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Crown Constr. Co. v. Huddleston

Court of Appeals of Texas, Fourth District, San Antonio

December 17, 1997, Delivered ; December 17, 1997, Filed

No. 04-96-00991-CV

Reporter

961 S.W.2d 552; 1997 Tex. App. LEXIS 6452

Prior History: [**1] From the 224th Judicial District,

Bexar County, Texas. Trial Court No. 96-CI-15376.

Honorable David Peeples, Judge Presiding.

Disposition: Affirmed.

Core Terms

notice, lease, trial court, delivery, personal delivery, equitable

relief, contends, summary judgment motion, deliver,

ambiguous, door, summary judgment, issue of fact, days,

tape, no writ, lessee, terms of the lease, matter of law,

provides, lessor, certified mail, renewal option, forfeiture,

clarified, expired, argues, renew, non-movant, delayed

Case Summary

Procedural Posture

Appellant sought review of summary judgment granted in

favor of appellee by the 224th Judicial District, Bexar

County (Texas) in a declaratory judgment action regarding

a lease renewal dispute.

Overview

Appellant sought review after the trial court granted summary

judgment in favor of appellee in a declaratory judgment

action regarding a lease renewal dispute. Appellant

contended, among other things, that the trial court erred

because a fact issue existed as to whether sufficient notice

was given to extend the lease in question, and whether

appellant was entitled to equitable relief. The court found

that appellant failed to properly deliver notice of its intent to

exercise its lease renewal option under the terms of the

lease. Specifically, the lease in question provided for notice

either by personal deliver to appellee, or to appellee’s agent,

or by certified mail. Here, appellant failed to exercise

personal delivery because the renewal notice was only

tapped to the agent’s door. Further, the court found that the

facts surrounding the delayed delivery of notice did not

warrant an award of equitable relief. Accordingly, the

judgment was affirmed.

Outcome

The summary judgment, which was granted in favor of

appellee in the lease renewal dispute with appellant, was

affirmed because the court concluded that appellant failed to

give sufficient notice of given to extend the lease in

question, and was not entitled to equitable relief.

LexisNexis® Headnotes

Civil Procedure > ... > Defenses, Demurrers & Objections >

Affirmative Defenses > Burdens of Proof

Civil Procedure > Appeals > Summary Judgment Review >

General Overview

Civil Procedure > Appeals > Summary Judgment Review >

Standards of Review

Civil Procedure > ... > Summary Judgment > Burdens of

Proof > General Overview

Civil Procedure > ... > Summary Judgment > Burdens of

Proof > Movant Persuasion & Proof

Civil Procedure > ... > Summary Judgment > Hearings > General

Overview

Civil Procedure > ... > Summary Judgment > Motions for

Summary Judgment > General Overview

Civil Procedure > ... > Summary Judgment > Entitlement as

Matter of Law > General Overview

HN1 In order to prevail on a motion for summary judgment,

the movant either must prove that no genuine issue of

material fact exists, affirmatively disprove at least one

element of the plaintiff’s cause of action, or prove an

affirmative defense as a matter of law. In any case, the

movant bears the burden of proving that he is entitled to

judgment as a matter of law. On review, the appellate court

MATT SOLIDAY
must take as true all evidence favoring the non-movant and

indulge every reasonable inference in his favor.

Civil Procedure > Pleading & Practice > Pleadings > Answers

Civil Procedure > ... > Pretrial Judgments > Default & Default

Judgments > General Overview

Civil Procedure > ... > Pretrial Judgments > Default & Default

Judgments > Default Judgments

Civil Procedure > Judgments > Summary Judgment > General

Overview

Civil Procedure > Appeals > Summary Judgment Review >

General Overview

Civil Procedure > Appeals > Summary Judgment Review >

Appealability

Civil Procedure > ... > Summary Judgment > Burdens of

Proof > General Overview

Civil Procedure > ... > Summary Judgment > Motions for

Summary Judgment > General Overview

HN2 A non-movant that fails to file a response in a

summary judgment proceeding is limited to raising legal

sufficiency points on appeal. While summary judgments

must stand or fall on their own merits and the non-movant’s

failure to answer cannot result in a default summary

judgment, if the non-movant does in fact fail to respond, all

that may be argued on appeal is whether the movant

established his right to summary judgment as a matter of

law.

