Tierney v. Lane, Gorman, Trubitt & Co.
664 S.W.2d 840
Tex. App.
1984
Check Treatment

*2 fees; (2) reim- that defendant UTTER, Before BISSETT and GONZA- burse in the amount of LEZ, JJ. 1980, January, through the rent from June, 1982, had OPINION and, (3) protest; pay that defendant UTTER, Justice. pre-trial interest in the amount of This is an appeal granting from the has of error points Defendant raised four summary judgment. The appeal involves a error, on In appeal. point his first de- dispute Lane, Gorman, over whether Tru- fendant asserts that the trial court erred in bitt & (hereinafter “plain- called summary motion for granting plaintiff’s tiff”) is pay additional rent 1, ground July on the parking spaces lease for office him unambiguously permitted lease space in an office building. The lawsuit fee for the assess a reasonable arose as a result of the demand of Thomas plaintiff. parking spaces allocated to (hereinafter J. Tierney “defendant”) called error, contends point second he that plaintiff additional rent for in overruling the trial court erred his mo- for which made summary judgment tion for because the payment under protest. unambiguous and, lease July law,

Plaintiff this suit brought permitted to obtain a a matter of him assess a declaratory judgment that it was entitled reasonable plaintiff. allocated to Alternatively, Health Insurance National

defendant, error, the office building in his lessor and owner of third as- the time of execution exe- serts that the trial court erred in granting lessee, lease cuted the with plaintiff’s motion for summary judgment lease was for term of July ground on the July 1979 lease *3 (5) years. acquired five owner- Defendant ambiguous with respect to defendant’s December, in ship building office right charge fee, to reasonable The lease two includes sections and the resolution of ambiguity such was a one which our attention is directed: section question of fact. his fourth Provisions,” entitled “Definitions and Basic error, defendant trial claims that the (c) (i), subsections and and another section awarding in plain- erred fees to entitled “Granting Clause.” tiff under TEX.REV.CIV.STAT.ANN. art. (c) the “Demised Subsection defines (Vernon Supp.1982-1983) since 9,500 square Premises” as “approximately plead tiff failed to prove presentment and building feet on Floor in the located one, two, of the claim. Points and three are County, 2301 North in Dallas Akard and shall together. interrelated be treated and premises being shown outlined Court, Enterprises The in R P& plan attached hereto as Exhibit A.” LaGuarta, Kirk, Gavrel & (i) “Parking defines Lot Space” Subsection (Tex.1980), laid out rules following thus as Exhibit Both definitions “See C.” interpretation regarding possi- contracts refer to exhibits. ambiguous ble provisions: contractual The reads as follows: “Granting Clause” question of whether a ambiguous lease is is obligation of the “In consideration of the one law for the court. The court should provided Tenant to rent as herein give effect to the parties intentions of the terms, in of the other consideration examining the entire instrument and hereof, covenants, Land- and conditions interpreting them so none of the in- that Tenant, leases to hereby lord demises and strument’s provisions will be rendered Landlord, Tenant takes from hereby meaningless. An ambigu- instrument is not have and hold the Demised Premises to ous if it is worded so that a court specified term the same for the lease properly give legal it a definite certain or herein, and conditions the terms meaning. If an instrument is worded so set forth in lease.” this that, application after the established dispute in this case whether parties interpretation, rules of is un- genuinely it a reasonable fee the defendant may meanings certain which of two is proper, it parking spaces for the use of thirty-two is ambiguous. the instrument re- When the lease. The plaintiff by allocated to mains more reasonably susceptible to than requires first resolution this issue one after rules of in- meaning the correct following language interpretation of the terpretation applied, have been extraneous Exhibit C the lease: evidence is then to determine the admissible percent twenty-five is “Tenant entitled instrument’s true Where the in- meaning. which total is of the total evi- ambiguous strument is extraneous aor total of thirty spaces, one hundred considered, summary judgment dence is thirty-two spaces.” on a record is normally based us, these rules of interpretation With argues (1) ob- Defendant in will examine the lease involved this we spaces, to right no use the tained case. is “entitled” of additional consider- July The lease in was dated were not ation because the 1, 1979, and was entitled: of “Demised included under the definition lease; and, (2) Health Of- in “National Insurance Premises” gave clause granting fice Lease.” of the lease client will Accordingly, my agree to use not only the defined “Demised any amount of incurring Premises” without an extra it owes protect In order to its charge. spaces. The effect of is to argument any interest and to minimize remaining por- sever Exhibit C from the leasehold partners employ- agreement tions of the inconvenience to and to treat however, ees, will be separate lease. a $480 building management delivered to the The lease instrument in this case is not Lane, as the claimed due Gorman amount susceptible to more than one meaning. does of 1980. This only interpretation of the entire instrument admission or reflect not constitute which will provisions not render owing any parking lawfully meaningless leasing is that Lane, client nor is it a waiver your Premises,” described “Demised also ob- to occu- Gorman of its lawful entitlement tained the to use the thirty-two de- *4 spaces without py scribed for the of duration judicial of fee and to seek a declara- the lease without having pay additional tion such entitlement. To establishing consideration for them. We hold Lane, Gorman will continue contrary, lease in question is and that it unambiguous legal its absolute entitle- upon insist permit does not defendant the to as- thirty-two parking spaces ment to use the sess a reasonable for the being subjected improper without involved. Accordingly, defendant’s first charges.” overruled, points three of error are judgment of trial court is affirmed as to Plaintiff also asserts that the notation plaintiff’s right to use the 1, 1980, February the back of a check dated additional pay which was used to rent on in ordering $14,- to pay back presentment substantiates plaintiff 400.00to plus pre-trial interest in The notation on the back indicates claim. the amount of the rent was made protest January and refers to the letter of

