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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,               facts surrounding the delayed delivery of notice did not
Bexar County, Texas. Trial Court No. 96-CI-15376.                    warrant an award of equitable relief. Accordingly, the
Honorable David Peeples, Judge Presiding.                            judgment was affirmed.

Disposition: Affirmed.                                               Outcome

Core Terms                                                           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
notice, lease, trial court, delivery, personal delivery, equitable
                                                                     give sufficient notice of given to extend the lease in
relief, contends, summary judgment motion, deliver,
                                                                     question, and was not entitled to equitable relief.
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,        LexisNexis® Headnotes
clarified, expired, argues, renew, non-movant, delayed
                                                                        Civil Procedure > ... > Defenses, Demurrers & Objections >
Case Summary                                                            Affirmative Defenses > Burdens of Proof
                                                                        Civil Procedure > Appeals > Summary Judgment Review >
Procedural Posture                                                      General Overview
                                                                        Civil Procedure > Appeals > Summary Judgment Review >
Appellant sought review of summary judgment granted in                  Standards of Review
favor of appellee by the 224th Judicial District, Bexar
County (Texas) in a declaratory judgment action regarding               Civil Procedure > ... > Summary Judgment > Burdens of
                                                                        Proof > General Overview
a lease renewal dispute.
                                                                        Civil Procedure > ... > Summary Judgment > Burdens of
Overview                                                                Proof > Movant Persuasion & Proof

Appellant sought review after the trial court granted summary           Civil Procedure > ... > Summary Judgment > Hearings > General
                                                                        Overview
judgment in favor of appellee in a declaratory judgment
action regarding a lease renewal dispute. Appellant                     Civil Procedure > ... > Summary Judgment > Motions for
contended, among other things, that the trial court erred               Summary Judgment > General Overview
because a fact issue existed as to whether sufficient notice            Civil Procedure > ... > Summary Judgment > Entitlement as
was given to extend the lease in question, and whether                  Matter of Law > General Overview
appellant was entitled to equitable relief. The court found
that appellant failed to properly deliver notice of its intent to    HN1 In order to prevail on a motion for summary judgment,
exercise its lease renewal option under the terms of the             the movant either must prove that no genuine issue of
lease. Specifically, the lease in question provided for notice       material fact exists, affirmatively disprove at least one
either by personal deliver to appellee, or to appellee’s agent,      element of the plaintiff’s cause of action, or prove an
or by certified mail. Here, appellant failed to exercise             affirmative defense as a matter of law. In any case, the
personal delivery because the renewal notice was only                movant bears the burden of proving that he is entitled to
tapped to the agent’s door. Further, the court found that the        judgment as a matter of law. On review, the appellate court

                                                         MATT SOLIDAY
                                                                                                                     Page 2 of 8
                                   961 S.W.2d 552, *552; 1997 Tex. App. LEXIS 6452, **1

must take as true all evidence favoring the non-movant and             Contracts Law > Defenses > Ambiguities & Mistakes > General
indulge every reasonable inference in his favor.                       Overview
                                                                       Contracts Law > Formation of Contracts > Mistake > General
   Civil Procedure > Pleading & Practice > Pleadings > Answers         Overview

