# Marinecorp International, Ltd. v. the Chopper Group, LLC and Outlaw Country, LLC > Texas Court of Appeals, 1st District (Houston) · October 30, 2015 URL: https://www.frixlaw.com/law-library/cases/4072835 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** October 30, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4072835 ## How later opinions describe it (automated extraction) - holding that while modern business methods have cost a relaxation of the rigid rule entitling one to recover lost profits, the law still demands proof with a degree of certainty. ## Opinion text No. 01-14-00707-CV IN THE FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS FIRST COURT OF APPEALS 10/30/2015 1:52:16 PM CHRISTOPHER A. PRINE at HOUSTON, TEXAS Clerk –––––––––––––––––––––––––––––––––––– MARINECORP INTERNATIONAL, LTD. Appellant, v. THE CHOPPER GROUP, LLC, AND OUTLAW COUNTRY, LLC Appellees. –––––––––––––––––––––––––––––––––––– Appealed from the 80th Judicial District Court of Harris County, Texas, Trial Court Cause No. 2012-23983 ________________________________________________________________ BRIEF FOR APPELLANT ________________________________________________________________ THE STROTHER LAW FIRM Macon D. Strother Texas Bar No. 19420000 4306 Yoakum Blvd., Suite 560 Houston, Texas 77006 Tel. (713) 557-9238 mstrother@strotherlawfirm.com ATTORNEY FOR APPELLANT, MARINECORP INTERNATIONAL, LTD. APPELLANT REQUESTS ORAL ARGUMENT IDENTITY OF PARTIES AND COUNSEL Appellant: Marinecorp International, Ltd. Counsel for Appellant: The Strother Law Firm Macon D. Strother State Bar No. 19420000 4306 Yoakum Blvd., Suite 560 Houston, Texas 77006 Tel. (713) 557-9238 mstrother@strotherlawfirm.com Appellees: The Chopper Group, LLC Backwoods Country Club, LLC Tony Miller Counsel for Appellees: The Akers Firm Brock C. Akers State Bar No. 00953250 3401 Allen Pkwy., Suite 101 Houston, Texas 77019 Tel. (713) 877-2500 Fax (713) 583-8662 bca@akersfirm.com Appellee: Kyle Tones Counsel for Appellee: The Cochell Law Firm, PC Stephen R. Cochell State Bar No. 24044255 5555 W. Loop S., Suite 200 Bellaire, Texas 77401 Tel. (832) 767-1065 Fax (832) 767-1686 srcochell@gmail.com i Appellees: Lee Harless, pro se Dawn Marie Harless, pro se Counsel for Appellees: N/A Trial Court: Hon. Judge Larry Weiman Judge, 80th Judicial District Court Harris County Civil Courthouse 201 Caroline, 9th Floor Houston, Texas 77002 Tel. (713) 368-6100 ii TABLE OF CONTENTS Identity of Parties and Counsel..........................................................................i-ii Table of Contents……………………………………………………………..iii Index of Authorities..........................................................................................vii-x Statement of the Case....................................................................................... 1-3 Statement Regarding Oral Argument...............................................................3-4 Issues Presented...............................................................................................4-6 Statement of the Facts......................................................................................7-11 Summary of the Argument…………………………………………………..12-15 Argument: Relative to Issue No. 1: Chopper and Outlaw's claims of a breach of contract fail because they did not meet the conditions precedent of giving written notice of the alleged defaults and allowing Marinecorp thirty days to cure each such default as required by the subject leases. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498]…………………………………………………………… 15-19 Relative to Issue 2: Chopper and Outlaw deprived themselves of any excuse for ceasing performance on their part because they elected to treat the leases as continuing. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498]……………………………………………………………… 20-22 Relative to Issue 3: The trial court should have rendered judgment against Chopper and Outlaw for damages for past and future lease payments, as ample evidence existed of Marinecorp’s mitigation of damages. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498]………………………………… 23-24 iii Relative to Issue 4: Outlaw should not have been awarded damages as a result of not being able to open its dance hall for business as a result of Marinecorp's actions because the overwhelming evidence attributes causation of damages to Outlaw preventing it from opening earlier due to its own actions or inactions. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498]………… 24-29 Relative to Issue 5: The trial court committed harmful error by not submitting to the jury an instruction and question regarding mitigation of damages as it relates to Outlaw. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498]……....... 24-29 Relative to Issue 6: Chopper and Outlaw’s claims constitute a breach of contract action and not a DTPA violation…………………….. 30-41 Relative to Issue 7: Chopper and Outlaw’s claims for damages as a result of an alleged wrongful eviction fail as a matter of law and do not constitute a DTPA violation. [Germane to Motion to Disregard Jury Findings, CR 449; Third Supplement to Motion to Disregard, CR 592- 593; and Motion for New Trial, CR 498]……………………… 30-41 Relative to Issue 8: The evidence does not support the jury's answers to a violation of the DTPA by Marinecorp because: (a) There was no evidence or insufficient evidence to establish that Marinecorp did not have an intention of fulfilling its promise when made. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498]…………………….. 30-41 (b) There was no evidence or insufficient evidence that any representation by Marinecorp was a producing cause of damages to Chopper and Outlaw. [Germane to Motion for New Trial, CR 498]……………………………………………………… 30-41 (c) There was no evidence or insufficient to establish that Marinecorp’s actions were unconscionable. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498]…………………………………………………….. 30-41 iv (d) There was no evidence of insufficient evidence to establish that Marinecorp breached an implied warranty, as the lease provisions stated the tenants accepted the property in its “as-is” condition. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498]……………………… 30-41 Relative to Issue 9: The trial court should not have awarded Chopper and Outlaw pre-judgment interest because the alleged damages were not definitely determinable at a definite time……………………. 41-42 Relative to Issue 10: The trial court should have awarded Marinecorp damages for Miller and Tones' breach of the subject guaranty agreements. [Germane to Motion for New Trial, CR 498]……….. 42-43 Relative to Issue 11: The trial court should not have rendered judgment for cumulative damages for concurrent causes of action arising out of the same acts. [Germane to Supplemental Motion to Disregard Jury Findings, CR 513]…………………………………………... 43-47 Relative to Issue 12: The trial court should have entered judgment against Miller for the full amount of principal and interest owing on his promissory note payable to Marinecorp. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498] ………………………………………………………………. 48 Relative to Issue 13: The evidence does not support the jury's answers awarding Chopper and Outlaw damages for loss of the benefit of the bargain; remedial damages; expenses; loss of income; loss of use; and wrongful eviction. [Germane to Motion to Disregard Jury Findings, CR 449; Supplemental Motion to Disregard Jury Findings, CR 513-517; Third Supplement to Motion to Disregard Jury Findings, CR 592-593; and Motion for New Trial, CR 498]……………………….. 48-69 Conclusion and Prayer........................................................................... 70-73 Certificate of Service.............................................................................. 73 Certificate of Compliance With Tex.R.App.P. 9.4(i)(3)……………… 74 v Appendix................................................................................................ 75 A. Charge of the Court B. Modified Final Judgment C. Standard Lease Contract by and between Marinecorp as Landlord and Outlaw as tenant D. Standard Lease Contract by and between Marinecorp as Landlord and Chopper as tenant vi INDEX OF AUTHORITIES Cases: Page(s) Alexander of Texas, Inc. v. Bacchus Indus., Inc., 754 S.W.2d 252 (Tex.App.-- El Paso 1988, writ denied)………… 29 Alexander & Sorbus, Inc. v. UHW Corp., 855 S.W.2d 771 (Tex.App.-- El Paso 1993, writ denied)………… 29 American Baler Co. v. SRS Systems, Inc., 748 S.W.2d 243 (Tex. App.-- Houston [1st Dist.] 1988 , writ denied).......................................................................... 46 Bd. of Regents of the Univ. of Texas v. S & G Constr. Co., 529 S.W.2d 90 (Tex.Civ.App.-- Austin 1975, writ ref’d n.r.e.)… 22 Bennett v. Bank United, 114 S.W.3d 75 (Tex.App.—Austin 2003, no pet.)……………… 36 Black Lake Pipe Line Co. v. Union Construction Co., Inc., 538 S.W.2d 80 (Tex. 1976)……………………………………… 41 Briseno v. Martin, 561 S.W.2d 794 (Tex. 1977)……………………………………. 28 Cain v. Bain, 709 S.W.2d 175 (Tex. 1986)……………………………………. 16 Chastain v. Koonce, 700 S.W.2d 579 (Tex. 1985)……………………………………. 36 Cheung-Loon, LLC v. Cergon, Inc., 392 S.W.3d 738 (Tex.App.-- Dallas 2012, no pet.)…………….. 17 Crawford v. Ace Sign, Inc., 917 S.W.2d 13 (Tex. 1996)……………………………………… 31 Davis v. City of San Antonio, 752 S.W.2d 518 (Tex. 1988)…………………………………….. 15 vii Daugherty v. Jacob, 187 S.W.3d 607 (Tex.App.-- Houston [14th Dist.] 2006, no pet.).. 36 El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360 (Tex.App.-- Dallas 2005, no pet.)…………….. 53 Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905 (Tex. 2007)…………………………………… 40, 41 Harris v. Harris, 765 S.W.2d 798 (Tex.Civ.App.-- Houston [14th Dist.] 1989, writ denied)…………………………………. 28 Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691 (Tex. 1994)…………………………………… 22 Holt Atherton Industries v. Heine, 835 S.W.2d 80 (Tex. 1992)……………………………………. 53 James L. Gang & Associates, Inc. v. Abbott Labbs, Inc., 198 S.W.3d 434 (Tex.App.-- Dallas 2006, no pet.)…………… 49, 59 Long Trusts v. Griffin, 222 S.W.3d 412 (Tex. 2006)(per curium)……………………… 22 Lyendecker & Associates, Inc. v. Wechter, 683 S.W.2d 369 (Tex. 1984)…………………………………… 45 McKenzie v. A.C. Carte, 385 S.W.2d 520 (Tex.Civ.App.-- Corpus Christi 1964, writ ref’d n.r.e.)………………………………………………… 34 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)…………………………………… 15 Pinson v. Red Arrow Freight Lines, Inc., 801 S.W.2d 14 (Tex.App.-- Austin 1990, no writ)…………… 29 viii Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986)…………………………………… 16 Pope v. Moore, 711 S.W. 622 (Tex. 1986)……………………………………… 24, 42, 47, 48 Prudential Ins. Co. of Am. v. Jefferson Assoc., 896 S.W.2d 156 (Tex. 1995)…………………………………….. 40 Racko Properties, Inc. v. Alabama Great S.R.R., No. 07-2898, 2009 WL 178884 (E.D. La. Apr. 17, 2008)…….. 17 Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1 (Tex. 1991)……………………………………… 46 Texas Instruments, Inc. v. Teletron Energy Mgt, Inc., 877 S.W.2d 276 (Tex. 1994)………………………………….. 53 Tony Gullo Motors LLP v. Chapa, 212 S.W.3d 299 (Tex. 2006)………………………………….. 32, 44, 46 Western Irr. Co. v. Reeves County Land Co., 233 S.W.2d 599 (Tex.Civ.App.-- El Paso 1950, no writ)……. 22 W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127 (Tex. 1988)…………………………………. 34 Statutes: Tex.Bus. Comm. Code Sec. 17.45(5)………………………….. 35 Tex.Bus. Comm. Code Sec. 17.45(9)………………………….. 35, 38 Tex.Bus. Comm. Code Sec. 17.50(a)(2)……………………….. 39 Tex.Bus. Comm. Code Sec. 17.50(a)(3)……………………….. 35 Tex.Prop.Code 93.002(g)(1)…………………………………… 33 Tex.Prop.Code 93.002(g)(2)…………………………………… 33 ix Rules: Tex.R.App.P. 44.1(a)………………………………………….. 28 Tex.R.Civ.P. 279………………………………………………. 34 Tex.R.Evid. 801(e)(2)…………………………………………. 21 x STATEMENT OF THE CASE The facts and issues in this case involve two commercial real property leases by and between Appellant ("Marinecorp") 1, as the landlord, and Appellees ("Chopper and Outlaw") as the respective tenants and Tony Miller ("Miller") and Kyle Tones ("Tones") as lease guarantors (See Standard Lease Contract by and between Marinecorp as Landlord and Outlaw as Tenant, Appendix "C" and Standard Lease Contract by and between Marinecorp as Landlord and Chopper as Tenant, Appendix "D"). Chopper and Outlaw sued Marinecorp for breach of contract, fraud, and violation of the Texas Deceptive Trade Practices Act (DTPA). (CR 6). Marinecorp filed its counter-claim against Chopper and Outlaw for breach of contract and asserted a third-party action against Miller and Tones on their guaranty agreements and against Miller and Lee and Dawn Harless ("Harlesses") for breach of a promissory note payable to Marinecorp. (CR 97). Tones filed a cross-claim against Miller for fraud. Shortly before trial ended, Tones and Miller entered into a settlement agreement and Tones' cross-claim was severed from the underlying case. 1 The parties to this appeal will hereafter be referred to in this brief collectively as “Appellees” or individually as follows: •Appellant Marinecorp International, Ltd. on appeal as “Marinecorp.” •Appellee Chopper Group, LLC on appeal as “Chopper.” •Outlaw Country, LLC on appeal as “Outlaw.” •Individuals Tony Miller will be referred to as “Miller” and Kyle Tones will be referred to as “Tones.” 1 Course of Proceedings: The jury trial below took place place between the dates of April 14 – 23, 2015. The Honorable Larry Weiman of the 80th District Court, Harris County, Texas, was the presiding judge. The jury found the following: (1) Marinecorp failed to comply with the agreements with Chopper and Outlaw; (2) Outlaw failed to comply with the agreement with Marinecorp; (3) but found that Chopper did not fail to comply with the agreement (CR 427); (4) Marinecorp failed to comply with the agreements first (CR 423); and (5) Marinecorp violated the DTPA, and did so knowingly. (CR 427) (See Charge of the Court, Appendix “A”) The jury awarded Chopper actual damages for the breach of contract and awarded actual damages for the DTPA violations in the amount of $223,000.00 together with attorney's fees in the amount of $104,483.50 and DTPA "knowingly" damages in the amount of $11,000.00. (CR 427) It awarded Outlaw actual damages in the amount of $370,000.00; attorney's fees in the amount of $104,483.50, and DTPA "knowingly" damages in the amount of $11,000.00. (CR 427) (See Charge of Court, Appendix “A”). The Court entered judgment for such amounts. (CR 427). Marinecorp filed Motions to Disregard Jury Findings (CR 430 and 449) and a Motion for a New Trial (CR 498), which the court denied. (CR 511). Marinecorp also filed Supplemental, Second Supplemental, and Third Supplemental Motions to 2 Disregard Jury Findings and Motion for New Trial (CR 513, 519 and 592), which the Court also denied. (CR 512). Appellees filed their Motion to Disregard the Jury Answers, which the Court granted. (CR 479) The Court subsequently reduced Chopper's actual damages to $210,000.00; reduced its previous award prejudgment interest to $21,776.71, and post-judgment interest; and attorney's fees in the amount of $104,483.50 were approved, however, it awarded an additional $20,000 as attorney’s fees for an appeal to the court of appeals and another $12,500 for an appeal to the Texas Supreme Court. (CR 589) The Court subsequently reduced Outlaw's actual damages to $290,000.00; reduced its previous award of prejudgment interest to $30,072.60, and post- judgment interest; and attorney's fees in the amount of $104,483.50 were approved, however, it awarded an additional $20,000 as attorney’s fees for an appeal to the court of appeals and another $12,500 for an appeal to the Texas Supreme Court. (CR 589) Marinecorp challenges on appeal the jury’s verdict and the trial court’s final Judgment. STATEMENT REGARDING ORAL ARGUMENT The Court should grant oral argument for the following reasons: a. Oral argument would give the Court a more complete understanding of the facts presented in this appeal. 