COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

ENCHI L ADA’ S NORTHWES T, I NC., Appellant,

v. L &S RENTAL

PROP ERTI ES, Appellee

. § § § § § § No. 08-08-00142- CV

Appea l from 192nd District Court of Da llas County , Texas (TC # 06-5664-K )

O P I N I O N Enchilada ’s Northwe st, I nc. appea ls from a judgme nt awa rding damag es and attorney ’s fee s
to L &S Rental Properties following a jury t ri al

. At issue is whether Enchilada ’s established its aff irmative defe nses of waiver and estoppel in this suit for brea ch of a lease ag ree ment. Be cause it did not, we af

firm the judg ment of the c ourt below.

F ACTUAL SUMMA RY
L &S and Enchilada ’s enter ed into a lease ag ree ment fo r re s t aura nt space on Northwe st Hig hway in Dallas, Texas. The orig inal lease ran from J une 21, 1993 to J uly 1, 1998. Enchilada ’s exercised a rene wal option for an additional five y ear term, at the end of which the parties amende d the ag ree ment to extend the lease ag ain from J uly 1, 2003 until J une 30, 2008. Under the amende d
ag ree ment, Enchilada ’s could ter minate the lea se ea

rly but it was require d to provided notice:

L ANDL ORD further g rants Tena nt the rig ht to terminate L ease Ag ree ment by notify ing L ANDL ORD One H undred Eig hty (180) da y s prior to s uch ter

mination. Notice to terminate shall be in writing and sent by cert i fi ed m ai l to L & S PROP ERTI ES AT 5510 Wil liamstown Rd, Da l l as , t x . 75230. All verba l or oral notices are not deeme d as notification of such termination. Should Tena nt exercise rig ht to terminate, Tena

nt shall pay all rents due and pay able of terminate period (180day s).

On October 12, 2005, J ack Stoller of L &S sent Enchilada ’s a letter reg arding delinquent rent. Enchilada ’s owner, Tony Waldrop, called Stol ler and asked to meet with him. Stoll er ag ree d and he went to Waldrop’s office o n Oc t o ber 20, 2005. Waldrop had requested the meeting to discuss

an issue with the water meter at the proper ty and a co-te nant’s failure to pay her share of water usag e. The conver sation beca

me heate d and Waldrop threa tened sever al times that if L &S did not resolve the water situation, Enchilada ’s might have to move. Whil e Stoll er was walking out of the meeting , Waldrop ag ain threa tened to move if the problem was not resolved and Stoll er responde d, “Move.” Stoll er te stified Waldrop had threatened to move many times in the past but had not done so.
On Marc h 20, 2006, Enchilada ’s gave written not ice that it intended to terminate the le ase and vacate the space on May 1, 2006. I t c laimed the parties had orally ag ree d that the lease would terminate on April 18, 2006 but it need until May 1 to vacate. L &S sent a reply letter on Marc h 23,
2006 acc epting the notice of termination. L &S denied the exis tence of an oral agre ement and notified Enchilada ’s that the 180-day notice period require d rent to be paid from Marc h 20, 2006 to September 16, 2006. On April 19, 2006, counsel for L &S sent a simil ar letter, advising that despite the fac t Enchilada ’s was vacating the premises, it was never theless obliga ted to pay rent throug hout the 180-day notice period as require d by the lease

. At some point there af t er, Stoll er went to the
proper ty and found the premises locked and e mpty . A sig n in the window stated Enchilada’s was moving to a new location. When Enchilada ’s did not pay rent for May 2006, counsel for L &S sent

a third letter, explaining that L &S had found a tenant to occupy the space but the new tenant would

not beg in to pay rent until October 1, 2006 due to the “finish out.” At trial, Stoll er testified that L &S lease d the space to the adjac ent tenants but they had reque sted construction modifications. The lease

term beg an on J une 1, 2006, but L &S did not char g e them rent until October 1, 2006. Sometime inMay

2006, Stoll er r equeste d and obtained the key from Enchilada ’s so he could e nter the pr operty and beg in prepa

rations for the new tenants. Enchilada ’s did not pay rent for May , J une, J uly , Aug ust, and September 2006. L &S filed suit for brea ch of contra ct seeking unpaid rent in the amount of $14, 175, plus interest and at t o rn ey ’s fee s. Enchilada ’s filed an answe r asser ting a g ener al denial and pleading the af

firmative de fense s of waive r and e stoppel.
At the jur y t ri al , Enchilada ’s based its waiver defe nse primarily on the October 2005

conver sation betwee n Stoll er and Waldrop. The jury found that L &S and Enchilada ’s enter ed into

an ag ree ment reg arding the amount of notice require d to terminate t h e l ea s e an d that Enchilada ’s failed to comply with the ag ree ment. The jury specific ally found that Enchilada ’s failure to comply

was not excused by waiver on the part of L &S. The jury awa rded damag es in t h e amount of $14,175 , an d t h e trial court entered judgment in favor of L &S for damag es, prejudgme nt interest, and attorne y ’s fe es. AF F IRMATIVE DEF ENSE O F WAIVER Enchilada ’s raises two issues rela ted to w aiver