   Civil Procedure > ... > Pretrial Judgments > Default & Default   HN5 If a contract is worded so that a court may properly
   Judgments > General Overview                                     give it a definite or certain legal meaning or interpretation,
   Civil Procedure > ... > Pretrial Judgments > Default & Default   then it is not ambiguous. A contract is ambiguous only when
   Judgments > Default Judgments                                    there exists a genuine uncertainty as to which of two
                                                                    meanings is proper. However, an ambiguity does not arise
   Civil Procedure > Judgments > Summary Judgment > General
                                                                    simply because the parties advance conflicting interpretations
   Overview
                                                                    of the contract. In order for an ambiguity to exist, both
   Civil Procedure > Appeals > Summary Judgment Review >            interpretations must be reasonable.
   General Overview
                                                                       Contracts Law > Contract Interpretation > General Overview
   Civil Procedure > Appeals > Summary Judgment Review >
   Appealability
                                                                    HN6 All terms of a contract must be given effect where
   Civil Procedure > ... > Summary Judgment > Burdens of            possible.
   Proof > General Overview
                                                                       Contracts Law > Remedies > Equitable Relief > General
   Civil Procedure > ... > Summary Judgment > Motions for
                                                                       Overview
   Summary Judgment > General Overview
                                                                       Contracts Law > Types of Contracts > Option Contracts
HN2 A non-movant that fails to file a response in a
summary judgment proceeding is limited to raising legal             HN7 It is well settled that strict compliance with the
sufficiency points on appeal. While summary judgments               provisions of an option contract is mandatory in nature, and,
must stand or fall on their own merits and the non-movant’s         generally, equitable relief will not be extended absent such
failure to answer cannot result in a default summary                compliance. Acceptance of an option, unless excused in rare
judgment, if the non-movant does in fact fail to respond, all       cases of equity, must be unqualified, unambiguous, and
that may be argued on appeal is whether the movant                  strictly in accordance with the terms of the agreement
established his right to summary judgment as a matter of            Accordingly, a failure to exercise an option according to its
                                                                    terms, including untimely or defective acceptance, is simply
law.
                                                                    ineffectual, and legally amounts to nothing more than a
                                                                    rejection.
   Civil Procedure > ... > Summary Judgment > Supporting
   Materials > General Overview
                                                                       Civil Procedure > ... > Relief From Judgments > Excusable
   Civil Procedure > ... > Summary Judgment > Supporting               Mistakes & Neglect > Mistake
   Materials > Affidavits
                                                                       Civil Procedure > Judgments > Relief From Judgments >
                                                                       Independent Actions
HN3 An affidavit is an appropriate means of responding to
a motion for summary judgment.                                         Contracts Law > Defenses > Ambiguities & Mistakes > General
                                                                       Overview
   Contracts Law > Contract Interpretation > General Overview          Contracts Law > Defenses > Unconscionable > General
   Contracts Law > Defenses > Ambiguities & Mistakes > General         Overview
   Overview                                                            Contracts Law > Remedies > Equitable Relief > General
                                                                       Overview
HN4 Whether a contract is ambiguous is a question of law
                                                                       Contracts Law > Types of Contracts > Option Contracts
for the court to decide. If the contract is ambiguous, then the
question of the true meaning of the contract becomes one of         HN8 In order to establish a right to relief under the doctrine
fact for a jury to decide.                                          of unconscionable equity, the party seeking equitable relief
                                                                    must show (1) that the delayed failure to exercise an option
   Contracts Law > Contract Interpretation > General Overview       contract was the result of an honest and justifiable mistake;
   Contracts Law > Contract Interpretation > Ambiguities &          and (2) that, if the delay is not excused, unconscionable
   Contra Proferentem > General Overview                            hardship will result.

                                                        MATT SOLIDAY
                                                                                                                   Page 3 of 8
                                 961 S.W.2d 552, *552; 1997 Tex. App. LEXIS 6452, **1

   Civil Procedure > ... > Defenses, Demurrers & Objections >    Opinion
   Affirmative Defenses > General Overview

   Civil Procedure > ... > Defenses, Demurrers & Objections >      [*554]      Appellant, Crown Construction Company,
   Affirmative Defenses > Unclean Hands                          Inc.(″Crown″), appeals from the granting of summary
                                                                 judgment in favor of appellee, H. Glenn Huddleston
   Contracts Law > Types of Contracts > Lease Agreements >
   General Overview
                                                                 (″Huddleston″) in a declaratory judgment action regarding a
                                                                 lease renewal dispute. In five points of error, Crown
HN9 The doctrine of unclean hands is applied to one whose        contends that the trial court erred in granting Huddleston’s
own conduct in connection with the matter at issue has been      motion for summary judgment because: (1) a fact issue
unconscientious, unjust, or marked by a want of good faith,      exists as to whether sufficient notice was given to extend the
or one who has violated the principles of equity and             lease in question; (2) Crown is entitled to equitable relief as
righteous dealing.                                               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
   Civil Procedure > ... > Defenses, Demurrers & Objections >    whether Crown’s delay in giving notice was due to a cause
   Affirmative Defenses > Unclean Hands                          beyond its control; [**2] and (5) the trial court erred in
                                                                 failing to identify the real property at issue in its order
   Contracts Law > Remedies > Equitable Relief > General         granting summary judgment. Crown also brings a
   Overview
                                                                 supplemental point of error in which it contends, generally,
                                                                 that Huddleston failed to establish that there are no issues of
HN10 It is well settled that a party seeking equity cannot
                                                                 fact in dispute and that he is entitled to judgment as a matter
come into a court with unclean hands.
                                                                 of law. We affirm the judgment of the trial court.
   Civil Procedure > Appeals > Appellate Jurisdiction > Final
                                                                 FACTUAL AND PROCEDURAL BACKGROUND
   Judgment Rule
                                                                 In 1976, Huddleston leased commercial property to
HN11 While it is true that there can be only one final
                                                                 Southland Corporation for a term of twenty years. In July of
appealable judgment in any lawsuit, Tex. R. Civ. P. 301, as
                                                                 1992, Crown took the lease by assignment. Under the terms
long as the trial court has plenary power, a judgment is not
                                                                 of the lease, the lease terminated on August 31, 1996.
technically final.                                               However, the lease provided for a five-year renewal option,
                                                                 which required written notification of the exercise of the
   Civil Procedure > Judgments > Relief From Judgments >
                                                                 option on or before June 2, 1996.
   Altering & Amending Judgments