3 b. Oral argument would allow the Court to better analyze the complicated legal issues presented in this appeal. This is true because of the numerous theories sued upon, the apparent conflict in the jury answers, and numerous issues raised by Appellant. c. Oral argument would significantly aid the Court in deciding the case. ISSUES PRESENTED FOR REVIEW Issue 1: Chopper and Outlaw's claims of a breach of contract fail because they did not meet the conditions precedent of giving written notice of the alleged defaults and allowing Marinecorp thirty days to cure each such default as required by the subject leases. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498] Issue 2: Chopper and Outlaw deprived themselves of any excuse for ceasing performance on their part because they elected to treat the leases as continuing. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498] Issue 3: The trial court should have rendered judgment against Chopper and Outlaw for damages for past and future lease payments, as ample evidence existed of Marinecorp’s mitigation of damages. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498] Issue 4: Outlaw should not have been awarded damages as a result of not being able to open its dance hall for business as a result of Marinecorp's actions because the overwhelming evidence attributes causation of damages to Outlaw preventing it from opening earlier due to its own actions or inactions. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498] Issue 5: The trial court committed harmful error by not submitting to the jury an instruction and question regarding mitigation of damages as it relates to Outlaw. [Germane to Motion to Disregard Jury Findings, CR 449; Motion for New Trial, CR 498; Appellant’s Requested Jury Instructions & Questions, CR 362 & 363] Issue 6: Chopper and Outlaw’s claims constitute a breach of contract action and not a DTPA violation. [Supp. RR Vol. 6-A at 11-12] 4 Issue 7: Chopper and Outlaw’s claims for damages as a result of an alleged wrongful eviction fail as a matter of law and do not constitute a DTPA violation. [Germane to Motion to Disregard Jury Findings, CR 449; Third Supplement to Motion to Disregard, CR 592-593; and Motion for New Trial, CR 498] Issue 8: The evidence does not support the jury's answers to a violation of the DTPA by Marinecorp because: (a) There was no evidence or insufficient evidence to establish that Marinecorp did not have an intention of fulfilling its promise when made. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498] (b) There was no evidence or insufficient evidence that any representation by Marinecorp was a producing cause of damages to Chopper and Outlaw. [Germane to Motion for New Trial, CR 498] (c) There was no evidence or insufficient to establish that Marinecorp’s actions were unconscionable and were a knowing violation of the DTPA. [Germane to Motion to Disregard Jury Findings, CR 449; Motion for New Trial, CR 498; Supp. RR Vol. 6-A at 113-14] (d) There was no evidence of insufficient evidence to establish that Marinecorp breached an implied warranty, as the lease provisions stated the tenants accepted the property in its “as-is” condition. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498] Issue 9: The trial court should not have awarded Chopper and Outlaw pre- judgment interest because the alleged damages were not definitely determinable at a definite time. Issue 10: The trial court should have awarded Marinecorp damages for Miller and Tones' breach of the subject guaranty agreements. [Germane to Motion for New Trial, CR 498] 5 Issue11: The trial court should not have rendered judgment for cumulative damages for concurrent causes of action arising out of the same acts. [Germane to Supplemental Motion to Disregard Jury Findings, CR 513] Issue 12: The trial court should have entered judgment against Miller for the full amount of principal and interest owing on his promissory note payable to Marinecorp. [Germane to Motion to Disregard Jury Findings, CR 449 and Motion for New Trial, CR 498] Issue 13: The evidence does not support the jury's answers awarding Chopper and Outlaw damages for loss of the benefit of the bargain; remedial damages; expenses; loss of income; loss of use; and wrongful eviction. [Germane to Motion to Disregard Jury Findings, CR 449; Supplemental Motion to Disregard Jury Findings, CR 513-517; Third Supplement to Motion to Disregard Jury Findings, CR 592-593; and Motion for New Trial, CR 498] 6 STATEMENT OF FACTS Chopper opened its doors for business as a biker's bar in mid-July 2010. (3 RR 142:12) Chopper was operating under a lease agreement it signed with Marinecorp. (8 RR 1, Exs. 1 and 2) After open for business, Outlaw negotiated another lease for the adjoining former Walgreens space where Miller and Tones intended to operate a country western dance hall. (3RR 140:1 & 147:17) The parties to the lease were Marinecorp and Outlaw, with the lease date of September 20, 2010 and its commencement date was November 1, 2010. The Walgreens store had been vacant for several years and it was structurally sound, however, it needed repairs to make the premises ready for business. (3 RR 148:5) The lease provided that Marinecorp must pay Outlaw a tenant improvement or “ build out” allowance, which would be equal to a sum of $17.73 per square foot (10,998 s.f.) for a total of $194,994.54 and that the completion date was January 31, 2011. Prior to the Outlaw lease being executed, thieves stole the electrical wires from the premises. (3 RR 148:10). The Outlaw lease therefore included a hand written provision in the "as-is" section as follows: "Except for electrical, service shall remain at 1000 amps and installed by landlord, HVAC at 60 tons.” (4 RR 32:9) Marinecorp's property manager told Outlaw that it would have the power restored and AC units installed sometime during the first part of November 2010. However, the electrical hook up was Outlaw’s responsibility because Marinecorp 7 does not supply the meters, but only has the ability to connect the meters. (6 RR 67:8) On November 8, 2010, Marinecorp’s electrician presented his invoice for his labor involved in installing the electrical power to Outlaw’s building. (9 RR P:Ex. 20) However, the power company did not approve the work. (5 RR 178:4). So, the electrician talked to Marinecorp’s property manager and then he disassembled it and rebuilt it. (5 RR 179:2) Outlaw had service on January 24, 2011. (3 RR 179:6) Marinecorp bought and installed all the air conditioning as agreed and paid AC Dang Heating $53,800 in the months of October and November of 2010 for the units and installation (21 RR D-Exs. 11, 12 & 13) Tones had no prior experience owning or operating a bar. (6 RR 97:15) However, he had a considerable sum of money, having received a second million dollar settlement in a personal injury accident many years ago. (6 RR 88:12) In contrast, Miller had uncommon business sophistication as he was previously involved in building commercial strip malls (3 RR 131:23) and projects such as the Chopper and Outlaw business ventures. (3 RR 132:1) He had experience dealing with bankers, lawyers, CPAs, realtors (3 RR 179:22); he had put a business plan together (3 RR 134:13); he had worked with trustees (13 RR 137:6); and he owned corporations (3 RR 141:9). The parties negotiated the terms of both leases, which 8 included the requirement that Miller guarantee both leases and Tones guarantee the Chopper lease. (4 RR 18:2; 18:20; 18:21; 19: 22; 20:5) Miller, Tones and their broker, Tibbs, all knew that the larger Outlaw building that was going to be the country-western dance hall, which needed many more repairs than the Chopper’s premises. Outlaw’s building had been sitting vacant for several years; the roof leaked severely; there was insulation everywhere; mold was present; the air conditioners had been stolen off the roof; and copper thieves had stolen all the wires. (3 RR 148:5) Marinecorp agreed to pay Miller the build-out monies and he would pay for the labor and materials using Marinecorp's money for the build-out allowance in the lease. (8 RR P Ex.2) Miller was aware of the condition of the buildings when Chopper and Outlaw entered into the leases. (3 RR 148:5) The leases expressly provided that except for those matters set forth on p. 29 of the lease, they were leasing the building in an "as-is" condition. (8 RR, P. Ex. 1&2, Section 3.1) The Outlaw lease was executed on September 28, 2010, but the commencement date was November 1, 2010. Chopper's restaurant next door was up and running the middle of July 2010. (3 RR 142:12) However, after the restaurant had been in operation for some time, thieves also stole the facility’s air conditioning units and underground electrical lines. (3 RR 144:3 and 6 RR 7:10). The nature of the theft made it very difficult 9 to restore the power. (6 RR 7:11) During the period of time that Chopper's power was not at full strength, Marinecorp brought in four 300 watt spotlights and big diesel lights to illuminate the parking lot. (3 RR 145:7 and 146:9) During the early part of Chopper's lease, the tenant complained that the roof leaked and the air conditioners weren't working properly. In addition to the electrical power problems, Outlaw also complained about leaks on the dance floor. However, Marinecorp repaired all of the leaks to Outlaw’s satisfaction (4RR 64:16), with repairs occurring before there was damage to the dance floor. (4 RR 65:12) From the very beginning, Outlaw failed to timely pay its rent. (5 RR 84:1). It’s first payment was two months late but the check bounced (5 RR 83:21 & 3 RR 83:22). Outlaw was never current with its payments. (3 RR 84:1) Miller sold Outlaw to the Harlesses in October 2011. (3 RR 69:21) After the Harlesses purchased Outlaw, the delinquency in rent became so large that as a means of avoiding having to evict Outlaw, Marinecorp accepted a personal promissory note from Miller and the Harlesses for rent in arrears in the amount of $56,545.00. (RR 9, D Ex. 36) This represented the amount necessary to bring the lease payments current. (5 RR 96:3 & 5 RR 96:3) However, they did not make these payments as agreed either. The then current balance of the promissory note was $53,000. (5 RR 96:16). Subsequently, Chopper and Outlaw continued to fail to pay the rent, 10 causing Marinecorp to lock them out in January 2011. (3 RR 74:5) The underlying lawsuit was filed by Chopper and Outlaw shortly thereafter. 11 SUMMARY OF ARGUMENT Neither Chopper nor Outlaw complied with the conditions precedent set forth in the respective leases requiring that they give Marinecorp thrity (30) days written notice to cure alleged defects and notice of default in the terms of the lease agreement. They did not send the notice in writing to Marinecorp's offices; and their texts and oral complaints wholly failed to comply with the lease notice requirements. Appellees treated the leases as continuing and, therefore, they were not excused for ceasing performance on their part. They admitted at trial that they wanted the leases to continue. They were only concerned about the repairs, electrical power, air conditioning and general maintenance matters. The Court refused to render judgment for Marinecorp and against Appellees for damages and for past and future lease payments. The jury found that Outlaw breached the lease and that its failure was unexcused but did not award Marinecorp damages. Ample evidence exists that Chopper also breached its lease without excuse and, therefore, Marinecorp was entitled to an award of past and future rents. Therefore, as argued above, since Appellees continued to treat the lease as continuing, they were not excused from future performance. The record is rife with evidence of Marinecorp’s mitigation of damages. 