                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 02-07-301-CV


ROBERT STANTON, AS                                                 APPELLANT
SUCCESSOR IN INTEREST TO
HOSPITALITY INNOVATORS, INC.

                                        V.

FORUM ARLINGTON                                                      APPELLEE
PROPERTIES, LTD.

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           FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

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      The trial court granted summary judgment for Appellee Forum Arlington

Properties, Ltd. (“Forum Arlington”) and found that Forum Arlington had

properly terminated a lease between it and Appellant Robert Stanton. Stanton

now appeals, arguing in one issue that the trial court erred by granting summary


      1
          … See Tex. R. App. P. 47.4.
judgment because a genuine issue of material fact exists as to whether the

lease was properly terminated. Because we hold that the lease was properly

terminated, we affirm.

        In July 1993, Hospitality Innovators, Inc. ("Hospitality") entered into a

ten-year commercial lease with Forum, Ltd., Forum Arlington’s predecessor.

The lease provided that Hospitality would use the premises to operate a dance

club.    An amendment to the lease allowed Hospitality to renew for two

successive five-year terms.

        Section fourteen of the lease required Hospitality to maintain throughout

the lease term an occurrence-based comprehensive general liability (“CGL”)

insurance policy and to name landlord Forum, Ltd. as an additional insured.

After the lease was executed, Forum Arlington acquired the property and

became the successor landlord under the lease.

        The Texas Secretary of State revoked Hospitality’s charter in February

1998, and according to Stanton, he became the successor in interest to the

lease as Hospitality’s sole stockholder. In 2003, however, attorney Michael

Hassett (the attorney who represented Stanton in the trial court in this case)

notified Forum Arlington in writing that he represented Midnight Country Club,

Inc. (“MCC”), d/b/a Desperado’s, the successor to Hospitality with respect to

the lease, and that his client was renewing the lease. Stanton contended in the

                                        2
trial court that MCC was a corporation he created to sublease from Hospitality

and to operate Desperado’s.

      In 2005, Angelinaisela Aranda filed a lawsuit against Desperado’s and

Forum Arlington, alleging that while she was at the club, she was injured by a

security guard working there. After the lawsuit was filed, Forum Arlington’s

insurance carrier sent a letter to Hospitality, noting that the lease required

Hospitality to carry insurance naming Forum Arlington as an additional insured

and to indemnify Forum Arlington. The insurance carrier requested Hospitality

to defend and indemnify Forum Arlington with respect to the Aranda lawsuit.

Several months later, an attorney for Forum Arlington sent a letter to an

attorney representing Desperado’s, noting that he had previously requested a

copy of any insurance policy covering Desperado’s, that the documents had not

been provided, and that he understood that Desperado’s either had not

maintained an insurance policy or had failed to list Forum Arlington as an

additional insured.   Consequently, Forum Arlington had filed a cross-action

against MCC d/b/a Desperado’s for breach of contract, contribution, and

indemnity. Subsequently, MCC filed for bankruptcy protection, and on February

8, 2006, the lawsuit was removed from the trial court’s active docket.

      On February 27, 2006, Stanton filed an original suit against Forum

Arlington; Forum, Ltd.; and Henry Real Estate Services, L.L.C. seeking a

                                      3
declaratory judgment and to interplead funds. He alleged that Forum Arlington

had failed and refused to comply with the lease terms in that it failed to provide

gas service, to light or stripe the parking areas, to provide electricity to the

property, and to maintain common areas in the shopping center.            He also

alleged that he did not know who had the right to receive rent payments

because Forum, Ltd. was the original landlord, but he believed that Forum

Arlington may have purchased the property, and Henry had directed Stanton to

make rent payments directly to Henry. Stanton asked the court to determine

the true landlord under the lease and to declare that the lease was still valid and

in full force and effect.