Civil Procedure > ... > Summary Judgment > Supporting

Materials > General Overview

Civil Procedure > ... > Summary Judgment > Supporting

Materials > Affidavits

HN3 An affidavit is an appropriate means of responding to

a motion for summary judgment.

Contracts Law > Contract Interpretation > General Overview

Contracts Law > Defenses > Ambiguities & Mistakes > General

Overview

HN4 Whether a contract is ambiguous is a question of law

for the court to decide. If the contract is ambiguous, then the

question of the true meaning of the contract becomes one of

fact for a jury to decide.

Contracts Law > Contract Interpretation > General Overview

Contracts Law > Contract Interpretation > Ambiguities &

Contra Proferentem > General Overview

Contracts Law > Defenses > Ambiguities & Mistakes > General

Overview

Contracts Law > Formation of Contracts > Mistake > General

Overview

HN5 If a contract is worded so that a court may properly

give it a definite or certain legal meaning or interpretation,

then it is not ambiguous. A contract is ambiguous only when

there exists a genuine uncertainty as to which of two

meanings is proper. However, an ambiguity does not arise

simply because the parties advance conflicting interpretations

of the contract. In order for an ambiguity to exist, both

interpretations must be reasonable.

Contracts Law > Contract Interpretation > General Overview

HN6 All terms of a contract must be given effect where

possible.

Contracts Law > Remedies > Equitable Relief > General

Overview

Contracts Law > Types of Contracts > Option Contracts

HN7 It is well settled that strict compliance with the

provisions of an option contract is mandatory in nature, and,

generally, equitable relief will not be extended absent such

compliance. Acceptance of an option, unless excused in rare

cases of equity, must be unqualified, unambiguous, and

strictly in accordance with the terms of the agreement

Accordingly, a failure to exercise an option according to its

terms, including untimely or defective acceptance, is simply

ineffectual, and legally amounts to nothing more than a

rejection.

Civil Procedure > ... > Relief From Judgments > Excusable

Mistakes & Neglect > Mistake

Civil Procedure > Judgments > Relief From Judgments >

Independent Actions

Contracts Law > Defenses > Ambiguities & Mistakes > General

Overview

Contracts Law > Defenses > Unconscionable > General

Overview

Contracts Law > Remedies > Equitable Relief > General

Overview

Contracts Law > Types of Contracts > Option Contracts

HN8 In order to establish a right to relief under the doctrine

of unconscionable equity, the party seeking equitable relief

must show (1) that the delayed failure to exercise an option

contract was the result of an honest and justifiable mistake;

and (2) that, if the delay is not excused, unconscionable

hardship will result.

Page 2 of 8

961 S.W.2d 552, *552; 1997 Tex. App. LEXIS 6452, **1

MATT SOLIDAY
Civil Procedure > ... > Defenses, Demurrers & Objections >

Affirmative Defenses > General Overview

Civil Procedure > ... > Defenses, Demurrers & Objections >

Affirmative Defenses > Unclean Hands

Contracts Law > Types of Contracts > Lease Agreements >

General Overview

HN9 The doctrine of unclean hands is applied to one whose

own conduct in connection with the matter at issue has been

unconscientious, unjust, or marked by a want of good faith,

or one who has violated the principles of equity and

righteous dealing.

Civil Procedure > ... > Defenses, Demurrers & Objections >

Affirmative Defenses > Unclean Hands

Contracts Law > Remedies > Equitable Relief > General

Overview

HN10 It is well settled that a party seeking equity cannot

come into a court with unclean hands.

Civil Procedure > Appeals > Appellate Jurisdiction > Final

Judgment Rule

HN11 While it is true that there can be only one final

appealable judgment in any lawsuit, Tex. R. Civ. P. 301, as

long as the trial court has plenary power, a judgment is not

technically final.

Civil Procedure > Judgments > Relief From Judgments >

Altering & Amending Judgments

Governments > Courts > Authority to Adjudicate

HN12 Pursuant to Tex. R. Civ. P. 329b, the trial court has the

power to correct, modify, vacate, or reform a judgment

during the 30 days that it retains plenary jurisdiction over a

case.