12 Damages should not have been awarded Outlaw because of the alleged failure of Marinecorp to connect the power, as the overwhelming evidence attributes any damages to Outlaw’s actions and inactions preventing it from opening earlier. Its failure to open was due to Outlaw’s actions and inactions, not Marinecorp’s failure to connect power. The trial court erred by not submitting to the jury an instruction and question regarding mitigation of damages as it relates to Outlaw. Marinecorp challenges the jury’s award of DTPA damages. To begin with, Outlaw’s damage claim relates to the alleged failure of Marinecorp to connect the power, which sounds in contract, not in DTPA. Appellees’ remedy was in contract, as any representations from Marinecorp regarding the provision of power originated in the express terms of the subject leases. Also lacking is evidence that Marinecorp intended not to perform when representations, thereby defeating all DTPA claims. No evidence exists that any Marinecorp representation was a producing cause of damages to Appellees. Appellees never alleged or proved an action for wrongful eviction and the jury did not consider the elements of such a cause of action; therefore, a wrongful eviction cannot serve as the basis of a DTPA claim. There could be no unconscionable DTPA violation by Marinecorp because the Plaintiff, Miller, was a sophisticated businessman who had the knowledge, 13 ability, experience and capacity that would take him out of the unconscionable category. No evidence exists that Marinecorp engaged in unconscionable action or course of action that was a producing cause of damages to Chopper and Outlaw. Also lacking was evidence of a knowing violation of the DTPA. Evidence was lacking that Marinecorp breached an implied warranty, as the lease provisions in question stated that tenants accepted the leased property “as-is.” The judgment should not have awarded prejudgment interest because the alleged damages were not definitely determinable at a definite time. The trial court should have awarded Marinecorp damages for their cause of action against Miller and Tones as a result of their breach of the personal Guaranty Agreements. Marinecorp challenges the judgment in that it improperly awards cumulative damages for concurrent causes of action arising out of the same acts. This violated Texas’ “one satisfaction” rule. Marinecorp should have been awarded a judgment against Miller and the Harlesses for the full amount of principal and interest owing on the promissory note executed by them and payable to Marinecorp. Miller admitted he executed the note but has not paid it. A directed verdict was rendered against the Harlesses. Finally, Marinecorp challenges all the jury's damage awards because the jury did not follow the court's instructions and there was no, or insufficient, evidence to 14 support the jury’s award of different elements of damages and, moreover, Appellees failed to meet their burden in proving up such damages. The damages awarded were also against the great weight and preponderance of the evidence and manifestly unjust. ARGUMENT Issue 1: Chopper and Outlaw's claims of a breach of contract fail because they did not meet the conditions precedent of giving written notice of the alleged defaults and allowing Marinecorp thirty days to cure each such default as required by the subject leases. A. Standard of Review In assessing whether the evidence supporting a jury finding is legally sufficient, the appeals court only considers evidence favorable to the jury’s decision and disregards all evidence and inferences to the contrary. See Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Id. A legal sufficiency point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by the rules of law or evidence from giving weight to the only evidence offered to prove a vital fact is no more than a mere scintilla, or (c) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). By comparison, in considering a challenge to the evidence’s factual sufficieny, the appeals court is to review all of the evidence and reverse for a new 15 trial only if the challenged finding shocks the conscience, clearly demonstrates bias, or is so great against the great weight and preponderance of the evidence that it is manifestly unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). A finding is set aside only if the evidence is so weak or the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curium). b. Legally and Factually Sufficient Evidence Does Not Support the Jury’s Findings that Marinecorp breached the Chopper and Outlaw lease agreements, as the latter two parties did not meet contractual conditions precedent of providing Marinecorp with notice of defaults and by allowing Marinecorp thirty days to cure each alleged default, as expressly required by the subject leases. The lease agreements required Appellees to give 30 days' written notice to Marinecorp's offices of the matters giving rise to any alleged default by Marinecorp of the terms of the leases. This would have allowed Marinecorp 30- days to cure any such default. Neither Appellee complied with this condition precedent. Their few complaints did not comply with the requirements set forth in the leases providing that if the tenants, at any time, alleged Marinecorp was in default in the terms of the lease, they agreed to give written notice to Marinecorp specifying each default. Since they failed to comply with the agreements, their claims fail. 16 The case of Cheung-Loon, LLC v. Cergon, Inc., 392 S.W.3d 738 (Tex.App.— Dallas 2012, no pet.), involved was a similar lease provision requiring the tenant to give “written notice of any failure by Landlord to perform any of Landlord’s obligations under this Lease to Landlord…” (Supp. RR Vol. 6-A at 7). Under the belief that it had exclusive use of a parking lot, the tenant gave actual, but not written, notice to the landlord that other tenants were using the parking lot. The court found this notice not sufficient and in noncompliance with the requirement of the lease and it did not serve as notification of a breach. In summary, the tenant bore the burden of showing all conditions precedent were met, with a condition precedent being an act that must occur before there is a breach of a contractual duty. In the instant case, Appellees failed to produce any evidence that they provided notice of any alleged breach to Marinecorp. Also see cf. Racko Properties, Inc. v. Alabama Great S.R.R., No. 07-2898, 2009 WL 178884, at *4 (E.D. La. Apr. 17, 2008) (“[N]otice and cure requirements are entitled to no less deference than the obligations imposed upon the lessee.”). With regard to the matter of notice and the landlord’s right to cure, Sections 3.1 and 17.11 of the leases required that thirty (30) days’ notice be given at Marinecorp’s offices, and Section 21.1 required the tenants to provide written 17 notice to the Houston address provided at Section 1.1c of the leases. Neither Appellee complied with these conditions precedent. Appellees’ claim that actual notice was provided is besides the point, as it remains undisputed that Marinecorp never received actual notice of an alleged default. At the most, Marinecorp's property manager received some texts and oral complaints--but no notice of an alleged default. However, the property manager was not on the board of directors of Marinecorp, nor did he have an interest in said corporation (5 RR 222:22 & 222:25), as he was simply a property manager in charge of day-to-day routine matters related to the properties (5 RR 222:19). Any such notices or complaints were never received by Marinecorp's officers, directors, principals, or corporate management (6 RR 69:8), and Marinecorp never received any notice, actual or otherwise, that Chopper and Outlaw were claiming that Marinecorp defaulted or breached the subject leases. It was especially important that Marinecorp’s management receive the notice rather than one of its employees because the president and principal of the company, Mr. Ayaz Nasser, testified without contradiction that he was "a hands-on owner" (6 RR 68:14) and that he was personally involved in all tenant problems. He met regularly with his employees, including the property manager. (6 RR 68:14) He would go over the many issues which would include any notices of breach of contract or repairs needed. Mr. Nasser further testified that if he had 18 known that the power had not been connected, he would have hired someone to make sure it was done (6 RR 69:16). He was denied this option by Appellees because they did not comply with the lease by sending the company notice of any default. As a result, Marinecorp cannot be held to have been in default of the terms of the leases. Miller testified that it was reasonable for Marinecorp to expect him to comply with the lease until its higher management and even the owner could make sure all problems were taken care of. (4RR 26:11) He doesn't know why once he had learned of the electrician's problems with getting the power connected, that he didn't give Marinecorp an opportunity to take care of it (4RR 41:22). He further admits that he never told Marinecorp of the air conditioning problems in November, December, or January. (4RR 48:11) The evidence discussed above establishes that there is a complete lack of evidence, or alternatively less than a scintilla of evidence, supporting a finding that Marinecorp breached the subject lease agreements, as instead the uncontroverted evidenced established that Appellees did not meet conditions precedent of providing proper notice of default and providing an opportunity to cure. This same evidence is against the great weight and preponderance of the evidence and is manifestly unjust. For these reasons, Marinecorp’s arguments should be sustained on appeal. 19 Issue 2: Chopper and Outlaw deprived themselves of any excuse for ceasing performance on their part because they elected to treat the leases as continuing. A. Standard of Review In this point of error, Marinecorp challenges the jury’s affirmative answer to Question No. 3, wherein they answered that Marinecorp was the first party to fail to comply with the agreement. (CR 423; Supp. RR Vol. 6-A at 7) The evidence was legally and factually insufficient to support the jury’s answer to Question No. 3. The trial court further erred in failing to disregard the jury’s answer to Question No. 3 because under the evidence and facts presented, this answer is immaterial, improper, and prejudicial to Marinecorp in that the jury’s answer prevented the jury from advancing to questions regarding damages to Marinecorp and its attorney’s fees. B. Appellees Elected to Treat the Lease Agreements as Continuing. Even if Marinecorp is found to have committed a material breach of the agreements, Appellees were not discharged or excused from their obligations to perform because they elected to treat the lease agreements as continuing, thereby depriving themselves of any excuse from continued performance under the lease agreements (Supp. RR Vol. 6-A at 7). Evidence that Appellees elected to treat the leases as continuing includes: (1) Appellees’ acknowledgements that monthly rent 20 was always due; (2) Appellees never claiming a set off for any alleged damages or breach of the leases by Marinecorps; (3) continued operation of their businesses on leased premises and their receipt of income; (4) continuing to request from the landlord additional repairs and lighting; (5) continuing to work with the electrician to obtain a permit; and (6) testimony by Miller (at 4 RR 135:24), which was corroborated by Miller’s realtor (agent), Grady Tibbs (at 5 RR 8:13), that Miller was not trying to get out of the lease agreements. 2 By continuing to operate under the lease agreements, rent became due with each passing month, ultimately resulting in a total of $56,000 in rent in arrears for Outlaw. Outlaw opted to continue business under its lease in spite of its nonpayment of rent, ultimately resulting in its lock out by Marinecorp in January of 2011. It is a fundamental proposition of contract law that when one party breaches its contract, the other party is put to an election of continuing or ceasing performance, and any action indicating an intention to continue will operate as a conclusive choice, not depriving the injured party of his cause of action for breach which has already taken place, depriving him only of any excuse for ceasing 2 Such relevant testimony by Miller qualifies as a statement made by a party that is admissible against that party This rule is known as “an admission by a party-opponent,” which is included as statements not considered hearsay. See TexR.Evid. 801(e)(2). 21 performance on his own part. Bd. of Regents of the Univ. of Texas v. S & G Constr. Co., 529 S.W.2d 90, 97 (Tex.Civ.App.-- Austin 1975, writ ref’d n.r.e.) (citing Western Irr. Co. v. Reeves County Land Co., 233 S.W.2d 599 (Tex.Civ.App.-- El Paso 1950, no writ)). In Long Trusts v. Griffin, 222 S.W.3d 412 (Tex. 2006) (per curiam), the Supreme Court of Texas, citing Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692 (Tex. 1994), held that "a party who elects to treat a contract as continuing deprives himself of any excuse for ceasing performance on his own part." Since, as discussed above, the matter of who breached the subject lease agreements first is wholly irrelevant, Marinecorp was entitled to damages that resulted from the material breaches by Appellees of the express terms of the lease agreements. Such an award of damages to Marinecorp is warranted in part in light of the jury’s answer to Question No. 2, where it found that Outlaw failed to comply with the agreement and that its failure was material. Appellees waived their excuse for nonperformance, as explained in Long Trusts, supra. Therefore, the Court should not have submitted jury Question No. 3 as to who breached the contract first. This error effectively prevented the jury from answering the questions relating to Marinecorp's damages. Such appellate error resulted in the rendition of an improper judgment, warranting reversal and remand. 22 Issue 3: The trial court should have rendered judgment against Chopper and Outlaw for damages for past and future lease payments, as ample evidence existed of Marinecorp’s mitigation of damages. The jury’s answers to Question No. 8 [where the jury found that Marinecorp failed to exercise reasonable care and diligence to avoid or minimize its damages] and Question No. 9 [where the jury found that Marinecorp would have suffered no (zero damages) damages] are legally and factually insufficient and are against the great weight and preponderance of the evidence and manifestly unjust. The testimony of Marinecorp's real estate broker and its accountant, Ed Wolochin, was the only testimony heard regarding the measure of damages for past and future rentals. He established that with respect to Chopper, the past and future damages, i.e., the lease payments, would be in the amount to $585,000.00, while the past and future damages for Outlaw were valued at $1,172,000.00. Neither Appellee offered any expert or other testimony or evidence to the contrary. Mr. Wolochin testified positively regarding Marinecorp’s due diligence and its reasonable efforts to re-lease the subject commercial premises through the date of trial, yet such efforts had been unsuccessful. Additional evidence of Marinecorp’s entitlement to delinquent rent and future rent payments can be found at Pl-Ex. 38 (showing delinquent rents were then due for $92,000), Pl. Ex. 39 (showing rent due for $15,814) and Pl. Ex. 40 (an email from Appellees regarding rent payment delinquency). 