We now turn to defendant’s fourth point 31, 1980. of error wherein he asserts that the trial in awarding attorney’s erred fees to art. TEX.REV.CIV.STAT.ANN.

plaintiff under TEX.REY.CIV.STAT.ANN. for (Vernon Supp.1982-1983)provides 2226 (Vernon art. 2226 Supp.1982-1983) because amount of recovery of a reasonable plaintiff failed to plead prove present- fees, to one’s claim attorney’s in addition ment of its required by claim as the statute. costs, prosecu and court for successful plaintiff plead record shows that did contract. tion a suit founded on a written of for a recovery attorney’s of fees. The recovery necessary requisite A for record further shows that defendant’s presentment is the attorney’s fees pleadings deny presentment party and the failure opposing claim to the claim; plaintiff’s it only denied that within party performance of that to tender charges were The statute days presentment. 30 after

Plaintiff asserts that its liberally that it is to “be provides further claim for a recovery of the monies underlying pur promote construed to by plain- in a letter written purpose requirement poses.” tiff’s counsel and sent to defendant’s coun- per is to allow the presentment of claim sel. The letter January was dated an opportu whom it is asserted against son Its pertinent contents read as follows: days 30 after nity a claim within without incur

“Second, Lane, it is rather have of the claim they clear that Gor- notice No obligation man is entitled to the fees. ring required. presentment for the entire form for particular term of the and that Real Inc. v. your Development, client has no Ashford US charge any Corp., 661 S.W.2d thirty-two spaces. for the Estate Services Indemnity Co., present- (1983); plaintiff prove France v. American we hold that did TEX.REV. (Tex.1983); required by claim as Kelley, Jones v. ment of its Supp. (Vernon (Tex.1981). art. 614 S.W.2d 95 CIY.STAT.ANN. of attor- therefore, award 1982-1983); In Huff v. Life Insurance Fidelity Union appellant’s ney’s proper, fees was Co., (1958), 158 Tex. 312 S.W.2d493 overruled. The point of error is fourth Supreme Texas Court held that sufficient trial court is AFFIRMED. judgment of the by plaintiff demand was made on defendant entitle to recover Justice, BISSETT, dissenting. proof fees. The relied portion I dissent from that respectfully show demand consisted of letters written opinion which holds majority’s Plaintiff’s last let- to defendant. presentment “plaintiff prove did “I by saying ter ended trust that this letter claim,” por- and I further dissent from will be final and renewals will be forthcom- which awarded tion of the ing.” The Texas Court stated my fees. tiff demands, by that the letters and oral January the letter of opinion, neither plaintiff sought payment from defendant the back of the nor the notations on insurance of certain renewal over- company 1, 1980, constituted check dated riding commissions that defendant consist- claim, refused to constituted a suffi- ently pay, art. 2226. cient demand for *5 claim to entitle Develop majority relies on Ashford under Article 2226. The Texas ment, Inc. v. Life Real Estate Services U.S. in Life quoted Court Huff from National v. (1983); France Corp., 661 933 S.W.2d Dove, 141 and Accident Insurance Co. v. Co.,648 283 Indemnity S.W.2d Anniversary (1943) regarding Tex. 174 245 S.W.2d Kelley, v. 614 95 (Tex.1983); Jones S.W.2d requisites the of a demand under Article In Fidelity Union Life (Tex.1981); Huff v. 2226, stated: Co., 312 493 surance 158 Tex. S.W.2d “ * * * In the terms of order to meet and Accident In (1958); and National that the indespensible Dove, the statute it is not v. 141 Tex. surance Co. co- demand be evidenced firm and is mis (1943). reliance Such in manding language. may It be couched distinguishable cases are placed since those language the customarily-used polite instant case. the facts from the on the day. the All that is asser- case, Ashford sent supra, In the Ashford tion of the the contract and a under $11,- a refund “requesting a letter ”* * therewith. request compliance held fee.” The Court 000.00 commitment Huff at p. sufficient that “this was case, fact of art. requirements In the instant the the the claim to meet letter payments made the case at from In the 2226.” counsel