Counsel: FOR APPELLANT: Samuel H. Bayless, A. W.

Worthy, GRESHAM, DAVIS, GREGORY, WORTHY &

MOORE, P.C., San Antonio, TX.

FOR APPELLEE: Thomas G. Kemmy, San Antonio, TX.

Judges: Opinion by: Karen Angelini, Justice. Sitting: Phil

Hardberger, Chief Justice, Alma L. Lopez, Justice, Karen

Angelini, Justice.

Opinion by: KAREN ANGELINI

Opinion

[*554] Appellant, Crown Construction Company,

Inc.(′′Crown′′), appeals from the granting of summary

judgment in favor of appellee, H. Glenn Huddleston

(′′Huddleston′′) in a declaratory judgment action regarding a

lease renewal dispute. In five points of error, Crown

contends that the trial court erred in granting Huddleston’s

motion for summary judgment because: (1) a fact issue

exists as to whether sufficient notice was given to extend the

lease in question; (2) Crown is entitled to equitable relief as

a matter of law; (3) a fact issue exists as to whether Crown

is entitled to equitable relief; (4) a fact issue exists as to

whether Crown’s delay in giving notice was due to a cause

beyond its control; [**2] and (5) the trial court erred in

failing to identify the real property at issue in its order

granting summary judgment. Crown also brings a

supplemental point of error in which it contends, generally,

that Huddleston failed to establish that there are no issues of

fact in dispute and that he is entitled to judgment as a matter

of law. We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

In 1976, Huddleston leased commercial property to

Southland Corporation for a term of twenty years. In July of

1992, Crown took the lease by assignment. Under the terms

of the lease, the lease terminated on August 31, 1996.

However, the lease provided for a five-year renewal option,

which required written notification of the exercise of the

option on or before June 2, 1996.

Crown contends that it gave written notice of its intent to

renew the lease by taping the notice to the door of

Huddleston’s office on June 2, 1996. Huddleston denies

receipt of that notice. On June 12, 1996, Crown delivered a

second notice to Huddleston, dated June 2, 1996. Huddleston

acknowledges receiving the second notice. Huddleston,

however, refused to renew the lease because Crown’s notice

[**3] of its intent to renew the lease was not timely given.

Huddleston further contends that at the time he denied the

lease renewal, Crown was in default of the lease provisions

by failing to pay common area maintenance fees, tax

escalation fees, and insurance escalation fees.

Crown brought suit against Huddleston, seeking a judgment

declaring that it validly exercised it option to extend the

term of the lease, or, in the alternative, that it is excused

from strict compliance with the notice provision in the lease

based upon principles of equity. Huddleston filed a motion

for summary judgment, alleging that Crown failed to timely

exercise its option under the lease and that Crown is not

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961 S.W.2d 552, *552; 1997 Tex. App. LEXIS 6452, **1

MATT SOLIDAY
entitled to judgment based [*555] upon equity because it

was in default of the lease agreement at the time it attempted

to exercise its option. Crown filed an affidavit in response to

Huddleston’s motion. Following a hearing, the trial court

granted Huddleston’s motion for summary judgment. All

other issues raised by the pleadings in this case were

severed and assigned a new cause number.

ARGUMENT AND AUTHORITY

A. Standard of Review

HN1

In order to prevail on a motion for summary [**4]

judgment, the movant must either prove that no genuine

issue of material fact exists, affirmatively disprove at least

one element of the plaintiff’s cause of action, or prove an

affirmative defense as a matter of law. Nixon v. Mr. Property

Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Ross v.

Arkwright Mut. Ins. Co., 892 S.W.2d 119, 127 (Tex.

App.--Houston [14th Dist.] 1994, no writ). In any case, the

movant bears the burden of proving that he is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). On

review, the appellate court must take as true all evidence

favoring the non-movant and indulge every reasonable

inference in his favor. Park Place Hosp. v. Milo, 909 S.W.2d

508, 510 (Tex. 1995); Montgomery v. Kennedy, 669 S.W.2d

309, 311 (Tex. 1984).

