                                    NO. 07-01-0345-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL D

                                        MAY 28, 2002

                           ______________________________


           HARTFORD-LUBBOCK LIMITED PARTNERSHIP II, APPELLANT

                                               V.

                         THE CATO CORPORATION, APPELLEE


                         _________________________________

             FROM THE 72nd DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2000-508,598; HONORABLE ROBERT E. MONTGOMERY, JUDGE

                          _______________________________


Before BOYD, C.J., and QUINN and REAVIS, JJ.


       Hartford-Lubbock Limited Partnership II presents two issues challenging a judgment

following a jury trial that it take nothing on its action for fixed rentals under a written lease

agreement against The Cato Corporation and declaring that Cato may abate payment of

fixed rentals as provided by the lease because Mardel Christian Book Store is not a similar

type business as Hobby Lobby Craft Supply Store. By its first issue, Hartford contends the
trial court erred in overruling its objection to Cato’s questions regarding the prospective

jurors’ responses to questions on voir dire. By its second issue, Hartford contends the

evidence is insufficient to support the jury’s conclusion that Hobby Lobby and Mardel do

not operate a similar type of business. Based upon the rationale expressed herein, we

affirm.


          By written lease dated October 5, 1993, Hartford leased approximately 6,316 square

feet of its shopping center for girls’ apparel, accessories, and allied lines. Paragraph 3 of

the lease established a fixed rental at Lubbock Shopping Parkade to Cato to be leased at

$4,737 per month, and paragraph 4 of the lease required Cato to pay a percentage rent

equal to four percent of all gross retail sales based on the formula set out therein.

Paragraph 26 of the lease provided:


                 26. INDUCEMENT. As an inducement to LESSEE for entering into
          this Lease, LESSOR warrants that the following major anchor tenants are
          open for business, or will open for business prior to or concurrent with
          LESSEE, located as indicated on Exhibit A hereto as follows:


                STEIN MART DEPARTMENT STORE                      41,922 sq. ft.
                HOBBY LOBBY CRAFT SUPPLY STORE                   40,000 sq. ft.
                T.J. MAXX DISCOUNT APPAREL STORE                 24,080 sq. ft.


          LESSOR warrants that in the event any one of said tenants should not be
          open for business when LESSEE is scheduled to open for business, or
          should thereafter vacate its premises or cease its operations in the Shopping
          Center, then LESSEE may delay its opening date and rental commencement
          date until the first of LESSEE’S scheduled store opening seasons after all of
          said major anchor tenants are open for business. LESSEE shall also have

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      the option to cancel this lease, however, in such event, LESSOR shall have
      nine (9) months after such major anchor tenant vacates or ceases operations
      in said space for said space to be occupied by another tenant open for
      business and operating a similar type and size business as that of such
      vacating tenant before LESSEE may exercise this option to cancel, and
      provided that LESSEE notifies LESSOR of its intent to cancel in writing thirty
      (30) days prior to such cancellation. During the period of such major anchor
      tenant’s vacancy, LESSEE may abate fixed monthly rent and pay LESSOR
      percentage rent only equal to four percent (4%) of gross retail sales made
      from the Premises within thirty (30) days after the end of each month, but in
      no event more than the fixed monthly rent as set forth in Article 3.


When Hobby Lobby vacated its space in April 1999, Cato commenced paying the

percentage rent of four percent of sales rather than fixed rent.


       In September 1999, Mardel occupied the entire space previously leased to Hobby

Lobby and commenced its business of retail sales of goods to the public. Contending that

Mardel was not a “similar type” business as Hobby Lobby under paragraph 26, Cato

refused to commence paying the fixed rent, but instead continued to pay the percentage

rent. When Hartford and Cato were unable to agree as to whether Mardel was a “similar

type” business as Hobby Lobby according to paragraph 26 of the lease, Hartford filed suit.