would defendant’s under and indicated counsel that.it to. entitled to a refund request “continue to insist” that was protest. suf paid was monies ficient defendant on notice of place uncontro- France, “... supra, [T]he rights existing under the plaintiff’s asserted that the medical establishes verted evidence implicit contract and demand to American forwarded promptly bills were of the ob recognition performance who adjuster-representative Indemnity’s rested, and “it ligation rights on which such the outset.” this claim from had handled the demand does not matter in what terms showed that Moreover, evidence further p. be couched.” Huff at See tele- adjuster by “France contacted the bills.” regarding payment phone man- statutory In accordance with the facts, these held that under The Court liberally Art. 2226 is to “be con- date that in a position is not Indemnity “American promote underlying purposes,” strued to noti- him. The Land Board is ing that no demand for was assert made,” and, you trying “the trial court facts that are consequently, fied of the deal, permitting erred in not France to offer and we will not in of the back out evidence of reasonable fees.” land. We piece any way give up Here, plaintiff never sent defendant a bill now.” money invested in it have too much refund, for a nor did it ever contact defend- 95, 100 n. 4. 614 S.W.2d regarding ant a refund or of the the Veterans Land Board The letter from monies paid protest. All that opinion. in the reproduced was not In Jones v. Jared L. Kelley, supra, Kelley letter, with together we know is wife, Olga Kelley and the Texas Veter- conversation, constituted telephone ans Land sued Eugene Board Jones specific performance demand for sufficient wife, Jones, Della Mae specific perform- Kelleys. upon by of the contract sued ance of the earnest contracts for the emphatic there was an Kelley, In Jones v. sale of a tract According of land. with the comply demand that the Joneses opinion, sale. In the instant case contracts of couple convey “The Jones later refused to which, under is no in the letter language 7, 1977, property. On September construction, can be con- the most liberal Joneses sent a letter to the Veterans demand, request, or even a strued as a Land Board advising they them that payments park- for back monies would not go through with the sale. The repaid plaintiffs. fees be ing Veterans replied, Land Board letter to The word “demand” was defined in Joneses, Kelleys intended to Maner, Penn. Mutual Life Ins. Co. Further, go through with the sale. “a 553, 109 (1908) request Tex. as S.W. uncontroverted transcript telephone under a particular thing specified to do a conversation appears in the record be- part persons claim of tween Mrs. and Mr. in Kelley Jones which That requesting.” approved definition Kelley Mrs. repeatedly told Mr. Jones of Life & Accident Ins. Co. v. National her go determination to with the through noted, supra, wherein *6 sale.” majority opinion, mentioned in the that the With respect question to the of whether “demand,” be in “firm request, need not presentment had been a of the con- language,” but be commanding and tract claim in order for fees to be lan customarily-used polite “couched in the awarded, Court, on page 100 of the However, the Court did guage day.” published opinion, said: of a that “there must be an assertion say “... A necessary requisite for the re- and recognition and a demand for covery of attorney’s present- fees is the obligation upon which performance of ment of the contract claim oppos- coun plaintiff’s rests.” In ing and the party failure of that party sel, letter, plain notified by performance.” tender (for filing disability) tiff “is his claim cover The Court held that “the letter sent by date,” ing requested his illness to and Veterans Land Board to the Joneses and “immediate attention.” The given it be transcript telephone conversation letter, “This ac defendant, by replies: between Mrs. Mr. Kelley and Jones estab- 25th with knowledges your May letter of lished presentment as a matter of law.” by claims filed you disability which sent us transcription The of the telephone conversa- There, the Lemmie Dove.” C. tion Kelley shows that Mrs. told Mr. Jones: “recognizedthat a claim company insurance

