### NUMBER 13

- 1 3

- 00 549

- CV


## COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

PREMIUM ASSETS, INC. , Appellant,

v.

LYDIA A. GARCIA D/B/A JOE LYNN DAZZLES AND MORE AND LYDIA ANN GARCIA , Appellee s

.

On appeal from the 2 14 th District Court of Nueces County, Texas.



## MEMORANDUM OPINION

Before Justice s Rodriguez , Garza and Longoria Memorandum Opinion by Justice Longoria

Appellant Premium Assets, Inc., appeals a verdict rendered against it following a
bench trial on appellee Lydia Ann Garcia’s 1 claims for promissory estoppel and violations

1 Garcia sued in her individual capacity and as Lydia A. Garcia d/b/a Joe Lynn Dazzles and More. We refer to them collectively as “Garcia.”2

of the Texas Deceptive Trade Practices Act (DTPA). We affirm.

I. B ACKGROUND

A. Background Facts
During the first week of January of 2012
, Garcia contacted a real estate broker
named Jason Alaniz to discuss obtaining a commercial lease for a store that she planned
to open in downtown Corpus Christi, Texas. Alaniz wa s the listing agent for appe llant, a
property management company. Alaniz referred Garcia to Suite 115

- A in American Bank
Plaza, a commercial office building that appellant managed for the building’s owner, SFP
711 Corpus Christi, LLC (SFP 711) . Suite 115

- A was available for Garcia to lease at a
monthly rent al of $275.00 on a twelve

- month lease. Garcia testified at trial that Alaniz
told her that she had been accepted as a tenant by SFP 711 and that “everything was
going to be okay and we were just waiting, you know, for the lease to be drawn up and

so on.” Alaniz , however, testified at trial that he did not remember telling Garcia that she
had been approved by SFP 711.
On January 26, 2012, Garcia executed the lease at Alaniz ’s office. At the time that

she executed the lease, Garc ia gave Alaniz two checks, one for the first month’s rent and
another for the security deposit required by the terms of the lease. Alaniz forwarded the
checks and the executed lease to appellant. It is undisputed that Garcia afterwards

obtained a commerc ial insurance policy from Farmers Insurance Group, purchased
$2,843.48 in supplies for her business, ope ned a business checking account, purchased

checks for th at account, and quit her job as an office manager.
On January 27, 2012, Garcia delivered a cop y of the insurance policy to appellant ’s

office and received keys to Suite 115

- A and an access card to the building from Noel3

Harris, one of appellant’s employees. Harris testified that he also permitted Garcia to
store display cases in Suite 115

- A. Pat Lowery, another employee of appellant, testified

at trial that she reviewed Garcia’s file after Garcia received the keys from Harris and that
she had concerns over whether Garcia would be selling some of the same products as
the building’s other tenants. Lowery also not ic ed that Garcia had not yet provided a credit
report. Lowery testified that after speaking with Garcia she was satisfied with her answers
regarding the products Garcia intended to sell.
However, on February 1, 2012, Lowery instructed Harri s to change the locks on

Suite 115

- A. Appellant later informed Garcia by letter that her tenancy had been rejected

because she failed a credit check . Appellant returned Garcia’s checks by the same letter.
It is undisputed that n either SFP 711 nor appell ant executed the lease. Garcia testified
at trial that the credit report appellant relied on was for a different person with the name
of Lydia Garcia

. The parties dispute whether appellant’s employees prevented Garcia
from recovering the property she had already moved into Suite 115

- A.