. I n I ssue One, Enchilada ’s contends that as
a matter of law, L &S wa ived any

rig ht to require 180-day s’ not ice of intent to terminate the lea se when Stoll er told Waldrop to “g et out.” I n I ssue Two, Enchilada ’s claims that L &S waived its rig ht

to collect rent during the notice period beca use Stoll er asked that Enchilada ’s voluntarily surre nder phy sical possession of the lea se pre mises prior to its ex piration. Standard of Review Where the party having the burden of proof suffe rs an unfavor able finding (fa ilure to find), the proper complaint is that the fac t was established as “a matter of law.” When attacking the leg al sufficie ncy of the evidenc e to support an adver se finding on an issue for which it had the burden of proof, an appellant m u s t d em onstrate that the evidenc e conclusively established all vital fac ts insupport of the issue. Dow Chemical Company v. Francis , 46 S.W .3d 237, 241 (Tex. 2001) , citing

Sterner v. Marathon Oil Company , 767 S.W .2d 686, 690 (Tex. 1989); Duran v. Garcia , 224 S.W .3d 309, 312 (Tex.App.--El Paso 2005, no pet.). A party attempting to overc ome an adver se fac t finding

as a matter of law must surmount two hurdles. Sterner , 767 S.W .2d at 690; Duran , 224 S.W .3d at 312. First, the rec ord m ust be ex amined for evidenc e that supports the finding , while i g noring all evidenc e to the contra

ry . Sterner , 767 S.W .2d at 690; Duran , 224 S.W .3d at 312. Second, if there is no evidenc e to support the finding , then the entire rec ord must be examined to see if the contra ry proposition is established as a matter of law. Sterner , 767 S.W .2d at 6 9 0 ; Dur an , 224 S.W .3d at 312. Only if the contra

ry position is conclusively established will the leg al sufficie ncy challeng e be sustained. Duran , 224 S.W .3d at 312-13. Applicable Law Waiver is define d as the intentional relinquishment of a known rig ht or intentional conduct inconsistent with claiming that rig ht. Jernigan v. Langley , 111 S.W .3d 153, 156 (Tex. 2003); Industrial Communications, Inc. v. W ard County Appraisal Distri ct , 2 9 6 S.W .3d 707, 721 (T ex . Ap p . -- E l Paso 2009, pet. filed). Waiver may be written or oral, and it may be shown b y circ umstances or

course of dea ling. Carpet Servic es, Inc. v. George A. Fuller Company of Tex as, Inc. , 802 S.W .2d 343, 346 (Tex.App.--Da llas 1990), aff’d , 823 S.W .2d 603 (Tex. 1992). Waiver can be established by a party ’s express renunc iation of a known ri gh t , o r by silence or inaction for so long a period as to show an intent to y ield the known rig ht. Aguiar v

. Segal , 167 S.W .3d 443, 451 (Tex.App.--Houston [14t h Dist.] 2005, pet. denied)

. Waiver is larg ely a matter of intent, and for implied waiver to be found throug h a party ’s actions, intent mu s t b e clea rly demonstrated by the surrounding fac ts and circ umstances. Jernigan , 111 S.W .3d at 156; Motor Vehicle Board v. El Paso Indepe ndent Automobile De alers Association, Inc. , 1 S.W .3d 108, 111 (Tex. 1999). Ther e ca n beno waiver of a rig ht if the person soug ht to be char g ed with waiver say s or does nothing inconsistent

with an intent to rely

upon such rig ht. Jernigan , 111 S.W .3d at 156.