       By its trial pleading, contending that Mardel constituted a “similar type” business as

Hobby Lobby, Hartford sought to recover the fixed rentals due under the lease, less the

amount of the percentage rentals paid. Upon hearing motions for summary judgment of

Hartford and Cato, the trial court denied Cato’s motion. Concluding that the issue for

determination was whether “Mardel Christian Book Store” is a similar type of business as




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Hobby Lobby under the lease, the trial court granted Hartford’s motion in part. As material

here, by its order, the trial court found the following facts to be undisputed:


       •      the term of the lease was renewed and extended beyond its initial
              term;

       •      paragraph 26 of the lease is known as an “inducement clause”;

       •      Cato almost always puts an “inducement clause” in its lease
              agreements;

       •      Stein Mart, Hobby Lobby, and T.J. Maxx were “inducement tenants”
              under lease paragraph 26;

       •      the purpose of “inducement tenants” is to ensure a certain quantity
              and type of customer traffic at a shopping center for smaller tenants
              such as Cato;

       •      inducement tenants are always retail establishments; and

       •      both Mardel Christian Book Store and Hobby Lobby are retail stores
              selling goods to the public.


Neither party challenges the above findings of the trial court. Regarding the charge of the

court, question one asked and instructed the jury:


       Do you find from a preponderance of the evidence that Mardel Christian
       Book Store operates a similar type business as Hobby Lobby Craft Supply
       Store?
       Answer “We Do” or “We Do Not”
       If you have answered “We Do” to Question 1, then answer Questions 2 and
       3. If you have answered “We Do Not,” then answer Question 4.




                                              4
After answering the question “We Do Not” as instructed, the jury answered question 4

denying Cato any recovery for attorney’s fees.


       The trial court also submitted eight special instructions in its charge. Instruction 2

instructed the jury that:


       2. You will answer “We Do” or “We Do Not” to all questions unless otherwise
       instructed. A “We Do” answer must be based on a preponderance of the
       evidence. If you do not find that a preponderance of the evidence supports
       a “We Do” answer, then answer “We Do Not.” Whenever a question requires
       an answer other than a “We Do” or “We Do Not”, your answer must be based
       on a preponderance of the evidence. The burden to establish a
       preponderance of the evidence is on the Plaintiff.


Instructions 3 and 4 were as follows:


       3. A fact may be established by direct evidence or by circumstantial
       evidence or both. A fact is established by direct evidence when proved by
       documentary evidence or by witnesses who saw the act done or heard the
       word spoken. A fact is established by circumstantial evidence when it may
       be fairly and reasonably inferred from other facts proved.
       4. You will not take into consideration nor discuss any matter not produced
       in evidence before you, other than matters of common knowledge.


The charge did not define the term “”similar type business” and Hartford does not assign

any error to the charge or the instructions. Following rendition of the judgment, Hartford

presented a motion for judgment notwithstanding the verdict and a motion for new trial

which was overruled by operation of law.




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      By its first issue, Hartford contends the trial court erred in overruling its objection to

questions by Cato’s counsel to a witness regarding prospective jurors’ responses to

questions on voir dire. We disagree. During voir dire, counsel for Cato asked the

prospective jurors several questions regarding whether they had shopped at Hobby Lobby

or Mardel. Then, on direct examination of Cato’s representative, counsel asked the

witness how many female panel members indicated that they shopped at Hobby Lobby and

Mardel’s. Then, as counsel for Cato continued


      Q. Do you remember when I asked –

             Mr. Golman: Your Honor, I object to the relevance of this line
             of questioning.

             The Court: Overruled.

      Q. Do you remember when I asked the question how many women panel
      members shopped at Hobby Lobby?

      Q. If I told you that twelve females raised their hands, would that be correct.”

      A. I noticed that also.


Then, without any additional objection, the examination concluded:


      Q. And if I told you that five women raised their hand to that question, would
      that be correct?

      A. That is correct. I saw more women raise their hands when you asked
      about the Hobby Lobby, and not nearly as many women raised their hand
      when asked about Mardel. It was–it was interesting.




                                              6
       In order to preserve its complaint for appellate review, Hartford was required to

present a timely objection to the trial court stating the specific grounds for the objection.

Tex. R. App. P. 33.1(a). Moreover, a party cannot raise an objection to evidence for the

first time on appeal which was not presented to the trial court. Prati v. New Prime, Inc.,

949 S.W.2d 552, 554 (Tex.App.--Amarillo 1997, pet. denied).             Although Hartford’s

objection was directed to the “relevance of the line of questioning,” on appeal Hartford

does not present its relevance objection, but instead argues that the examination was

prohibited by Rule 606 of the Texas Rules of Evidence, and that Texas law does not permit

a verdict to be rendered on the personal experiences of members of the jury. Because

these issues were not presented to the trial court, we cannot consider them for the first

time on appeal. Id. Issue one is overruled.


