AFFIRM; Opinion issued I)ecernber 12, 2012




                                                  In The
                                  (!.uitrt uf Appia1i
                          9ift1i Jitrirt ui h’xzn at tIa11a
                                         No. 05-10-01611-CV


                          LARRY V’ HITE AND VSC, LLC, Appellants

                                                    V.

                                    MIKE HARRISON, Appellee


                        On Appeal from the 193rd Judicial District Court
                                     Dallas County, Texas
                              Trial Court Cause No. 08-00073-.L


                                              OPINION
                        Before .Justices O’Neill, FitzGerald, and Lang-Miers
                                   Opinion By Justice FitzGerald

        Appellee Mike Harrison sued appellants Larry White and VSC, LLC for breach of a

commercial lease. The case was tried to the court, and the trial court signed a judgment in favor of

Flarrisom-and jointly and severally against White and VSC—--in the amount of S356.579.12. plus

attorney’s fees and interest. In nine issues. appellants challenge the trial court’s (a) rejection of their

affirmative defenses, (b) exclusion of a witness, (c) validation of the guaranty signed by White, and

(d) inclusion of certain propert’, taxes in the damages calculation. We affirm the trial courf s

judgment.
                                                             BACKGRouND

            VSC. as tenant, entered into a ten-year lease with I larrison. as landlord, in October2003 (the

“Lease”). White, who was VSC’s manager, signed the Lease for VSC and, on the same day, signed

a personal guaranty on his own behalf (the “Guaranty”). The leased premises was located on

California Crossing in Dallas County. and VSC’s business operated there until September 2004.

Around that time. appellants requested permission from Harrison—as the Lease required—to assign

the Lease to James Davis; permission was denied. Nevertheless, appellants “transitioned control”

of the premises to Davis. For almost two years, Harrison accepted rent payments from Davis. But

in the Fall of 2006. Davis’s payments became untimely and incomplete. In a series of letters to

White. Harrison and his attorney demanded payment from VSC; White did not respond to the letters.

            In December2006. Harrison instituted a forcible entry and detainer action against appellants,

but the cause was never heard) In the meantime, Davis and Harrison met along with their

respective attorneys, and entered into an agreement concerning back rent owed and forbearance on

the FED (the “Davis Agreement”).
                    2 Appellants were not participants in the Davis Agreement.

Indeed, the Davis Agreement stated specifically that it was not creating a landlord-tenant relationship

with Davis, that Davis possessed the property subject to the approval ofVSC, and that the original

Lease and Guaranty remained in full force and effect.                                     Specifically, the Davis Agreement

acknowledged the following:

           It is hereby acknowledged that nothing in this Agreement is intended to create a
           Landlord-Tenant relationship between HARRISON and DAVIS. The occupancy of
           the Premises by DAVIS to date is as a result ofwhatever understanding or agreement
           that may have existed between VSC, as Tenant and DAVIS, to which understanding


   I
       There wan inclement weather the day the hearing wan initially schedulet and only Thite appeared. No hearing wan scheduled thereafter.

   -   Harrison filed at agreed judgment in the FED suit after reaching agreement with Davis. the occupant ofthe leaned premises.




                                                                    —2—
        or agreement HARRISON was not a party. The Lease between HARRISON, as
        Landlord, and VSC, as Tenant, as guaranteed by WHITE. is not intended to be
        affected by this Agreement and remains in fblI force and effect. The right ofDAVIS
        to occupy the Premises of the Lease arises out of whatever understanding or
        agreement that may exist between VSC and DAVIS. Notwithstanding the fact that
        no Landlord-Tenant relationship exists between HARRISON and DAVIS.
        HARRISON agrees to continue to indulge the occupancy of DAVIS in the Premises
        oftheLeaseaslongasalltermsandconditionsoftheLeasearesatisfiedinatimely
        and proper manner. If the understanding or agreement between DAVIS and VSC
        should terminate and DAVIS should lose sufferance from VSC to occupy the
        Premises. the Lease will continue in full force and effect and HARRISON will
        continue to recognize VSC.. as Tenant, and WHITE. as the Guarantor ofthe Tenant’s
        obligations under the Lease.

Davis paid what he promised in the Davis Agreement, but he subsequently stopped paying rent

again, and Harrison demanded payment from both Davis and VSC. Eventually, Davis left the

premises; the parties disagree as to whether he voluntarily abandoned the property or Davis forced

him to leave. Harrison paid property taxes on the teased premises from 2007 through 2009. He

prepared the property to be re-leased, but he did not re-lease the premises until 2010.

        Harrison sued VSC and White for unpaid rent and reimbursement fortaxes paid and expenses

on the property? The trial court found in 1vor of Harrison. White and VSC have appealed.

