                                                                             ACCEPTED
                                                                         03-15-00088-CV
                                                                                 5180660
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                     5/6/2015 4:01:45 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                       No. 03-15-00088-CV

                                                      FILED IN
                                               3rd COURT OF APPEALS
              IN THE THIRD COURT OF      APPEALS AUSTIN, TEXAS
                                               5/6/2015 4:01:45 PM
                      AUSTIN, TEXAS
                                                 JEFFREY D. KYLE
                                                       Clerk


         GRAYCO TOWN LAKE INVESTMENT 2007, LP
                                Appellant,

                                v.

                  COINMACH CORPORATION
                                         Appellee.


        On Appeal from the County Court at Law Number 1
  of Travis County, Texas, Trial Court Case No. C-1-CV-08-09655,
                  Hon. Eric Shepperd, Presiding


                    BRIEF OF APPELLANT


                              Dobrowski, Larkin & Johnson LLP
                                 Frederick T. Johnson
                                 SBN 00785429
                                 Cody W. Stafford
                                 SBN 24068238
                                 Akilah F. Craig
                                 SBN 24076194
                              4601 Washington Ave, Suite 300
                              Houston, Texas 77007
                              Counsel for Appellant


ORAL ARGUMENT REQUESTED                                 May 6, 2015
               IDENTITY OF PARTIES AND COUNSEL


Appellant:                         Grayco Town Lake Investment
                                   2007, LP

Counsel for Appellant:             Frederick T. Johnson
                                   SBN 00785429
                                   Cody W. Stafford
                                   SBN 24068238
                                   Akilah F. Craig
                                   SBN 24076194
                                   Dobrowski, Larkin & Johnson LLP
                                   4601 Washington Ave, Suite 300
                                   Houston, Texas 77007

Appellee:                          Coinmach Corporation

Counsel for Appellee:              R. Kemp Kasling
                                   Kasling, Hemphill, Dolezal &
                                   Atwell, LLP
                                   301 Congress Avenue, Suite 300
                                   Austin, Texas 78701

                                   J. Bruce Bennett
                                   Cardwell, Hart & Bennett, LLP
                                   807 Brazos, Suite 1001
                                   Austin, Texas 78701

Trial Court:                       Hon. Eric Shepperd
                                   Judge, County Court at Law No. 1
                                   Travis County Courthouse
                                   1000 Guadalupe, Room 206
                                   Austin, TX 78701




                              ii
                                         TABLE OF CONTENTS


                                                                                                                        Page

RECORD REFERENCES .............................................................................................. x 

STATEMENT OF THE CASE ...................................................................................... xi 

STATEMENT REGARDING ORAL ARGUMENT .................................................... xii 

ISSUES PRESENTED ............................................................................................... xiii 

STATEMENT OF FACTS ............................................................................................. 1 

   A.       THE PARTIES. .................................................................................................... 1 

   B.       THE 1992 LAUNDRY LEASE. ............................................................................... 2 

   C.       THE 2002 LAUNDRY LEASE. ............................................................................... 2 

   D.       GRAYCO PURCHASES REGATTA. ......................................................................... 5 

   E.       GRAYCO TRIES TO OPERATE REGATTA. ............................................................... 7 

   F.       COINMACH’S REVENUES AT REGATTA STEADILY DECLINED. ............................... 8 

   G.       GRAYCO IS FORCED TO CLOSE REGATTA. ............................................................ 8 

   H.       THE TRIAL. ........................................................................................................ 9 

SUMMARY OF ARGUMENT ..................................................................................... 10 

STANDARD OF REVIEW ........................................................................................... 11 

   A.       LEGAL SUFFICIENCY. ....................................................................................... 11 

   B.       FACTUAL SUFFICIENCY. ................................................................................... 12 



                                                              iii
   C.          CONCLUSIONS OF LAW. .................................................................................... 12 

LEGAL ELEMENTS OF CAUSES OF ACTION ....................................................... 13 

   A.          BREACH OF CONTRACT..................................................................................... 13 

   B.          COVENANT OF QUIET ENJOYMENT. .................................................................. 13 

ARGUMENT ................................................................................................................ 14 

   A.          GRAYCO WAS A BONA FIDE PURCHASER AND NOT BOUND BY
               THE 2002 LEASE. ............................................................................................. 14 


      1.          The 2002 Lease was an encumbrance. ...................................................... 15 

      2.          Grayco had no notice of the 2002 Lease. ................................................... 17 

         a.          Grayco did not have actual or inquiry notice. ....................................... 18 

         b.          Grayco did not have constructive notice................................................ 20 

         c.          The judgment must be reversed. ........................................................... 23 

   B.          ALTERNATIVELY, EVEN IF GRAYCO WAS SUBJECT TO THE 2002 LEASE,
               THE JUDGMENT MUST STILL BE REVERSED. ...................................................... 24 


      1.          Grayco’s closure of Regatta did not breach the 2002 Lease. .................... 25 

      2.          Even if Grayco breached the 2002 Lease, Coinmach suffered
                  no damages. ................................................................................................ 27 

         a.          The 2002 Lease did not guarantee any revenue or profits
                     from Grayco. ........................................................................................... 28 

         b.          Coinmach’s alleged profits are too speculative. .................................... 30 

      3.          Coinmach’s damages calculations are legally and factually
                  untenable. ................................................................................................... 32 




                                                                 iv
         a.        Mr. Kemmerer incorrectly determined when damages
                   began to accrue. ...................................................................................... 32 

         b.        Mr. Kemmerer incorrectly included reimbursement of the lease
                   bonus/decoration allowance. .................................................................. 37 

         c.        Mr. Kemmerer’s daily average collection determination
                   was arbitrary. ......................................................................................... 37 

PRAYER ....................................................................................................................... 39 




                                                               v
                               INDEX OF AUTHORITIES


Cases 

2616 S. Loop L.L.C. v. Health Source Home Care, Inc.,
  201 S.W.3d 349 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ....... 15

Abraxas Petroleum Corp. v. Hornburg,
  20 S.W.3d 741 (Tex. App.—El Paso 2000, no pet.)............................... 40

Anadarko E & P Co. v. Clear Lake Pines, Inc.,
  03-04-00600-CV, 2005 WL 1583506 (Tex. App.—Austin
  July 7, 2005, no pet.) ............................................................................. 17

Burlington N. & Santa Fe Ry. v. S. Plains Switching, Ltd.,
  174 S.W.3d 348 (Tex. App.—Fort Worth 2005, pet. denied) ............... 13

Cain v. Bain,
  709 S.W.2d 175 (Tex. 1986) ................................................................... 13

Catalina v. Blasdel,
  881 S.W.2d 295 (Tex. 1994) ................................................................... 11

Chandler v. Darwin,
  281 S.W.2d 363 (Tex. App.—Dallas 1955, no writ) .............................. 20

City of Beaumont v. Moore,
  202 S.W.2d 448 (Tex. 1947) ................................................................... 18

City of Dallas v. Village of Forest Hills, L.P., Phase I,
  931 S.W.2d 601 (Tex. App.—Dallas 1996, no writ) .............................. 35

City of Keller v. Wilson,
  168 S.W.3d 802 (Tex. 2005) ....................................................... 11, 12, 37

Colvin v. Alta Mesa Res., Inc.,
  920 S.W.2d 688 (Tex. App.—Houston, writ denied) ............................ 16

Cooksey v. Sinder,
  682 S.W.2d 252 (Tex. 1984) ................................................................... 16


                                                   vi
Flack v. First Nat’l Bank,
 226 S.W.2d 628 (Tex. 1950) ............................................................. 20, 21

Hampshire v. Greeves,
 130 S.W. 665 (Tex. Civ. App. 1910), aff’d, 143 S.W. 147
 (Tex. 1912) ............................................................................................. 17

Holmes v. P.K. Pipe & Tubing, Inc.,
 856 S.W.2d 530 (Tex. App.—Houston [1st Dist.] 1993, no writ) ......... 14

Holt Atherton Indus., Inc. v. Heine,
 835 S.W.2d 80 (Tex. 1992)..................................................................... 35

HTM Restaurants, Inc. v. Goldman, Sachs & Co.,
 797 S.W.2d 326 (Tex. App.—Houston [14th Dist.] 1990,
 writ denied) ............................................................................................ 36
Kindred v. Con/Chem, Inc.,
 650 S.W.2d 61 (Tex. 1983)..................................................................... 12

Latham v. Miller,
 250 S.W.2d 302 (Tex. App.—Austin 1952, no writ) ............................. 18

Levine v. Turner,
 264 S.W.2d 478 (Tex. Civ. App.—El Paso 1954, writ dism’d) ............. 18

Madison v. Gordon,
 39 S.W.3d 604 (Tex. 2001)............................................................. passim

Material P’ships, Inc. v. Ventura,
 102 S.W.3d 252 (Tex. App.—Houston [14th Dist.] 2003,
 pet denied) ............................................................................................. 11

Mathis v. Wherry,
 45 S.W.2d 700 (Tex. Civ. App.—Beaumont 1932, no writ) .................. 39

Mead v. Johnson Grp., Inc.,
 615 S.W.2d 685 (Tex. 1981) ................................................................... 40

Nelson Cash Register, Inc. v. Data Terminal Sys., Inc.,
 671 S.W.2d 594 (Tex. App.—San Antonio 1984, no writ) .................... 41


                                                   vii
New York Life Ins. Co. v. Miller,
 114 S.W.3d 114 (Tex. App.—Austin 2003, no pet.) .............................. 14

Pace Corp. v. Jackson,
 248 S.W.2d 340 (Tex. 1955) ................................................................... 34

Portman v. Earnhart,
 343 S.W.2d 294 (Tex. App.—Dallas 1960, writ ref’d n.r.e.) ................. 24

Realty Portfolio, Inc. v. Hamilton (In re Hamilton),
 125 F.3d 292 (5th Cir. 1997) ................................................................. 21

Richardson v. Hughes,
 146 S.W.2d 255 (Tex. App.—Austin 1940, no writ) ............................. 21

Serrano v. Union Planters Bank, N.A.,
 162 S.W.3d 576 (Tex. App.—El Paso 2004, pet. denied) ..................... 29

Smith v. Smith,
 22 S.W.3d 140 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ......... 13

Southwest Battery Corp. v. Owen,
 115 SW.2d 1097 (Tex. 1938) .................................................................. 34

Stewart v. Basey,
 245 S.W.2d 484 (1952) ........................................................................... 40

Strong v. Strong,
 98 S.W.2d 346 (Tex. Comm’n App. 1936, no writ) ............................... 26

Uniroyal Goodrich Tire Co. v. Martinez,
 977 S.W.2d 328 (Tex. 1998) ................................................................... 12

Winograd v. Clear Lake City Water Auth.,
 811 S.W.2d 147 (Tex. App.—Houston [1st Dist.] 1991,
 writ denied) ............................................................................................ 40

Woodward v. Ortiz,
 237 S.W.2d 286 (Tex. 1951) ................................................................... 21




                                                   viii
Statutes 

TEX. PROP. CODE § 13.001(a) .................................................................... 20

TEX. PROP. CODE § 13.002 (West 2002) .................................................... 24

TEX. PROP. CODE § 5.024 ........................................................................... 17




                                                 ix
                       RECORD REFERENCES

     Appellant uses the following format for citations to the Record:

CR __           Clerk’s Record

1 RR __         Volume one of the Reporter’s Record

2 RR __         Volume two of the Reporter’s Record

3 RR __         Volume three of the Reporter’s Record

Ex. P- __       Plaintiff/Appellee’s exhibits to the Reporter’s Record

Ex. D- __       Defendant/Appellant’s    exhibits   to   the   Reporter’s
                Record

Ex. C- __       Court’s exhibits to the Reporter’s Record




                                   x
                     STATEMENT OF THE CASE

     This is a contract dispute involving a laundry room lease. The

laundry room lessee, Coinmach Corporation (“Coinmach” or “Appellee”),

sued the lessor, Grayco Town Lake Investment 2007, LP (“Grayco” or

“Appellant”), for alleged breach of the lease. Following a bench trial, the

trial court (Hon. Eric Shepperd, presiding) entered judgment in favor of

Coinmach, and awarded $67,122.19 in actual damages (mainly lost

profits), $19,695.31 in prejudgment interest, and $44,005.14 in

attorneys’ fees.




                                    xi
           STATEMENT REGARDING ORAL ARGUMENT

     Oral argument would be helpful. First, the Court would benefit

from the ability to discuss the appeal with counsel because the factual

history of the case is somewhat complicated. Second, oral argument will

likely save the Court time in understanding and handling the evidence.




                                  xii
                       ISSUES PRESENTED

1.   Did the trial court err in entering judgment for Coinmach for
     breach of the laundry lease when Grayco was not a party to or
     bound by the contract?

2.   Did Grayco breach any material obligation of the laundry lease, in
     light of the absence of any restrictions on its use of its own
     property?

3.   Did Coinmach suffer any damages for any breach of the laundry
     lease, which did not guarantee revenue?

4.   Did the trial court err by awarding damages to Coinmach that are
     not supported by the evidence, and were not caused by any alleged
     breach?




                                 xiii
                        STATEMENT OF FACTS

        This case centers on a laundry lease at the Regatta Apartments

(“Regatta”), which was an apartment complex on Riverside Drive in

Austin, Texas. The Regatta was owned by Foley Capital Asset, LLC

(“Foley”) and managed by Bridge Management Company (“Bridge”).

Grayco bought Regatta in 2007, was unaware of the terms of the

laundry lease encumbering Regatta, and closed Regatta later that year.

Coinmach sued Grayco in 2008 for breach of the lease, and argued the

lease required Grayco to keep Regatta—and the laundry room—open

even if no one wanted to live there or use the laundry machines. The

story of the disputed laundry lease, however, begins much earlier than

2007.

A.      THE PARTIES.

        Appellant Grayco was a partnership created to develop and

revitalize certain commercial property in the Austin area. As part of

that effort, Grayco acquired Regatta in 2007.