23 In summary, no evidence or insufficient evidence was presented supporting the jury’s answers to (1) Question No. 8 finding that Marinecorp failed to mitigate its damages, and (2) Question No. 9 finding that Marinecorp would have suffered no damages if it had mitigated its damages. Both findings are also against the great weight and preponderance of the evidence and are manifestly unjust. For these reasons, reversal is warranted. Issue 4: Outlaw should not have been awarded damages as a result of not being able to open its dance hall for business as a result of Marinecorp's actions because the overwhelming evidence attributes causation of damages to Outlaw preventing it from opening earlier due to its own actions or inactions. Issue 5: The trial court committed harmful error by not submitting to the jury an instruction and question regarding mitigation of damages as it relates to Outlaw. [Since Issues Nos. 4 and 5 are interrelated in that they deal with the issue of damages, they will be argued together.] A. Causation Not Supported by Sufficient Evidence & Applicable Standard of Review. The jury’s award of damages to Outlaw “that resulted from such failure to comply” in response to Question No. 6 (CR 409) is against the great weight and preponderance of the evidence and is manifestly unjust. Such damages are also not factually supported by sufficient evidence. The standard for a request for remittitur is factual insufficiency of the evidence. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986). 24 Even if Outlaw's electrical power would have been connected in November of 2010, Outlaw could not have obtained an occupancy permit and could not have opened for business until February 2011 (long after the power was connected) for the following reasons: a. On November 18, 2010, Outlaw, could not have opened for business because on that date, it submitted for the first time a commercial permit application with the City which was not approved. ( 9RR P Ex. 21); b. On November 29, 2010, Outlaw could not have opened because its electrician (which was also Marinecorp's electrician) was still working for Outlaw installing wiring inside the building ( 9RR P Ex 22); c. On December 3, 2010, Outlaw could not have opened for business because on said date it was still getting quotes for the fire security work ( 9RR, P Ex 24); d. On December 27, 2010, Miller could not have opened for business because on that date, he sent a text to a performer for the dance hall stating that he couldn't even get an inspection scheduled with the City. There is no mention that because of Marinecorp's failure to have the electrical service connected, he was prevented from opening ( 9RR P Ex 25); e. On February 10, 2011 Outlaw could not have opened because it had not installed its refrigerator ( 9RR P Ex 28); and f. Finally, even as late as February 26, 2011 (approximately a month after the City approved the electrical service, Outlaw was still working to obtain fire upgrades to meet City codes. ( 9RR P Ex 30 and P Ex 31) This plethora of delaying factors, which were not directly attributable to Marinecorp, caused repeated delays in Outlaw starting up its business. 25 The overwhelming evidence establishes that if in fact Outlaw was damaged in this case, as found in response to Question No. 6, it resulted from its own failure to comply, and not that of Marinecorp. This fact is highlighted by the uncontroverted testimony of Marinecorp’s experienced and knowledgeable Property Manager, Michael Mirza. He testified regarding the simple process that a person or entity can go through to get a temporary construction permit (6 RR 10:9): Q. Now, explain to the jury how he could have done that. A. … It’s very simple process. If you’re doing a construction you have to line out the things and you can apply for – it’s called a construction meter and they come and right away and connect that to that property. And then you can perform all that, the construction you need to do. And then they come out and inspect and you will be a permanent meter. (6 RR 10:11) He had been previously successful in obtaining the temporary permit and electricity involving another property where the wiring has been stolen. (6 RR 10:11) Mr. Mirza’s uncontroverted testimony serves as overwhelming evidence of: (1) Outlaw’s cause of its own damages specifically attributed to what it did and did not do; and (2) Outlaw’s failure to mitigate its damages as a reasonable person would have done under the same or similar circumstances. 26 The uncontroverted evidence established that Outlaw wholly failed to mitigate its damages, making insignificant and not credible Outlaw’s contention that Marinecorp’s alleged failure to have the electrical power connected the first part of November was the cause of its damages. In fact, overwhelming evidence to the contrary was presented that Outlaw was the cause of its own damages. In this connection, Outlaw claims that it could not get its permit until the power was connected by Marinecorp. However, Mr. Mirza, essentially testified that Outlaw could have obtained a temporary construction meter and that in his experience working with Harris County and Reliant Energy, these entities would have allowed the temporary meter to be used for inspection purposes. Appellees were just as capable as Marinecorp in obtaining a temporary construction meter and construction permit in the manner described above. Appellees opted not take the simple measures needed to get a temporary construction meter and permit. Most compelling in this regard is the fact that Miller testified that with regard to other properties, he had previously taken out temporary meters and obtained temporary construction permits. (6 RR10:7) Since the evidence was factually insufficient to support the causation element to jury Question No. 6 as it relates to Marinecorp and Outlaw’s alleged damages, if any, the finding of damages in this case should be set aside. Considering the evidence discussed above, the jury’s finding of causation as to Marinecorp is so against the 27 great weight and preponderance of the evidence that it is manifestly unjust, warranting reversal and a remand for a new trial. B. Harmful error in the trial court refusing Marinecorp’s request for a jury instruction and question regarding mitigation of damages relative to Outlaw. Appellees failed to mitigate their damages by failing to utilize the simple two day procedure to get electricity. While the trial court granted an instruction and question directed at Marinecorp’s alleged failure to mitigate damages (See Jury Question 8 at CR 411), the court committed error in refusing to allow Marinecorp’s similar properly requested instruction and question directed at the Appellees (See CR at 362 and 363), which related to the vital defense of mitigation of damages and was supported by more than a scintilla of evidence. For reversible error purposes, the submission should be considered as a whole to determine whether the error was prejudicial. Briseno v. Martin, 561 S.W.2d 794, 796 (Tex. 1977); also see Tex.R.App.P. 44.1(a). The decision to submit a particular instruction, question or definition is reviewed for an abuse of discretion with the essential question being whether the instruction or definition aids the jury in answering the questions. See Harris v. Harris, 765 S.W.2d 798, 801 (Tex. Civ.App.—Houston [14th Dist.] 1989, writ denied). A court should submit a mitigation instruction [and question] whenever the evidence raises an issue as to whether the plaintiff could have avoided, in whole or in part, his or her 28 losses. Alexander & Sorbus, Inc v. UHW Corp., 855 S.W.2d 771, 775 (Tex.App.-- El Paso 1993, writ denied). The standard is that of ordinary care, or what an ordinary prudent person would have done under the same or similar circumstances. Pinson v. Red Arrow Freight Lines, Inc., 801 S.W.2d 14, 16 (Tex.App.-- Austin 1990, no writ). The burden of proving whether the plaintiff failed to do so is on the party who caused the loss. Alexander of Texas, Inc. v. Bacchus Indus., Inc., 754 S.W.2d 252, 253-254 (Tex.App.-- El Paso 1988, writ denied). The trail court’s failure to grant Marinecorp’s requested jury instruction and question on Outlaw’s mitigation of damages likely resulted in the rendition of an improper jury verdict and judgment. The jury was given no instruction as to how Outlaw’s failure to mitigate could effectively reduce and even eliminate any recovery of damages by Outlaw. Even more troubling is the fact that even though strong failure to mitigate damages evidence was presented to the jury against Outlaw, the jurors were not given an option by means of a jury question to redirect fault away from Marinecorp, taxing Outlaw for essentially causing its own damages. In fact, the way the charge reads in this case, the jury never even considered Outlaw’s failure to mitigate its damages much less allowing the jury to tax Outlaw monetarily for causing its own damages. This was an abuse of discretion which likely resulted in the rendition of an improper judgment, thereby warranting reversal. 29 Issue 6: Chopper and Outlaw’s claims constitute a breach of contract action and not a DTPA violation. Issue 7: Chopper and Outlaw’s claims for damages as a result of an alleged wrongful eviction fail as a matter of law and do not constitute a DTPA violation. Issue 8: The evidence does not support the jury's answers to a violation of the DTPA by Marinecorp because: (a) There was no evidence or insufficient evidence to establish that Marinecorp did not have an intention of fulfilling its promise when made. (b) There was no evidence or insufficient evidence that any representation by Marinecorp was a producing cause of damages to Chopper and Outlaw. (c) There was no evidence or insufficient to establish that Marinecorp’s actions were unconscionable. (d) There was no evidence of insufficient evidence to establish that Marinecorp breached an implied warranty, as the lease provisions stated the tenants accepted the property in its “as-is” condition. [Issues 6, 7 & 8 will be argued together because they relate to Appellees’ DTPA/Breach of Warranty Causes of Action.] The jury found in answer to Question No. 13 that Marinecorp engaged acts or practices in violation of the DTPA. (CR 416) It also found that Marinecorp failed to comply with a warranty that was a producing cause of damages. (See Jury Question No. 14; CR 417) The jury also found that Marinecorp engaged in an unconscionable act or course of action that was a producing cause of damages to 30 Appellees (Jury Question No. 15; CR 418) and that Marinecorp engagement in prohibited conduct knowingly, awarding each Appellee $11,000 (Jury Question No.s 17 & 18; CR 421-422). (ISSUES 6 & 8(a)) A. The claims of Chopper and Outlaw sound in breach of contract. B. Marinecorp had every intention of fulfilling its promise when initially made. The Outlaw lease contains a commencement date of November 1, 2010, and it required Marinecorp to provide electrical service. See Outlaw Lease at Section 3.1: “electrical services shall remain at 1000 amps and installed by landlord.” (Pl. Ex. 4). Since electricity was a requirement or obligation of Marinecorp that was set forth in the lease, its duty to act arose out of a contract. The fact that Marinecorp’s Property Manager made a representation about the electricity requirement did not change the character or nature of the representation, as the fact remains that its genesis was in the subject lease (contract). According to the Texas Supreme Court in Crawford v. Ace Sign, Inc., 917 S.W.2d 13, 14-15 (Tex. 1996), “a failure to fulfill a [contractual] promise is actionable only under a breach of contract theory and not under the DTPA.” Id. The Court added, “the failure [to perform] actually caused the [alleged harm], and that injury is governed by contract law, not the DTPA.” Id. Accordingly, any breach of the subject 31 representation would have constituted a breach of contract. (Supp. RR Vol. 6-A at 11-12) The distinction between a mere breach of contract and the violation of the DTPA comes down to whether there was an intent not to perform when the representation was made and whether the representation was false or misleading when it was made. See Tony Gullo Motors LLP v. Chapa, 212 S.W.3d 299 (Tex. 2006). In the instant case, Marinecorp’s Property Manager made his representation to provide electricity fully intending to fulfill his promise and his representation was not false or misleading. No evidence to the contrary was presented at trial. The evidence presented showed that Marinecorp's electrician, Hofelich, by November 8, 2010, had invoiced Marinecorp for the 1000 amp service to Outlaw (Pl. Ex. 20) and Marinecorp ordered the electrical supplies on or about October 21, 2010. Finally, even though the claims of Appellees both sound in contract, no evidence, or insufficient evidence, exists supporting the measure of damages that they would have been entitled to upon meeting their burden, specifically proof of lost profits. 32 (ISSUE 7) C. Alleged wrongful eviction did not constitute a violation of the DTPA. Appellees’ claims for damages as a result of an alleged wrongful eviction or lockout, pursuant to Tex. Prop. Code §§93.002(g)(1) and 93.002(g)(2), fail and do not constitute a DTPA violation. Appellees never specifically pled a cause of action for wrongful eviction and they never proved up by a preponderance of the evidence conduct by Marinecorp which rose to the level of an actionable violation of the wrongful eviction provisions set out in the Texas Property Code. To the contrary, Appellees and their legal counsel at trial were nonchalant in claiming that Appellees had been “wrongfully evicted,” but anything short of evidence that there had been a judicial finding of “wrongful eviction” cannot serve as the basis supporting a violation of the DTPA. No evidence exists that any misrepresentation was made or that Appellees relied on same to their detriment. Upon satisfying their burden of proving up a wrongful eviction, which Appellees failed to do, the Texas Property Code would have provided an array of remedies which would have been available to the wronged commercial tenant. The specific elements required to have a viable cause of action for wrongful eviction were never alleged or proven in this case, See McKenzie v. A.C. Carte, 385 S.W.2d 520, 528 (Tex.Civ.App.