The October 2005 M

eeting Both Stoll er and Waldrop t es t i fi ed about the October 20, 2005 meeting which formed the basis for Enchilada ’s waiver defe nse. Stoll er went to Waldrop’ s office to disc uss pr oblems with a

water meter. As soon as Stoll er walked in, Waldrop beg an talking to him in an intimi dating manner , complaining that they had to resolve the water probl em o r t he busi ness m ight have to move. The

conver sation beca

me heated but Stoll er tried to control hi s temper. Stoll er at t em pted t o leave the meeting three d i ff

er en t times but Waldrop stopped him eac h time. Finally , Stoll er walked to the d o o r, telling Waldrop “I ’ve had enoug h.” Waldrop reiter ated, “[I ]f y ou’re not g oing to help u s resolve this water deal, we may have to move.” Ex asper ated by this point, Stoll er simply said,
“Move.” He denied telling Waldrop to “g et out” or rec eiving any notice that Enchilada ’s might leave the premises prior to the termination date. I n fac t, Waldrop had made simil ar threa ts in the past but had not moved. Stoller expressly denied discussing with Waldrop a termination of the le ase. Waldrop had a differ ent rec ollection of the meeting

. He rec alled that Stoll er came to collect the rent but they also met to dis cu ss problems wit h the property and S toller’s “stonewalling.” He char acte rized the discussion about t h e wa t er m eter as the “straw that broke the came l’s back.” Stoll er ref used to he lp w ith the water meter problem but Waldrop be lieved he should g et involved beca use it was his proper

ty

. They discussed other problems including potholes in the parking lot and the mansard, but Stoll er did not ag ree to resolve these issues either. The conver sation g rew heate d and Waldrop told Stoll er that if the problems wer e not resolved, he was g oing to move. Stoll er responde d “Move. Get out.” On cross-e x amination, Waldrop admitted this was the entirety of the discussion and that he did not tell Waldrop the bus iness would be movi ng out on April 18, 2006.Waldrop also admitted that he testified on deposition that he did not g ive written notice beca use he did not remember

the lease require d it. Waldrop’s wife was prese nt and overhe a r d th e c o n v e r s a

ti o n b e tw e e n St o ll e r a

n d h e r h usband. She rec alled that Stoll er said he was unwilling to pay for the repa irs that Waldrop wanted done and Waldrop asked, “If we can’ t have the fac ility fix ed and in g ood working order , how can we conti nue? ” Stoll er replied, “Well, then I g uess y ou’ll just have to g et out.” Stoll er purportedly
repe ated these rema

rks as he was lea

ving. The trial c ourt submitted the waiver issue to the jury : Was Enchilada ’s Northwe st, I nc.’s failure to comply [wit h the not ice requireme nt] excused?
Fa ilure to comply by Enchilada ’s Northwe st, I nc. is excused if compliance was waived by

L &S Rental Proper

ties. Waiver is an intentional surre nder of a known rig ht or intentional conduct inconsistent with claiming the r ight. The jury returne d a neg ative answ er.Right to Advance W ritten Noti ce The first issue befor e us is whether there is more than a scintilla of evidenc e supporting the jury ’s deter

mination that L &S did not intentionally surre nder its rig ht to 180-day s’ written notice of Enchilada ’s termination of the lease nor eng ag e in intentional conduct inconsistent with claiming that rig ht. Assuming for purposes of our leg al sufficie ncy re v i ew t h at t h e jury believed Stoll er’ s version of the confr ontation, t h er e i s evidenc e that Stoll er told Waldrop to move when Waldrop threa tened to leave if the problems with the premises wer e not corr ecte d. Stoll er denied tel l ing Waldrop to g et out. Waldrop’s threa t contemplated moving out at a future date if the problems wer e
not resolved and Stoll er, admittedly ang ry , simply responde d, “Move.” Ba sed on this evidenc e, we conclude Stoll er neither expressly nor impliedly ag re ed t o wa ive the lease require ment that Enchilada ’s g ive written notice 180 day s befor e it terminated the l ea s e. Stoll er’ s rema rk is not inconsistent with claiming the r ight to noti ce. Be cause the jury ’s neg ative answ er is supported by

m o re than a scintilla of evidenc e, it is unnece ssary to addre ss whether Enchilada ’s conclusively proved its waive r def

ense. I ssue One is ove rruled.
W aiver of Right to Coll ect M onthly Rent
We next consider whether L &S waived its rig ht to co l l ec t re n t during the 180-day notice period. Enchilada ’s vaca

ted the premises in April 2006 and re- opened at a differ ent location around May 12, 2006. Stoll er went t o t h e leased premises in April 2006 and found it locked and empty