   Governments > Courts > Authority to Adjudicate
                                                                 Crown contends that it gave written notice of its intent to
                                                                 renew the lease by taping the notice to the door of
HN12 Pursuant to Tex. R. Civ. P. 329b, the trial court has the   Huddleston’s office on June 2, 1996. Huddleston denies
power to correct, modify, vacate, or reform a judgment           receipt of that notice. On June 12, 1996, Crown delivered a
during the 30 days that it retains plenary jurisdiction over a   second notice to Huddleston, dated June 2, 1996. Huddleston
case.                                                            acknowledges receiving the second notice. Huddleston,
                                                                 however, refused to renew the lease because Crown’s notice
Counsel: FOR APPELLANT: Samuel H. Bayless, A. W.                  [**3] of its intent to renew the lease was not timely given.
Worthy, GRESHAM, DAVIS, GREGORY, WORTHY &                        Huddleston further contends that at the time he denied the
MOORE, P.C., San Antonio, TX.                                    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.
FOR APPELLEE: Thomas G. Kemmy, San Antonio, TX.
                                                                 Crown brought suit against Huddleston, seeking a judgment
Judges: Opinion by: Karen Angelini, Justice. Sitting: Phil       declaring that it validly exercised it option to extend the
Hardberger, Chief Justice, Alma L. Lopez, Justice, Karen         term of the lease, or, in the alternative, that it is excused
Angelini, Justice.                                               from strict compliance with the notice provision in the lease
                                                                 based upon principles of equity. Huddleston filed a motion
Opinion by: KAREN ANGELINI                                       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, *554; 1997 Tex. App. LEXIS 6452, **3

entitled to judgment based [*555] upon equity because it          In this case, Crown did not file a response to Huddleston’s
was in default of the lease agreement at the time it attempted    motion for summary judgment, but it did file, in opposition
to exercise its option. Crown filed an affidavit in response to   to Huddleston’s motion, the affidavit of Masood Chughtai,
Huddleston’s motion. Following a hearing, the trial court         an owner of Crown Construction Company, Inc. Chughtai’s
granted Huddleston’s motion for summary judgment. All             affidavit controverted many of the facts alleged in
other issues raised by the pleadings in this case were            Huddleston’s motion. There is a conflict in authority
severed and assigned a new cause number.                          regarding whether the filing of an affidavit alone in response
                                                                  to a motion for summary [**6] judgment qualifies as a
ARGUMENT AND AUTHORITY                                            response as contemplated by Rule 166a. Compare Shank,
                                                                  Irwin,Conant & Williamson v. Durant, Mankoff, Davis,
A. Standard of Review                                             Wolens & Francis, 748 S.W.2d 494, 498 (Tex. App.--Dallas
                                                                  1988, no writ) (holding affidavit did not constitute written
HN1                                                               answer or other response expressly presenting non-movant’s
                                                                  issues to the trial court) with Hall v. Stephenson, 919 S.W.2d
In order to prevail on a motion for summary [**4]                 454, 462 (Tex. App.--Fort Worth 1996, writ denied) (finding
judgment, the movant must either prove that no genuine
                                                                  that ″affidavits alone are an appropriate way to respond to a
issue of material fact exists, affirmatively disprove at least
                                                                  summary judgment motion″); Rosas v. Bursey, 724 S.W.2d
one element of the plaintiff’s cause of action, or prove an
                                                                  402, 408 (Tex. App.--Fort Worth 1986, no writ) (finding that
affirmative defense as a matter of law. Nixon v. Mr. Property
                                                                  an ″affidavit is an appropriate means of responding to a
Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Ross v.
Arkwright Mut. Ins. Co., 892 S.W.2d 119, 127 (Tex.                motion for summary judgment″) and Engel v. Pettit, 713
App.--Houston [14th Dist.] 1994, no writ). In any case, the       S.W.2d 770, 772 (Tex. App.--Houston [14th Dist.] 1986, no
movant bears the burden of proving that he is entitled to         writ) (construing portion of the Rule 166a(c) which provides
judgment as a matter of law. TEX. R. CIV. P. 166a(c). On          that a nonmovant may file ″an opposing affidavit or other
review, the appellate court must take as true all evidence        written response″ within seven days of a hearing to mean
favoring the non-movant and indulge every reasonable              that the filing of an affidavit alone, without any additional
inference in his favor. Park Place Hosp. v. Milo, 909 S.W.2d      responsive document, is adequate as a response under the
508, 510 (Tex. 1995); Montgomery v. Kennedy, 669 S.W.2d           rule); see TIMOTHY PATTON, SUMMARY JUDGMENTS
309, 311 (Tex. 1984).                                             IN TEXAS § 4.04 (2nd ed. 1996). [**7]