B. Scope of Review

Huddleston argues that, because Crown failed to respond to

Huddleston’s motion for summary judgment at the trial

level, the scope of Crown’s appeal should be limited. It is

true that HN2 a non-movant who fails to file a response in

a summary judgment proceeding is limited to raising legal

sufficiency points on appeal. City of Houston v. Clear Creek

Basin Auth. [**5] , 589 S.W.2d 671, 678 (Tex. 1979);

McCord v. Memorial Medical Center Hosp., 750 S.W.2d

362, 364 (Tex. App. --Corpus Christi 1988, no writ). ′′Issues

not expressly presented to the trial court by written motion,

answer or other response shall not be considered on appeal

as grounds for reversal.′′ McConnell v. Southside Ind.

School Dist., 858 S.W.2d 337, 343 (Tex. 1993) (quoting

TEX. R. CIV. P. 166a(c)). While summary judgments must

stand or fall on their own merits and the non- movant’s

failure to answer cannot result in a ′′default′′ summary

judgment, if the non-movant does in fact fail to respond, all

that may be argued on appeal is whether the movant

established his right to summary judgment as a matter of

law. Id.; Clear Creek, 589 S.W.2d at 678.

In this case, Crown did not file a response to Huddleston’s

motion for summary judgment, but it did file, in opposition

to Huddleston’s motion, the affidavit of Masood Chughtai,

an owner of Crown Construction Company, Inc. Chughtai’s

affidavit controverted many of the facts alleged in

Huddleston’s motion. There is a conflict in authority

regarding whether the filing of an affidavit alone in response

to a motion for summary [**6] judgment qualifies as a

response as contemplated by Rule 166a. Compare Shank,

Irwin,Conant & Williamson v. Durant, Mankoff, Davis,

Wolens & Francis, 748 S.W.2d 494, 498 (Tex. App.--Dallas

1988, no writ) (holding affidavit did not constitute written

answer or other response expressly presenting non-movant’s

issues to the trial court) with Hall v. Stephenson, 919 S.W.2d

454, 462 (Tex. App.--Fort Worth 1996, writ denied) (finding

that ′′affidavits alone are an appropriate way to respond to a

summary judgment motion′′); Rosas v. Bursey, 724 S.W.2d

402, 408 (Tex. App.--Fort Worth 1986, no writ) (finding that

an ′′affidavit is an appropriate means of responding to a

motion for summary judgment′′) and Engel v. Pettit, 713

S.W.2d 770, 772 (Tex. App.--Houston [14th Dist.] 1986, no

writ) (construing portion of the Rule 166a(c) which provides

that a nonmovant may file ′′an opposing affidavit or other

written response′′ within seven days of a hearing to mean

that the filing of an affidavit alone, without any additional

responsive document, is adequate as a response under the

rule); see TIMOTHY PATTON, SUMMARY JUDGMENTS

IN TEXAS § 4.04 (2nd ed. 1996). [**7]

We find that HN3 an affidavit is an appropriate means of

responding to a motion for summary judgment. We further

find that, in this case, Crown’s affidavit placed the court and

Huddleston on notice of issues which raise fact questions in

the case, thus preserving those issues for appeal. Our review

of [*556] Crown’s appeal will, therefore, go beyond a legal

sufficiency review.

C. Adequate Notice

1. Ambiguity in the Lease Agreement

In its first point of error, Crown contends that the trial court

erred in granting summary judgment in favor of Huddleston

because a fact issue exists regarding whether, under the

terms of the lease, notice affixed to Huddleston’s door

constituted sufficient notice to extend the lease. The lease at

issue provides that Crown had an option to extend the term

of the lease for a period of five years. The lease further

provides that, if Crown intended to exercise the option, it

was required to give Huddleston written notice at least

ninety days prior to the expiration of the then current lease

term. As to the term ′′notice,′′ the lease states that:

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961 S.W.2d 552, *554; 1997 Tex. App. LEXIS 6452, **3

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Any notices required or permitted hereunder shall be in

writing and delivered either in person [**8] to the other

party or the other party’s authorized agent, or by United

States Certified Mail, Return Receipt Requested, postage

fully prepaid....

Crown contends, first, that the phrase ′′delivered in person′′

does not require in hand delivery to the receiving party, but

that it refers to the action taken by the delivering party.