B. Lawsuit
Garcia filed suit against appellant alleging causes of action for promissory estoppel

and violations of the DTPA. 2 Following a bench trial, the trial court rendered a judgment
for Garcia in the amount of $18,651. 47 for “reliance damages,” pre

- and post

- judgment

interest, and $2 1,962.50 in attorneys’ fees with conditional awards of further attorneys’
fees if the case was appealed. The trial court entered the following findings of fact and

conclusions of law:

1. On April 23, 2013, Plaintiff Lydia Garcia d/b/a/ Joe Lynn Dazzles and

2 Garcia also alleged causes of action for breach of contract and quasi

- contract. We will not discuss those causes of action further because the trial cou rt’s findings and conclusion s do not address them and the parties do not mention them on appeal. See T EX

. R. A PP

. P. 47.1.4 More ("Plaintiff") and Defendant Premium Assets, Inc. ("Defendant"), appeared and announced ready for trial on the above referenced cause of action.

2. The parties agreed to proceed with a tr ial to the Court.

3. The trial proceeded until it concluded on said date.

4. At the conclusion of trial and after the presentation of evidence, this Court finds as follows:

5. By a preponderance of the evidence, Premium Assets, Inc. engaged in false, misleading, or deceptive acts or practices that Lydia Garcia d/b/a/ Joe Lynn Dazzles and More relied on to her detriment and that was a producing cau se of damages to Lydia Garcia d/ b/a/ Joe Lynn Dazzles and More.

6. Specifically, this Court finds by a preponderance of the evidence that the following laundry list violations were committed by Defendant Premium Assets, Inc.:

A. Defendant, Premium Assets, Inc. represented that goods or services had sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they did not have or that a person has a sponsorship, approval, status, affiliation, or connection which it did not;

B. Defendant, Premium Assets, Inc. caused confusion or misunderstanding as to the source, sponsorship, approval, or certific ation of goods or services;

C. Defendant, Premium Assets, Inc. represented that goods or services are or will be of a particular quality if they were of another;

D. Defendant, Premium Assets, Inc. failed to disclose information concerning goods or services that was known at the time of the transaction with the intention to induce Lydia Garcia d/b/a/ Joe Lynn Dazzles and More into a transaction she otherwise would not have entered into if the information had been disclosed;

E. Defendant, Premium Assets, Inc. ad vertised goods or services with intent not to sell them as advertised; and

F. Defendant, Premium Assets, Inc. passed off goods or services as those of another.5

7. The Court further finds that the Plaintiff, Lydia Garcia d/b/a/Joe Lynn Dazzles and More negotiat ed the terms of a lease agreement with Jason Alaniz, an agent of the Defendant Premium Assets, Inc., and that all of the terms and conditions of the Lease Agreement were agreed to and were contained in the Lease Agreement, which was introduced into evidenc e during the trial.

8. Jason Alaniz was an agent for Defendant, Premium Assets, Inc. who had the authority to negotiate the terms of the lease agreement with a tenant on the Defendant Premium Assets, Inc.’s behalf.

9. Jason Alaniz, Defendant Premium Assets, Inc.'s agent, was acting within the scope and course of his duty at all times while negotiating the lease agreement with the Plaintiff Lydia Garcia d/b/a/ Joe Lynn Dazzles and More.

10. Jason Alaniz, Defendant Premium Assets, Inc.'s agent, had the actual, imp lied or apparent authority to represent to the Plaintiff, Lydia Garcia d/b/a/Joe Lynn Dazzles and More that the Lease Agreement had been approved by the owner, SFP 711 Corpus Christi, LLC.

11. Defendant Premium Assets, Inc. was the management company and agen t for the owner, SFP 711 Corpus Christi, LLC.

12. Defendant Premium Assets, Inc., and/or Jason Alaniz, Defendant Premium Assets, Inc.'s agent, did not disclose to the Plaintiff Lydia Garcia d/b/a/ Joe Lynn Dazzles and More that there was an alleged requiremen t that she complete a credit check prior to her lease agreement with the landlord becoming final or that her Lease Agreement was contingent on a credit check.

13. Defendant Premium Assets, Inc., and/or Jason Alaniz, Defendant Premium Assets, Inc.'s agent, dis closed to the Plaintiff Lydia Garcia d/b/a/ Joe Lynn Dazzles and More that her Lease Agreement had been accepted by the landlord and that she was approved to move into her commercial unit in February, 2012.

14. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More, in reliance on the representations of Jason Alaniz, Defendant Premium Assets, Inc.'s agent, issued payment for the security deposit and first month's rental amount to the Defendant.

15. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More, in re liance on the representations of Defendant Premium Assets, Inc., and/or Jason Alaniz, Defendant Premium Assets, Inc.'s agent, purchased6 merchandise, commercial insurance coverage, materials, inventory, and equipment for her commercial unit which totaled $2 ,843.48 in damages.

16. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More, in reliance on the representations of Defendant Premium Assets, Inc., and/or Jason Alaniz, Defendant Premium Assets, I nc.'s agent, suffered $15,807.96 in additional damages.

17. Pl aintiff Lydia Garcia d/b/a/ Joe Lynn Dazzles and More, executed a Lease Agreement with the owner, SFP 711 Corpus Christi, LLC on January 26, 2013.

18. The Lease Agreement did not contain any requirements that a credit report was required to be executed prior to the Lease Agreement becoming finalized.

19. Defendant, Premium Assets, Inc.'s property manager confirmed that the Defendant Premium Assets, Inc., had never previously required a credit report for the leasing of a commercial unit of the size of the unit the Plaintiff Lydia Garcia d/b/a/ Joe Lynn Dazzles and More had leased.

20. Defendant, Premium Assets, Inc., ratified the actions and representations of their agent, Jason Alaniz in the following ways:

A. Defendant, Premium Assets, Inc., provided the Plaintiff Lydia Garcia d/b/a/ Joe Lynn Dazzles and More with a key to her unit;

B. Defendant, Premium Assets, Inc., provided the Plaintiff Lydia Garcia d/b/a/ Joe Lynn Dazzles and More with a gate code to her unit; and

C. Defendant, Premium Assets, Inc., allowed the Pla intiff Lydia Garcia d/b/a/ Joe Lynn Dazzles and More to move her personal property into the unit without objection.

21. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More relied upon said actions and ratifications by the Defendant, Premium Assets, Inc.

22. Defendant, Premium Assets, Inc. subsequently locked the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More out of her unit after the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More had stored her personal property in the unit.

23. Defendant, P remium Assets, Inc. locked the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More out of her unit without first running a credit report on the Plaintiff.7

24. The credit report run on the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More by the De fendant Premium Assets, Inc. contained financial and legal information for individuals who were not the Plaintiff.

25. Defendant, Premium Assets, Inc. failed to conduct an investigation into the credit report's accuracy nor did it ask the Plaintiff, Lydia Gar cia d/b/a/ Joe Lynn Dazzles and More for clarification on the discrepancies.

26. Defendant, Premium Assets, Inc. refused to honor the terms of the Lease Agreement and the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More was not allowed to occupy and p eacefully enjoy the commercial unit she had leased.

27. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More's personal property has been held by Defendant, Premium Assets, Inc. since February 1, 2012.

28. As a result of Defendant Premium Assets, Inc.'s conduct, the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More was forced to incur attorney's fees.

29. The attorney's fees incurred by the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More through trial were in the amount of $21,962.50.

30. The at torney's fees incurred by the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More were reasonable and necessary under Texas law and the facts of the case.

31. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More is entitled to additional reasonable a nd necessary attorney's fees in the amount of $20,000.00 if the Judgment rendered by this Court is appealed to the 13th Court of Appeals.

32. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More is entitled to additional reasonable and necessary attorney' s fees in the amount of $5,000.00 if a Petition [or] Writ is filed with the Texas Supreme Court.

33. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More is entitled to additional, reasonable and necessary attorney's fees in the amount of $5,000.00 if a P etition [or] Writ is granted by the Texas Supreme Court.