                                                                  We find that HN3 an affidavit is an appropriate means of
B. Scope of Review
                                                                  responding to a motion for summary judgment. We further
                                                                  find that, in this case, Crown’s affidavit placed the court and
Huddleston argues that, because Crown failed to respond to
                                                                  Huddleston on notice of issues which raise fact questions in
Huddleston’s motion for summary judgment at the trial
                                                                  the case, thus preserving those issues for appeal. Our review
level, the scope of Crown’s appeal should be limited. It is
                                                                  of [*556] Crown’s appeal will, therefore, go beyond a legal
true that HN2 a non-movant who fails to file a response in
                                                                  sufficiency review.
a summary judgment proceeding is limited to raising legal
sufficiency points on appeal. City of Houston v. Clear Creek
                                                                  C. Adequate Notice
Basin Auth. [**5] , 589 S.W.2d 671, 678 (Tex. 1979);
McCord v. Memorial Medical Center Hosp., 750 S.W.2d               1. Ambiguity in the Lease Agreement
362, 364 (Tex. App. --Corpus Christi 1988, no writ). ″Issues
not expressly presented to the trial court by written motion,     In its first point of error, Crown contends that the trial court
answer or other response shall not be considered on appeal        erred in granting summary judgment in favor of Huddleston
as grounds for reversal.″ McConnell v. Southside Ind.             because a fact issue exists regarding whether, under the
School Dist., 858 S.W.2d 337, 343 (Tex. 1993) (quoting            terms of the lease, notice affixed to Huddleston’s door
TEX. R. CIV. P. 166a(c)). While summary judgments must            constituted sufficient notice to extend the lease. The lease at
stand or fall on their own merits and the non- movant’s           issue provides that Crown had an option to extend the term
failure to answer cannot result in a ″default″ summary            of the lease for a period of five years. The lease further
judgment, if the non-movant does in fact fail to respond, all     provides that, if Crown intended to exercise the option, it
that may be argued on appeal is whether the movant                was required to give Huddleston written notice at least
established his right to summary judgment as a matter of          ninety days prior to the expiration of the then current lease
law. Id.; Clear Creek, 589 S.W.2d at 678.                         term. As to the term ″notice,″ the lease states that:

                                                       MATT SOLIDAY
                                                                                                                    Page 5 of 8
                                  961 S.W.2d 552, *556; 1997 Tex. App. LEXIS 6452, **7