        Appellee Coinmach is a laundry service company. In the 2007

timeframe, Coinmach leased space in residential apartment buildings




                                   1
and hoped residents would use its coin-operated washing and drying

machines.

B.   THE 1992 LAUNDRY LEASE.

     In March 1992—long before the parties here were involved with

Regatta—McNair’s Coin Laundry Company contracted with De Norde

Construction Co., then-owner of Regatta, for the lease of a laundry room

(the “1992 Lease”). Ex. D-1. Tab A. As is customary, the 1992 Lease was

filed in the Travis County Real Property Records. See id. The 1992

Lease provided that the lessee and lessor would share the gross receipts

from the laundry room 50/50, and had a 10-year term that renewed

automatically unless notice of termination was given 90 days prior to

the expiration date. Id. By default, then, the 1992 Lease would be

expected to renew in 2002.

C.   THE 2002 LAUNDRY LEASE.

     Ten years later, Coinmach, successor-in-interest to McNair’s Coin

Laundry Company, and Bridge executed a new laundry lease (the “2002

Lease”). Ex. D-2. Tab B. Unlike the 1992 Lease, however, the 2002

Lease was not filed with the Travis County Real Property Records. 2 RR

23:24-24:1. Instead, Bridge and Coinmach executed a Memorandum of



                                   2
Lease on April 22, 2002, which was then filed in the Travis County Real

Property Records. Ex. D-4. Tab C. Though recorded, the Memorandum

of Lease makes no reference to the unrecorded 2002 Lease, which

Coinmach never included or identified in the public record. 2 RR 23:21-

23.

      The terms of the 2002 Lease were similar to the 1992 Lease in

some respects, but quite different in others. For instance, like the 1992

Lease, the 2002 Lease contained a 10-year term (expiring in 2012). Ex.

D-2, GP 000004. The most notable difference between the two leases is

how they divided revenue from the laundry machines among the lessor

and lessee. 2 RR 86:18-25. The 2002 Lease contained the following

language:

      LESSEE shall be entitled to the right of exclusive
      installation and operation of the equipment on the above
      described premises for which LESSEE shall pay LESSOR a
      rental of Fifty (50%) percent of the gross receipts. The rental
      will be paid monthly by check to Lessor, provided however,
      that the Lessee shall always be entitled to receive at
      minimum compensation $45.00 per machine, per month.

Ex. D-2 GP 000004.

      Unlike the 1992 Lease, which divided gross receipts equally

between lessor and lessee, the 2002 Lease allowed the lessee



                                    3
(Coinmach) to get the first $45 per machine, per month in gross

receipts.1 2 RR 86:21-25. If a machine made more than $45, the

remainder was divided equally between the lessor and the lessee. Id. If

a machine did not make $45 in a month, however, lessor was not

required to pay lessee the difference. 2 RR 25:4-7; 2 RR 87:1-9. In other

words, the $45 was not a monthly guarantee of revenue—it only

assured that if a machine made revenue, Coinmach received the first

dollars up to $45.00. Id.

        The 2002 Lease also contained the following provision: “Lessee

shall have exclusive and quiet use and enjoyment of the premises leased

herein during the Lease term.” Ex. D-2, GP 000004 (This provision,

along with the revenue provision discussed above, forms the basis of

Coinmach’s two causes of action.).

        At the same time they executed the 2002 Lease, Coinmach and

Bridge executed a Supplemental Agreement. Under that agreement,




1   Coinmach kept 24 machines—12 washers and 12 dryers—at Regatta. Ex. D-26.


                                        4
Coinmach paid Bridge a $14,000 lease bonus/decoration allowance. Ex.

D-2, GP 000006; Ex. D-3.2

D.    GRAYCO PURCHASES REGATTA.

      On December 6, 2006, an entity called Grayco Partners entered

into a Real Estate Contract for the purchase of Regatta from Foley. Ex.

D-5. Nearly six months later, on April 27, 2007, Grayco Partners

assigned the Real Estate Contract to Grayco. Ex. D-10. Grayco acquired

Regatta on May 8, 2007. Ex. D-11. Additionally, Foley and Grayco

executed an Assignment and Assumption of Leases and Service

Contracts (the “Assignment”). Ex. D-13. Tab D. The Assignment

specifically enumerated the Leases and Service Contracts Grayco would

acquire from Foley:




2 What, exactly, the lease bonus was used for is unclear. What is clear, however, is
that Grayco did not receive any of the $14,000, a fact that will become important
later. 2 RR 87:12-24.


                                         5
Ex. D-13, GP 000064 (emphasis added). Notably, the 2002 Lease was

not included in the assignment. Id.

     Prior to acquiring Regatta in May 2007, Grayco was unaware of

the 2002 Lease. 2 RR 86:1-8. Indeed, during its due diligence, Grayco

discovered the 1992 Lease and the Memorandum of Lease in the Travis

County records. 2 RR 83:17-24. Grayco reviewed the 1992 Lease,

discovered the 10-year term and automatic renewal provisions, and

reasonably concluded that the Memorandum of Lease memorialized the

expected renewal and extension of the 1992 Lease by the new parties to

that agreement, Coinmach and Bridge. That understanding was

consistent with, and justified by, the representations in the Assignment.

2 RR 85:14-25. Nothing in the real property records indicated otherwise,

and no one informed Grayco differently. 2 RR 85:22-86:8.


                                      6
E.   GRAYCO TRIES TO OPERATE REGATTA.

     Grayco intended to operate Regatta—and improve the property for

its tenants—for at least one year. 2 RR 88:8-24. Grayco even

approached Coinmach about renovating the laundry room, which had

fallen into disrepair, in an effort to improve conditions and entice

residents to use Coinmach’s laundry machines. Ex. D-9; Ex. C-1, 17:3-

20. However, Grayco was unable to fulfill its plan.

     Regatta was beyond saving. 2 RR 90:7-17. The property was

plagued by vagrancy, vandalism, crime, and significant deferred

maintenance issues. 2 RR 26:25-27:2, 27:11-12, 27:17-19, 89:9-14.

Criminal activity was rampant and staff members were fearful of

working at Regatta. Ex. C-1, 13:23-10. In fact, Grayco’s property

managers spent most of their time keeping vagrants out of Regatta. Id.

Moreover, Regatta’s previous owner failed to screen many of the

residents, which created a liability issue if Grayco renewed their leases.

2 RR 88:11-25. These issues, of course, took a serious toll on occupancy.

When Grayco acquired Regatta, its occupancy was only 50-60%, and

declining. Ex. C-1, 28:15-23:29, 29:23-30:1; 2 RR 97:22-98:1.




                                    7
F.   COINMACH’S REVENUES AT REGATTA STEADILY DECLINED.

     Perhaps like the proverbial canary in the mine, Coinmach’s

revenues from the laundry lease had steadily declined at Regatta, even

before Grayco became the owner. In fact, the only month in 2007 when

all 24 machines on average made $45 was March. Ex. D-25, GP 000009.

Based on Coinmach’s collection data, excluding March, there was no

month in 2007 in which all 24 machines made $45 each.3 Id. at GP

000008-9.

     Indeed, by the time Grayco acquired and began operating Regatta,

Coinmach may never have received $45 per machine. 2 RR 25:11-23.

G.   GRAYCO IS FORCED TO CLOSE REGATTA.

     Ultimately, as a result of crime, the condition of the property, and

liability concerns, Grayco closed Regatta at the end of October 2007. 2

RR 90:21-91:1. At that time, occupancy was virtually nil. Ex. C-1, 28:15-

21, 29:6-8.

     After Regatta’s closure, Coinmach informed Grayco, for the first

time, about the 2002 Lease. 2 RR 86:9-14. Coinmach then claimed

Grayco had breached that lease, and demanded nearly $100,000 as

3Indeed, based on Coinmach’s own data, the machines made far less than $45 in
most months. Ex. D-25, GP 000008-9.


                                     8
“damages.” Ex. D-22. Nearly a year later, in September 2008, Coinmach

sued Grayco for the alleged breach of the 2002 Lease and the

Supplemental Agreement between Coinmach and Bridge relating to the

$14,000 lease bonus/decoration allowance. CR 213-16.

H.   THE TRIAL.

     The case finally proceeded to a one-day bench trial in August

2014. After trial, the court signed a judgment awarding Coinmach

$67,122.19 in actual damages, $19,695.31 in prejudgment interest, and

$44,005.14 in attorneys’ fees. Tab E.

     Grayco’s motion for new trial was overruled by operation of law.

Tab F. Grayco timely filed this appeal. CR 508-10.




                                    9
                     SUMMARY OF ARGUMENT

      The evidence was both legally and factually insufficient to support

the judgment against Grayco.

      First, Grayco was a bona fide purchaser of Regatta; it was not

bound by the unrecorded 2002 Lease. Because Grayco had no

obligations under the 2002 Lease, it could not have breached that

agreement. Thus, the trial court’s award of damages for breach of the

lease is error.

      Second, even if Grayco had been bound by the 2002 Lease, it did

not breach that agreement. Nothing in the 2002 Lease required Grayco

to keep Regatta open, maintain any certain occupancy, or force tenants

to use Coinmach’s laundry machines. As a result, Grayco’s closure of

Regatta was not a breach.

      Third, even if Grayco breached the 2002 Lease, Coinmach

sustained no damages because it had no guaranteed revenue.

      Fourth, even if Coinmach had sustained damages, its damages

calculation was fundamentally flawed and constituted no evidence.

      For these reasons, the Court should reverse the judgment against

Grayco.



                                   10
                        STANDARD OF REVIEW

     The trial court’s implied findings are reviewed for legal and

factual sufficiency of the evidence using the same standard applied to a

jury verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); see

also City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).

     When the appellate record contains a reporter’s record, as in this

case, the trial court’s findings of fact are not conclusive on appeal if a

contrary fact is established as a matter of law or if there is no evidence

to support the finding. See Material P’ships, Inc. v. Ventura, 102

S.W.3d 252, 257 (Tex. App.—Houston [14th Dist.] 2003, pet denied).

A.   LEGAL SUFFICIENCY.

     For a legal sufficiency review, the Court should credit evidence

supporting the judgment if reasonable jurors could, and disregard

contrary evidence unless reasonable jurors could not. City of Keller, 168

S.W.3d at 827. A legal sufficiency point must be sustained if the record

reveals: (1) there is a complete absence of evidence of a vital fact; (2) the

court is barred by rules of law or of evidence from giving weight to the

only evidence offered to prove a vital fact; (3) the evidence offered to

prove a vital fact is no more than a scintilla; or (4) the evidence



                                     11
established conclusively the opposite of the vital fact. See Uniroyal

Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). More

than a scintilla of evidence exists if the evidence furnishes some

reasonable basis for differing conclusions by reasonable minds about a

vital fact’s existence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63

(Tex. 1983).

B.    FACTUAL SUFFICIENCY.

      For a factual sufficiency review, the Court should consider all of

the evidence to determine if the finding is so weak or if the evidence to

the contrary is so overwhelming that it should be set aside and a new

trial ordered. Burlington N. & Santa Fe Ry. v. S. Plains Switching, Ltd.,

174 S.W.3d 348, 354 (Tex. App.—Fort Worth 2005, pet. denied).

Findings may be overturned if they are so against the great weight and

preponderance of the evidence as to be clearly wrong and unjust. Cain

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

C.    CONCLUSIONS OF LAW.

      The trial court’s conclusions of law are reviewed de novo. Smith v.

Smith, 22 S.W.3d 140, 143-144 (Tex. App.—Houston [14th Dist.] 2000,

no pet.).



                                   12
             LEGAL ELEMENTS OF CAUSES OF ACTION

     Coinmach alleged two causes of action: (1) breach of contract; and

(2) breach of the covenant of quiet enjoyment.

A.   BREACH OF CONTRACT.

     The elements of breach of contract are: (1) that a valid contract

existed, (2) that the plaintiff performed or tendered performance,

(3) that the defendant breached the contract, and (4) that the plaintiff

was damaged as a result of the breach. New York Life Ins. Co. v. Miller,

114 S.W.3d 114, 121 (Tex. App.—Austin 2003, no pet.).

B.   COVENANT OF QUIET ENJOYMENT.

     A breach of the covenant of quiet enjoyment requires an eviction,

actual or constructive, brought about by the acts of the landlord, those

acting for the landlord, or those acting with the landlord's permission.

Holmes v. P.K. Pipe & Tubing, Inc., 856 S.W.2d 530, 539 (Tex. App.—

Houston [1st Dist.] 1993, no writ); 2616 S. Loop L.L.C. v. Health Source

Home Care, Inc., 201 S.W.3d 349, 360 (Tex. App.—Houston [14th Dist.]

2006, no pet.).




                                   13
                                  ARGUMENT

      Several legal errors by the trial court resulted in a flawed

judgment. Each of the errors is an independent basis to reverse.4

A.    GRAYCO    WAS A BONA FIDE PURCHASER AND NOT BOUND BY THE                2002
      LEASE.

      Bona fide purchaser status is a defense against claims and

encumbrances of third parties. See Madison v. Gordon, 39 S.W.3d 604,

605 (Tex. 2001). A purchaser who pays value for real property without

notice of an encumbrance is a bona fide purchaser. Colvin v. Alta Mesa

Res., Inc., 920 S.W.2d 688, 691 (Tex. App.—Houston, writ denied)

(citing Cooksey v. Sinder, 682 S.W.2d 252, 253 (Tex. 1984). A bona fide

purchaser takes title free from the encumbrance. Hampshire v.

Greeves, 130 S.W. 665 (Tex. Civ. App. 1910), aff’d, 143 S.W. 147 (Tex.

1912).

      Grayco indisputably purchased Regatta in good faith and for

value. Therefore, the only issues are (1) whether the 2002 Lease was an

encumbrance; and (2) whether Grayco had notice of the 2002 Lease.


