac- paid, ceived and consideration the accept that Landlord’s contention involving of consideration. transfer agreement not a true modification 17.- was ANN. & COM.CODE TEX.BUS. the lease or (Vernon either 45(5)(B) Supp.1985). not barred thus electricity of Frauds. The excess Statute disparity Allegedly, gross obligated Landlord provision Tenant for both stems from There through “meter devices.” electricity extraordinary electricity and air condition de- of specification the number was no of most, conduct in ing. At Landlord’s location, vices, party which was their electricity cost of after hours creased the agreement filled provide them. oral alone, charge for Standing by 100%. apparent When it became details. these sum, electricity is a substantial after hours be metering equipment would separate transaction, comparison to the entire but single opted for parties guard prohibitive, is small. We should the amount meter made provisions to ensure that Engineers v.Co. Board Re Builders - charged would be monthly for its gents University System, usage. electrical Although a 265 (Tex.Civ.App . -Texar single meter did fully meet the defini- dism’d). kana jury found plural “meters,” tion of the term appearing parties writing had waived the lease, in the as few as two meters would requirement. The evidence indicates that have done so. Tenant does not show how Tenant received invoices consistent with two any greater meters would have been representatives’ single benefit to it than one meter. We aware the invoices were arguably conclude that the oral agreement did not with variance the terms the lease but vary terms, only the lease but detailed how Adequate still chose to them. evidence they implemented. would supports jury's of agreement Even if were knowing relinquishment and intentional modification, viewed as a it would be en rights its the oral modification every forceable. Not oral modification to a clause.1 contract within the Statute Frauds is barred. The critical determination through Points thirteen fifteen materially whether modification ef complain jury findings regarding obligations fects underlying in the provision.” Bourland, agreements. Horner given pursuant list (5th Cir.1984); F.2d Vendig v. *5 provision the for each from 1981 to Traylor, 604 S.W.2d (Tex.Civ.App.— 424 1983 and was asked to determine whether 1980, n.r.e.). Dallas ref’d Where the category disputed charge each of was an underlying character or value of agree the expense operating meaning within the of unaltered, ment is oral modifications are Karam, the enforceable. Garcia v. disputed lease. It found that of the 154 Tex. all 240, 255, (1955). 276 S.W.2d 257 charges operating were costs for 1982 to disputed charges 1983 but disallowed all underly In the lease us the before for 1981. ing obligations disputed. are not Tenant’s right possession unchallenged; remains disputed Tenant asserts that since the only obligation payment the is in issue charges expressly are not in delineated the dispute only and the compara runs to a (as are) expenses lease the contract segment tively small the overall obli impliedly excludes then under the doctrine gation pay. provide to Landlord is elec expressio unius est exclusio alterius. tricity through meter and Tenant is devices terms, however, The lease in couched extraordinary usage. The for disputed categories. charges broad The agreement, most, only changes the could well be subsets of these broad cate- number of meters to employed in com gories. jury’s finding to this effect is puting electricity charge. the supported by sufficient evidence. of Frauds not render this Statute Tenant further contends the trial type of modification unenforceable. Smith Hues, (Tex.Civ. v. 485, in granting judgment 540 S.W.2d 490-491 erred the 1976, App. writ ref 'd costs and [14th for 1982 1983 because Land- Dist.] - Houston n.r.e.). precedent. lord’s failure to meet a condition “operating provision” required requiring The clause modifica provide Landlord an annual advance esti- writing like tions to the contract to be the ensuing mate of and costs for taxes wise does not bar enforcement the that, year. having calendar may contract Parties to a estimate, Landlord failed to protection provision forbid wiave the a expenses. Hyatt operating Cheek ding cannot collect oral modifications. jury’s disposes estoppel Having points of on of the error decided waiver clause, finding. need not oral modification we consider

891 law, point urges that Under Texas court must Tenant’s seventeenth granting partial provision a condi trial court erred determine whether is certain un- by examining summary judgment entire document. 427, pro- part Wakefield, Hudson v. disputably S.W.2d (Tex.1983). specter raises again accom Normally condition is vision.” language. electricity. The record panied by identifying certain double reflects, however, Landscape partial summary Design and Construction Co. that the Inc., carefully include Excavating, Harold Thomas was tailored to v. charges. undisputed Tenant fur- (Tex.Civ.App. only the — Dallas n.r.e.). prefer claims that Landlord used incorrect writ ref’d Courts ther adequately billing procedures. The record provision a contract as a covenant construe City of the than as a condition. propriety procedures rather establishes is Refining, Inc. Universal Oil Products no material fact issue raised. Co., (Tex.App . —Hous We do find merit Tenant’s sec writ). ton Contracts [14th Dist.] there insuffi point ond of error that to avoid forfeiture are to be construed jury’s cient evidence to possible Schwarz-Jordan Inc. of wherever brought DTPA claim was that Tenant’s Co., Houston Delisle Const. 17.50(c) faith. Section of the act bad (Tex.1978). attorney’s prevailing fees awards plainly in a DTPA suit where it is found

Examination defendant requirement groundless brought to be claim reveals the estimate that the It a condition of defeasance. does not alter in bad faith for harassment. op underlying obligation excess party complaining under section 17.- most, erating meth costs. At affects the 50(c) prove a claim has burden to payment od which the is assessed. To Dairyland County Mutu in bad faith. provision construe the estimate as a condi Childress, al Ins. Co. Having tion would result a forfeiture. meaning (Tex.1983). faith of bad provided services, already *6 precisely never been defined. One has payment. would be denied We will avoid has stated a claimant commentator such a harsh construction. probably “will be re this section under prove the consumer’s claim year quired

Tenant further that the base computed motivated a malicious discrimina from which the excess are Knights White Consequently, tory purpose.” Lynn, as a of law. is 1982 matter Of An Knights: Analysis Black and argues, “oper- under the no Deceptive Amendments to 1979 ating provision could have cost” been Act, 33 941, Practices Trade present- 1983. find that S.W.L.J. until Southern, Brunstetter support (1979). See sufficient ed evidence fact, was, finding year (Tex.Civ.App.—San ton the base S.W.2d An Glasgow v. Hall 1981). 1980. io “a that bad faith has been defined: noted complains Point sixteen knowledge have acting so must person to al a trial amendment refusal allow know that facts circumstances to such lease was lege that base wrong and, her with such his or actions Trial are within 1982. amendments disregard knowledge, acts with intentional Dur of the trial court. sound discretion rights of others.” Co., Asphalt Rock ham Uvalde (Tex.App. writ ref’d n.r. — Austin (Tex.Civ.App.—San ton An e.). 1980, writ). record reflects that io alleged the bad testimony not ade The evidence allegedly new not reflect Tenant’s year argument. raise faith quately the base knowledge that its claims double refusing permit court did not err trial false. legal misrepresentation were amendment. Certainly points no evidence to a malicious

intent on part. ap- Under either

plicable definition, requirements of bad

faith are not met. is modified to omit the attorney’s

award of appellee. fees to the modified,

As the judgment is affirmed.

WHITHAM, J., concurs.

WHITHAM, Justice, concurring.

I concur the result. MARTIN, Jr.,

Dudley Appellant, Texas, Appellee.

The STATE of

No. C14-85-009-CR. Texas, Appeals

Court of (14th Dist.).

Houston 16, 1986.

Jan.

Rehearing Denied Feb.