Any notices required or permitted hereunder shall be in           delivery″ is not reasonable when viewed in light of the
writing and delivered either in person [**8] to the other         remainder of the notice provision of the lease. See Coker v.
party or the other party’s authorized agent, or by United         Coker, 650 S.W.2d 391, 394 (Tex. 1983) (holding ambiguity
States Certified Mail, Return Receipt Requested, postage          in a contract is determined by looking at the entire contract
fully prepaid….                                                   and giving effect to each of its provisions). The lease
                                                                  provides for notice either by personal delivery to the
Crown contends, first, that the phrase ″delivered in person″      recipient or to the recipient’s agent or by certified mail,
does not require in hand delivery to the receiving party, but     return receipt requested. To interpret personal delivery to
that it refers to the action taken by the delivering party.       mean that the delivering party may simply drop off notice at
Therefore, according to Crown, it personally delivered the        the recipient’s office with no guarantee that it was ever
notice to Huddleston, under the terms of the lease, when Mr.      received would be at odds with the remainder of the notice
Chughtai, Crown’s owner, personally taped the notice to           provision. Specifically, such an interpretation would discount
Huddleston’s door. Crown goes on to argue that because            the requirement that delivery of notice by mail must be via
Huddleston denies receiving the notice, a fact issue exists as    certified mail, return receipt requested.
to whether the notice was given. In the alternative, Crown
argues that the lease agreement is ambiguous as it fails to       The certified mail requirement emphasizes the importance
specifically define personal delivery, and as such, the case      of confirmation of receipt of notice. Otherwise, delivery by
should be remanded for a determination of the intended            regular mail [*557] would have been acceptable under the
meaning of the lease.                                             lease. The apparent purpose of certified mail, return receipt
                                                                  requested is to provide proof of delivery. [**11] The
Accordingly, before the issue of whether Crown did or did         corollary to that requirement in personal delivery situations
not tape the notice to the door is reached, it will be            would be actual person to person delivery. Absent such a
necessary to determine whether such a delivery constitutes        requirement, there would be, as there is in this case, no
personal delivery as contemplated by the lease. As discussed      proof of the personal delivery. It is not a reasonable
above, Crown argues that personal delivery refers to the          interpretation of the lease to say that where there are two
action of the deliverer only, [**9] while Huddleston              equally acceptable means of delivering notice, one option
contends that personal delivery means both personal delivery      would require proof of delivery while one option would not.
by the deliverer and personal receipt by the receiver.            Further, the personal delivery requirement allows for delivery
                                                                  to the receiving party or his agent. If personal delivery
HN4 Whether a contract is ambiguous is a question of law
                                                                  meant that the delivering party could tape notice to the
for the court to decide. Friendswood Dev. Co. V. McDade +
                                                                  receiving party’s door, there would be no need for the
Co., 926 S.W.2d 280, 282 (Tex. 1996). If the contract is
                                                                  option of delivering to the receiving party’s agent. HN6 All
ambiguous, then the question of the true meaning of the
                                                                  terms of the contract must be given effect where possible.
contract becomes one of fact for a jury to decide. Columbia
                                                                  Coker, 650 S.W.2d at 394. Accordingly, the only reasonable
Gas Trans. Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587,
                                                                  interpretation of the term ″delivery in person″ in the lease at
589 (Tex. 1996).
                                                                  issue includes a requirement that the delivery be actual hand
HN5 If a contract is worded so that a court may properly          to hand delivery. Therefore, by taping notice to Huddleston’s
give it a definite or certain legal meaning or interpretation,    door, Crown failed to properly deliver notice of its intent to
then it is not ambiguous. Friendswood, 926 S.W.2d at 282.         exercise its lease renewal option under the terms of the
A contract is ambiguous only when there exists a genuine          lease. Crown’s first point of error is overruled.
uncertainty as to which of two meanings is proper. Columbia
                                                                  2. Events [**12] Beyond Crown’s Control
Gas, 940 S.W.2d at 589. However, an ambiguity does not
arise simply because the parties advance conflicting              In its fourth point of error, Crown contends that the trial
interpretations of the contract. Forbau v. Aetna Life Ins. Co.,   court erred in granting Huddleston’s motion for summary
876 S.W.2d 132, 134 (Tex. 1994). In order for an ambiguity        judgment because a fact issue exists as to whether Crown’s
to exist, both interpretations must be reasonable. National       delay in giving notice was due to events beyond Crown’s
Union Fire Ins. Co. v. CBI Industries, Inc., 907 S.W.2d 517,      control. In making this argument, Crown relies on paragraph
520 (Tex. 1995).                                                  38D of the lease, which provides that:

In this case, [**10] we find no ambiguity in the notice           Whenever a period of time is herein provided for LESSOR
provision of the contract. Crown’s interpretation of ″personal    or LESSEE to do or perform any act or thing, LESSOR shall