4 Both of Coinmach’s causes of action fail for the same reasons. Both arise directly
from the 2002 Lease, both are dependent on Grayco being bound by that lease, and
both gave rise to the same alleged damages (Coinmach sought the same measure of
damages for both causes of action.). Thus, both causes of action suffer the same
defects, and neither can support the judgment.


                                        14
Because the 2002 Lease is an encumbrance of which Grayco had no

notice, Grayco is not bound by the laundry lease and could not have

breached it.

     1.    The 2002 Lease was an encumbrance.

     An encumbrance is an interest in realty that diminishes its value

and is a burden on its transfer. Anadarko E & P Co. v. Clear Lake

Pines, Inc., 03-04-00600-CV, 2005 WL 1583506 (Tex. App.—Austin July

7, 2005, no pet.); see also TEX. PROP. CODE § 5.024. Encumbrances

include:

     [E]very right to, or interest in, the land which may subsist in
     third persons, to the diminution of the value of the land, but
     consistent with the passing of the fee by the conveyance;
     anything that impairs the use or transfer of property or real
     estate….

City of Beaumont v. Moore, 202 S.W.2d 448, 454 (Tex. 1947) (emphasis

added). An encumbrance, then, is any burden resting on property itself,

or on its title, which tends to lessen its value, or interfere with its free

enjoyment. Latham v. Miller, 250 S.W.2d 302, 303 (Tex. App.—Austin

1952, no writ). Generally, a restriction as to the use to which premises

may be put constitutes an encumbrance. Levine v. Turner, 264 S.W.2d

478, 480 (Tex. Civ. App.—El Paso 1954, writ dism’d).



                                    15
     According to Coinmach, the language in the 2002 Lease regarding

cleaning and maintaining the laundry room, as well as Coinmach’s

contractual right to quiet enjoyment, prevented Grayco from closing the

apartments to redevelop the area, which was Grayco’s long-term

purpose when it purchased Regatta. 2 RR 33:14-34:7. Coinmach’s

representative, Ed Greene, testified that Grayco was required to

maintain the laundry room and did not have the right to tear the

apartment complex down. 2 RR 36:17-37:4. That type of restriction

encumbers the property, interferes with its value, and impairs its use.

     Indeed, Coinmach’s interpretation of the 2002 Lease would

prevent Grayco from terminating the 2002 Lease (for any reason, ever),

and would prevent Grayco from using the property it purchased for any

purpose other than residences with a Coinmach-controlled laundry

room. This nonsensical interpretation means Coinmach, mere lessee of

a laundry room, would have more control over Regatta than Grayco, the

owner. It is difficult to imagine a heftier burden on Regatta’s use.

     Based on Coinmach’s contentions, because it impaired Regatta’s

use, the 2002 Lease was an encumbrance.




                                    16
     2.    Grayco had no notice of the 2002 Lease.

     At trial, Coinmach argued that the mere fact that the 2002 Lease

existed meant Grayco took the property subject to its terms. 2 RR 104:1-

5. The trial court apparently agreed. But that is not the law. Notice—

whether actual, inquiry, or constructive—was required for Grayco to

acquire the property subject to the 2002 Lease. See Chandler v. Darwin,

281 S.W.2d 363, 366 (Tex. App.—Dallas 1955, no writ).

     Indeed, under Section 13.001 of the Texas Property Code, an

unrecorded conveyance of an interest in real property is void as to a

subsequent purchaser who purchases the property for valuable

consideration and without notice. TEX. PROP. CODE § 13.001(a).

     To receive bona fide purchaser protection, a party must acquire

the property in good faith, for value, and without notice of any third-

party claim or interest. Madison, 39 S.W.3d at 606. Notice is defined as

information concerning a fact actually communicated to a person,

derived from a proper source, or presumed by law to have been

acquired. Flack v. First Nat’l Bank, 226 S.W.2d 628, 631 (Tex. 1950).

Notice can be actual or constructive. Id. Actual notice results from

personal information or knowledge, as well as those facts which



                                  17
reasonable inquiry would have disclosed. Constructive notice is notice

the law imputes to a person not having personal information or

knowledge. Madison, 39 S.W.3d at 606; Flack, 226 S.W.2d at 631-32.

           a.   Grayco did not have actual or inquiry notice.

     If a party has knowledge of facts that, if reasonably pursued,

would have disclosed the existence of an unrecorded encumbrance, they

will be charged with notice (and bound by the encumbrance).

Richardson v. Hughes, 146 S.W.2d 255, 258 (Tex. App.—Austin 1940,

no writ). This is known as inquiry notice. Woodward v. Ortiz, 237

S.W.2d 286, 289 (Tex. 1951); Realty Portfolio, Inc. v. Hamilton (In re

Hamilton), 125 F.3d 292, 299 (5th Cir. 1997) (“A hypothetical purchaser

on inquiry notice is chargeable with imputed knowledge of facts that

would have been discovered by a reasonably diligent inquiry.”).

     At trial, there was no evidence Grayco had actual notice of the

2002 Lease. The Assignment executed by Grayco and Foley only

referenced the 1992 Lease. Ex. D-13, GP 000064. Further, Grayco’s

corporate representative, John Britton, testified that Grayco conducted

a due diligence search when it purchased Regatta and only discovered

the Memorandum of Lease and the 1992 Lease, which was to renew



                                   18
automatically in 2002. 2 RR 83:2-4, 83:17-24. And the Memorandum of

Lease did not identify the 2002 Lease, a fact admitted by Mr. Greene. 2

RR 23:21-23. Because of the affirmative representations in the

Assignment and the Memorandum of Lease, Grayco reasonably believed

that the 1992 Lease renewed and that it governed the relationship

between Grayco and Coinmach. In fact, Grayco was not informed of the

2002 Lease until after this dispute arose in late 2007 and early 2008. 2

RR 86:9-14. Therefore, the only evidence is that Grayco did not have

actual notice of the 2002 Lease.

     Further, inquiry notice cannot be imputed to Grayco using the

Memorandum of Lease. Grayco Partners acquired Regatta from Foley.

Ex. D-5. Foley subsequently assigned all the leases and services

contracts to Grayco on May 8, 2007. Ex. D-13. Foley failed to identify

the unrecorded 2002 Lease, and only disclosed the existence of the

properly recorded1992 Lease. Id. at GP 000064. Prior to the purchase of

Regatta, Grayco conducted all aspects of due diligence, none of which

revealed the 2002 Lease. 2 RR 83:2-9; 2 RR 83:17-24. Grayco reasonably

believed that because the parties to the Memorandum of Lease were

different from the parties to the 1992 Lease, the Memorandum of Lease



                                   19
served as notice that the two new parties had adopted and reaffirmed

the 1992 Lease, which was set to automatically renew in 2002, the same

year the Memorandum of Lease was executed. 2 RR 85:22-25. Even if a

duty of inquiry arose based on the Memorandum of Lease, the evidence

is undisputed that Grayco diligently inquired and was not made aware

of the existence of the 2002 Lease.

           b.    Grayco did not have constructive notice.

     Purchasers of property are charged with constructive notice of the

instruments properly recorded in the county where the property is

located. TEX. PROP. CODE § 13.002 (West 2002) (“An instrument that is

properly recorded in the proper county is . . . notice to all persons of the

existence of the instrument, . . .”). But, while a purchaser is bound with

constructive notice of all recorded instruments lying within his chain of

title, the record of a deed or instrument laying outside of his chain of

title imports no notice. Portman v. Earnhart, 343 S.W.2d 294, 297 (Tex.

App.—Dallas 1960, writ ref’d n.r.e.).

     Importantly, the 2002 Lease—unlike the 1992 Lease—was not

filed of record in Travis County (or anywhere else). 2 RR 23:24-24:1.

Hence, there was no constructive notice of the 2002 Lease. The 2002



                                      20
Lease, though executed prior to Grayco’s acquisition of the property, lay

outside of Grayco’s chain of title because Coinmach failed to record the

instrument. The Memorandum of Lease did not place the 2002 Lease

within the chain of title. As previously discussed, the Memorandum of

Lease is silent as to which lease it referred, and the only lease on file to

which it could reasonably refer was the 1992 Lease. 2 RR 23:21-23.

Because constructive notice can only be imputed when instruments are

within the chain of title, the unrecorded 2002 Lease—lying outside of

the chain of title—imputed no notice to Grayco.

     Moreover,    the   Assignment       did   not   provide   Grayco   with

constructive notice of the 2002 Lease. Rather, the Assignment

confirmed Grayco’s reasonable belief that Coinmach acquired the 1992

Lease from its predecessor-in-interest and allowed the 1992 Lease to

renew for an additional 10 years.

     Coinmach also argued that the presence of its laundry machines

in the Regatta laundry room was constructive notice to Grayco of the

2002 Lease. Though the law imputes constructive knowledge where a

subsequent purchaser has a duty to ascertain the rights of a party in

possession, the duty to ascertain arises only if the possession is visible,



                                    21
open, exclusive, and unequivocal. Madison, 39 S.W.3d at 606. However,

possession that is ambiguous or equivocal, which may appear

subservient or attributable to the possession of the holder of the legal

title, is not sufficiently indicative of ownership to impute constructive

notice. Id. Additionally, when an occupant’s possession is consistent or

compatible   with   another’s   ownership   assertion,   the   occupant’s

possession cannot be said to be unequivocal. Id. at 607; Strong v.

Strong, 98 S.W.2d 346, 350 (Tex. Comm’n App. 1936, no writ). In that

case, no notice is imputed.

     Here, Coinmach’s possession was arguably open and visible, based

on the presence of its laundry machines in the laundry room.

Importantly, however, Coinmach’s open and visible possession was

compatible with the 1992 Lease, of which Grayco was aware. There was

no indication and no reason for Grayco to believe a subsequent—and

substantially different—lease was executed by Coinmach in 2002. The

issue is whether Grayco knew of—and was bound by—the 2002 Lease,

which was not recorded and not provided to Grayco. Even if Grayco was

aware that a laundry lease existed, that does not mean Grayco had

constructive knowledge that the unrecorded 2002 Lease existed or what



                                   22
its terms were. Indeed, the sole evidence available to Grayco was that

the only laundry lease was the properly recorded 1992 Lease. Based on

the information available through diligent search and inquiry, Grayco

reasonably determined Coinmach’s rights, if any, arose out of the 1992

Lease.

     Further, the mere presence of Coinmach’s laundry machines does

not qualify as “unequivocal possession” of the premises that was

incompatible with Grayco’s reasonable understanding that only the

1992 Lease was in place. Rather, Coinmach’s machines confirmed

Grayco’s understanding that the 1992 Lease was effective and would

govern the parties’ interactions. So, no constructive knowledge of the

2002 Lease can be imputed to Grayco.

          c.    The judgment must be reversed.

     The only evidence presented by either Coinmach or Grayco is that

Grayco did not have actual knowledge of the 2002 when it acquired

Regatta. 2 RR 36:7-9, 86:1-4, 86:9-14. And there was nothing that put

Grayco on inquiry notice of the 2002 Lease. Grayco’s belief that the

Memorandum of Lease demonstrated Coinmach’s adoption and renewal

of the 1992 Lease was reasonable. Finally, there was no constructive



                                  23
notice of the 2002 Lease because the 2002 Lease was never filed and the

Memorandum of Lease did not identify or refer to the 2002 Lease. 2 RR

36:3-6, 85:14-25. Thus, Grayco proved that it had no notice—actual,

inquiry, or constructive—of the 2002 Lease. Because by Coinmach’s

interpretation the 2002 Lease was an encumbrance and Grayco

purchased Regatta without notice, Grayco is not subject to, and is

protected from, the 2002 Lease.

     Importantly, Coinmach chose to sue Grayco for an alleged breach

of only the 2002 Lease. CR 214; 2 RR 84:7-9. Because Grayco was not

bound by the 2002 Lease, Coinmach cannot recover damages from

Grayco arising out of the 2002 Lease. Further, because Coinmach did

not allege breach of the 1992 Lease, Coinmach cannot recover any

damages from Grayco arising out of the 1992 Lease.

     As a result, the trial court’s judgment awarding damages for a

breach of the 2002 Lease must be reversed.

B.   ALTERNATIVELY, EVEN IF GRAYCO WAS SUBJECT TO THE 2002 LEASE,
     THE JUDGMENT MUST STILL BE REVERSED.


     Even if Grayco acquired Regatta subject to the terms of the 2002

Lease, the trial court’s judgment must still be reversed because (1) the

2002 Lease did not prevent Grayco from closing Regatta, and Grayco


                                  24
could not have breached by doing so; (2) even if Regatta’s closure was a

breach, Coinmach sustained no damages because there was no

guarantee of income; and (3) Coinmach’s calculation of damages is so

flawed that it constitutes no evidence.

     1.     Grayco’s closure of Regatta did not breach the 2002 Lease.

     There is no evidence to support Coinmach’s breach of contract

claim; thus, the evidence is insufficient to support the judgment.

Serrano v. Union Planters Bank, N.A., 162 S.W.3d 576, 580 (Tex.

App.—El Paso 2004, pet. denied). Coimach failed to identify a single

term, clause, condition or obligation in the 2002 Lease that Grayco

breached. In fact, Coinmach’s corporate representative admitted to the

following, proving Grayco did not breach the 2002 Lease when it closed

Regatta:

           There is no provision in the 2002 Lease obligating Grayco to
            maintain a certain number of occupants at Regatta. 2 RR
            26:8-11.

           There is no provision preventing Grayco from tearing down
            Regatta. 2 RR. 26:12-14.

           There is no provision in the 2002 Lease requiring Grayco to
            use its best efforts to ensure tenants use the laundry room. 2
            RR 26:15-18




                                    25
Even under Coinmach’s interpretation, Grayco could choose to renew—

or not renew—as many or as few tenant leases as it wished without

beaching any contractual obligations to Coinmach. This interpretation

makes Coinmach’s current position untenable. If Grayco could exercise

its business judgment and decide not to renew all of the tenant leases

(as it did), then Coinmach’s laundry machines would inevitably make

no revenue. Coinmach admits this would not constitute a breach of the

2002 Lease. 2 RR 26:8-11, 35:21-36:2, 36:17-22. Thus, Coinmach would

not be entitled to any damages, however they be characterized.