Conclusions of Law

34. The Court finds that Plaintiff, Lydia Garcia d/b/a/Joe Lynn Dazzles and More is a consumer under the Texas Deceptive Trade Practices Act.8

35. The Court finds that Defendant, Premium Assets, Inc. can be sued under the Texas Deceptive Trade Practices Act.

36. Specifically, the Court finds that Defendant, Premium Assets, Inc., is a person as defined under the Tex as Business and Commerce Code § 17.43(3).

37. The Court finds that Defendant, Pre mium Assets, Inc.'s actions, as described above, were the producing cause of the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More's damages.

38. By a preponderance of the evidence, Defendant, Premium Assets, Inc. made a promise to the Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More.

39. By a preponderance of the evidence, Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More reasonably and substantially relied on the promise to its detriment.

40. By a preponderance of the evidence, Plaintiff Lydi a Garcia d/b/a/ Joe Lynn Dazzles and More's reliance was foreseeable by the Defendant, Premium Assets, Inc.

41. By a preponderance of the evidence, injustice can be avoided only by the enforcement of the promise.

42. Defendant, Premium Assets, Inc., is vicarious ly liable for the acts of its agent, Jason Alaniz, based on their ratification of his acts and representations during his negotiations with Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More.

43. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More is entitled to Prejudgment interest on $18,651.44 at the high est rate allowable under [ T EX

. F IN

. C ODE A NN

. ] § 304.104 from June 7, 2012 through the date this judgment is signed.

44. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More is entitled to post

- judgment interest at the rate of 5% per annum, from one day after this judgment is signed and until the judgment is paid in full pursuant to Chapter 304 of the Tex. F in . Code.

45. All writs and processes for the enforcement and collection of this judgmen t may issue as necessary.9

46. Plaintiff, Lydia Garcia d/b/a/ Joe Lynn Dazzles and More is entitled to the return of her personal property currently being held by Defendant, Premium Assets, Inc. within 30 days from the date this Judgment is executed.
(Emphasis in original)

II. D ISCUSSION
By three issues , which we have renumbered and reorganized, appellant asserts
that: (1) the trial court’s conclusions of law that Garcia relied to her detriment on
appellant’s representations that she was accepted as a te nant were erroneous as a

matter of law; ( 2) Garcia judicially admitted that she did not detrimentally rely on
appellant’s representations ; and ( 3 ) the statute of frauds and the statute of conveyances

prevent Garcia from recovering

. 3

A. Standard of Review

W e review a trial court’s conclusions of law de novo. BMC Software Belg

. , N.V. v.

Marchand

, 83 S.W.3d 789, 794 (Tex. 2002). The appellant may not challenge the trial
court’s conclusions of law for factual insufficiency, but appellate courts review the

conclusions the trial court drew from the facts to determine their correctness. Id. We will

not reverse a conclusion of law unless it is erroneous as a matter of law. City of Corpus
Christi v. Taylor

, 126 S.W.3d 712, 718 (Tex. App.

— Co rpus Christi 2004, pet. withdrawn)

. An erroneous conclusion of law does not require reversal if the trial court rendered the
proper judgment. BMC Software , 83 S.W.3d at 794.

B. Does the Lease Agreement Prevent a Finding of Detrimental Reliance on Garcia’s D TPA and Promissory Estoppel Claim s ?

3 Appellant includes an additional issue arguing that if the lease agreement was enforceable, Garcia would only have a breach

- of

- con tract claim against SFP 711. We need not address that issue because, as we explain in greater detail below, Garcia’s suit does not seek to enforce the lease agreement. See id

.10

Appellant first argues that the trial court’s conclusions that Garcia proved the

element of detrimental reliance , common to both the promissory estoppel and DTPA

claims, are erroneous as a matter of law because Garcia s igned the lease. Appellant
asserts that the lease contained a provision disclaiming reliance on any representations

outside of the lease.
We disagree. Appellant is correct that a plaintiff cannot prevail under the DTPA or
under a theory of promissory est oppel without showing th at the plaintiff relied on a
representation to the plaintiff’s detriment. See Cruz v. Andrews Restoration, Inc. , 364
S.W.3d 817, 823 (Tex. 2012) (“Moreover, under 17.50(a)(1) [of the DTPA], a consumer
loses without proof that he re lied to his detriment on the deceptive act.”); Garcia v. Lucero
, 366 S.W.3d 275, 280 (Tex. App.

