DISSENT and Opinion Filed February 10, 2020




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00151-CV

INLAND WESTERN DALLAS LINCOLN PARK LIMITED PARTNERSHIP AND RPAI
              SOUTHWEST MANAGEMENT, LLC, Appellants
                                V.
    HAI NGUYEN AND MAI NGUYEN, INDIVIDUALS, D/B/A ROMIER’S NAIL
                        BOUTIQUE, Appellees

                       On Appeal from the 68th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-15-08114

         DISSENTING OPINION FROM COURT’S DENIAL OF
                 EN BANC RECONSIDERATION
                          Opinion By Chief Justice Robert D. Burns, III

       After a majority of the Court voted to grant reconsideration en banc, the Court sitting en

banc heard the parties’ oral arguments. Subsequent to oral argument some members of the Court

changed their position; they felt that en banc reconsideration was improvidently granted.

Consequently, the Court denies appellees’ motion for reconsideration. However, because I find

sufficient evidence supporting the jury’s verdict for negligent misrepresentation, and because the

case presents extraordinary circumstances, I dissent.

       Specific, narrow facts frame this tort case, and the arguments and defenses not raised

mandate the outcome in equal measure with those arguments and causes of action that were raised.

Here, a commercial tenant relied on his landlord’s acceptance of oral notice exercising the tenant’s

right to automatically renew a lease. Although the lease required written notice to exercise the
renewal option and included a no-waiver provision, the landlord had previously accepted oral

notice for exercise of the renewal option, and the tenant’s corroborated and unrebutted testimony

before the jury established acceptance of his renewal notice. In fact, at trial, before the jury, two

of the landlord’s representatives admitted the tenant was entitled to rely on the acceptance of his

oral renewal. Given these specific facts, the omission of common and obvious defenses upon

which many similar cases rest, and our obligation to construe the evidence upon which reasonable

jurors could disagree in support of the jury’s verdict, I would reverse liability on the fraudulent

inducement claim but affirm the judgment with respect to liability for negligent misrepresentation.

I would also reverse the damages awarded for “mitigation” and “property damage” for negligent

misrepresentation. But because there is some evidence of the correct measure of damages under

the negligent misrepresentation claim, I would remand for a new trial.

           Appellate courts are duty bound to indulge every reasonable inference to sustain a jury

verdict when the evidence supports the verdict.                  This mandate, derived from the Seventh

Amendment to the United States Constitution and article I, section 15 of the Texas Constitution,

deserves more than the mere cursory glance given by the majority. The refusal of the panel, and

then the majority of our court, to square this judgment with the City of Keller1 decision and our

Court’s precedents, combined with the succession of panel opinions, must be a bitter pill for

appellees to swallow. And while the number of jury trials declines in our state, appellate courts

that discard the hard work of twelve citizens, the trial judge, the attorneys, and witnesses who all

did their level best to levy justice deserve some blame for that decline.

           We need trials, and a steady stream of them, to ground our normative standards—
           to make them sufficiently clear that persons can abide by them in planning their
           affairs—and never face the courthouse—the ultimate settlement. Trials reduce
           disputes, and it is a profound mistake to view a trial as a failure of the system. A
           well conducted trial is its crowning achievement.


1
    City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
                                                         –2–
Patrick E. Higginbotham, Judge Robert A. Ainsworth, Jr. Memorial Lecture, Loyola

University School of Law: So Why Do We Call Them Trial Courts?, 55 SMU L. REV. 1405,

1423 (2002). Or, as Chief Justice William Rehnquist noted:

           [W]hat many of those who oppose the use of juries in civil trials seem to ignore [is
           that t]he founders of our Nation considered the right of trial by jury in civil cases
           an important bulwark against tyranny and corruption, a safeguard too precious to
           be left to the whim of the sovereign, or, it might be added, to that of the judiciary.2

           Accordingly, we should affirm the jury’s verdict regarding liability on the negligent

misrepresentation claim, and because there is some evidence of recoverable out-of-pocket

consequential damages, remand for a new trial on the misrepresentation claim.



                                                        /Robert D. Burns III/
                                                        ROBERT D. BURNS III
                                                        CHIEF JUSTICE


Molberg, Partida-Kipness, and Nowell, JJ. join in this dissenting opinion.

170151HD.P05




2
    Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J., dissenting).

                                                          –3–