     Coinmach’s position now, and at trial, is at odds with its

admission. If Grayco could properly lease down Regatta—resulting in

Coinmach’s laundry machines accruing no revenue—then Grayco could

close Regatta completely. The result to Coinmach is the same. Yet

Coinmach claims without support that only the latter was a breach of

the 2002 Lease. That is nonsensical.

     Further, Grayco’s corporate representative testified many of the

tenants of Regatta at the time Grayco acquired the property were

unqualified and created liability concerns for Grayco. 2 RR 89:9-25.

Grayco could not renew many of the tenant leases for two main reasons:



                                  26
(1) many of the existing tenants could not pass required background

checks; and (2) if Grayco allowed unqualified tenants to live at Regatta,

that would violate Grayco’s insurance policy. 2 RR 93:1-7. Further,

when Grayco acquired the property, occupancy was already low,

(between 50-60 percent) and declining. 2 RR 97:22-98:1; Ex. C-1 28:15-

21. And, as Grayco’s corporate representative clarified, occupancy and

tenancy are two different concepts: many of Regatta’s occupants were

vagrants and squatters who did not pay rent. 2 RR 98:4-7.

     Because there were no provisions in the 2002 Lease requiring any

minimum occupancy or requiring mandatory use of the laundry room by

tenants, Grayco’s good faith business decision to lease down and

ultimately close Regatta was not a breach of the 2002 Lease. The trial

court’s finding to the contrary is error and requires reversal.

     2.    Even if Grayco breached the 2002 Lease, Coinmach suffered
           no damages.

     Even assuming, arguendo, that Grayco could have breached the

2002 Lease, Coinmach could not have suffered damages as a matter of

law. And, in any event, Coinmach failed to present legally or factually

sufficient evidence of any damages.




                                    27
          a.    The 2002 Lease did not guarantee any revenue or
                profits from Grayco.

     As previously discussed, the 2002 Lease did not guarantee

Coinmach any minimum monthly earnings for the laundry machines. 2

RR 24:8-11, 24:16-19, 25:4-7. If tenants chose not to use the laundry

machines, or if there were no tenants to use them, the laundry

machines would accumulate zero revenue, and Coinmach would not be

entitled to anything from Grayco. 2 RR 26:15-18, 35:24-36:2.     As a

result, Coinmach knew when it signed the 2002 Lease that part of its

bargain was inherent uncertainty of future revenues and its inherent

dependence on the complex’s owner’s plans for development and leasing.

Perhaps a competitor might open a laundromat next door to Regatta

and attract tenants with newer machines and cheaper prices. Perhaps

Regatta could become a haven for college students who took their

clothes home for their parents to launder. Or perhaps Regatta’s owner

would close the apartments for any number of business reasons. These

were all risks Coinmach knowingly accepted in the 2002 Lease. Of

course, Coinmach was handsomely rewarded for its risks for many

years, and made substantial profits from its machines. Ex. D-25, GP




                                  28
000010-13.5 That said, Coinmach never had any contractually-

guaranteed revenues, and it knew that from the outset.

      As previously discussed, the 2002 Lease gave Coinmach the first

$45 per machine, per month (assuming the machine made revenue). Ex.

D-2, GP 000004. Coinmach was not guaranteed $45 per machine.6 2 RR

24:12-19. Instead, if the machines made $45, Coinmach would be

entitled to that amount, and Grayco would receive no compensation for

the lease of its laundry room that particular month. 2 RR 24:20-22. If

the machines made less than $45, Coinmach received whatever the

machines generated. 2 RR 25:4-7. If the machines made more than $45,

Coinmach would get $45; then, Coinmach and Grayco would split the

remaining gross receipts 50/50. 2 RR 19:2-13. But, of course, there was

no guarantee the machines would make any revenue, let alone $45.




5 As the Court can see, Coinmach averaged $36,828.38 during the first couple of
years of the lease. See Ex. D-25. That average later declined for the reasons
discussed above.
6 In other words, Grayco would never have to come out of pocket to ensure
Coinmach made $45 per machine, per month.


                                      29
               b.    Coinmach’s alleged profits are too speculative.

        Coinmach’s corporate representative agreed that there were many

months when none of the machines made $45.7 2 RR 25:11-23. Further

Coinmach acknowledged that gross receipts had been declining since

2006. 2 RR 19-21. Despite decreasing revenues, Coinmach asked the

Court to speculate as to what the revenue would have been, using the

assumptions that there would be tenants to use the laundry room and

the tenants would, in fact, have used the laundry rooms but for Grayco’s

decision to lease-down and then demolish Regatta. But a party may not

recover damages for breach of contract if those damages are remote,

contingent, speculative or conjectural. Southwest Battery Corp. v.

Owen, 115 SW.2d 1097, 1099 (Tex. 1938); Pace Corp. v. Jackson, 248

S.W.2d 340, 348 (Tex. 1955); City of Dallas v. Village of Forest Hills,

L.P., Phase I, 931 S.W.2d 601, 605 (Tex. App.—Dallas 1996, no writ).

Lost profits claimed as damages must be established to a reasonable

certainty. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.

1992).




7   Thus, Coinmach effectively paid no rent during those months.


                                          30
      Based on the unrefuted testimony from Mr. Britton, occupancy at

Regatta was declining due to the terrible condition of the apartments. 2

RR 90:21-25. The conditions—which were present before Grayco

acquired the property—were such that vagrants had taken up residence

there. 2 RR 98:4-7. Neither Coinmach nor the trial court had any

reasonable basis to assume that there would have been tenants at

Regatta, or that any tenants there would be willing and able to use the

laundry machines through the expiration of the 2002 Lease.

      Therefore, Coinmach’s claim for damages fails for at least two

reasons: (a) there were no provable damages suffered because Coinmach

was not entitled to any specific amount of revenue or profits; and (b)

any damages Coinmach claims are impermissibly speculative.

      Importantly, Coinmach’s failure to prove its damages extends to

both its breach of contract claim and its breach of the covenant of quiet

enjoyment claim. Even assuming that Grayco breached the covenant of

quiet enjoyment, Coinmach suffered no damages for the same reasons

that it suffered no damages from its breach of contract claim.8



8 In reality, Coinmach’s claim for breach of the covenant of quiet enjoyment is a
breach of contract claim (which is how Coinmach pled it). CR 410, ¶ 3. Indeed, any
implied covenant of quiet enjoyment was subsumed within the express terms of the


                                       31
         3.     Coinmach’s damages calculations are legally and factually
                untenable.

         Coinmach’s sole evidence of damages is the testimony of its expert,

John Kemmerer. The trial court erred by accepting Mr. Kemmerer’s

contradictory, baseless, and assumption-filled testimony, as well as his

hopelessly flawed damages calculations. When the assumptions on

which an expert’s opinion is based conflicts with undisputed evidence,

then the expert’s testimony lacks any probative value. City of Keller,

168 S.W.3d at 813.9 Because Mr. Kemmerer’s testimony was wholly

based on unsupported assumptions—and because Coinmach offered no

other evidence of damages—there is legally insufficient evidence to

support the trial court’s damages award.

                a.     Mr. Kemmerer incorrectly determined when damages
                       began to accrue.

         Mr. Kemmerer incorrectly determined that Coinmach’s damages

began to accrue in March 2006, more than a year before Grayco

acquired Regatta and more than 18 months before Regatta was closed.




2002 Lease. See, e.g., HTM Restaurants, Inc. v. Goldman, Sachs & Co., 797 S.W.2d
326, 328 (Tex. App.—Houston [14th Dist.] 1990, writ denied).
9   I.e., “garbage in, garbage out.”


                                       32
The error of this assumption afflicts the entirety of Mr. Kemmerer’s

calculations, and manifests itself in numerous ways.

     First, Mr. Kemmerer testified that the reason damages began to

accrue in March 2006 is because Grayco indicated it intended to change

the use of the property via email on March 7, 2006. 2 RR 53:21-54:8.

The email was authored by an attorney named Bradley Jones and sent

to Coinmach. 2 RR 53:21-54:1. Mr. Kemmerer admitted, however:

         that the email does not mention Grayco;

         that he did not know who Mr. Jones was;

         that he did not know whether Mr. Jones worked for Grayco;
          and

         that he did not know whether Mr. Jones was authorized by
          Grayco to communicate with Coinmach regarding changing
          the use of the Regatta.

2 RR 54:3-20, 55:2-6. Further, Grayco’s corporate representative

testified that Grayco did not hire Mr. Jones and was unaware on whose

behalf Mr. Jones was acting when he communicated with Coinmach. 2

RR 82:2-15.

     Second, Mr. Kemmerer incorrectly assumed that Grayco’s decision

not to renew tenant leases, which he claimed started in March 2006,

caused the decrease in income from the laundry room, and thus,



                                  33
Coinmach’s damages. Ex. P-7, pg. 3. Mr. Kemmerer admitted, however,

he did not review any information regarding how many tenant leases

were renewed at the Regatta in March 2006, nor did he review the

number of tenant leases that came up for renewal at the end of

February 2006. 2 RR 47:8-20. Indeed, Mr. Kemmerer had no

information regarding how many leases came up for renewal or were

renewed at any time. 2 RR 47:8-20.

     In addition, Grayco did not even acquire Regatta until April 2007,

more than a year after Mr. Kemmerer began attributing damages to it

for breach. Ex. D-10. The undisputed testimony is that Grayco had

absolutely no control over whether tenant leases were renewed prior to

April 2007. 2 RR 81:11-82:1. Thus, Mr. Kemmerer’s “expert” opinion

that lost profits beginning in March 2006 were attributable to Grayco is

indefensible and mars his calculations and his credibility.

     Third, and perhaps most importantly, Mr. Kemmerer began

calculating Coinmach’s damages before the date even Coinmach claims

Grayco breached the 2002 Lease. Coinmach’s corporate representative

testified that the alleged breach did not occur until October 31, 2007,

after Grayco closed and demolished Regatta. 2 RR 32:23-25. Mr.



                                   34
Kemmerer’s opinion, on the other hand, is inconsistent with Coinmach’s

claims and Texas law.

     Actual damages must flow from the wrongful breach of a contract

before they can be assessed against the offender, as compensation for

the alleged wrong. Mathis v. Wherry, 45 S.W.2d 700, 701-02 (Tex. Civ.

App.—Beaumont 1932, no writ).          Indeed, to recover compensatory

damages, the plaintiff must establish that it suffered some pecuniary

loss as a result of the breach of the contract. Stewart v. Basey, 245

S.W.2d 484, 486 (1952); Abraxas Petroleum Corp. v. Hornburg, 20

S.W.3d 741, 758 (Tex. App.—El Paso 2000, no pet.).

     The evidence must show that the damages are the natural,

probable, and foreseeable consequence of the defendant’s conduct. Mead

v. Johnson Grp., Inc., 615 S.W.2d 685, 687 (Tex. 1981); Winograd v.

Clear Lake City Water Auth., 811 S.W.2d 147, 156 (Tex. App.—Houston

[1st Dist.] 1991, writ denied). The absence of this causal connection

between the alleged breach and the alleged damages precludes

recovery. Abraxas, 20 S.W.3d at 758; Nelson Cash Register, Inc. v. Data

Terminal Sys., Inc., 671 S.W.2d 594, 600 (Tex. App.—San Antonio 1984,

no writ).



                                  35
     Texas law precludes Coinmach from recovering damages from any

reduction in laundry machine revenue prior to Grayco’s alleged breach.

As a matter of law, Grayco could not have breached a contract to which

it was not a party, and could not have caused Coinmach to suffer lost

profits prior to Grayco’s acquisition of Regatta. Assuming those

damages existed, they could not have flown from, or had any causal

connection to, a breach that had yet to occur. The damages awarded in

the judgment are unsustainable for this reason. (Mr. Kemmerer’s

inexplicable decision to base his calculation on this flawed methodology

also renders the entirety of his opinions unreliable.)

     In short, Coinmach failed to establish a causal link between the

decline in revenues prior to Grayco’s acquisition of Regatta and

Coinmach’s damages as a result of Grayco’s alleged breach. Thus, there

was legally insufficient evidence supporting a damages award that

included amounts incurred prior to October 31, 2007. Alternatively, the

damages award is against the great weight and preponderance of the

evidence, and must be reversed because it is factually insufficient.




                                    36
           b.    Mr. Kemmerer incorrectly included reimbursement of
                 the lease bonus/decoration allowance.

     Further, Mr. Kemmerer incorrectly included in his damages

calculation an amount for reimbursement of the lease bonus/decoration

allowance Coinmach paid to Bridge. Ex. P-7, pg. 3-4. Grayco was not a

party to the Supplemental Agreement between Coinmach and Bridge

whereby Coinmach agreed to pay Bridge $14,000 as a lease bonus

decoration allowance. Ex. D-2, GP 000006. Coinmach’s corporate

representative admitted that Coinmach did not pay the $14,000 lease

bonus to Grayco and he was unaware as to whether Bridge paid any

portion of the $14,000 to Grayco when Grayco acquired Regatta. 2 RR

28:2-14. Grayco’s corporate representative confirmed that Bridge did

not pay Grayco the lease bonus amount. 2 RR 87:7-21. Thus, there is

legally insufficient (or, alternatively, factually insufficient) evidence to

support a damages award that includes a reimbursement of the $14,000

lease bonus amount.

           c.    Mr. Kemmerer’s daily average collection determination
                 was arbitrary.

     To calculate the damages Coinmach allegedly suffered, Mr.

Kemmerer used a daily collection rate of $99.81. Ex. P-7, pg. 4. Mr.



                                    37
Kemmerer explained that $99.81 represented the daily average

collections from December 22, 2004 (the first date available) through

March 1, 2006, the date Mr. Kemmerer alleged Grayco changed the use.