                                                  AFFIRMATIVE DEnNsEs

        A number ofappellants’ arguments in this Court are based on affirmative defenses. The trial

court found that appellants had not produced credible evidence of each of these defenses.
                                                                                4 As


    Hrison originally sued Davis too, but later non-suited him.

    me relevant findings state:
        74.        Defendants did not produce credible evidence to support their asserted defense orrepudiation.

        7$.        Defendants did not produce credible evidence to support their asserted defense of novation.

        76.        Defendant did not produce credible evidence to support their asserted defense of modification.

        77.        Defendant did not produce credible evidence to support their asserted defense of ratification.

        78.        Defendants did not produce credible evidence to support their asserted defense of waiver.
                                                                                                                    tcontinued.j




                                                                  —3—
delendants. appellants bore the burden of plead                           hg   and proving those             affirmative deflnses.          .Scc

[lu/lund v. hoe/ace, 352 S.W.3d 777. 788 ([cx. App.                                    Dallas 2011. pet. denied). Whe 11 parties

attack the legal sufficiency olan adverse finding on                         an   issue on which they had the burden of proof

they must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in

support ofthc issue. Dow (7iem. Co. v. Francis. 46 S. W.3d 237, 241 (Te.2 001). Accordingly, we

will sustain the issue only ii’ the contrary proposition is conclusively established, Id. When parties

attack the factual sufficiency of an adverse finding on an issue on which they had the burden of

proof they must demonstrate on appeal that the adverse finding is against the great weight and

preponderance of the evidence. JeL                  at   242. We consider and weigh all of the evidence, and we will

set aside a verdict on the issue only if the evidence is so weak or if the finding is so against the great

weight and preponderance of the evidence that it is clearly wrong and                                      unjust.     Id. if a party offers

no credible evidence on an issue where he bears the burden of proof we must overrule his challenges

to the sufficiency of the evidence supporting the verdict against him.

                                                                Ratification


           In their first issue. appellants contend that Harrison ratified Davis’s “takeover” of the Lease.

The elements of ratification are: (1) approval by act, word, or conduct; (2) with full knowledge of

the facts of the earlier act; and (3) with the intention of giving validity to the earlier act. Motel

Enterprises. Inc. v. Vobani. 784 S.W.2d 545. 547 (Tex. App.—Iiouston [1st Dist.j 1990, no writ)

(citing    .Jamail v. Thomas, 481 S.W.2d 485. 490 (Tex. Civ. App.——Houston [1st Dist.] 1972. writ

ref d n.r.c.)). A party ratifies an agreement when—after learning all of the material facts—he




   4
       ( eont nud

           79       l)eflndants did not produce credible evidence to support their asserted defense that Plaintiff failed to mitigate his
                    damages.




                                                                     —4—
conhrms or adopts an earlier act that did not then legally hind him and that he could have repudiated.

       i.   Bunk of .lmericu, VI., 72 S.W.3d 779, 788 ( [cx. App.     Dallas 200. pet. denied).

        Thus. to establish a ratification, appellants were required to prove that Harrison confirmed

Davis as his new tenant, replacing VSC, under the Lease. The only evidence in the record, however.

is to the contrary. The Davis Agreenwnt stated that I larrison would allow [)avis to occupy the

premises. at VSC’s “sufferance.” because VSC remained the tenant under the Lease. The l)avis

Agreement specifically stated that Davis was not now the tenant and that VSC, as tenant, remained

responsible under the Lease. Moreover, Harrison continued to look to VSC and its guarantor for rent

pursuant to the Lease. The evidence establishes that Harrison rejected the possibility of Davis taking

over the Lease from VSC: appellants offered no evidence supporting a ratihcation by Harrison.

        We overrule appellants’ first issue.

                                               Repudiation

        In their second issue, appellants argue that Harrison repudiated the Lease by breaching the

warranty of quiet enjoyment. A repudiation is accomplished by a contracting party’s words or

actions that indicate he is not going to perform his contract in the future. Group Life & Health ins.

L’o. v. Turner. 620 S.W.2d 670, 673 (Tex. Civ. App—Dallas 1981, no writ). A repudiation is

“conduct which shows a fixed intention to abandon, renounce, and refuse to perform the contract.”

id. Appellants contend that by accepting rent from Davis. and allowing him to conduct business on

the leased premises. Harrison expressed his “fixed intention” not to perform his contractual

obligations under the Lease.

       The contractual obligation that appellants contend Harrison was refusing to perform was his

warranty of their quiet enjoyment of the premises. In the Lease, Harrison warranted as follows:
        I andlord warrants that it has lull right and power to execute and perfurm this lease
        and to cram the estate demised herein and that lenant. on payment of rent and
        perform mg the covenants herein contained, shall peaceably and quietly have, hold
        and enjoy the demised premises during the full term of this lease.