Therefore, according to Crown, it personally delivered the

notice to Huddleston, under the terms of the lease, when Mr.

Chughtai, Crown’s owner, personally taped the notice to

Huddleston’s door. Crown goes on to argue that because

Huddleston denies receiving the notice, a fact issue exists as

to whether the notice was given. In the alternative, Crown

argues that the lease agreement is ambiguous as it fails to

specifically define personal delivery, and as such, the case

should be remanded for a determination of the intended

meaning of the lease.

Accordingly, before the issue of whether Crown did or did

not tape the notice to the door is reached, it will be

necessary to determine whether such a delivery constitutes

personal delivery as contemplated by the lease. As discussed

above, Crown argues that personal delivery refers to the

action of the deliverer only, [**9] while Huddleston

contends that personal delivery means both personal delivery

by the deliverer and personal receipt by the receiver.

HN4 Whether a contract is ambiguous is a question of law

for the court to decide. Friendswood Dev. Co. V. McDade +

Co., 926 S.W.2d 280, 282 (Tex. 1996). If the contract is

ambiguous, then the question of the true meaning of the

contract becomes one of fact for a jury to decide. Columbia

Gas Trans. Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587,

589 (Tex. 1996).

HN5 If a contract is worded so that a court may properly

give it a definite or certain legal meaning or interpretation,

then it is not ambiguous. Friendswood, 926 S.W.2d at 282.

A contract is ambiguous only when there exists a genuine

uncertainty as to which of two meanings is proper. Columbia

Gas, 940 S.W.2d at 589. However, an ambiguity does not

arise simply because the parties advance conflicting

interpretations of the contract. Forbau v. Aetna Life Ins. Co.,

876 S.W.2d 132, 134 (Tex. 1994). In order for an ambiguity

to exist, both interpretations must be reasonable. National

Union Fire Ins. Co. v. CBI Industries, Inc., 907 S.W.2d 517,

520 (Tex. 1995).

In this case, [**10] we find no ambiguity in the notice

provision of the contract. Crown’s interpretation of ′′personal

delivery′′ is not reasonable when viewed in light of the

remainder of the notice provision of the lease. See Coker v.

Coker, 650 S.W.2d 391, 394 (Tex. 1983) (holding ambiguity

in a contract is determined by looking at the entire contract

and giving effect to each of its provisions). The lease

provides for notice either by personal delivery to the

recipient or to the recipient’s agent or by certified mail,

return receipt requested. To interpret personal delivery to

mean that the delivering party may simply drop off notice at

the recipient’s office with no guarantee that it was ever

received would be at odds with the remainder of the notice

provision. Specifically, such an interpretation would discount

the requirement that delivery of notice by mail must be via

certified mail, return receipt requested.

The certified mail requirement emphasizes the importance

of confirmation of receipt of notice. Otherwise, delivery by

regular mail [*557] would have been acceptable under the

lease. The apparent purpose of certified mail, return receipt

requested is to provide proof of delivery. [**11] The

corollary to that requirement in personal delivery situations

would be actual person to person delivery. Absent such a

requirement, there would be, as there is in this case, no

proof of the personal delivery. It is not a reasonable

interpretation of the lease to say that where there are two

equally acceptable means of delivering notice, one option

would require proof of delivery while one option would not.

Further, the personal delivery requirement allows for delivery

to the receiving party or his agent. If personal delivery

meant that the delivering party could tape notice to the

receiving party’s door, there would be no need for the

option of delivering to the receiving party’s agent. HN6 All

terms of the contract must be given effect where possible.

Coker, 650 S.W.2d at 394. Accordingly, the only reasonable

interpretation of the term ′′delivery in person′′ in the lease at

issue includes a requirement that the delivery be actual hand

to hand delivery. Therefore, by taping notice to Huddleston’s

door, Crown failed to properly deliver notice of its intent to

exercise its lease renewal option under the terms of the

lease. Crown’s first point of error is overruled.