— El Paso 2012, no pet.) (“ The elements of promissory
estoppel are: (1) a promise; (2) foreseeability of reliance thereon by the promisor; and (3)

substantial rel iance by the promisee to her detriment. ”). However, appellant has not
explained how or why the lease prevents Garcia from showing detrimental reliance when
Garcia did not sue to enforce a provision of the lease and it is undisputed that the lease

never came into effect.
Regarding Garcia’s DTPA claim, the T exas Supreme Court has been clear that a
plaintiff may maintain a DTPA action for oral misrepresentations outside of a contract.

See Weitzel v. Barnes , 6 91 S.W.2d 598, 600 (Tex. 1985); Bus. Staffing, Inc. v. Jackson

Hot Oil Serv. , 401 S.W.3d 224, 243 n.13 (Tex. App.

— El Paso 2012, pet. denied)
(observing that liability under the DTPA for misrepresentations “is neither increased nor
diminished by the presence of a formal written contract covering the identical subject
matter” (citations omitted)). Garcia’s First Amended Petition, her live petition, alleged that11

appellant’s agents made false representations before and after she executed the lease.

See Weitzel
, 6 91 S.W.2d at 600. Appellant has not explained further why Garcia may not

maintain a claim under t he DTPA for these alleged misrepresentations. Appellant also
has not explained why the lease prevents Garcia from showing detrimental reliance under
her promissory

- estoppel theory. 4 While the lease’s merger clause might be relevant if

Garcia sued SFP 711 to enforce a promise to sign the lease
, Garcia did not f ile such a

lawsuit. See, e.g.
, Bank of Tex. , N.A. v. Gaubert , 286 S.W.3d 546, 55 5

– 5 6 (Tex. App.

— Dallas 2009, pet. dism'd w.o.j.) (addressing a suit for promissory estoppel to enforce a
promise to sign a document). Appellant has presented no authority explaining why the
unexecuted lease is relevant to Garcia’s claim for promissory estoppel or for violations of

the DTPA.

In sum, we conclude tha t the existence of the lease agreement does not make the
trial court’s conclusions of law that Garcia proved both her DTPA and promissory

estoppel claims legally erroneous. We overrule appellant’ s first two issues

. 5

C. Judicial Admission
Appellant’s third is sue is that Garcia judicially admitted that she did not
detrimentally rely on appellant’s alleged representations about the lease. Appellant

4 We reject the assertion s in appellant’s brief that the trial court’s conclus ions of law on promissory estoppel were erroneous because contractual “privity is required for a promissory estoppel claim. ” P romissory estoppel is only applicable to enforce promises that are not covered by a valid contract between the parties. BP Am. P rod. Co. v. Zaffirini , 419 S.W.3d 485, 507 (Tex. App.

— San Antonio 2013, pet. denied);
see Richter v. Wagner Oil Co. , 90 S.W.3d 890, 899 (Tex. App.

— San Antonio 2002, no pet.) (“Promissory estoppel is not applicable to a promise covered by a valid contract between the parties; however, promissory estoppel will apply to a promise outside the contract.”).

5 Appellant’s s econd issue includes the statement that “basic logic indicates that there was no detrimental reliance on the alleged representation by [ Alaniz ] that [Garcia] had been approved as a tenant. [Garcia] signed the lease at the realtor’s office after the allege d representation.” Garcia treated this argument as a separate factual

- sufficiency challenge . We will not address it in this way because t he part of appellant’s brief with this wording leads into the judicial