Appellants argue Harrison deprived them of the use of the premises. hut the evidence is to the

contrary   .   Appellants left the premises and transitioned” the property to Davis. H lit Harrison

specitically acknowledged in the Davis Agreement that Davis possessed the premises only at the

pleasure of VSC. We find no evidence in the record that appellants ever attempted to re-enter and

use the premises and that Harrison prevented them from doing so. Having turned over the premises

to Davis, and never attempting to re—enter, appellants could offer no evidence of any claim related

to enjoyment of the premises.

        We overrule appellant’s second issue.

                                                Waiver

        In their fifth issue. appellants contend that Harrison waived his rights against defendants by

his inconsistent conduct. Specifically, they allege that Harrison “indicated—expressly and through

his conduct —that he did not intend to claim the right to enforce’ the Lease and Guaranty. The

affirmative delènse of waiver can he asserted against a party who intentionally relinquishes a known

right or engages in intentional conduct inconsistent with claiming that right. Tenneco Inc. v Enter.

Prods. (‘o.. 925 S.W.2d 640. 643 (Tex. 1996).

       When arguing waiver, appellants refer to a phone call White made to Harrison during the

negotiation of the [)avis Agreement. White testified he spoke to both Harrison and his attorney and

that the attorney told White that he was “off the hook” for the Lease because of the agreement he was

negotiating with Davis. Appellants rely on reports of this conversation for a number of their

arguments. But White conceded at trial that there was no writing memorializing this purported
change in appellants obligations .And as we have explained. the Davis Agreement makes clear that

there was no iie lease het\\een I larnson and Davis and that appellants remained liable on the Lease.

Furthermore, Harrison’s action were consistent with the acknowledgments in the Davis Agreement,

Harrison consistently sent rent demands to appellants, regardless of who was occupying the

premises. whenever rent was overdue. In each correspondence. Harrison indicated he intended to

hold appellants to their obligations under the Lease. Given the overwhelming evidence that Harrison

did not intend to let appellants “off the hook,” the trial court could reasonably have disbelieved

White’s testimony concerning the purported oral release from Harrison’s attorney. See City ofKeller

v. IVI/.con, 168 .W.3d 802. 81 920 (Tex. 2005). We may not impose our own credibility opinion

to the contrary. It
                 1 at 819.

       Appellants also argue that by “excluding” them from that Davis Agreement and the

resolution of the FED suit, Harrison was indicating he did not intend to hold them to the Lease. But

the FED settlement resolved only I)avis’s possession of the premises, which was subject to

appellants continued approval and to his   complying   with the financial obligations he (Davis) took

on in the Davis Agreement. Given that appellants were no longer in possession of the premises, the

eviction procedure did not speak to their Lease rights at that point in   time.


       We discern nothing inconsistent in Flarrison’s words and actions concerning appellants’

obligations under the Lease. I larrison could accept rent from a party occupying the premises with

his tenant’s approval. But Harrison consistently emphasized that he would ultimately look to

appellants on the Lease and Guaranty. Deferring as we must to the trial court’s credibility decisions,

we discern no evidence supporting a finding of waiver.

       We overrule appellants’ fifth issue.
                                            .1 Iodi/icu/iofl

        In their seventh issue, appellants contend the Lease was modified when Harrison, White, and

Davis created a “new lease” for the same property, and the trial courts finding to the contrary was

error. Again. modihcation of a contract is an affirmative defense that appellants had the burden to

prove. See mice Sys., Jue. v. Lowrci’. 230 S.W.3d 913. 918 (Tex. App.—Dallas 2007. no pet.). A

valid contract modification must include a meeting of the minds supported by consideration. Arthur

J. (ia//uglier & (‘a. v. Die/erich. 27() S.W.3d 695. 701-M2 (Te. App.—Dallas 2008. no pet.). And

importantly. an oral modification of a written contract is enforceable under the Statute of Frauds

only if the modification does not materially alter the obligations imposed by the underlying

agreement.” Vendig v. Traylor. 604 S.W.2c1 424, 427 (Tex. Civ. App.—Dallas 1980. writ ref d

n.r.e.) see a/so Dracopoulas v. Rachal. 411 S.W.2d 719. 722 (Tex. 1967); Wa/ken. Ta/na/ian. 107

S.W.3d 665, 670 (Tex. App.—Fort Worth 2003. pet. denied).