Ex. P-7, pg. 4. However, as discussed above, Grayco could not have

changed the use of the Regatta in March 2006 because it did not own or

control Regatta at that time. 2 RR 81:20-82:1. Thus, the collection rate

used by Mr. Kemmerer is arbitrary, baseless, and only serves to

impermissibly inflate the damages calculation.10

      Because there is no competent evidence to support the amount of

damages suffered by Coinmach, the trial court erred in awarding

damages based on Mr. Kemmerer’s calculations.




10Mr. Kemmerer took his arbitrary $99.81 daily average collection and extended it
through the term of the 2002 Lease to arrive at his ultimate damages number,
which was accepted by the trial court. Coinmach utterly failed to provide the trial
court with a defensible daily average supported by the evidence (or Texas law).


                                        38
                              PRAYER

     The judgment should be reversed and rendered. Alternatively, the

judgment should be reversed and remanded for a new trial on damages.

                                Respectfully submitted,

                                DOBROWSKI, LARKIN & JOHNSON LLP

                                By:/s/ Cody W. Stafford
                                  Frederick T. Johnson
                                  SBN 00785429
                                  Cody W. Stafford
                                  SBN 24068238
                                  Akilah F. Craig
                                  SBN 24076194
                                  4601 Washington Ave, Suite 300
                                  Houston, Texas 77007
                                  713.659.2900 – Telephone
                                  713.659.2908 – Facsimile

                                COUNSEL FOR APPELLANT GRAYCO
                                TOWN LAKE INVESTMENT 2007, LP


                  CERTIFICATE OF COMPLIANCE

      I hereby certify that the computer program used to prepare the
foregoing Brief of Appellant shows that 7,070 words are in the Brief of
Appellant. This word count does not include those words that TEX. R.
APP. P. 9.4(i)(1) excludes from such word count. I further certify that
the Brief of Appellant was prepared using l4-point font with footnotes
typed in l2-point font.



                                /s/ Cody W. Stafford
                                Cody W. Stafford

                                  39
                     CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of Brief of Appellant
Grayco Town Lake Investment 2007, LP has been served on this 6th
day of May, 2015 as follows:

     VIA CERTIFIED MAIL RETURN RECEIPT REQUEST
     AND E-FILING
     R. Kemp Kasling
     Kasling, Hemphill, Dolezal & Atwell, L.L.P.
     301 Congress Avenue, Suite 300
     Austin, TX 78701

     J. Bruce Bennett
     Cardwell, Hart & Bennett, LLP
     807 Brazos, Suite 1001
     Austin, Texas 78701

                                 /s/ Cody W. Stafford
                                 Cody W. Stafford




                                  40
                                     APPELLANT’S APPENDIX

1992 Lease (Ex. D-1)........................................................................... Tab A

2002 Lease (Ex. D-2)........................................................................... Tab B

April 22, 2002 Memorandum of Lease (Ex. D-4) ............................... Tab C

Assignment and Assumption of Leases and Service Contract
(Ex. D-13) ............................................................................................ Tab D

Final Judgment signed November 6, 2014 (CR 484-86) ................... Tab E

Grayco’s Motion for New Trial (CR 489-99) ...................................... Tab F
TAB A
DEFENDANT EXHIBIT
       0:>\ J.Jrwt ett. . ·'ta'D~~~~,5.l),                                                                                            )              .41~(4 ~ [1:i•
     •~ '£....                                                                                                                                                         ~
                                                                                                                                                             J
                                                                                                                                                    IT    ""'7
            /':"       .,         ~,~022551                                                                                                  FILHCOOf               -+t/~r
                                                            .:::::COIft'RAC'p~~~FOR~S=ERV=I:.:::CS:::S~A.~RD=-.!:L:.=EA:.:::S:.:e....:A:::C::!!R~==tI D0O~ SO 464   s
                                                                                                                                    i
                                 . ?td,        contract:'                  :j\M             ~"AsP:'a_ent:
                                                                                                  / / ".~ Of                 ill '.ado ·t:1Us
                        ~~_ • 199:1                                 Do N0.r6a construction Co. ('5Wnar) ~II
                                                                         by' and,          between
                       pri1'\Cipa1 o!li.ae .1~     l~atoc1 at; %23 A:vi,,,t:lon,   in th4 CJ,.ty of Fall-brook,
                       Cpl.ltoTl'11.&, herfUll rofCCX'o<I to liS l.BSSOR. and MoNALR' S CODt LAUNDRY.co. o~                                                                                  ....
                       lIusti.n. TIIIXaIl. bGta:Ln refsrred. to . . I.ESSSS. for the purpose of estiIbll!llU.ng
                        agd   q:lPt:a:l.:D!ng ccrln-l.~ room. f'ac.iliti_ at 1f1c.dja..er .Apa.rt..atrts, 1201
                       '!'oWn ~oot. AuJOt1,a. ~, horoiQ re~e:r;red to all 'l'HB PROJEC'l'.

                       j;a!1Ji. ot LaundJy llooiIL! LESSOR 4Jaa hereby base to LRSSBl!: all. present end
                         IIWn, lcundr3( :roqII ~oea loaa~ on or ..t         the project (trMch er,
                       COl.iect1.vel!,               X'Q{errw                  to    lUI thGl -l.cailSCc! pr8lda&S-) IIXld Vh1(Jb are located in
                       ~          rea.l.   PJ:o~l."tr ~~ 'O<Uow. for the teXJII and on the oondit.f.0Q8                                                          stated
                           . and
                       balOW '                        .. ... ,       -
                                           QJI \;he revc.£" aU. b8rao.£. for the fol.lowing conaJ.daration!
                                                               .. - - .   .
                                                                         ,.~                                                                 .
                       Ca)          '-'he     iMeellllUon.        mil .Dlnt~. by Lnse.E o~ the 'louoving
                                 .' coin-lal.la&:l" e'i(u:l:pIaent ("I:be~t·) and :lm~_nw to the leaficld
                                   '~c;:                                          ;' '.  ",;<               fM IIIX
                                                                                    , l:,U 1'1' 1215   I 1                                                              UJtDm
                                          1:& - ~ Ma,yteg. V.a~                   t"       • "             'l.. . .
                                            is - 'J\IIa23,~ -'~a.g Dryers        , '. 3:23:" ~       , 1. 1 -1J3lW:J2
                       (bL,~ ~t                                    br., t.KS$B2-:0.f nf'ty percemt (5Ot""o.f                              ~e groa.e. ~.
                                  c;ol).~a                 by       USS2l.            ~   i;tI.wash8ra 'IInil dryQrs Ulataqaci by ~.
"
                             . ';1itt9- tbe i'rojOQt, to                            be ~d mO~th~y.               .
                       fbR       ,de$o.r19~                o£      the' ree1 prOpei:tjr upon. whlch tbo Proj &Ci;                           ;La located 1.5:                .I

                                       ,~                                                         ~~t
                                           ~1I1te .
                                                           f1v.
                                                                    ,l,aZa..
                                                                         (S)         thro\l9h
                                                           a~iJb&..,.~ Ul 'l'ra.V1.lJ COUnty, faqs.
                                           l.Gc~~).t" ~. aC "f4a.' .,,~j~ A~t:v. nOl '1'otm
                                                                                                                      (8}' .1Gcl.U$.:1.ve, Bloat c,

                                                                                                                                                                                                        . i
                            .:             t::l:r4~, . Au~ 'f:effl~                          CWl:.tY.      'J'exas
                                                                                                                                                                                                    "
                                                                                                                                                                                                          i
                                                                                                                                                                                                             I.

                                  L£.6~.        ~l                  ~               'the    dgllt        oJ!            and j!I~1I to .nd ~ tho
                                                                                                                     J;ngriSnJ                                                                          ·1
                       ~    prlllil:l.~ aftc1 ~III be) , ~                                                 Prpj~t     q    is noolUf~q to install,                                                           I
                       ce~~ ~ ~;~~i1 ~~~i$.t                                                               ~1ed 'by' Llt~B and 1:0 eou.~                                                      --,            (


                       ~~ t1J8m£rma.         1iQ4' t.USli! 'iibll.l                                        be eiltitJ.ed 'to the gUiol: enj0:idllant to
                       t::he 'i~            ~._ ~ 1;:iw'                                    tIIm-1uaraoE ~ eny renow.l ho~l.
                                  ~ PbXtillla. h~                                    a~8        thet::     ~.             Contract and Lease I\greemsmt 1.
                       ",!b,:f;~. ~ aU        cd. the                                tanaII ami
                                                                                   c:onditionll on ~ i:e~ d.Oo twnot;
                       '~~~t                                   CCampanTCa. the elIIM.ay b$) WOCTut. t~t ;Lt; MIs the ftlu
                       ~:t:J<               ~              l'l!iJb1;,     to        R;Oter Ulto th;ta agtilllUWnt aild lease aa ev1d&bC&d by
                       Us s1:gnatui-c btU.OW'.
                       LSSSIlR'1                                                                               ~SJ:':: .



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                                                                                                         , ~o.c,"1J 11:1'1. ~t.\~                            .


                                                                                                  ~.-
                                                     (         )   ~b.it             A - D£il1t:Ln9       ot! LoM~~~1t~·.;;;eC;::·:;:·,,:.:e:.:s:...-.~~~,                                          --. .
                                                     (~)• .P.~.t9~ CodL!l~', D.UlIt~
                                                                                           anoe ~eaent                                bII!r~~"lIM
                                                           .
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                                                                                                         ~I'MPUTT liED!lftllS
    t't.'
                                             .....                                                       .....ns COIIlITY. T£X.U                                                  EXHIBIT
                                                                                                         II G~g
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                                                                                                                                                                                 GP 000096
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                                     • . .;>.,                                                   )

                 .,~7
                       ",,:Y
                             7'
                                                 ..
                                                 EXCLUSXYB
                                                           ",-
                                                           !lI~:,
                                                 ~iJliilt&r ral~ed
                                                                                     . '.'.
                                                                   (.eBsor hereby 9rontB to McNAll!. I S COIN LAtJJmItY CO.,
                                                                     to as LaSS_,' en o101USlve 1.ea1l8 to tb4 loaaed
~~
                                                 ~8.         aDd the .,.cl\U1tve right:         ope.nte D%ll1 pravJ..do, loundr,i aqu1.~tmt              w
                                                 and serviclOS to ?:be l'rojeot.           (1nolwJiJlg to the exelus~on of LUsor
                                                 .insteu.~     equ.1p111ent - in :i:.ndiT1dua,1 apartmenta).       My _anibnen.t to this
                                                 ~t: CIIU$t'ba:in wrltLng IIln4 eigne!! by ~ part:i.es.                  k n _ ahol.l I:lavs
                                                 tha SOla rtgnt: tQ $$t the priOa for tho \lS8o 01 the co':tn-laUO\trY oqUipMnt,
                                                 but: ouobprieo :mall. ~_ya be ~ .. Utl.ly r~ab1.e_ J.aasl".'8 .xel.uSJ.VCl
                                                 leUe shall bs irubj60t t:o thu Wl8 by r.aslo'IQr'. teI\QI').t•• their :l.nTi~.1J e.nd
                                                 .;,u.n., .,d ~89 ~ Le:soor. .                                          "

                                                 ~                         ~~CS OB~GiI\TIOBS:                                            Le-.- ,wnl .iroJtall. aerv:t.eo and ...untun tne,
                                                 oqiripillent ~                                  p-.r:I!'OJ:'Jl            auoh          ~6r:vl~va as :stated :l.n tldlJ COO\;:root an4 Lease
                                                 ~t.                                     ~_.t.11:3                                       expense                 at\a.u. ma1.n"te.1.n. the itqUi~lIUII1t in pood
                                                 rep.e.ir and wurldng can¢!.tlon at au tilltas.

                                 ,•
                                                                       '    . . . .~,'    1:_l't"          ........   _,   .~.......                '        ,"


                                     ,-          ~IP                           OP           ~:                                A:ll. eq"iPJlllent.' :fJ.x1;Uro. 800                   tunuslUnga ±nnall,e~
                                                 bY.        ~e                     l:IIlual.~utolY                                       :remain             the proparty of l.e1OBee..      .Lessor $ball
                                                                                                                                            r..ssoo·Q
                             ..
                                 t               take Pruesul;JDri5                                        to protoct                                             :prOP'l1;ty :fl:Oa ~~. pJ.l.£era9c and
                                                 haria o~__ ~                                           woar lind 'tear .nd .,.111 p~t l.tt~ "!:ri J;_VO -th.


                                                                                                                                                                                                                                               -
                                                                                                           flOrJlIa1
                                                 ~t                            «ma.              :f1l~9'U upon tUlJ.lnat1~ of ttue, had or any ~tlD9W41,
                        #-                       Ile%'cof.                                                                                .

                                                 ~.:                           Lea~ w.f.l.l ~tI!1n the laUnclrY r~ in ~o(I.~r~d 11\.
                                                  Clftrl         ·aaa        _1~ ~~ fi:Ae..end ~l.ear o~ all tr~ ~ :r1S~~.
                                                 !i!P'PXSS:  '~or $hall at                                                                   ~ts a~_ ~$h uttl.i:t;lCis ill' '1;bo 14:aHd
                                                  p~       1nC;J.udJ.ng ~B~~                                                                ao4 siuU.i~1e1\i; ·~t ancvor ,air eOaaitiiabing •
                                                  .n~; dtalnaga anl!el~1cf.tY                                                               tOl" a u.imary xOCU.

                                                 'P~1fBl;                       l"Ofotcns:                        -Ui, parllQDDal: -.poy~ ~ ~lJseo ~ell. at,a+;t ~ be

                                                 ,~,: :,*,,~~;~. ~~.4~~'r.~ ~~~i.va~~~~$=,
                                                 15.' .~ ~r1y erad ~t'.t.G:t.ent 'c;ondut;rt O;f !Ill ilct:LV1UU on ~~'e prCnljes.