                                                       MATT SOLIDAY
                                                                                                                      Page 6 of 8
                                  961 S.W.2d 552, *557; 1997 Tex. App. LEXIS 6452, **12

not be liable or responsible for, and there shall be excluded      substantially harmed by forfeiture of the lease while
from the computation of such period of time, any delays due        Huddleston would suffer no harm if the lease were extended.
to strikes, riots, acts of God, shortages of labor or materials,
national emergency, acts of a public enemy, governmental           We begin by noting the strict compliance requirement in
restrictions, laws or regulations, or any other cause or           option contract situations. HN7 It is well settled that strict
causes, whether similar or dissimilar to those enumerated,         compliance with the provisions of an option contract is
beyond its reasonable control.                                     mandatory in nature, and, generally, equitable relief will not
                                                                   be extended absent such compliance. See Jones v. Gibbs,
Crown argues that the summary judgment evidence in this            133 [**15] Tex. 627, 130 S.W.2d 265, 271 (1939). Acceptance
case shows that Crown attempted to deliver notice of its           of an option, unless excused in rare cases of equity, must be
intent to extend the lease on June 2, 1996, but that it was        unqualified, unambiguous, and strictly in accordance with
prohibited from doing so because Huddleston’s office was           the terms of the agreement. Zeidman v. Davis, 161 Tex. 496,
closed and Huddleston was not there to receive the notice in       342 S.W.2d 555, 558 (1961). Accordingly, a failure to
person. Crown contends [**13] that whether Huddleston              exercise an option according to its terms, including untimely
was in his office, or could otherwise be found, was a matter       or defective acceptance, is simply ineffectual, and legally
beyond Crown’s control. Therefore, according to Crown,             amounts to nothing more than a rejection. Atterbury v.
the fact that it did not actually deliver notice to Huddleston     Brison, 871 S.W.2d 824, 829 (Tex. App.--Texarkana 1994,
until June 12, 1996, should not be considered in determining       writ denied) (Cornelius, J., concurring).
whether the notice was timely given. We disagree.
                                                                   The doctrine of unconscionable, inequitable, or
First, a reasonable interpretation of paragraph 38D is that it     disproportionate forfeiture was established in the case of
applies only to Huddleston, the lessor. The paragraph states       Jones v. Gibbs. The court in that case stated that a lessee’s
that, in regard to time periods in which the lessor or lessee      delay in giving written notice of its intention to exercise a
has to perform under the lease, ″the lessor shall not be liable    lease renewal option should be excused when the delay has
or responsible for…any cause…beyond its reasonable                 been slight, the loss to the lessor would be small, and undue
control.″ Under this interpretation of the lease, Crown, as        hardship would result if relief was withheld. 130 S.W.2d at
the lessee, is not entitled to the protection afforded by          272. At least one court has held the language in Jones to be
paragraph 38D.                                                     dicta and refused to apply the doctrine in situations in which
                                                                   a lessee simply neglected to exercise its renewal option on
In any event, it is undisputed that Crown did not attempt to       time. See Reynolds-Penland [**16] Co. v. Hexter &
deliver notice after allegedly taping it to Huddleston’s door      Lobello, 567 S.W.2d 237, 240 (Tex. Civ. App. --Dallas 1978,
until June 12, 1996, ten days after the option deadline            writ dism’d by agr.). This court, however, has recognized
expired. Even if we were to construe Huddleston’s absence          the doctrine and applied it in a case involving the delayed
from his office on a Sunday as an event beyond Crown’s             exercise of an option to extend a lease. See Inn of the Hills,
control, there were at least eight business days following         Ltd. v. Schulgen & Kaiser, 723 S.W.2d 299, 301 (Tex.
that uncontrollable event in which Crown could have                App.--San Antonio 1987, writ ref’d n.r.e.). HN8 In order to
reattempted delivery. Crown does not [**14] allege that            establish a right to relief under the doctrine of unconscionable
events beyond its control occurred on June 3, 1996, through        equity in cases such as this, the party seeking equitable
June 12, 1996. Therefore, paragraph 38D does not exonerate         relief must show (1) that the delayed failure to exercise an
Crown from the untimely delivery of its notice, even if we         option contract was the result of an honest and justifiable
do not consider June 2, 1996, in the computation of time.          mistake; and (2) that, if the delay is not excused,
Crown’s fourth point of error is overruled.                        unconscionable hardship will result. See Jones, 130 S.W.2d
                                                                   at 273; Casa El Sol- Acapulco, S.A. v. Fontenot, 919 S.W.2d
D. Equity and the Doctrine of Unconscionable Forfeiture            709, 715 (Tex. App. --Houston [14th Dist.] 1996, writ
                                                                   dism’d by agr.).
In its second point of error, Crown contends that it is
entitled to equitable relief from the effect of its untimely       In this case, the evidence, other than whether the notice was
notice as a matter of law. In its third point of error, Crown      taped to Huddleston’s door on June 2, 1996, is undisputed.
contends that there is a fact issue regarding whether it is        Crown acknowledges that it was aware, prior to June 2,
entitled to equitable [*558] relief. Crown bases its equitable     1996, that the option expired on that date. It also
argument on the fact that it delivered notice to Huddleston        acknowledges that after it allegedly taped the notice to
only ten days after the option expired and that it would be        Huddleston’s office door, it did [**17] not attempt to