-- Corpus Christi 1964, writ ref’d n.r.e.), and certainly such a complete cause of action was not contemplated by the 33 parties, their attorneys and the trial court when finalizing the Jury Charge at the charge conference (Supp. RR Vol. 6-A). Further, a party must submit a request for jury instruction, definition and issue when it has the burden of proof, otherwise, the items never requested are waived. See W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex. 1988); Tex.R.Civ.P. 279. Since Appellees never requested any jury instruction, definition and issue regarding a cause of action for wrongful eviction, such a cause of action was completely waived and cannot serve as the basis for alleged DTPA violations. (ISSUE 8(b)) D. Statements and representations allegedly relied on by Appellees were not a producing cause of any damages. Provisions in the subject leases and oral representations made by Marinecorp’s Property Manager in connection with these contractual provisions regarding the provision of electricity were not a producing cause of DTPA damages to Appellees. More specifically, such representations were not a substantial factor in bringing about damages and any such damages would have occurred with or without such representations. This is established in the evidence more fully discussed immediately above under the discussion regarding Issues Nos. 1, 4 and 7, supra, to wit: 34 1. Appellees are not entitled to damages from Marinecorp because they failed to comply with material notice of default and cure lease provisions; 2. Appellees caused any damages which they may have sustained; and 3. An unpled or unproved wrongful eviction of Appellees did not violate the DTPA. Plaintiffs testified that Chopper was making a profit and Outlaw was breaking even. There was no evidence of any act or omission by Marinecorp that affected this net income. Appellees failed to meet this burden of proof relative to the DTPA element of causation. (ISSUE 8(c)) E. There was no evidence or insufficient evidence to establish that Marinecorp’s actions were unconscionable or knowingly in violation of prohibited conduct under the DTPA. Unconscionable Action There was insufficient evidence to establish that Marinecorp's actions were unconscionable in that it grossly took advantage of Chopper and Outlaw’s principal, Miller. (See answer to Jury Question No. 15 at CR 418) Section 17.50(a)(3) of the DTPA provides that a consumer may recover actual damages for "any unconscionable action or course of action" that is the producing cause of damages. Tex. Bus. & Com.Code § 17.50(a)(3). Section 17.45(5) of the DTPA defines “unconscionable action or course of action” to mean “an act or practice which, to a consumer’s detriment, takes advantage of the lack of knowledge, 35 ability, experience, or capacity of the consumer to a grossly unfair degree.” For purposes of the definition of unconscionable action, the term “gross” should be given its ordinary meaning of glaringly noticeable, flagrant, complete, and unmitigated. Chastain v. Koonce, 700 S.W.2d 579, 583 (Tex. 1985). To prove an unconscionable action or course of action, a plaintiff must show that the defendant took advantage of his lack of knowledge and "`that the resulting unfairness was glaringly noticeable, flagrant, complete and unmitigated.'" Id. The relevant inquiry into an alleged unconscionable action or course of action under the DTPA examines the entire transaction, not only a defendant’s intent. Bennett v. Bank United, 114 S.W.3d 75, 82 (Tex.App.-- Austin 2003, no pet.). Another relevant inquiry on appeal is what the consumer could have or would have done if he or she had known about the information, and there also needs to be some showing of the consumer’s knowledge, ability, experience, or capacity. Daugherty v. Jacob, 187 S.W.3d 607, 616 (Tex.App.-- Houston [14th Dist.] 2006, no pet.). In the instant case, there is no evidence that Marinecorp took an unfair advantage of Miller to a grossly unfair degree. Miller was a sophisticated businessman with a wealth of business experience and knowledge. He was previously involved in building large commercial strip malls and he had previously been involved in projects similar to the Chopper and Outlaw projects. He 36 commonly dealt with lawyers, bankers, CPAs and realtors. He was experienced in putting together business plans and he often dealt with fiduciary settings involving trustees. Miller also owned and had been involved in corporations in the past. These personal and professional traits of Miller demonstrate his great capacity and ability in dealing with the matters that he was presented with. Absent from the record is evidence that Miller lacked knowledge from which Marinecorp could have taken advantage, as Miller was business savvy and had a sophistication which was not common to the average consumer that the DTPA was intended to protect. No evidence exists that Marinecorp took advantage of Miller’s lack of knowledge. Moreover, no evidence exists in the record suggesting that there was a resulting unfairness in the subject transaction that was unfair to the extent of being glaringly noticeable, flagrant, complete and unmitigated. In evaluating the transaction, the evidence establishes that the parties negotiated the terms of the leases, which included the requirement that Miller personally guarantee both leases. Miller was fully aware of the condition of the buildings when Chopper and Outlaw entered into the leases. This fact was even accounted for in the lease, which expressly provided that the parties were leasing the buildings in an “as is” condition, yet still expressly excluding various matters at page 29 of the lease that would not be subject to this agreed to “as is” clause. Finally, it was certainly 37 within the realm of Miller’s experience and knowledge that a consequence of a commercial tenant not paying its rent is ultimately a lockout. The focal transaction here involves the connection of power to the Outlaw structure. This obligation was placed on Marinecorp pursuant to the lease agreements. In spite of numerous and severe theft incidents where thieves stole copper electrical wiring from both buildings, Marinecorp never ceased its attempts to restore the power. Fact of the matter is that Marinecorp had the power to both buildings restored months before Chopper and Outlaw were locked out. As established above, there is insufficient evidence to support the jury’s finding of unconscionability under the DTPA. (CR 418) “Knowing” DTPA Violation Further, there was no evidence or insufficient evidence to establish that Marinecorp’s alleged representations constituted an engagement in DTPA prohibited conduct “knowlingly.” The jury found that Marinecorp engaged in such knowing conduct as to both Appellees in answer to Question No. 17 (CR 421), awarding Appellees $11,000 each for related damages in answer to Question No. 18 (CR 422). The Texas Business & Commerce Code, Sec. 17.45(9) defines “knowingly” as meaning actual awareness, at the time the act of practice complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s 38 claim or, in an action brought under subdivision (2) of subsection (a) of Section 17.50, actual awareness of the act, practice, condition, defect, or failure constituting the breach of warranty, but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness. The evidence presented at trial established that Marinecorp’s property manager represented to Appellees that the electricity would be connected the first week of November. When this representation was made, he had no idea that the electricity would not be connected at a later date. No evidence exists that when made, the subject representation was made with actual awareness of falsity, deception or unfairness, nor do objective manifestations to the contrary exist in the record. Therefore, there was no intentional or knowing misrepresentation. More evidence of the lack of a knowing violation is shown by the hiring of the electrician who represented to the Appellees that he connected the electricity and that he had been paid for his work. (ISSUE 8(d)) F. No implied warranty was breached and the “as-is” lease provision. There was no evidence or insufficient evidence to establish that Marinecorp breached an implied warranty (See Jury’s answer to Question No. 15 at CR 417; 39 Supp. RR Vol. 6-A at 12-13) because of the lease provisions stating the tenants accepted the property in its "as-is" condition In the case of Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905 (Tex. 2007), the Texas Supreme Court held that the implied warranty of suitability may be contractually waived by a tenant who enters into an “as is” clause in a commercial lease. Underlying the Court’s holding was its recognition of strong public policy encouraging parties the freedom to contract. Id. at 913. The Court held that by agreeing to lease property "as is," a lessee agrees to make his own appraisal of the bargain and accepts the risk that he may misjudge its value. Id. at 914 (citing Prudential Ins. Co. of Am. v. Jefferson Associates, Ltd., 896 S.W.2d 156, 161 (Tex. 1995)). The lessor gives no assurances, express or implied, concerning the value or condition of the premises. Gym-N-I, 220 S.W.3d at 914. Thus, an "as is" agreement precludes the lessee from proving that the lessor's conduct caused harm. Id. The commercial tenant in Gym-N-I contractually disavowed any reliance upon any representation by the landlord. Id. By agreeing to lease the building "as is," the tenant agreed to make its own appraisal of the physical condition of the premises. Id. Thus, the sole cause of the tenant’s injury, by its own admission, was itself. Id. The Court, therefore, held that the "as is" clause negated the tenant’s claim regarding causation as to causes of action for 40 negligence per se, gross negligence, violations of the Deceptive Trade Practices- Consumer Protection Act, and fraud. See Id. at 913-914. Similarly, in the instant case, by agreeing to commercial leases which contained similar “as is” clauses, as a matter of law Appellees were precluded from proving that Marinecorp’s conduct caused them harm. Appellees were free to inspect the premises for defects. If in fact they were damaged because of the conditions of the subject premises, causation lies directly on them and not on Marinecorp. In conclusion, reversal and remand is warranted for reasons set out above in connection with Issues Nos. 6, 7 and 8. Issue 9: The trial court should not have awarded Chopper and Outlaw pre-judgment interest because the alleged damages were not definitely determinable at a definite time. In the trial court’s Modified Final Judgment (attached as Appendix "B"), the trial judge awarded actual damages to each Appellee and then proceeded to award prejudgment interest to Chopper for $21,776.71 and Outlaw for $30,072.60. As to both Appellees, the trial court’s award of prejudgment interest was erroneous. While prejudgment interest is recoverable as a matter of right where damages are established as of a definite time and the amount thereof if definitely determinable, Black Lake Pipe Line Co. v. Union Construction Co., Inc., 538 41 S.W.2d 80, 95-96 (Tex. 1976), in the instant case the damages awarded to Appellees are not “definitely determinable” at a definite time and, therefore, the award of pre-judgment interest on such damages should not have been awarded. This constitutes fundamental error. There is simply no reasonable means of calculating prejudgment interest on the damages awarded without a determined date or definite time from which an interest calculation can be made. For these reasons, there is no evidence, or insufficient evidence, in the record to support an award of prejudgment interest on the damages awarded by the jury and, more specifically, a “definitely determinable at a definite time” reference date from when prejudgment interest calculations could be made. Accordingly, Appellant requests an appropriate remittitur under the authority of Pope v. Moore, 711 S.W.2d at 624, or, alternatively, it requests a reversal and remand. Issue 10: The trial court should have awarded Marinecorp damages for Miller and Tones’ breach of the subject guaranty agreements. The parties negotiated the terms of the Chopper and Outlaw leases. The Chopper lease was personally signed and guaranteed by Miller whereas the Outlaw lease was personally signed and guaranteed by Miller and Tones; therefore, if the terms of these leases were not fulfilled, the signatories would be personally liable for each tenant’s failure to fulfill the lease’s terms. (4 RR 18:2; 18:20, 18:21, 19:22; 20:5) 42 The jury found in answer to Question No. 2 (CR 404) that Outlaw failed to comply with the lease agreement. In answer to jury Question No. 4 (CR 406-407), the jury found that Outlaw’s failure to comply was not excused. However, in its answer to Question No. 7 (CR 410), it declined to award any past or future rents to Marinecorp as a result of Outlaw’s failure to comply. Reversal is warranted and Marinecorp prays that the Court render judgment in its favor for Outlaw’s past and future rents or, alternatively, that the Court reverse the above-referenced finding and enter an order directing the trial court to enter judgment accordingly or, in the final alternative, that the Court reverse and grant Marinecorp a new trial. ISSUE 11: The trial court should not have rendered judgment for cumulative damages for concurrent causes of action arising out of the same acts. In the trial court’s Modified Final Judgment, the trial judge awarded $210,000 in actual damages to Chopper and $290,000 in actual damages to Outlaw. These damages were awarded by the court under the DTPA theory of recovery alleged by Appellees. These actual damage awards were made up of two 43 damage components awarded by the jury in their answer to Question No. 16 [CR 419-420]3, namely: --For Chopper: $110,000 for expenses and $100,000 for loss of use, and --For Outlaw: $150,000 for expenses and $140,000 for loss of use. The award of these damages cumulatively in the final judgment is contrary to Texas’ “one satisfaction rule,” which provides that there can be but one recovery for one injury; and the fact that there may be more than one theory of liability does not modify the rule. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex. 1991). The award of these damages also constitutes an impermissible double recovery. Included in the jury charge were definitions for the different measures of damage which the Appellees sought to recover under the DTPA and for breach of contract. The following table summarizes these definitions: 3 Note that the loss of benefit of the bargain damages that the jury awarded Appellees with regard to the breach of contract and DTPA causes of action were ultimately omitted by the trial 44 Element of Damages Breach of Contract (Q. #6 DTPA (Q. #16 [CR 419-420]) [CR 409]) Loss of benefit of the bargain Difference, if any, between the Difference, if any, in the value value of the premises as of the premises as received agreed and the value of the and the value it would have premises as provided by had if it had been represented. Marinecorp. Remedial damages/ Remedial damages: Expenses: The expenses Expenses Reasonable and necessary cost incurred by Chopper in to reimburse Chopper or constructing and equipping the Outlaw for the loss of lease premises in order to investment in construction and operate. equipment costs. Loss of income/Loss of use Loss of income: Loss of net Loss of use: The reasonable income for the time Chopper value of the lease premises for or Outlaw was unable to the time Chopper was unable operate due to Marinecorp’s to operate due to Marinecorp’s conduct. conduct. Note that while different labels for the categories of damages listed above may have been used in the jury charge, “remedial damages” and “expenses” are essentially defined as the same measure of damages. Likewise, the jury charge’s terms “loss of income” and “loss of use” are defined as the very same measure of damages. Plaintiffs cannot recover the same damages for the same injury, regardless of Plaintiffs’ theories. Even Leyendecker & Associates, Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex. 1984) prevents plaintiffs from recovering more than once for the same injury. court. (See CR 589). 