                                                  r~Ji~tb.e ~                                                                       of'     ~ l~, r.~e ~. ~diI,~k~                                                           in
                 , \                              ~rt~.~~
                                                  Mju~
                                                            ~ ~~;aJ. u!!~~~f~~~
                                                       l!irl~. ±ft.~.q.pe- ~D.
                                                                                         =~~~
                                                                               ~e .o~l no" be l:1Alilei·1:o Lessor
     « .. .
         ~~
                                                  .i;,!!-';~ -..~'                        ..           ~ ~                             to the loaee<i ~~ U1c:;l.~ ~ to tho
                                                  l:~~               prJIIa~                           X1tSJtl~                        ~                water.       nrXXU.ng.           ~~1\.t             U1Z pl~
                                                 'hf'~ii? ~~:~~ ~~.~. '                                                                                      .                                                    ,   .       .'
                                                                                                                                                                                      -~. ii:s!i1 9ri1 lIPb,loaGa a.t'                          ,i
                                                                                                                                                                                    :.tn PIIrl'         ~ -PT n(>t
                                                                                                                                                                                  Of ~~. ~:w;-,.\JOb
                                                                                                                                                                    tdtbbald.        ~ ~'sholl
                                                                                                                                        '.              '.   ~~t~         UpOn.        ~ ~VWli41;f.b:ll ~
                                                                                                                                       ~~l;"~=a :~~~!11;~~:
                                                                                                                                    .~ ''''':~   .', ,tfi.tr~or~·                                                                                    :'
                                                                                                                                                               .,' ;bshS··
                                                                                                                                                                      .. ' '.iino
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                                                                                                                                              ,~~ of· ,fo-.or'" b~. loaolY~~ or
                                                                                                                                               ag)\~t. ~Bs.e!l ~~.:6'fl :~ts! ~lvn" tue
                                                                                                                                                         ~fi.08b.i!Jl.Q~"" ,lilt ~M'"\IJ:IoO~~
                                                                                                                                   .....                 ~":(of:~d"~ .~~~
                                                                                                                               w-1.1:bP\.I;t. 1tUb~~:1tT of ~,~"tf. ~ c)(" ~nr

                                                                             .,            1I.im. IBR6!                        .        %, -            'rlIw,:       .       Btid:tee'                 til. :,.' . , ~·en
                                                                             ~ Hit· "tih.,~, it 'h.~ ~.nh;t,gi:n ~:fpr.
     I      ....




                                                                             ~', •. , 0:): '~::.a.l =,~.~K...-;~ 're!iIt:iot- 'a ·mr~                                                                                                                 i
                                                                                      ~~~i ~ '~' 'iJ;~~!;ln "~' .,,~. '0. e~'~ bY                                                                                                                   : ~
                                                                                          .    ~O~ ~=Oli 'tb~l-.dll .a:d '004~t 'jiij tie'                                                                                                          ".;
                                                                                                                                                option, f'ar unpro:f.1"ti1ilWtY.by giviAg suty'
                                                                                                                           '1;0    Lessor.                   . . '                                            -




         ..r"
                                                                                                                                                                  ,liUlnOPatlnEOOJIPS
                                                                                                                                                                     TllAWUOUJrfY. mu
                ~.'

                                                                                                                                                                   I I S~~ 07 J g


                                                                                                                                                                                                                                   GP 000097
TAB B
DEFENDANT EXHIBIT
From:COINMACH SAN ANTONIO                              210 697 8368                      08/04/2008 15:16 #176 P.003/014




                                                   COIN"MACH COltPollATION
                                                         I...MSE AGJmEMENT


   STATE OF TEXAS                                                                                          DATE; J'anllltt}' 30. 2002
   COUNTY OF TRAVIS                                                                                        WCATION U-6293

   M.ema!.1rOOWi of agreement ~Em COJNMACH CORPORATION~ bereirurller ca11cci'I.ESSEB. and ijrldge Management CJ!.,
   OwnerIar acting with full authority Iijl owners agent, hereinafter ca.Iled LESSOR of the property cansistJng of (lU) Ap!ll'fmen.t .
   Units ]ocate4 at the 1I.ti.dres.s ~only .k:no\V1\ as .1iMI¢!a . A(:lar!mentlI, located I l~Ol Town Cre"k Drive • ..A.u!titL ~
   1mL.



             1.        J'...'llSSOR herewith leues unto LESSEE. IIm1 LESSEE hereby rents fh:Jm LESSOR. the Iaundry room(li) on
                       the premises qel!c:ribed «bove com.mCll~ tlIl·da~ of Lease and ~g 1m (ll!) years after LeIU!e
                       Agreement. il 8i~

            2,        LESSEE sluill. be entitled to tbt: right of exclusive _llatiott Itt1d opemti.o.n of the equipment nil the fllxr1e
                      described premises far which LESSEE shall pay 10 LESSOR a rentt.l.l of ~ ~ %) percent of tilt:! srosB
                      receipts, 't:bI!I 1linta1 will be paid In(mthl;y by check to LeMar,. provided bowev~. that the le8sec aha:ij
                      e1WByt be entitled to receive flS minimum compensa:ti.an $45.00 P(II.' macll.Ine. pt;:r month. DedootiObj;l from.
                      1h<= IIIlttl to ~ paid LruiSOR &ba.Il mcl.1Jdc, if imd vrll.en applicable, any lllIl.IIicipal or state license fm Md
                      I,lilcupatiorud, salOl!, use rental, personal ~ or fi:tmol.tise ~ and refunds to U9fi.                    .

             3.       LESSOR ,ball. at its OWA ~e, provide IIl'I.d rtuuntain 1111 necessary electric, gas, water, ~ IIlld 1111
                      other facllitios required to properly ~ the equip.tnOfit, Including utility CO,IitieI:lljone. LESSOR shall
                      clean lIIla maintain the pt'(lttIlsei lind promptly DQtify LBSSlill if end When the equi~t OMseli to operate
                      In a normal. 111rult'IeI:'. LESSEE, sholl own and maintain tl1e ~quipment that it inJIUdb, without exponal.l to
                       LESSOR.

            4.         LESSOR agrees t() provide w.fficient me laundry rootn(e)with adequate lIPI.tOO, 'Which will allow the
                       LESSEE to install an /ltkIqt.mte tlltlOunt ofWUliher(s) and. dryar(*). In the event LEsSOR request/!, in wrltlng,
                       tho ~em.mt of fifty p~ or MQt¢ of LESSEE' Ii lllUlldty equipment during thetenn Of th.ill Leru!e with
                       new machines. the U!:8SE'E ma:,r. upon reeai.pt of said writtetll\4ti¢e and. replace.tne!l.t of the laundty
                       equipment. axteru1 the original term Ilf fhiB Le~ fbt a period. of five (5) yem. All additir.uuil renewal
                       terms lIhall then be: onlIJ.rsed to ~ the ~ origirud term. LESSEE ~ the right to install
                       other vend.h1s equip.ment in.tl'Ic pratni~$ and to e.ffi.x ~ble IIj~1I or other notices to tl!e walls and
                       eqw~                                                                                                         .


             5.        LESSEE shall maintain      It   reasonable amount of CQmp.rehen&ive     gentlt'~   liability and   ptopM:y   dam.
                       fnsurltll,Ce.

            6.         LESStm Bballlmve eKciu!!iw 8.tld quiet uac, posseaainn and enjo}'ll*)t oftbe premise! ~ed herein during
                       tl\c L~ te.nn.

            "          This Letll'!e IiliIIll be automatlcelly ren.evved for succesllive periOds !:if time ll1l1e$s CWlCeled in wri~ by
                       ~ed or re~d mail by Gither party at 1eut oo~ year prior to its ~riltion.


                                                                                                                                    EXHIBIT




                                                                                                                              GP 000004
 From:GOINMACH SAN ANTONIO                                                      210 697 8368                                                 08/04/2008 15:16 #176 P.004/014
                                  ,~   .. _ _ _ _ . _• • _ _ n   . . . . . . . . . . . _.   " ' • • - . ••   __   ~--;--_&   ,......... ':




             8.        LESSOR imd. LESSEE agrell that ill CODiidera.~ of' 1ful provisions of this ~ Lease Agreement.
                       LESSEE shaU be entitled to the right of exclusive installations and rental of any tlOn~ laundry
                       equipmw in ctu: apartment units on the above dcsoribed premises. . 1'hia in8tWliltion and:retltlU IIhaU either
                       be where LESSES leuell the laundry equipment to the owill'mlloWllell:S ~ or wh~ LESSEE leaaelJ
                       directly'to the rosident.

             9.        LESSEE ahall have the right to terminate this Lwe. upau w.ritt.tm ntrtire to LESSOR, if (a) y!lllrllllism,
                       theft. Ill' attempted thaft at tbe premllleS ~ eooleSsive lIO as to seriously ~ LESSEE'S ability t,o
                       pll1fOm1 under the Lease, CIt (b) WJaSC of the equipment in any three (3) ~ve months does not ~ed
                        an average aU QYCiclrper ~ per day.

             10.       CQINMACa CORPORATION. or illl assignee!!, is horeby g1'VC1l1l right offirst rofusal to CIlOtinue providinB
                       lllUll(lry service to the pt'e!JlWCII upon the expiration Of termination of '!bill Lealie for. any realIQn, LESSOR
                       IIhAll not IMtle the premises to a LHSSER other than C~c:h Corporation unles!J (1) LESSOR h.as first
                       provided CoimnaOh Corporation with a. ~py tiC the dreCUtCd prtlpO&ed lease containing bont'tfide termJi of
                       t1)e o1fer beinS no ll!ll!l$ thpn five ycam. and (2) within thirty .(30) dttys Bfter Coin:tnrlclt Corpomtion flCltua1
                       .receipt I,lf a copy ()(' tha pro}Xlaed lealfe, co.irunach lAporation hal flliled to notifY LESSOR of Coimnacl1
                       Cor,porationll' ·agreement to .InIl.tth !W:lb offer. If Coininac;h Corpo:ratlO1l does liO notifY L'ESSOR of its
                       ~ to matcb.1l1lrJl otrer within such t4irty (30) day peci(xJ. LESSOR. Bgrees to lease the l'J.'C1lliae& to
                       Cointruu::h COIpOftltion mbjed. to the tertn. ottllf:l PfQPOIed lwe.

             11.        tBBSOR shall :infotm allsublJequent OWllI!:r:ll of the ~ of the rights ofLE8SBE under this Lease,

             12.       In tho cft1lt Iitly aation is bW:itnted to enforce any provisfon of the Loose. the pmvtilli:ui party shall ba
                       entitled to 1"5llOllllble attorney fees, court cost and ~8.

             13.        'l'1tiJJ Lease sha.ll be binding on the. partieJ hereto, theit bein, executors, IIIlCCes3Olll, !Slip and personal
                        ~~.

             14.        LESSOR and LESSEE lI.Ckno'wledge tlud this I..eaee A&recme.nt ilan ~on. ~1, and ml',)dificati.tm.
                        of that certain Lea8$ A.g:reemerrt dated Mareh 1.1. 129.2 between             @r4s Conm;w,:tion Co" LESSO:R"            u.e
                        and ~!!jrtICOinI.an!l4!:lCo,                • LESSEE. n is acknowledged that BridgQ Manaaement Co. has
                        8W.lee&id in fttt.erest ItS r..ESSOR, IIlld Q9inmach CUJ1lQ!J!tion has II1lCCeOOOO in int~ /lS LESSEE,
              U.       A labor duq.e of S% of OrosI! Receipt(l will be deducted from LESSOR'S SUM if OO11t1tifig                                                  Qt1.   site is
                        l'«J.Uired.
i   Lessor is: __ Individtutl ~ertnershi:p _ Corporlrtion
    Enter Social Seourlty number or the FedenIl ldentificatkm u1.lmber in the appropriate space.
    S0C1AL8ECUlUTY#___-                     _ _ __
                                                                                                                     COMMl8SJOl:'iS TO BB SENT TO:
'f FEDERAL I.D. #      t3 7 -   C!)'"
                                    '2. t.. l.t. 'Z..                                                                APARTMENTS ~ OWNImlAGENl'_ _
                       67 . cP (.". "2.1!.. £ 'Z. "Z...
    LESSOR                                                                                                           LIlSSEII:
    BJUDGE MANAGEMIU'ff co.                                                                                                  cOlN>W!Hg0N"
      1"7&_ ~~ :-,.
 fBY~i~                                                                                                              BynIlAu~~S~

'rDATB:           7 .. ZO·oL                                                                                         DATE: _                  ~ ...   4.1 .. 62
From:COINMACH SAN ANTONIO                       210 697 8368                   08/04/2008 15:16 #176 P.005/014




                                          COINMACH CORPORATION
                                         S1JPPLEMENTAL AGImEMENT


     LQCAnON i#J-6293


               A one time Leaso BonuS/Decoratlon A~lowance ofFQllrteen Thousand M4 noIIOO ($14.000,00)
      Dollars will be made payable to Bridge M!nft~t Co. within forty~fivc (4S) days after the iusta11!lti()tl
      of the equipment. Apceptancc and dtposit of the check for this amount is aoknow1edgment of recoipt of
      payment This Lease covors aU coin operated laundry space in the multi..:fiunlly COttmluniq known as
    . ~ ApartmentB. LESSOlt, Bridge Management CQ. is owner or acting with fUll authority llS
      owner's agent of this pl'Qp«ty.