- admission issue that we address in part II.C

.1 2

asserts that Garcia “knew that the alleged approval [by SFP 711] was subject to the terms
of an acceptable lease b ecause she was informed the lease would be signed after the
alleged misrepresentation.” In other words, appellant asserts that Garcia’s statement in

the First Amended P etition that she knew the lease had not yet been executed was an

admission that she did not rely to her detriment on appellant’s representations that it

would be.
We disagree. To qualify as a judicial admission a statement must be “clear,
deliberate, and unequivocal.” Horizon/CMS Healthcare Corp. v. Auld , 34 S.W.3d 887,
905 (Tex. 2000) (quotation marks omitted). A judicial admission “ occurs when an
assertion of fact is conclusively established in live pleadings, making the introduction of
other pleadings or evidence unnecessary .” Id. Garcia’s statement in her First Amended

Petition i s, at most, an admission that she knew the lease had not been formally executed
by the landlord at the time . Garcia’s statement does not address whether or not she relied
on appellant’s representations that SFP 711 already accepted her as a tenant. Appel lant

has not pointed to any place in the First Amended Petition where Garcia admits that she
was aware that SFP 711 might not execute the lease or that there were additional
conditions she must fulfill before SFP 711 would agree to execute the lease. We c onclude
that Garcia’s admissions in the First Amended Petition, if any, were not clear, deliberate,
and unequivocal statements that she did not rely to her detriment on appellant’s
representations. See id

. We overrule appellant’s third issue.

D. Statute of Frauds and Statute of Conveyances
Appellant’s fourth issue is that the trial court’s conclusions of law on Garcia’s

claims are erroneous as a matter of law because the statute of frauds and the statute of13

conveyances “prevent[] the prospective tenant, [Ga rcia], from recovering damages from
the property management company, Appellant, who was not a party to the lease.”

The statu t e of frauds makes an agreement for a lease of real estate for a term
longer than a year unenforceable unless it is in writing and signed by the person to be
charged with the promise or someone lawfully authorized to sign for that person. See

T EX

. B US

. & C OM

. C ODE A NN

. § 26.0 1 (West, Westlaw through Ch. 46, 2015 R.S.). The
statute of conveyances makes an agreement to convey an estate in land for a period
greater than a year unenforceable unless it is in writing and signed by the conveyor or the
conveyor’s agent. T EX

. P ROP

. C ODE A NN

. § 5.02 1 (West, Westlaw through Ch. 46, 2015
R.S.). Both statutes would be relevant if Garcia sought to enforce the lease against SFP
711, but appellant does not explain how either statute prevents Garcia from recovering

from a non

- party to the lease for misrepresentations that are separate from the lease

. 6

See T EX

. B US

. & C OM

. C ODE A NN

. § 26.01 ; T EX

. P ROP

. C ODE A NN

. § 5.021 ; see also Chen

v. Ma , No. 03

- 96

- 00626

- CV, 1998 WL 161363, at **4

– 5 (Tex. App.

— Austin Apr. 9, 1998,
no pet.) (mem. op.) (concluding that summary judgment on a DTPA claim was improper
because the plaintiff could maintain an acti on for alleged misrepresentations that induced
purchase of land even if the agre ement to purchase was barred by the statute of frauds)

. We overrule appellant’s fourth issue.

6 Under this section, a ppellant cites only case law t hat might be relevant if Garcia filed suit to enforce the lease or a promise to sign the lease

. See Bank of Tex. , N.A. v. Gaubert , 286 S.W.3d 546, 553

– 54 (Tex. App.

— Dallas 2009, pet. dism'd w.o.j .) (observing that promissory estoppel can avoid the statute of frauds where a defendant promised to sign an existing document); EP Operating Co. v. MJC Energy Co. , 883 S.W.2d 263, 268 (Tex. App.

— Corpus Christi 1994, writ denied) (holding that written corr espondence between the parties was insufficient to satisfy the statute of frauds because the writings did not sufficiently set out of the terms of the agreement and were not signed).14 III. C ONCLUSION
We affirm the judgment of the trial court.

NORA LONGORIA
, Justice

Delivered and filed the 27th day of August , 20 15

.