45 The one satisfaction rule also applies to prevent a plaintiff from obtaining more than one recovery for the same injury, even if caused by different acts. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991), holding modified by Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006). Appellate courts have applied the one satisfaction rule when the defendants commit the same act as well as when defendants commit technically differing acts which result in a single injury. Stewart Title, 822 S.W.2d at 7. The Stewart Title court cited American Baler Co. v. SRS Systems, Inc., 748 S.W.2d 243, 246 (Tex.App.-- Houston [1st Dist.] 1988, writ denied) with approval of that court’s conclusion that the same wrongful act or misrepresentations connected with the sale of equipment related to causes of action for fraud, breach of contract, negligent misrepresentation and DTPA, thereby requiring the plaintiffs to elect a remedy. Stewart Title, 822 S.W.2d at 7 (citing American Baler, 748 S.W.2d at 246). Whether Appellees contend that Marinecorp made misrepresentations about making repairs and the provision of power or its alleged actual failure to make repairs and provide power, the resulting consequence would have been the same, i.e., their inability to generate revenue. The trial court’s Modified Final Judgment awarded Chopper and Outlaw damages for “expenses” and “loss of use” under a DTPA theory, however, Appellees should not be entitled to both types of damages because the wrongful conduct alleged against Marinecorp would have resulted in 46 the same consequence of Appellees’ inability to generate revenue. Plaintiffs should not be allowed to recover twice (i.e., damages for expenses and for loss of use) for the same resulting injury which was the consequence of the same complained of act. The trial court’s Modified Final Judgment awarding both measures of damages cannot stand under Texas law. Finally, it is important to note that in jury Question No. 16’s definition of the terms “expenses” and “loss of use” (CR 419), which incidentally was submitted by the Appellees, Outlaw is selectively excluded and, therefore, by written instruction from the Court these measures of damages only relate to Chopper and otherwise selectively exclude Outlaw from recovering such these elements of damages. Most disturbing is the fact that the jury obviously disregarded the express instructions given to them by the trial court, as against the court’s directive they proceeded to award Outlaw $150,000 for “expenses” and $140,000 for “loss of use” in response to Question Nos. 16b and 16c (CR 420). Marinecorp contends that the legal consequence is that Outlaw effectively elected its remedy under the DTPA cause of action. The appellate error discussed above warrants that the Court reduce the damages awarded in the trial court’s Modified Final Judgment. Pope v. Moore, 711 S.W.2d at 624. Alternatively, Marinecorp asks that the Court to vacate said Judgment, reverse and order a new trial of this matter. 47 Issue 12: The trial court should have entered judgment against Miller for the full amount of principal and interest owing on the promissory note executed by him and payable to Marinecorp. The jury found by answering Question No. 10 that Tony Miller failed to comply with the terms of the Promissory Note (CR 413) and proceeded to award Marinecorp damages in answer to Question No. 11 for $15,000. (CR 414) The jury’s award of only $15,000 to Marinecorp for Miller’s breach of the subject promissory note (CR 414) is against the great weight and preponderance of the evidence and is manifestly unjust. No evidence or insufficient evidence supports the jury’s award of a mere $15,000 for damages attributed to Miller’s failure to comply. Instead, the undisputed and only evidence is that the balance on the promissory note payable to Marinecorp was $53,000 (5 RR 96:15), not $15,000. Issue 13: The evidence does not support the jury's answers awarding Chopper and Outlaw damages for loss of the benefit of the bargain; remedial damages; expenses; loss of income; loss of use; and wrongful eviction because there was no evidence or insufficient evidence to support these findings of damages. A. Standard of Review The legal and factual sufficiency of the evidence standards of appellate review set out above under Issue 1 apply here, as well as the great weight and preponderance of the evidence standard. The standard for a request for remittitur is factual sufficiency of the evidence. Pope v. Moore, 711 S.W.2d at 624. To 48 better understand Issue 13 challenging the jury’s award of damages in this case, Marinecorp requests that the Court review with a critical eye the “evidence” presented to the trial court by Appellees in support of their claims for damages. After all, Appellees had the burden of proof at trial. In their effort to prove up damages, Appellees relied upon their bank statements, Chopper Px-75 and Outlaw Px-76, respectively, along with documents called "weekly reports." However, Marinecorp will show that this evidence was completely unreliable to serve as the basis of damages awarded, in violation of the standard set out in James L. Gang & Associates, Inc. v. Abbott Labs, Inc., 198 S.W.3d 434, 443 (Tex.App.-- Dallas 2006, no pet.), where it was held that a Plaintiff must have facts and figures to support its claims; mere allegations of expenses without objective facts, figures, or data do not amount to any evidence of out of pocket damages. B. Breach of Contract Damages (Jury Question No. 6 [CR 409]) In answering Question No. 6, the jury awarded Appellees breach of contract damages for: (1) loss of the benefit of the bargain 4, (2) remedial damages, and (3) loss of income. Question No. 6 instructs the jury to consider the following elements of damages and none other. (Id.). 4 This award of damages [Q. 6a at CR 409] as to each Appellee was omitted by the trial court in its Modified Final Judgment. However, the jury awarded these damages by ignoring the court’s unambiguous definition of this measure of damages. 49 1. Remedial Damages Question No. 6 defined “remedial damages” as the “reasonable and necessary cost to reimburse Chopper and Outlaw for the loss of investment in construction and equipment costs.” (CR 409) The jury ignored this definition and Appellees failed to produce credible and reliable evidence entitling Appellees to an award of such damages. Appellees, through Miller, testified at trial that evidence of money spent in construction equipment costs was contained in bank statements and weekly reports (4 RR 86, line 10), however, this proof promised by Appellees simply does not exist in the record. Further undermining Appellees’ claim for “remedial damages” is the fact that absent from the record is evidence that the alleged costs were reasonable and necessary. (CR 409) Nevertheless, the jury proceeded to award Chopper and Outlaw remedial damages for $110,000 and $150,000, respectively (Id.). The jury did not even account for the $194,994.54 in build-out costs paid to Outlaw in connection with the Outlaw lease property, for which Marinecorp was entitled to a credit. Not surprisingly, Outlaw never included this amount in its accounting and calculations and the jury simply ignored Marinecorp’s undisputed evidence that such monies were paid out. Appellees sought to prove their entitlement to remedial damages by relying on Miller’s shoddy and incomplete accounting records which had no backup or corroborating documentation. He submitted to the jury commingled records, as he 50 did not as much as separate “loss of investment” documentation related to the two separate business ventures of Chopper and Outlaw, presumably leaving it to the jury to sift through and figure out on its own. Further confusing the issue of damages was the vacillating and inconsistent testimony of Miller. He initially testified to investing half-million dollars. His credibility was then placed into serious doubt when he subsequently testified that he and Tones spent over $550,000 (CR 3, p. 162, line 19), yet still he would later testify that they had invested over one million in the building alone (CR 4, p. 73, line 3). He would once again change his testimony testifying that his operating expenses were $2,455,000. None of this testimony was ever supported by corroborating or credible evidence. Bank statements introduced into evidence reveal no such capital investments or deposits in the referenced amounts. Testimony was elicited that Miller and Tones were withdrawing monies from the bank accounts on a regular basis, however, Miller testified that he had no idea why the withdrawals were made (CR 4, p. 87 and p. 18). Appellees presented no evidence from experts or other witnesses explaining the contents of the financial records presented. Instead, Appellees passed on the burden of proof on to the jury and left it to grapple with and try to make sense of the confusing, incomplete, and contradictory documents introduced. This made it virtually impossible for the jury to have awarded specific damages based on this “evidence.” 51 2. Loss of Income In Question No. 6, the jury was provided with the definition of “loss of income” as “loss of net income for the time Chopper or Outlaw was unable to operate due to Marinecorp’s conduct.” (emphasis added) The jury proceeded to award breach of contract damages for loss of income in the amounts of $100,000 for Chopper and $140,000 for Outlaw. However, at no time was evidence of “net income,” gross income and operating expenses presented, nor was the jury provided with financial data that would have enabled it to make this calculation and ultimately find that Appellees experienced a loss of income attributed to the acts and/or omissions of Marinecorp. Both Chopper and Outlaw operated their businesses throughout the applicable periods of time in 2010 and all of 2011. Miller testified that Chopper was always making a profit and Outlaw was about breaking even. (4 RR82:17) Each business had its income and expenses. However, well aware that they carried the burden of proof, Appellees fell short in this task by failing to produce an accounting as to the amount of gross income each business received and their related operating expenses, which would have allowed the “net” calculation to be made. Bank reports and weekly reports presented by the Appellees had no separation of the monies spent for equipment and making improvements and the monies spent in the ordinary course of conducting business and the money 52 contributed as capital. Although it was his burden, Miller never explained which of the expenses were operating expenses, which were for the construction and equipment, and which were capital contributions. Nevertheless, the jury awarded loss of income damages to both Appellees. There is no evidence or insufficient evidence to support the jury’s award of such damages. As set forth in El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360, 366- 367(Tex.App.-- Dallas 2005, no pet.), at a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profit can be ascertained. Mere conclusions are incompetent and do not amount to any evidence at all. See Id. Further, the Texas Supreme Court held in Holt Atherton Industries v. Heine, 835 S.W.2d 80 (Tex. 1992), the testimony was legally insufficient because it did not provide any indication how they determined what their lost profits were. See Id. at 84-86; also see Texas Instruments, Inc. v. Teletron Energy Mgt., Inc., 877 S.W.2d 276, 279-280 (Tex. 1994) (holding that while modern business methods have cost a relaxation of the rigid rule entitling one to recover lost profits, the law still demands proof with a degree of certainty.). The jury in the instant case had no basis for determining loss of income damages with reasonable certainty. Its award of such damages was based on pure speculation and mere conclusions. Miller’s testimony that Chopper was always 53 making a lot of money and that Outlaw was about breaking even further justifies no recovery of damages for loss of income and a reversal of the verdict. C. DTPA Damages (Jury Question No. 16 [ CR 419]) In answering Question No. 16, the jury awarded Appellees DTPA damages similar to those it awarded them for breach of contract under Question No. 6, supra (CR 409). Specifically, the damages awarded were for: (1) loss of the benefit of the bargain 5, (2) expenses, and (3) loss of use. Importantly, note that the definitions the jury was given in Question No. 16 for “expenses” and “loss of use” damages were strikingly similar to those give to the jury in Question No. 6 for “remedial damages” and “loss of income,” respectively. For this reason, the jury considered identical measures of damages in answering Questions Nos. 6 and 16. 1. Expenses In answer to Question No. 16 (CR 419), the jury awarded Chopper and Outlaw $110,000 and $150,000, respectively, in “expenses.” (CR 419-420) The trial court defined the “expenses” measure of damages as “The expenses incurred by The Chopper Group in Constructing and equipping the lease premises in order 5 This award of damages [Q. 16a at CR 419] as to each Appellee was omitted by the trial court in its Modified Final Judgment. However, the jury awarded these damages by ignoring the court’s unambiguous definition of this measure of damages. 