2. Events [**12] Beyond Crown’s Control

In its fourth point of error, Crown contends that the trial

court erred in granting Huddleston’s motion for summary

judgment because a fact issue exists as to whether Crown’s

delay in giving notice was due to events beyond Crown’s

control. In making this argument, Crown relies on paragraph

38D of the lease, which provides that:

Whenever a period of time is herein provided for LESSOR

or LESSEE to do or perform any act or thing, LESSOR shall

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MATT SOLIDAY
not be liable or responsible for, and there shall be excluded

from the computation of such period of time, any delays due

to strikes, riots, acts of God, shortages of labor or materials,

national emergency, acts of a public enemy, governmental

restrictions, laws or regulations, or any other cause or

causes, whether similar or dissimilar to those enumerated,

beyond its reasonable control.

Crown argues that the summary judgment evidence in this

case shows that Crown attempted to deliver notice of its

intent to extend the lease on June 2, 1996, but that it was

prohibited from doing so because Huddleston’s office was

closed and Huddleston was not there to receive the notice in

person. Crown contends [**13] that whether Huddleston

was in his office, or could otherwise be found, was a matter

beyond Crown’s control. Therefore, according to Crown,

the fact that it did not actually deliver notice to Huddleston

until June 12, 1996, should not be considered in determining

whether the notice was timely given. We disagree.

First, a reasonable interpretation of paragraph 38D is that it

applies only to Huddleston, the lessor. The paragraph states

that, in regard to time periods in which the lessor or lessee

has to perform under the lease, ′′the lessor shall not be liable

or responsible for...any cause...beyond its reasonable

control.′′ Under this interpretation of the lease, Crown, as

the lessee, is not entitled to the protection afforded by

paragraph 38D.

In any event, it is undisputed that Crown did not attempt to

deliver notice after allegedly taping it to Huddleston’s door

until June 12, 1996, ten days after the option deadline

expired. Even if we were to construe Huddleston’s absence

from his office on a Sunday as an event beyond Crown’s

control, there were at least eight business days following

that uncontrollable event in which Crown could have

reattempted delivery. Crown does not [**14] allege that

events beyond its control occurred on June 3, 1996, through

June 12, 1996. Therefore, paragraph 38D does not exonerate

Crown from the untimely delivery of its notice, even if we

do not consider June 2, 1996, in the computation of time.

Crown’s fourth point of error is overruled.

D. Equity and the Doctrine of Unconscionable Forfeiture

In its second point of error, Crown contends that it is

entitled to equitable relief from the effect of its untimely

notice as a matter of law. In its third point of error, Crown

contends that there is a fact issue regarding whether it is

entitled to equitable [*558] relief. Crown bases its equitable

argument on the fact that it delivered notice to Huddleston

only ten days after the option expired and that it would be

substantially harmed by forfeiture of the lease while

Huddleston would suffer no harm if the lease were extended.

We begin by noting the strict compliance requirement in

option contract situations. HN7 It is well settled that strict

compliance with the provisions of an option contract is

mandatory in nature, and, generally, equitable relief will not

be extended absent such compliance. See Jones v. Gibbs,

133 [**15] Tex. 627, 130 S.W.2d 265, 271 (1939). Acceptance

of an option, unless excused in rare cases of equity, must be

unqualified, unambiguous, and strictly in accordance with

the terms of the agreement. Zeidman v. Davis, 161 Tex. 496,

342 S.W.2d 555, 558 (1961). Accordingly, a failure to

exercise an option according to its terms, including untimely

or defective acceptance, is simply ineffectual, and legally

amounts to nothing more than a rejection. Atterbury v.

Brison, 871 S.W.2d 824, 829 (Tex. App.--Texarkana 1994,

writ denied) (Cornelius, J., concurring).

The doctrine of unconscionable, inequitable, or

disproportionate forfeiture was established in the case of

Jones v. Gibbs. The court in that case stated that a lessee’s

delay in giving written notice of its intention to exercise a

lease renewal option should be excused when the delay has

been slight, the loss to the lessor would be small, and undue

hardship would result if relief was withheld. 130 S.W.2d at

272. At least one court has held the language in Jones to be

dicta and refused to apply the doctrine in situations in which

a lessee simply neglected to exercise its renewal option on

time. See Reynolds-Penland [**16] Co. v. Hexter &

Lobello, 567 S.W.2d 237, 240 (Tex. Civ. App. --Dallas 1978,

writ dism’d by agr.). This court, however, has recognized

the doctrine and applied it in a case involving the delayed

exercise of an option to extend a lease. See Inn of the Hills,

Ltd. v. Schulgen & Kaiser, 723 S.W.2d 299, 301 (Tex.