      Forum Arlington filed an answer and counterclaim asserting that it was

the landlord under the lease and seeking among other relief a declaration that

the lease had terminated.     Forum Arlington subsequently filed a motion for

partial summary judgment, seeking a declaration that the lease had terminated

by reason of default because Stanton had failed to indemnify Forum Arlington

in the Aranda lawsuit and because he had failed to maintain a general liability

insurance policy and name Forum Arlington as an additional insured. In his

response, Stanton alleged that he had provided Forum Arlington with a

certificate of insurance naming Forum Arlington as an additional insured.

Stanton attached to his response a certificate of insurance showing an effective

                                        4
date of April 11, 2006. Forum Arlington objected to this evidence on relevancy

grounds, arguing that the certificate was not relevant to the issue of whether

Stanton had maintained the required insurance policy at the time of the events

giving rise to the 2005 Aranda lawsuit. The trial court sustained the objection,

striking the evidence. After a hearing, the trial court granted Forum Arlington’s

motion, and Stanton now appeals.

      We review declaratory judgments under the same standards as other

judgments and decrees.2 Thus, we review a declaratory judgment decided by

summary judgment under the same standard of review by which we review

summary judgments generally.3 A plaintiff is entitled to summary judgment on

a cause of action if it conclusively proves all essential elements of the claim. 4

When reviewing a summary judgment, we take as true all evidence favorable




      2
       … Tex. Civ. Prac. & Rem. Code Ann. § 37.010 (Vernon 2008); Truck
Ins. Exch. v. Musick, 902 S.W.2d 68, 69 (Tex. App.—Fort Worth 1995, writ
denied).
      3
     … Tex. Civ. Prac. & Rem. Code Ann. § 37.010; Bowers v. Taylor, 263
S.W.3d 260, 264 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
      4
      … See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59,
60 (Tex. 1986).

                                        5
to the nonmovant, and we indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.5

      On appeal, Stanton argues that the trial court erred by granting summary

judgment on Forum Arlington’s declaratory judgment action because a material

fact issue exists as to whether the lease was properly terminated. We first

examine the lease to determine on what grounds Forum Arlington could

terminate the lease. The construction of an unambiguous lease is a question

of law.6 Neither party contends that the lease is ambiguous. We therefore look

at the lease’s terms as to termination, giving those terms their plain meaning

unless doing so would clearly defeat the parties’ intentions. 7 In doing so, we

are mindful of Texas law holding that a landlord cannot forfeit a lease for a

tenant’s failure to comply with lease provisions without first making demand for

performance unless the lease contract contains a waiver of such demand. 8




      5
     … IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004).
      6
      … Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554 (Tex.
2002).
      7
          … Id.
      8
      … Wendlandt v. Sommers Drug Stores Co., 551 S.W.2d 488, 490 (Tex.
Civ. App.—Austin 1977, no writ).

                                       6
      Section fourteen of the lease requires Hospitality to maintain an

occurrence-based CGL insurance policy, naming the landlord as an additional

insured. The section also requires Hospitality to provide to the landlord the

originals of the policy or duplicates of the originals. Section seventeen of the

lease provides that it is an event of default if Hospitality fails to comply with

any provision of the lease and, after notice, fails to cure or attempt to cure

within fifteen days. No particular form of notice is required, although section

twenty-seven requires any notice given under the lease to be in writing. Also

under section seventeen, upon an event of default, the landlord has the option

to terminate the lease by giving Hospitality twenty days’ notice.          Section

seventeen also provides that the landlord may take such action upon an event

of default without first providing any demand whatsoever. Thus, under the

terms of the lease, it was an event of default if Hospitality failed to maintain an

appropriate insurance policy naming Forum Arlington as an additional insured

and provide originals or duplicates of those policies to Forum Arlington and also

failed to cure or begin to cure its failure within fifteen days of notice of its

noncompliance with the lease. In the event of such default, Forum Arlington

could terminate the lease upon twenty days’ notice without first making any

further demand to Hospitality that it come into compliance or giving Hospitality

further opportunity to cure.