54 to operate.” (CR 419) (emphasis added) The jury obviously ignored the trial court’s limited definition of expenses incurred only by Chopper, as in spite of this limiting language it awarded Outlaw $150,000 in expenses. This award is also not supported by sufficient evidence in the record. A remittitur of the $150,000 awarded to Outlaw for expenses is warranted because it is contrary to the express instructions and definitions provided in the Court’s Jury Charge. Furthermore, Marinecorp paid Outlaw $194,994 in build-out costs to get the premises business ready. Allowing Outlaw to recover an additional $150,000 in “expenses”, i.e., expenses incurred in constructing and equipping the premises in order to operate, would be the equivalent of compensating Outlaw twice for the same costs that Marinecorp previously paid in build-out costs pursuant to the lease agreement. Not surprisingly, Outlaw’s accounting and calculations do not account for the build-out costs paid by Marinecorp as an offset or credit. Appellees failed to produce competent evidence entitling them to expenses as damages. In challenging the jury’s $110,000 expenses damage award to Chopper (CR 420), Marinecorp would show that the Chopper lease was signed in April 18, 2010 and said Appellee opened its doors for business approximately three months later in the middle of July 2010 (3 RR 142:12). Therefore, it would follow that all checks identified by Chopper after this opening date were not for 55 construction costs but rather were for operating costs. Miller testified that he has receipts for all expenses (4 RR 86:10) and he further testified that his proof is in the check books (4 RR at p. 82). However, a review of Chopper’s bank statements (Chopper Px-75) and weekly reports discloses that corroborating evidence of these expenses was never produced, are not part of the record, and were never considered by the jury in answering Question No. 16. Miller never testified that any of the company checks issued during the time period in question represented monies spent on construction costs. In fact, Miller never even mentioned any repairs made to the Chopper leased premises. Chopper did not have to do many repairs on the Chopper leased premises because the premises were previously occupied by a Mexican restaurant, so the premises were already built-out for Chopper’s business purposes as a biker’s restaurant and bar. For this reason, the Chopper lease did not provide for any build-out allowance of monies to be advanced. Finally, reviewing Chopper’s bank statement for the from the April 18, 2010, discloses that lease signing through Chopper’s opening for business in mid-July 2010, at best very few checks were cut on the Chopper bank account during this short time period and the checks that were issued were for very small amounts, nowhere near the $110,000 in expenses awarded by the jury to Chopper. 56 With regard to Outlaw, any expense documents relied on by the jury in awarding Outlaw $150,000 in expenses damages in answer to Question No. 16 should have included a credit for the build-out allowance paid early on to Outlaw by Marinecorp. Weekly reports and bank statements introduced into evidence by Chopper and Outlaw were wholly unreliable. Accounting and record-keeping produced by Appellees did not separate Miller’s personal investments from the separate Chopper and Outlaw investments. All records were commingled without there ever being a separation from which the jury could have determined construction and equipping the premises expenses needed to calculate recoverable expenses. Equally problematic here was the lack of Miller’s credibility, with him testifying to four significantly different values of his investment without corroborating proof or evidence. In spite of falling short of meeting their burden of proof, the jury awarded Chopper and Outlaw expense damages for $13,000 and $80,000, respectively. Not surprisingly, however, no credit was provided in Outlaw’s accounting and record keeping for the $194,994 paid by Marinecorp for build-out. Bank statements and weekly reports produced by Appellees did not prove up any capital investment made or deposits into the bank in connection with the Chopper and Outlaw investments. Evidence showed frequent bank account 57 withdrawals by Miller and Tones without ever providing an explanation behind the withdrawals. The burden of proof in this case was always with the Appellees. It was their burden to prove up their entitlement to damages for expenses which specifically related to constructing and equipping the leased premises in order to operate. Appellees did not fulfill their burden of proof in that they failed to isolate for the jury’s consideration “expenses,” as defined in jury Question Nos. 6 and 16. More specifically, the financial records submitted by Appellees as evidence of “expenses,” at best, accounted for comingled expenses and costs, some for operating costs and perhaps others for constructing and equipping the premises in order to operate. From what was presented to the jury, neither the jurors nor witnesses with expertise in accounting could have isolated from Appellees’ proof “remedial damages” or “expenses” contemplated under jury Question Nos. 6 and 16. Therefore, even if liability rests with Marinecorp, the Appellees wholly failed to satisfy their burden of proof by failing to present competent and clear evidence of “remedial damages” and/or “expenses, as expressly defined by the trial court in its jury charge. In this regard, the jury clearly ignored the definition of “expenses” set out in the jury charge, as no evidence or, alternatively, insufficient evidence supports the jury’s award of “remedial damages” and/or “expenses in connection with jury Question Nos. 6 and 16. 58 In attempting to prove their alleged damages, Chopper and Outlaw relied upon their bank statements and "weekly reports," which were totally unreliable, in violation of the minimum proof standard set out in James L. Gang & Associates, Inc. v. Abbott Labs, Inc., 198 S.W.3d 434, 443 (Tex.App.-- Dallas 2006, no pet.), where the court held that a Plaintiff must have facts and figures to support its claims; mere allegations of expenses without objective facts, figures, or data do not amount to any evidence of out of pocket damages. They are inaccurate, incomplete, contradictory and meet no known accounting standards. Appellees claim they represent expenses paid, but many of the expenses they are claiming are supported by only invoices for which no evidence established that they were ever paid. In addition, many entries were merely for "cash," leaving us to wonder cash for what? Marinecorp directs the Court to Section “D” (i), (ii) and (iii), infra, detailing the unreliability of bank statements, accountings and weekly reports upon which Appellees relied on as evidence supporting their claims for damages. Neither Miller nor any expert ever explained the numbers in the bank statements and weekly reports. The numerical content of these records were never categorized or itemized in detail for each income amount and source of income, and expenses were at no time itemized or otherwise explained. Appellees' attorney never argued that their claims for damages were supported by any specific detailed 59 analysis. It was like throwing receipts in a shoe box and telling the jury "here's my evidence." It was impossible for the jury to have understood the weekly reports and the bank statements without explanation by somebody. 3. Loss of Use The Court instructed the jury in Question # 16 (CR 419) that they could consider: "The reasonable value of the leased premises for the time the Chopper Group was unable to operate due to Marinecorp's conduct." (emphasis added). Outlaw did not request the court to insert a jury question as to the reasonable value of the leased premises for time it was unable to operate due to Marinecorp's conduct. Therefore, the court instructed the jury they could only consider the reasonable value of the lease premises for the time Chopper was unable to operate due to Marinecorp's conduct. However, the jury ignored the court's instructions and proceeded to award Outlaw $140,000.00 for its alleged loss of use damages. It awarded Chopper $100,000 for similar damages. A remittitur of these damages for $140,000 awarded to Outlaw is warranted, as it is contrary to the express instructions and definitions provided in the Court’s Jury Charge. Further, insufficient evidence supports loss of use damage awarded to each Appellee. The evidence clearly established that Chopper was always able to operate and that Marinecorp's conduct did not inhibit this ability. Appellees never failed to 60 open their doors because of any alleged problems caused by Marinecorp. In this regard Miller testified that Chopper was always making a profit and Outlaw was about breaking even. (4 RR82:17) There was no evidence presented as to the reasonable value of the Chopper and Outlaw leased premises at any time. It was therefore impossible for the jury to calculate any such reasonable value as to both Appellees. For these reasons, remittitur or, alternatively, reversal as to loss of use damages for both Chopper and Outlaw is warranted. D. Bank Statements and Weekly Reports relied on By Chopper and Outlaw to prove up damages were unreliable, not based on objective facts, accurate figures and data, and were without support of corroborating evidence. Miller tesitified that the weekly reports and their totals represented his damages. He testified that he has a copy of a receipt in the weekly reports for every expense claimed (4 RR 86:10). He further testified, “It’s all in the bank statements.” Contrary to Miller’s representation, an untold number of receipts and proof of payment do not exist to corroborate Appellees’ claims for damages. The following discussion explains the major flaws in the primary form of proof that served as the basis of damages awarded to both Chopper and Outlaw (i.e., Appellees’ bank statements and weekly reports). 61 i. Outlaw’s actual expenses and claimed expenses do not add up. Weekly reports relied on by Appellees in their effort to prove damages in this case were rife with claimed expenses that were false, uncorroborated and simply not supported by credible evidence. While this evidentiary problem was extensive and permeated the documents that purportedly supported Appellees’ claim for damages, a few examples of this extensive evidentiary shortfall follow: Jim Hofelich: Outlaw claims that it paid Mr. Hofelich $37,121.15 for property expenses, yet the only checks in the bank statement total $9,845.00 (Check Nos. 1004, 1186 & 114 at Outlaw Px-76), falling short $27,275.15 never proven or corroborated with competent evidence. Redhawk: Outlaw claims that it paid Redhawk $38,189.41 for Outlaw for property related expenses, however, the only check in the bank statement for expense payments to Redhawk was for $5,000 (Check No. 1025 at Outlaw Px-76, ), falling short $33,189.00 in claimed expenses which Outlaw was never able to corroborate with competent evidence. CRS: Outlaw claims that it paid CRS $34,783 for its property expenses. However, only checks accounted for in the Outlaw bank account payable to CRS total $13,541.25 (Check Nos. 1035, 1037, 1059, 1099 and 1141 at Outlaw Px-76), falling short $21,242.72 in claimed expenses never proven or corroborated with competent evidence. 62 The above represents merely a few examples totaling $81,708.28 worth of claimed expenses which were never corroborated with competent evidence. Further examination of the financial records produced by the Appellees will exhibit even more ambiguity which poisons the record as a whole with uncorroborated, unverified, unreliable and questionable “evidence” which Appellees claim support the jury’s award of “expense” or “remedial” damages. Outlaw’s expenses damages should, therefore, be reduced or taken away as a whole. ii. Discrepancies between bank statements and accountings of Appellees Outlaw bank statements from October 10, 2010 through March 11, 2011, disclose checks processed during this period in the amount of $389,014.78. This figure would necessarily include operating expenses for Outlaw through March 11, 2011. During this same period of time, checks from this same account were made payable to Miller, Tones, Karen Miller and Art Kunzeman in the amount of $71,740.00. In stark contrast, during this same period of time, Outlaw’s accounting claimed expenses in the amount of $664,838.43, however, this figure does not represent solely “expenses,” but, instead, includes unrecoverable operating expenses. However, note that Miller submitted a separate Outlaw “Expense Report” claiming expenses for $620,655.69. In any event, such huge discrepancies between alleged expenses and the total checks processed, supra, 63 make highly questionable and unreliable Outlaw’s accounting and its Expense Report with regard to expenses claimed. As expected, Outlaw never credits Marinecorp for checks it paid to build-out costs totaling $194,994.00. The inclusion of this amount omitted from checks processed results in a discrepancy of approximately $400,000 from what Outback is claiming in expenses and that which is supported by competent corroborating evidence. Chopper’s bank account from May to August of 2011 reports expenses in the amount of $45,875.08, however, it is claiming $231,241.97.00 in expenses. As a consequence of the unreliability of the financial records presented by Appellees, Marinecorp asks that all damages awarded to the Appellees based on this “evidence” be stricken and taken away from the Appellees. In the alternative, Appellees’ recovery of damages should be reduced to the extent that such damages are not supported by competent, clear and credible evidence in satisfaction of the burden of proof placed on the Appellees. iii. Outlaw’s Weekly Reports are unreliable without objective facts, accurate figures, or supporting data. On appeal, Marinecorp challenges the veracity, reliability and competency of Outlaw’s Weekly Reports as they serve as nothing more than evidence of Miller and Outlaw’s slipshod business bookkeeping/recordkeeping, accounting and management. They hardly serve as competent evidence of the numerous expense 64 transactions which they purport to represent. At the heart of these Weekly Reports are significant accounting problems, which include: 1. They purport to be a summary of all expenses incurred, however, many of the documents attached are only invoices or quotes with no evidence of payments; 2. They are not accurate, for every item listed under “payment” states “cash.” Unaccounted for are payments made by credit card or by check; 3. “Mexican Labor” entries have no backup whatsoever; 4. Lists “payroll” or “labor” with no backup whatsoever; 5. Lists no credit for income; 6. Do not account for build-out payments made by Marinecorp. The following table entitled, “Outlaw Weekly Report Review,” sets out in detail transactions which Outlaw sought to qualify as costs and expenses in support of the damage claims: 65 Outlaw Weekly Report Review Week Content-- Alleged Defects payments, costs and expenses 1 Claim expenses of --Only one paid receipt for $34,504.05….. $104.05 --$5,500 cash payments to labor noted, however, no payment receipts --$25,000 cash payment to Canon Enterprises, but no supporting documents 2 Expense entitled “Deposit” for --No supporting documents $13,289.25 --No explanation where money went “ Expense for “rent” for Rent not an expense for $10,539.76 construction or cost of equipping premises 4 Numerous cash payments for No documentation evidencing “Mexican labor” and other money ever paid labor 5 Electrician expense for “ $8,796.15 6 “Cash” payment to electrician Only have invoice from for $6,000.00 electrician, which is not evidence of payment “ “Cash” payment to Wrap Stars No supporting documentation for $5,775 7 Several thousand dollars in “ cash payments to laborers “ Cash payment for hardwood “ 66 floors for $3,292.50 “ Cash payment to Farley “ Specialities for $2,104.66 7B Payment to Hajjis Restaurant No evidence of payment; only Solutions for $14,505.50 note advising Miller to make check “ Expense to Wrap Stars for Total owed was $10,166.50, $8,324 so payment of $1,842.50 was made. No evidence $8,324 balance ever paid “ Wrap Stars expense for $6,522 No evidence of payment “ Wrap Stars expense for “ $38,400 “ Expense to Catalyst Design Is an invoice and quote, but for $6,000 directed to Chopper, not Outlaw. “ Expense for payment to Merely a quote for products Musician’s Friend for with no evidence of payment $10,399.09 8 Cash payment to Red Hawk Only have a quote from Red for $15,298.34 Hawk to sell products for referenced amount; no evidence of payment. ” Cash payment to Quality Air Only have document Care for $2,976.88 requesting payment of referenced amount. “ Thousands of dollars in No supporting documentation. alleged cash payments to laborers 9 Cash payment to Deerwood Only document is an invoice A/C & Heating for $10,312.90 for referenced amount. 