App.--San Antonio 1987, writ ref’d n.r.e.). HN8 In order to

establish a right to relief under the doctrine of unconscionable

equity in cases such as this, the party seeking equitable

relief must show (1) that the delayed failure to exercise an

option contract was the result of an honest and justifiable

mistake; and (2) that, if the delay is not excused,

unconscionable hardship will result. See Jones, 130 S.W.2d

at 273; Casa El Sol- Acapulco, S.A. v. Fontenot, 919 S.W.2d

709, 715 (Tex. App. --Houston [14th Dist.] 1996, writ

dism’d by agr.).

In this case, the evidence, other than whether the notice was

taped to Huddleston’s door on June 2, 1996, is undisputed.

Crown acknowledges that it was aware, prior to June 2,

1996, that the option expired on that date. It also

acknowledges that after it allegedly taped the notice to

Huddleston’s office door, it did [**17] not attempt to

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MATT SOLIDAY
contact Huddleston again until June 12, 1996. Then, on June

12, 1996, Crown delivered notice in writing to Huddleston’s

agent. Crown never confirmed receipt of the June 2 notice.

In the face of undisputed facts, the propriety of equitable

relief is a question of law for the court, subject to an abuse

of discretion standard of review on appeal. Fontenot, 919

S.W.2d at 715. Because the facts surrounding Crown’s

equitable argument are undisputed, Crown’s third point of

error alleging that a fact issue exists regarding whether

equity should be applied in this case is overruled. We must

now consider, whether the trial court erred in finding that

Crown was not entitled to equitable relief as a matter of law.

We find that the facts surrounding the delayed delivery of

notice in this case do not warrant an award of equitable

relief. As discussed above, in order to be entitled to

equitable relief, Crown must demonstrate that its delayed

notice was the result of an honest and justifiable mistake.

See Jones, 130 S.W.2d at 273. Such a mistake was shown in

Jones where the lessee made his lease renewal option

payment to the wrong party based upon a previous, but no

[**18] longer effectual, communication by the lessor. Id. at

267. In Inn of the Hills, this court found an honest and

justifiable mistake where the lease renewal option payment

was due shortly after the lease assignment and [*559] the

new lessee was unaware of the option deadline. Inn of the

Hills, 723 S.W.2d at 300.

In this case, Crown has failed to show an honest and

justifiable mistake. The summary judgment evidence

indicates that Crown was aware of the option deadline when

it assumed the lease. It was also aware of the option

deadline shortly before it expired. However, knowing the

lease required the option to be delivered either personally or

via certified mail, Crown waited until the day the option

expired to tape the notice to Huddleston’s door. Then,

Crown never attempted to confirm delivery of the notice. In

both Jones and Inn of the Hills, the lessees attempted to

remedy their mistakes as soon as they were discovered. See

Jones, 130 S.W.2d at 273; Inn of the Hills, 723 S.W.2d at

300.

If, in fact, it was a mistake for Crown to believe it would

find Huddleston at his office in order to personally deliver

the notice to him in a timely manner, [**19] the mistake

would not be justified since Crown did not attempt to again

deliver the notice to Huddleston until twelve days later.

Under these circumstances, it is difficult to say that the trial

court abused its discretion in finding that Crown was not

entitled to equitable relief.

Further, Huddleston asserts the doctrine of unclean hands in

opposition to Crown’s request for equity. Specifically,

Huddleston urges that Crown cannot claim entitlement to

equitable relief because Crown was in breach of the lease at

the time it attempted to exercise its option. Crown

acknowledges that it has failed to pay common area

maintenance fees as required by the lease; however, because

the lease provides that such failure shall not result in a

forfeiture of the lease, Crown argues that it’s failure to pay

the fees cannot be used as a bar to its request for equitable

relief. Crown’s reasoning is flawed. Even if failure to pay

common area maintenance fees cannot work to cause a

forfeiture of the actual lease, it does constitute a breach of

the terms of the lease. This is not a situation involving the

forfeiture of an ongoing lease; rather, it involves the failure

to exercise an option to extend the [**20] original lease

term. Therefore, there is nothing to prohibit Crown’s breach

from operating as a bar to Crown’s assertion of an equitable

remedy in its attempt to renew the lease.