“Well, sir, we are not in any way going appeal. in this had been filed.” This is not so counsel, anyone sell that land to else when we so dated plaintiff’s The letter 1980, desparately (sic) 30, asserting want it for while January ourselves. “thirty-two Now I am going you, legal right to tell we have had a to use demand or lawyer contacted a will be free of you spaces” charge, hear- a statement letter is than repay nothing the defendant refund or more request that of the a previously plaintiff’s legal rights, that had been as of the monies defendant, coun- payments. charged by rights, relating plaintiff’s sel’s views Union Life Insurance Fidelity In Huff of the that payment $480.00 an assertion supra, plaintiff sued for renewal as an admission that regarded was not to be agent and renewed over commissions or as a lawfully owing fees are writing commissions as branch manager have the legal right to waiver of he which claimed defendant owed him. letter, litigation. by issue determined The evidence showed that “oral by construction, does it a most liberal giving demands and the letter asserting plaintiff’s a demand for refund of not constitute claims were made known to defendant and paid by plain- previously defendant contended that it did not owe tiff. items for which his asserting was claim.” The said proper there was a the notation on Plaintiff also asserts that presentment 2226, of the claim under art. 1, the check dated the back of said, page publish further 498 of the fees on the 1980 in opinion: ed presentment thirty-two spaces constitutes held that

“Under statute it has been only The notation disagree. the claim. I a demand for a must claimed amount due was made indicates that presented alleged be to the debtor owe January to the letter of protest and refers that this plaintiff, and de notation, or in by either itself prior mand must be made at least 30 days 31, January conjunction with the letter in favor of claimant 1980, proper present- does not constitute against the debtor. v. Hum Gateley a demand that ment of claim and 98; phrey, Tex. the claim be paid. Hamilton, United States Life Ins. Co. v. it is well established Unquestionably, (1, 2).” Tex.Civ.App. 238 S.W.2d 289 no form of particular the case at there was no demand supply in order to claim is “a claimed amount due” fees. Like- attorneys’ an award of basis for to defendant. wise, present- it is well established of a claim need (demand) ment

An examination of the letter in commanding corners, “firm and from its four reveals that it does not be evidenced couched in custom- language,” “may or charac- but be not make a demand of kind day.” language of previously paid. arily-used polite ter for refund of monies that, sentence, However, well established examination, equally it is An sentence the presentment, the form of following, nothing irrespective letter shows the *7 oral, in forceful writing it or 1) plaintiff more: is entitled to use the whether be otherwise, 1) assertion of 2) or charge; language, free of amount for the park- right, 2) tiff a demand any money does not owe for the 3) must be ing spaces; plaintiff will defendant claimed to be due to owe the debt alleged as the amount claimed to the $480.00 1980; plaintiff February, obligation to be due for the month of attorneys’ fees 4) can be an award for such was not to be considered as did the case at fee is law- art. 2226. In any parking admission that defendant, to use the nor is assert a fully by plaintiff owed it did not demand charge, a waiver without but to be considered as the use of paid for park- money previously plaintiff’s legal right occupy of it defendant. be ing spaces judicial and to seek a determina- which will in the letter 5) nothing There is legal right; tion of such inference that support even an legal right will continue to insist owed claimed that defendant charge. use the making type of some demand a claim is an ele essential ment for the fees. recovery Security

International Com Insurance Redwine, v.

pany (Tex.

1972); Fi Kelley, supra; Jones v. Huff v.

delity Union Life Insurance su

pra; National Life & Accident Insur supra.

ance v. The award fees was Defend sus

ant’s fourth error should be

tained. eliminate

I would reform the fees, as re- award

formed, judgment. would affirm the HEALTH,

TEXAS DEPARTMENT OF al., Appellants,

et INC., NUCLEAR, Appellee.

GULF

No. 13984. Appeals

Court of

Austin.

Feb.