67 12 Cash payment to Esi, Inc. for Only have quote from $3,939 company “ Cash payments for thousands No supporting documentation of dollars to laborers of payments. 13 Cash payment to Quality Air Only have invoice showing Car for $1,976.88 amount due, yet no evidence of payment 14 Over $5,000 for cash No supporting documentation payments to laborers 15 Cash payments to electrician Only have invoice, but no for $8,820 evidence of payment 16 Cash payment to Houston No supporting documentation Security for $3,425 other than invoice. “ Cash payment to Hajjis No supporting documents Restaurant for $6,845 “ Cash payment to Crs for “ $5,000 17 Over $18,000 in cash “ payments made to various vendors 19 Cash payments to laborers for “ approximately $10,000 “ Over $6,000 in cash payments “ to various vendors 20 Payment of payroll by Miller No evidence of payment for $7,635 21 $5,000 loan to Juan Gorde Not an expense or cost “ Expenses in total of No documentation of payment $39,306.52-- payments to laborers 68 “ Invoices for liquor sales, and No evidence of payment sale of cleaning supplies, office supplies and invoices to Outlaw 22 Cash payment to ASCAP for Only have invoice advising $10,260 that referenced amount is due. No evidence of payment. “ Cash payment to electrician Only have invoice advising for $5,430 that referenced amount due. “ Cash payment to Miller for No supporting documentation. $6,900 23 Cash payment for $20,000 for “ liquor for resale “ Payroll payment for “ $13,927.77 “ Two claims for payment to “ Miller for $4,879 and $15,361.68 “ Cash payment to Red Hawk “ for $19,534.26 25 Approx. $15,000 in cash “ payments for laborers (including Miller) “ Thousands of dollars in “ smaller invoices 26 Expenses for $8,875 “ 69 Marinecorp contends on appeal that the damages awarded to the Appellees based on defective, faulty, and inadequate claims of costs and expenses serves as a basis for reversal and/or remittitur. CONCLUSION AND PRAYER The jury ignored overwhelming evidence that neither Appellee complied with conditions precedent in both commercial lease agreements requiring that Appellant be given written 30-day’s written notice to cure alleged defects of default in the terms of the lease agreement. The Appellees were also not excused from ceasing to perform under the leases, as they treated the leases as continuing and, therefore, continued under the law to own Appellant rents due under the lease agreements. The trial court erred in refusing to render judgment for Appellant against Appellees for past and future lease payments. This failure is inconsistent with the jury’s finding that Appellee Outlaw breached its lease without excuse. Overwhelming evidence also existed of Appellee Chopper’s breach of its lease agreement without excuse. Overwhelming evidence also existed of Appellee Chopper’s breach of its lease without excuse, yet error was committed in failing to award Appellant past and future lease payments. The overwhelming evidence was that Appellant mitigated damages, yet this evidence was ignored by the jury and trial judge. By comparison, any damages 70 sustained by Appellee Outlaw are attributable to its own action of inactions. In this connection, the trial court erred in failing to approve a jury instruction and question which related to Appellees’ failure to mitigate damages. As a consequence, the jury was not allowed an opportunity to reduce damages awarded to Appellees for their failure to mitigate. The jury’s award of DTPA damages was improper as Appellee Outlaw’s damage claim sounds in contract, not in DTPA. Lacking with respect to Appellees’ DTPA claim was sufficient evidence of causation of damages, unconscionable conduct, and a knowing violation of the DTPA. Further, it was reversible error to allow Appellees to base their DTPA claim on claims that Appellant wrongfully evicted the Appellees without first proving the elements of such a cause of action and demonstrating a judicial finding of a wrongful eviction. “As-is” lease provisions legally precluded Appellees from asserting an implied warranty claim and, therefore, the award of DTPA damages was improper. The trial court’s award of prejudgment interest on damages awarded to Appellees in the Modified Final Judgment was improper and erroneous in that the alleged damages were not definitely determinable at a definite time. Error exists in the trail court’s failure to award Appellant damages against Miller and Tones for their breach of personal guaranty agreements that they approved and signed. Texas’ 71 “one satisfaction rule” was violated by the jury and trial court awarding Appellees cumulative damages for concurrent causes of action arising out of the same alleged acts . Damages awarded in this regard were excessive and not supported by the evidence. Error also existed in the court below failing to award Appellant judgment against Miller and the Harlesses for the principal and interest owed pursuant to a promissory note executed by them which was due and payable to Appellant for rent in arrears. Finally, the record is rife with examples demonstrating how the jury flat out ignored specific written instructions given to them in connection with this case. For instance, when the trial court in the jury charge authorized, upon sufficient supporting evidence, the award of expenses and loss of use damages only as to Appellee Chopper, it ignored this instruction and proceeded to award Appellee Chopper $290,000 in such damages, which has no support, or inadequate support, in the evidence. The Appellees failed to prove damages with adequate, competent, and clear evidence but, rather, opted to submit to the jury comingled and confusing financial records that fell well short of the required level of proof to recover damages. For the reasons stated in this Brief, Appellant Marinecorp asks the Court to sustain the legal sufficiency issues and render judgment for Appellant. If the Court 72 overrules the legal sufficiency challenges to the evidence, Appellant Marinecorp requests that the court reverse and remand based on the factual sufficiency issues of error. In the alternative, Appellant Marinecorp asks the Court to modify its judgment and delete damages which the Appellees were not entitled to under the law and evidence presented. In the final alternative, Appellant asks that the Court to enter a remittitur for the complained of damages. Finally, Appellant asks the Court for such other and further relief which the Court may deem appropriate. Respectfully submitted, THE STROTHER LAW FIRM /s/ Macon D. Strother_______ MACON D. STROTHER State Bar No. 19420000 4306 Yoakum Blvd., Suite 560 Houston, Texas 77006 (713) 557-9238 (Telephone) mstrother@strotherlawfirm.com ATTORNEY FOR APPELLANT MARINECORP INTERNATIONAL, LTD. CERTIFICATE OF SERVICE I hereby certify that Appellant’s Brief was e-filed by utilizing the Court’s official e-filing system on this 30th day of October, 2015, which system should also forward a true and correct copy via e-mail to all attorneys of record in this case, including: 73 Brock C. Akers The Akers Firm 3401 Allen Parkway, Suite 101 Houston, Texas 77019 bca@akersfirm.com Stephen R. Cochell The Cochell Law Firm, PC 5555 W. Loop South, Suite 200 Bellaire, Texas 77401 srcochell@gmail.com I further certify that on this same date, a true and correct copy of Appellant’s Brief was sent via First Class U.S. Mail, Certified Delivery, Return Receipt Requested, to: Lee Harless Dawn Marie Harless 11435 Log Cabin Dr. Tomball, TX 77375 CM/RRR 7013 0600 0001 1817 8599 /s/ Macon D. Strother__________ MACON D. STROTHER CERTIFICATE OF COMPLIANCE WITH TEX.R.APP.P. 9.4(i)(3) Relying on the word count function in the word processing software used to produce this document, namely MS Word Version 7, I certify that the number of words in this Appellant’s Brief, excluding any parts exempted by Tex.R.App.P. 9.4(i)(1), is 14,759. /s/ Macon D. Strother__________ MACON D. STROTHER 74 No. 01-14-00707-CV IN THE FIRST COURT OF APPEALS at HOUSTON, TEXAS MARINECORP INTERNATIONAL, LTD. Appellant, V. THE CHOPPER GROUP, LLC, AND OUTLAW COUNTRY, LLC Appellees APPELLANT'S APPENDIX LIST OF DOCUMENTS A. Charge of the Court ...................................................... TAB A B. Modified Final Judgment, signed July 31, 2014...................TAB B C. Standard Lease Contract by and between Marinecorp as Landlord and Outlaw as tenant.......................................TAB C D. Standard Lease Contract by and between Marinecorp as Landlord and Chopper as tenant.................................TAB D 75 ORIGINAL CAUSE NO. 2012-23983 c'l cl THE CHOPPER GROUP, LLC AND § IN THE DISTRICT COURT OF OUTLAW COUNTRY, LLC § El § VS. § HARRIS COUNTY, T S,, H § § MARINECORP INTERNATIONAL, LTD. § 80TH JUDICIAL DISTRICT CHARGE OF THE COURT Members of the Jury: After the closing arguments, you will go to the jury room to decide the case, answer the questions that are attached, and reach a verdict. You may discuss the case with other jurors Only when you are all together in the jury room. Remember my previous instructions: Do not discuss the case with anyone else, either in person or by any other means. Do not do any independent investigation about the case or conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post information about the case on the Internet. Do not share any special knowledge or experiences with the other jurors. Do not use your phone or any other electronic device during your deliberations for any reason. Any notes you have taken are for your own personal use. You may take your notes back into the jury room and consult them during deliberations, but do not show or read your notes to your fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on your independent recollection of the evidence and not be influenced by the fact that another juror has or has not taken notes. You must leave your notes with the bailiff when you are not deliberating. The bailiff will give your notes to me promptly after collecting them from you. I will make sure your notes are kept in a safe, secure location and not disclosed to anyone. After you complete your deliberations, the bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly destroy your notes so that nobody can read what you wrote. Here are the instructions for answering the questions. 1. Do not let bias, prejudice, or sympathy play any part in your decision. 2 Base your answers only on the evidence admitted in court and on the law that is in these instructions and questions. Do not consider or discuss any evidence that was not admitted in the courtroom. 3. You are to make up your own minds about the facts. You are the sole judges of the 1 credibility of the witnesses and the weight to give their testimony. But on matters of law, you must follow all of my instructions. 4. If my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which will be a proper legal definition. 5. All the questions and answers are important. No one should say that any question or answer is not important. 6. Answer "yes" or "no" to all questions unless you are told otherwise. A "yes" answer must be based on a preponderance of the evidence. Whenever a question requires an answer other than "yes" or "no," your answer must be based on a preponderance of the evidence. The term "preponderance of the evidence" means the greater weight of credible evidence presented in this case. If you do not find that a preponderance of the evidence supports a "yes" answer, then answer "no." A preponderance of the evidence is not measured by the number of witnesses or by the number of documents admitted in evidence. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true. 7. Do not decide who you think should win before you answer the questions and then just answer the questions to match your decision. Answer each question carefully without considering who will win Do not discuss or consider the effect your answers will have. 8. Do not answer questions by drawing straws or by any method of chance. 9. Some questions might ask you for a dollar amount. Do not agree in advance to decide on a dollar amount by adding up each juror's amount and then figuring the average. 10. Do not trade your answers. For example, do not say, "I will answer this question your way if you answer another question my way." 11. Unless otherwise instructed, the answers to the questions must be based on the decision of at least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of anything less than 10 jurors, even if it would be a majority. As I have said before, if you do not follow these instructions, you will be guilty of juror misconduct, and I might have to order a new trial and start this process over again. This would waste your time and the parties' money, and would require the taxpayers of this county to pay for another trial. If a juror b [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4072835. Public record. Not legal advice.