HN9 The doctrine of unclean hands is applied to one whose

own conduct in connection with the matter at issue has been

unconscientious, unjust, or marked by a want of good faith,

or one who has violated the principles of equity and

righteous dealing. Ligon v. E.F. Hutton & Co., 428 S.W.2d

434, 437 (Tex. Civ. App.--Dallas 1968, writ ref’d n.r.e.); 34

TEX. JUR .3d Equity § 32 (1984). Because Crown is in

breach of the lease it is now attempting to extend, it may not

seek relief from the provisions of that lease based upon

claims of equity. HN10 It is well settled that a party seeking

equity cannot come into a court with unclean hands.

Schenck v. Ebby Halliday Real Estate, Inc., 803 S.W.2d 361,

366 (Tex. App.--Fort Worth 1990, no writ); Village Medical

Center, Ltd. v. Apolzon, 619 S.W.2d 188, 191 (Tex. Civ.

App.--Houston [1st Dist.] 1981, no writ). Crown’s second

point of error is overruled.

E. Validity of the Judgment

In its fifth point of error, Crown contends that the judgment

[**21] in this case is invalid because it does not describe the

property at issue. The original summary judgment order,

entered October 17, 1996, provides that Huddleston shall

′′have restitution and possession of the described premises.′′

However, the judgment fails to describe the premises. On

October 24, 1996, the trial court entered an order in

response to Huddleston’s motion to clarify the original

judgment. The second order clarifies the first by stating that

′′the premises for which Huddleston was granted possession

in the final judgment of October 17, 1996, is located at 8001

Broadway, San Antonio, Bexar County, Texas 78209.′′

Crown contends that the second order is not effective to

correct or clarify the first order because it fails to revoke and

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MATT SOLIDAY
replace the first order. Thus, according to Crown, the second

order is a nullity and the first judgment controls in this case.

Crown argues that because the first judgment fails to [*560]

identify the property at issue, it is unenforceable and the

case should be reversed. HN11 While it is true that there can

be only one final appealable judgment in any lawsuit, TEX.

R. CIV. P. 301, as long as the trial court has plenary power,

a judgment is [**22] not technically final. Fruehauf Corp. v.

Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). HN12 The trial

court has the power to correct, modify, vacate, or reform a

judgment during the thirty days that it retains plenary

jurisdiction over a case. TEX. R. CIV. P. 329b; Faulkner v.

Culver, 851 S.W.2d 187, 188 (Tex. 1993).

Crown relies on Mullins v. Thomas, 136 Tex. 215, 150

S.W.2d 83 (1941), for the proposition that the entry of a

second judgment in the same case is a nullity if there is

nothing to show that the first was vacated. 150 S.W.2d at 84.

What Crown fails to recognize, however, is that Mullins and

its progeny deal with cases in which there are two

purportedly final judgments. See, e.g., City of Westlake Hills

v. State, 466 S.W.2d 722, 726-27 (Tex. 1971); Mullins, 150

S.W.2d at 84; Azbill v. Dallas Co. Child Protective Serv.,

860 S.W.2d 133, 139 (Tex. App.--Dallas 1993, no writ). In

this case, there is only one judgment. Seven days after the

judgment was entered, the trial court entered an order in

which it specifically referred to the judgment at issue and

then clarified the terms of that judgment. The order clarifying

the judgment does not [**23] purport to supersede or vacate

the judgment. It simply defines the judgment, leaving no

question as to either the disposition of the case or to what

property the judgment refers.

We find that the trial court’s clarification order was a valid

exercise of its plenary power over the judgment. Accordingly,

the first judgment, as clarified, became final and enforceable

thirty days after the clarification order was entered. See

Check v. Mitchell, 758 S.W.2d 755 (Tex. 1988) (stating that

if a judgment is modified, corrected, or reformed in any

respect the appellate timetable begins to run as of the date

of the correction). Crown’s fifth point of error is overruled.

The judgment of the trial court is affirmed.

KAREN ANGELINI

JUSTICE

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MATT SOLIDAY