                                        7
      We next determine whether Forum Arlington established as a matter of

law that it properly terminated the lease in accordance with its terms. The

summary judgment evidence shows that on May 20, 2005, the insurance

carrier for Forum Arlington sent a letter to Hospitality notifying it that under the

lease, Hospitality was required to indemnify Forum Arlington and to have named

Forum Arlington as an additional insured on an insurance policy covering the

premises. The letter requested that Hospitality defend and indemnify Forum

Arlington in the Aranda lawsuit, and it requested a response within two weeks.

Then on August 8, 2005, an attorney for Forum Arlington sent a letter to an

attorney representing Desperado’s. The letter stated that “[a]s you are aware,

we have previously requested a copy of any and all insurance policies which

cover your client, Desperado’s. As of this date, we [have] not been provided

with any of those documents.”         The letter notes that the lease required

Desperado’s to maintain a policy of liability insurance and to have listed Forum

Arlington as an additional insured. The letter goes on to say that “[i]t is my

understanding that your client has either not maintained a policy of insurance

or has failed to list my client as an additional insured on such policy.” The

letter notes that because of this failure, Forum Arlington had filed a cross-action

against Desperado’s in the Aranda suit. This letter clearly notified Desperado’s




                                         8
attorney of Forum Arlington’s belief that his client was not in compliance with

the lease agreement.

      Furthermore, in an affidavit filed with Stanton’s response to the summary

judgment motion, he stated that MCC was a corporation he had formed to run

two adjacent nightclubs on the leased premises. Other evidence shows that

one of those clubs was Desperado’s. During the existence of an attorney-client

relationship, knowledge acquired by the attorney is imputed to the client.9

Furthermore, in the cross-action filed against MCC in the Aranda lawsuit, Forum

Arlington alleged that MCC “was required to maintain a policy of general liability

insurance” and that MCC “breached this contract.” Thus, by at least August

2005, Stanton had received written notice that he was not in compliance with

the lease terms and also that Forum Arlington was pursuing steps to assert its

legal rights resulting from the noncompliance. If this noncompliance continued

for fifteen days without Stanton curing or attempting to cure, then such

noncompliance would constitute an event of default under the lease, and Forum

Arlington could terminate the lease by giving twenty days’ notice.            The

evidence Stanton filed with his response to the summary judgment motion

shows that he did not obtain insurance until at least April 2006. Thus, he did



      9
      … Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584 (Tex.
2006).

                                        9
not cure    his   noncompliance   within   fifteen   days   of receiving   notice.

Accordingly, Forum Arlington could thereafter terminate the lease by providing

twenty days’ notice that it was doing so.

        On August 31, 2006, an attorney for Forum Arlington sent Stanton a

letter informing him that he was still in default and giving him twenty days’

notice to cure any default. The letter states that Stanton and Forum Arlington

had previously entered into a May 25, 2006 letter agreement in which Stanton

had agreed to provide proof that he had insurance coverage for the leased

premises. The letter then stated that Stanton had failed to do so. Although the

letter could have been more clear, it did notify Stanton’s attorney that Stanton

was in violation of the lease and specifically noted that the lease required

Hospitality to maintain liability insurance naming Forum Arlington as an

additional insured and that Stanton had failed to provide proof that he had such

insurance despite previous requests and a letter agreement on the subject. The

letter did not, however, state that the lease would be terminated in twenty

days.

        On September 21, 2006, Forum Arlington’s attorney sent a letter to

Stanton stating that the lease had been terminated as of September 19, 2006

due to Stanton’s unremedied default under section fourteen. If the August

2006 letter was not sufficiently clear to constitute a termination letter, the

                                      10
September letter did clearly give Stanton notice that Forum Arlington was

exercising its right to terminate the lease.    Thus, at the latest, the lease

terminated twenty days after the September 21, 2006 letter.