       By its second issue, Hartford questions whether there was “legally sufficient

evidence, or alternatively factually insufficient evidence, to support the jury’s finding that

Mardel and Hobby Lobby do not operate similar businesses.” We disagree. Before we

commence our review of the evidence, we must first determine the appropriate legal

challenge because the charge of the trial court placed the burden of proof on Hartford, and

instructed the jury to find “We Do Not” if Hartford did not satisfy its burden.          The

appropriate challenge to a jury finding on a question upon which the complaining party

does not have the burden of proof is either an insufficient evidence point or a no evidence

point. But where, as here, Hartford had the burden of proof, the appropriate challenge is

either a great weight and preponderance point or a matter of law point. Raw Hide Oil &

                                              7
Gas v. Maxus, 766 S.W.2d 264, 275-76 (Tex.App.--Amarillo 1988, writ denied). Because

Hartford had the burden of proof on the question, we will consider the inappropriately

designed point by first determining whether the jury finding was inappropriate as a matter

of law or whether such finding is against the great weight and preponderance of the

evidence, in accordance with the standard of review we applied in Raw Hide Oil.


       We commence our review of the evidence by considering the relevant documentary

evidence. Under paragraph 11 of the lease, Cato’s use of its space was limited to the retail

sale of ladies’ and girls’ apparel, accessories, and allied lines. In addition, by paragraph

28, Hartford agreed that if it leased space to any national or regional women’s apparel

chain specializing in large sized women’s apparel then the fixed monthly rental of Cato

would be reduced by one half. Finally, paragraph 25 prohibited future leases of space for

a pet shop, game room, disco, night club, amusement arcade, theatre, health spa, bowling

alley, or any other non-retail operation or a store featuring sexually explicit materials or

products, or drug paraphernalia. These three provisions demonstrate that the parties

placed considerable significance on the types of businesses which would be allowed to

lease space and indicate that Cato and Hartford were very concerned about the types of

businesses to be operated by the neighboring tenants. Also, the letter of T.J. Maxx, an

inducement tenant, to Hartford dated September 22, 1998, indicated its opinion that

Mardel would not be an acceptable inducement tenant in lieu of Hobby Lobby. Considering

this documentary evidence and the instruction of the trial court to the jury that they could



                                             8
consider direct as well as circumstantial evidence and matters of common knowledge, the

matter of law point is overruled.


       Next, in reviewing the great weight and preponderance point, we examine the entire

record to determine if there is some evidence to support the finding, and then determine

whether, in light of the entire record, the finding is manifestly unjust. Traylor v. Gouldling,

497 S.W.2d 944, 945 (Tex. 1973); Raw Hide Oil, 766 S.W.2d at 276. Initially, we focus on

the court’s charge to the jury because it did not define the terms “common knowledge” or

“similar type of business.”     We also note the findings of the trial court which are

unchallenged that (1) Stein Mart, Hobby Lobby, and T. J. Maxx were “inducement” tenants;

(2) the purpose of an inducement tenant is to ensure a certain quality and type of customer

traffic at a shopping center for smaller tenants such as Cato; (3) inducement tenants are

always retail establishments; and (4) both Mardel Christian Book Store and Hobby Lobby

are retail stores selling goods to the public.


       The representative for Hartford testified that he based his opinion that Mardel

operated a similar type of business as Hobby Lobby on the fact that both stores sell goods

to the public at retail and that some of the merchandise in both stores is similar; however,

according to the letter from the T.J. Maxx representative, Mardel sells religious

merchandise, but we note that as its name implies, Hobby Lobby is a craft supply store.

The Hartford representative also testified that a restaurant or a stock broker would not be

similar to Hobby Lobby. Cato’s representative described Hobby Lobby as a well known


                                                 9
retailer with close to a billion dollars in sales each year that operates 247 stores and that

61 of its stores are located in Texas. In contrast, he testified that Mardel was only a 16-

store chain and that he preferred to have Hobby Lobby as an inducement tenant. Applying

the appropriate standard of review, we conclude there is some evidence to support the

finding and in light of the entire record, the finding of the jury that for purposes of the

provisions of the lease, Mardel Christian Book Store does not operate a similar type

business as Hobby Lobby Craft Supply Store. Hartford’s second issue is overruled.


       Accordingly, the judgment of the trial court is affirmed.


                                          Don H. Reavis
                                            Justice

Do not publish.




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