. When L &S did not rec eive the May rent, Stoll er asked for the key so he could prepa re the proper

ty for new tenants. L &S lease d the premises to adjac ent tenants on J une 1, 2006. Although it obtained the key in May , L &S continued to c laim its right to collect rent during the notice pe riod. On May 12, 2006, its attorney sent a demand letter for pay ment of rent due and war

ned that L &S would file suit if Enchilada ’s did not tender pay ment. Ba sed on the fore g oing evidenc e, the jury could haverea sonably found that L &S did not intentionally waive its rig ht under the lease to collect rent during

the notice period. Fur

ther, there was sufficie nt evidenc e for the jury to find that L &S’s conduct was
not inconsistent with claiming that rig ht. Be cause the jury ’s neg ative answe r is supported by more than a scintilla of evidenc e, it is unnece ssary to addre ss whether Enchilada ’s conclusively proved its waiver defe nse. I ssue Two is over ruled.
EST OP P EL
I n I ssues Three and Four , Enchilada ’s offe rs t wo arg uments rela ted to estoppel. I n I ssue Three , Enchilada ’s contends that L &S is estopped to require 180-day s’ notice beca use Stoll er told Waldrop to g et out and Waldrop ag ree d to do so. I n its final issue, Enchilada ’s maintains that L &S is estopped from collecting rent beca use Stoll er reque sted that Waldrop v o l u n t arily surre nder phy sical possession of the lea sed pre mises prior to expiration of the notice per iod.
L &S counter s that Enchilada ’s did not prese rve these issues for re v i ew . E s toppel is an aff irmative defe nse. T E X .R.C I V .P. 94. Whil e Enchilad a’ s pled estoppel in its answe r, the rec ord does not ref

lect that it reque sted a j u ry instruction or that the trial court denied the instructions. Enchilada ’s has attache d its proposed instructions to its reply brief, but they are not included in the cler k’s rec ord and do not bear a file mark or the signa ture of the trial court ref using to submit them.
Moreove r, the rec ord does not ref lect that Enchilada ’s tender ed the instructions to the court or that the court ref

used them. Rule 279 provides that: “Upon appea l all independe nt g rounds of rec overy

or of defe nse not conclusively established under the evidenc e and no element of which is submitt ed

or reque sted are waived.” T E X .R.C I V .P. 279. By failing to obtain a jury finding on the aff irmative defe nse of estoppel, I ssues Three and Four are waived unless Enchilada ’s “conc lusively established” this aff irmative defe nse. See T.O. Stanley Boo t C o
. , In c. v. Bank of El Paso , 847 S.W .2d 218, 222-23 (Te x . 1992), citing T E X .R.C I V .P. 279.T o p r o v e th e a ffirma tive defe nse of equitable estoppel, Enchilada ’s must conclusively p r o v e :

(1) a false repr esenta tion or conce alment of materia l fac ts, (2) made with ac t u al o r constructive knowledg e of those fac ts, (3) with the intention that it should be acte d on, (4) to a p ar t y wi t h o ut knowledg e, or the means o f k n o wl edg e of those fac ts, (5) who detrimentally relied upon the misrepre sentation. Schroede r v. Texas Iron W orks, Inc. , 813 S.W .2d 483, 489 (T ex. 1991). The party relying upon estoppel has the burden of proof, and the failure to prov e any element is fata l. Barfield v. Howard M. Smith Company , 426 S.W .2d 834, 838 (Tex. 1968); Mangrum v. Conrad , 185
S.W .3d 602, 606 (Tex.App.--Da llas 2006, pet. denied)

. Enchilada ’s asser

ts that the parties orally ag ree d to terminate the lease , but Stoll er conce aled his true intent to require Enchilada ’s t o provide written notice as require d by the lease

. We understand Ench il a d a ’ s to a r g u e th a t St o ll e r f alsely ag ree d that Enchilada ’s could terminate the lease

. Stoll er and Waldrop contra dicted each other reg arding exactly what was said at t he October 2 0 0 5 meeting

. After Waldrop told Stoll er that Enchilada ’s might have to move if the problems with the
p ro p erty wer e not resolved, Stoll er retorte d, “Move.” Given the contra dictions in the testimon y , Enchilada ’s has not conclusively proven that L &S made a false repr esenta tion or conce aled materia l fac ts. Bec ause Enc hilada’s did not conclusively prove the first eleme nt of its affirma tive defe nse, it has waived its third issue. Finally , Enchilada ’s claims that L &S is estopped from collecting monthly rent beca use L &S asked Enchilada ’s to surre nder phy sical possession of the lease d premises prior to expiration of the notice period. Enchilada ’s has not identified any false re p re s en t at i on made by L &S or Stoll er in

connec tion with this specific estoppel claim. Having failed to conclusively prove its estoppel defe nse, Enchilada ’s h as waived I ssue Four

. We overr ule I ssues Three and Four and aff irm the judgme nt of the trial cour t.Marc h 24, 2010 ANN CRAWFORD McCL URE, J ustice

Be fore McClure, J., R ivera , J ., and Chew, Judge Chew, Judge, sitting by

assig nment