      The summary judgment evidence demonstrates that Stanton was required

to maintain insurance on the premises naming Forum Arlington as an additional

insured and to provide the originals or copies of such policy to Forum Arlington;

that as early as 2005, Forum Arlington had reason to believe that Stanton was

not in compliance with his lease; that in 2005 Forum Arlington notified Stanton

of its belief that he was not in compliance with his lease; and that in 2006,

Forum Arlington terminated the lease for the noncompliance. The certificates

of insurance that Stanton filed with his response did not demonstrate that he

had cured or had begun to cure his default within fifteen days of receiving

notice of his noncompliance in 2005.

      Furthermore, although Stanton argued that the lease could not have been

terminated for failure to provide proof of insurance because he had provided

such proof to Forum Arlington, there was no competent evidence that Stanton

had ever demonstrated to Forum Arlington that he had obtained insurance prior

to Forum Arlington’s exercise of its option to terminate the lease, despite Forum

Arlington’s statements to him that he was in violation of the lease and Forum

Arlington’s repeated requests that he provide proof of insurance. At the latest,

                                       11
Forum Arlington notified Stanton that it was terminating the lease on

September 21, 2006, and Stanton did not file his response to the summary

judgment motion with the certificate of insurance attached until November 14,

2006, more than twenty days after the termination notice. The only summary

judgment evidence that he had ever previously demonstrated to Forum

Arlington that he had insurance on the property was a statement in his affidavit

that certificates of liability insurance “have been provided to Forum Arlington

on more than one occasion.” He did not state when he had provided proof of

insurance, and specifically, he did not assert that he had provided proof before

Forum Arlington notified him that the lease had been terminated.            His

conclusory statement is not competent evidence that he had provided proof of

insurance to Forum Arlington before it terminated the lease or that he timely

cured or began to cure his noncompliance. 10

      Stanton further argues that the reason Forum Arlington gave him for

terminating the lease and the ground asserted by Forum Arlington in its motion

for summary judgment were that he had failed to provide proof of insurance,




      10
        … See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996)
(“Conclusory affidavits are not enough to raise fact issues.”); Residential
Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198 (Tex. App.—Fort Worth
2006, no pet.) (“A conclusory statement is one that does not provide the
underlying facts to support the conclusion.”).

                                      12
but that Forum Arlington’s reply in support of the motion asserted for the first

time that the issue was his failure to maintain insurance.      Specifically, he

contended that in its reply, Forum Arlington changed the issue to whether

Forum Arlington could properly terminate the lease for Stanton’s failure in 2006

to provide proof that he had maintained insurance in 2003. He contends that

by waiting until 2006 to provide notice of default with respect to 2003, Forum

Arlington made it impossible for him to cure the default and that such failure

could not be the basis for termination of the lease.

      Forum Arlington’s motion alleged that Stanton had breached the lease by

failing to maintain insurance. And when Forum Arlington requested Hospitality

and Stanton to provide proof of insurance, it was contending that Stanton had

failed to maintain insurance and was asking him to demonstrate, by providing

proof of insurance, that he was not in default. Furthermore, even if we were

to interpret Forum Arlington’s summary judgment motion as asserting as the

ground for termination merely that Stanton had failed to provide proof of

insurance rather than that he had failed to maintain insurance, as stated above,

there was sufficient evidence that Stanton had failed to provide such proof and

no competent evidence that Stanton provided proof to Forum Arlington before

it terminated the lease.




                                      13
         Because Stanton caused an event of default by failing to maintain

insurance and to provide the originals or copies of an insurance policy to Forum

Arlington and by failing to cure this noncompliance within fifteen days of being

notified of the matter, and because Forum Arlington complied with its obligation

under the lease to provide twenty days’ notice before terminating the lease, we

hold that the trial court did not err by concluding as a matter of law that Forum

Arlington had properly terminated the lease.           Accordingly, we overrule

Stanton’s issue.

         Having overruled Stanton’s sole issue, we affirm the judgment of the trial

court.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: April 23, 2009




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