                                                        MATT SOLIDAY
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                                  961 S.W.2d 552, *558; 1997 Tex. App. LEXIS 6452, **17

contact Huddleston again until June 12, 1996. Then, on June        Huddleston urges that Crown cannot claim entitlement to
12, 1996, Crown delivered notice in writing to Huddleston’s        equitable relief because Crown was in breach of the lease at
agent. Crown never confirmed receipt of the June 2 notice.         the time it attempted to exercise its option. Crown
In the face of undisputed facts, the propriety of equitable        acknowledges that it has failed to pay common area
relief is a question of law for the court, subject to an abuse     maintenance fees as required by the lease; however, because
of discretion standard of review on appeal. Fontenot, 919          the lease provides that such failure shall not result in a
S.W.2d at 715. Because the facts surrounding Crown’s               forfeiture of the lease, Crown argues that it’s failure to pay
equitable argument are undisputed, Crown’s third point of          the fees cannot be used as a bar to its request for equitable
error alleging that a fact issue exists regarding whether          relief. Crown’s reasoning is flawed. Even if failure to pay
equity should be applied in this case is overruled. We must        common area maintenance fees cannot work to cause a
now consider, whether the trial court erred in finding that        forfeiture of the actual lease, it does constitute a breach of
Crown was not entitled to equitable relief as a matter of law.     the terms of the lease. This is not a situation involving the
                                                                   forfeiture of an ongoing lease; rather, it involves the failure
We find that the facts surrounding the delayed delivery of
                                                                   to exercise an option to extend the [**20] original lease
notice in this case do not warrant an award of equitable
                                                                   term. Therefore, there is nothing to prohibit Crown’s breach
relief. As discussed above, in order to be entitled to
                                                                   from operating as a bar to Crown’s assertion of an equitable
equitable relief, Crown must demonstrate that its delayed
                                                                   remedy in its attempt to renew the lease.
notice was the result of an honest and justifiable mistake.
See Jones, 130 S.W.2d at 273. Such a mistake was shown in          HN9 The doctrine of unclean hands is applied to one whose
Jones where the lessee made his lease renewal option               own conduct in connection with the matter at issue has been
payment to the wrong party based upon a previous, but no           unconscientious, unjust, or marked by a want of good faith,
 [**18] longer effectual, communication by the lessor. Id. at      or one who has violated the principles of equity and
267. In Inn of the Hills, this court found an honest and           righteous dealing. Ligon v. E.F. Hutton & Co., 428 S.W.2d
justifiable mistake where the lease renewal option payment         434, 437 (Tex. Civ. App.--Dallas 1968, writ ref’d n.r.e.); 34
was due shortly after the lease assignment and [*559] the          TEX. JUR .3d Equity § 32 (1984). Because Crown is in
new lessee was unaware of the option deadline. Inn of the          breach of the lease it is now attempting to extend, it may not
Hills, 723 S.W.2d at 300.                                          seek relief from the provisions of that lease based upon
                                                                   claims of equity. HN10 It is well settled that a party seeking
In this case, Crown has failed to show an honest and
                                                                   equity cannot come into a court with unclean hands.
justifiable mistake. The summary judgment evidence
                                                                   Schenck v. Ebby Halliday Real Estate, Inc., 803 S.W.2d 361,
indicates that Crown was aware of the option deadline when
                                                                   366 (Tex. App.--Fort Worth 1990, no writ); Village Medical
it assumed the lease. It was also aware of the option
                                                                   Center, Ltd. v. Apolzon, 619 S.W.2d 188, 191 (Tex. Civ.
deadline shortly before it expired. However, knowing the
                                                                   App.--Houston [1st Dist.] 1981, no writ). Crown’s second
lease required the option to be delivered either personally or
                                                                   point of error is overruled.
via certified mail, Crown waited until the day the option
expired to tape the notice to Huddleston’s door. Then,
                                                                   E. Validity of the Judgment
Crown never attempted to confirm delivery of the notice. In
both Jones and Inn of the Hills, the lessees attempted to          In its fifth point of error, Crown contends that the judgment
remedy their mistakes as soon as they were discovered. See          [**21] in this case is invalid because it does not describe the
Jones, 130 S.W.2d at 273; Inn of the Hills, 723 S.W.2d at          property at issue. The original summary judgment order,
300.
                                                                   entered October 17, 1996, provides that Huddleston shall
If, in fact, it was a mistake for Crown to believe it would        ″have restitution and possession of the described premises.″
find Huddleston at his office in order to personally deliver       However, the judgment fails to describe the premises. On
the notice to him in a timely manner, [**19] the mistake           October 24, 1996, the trial court entered an order in
would not be justified since Crown did not attempt to again        response to Huddleston’s motion to clarify the original
deliver the notice to Huddleston until twelve days later.          judgment. The second order clarifies the first by stating that
Under these circumstances, it is difficult to say that the trial   ″the premises for which Huddleston was granted possession
court abused its discretion in finding that Crown was not          in the final judgment of October 17, 1996, is located at 8001
entitled to equitable relief.                                      Broadway, San Antonio, Bexar County, Texas 78209.″