                LESSOR warrants that the unearned pi:Qrate share of the lease bonusIdccotation allowance will
     be ~ to LESSEE if LESSEE, for any reMOO sbaWd be req~d to remove its laundry equipment
     £rom these premises prior to the expimtion of the original tean of the Lease. The Originall:..ease wat for a
     period of 120 ttlOn.ths. Its monthly value is $116.ti7 fo~ pro-ration determination. AlsQ. in the event
     LESSOR insWled, or causes f.Q be installed. during the temr. of this Lease. WQbers and/or dtyc:rB in the
     units tlurt are the snbject of this Lease; LESSOR win llotify LESSEE of such lnBtalIation and return to the
     LESSEE the unearned pro-..ra.ta portion of the lease bonus/decoration allowance. The following formula
     will apply! (Number of units where washers and/or dtye.rB have been installed, divided by the total
     ntllnber of lUIits) multiplied by (the number of years remfti'Qing on the Lease,. divided by the toUd years of
     the subject Lease) 1lIUltipliod by (t:be original lease bonus/decora.tion allowance) equals t]:u, amount of
     money to be refunded by the LESSOR. The fonnU.1a for pro tata determination delineated herein relates
     only to calculating pro rata rcrtum of the leaso bonusl4e«lration alloWlUttle paid to LESSOR by LESSEE.
     Nothing stated herein aIf.ects in any WIlY LESSEE'S tight to receive oompensation for lost b:I.coine in the
     O'\"Ont of LESSOR' ~ breach of the leslie agreement




     LESSEE;




                                                                                                             GP 000006
TAB C
DEFENDANT EXHIBIT
                                                                                                                                           lOt


                                                       COJNMACH CORPORATION
                                                          Memorandum of Lease

                                                                                              DATE April 22,2002
                   STATE OF TEXAS
                  COUNTY 0'F'TiAVIs

                  TbJs ll1SU'UfDent Mil CVldence and when ro::orded serve BRIDGE MANAGEMENT CO, owner« Ilctmg
                  With full authOf'll)' as owners agent. hctemsAer called LESSOR oflbe pre:ml3CS commonly kAowD a.<-
                  REGEnA APTS_.I~M:d at 1201 TOWN CREEK DR., AUSTIN, TX 7JlU
                                                                                                             ,.
                  Lessor and COINNACij CORPORATION, u Le:!sce did a.ecotc II Wl"1ttI2t Lease Agreement of real
                  esI:.ak v.fuch )X'OVJdes m part that dunng the penod therem. set Iiiih> t:CiieC Jli$ tbC ngbt to oocupy the rea)
                  estate on Willdl all laundry rooms lICe IX" WIn be SJtuated OD. the land and ~ named above tlIldc:r: the
                  !emu and coodItJons of said lease

                  CopIeS of saW Lease: (whJcb     IS   meorporated herem by rdi:n:nce) ~ 011 filo at the   lespedJVC   offices of
                  Lessee and Lcssoc

                  Ex=odth./J            "".f ~
                                        ZL                      ~3.
                                                                 100\    ~

                  Before me the anderstgnai IIllthonty on thIS day personally appeared Mth We!Itq. &gloom Vu%
                  Presldenl of COlnmach Corporation. known to me to be the pc:rsoo whose llIIme lS suI:=nbc:d to the
                  fore&omg .l1I.StriJmcDt and ac:Ialawlc:dged to me that be a.CCI.Iled the same fur the purposes and eonsidemllXl
                  therelll expressed
                                      4L         Ql<'i::)3,.
                  ONeIl            (f
                          und~ my band and $Cal
                                         day of ~ -2M-
                                                   Ous     I
                 ·~~s2~-£2<'
                 Izn& Jean TiemaJ6
                  Notary Public State ofTc:x:as
                  My CamlllS9l!lIl ExpIres August 7, 2004

                 RETURN TO:
                 COlNMACH CORl"ORATION
                 3S6} Dime Circle Swte 101
                 Aostin. Tens 787«-2300




                                              FILED AND      RECORDED
                                                      PlJll.re
                                                           DFF1CIAL          RECORDS



                                                                                                                                     EXHIBIT
                                                    e3-25-Z8al 12 If,7 Pn ZH306!!e71
                                                            ~$9"
                                                   DAHl! Da[AlJ'lOtR • COUNTY CLERK:
                                                           TRAVIS CO\JNTY. TElCAS




,scription, :n-av:i.8',:r.r 99-PrtlSellt l'6£r.DocXD 2003.65071 PAge: 1 of 1
~~: V8775 COJ:I!mellt:                                         .
TAB D
DEFENDANT EXHIBIT
                  Assignment and Assnmption of Leases and Service Contracts

Date:     dAyl5               ,2007

Assignor:        FOLEY CAPITAL ASSET, LLC, a California limited liability company

Assignor's Mailing Address: 6103 Avenida Picachot Rancho Santa Fe, San Diego County,
                            California 92067

Assignee:        GRAYCO TOWN LAKE INVESTMENT 2007 LP. a Texas limited partnership

Assignee's Mailing Address: 55 Waugh Drive, Suite 500, Houston. Harris County. Texas 77007

Property (including any improvements):          The real property more particularly described on
                                                Exhibit "A" attached hereto.

Leases:          All residential leases to or on the Property.

Service Contracts.:       The contracts relating to the Property set forth on Exhibit "B" attached
                          hereto.

Consideration:            TEN DOLLARS (SI0.00) and other good and valuable consideration. the
                          receipt and sufficiency of which are hereby acknowledged.

          Assignor is conveying the Property to Assignee by warranty deed dated this date.

        Assignor, for the consideration and subject to the Reservations :from the Conveyance and
the Exceptions to Conveyance and Warranty in the warranty deed. to the extent they affect the
Leases, assigns to Assignee all of Assignor's right, title. and interest in and to the Leases and the
Service Contracts. Assignor binds Assignor and Assignor's heirs and successors to warrant and
forever defend all and singular the Leases and the Service Contracts to Assignee and Assignee's
heirs. successors, and assigns against every person whomsoever lawfully claiming or to claim the
same or any part thereof, except as to the Reservations from Conveyance and the Exceptions to
Conveyance and Warranty in the warranty deed, to the extent they affect the Leases and the
Service Contracts.

        Assignee assumes and agrees to perform the landlord's obligations under the Leases and
the owner's obligations under the Service Contracts arising after this date. The obligation to repay
security and prepaid rental deposits to tenants under the Leases is limited to the amount of cash
delivered or credited by Assignor to Assignee with respect to security and prepaid rental deposits.
Assignee will indemnifY> defend, and hold Assignor harmless from any loss, attorney's fees,
expenses, or claims arising out of or related to Assignee's failure to penorm any of the


47.24S2Ov.21301691OOOO2
                                                                                                     EXHIBIT




                                                                                               GP 000060
obligations of the landlord under the Leases or the obligations of the owner under the Service
Contracts after this date.

        Assignor will indemnifY. defend, and hold Assignee harmless from any loss, attorney's
fees, expenses, or claims arising out or related to Assignor's failure to perform any of the
obligations of the landlord under the Leases or the obligations of the owner under the Service
Contracts before this date.

        When the context requires, singular nouns and pronouns include the plural.

                                                     ASSIGNOR:

                                                     FOLEY CAPITAL ASSET. LLC, a
                                                     California limited liability company




                          [Signatures Continue on the Following Page]




                                                2
472452Ov.2130169100002




                                                                                            GP 000061
                              ASSIGNEE:

                              GRAYCO TOWN LAKE INVESTMENT 2007 LP,
                              a Delaware limited parlnen;hip

                              By:    Grayco Project Town Lake GP LLC, its
                                     general partner

                                     By:      Grayco Partners, LLC, its sole
                                              member




                         [End ofSignaturesJ




                                 3
4724520v.2130169/oo002




                                                                           GP 000062
                                         Exhibit "A"

                                      (Legal Description)


TRACT 1: Lot 4, Block "c" of Resubdivision of Lots 1,2,3 and 4, Block "C", TOWNLAKE
PLAZA, a subdivision in Travis County. Texas. according to the map or plat thereof, recorded in
Volume 49, Page 56 of the Plat Records of Travis County, Texas.

TRACT 2: Lots 5, 6, 7 and 8, Block ..C·., of TOWNLAKE PLAZA, a subdivision in Travis
County, Texas. according to the map or plat thereof: recorded in Volume 18, Page 38 of the Plat
Records of Travis County, Texas.




                                             A-I
472452Ov.21301691OO002




                                                                                       GP 000063
                                         Exhibit "B"

                                      (Service Contracts)


1.      Gas Transportation Agreement dated February 19. 2003, with Texas Gas Service
      . Company

2.      Vending Agreement dated January 8, 2003, with Vending Solutions, L.L.C.

3.      Communications Services Agreement dated May 15,2001, with Grande Communications
        Networks, Inc.

4.      Contract for Services and Lease Agreement dated March II, 1992, with Coinmach
        Cotporafun (as successor-:in-interest ofMcNajr's Coin Laundry Co.)

5.      Service Agreement dated March 28, 2002, with waste Management of Texas, Inc.

6.      Ad Insertion Contract dated September 30, 2004, with Apartments for Rent




                                             A-I
472452Qv.2130169100002




                                                                                       GP 000064
TAB E
                                       CAUSE NO. C-I-CV-08-009655

          COINMACH, CORPORATION                        §              IN THE COUNTY COURT
                                                       §
                                Plaintiff              §
                                                       §                                                   ~ '~'-.

          v.                                           §                                                    l.~)

                                                       §                                                      -n
          GRAYCO TOWN LAKE                             §                                                      ()
                                                                                                                )J
          INVESTMENT 2007 LP                           §
                                                                                                                     )J
                                                       §                                                             rn
                                Defendant              §                                                              n
                                                                                                                      u
                                                                                                                      ;1
                                                                                                                      C)

                . CAME ON the 20 th of August, 2014, the above entitled and numbered cause

          wherein Coinmach Corporation ("Coinmach'j is the Plaintiff and GrayeD Town Lake

          Investment 2007, LP ("Grayeo") is the Defendant. The parties appeared by and through their

0===
0-
o~
          attorneys of record and announced ready to proceed.    .
co=
1\)-             All matters in controversy, both legal and factual, were submitted to the Court for its
(..)===
0_
c  o_
[J'I_
          determination. The Court, having heard the evidence, including testimony and exhibits
   ===
          admitted into the record, and considering the arguments of counsel, has announced its

          decision in favor of the Plaintiff Coinmach. The Court hereby renders judgment in favor of

          Plaintiff Comach.

                 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Coinmach

          have and recover damages from Defendant Grayco in the sum of $67,122.]9, plus

          prejudgment interest in the amount of $19,695.31.

                 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Coinmach

          have and recover from Defendant Grayco its reasonable and necessary legal fees, which the

          Court finds to be the sum of $44,005.14 through the trial of this matter, including

          conditional awards of $2,500.00 in the event that Defendant Grayco files an unsuccessful


                                                           I
Motion for New Trial, and $5,000.00 in the event Defendant fIles an unsuccessful appeal to

the Court of Appeals, and $5,000.00 in the event Defendant files an unsuccessful appeal or

petition for review to the Texas Supreme Court.

       All costs are taxed against Defendant Grayco. All amounts ~warded herein and

unpaid shall bear interest at the rate of 5% per annum from the date of this judgment until

paid. This is a final judgment. All writs and process may issue to enforce same as allowed

under Texas law.

       IT IS SO ORDERED ON TmS           ~ DAY OF NOVEMBER, 20




                                                  2
•..   ~   ..   'I'




                     Agreed as to form and substance:

                     KASLING, HEMPHILL, DOLEZAL
                     & ATWELL, L.L.P.
                     301 Congress Avenue, Suite 300
                     Austin, Texas 78701
                     Telephone: (512) 472-6800
                     Telecopier: (512) 472-6823


                     Br.      R. k~i;f k=.A~
                            R.KempKasl'
                            State Bar No. 11104800

                     ATTORNEYSFORPL~F


                     Agreed as to form only;

                     DOBROWSKI, LARKIN & JOHNSON, L.L.P.
                     4601 Washington Street, suite 300
                     Houston, Texas 77007
                     Phone: (713) 659-2900
                     Fax (713) 659- 8

                     By: ---+-J,--*,~~-------
                           F eri Johnson
                              te ar No. 00785429
                           Cody W. Stafford
                           State Bar No. 24068238
                           Akilah F. Craig
                           State Bar No. 24076194




                                                        3
TAB F
                                           •                                        •        Filed: 12/8/20143:36:42 PM
                                                                                                        Dana DeBeauvoir
                                                                                                      Travis County Clerk
                                                                                                       C-1-CV-08-009655
                                                        CAUSE NO C-I-CV-08-09655
                                                                                                              Andrea Scott

           COINMACH CORPORATION                                            §   IN THE COUNTY COURT
                                                                           §
                      Plaintiff                                            §
                                                                           §
           v.                                                              §   AT LAW, NUMBER 1
                                                                           §
           GRAYCO      TOWN                                         LAKE   §
           INVESTMENT 2007 LP                                              §
                                                                           §
                      Defendant                                            §   TRAVIS COUNTY, TEXAS

                                          DEFENDANT'S MOTION FOR NEW TRIAL

                      Defendant Grayco Town Lake Investment 2007 LP ("Town Lake"), requests

           the Court set aside the judgment in favor of Plaintiff Coinmach Corporation

           ("Coinmach"), and grant a new trial because-among other things-Town Lake did

           not breach the 2002 Lease.

                                                               I.    INTRODUCTION

                      1.         This motion is filed within 30 days of the judgment in accordance with

           Rule 329b of the Texas Rules of Civil Procedure.

                      2.         The Court signed the judgment against Town Lake on November 6,

           2014. The judgment awards Coinmach $67,122.19 in actual damages and

           $19,695.31 in attorneys' fees based on the Court's determination that Town Lake

           breached the 2002 Lease.

                      3.         The evidence admitted at trial, however, does not support the

           judgment; thus, the Court should order a new trial.




Case # C-1-CV-08-009655


'-'IIIIJ ""'JIIII 11111 11111 111111111111111 11111 11111111
                   •                                    •
                    II.   ARGUMENT AND AUTHORITIES

      4.     To recover on a claim for breach of contract, Coinmach must prove (1)

   that the defendant was a party to the contract, (2) that the defendant failed to

   perform a material obligation of the contract, (3) that the plaintiff performed or

   tendered performance (4) that the plaintiff was damaged as a result of the

   breach.   New York Life Ins. Co. v. Miller, 114 S.W.3d 114, 121 (Tex. App.-

   Austin 2003, no pet.). Here, Plaintiff admitted no competent evidence sufficient

   to support a finding on three of these elements. Alternatively, any finding by the

   Court on these elements is against the great weight and preponderance of the

   evidence, requiring a new trial.

   A. Grayco Was Not Party to or Bound by the 2002 Lease Because it Was,
      as a Matter of Law, a Good Faith Purchaser for Value Without Notice
      of the 2002 Lease

      5.     A bona fide purchaser is one who buys property in good faith, for

valuable consideration, and without notice, actual or imputed, of outstanding claims

of a third party. Swanson v. Grassedonio, 647 S.W.2d 716, 718 (Tex. App.-Corpus

Christi 1982, no writ); Colvin v. Alta Mesa Res. Inc., 920 S.W.2d 688, 691 (Tex.

App.-Houston 1996, no writ) (citing Cooksey v. Sinder, 682 S.W.2d 252, 253 (Tex.

1984».

      6.     Actual notice results from personal information or knowledge, as well

as those facts which reasonable inquiry would have disclosed. Fletcher v. Minton,

217 S.W.3d 755, 758 (Tex. App.-Dallas 2007, no pet.). Constructive notice, on the

other hand, is notice the law imputes to a person not having personal information or



                                          2
                   •                                     •
knowledge. Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001). A purchaser has

constructive notice of instruments recorded at the country clerk's office, and lying

within the purchaser's chain of title. TEX. PROP. CODE § 13.002; see also Porter v.

Earnhart, 343 S.W.2d 294, 297 (Tex. App.-Dallas 1960, writ refd n.r.e.).

      7.    A bona fide purchaser of real property takes title free from any

encumbrances of which the purchaser did not have actual or constructive notice. See

Smith v. Shamburger, 273 S.W. 645, 646 (Tex. Civ. App.-Amarillo 1925, writ.

dismissed); see also Hampshire v. Greeves, 130 S.W. 665, 668 (Tex. Civ. App. 1910)

affd, 143 S.W. 147 (Tex. 1912); see also Flack v. First Nat'l Bank, 226 S.W.2d 628,

631 (Tex. 1950).

      8.     In 2007, Grayco Partners, LLC ("Grayco") purchased the Regatta

Apartments and assigned its interests to Town Lake. While a 1992 Lease was

recorded in the Deed of Records for Travis County, it is wholly undisputed that the

2002 Lease was not recorded.     Despite conducting a search of the real property

records in Travis County, Texas, Grayco was not aware of the existence of the 2002

Lease because it had not been recorded.

      9.     Grayco purchased the property in good faith, for value, without actual

or imputed notice of the 2002 Lease. Because Grayco was a bona fide purchaser of

the property, it cannot be held liable for the terms and conditions of the 2002 Lease,

and likewise could not breach the 2002 Lease.

      10.    Town Lake then acquired the property from Grayco free of any

obligation to Coinmach on or about April 26, 2007. As the successor in interest to



                                          3
                   •                                       •
Grayco, Town Lake acquired the property from a bona fide purchaser and, as such,

cannot be held liable under the 2002 Lease. Ball v. Presidio County, 29 S.W. 1042,

1043 (Tex. 1895) ("To be a bona fide holder, one must be himself a purchaser for

value without notice or the successor of one who was.").

      11.     Consequently, Town Lake was not bound by the 2002 Lease and could

not have breached the 2002 Lease. Alternatively, any finding that Town Lake was

on notice (whether actual, constructive or inquiry notice) of the 2002 Lease is

against the great weight and preponderance of the evidence. Thus, the judgment

against Town Lake for a breach of the 2002 Lease is in error, and a new trial should

be ordered.

   B. Grayco Did not Breach Any Material Obligation of the 2002 Lease

      12.     The judgment against Town Lake is in error because the evidence is

legally and factually insufficient to prove Town Lake breached the 2002 Lease.

Because there is a complete absence of evidence to support Coinmach's breach of

contract claim, the evidence is legally insufficient to support the judgment. Serrano

v. Union Planters Bank, N.A., 162 S.W.3d 576,580 (Tex. App.-EI Paso 2004, pet.

denied).

      13.     Coinmach failed to identify a single term, clause, condition, or

obligation in the 2002 Lease that Grayco breached. No provision of the 2002 Lease

required Grayco to continue operating an apartment complex on the site or to

maintain occupancy at a specified level. Coinmach's corporate representative, Ed

Greene, testified that the 2002 Lease did not require Town Lake to maintain a



                                          4
                    •                                  •
mInImUm occupancy level at the Regatta Apartments. Even under Coinmach's

interpretation of the 2002 Lease, then, Town Lake could choose to renew-or not

renew-as many tenant leases as it wished without breaching its contractual

obligations to Coinmach.

         14.   Here, Town Lake's corporate representative, John Britton, testified

that Town Lake had difficulty finding qualified tenants for the Regatta Apartments,

which ultimately led to the decision to close and demolish Regatta. Coinmach then

sued Town Lake for shuttering the Regatta Apartments. Under Coinmach's own

understanding of the 2002 Lease, Town Lake had every right to lease-down, close,

and demolish Regatta.      Indeed, demolition of the property is no different from

maintaining Regatta with minimum or zero occupancy-both have the effect of

eliminating revenue for Coinmach. Neither scenario is prohibited by the 2002

Lease.

         15.   Further, Coinmach admitted that Town Lake had no obligation to

ensure that the tenants at the Regatta Apartments actually used Coinmach's

laundry machines. Coin mach admitted that the 2002 Lease did not require Town

Lake to force the tenants to use the laundry room; thus, Coinmach had no

contractual expectation for any future revenues. This is especially true when read

in conjunction with Coinmach's own position that the 2002 Lease required no

minimum occupancy.

         16.   Coinmach argues that an alleged lease-down of Regatta-which

supposedly began before Town Lake even acquired the apartments-was a breach of



                                          5



                                                                                      493
                         •                                                •
the 2002 Lease.           But no provision of the 2002 Lease purports to impose a

requirement that Grayco maintain a mlrumum occupancy level, as Coinmach

admits. 1 Indeed, Coinmach's damages expert testified that he began calculating

damages prior to the 2007 demolition based on this supposed breach.                                 But, as

discussed above, Coinmach admits that a lease-down would not be a breach of the

2002 Lease.

        17.     As a result, based on the plain language of the 2002 Lease-as well as

Coinmach's own interpretation-Town Lake did not breach the 2002 Lease by

either allegedly leasing-down Regatta, or by demolishing the property.

        18.     Alternatively, any finding of breach by Grayco is against the great

weight and preponderance of the evidence.

    C. Coinmach Suffered No Damages

        19.      Even if Coinmach had proved Town Lake breached the 2002 Lease,

Coinmach utterly failed to prove that it suffered any damages. As previously

discussed, the 2002 Lease did not guarantee any minimum monthly earnings for the

laundry machines. If tenants chose not to use the laundry machines, or there were

no tenants to use them, the laundry machines would have had zero revenue, and

Coinmach would not be entitled to anything else. As a result, Coinmach never had

any contractually-guaranteed revenues.

        20.      Coinmach asked the Court to speculate as to what the revenue would

have been, using the assumptions that there would be tenants to use the laundry

I The only way to impose such a requirement would be to impose it as a concomitant of the duty of good faith.

Texas courts have unambiguously rejected the notion that there is a duty of good faith in an ordinary contract.
English v. Fischer, 660 S.W.2d 551, 522 (Tex. 1983).

                                                      6
                        •                                                --
room and the tenants would, in fact, have used the laundry rooms but for Town

Lake's     supposed decision to             lease-down and then               demolish the Regatta

Apartments. 2 But a party may not recover damages for breach of contract if those

damages are remote, contingent, speculative or conjectural. Southwest Battery Corp.

v. Owen, 115 SW.2d 1097, 1099 (Tex. 1938); Pace Corp. v. Jackson, 248 S.W.2d 340,

348 (Tex. 1955); City of Dallas v. Village of Forest Hills, L.P., Phase I, 931 S.W.2d

601, 605 (Tex. App.-Dallas 1996, no writ). Lost profits claimed as damages must

be established to a reasonable certainty. Holt Atherton Indus., Inc. v. Heine, 835

S.W.2d 80, 84 (Tex. 1992).

         21.    Based on the unrefuted testimony from Mr. Britton, occupancy at the

Regatta Apartments was declining due to the terrible condition of the apartments.

The conditions-which were present before Town Lake acquired the property-were

such that vagrants had taken up residence at the Regatta Apartments. Coinmach

has absolutely no basis to assume that there would have been tenants at the

Regatta Apartments willing and able to use the laundry machines through the

expiration of the 2002 Lease.

         22.    Therefore, Coinmach's claim for damages fails for two reasons: (a)

there were no provable damages suffered because Coinmach was not entitled to any

specific amount of revenue or profits from the machines; and (b) any damages

Coinmach claims it is entitled to are speculative at best.




2 Notably, Coinmach's entire damages analysis is premised on supposed actions by Town Lake that even Coinmach
admits were not breaches. This is fatal to Coinmach's claims.

                                                      7



                                                                                                                415
                   •                                    •
      23.    Importantly, Coinmach's failure to prove its damages extends to both

its breach of contract claim and its breach of the covenant of quiet enjoyment claim.

Even assuming that Town Lake breached the covenant of quiet enjoyment,

Coinmach suffered no damages for the same reasons that it suffered no damages

from its breach of contract claim.

      24.    Alternatively, any finding that Coinmach suffered damages as a result

of the alleged breach of the 2002 lease by Grayco is against the great weight and

preponderance of the evidence.

   D. Coinmach Failed to Mitigate its Damages

      25.    The mitigation of damages doctrine requires an injured party,

following a breach, to exercise reasonable care to minimize his damages. Great Am.

Ins. Co. v. N. Austin Mun. Util. Dist. No.1, 908 S.W.2d 415,426 (Tex. 1995); Walker

v. Salt Flat Water Co., 96 S.W.2d 231, 232 (Tex. 1936). A plaintiff has a duty to use

ordinary care and reasonable diligence to minimize its damages. Geotech Energy

Corp. v. Gulf States Telecomm. and Info. Sys., Inc., 788 S.W.2d 386, 390 (Tex.

App.-Houston [14th Dist.] 1990, no writ).

      26.    When an injured party fails to comply with the duty to mitigate

damages, recovery is not permitted as to that part of damages that could have been

avoided or was incurred as a result of the failure to mitigate. Pinson v. Red Arrow

Freight Lines, Inc., 801 S.W.2d 14, 15 (Tex. App.-Austin 1990, no pet.) (citing

Alexander & Alexander of Tex., Inc. v. Bacchus Indus., Inc., 745 S. W.2d 252, 253

(Tex. App.-EI Paso 1988, writ denied».



                                            8
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          27.     The evidence at trial, however, proved that Coinmach unreasonably

failed to mitigate its damages.              For instance, Exhibit 15 is a letter from Town

Lake-through its agent, Greystar-informing Coinmach of the decision to close

Regatta, discussing the reasons behind the decision, and requesting Coinmach

collect its laundry machines. 3 And Exhibit 16 is an email from Greystar again

asking Coinmach to collect the washing machines and dryers prior to the demolition

of Regatta. Coinmach admitted that it received these correspondences.

          28.     Despite being provided with ample notice of Town Lake's intent to

demolish the Regatta Apartments, Coinmach chose to ignore Town Lake's request,

leave the laundry machines, and allow them to be demolished. That decision is

inexcusable because Mr. Greene admitted that Coinmach has, on occasion, removed

laundry machines from one location and placed them in another location. Mr.

Greene also testified that Coinmach could have collected the machines from the

Regatta Apartments and placed them in another facility in order to generate

revenue and offset the alleged damages suffered by Coinmach.

          29.     Thus, Coinmach's failure to mitigate its damages bars its recovery of

the amount awarded in the judgment. Alternatively, any finding that Coinmach

exercised reasonable diligence to mitigate its damages is against the great weight

and preponderance of the credible evidence.

                                          III.    CONCLUSION

          Town Lake proved it was a bona fide purchaser of the Regatta Apartments.

As such, Town Lake was neither a party to nor bound by the obligations of the 2002

3 All   referenced exhibits were admitted at trial.

                                                      9




                                                                                              497
                   ,.
Lease. Alternatively, even if Town Lake was subject to the obligations of the 2002

Lease, the evidence Coinmach presented at trial is legally and factually insufficient

to support its claim that Town Lake breached the 2002 Lease. Further, even if

Town Lake breached the Lease, Coinmach suffered no damages and, in any event,

completely failed to mitigate its damages, which precludes recovery. Because

Coinmach failed to prove its contract claims against Town Lake, the award for

attorneys' fees should also be vacated.

      Therefore, Defendant, Grayco Town Lake Investments 2007 LP, asks the

Court to vacate its judgment and grant a new triaL

                                          Respectfully submitted,

                                          DOBROWSKI, LARKIN & JOHNSON LLP



                                          By: / s / Akilah F. Craig
                                             Frederick T. Johnson
                                             SBN 00785429
                                             Cody W. Stafford
                                             SBN 24068238
                                             Leah N. Maxwell
                                             SBN 24073454
                                             Akilah F. Craig
                                             SBN 24076194
                                             4601 Washington Ave, Suite 300
                                             Houston, Texas 77007
                                             713.659.2900 - Telephone
                                             713.659.2908 - Facsimile

                                          ATTORNEYS FOR DEFENDANT GRAYCO
                                          TOWN LAKE INVESTMENT 2007 LP




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                 •
                        CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of Defendant Grayco Town
Lake Investment 2007, LP's Motion for New Trial has been served on this 8th
day of December, 2014 as follows:

     VIA EMAIL AND FACSIMILE
     R. Kemp Kasling
     Kasling, Hemphill, Dolezal & Atwell, L.L.P.
     301 Congress Avenue, Suite 300
     Austin, TX 78701


                                     /s/ Cody W. Stafford
                                     Cody W. Stafford




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