Further, Huddleston asserts the doctrine of unclean hands in       Crown contends that the second order is not effective to
opposition to Crown’s request for equity. Specifically,            correct or clarify the first order because it fails to revoke and

                                                        MATT SOLIDAY
                                                                                                                     Page 8 of 8
                                  961 S.W.2d 552, *559; 1997 Tex. App. LEXIS 6452, **21

replace the first order. Thus, according to Crown, the second      this case, there is only one judgment. Seven days after the
order is a nullity and the first judgment controls in this case.   judgment was entered, the trial court entered an order in
Crown argues that because the first judgment fails to [*560]       which it specifically referred to the judgment at issue and
identify the property at issue, it is unenforceable and the        then clarified the terms of that judgment. The order clarifying
case should be reversed. HN11 While it is true that there can      the judgment does not [**23] purport to supersede or vacate
be only one final appealable judgment in any lawsuit, TEX.         the judgment. It simply defines the judgment, leaving no
R. CIV. P. 301, as long as the trial court has plenary power,      question as to either the disposition of the case or to what
a judgment is [**22] not technically final. Fruehauf Corp. v.      property the judgment refers.
Carrillo, 848 S.W.2d 83, 84 (Tex. 1993). HN12 The trial
court has the power to correct, modify, vacate, or reform a        We find that the trial court’s clarification order was a valid
judgment during the thirty days that it retains plenary            exercise of its plenary power over the judgment. Accordingly,
jurisdiction over a case. TEX. R. CIV. P. 329b; Faulkner v.        the first judgment, as clarified, became final and enforceable
Culver, 851 S.W.2d 187, 188 (Tex. 1993).                           thirty days after the clarification order was entered. See
                                                                   Check v. Mitchell, 758 S.W.2d 755 (Tex. 1988) (stating that
Crown relies on Mullins v. Thomas, 136 Tex. 215, 150               if a judgment is modified, corrected, or reformed in any
S.W.2d 83 (1941), for the proposition that the entry of a          respect the appellate timetable begins to run as of the date
second judgment in the same case is a nullity if there is          of the correction). Crown’s fifth point of error is overruled.
nothing to show that the first was vacated. 150 S.W.2d at 84.
What Crown fails to recognize, however, is that Mullins and        The judgment of the trial court is affirmed.
its progeny deal with cases in which there are two
purportedly final judgments. See, e.g., City of Westlake Hills     KAREN ANGELINI
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.,         JUSTICE
860 S.W.2d 133, 139 (Tex. App.--Dallas 1993, no writ). In




                                                        MATT SOLIDAY