       In their modification argument, appellants rely again on the purported oral release and their

exclusion from the FED settlement to say the parties agreed to modify the Lease. The evidence the

trial court found credible does not support the existence of a modification in this case. First, the

Lease states unequivocally that it “may be amended only by an instrument in writing.” Moreover,

it is beyond dispute that the modification for which appellants argue would materially alter their

obligations tinder the Lease, and thus was required to be in writing. See Vendig. 604 S.W.2d at 427.

But there is absolutely no evidence in the record of an amended or modified lease—-or any other

written agreement other than the Lease and the Guaranty—between appellants and Harrison. The

Davis Agreement cannot be a “new lease,” as appellants claim, when its own terms say it is not

creating a landlord-tenant relationship. And the Davis Agreement cannot be read to alter the Lease.

when it states: “The Lease between HARRISON, as Landlord, and VSC, as Tenant, as guaranteed
by WIt ITL. is nut intended to bealTected by this Agreement and remains in Ilil I liirce and effict.”

To accomplish a modilication of the Lease, there had to be a meeting of the minds between the

parties to the I ‘ease and a writing reflecting their new agreement. Appellants offered no evidence

of either requirement.

        We overrule appelIants seventh issue.

                                                No va/ion

        In their eighth issue. appellants argue that Harrison. 1)avis. and VSC established a novation

of the Lease, absolving VSC and White from their obligations under the Lease.                        A

novation—another affirmative defense—substitutes a new obligation for an existing obligation or

a new contracting party for an existing party. Fulcrum Cent. v. AutoTesier, Inc., 102 S.W.3d 274,

277 (Tex. App—Dallas 2003. no pet.). A novation requires a mutual agreement to make the

substitution: a novation is never presumed. Id. We have concluded that there is no evidence

Harrison intended to create a new lease when he entered into the Davis Agreement. On the contrary,

that agreement expressly states that it does not create a landlord-tenant relationship between Harrison

and Davis. and it expressly affirms that the Lease between [-larrison and VSC remains in full force

and effect. Appellants’ novation argument is without merit.

        We overrule appellants’ eighth issue.

                                    Failure   to Mitigate   Damages

       In their fourth issue, appellants contend that Harrison failed to exercise reasonable care in

mitigating his damages. in Austin Hill Country Realty, inc. v. Palisades Plaza, Inc., 948 S.W.2d

293. 299 (Tex. 1997). the Supreme Court of Texas recognized that a commercial landlord has a duty

to make reasonable efforts to mitigate damages when the tenant breaches the lease and abandons the

property. The rule in Palisades Plaza has since been codifled: “A landlord has a duty to mitigate
damaies ita tenant abandons the leased premises in violation of the lease.” lTx. PRoI. CODE j\x.

§   91 .006(a) (West 2007).                The landlord’s duty to mitigate requires him to use “objectively

reasonable efforts” to re—lease the premises to a tenant “suitable under the circumstances.” Palisades

Piu:a. 948 S.W.2d at 299. lfthe landlord fails to use reasonable efforts to mitigate damages. his

recovery from the tenant is barred to the extent that damages reasonably could have been avoided.

Id. The reasonableness of the landlord’s efforts to avoid damages is an issue for the fact finder. See

Hunsucker v. Omega J,ithi,c.. 659 S.W.2d 692, 698 (Tex. App.—Dallas 1983. no writ) (“issues such

as reasonableness and foreseeability are inherently issues for a jury”). The tenant bears the burden

of proof to demonstrate that the landlord has failed to mitigate damages and the amount by which

the landlord could have reduced his damages. Palisades Plaza, 948 S.W.2d at 299.

           Appellants contend 1-larrison could have avoided all of his damages had he allowed Davis

to remain on the property. l)avis testified he was forced off the property by Harrison sometime in

December 2007. Davis also testified he was current on his rent through November and that he tried

to pay his December rent, but Harrison refused to accept it. According to Davis. he would have

remained on the property through the entire term of the Lease and would have continued paying rent

if Harrison would have accepted his payments. But Harrison’s testimony contradicted Davis’s

assertions: Harrison stated that he never refused to accept rent payments from Davis. In fact, the

record establishes that on December 11. 2007, Harrison demanded payment of the overdue

December rent from both Davis and White. Neither man responded to the demand. it is the province

of the fact finder to resolve conflicts in the evidence and to make determinations of credibility. City

of Keller. 1 68 5
                S.’
                V .3d at 820. We conclude ample evidence supports the trial court’s rejection of


      n I’i/i.cud Jlu:u the Supreme Court said the rule applied unless the commercial landlord and tenant contract otherwise Pahsades Plaza.
94 S W 2d at299. Ihe Legislatureeliminatedthe possibilityofeontractingaround the duty to mitigate. stating: A provisionofa lease that purports
to waive a right or to exempt a landlord from a liability or duty under this section is void. ‘bx. PRoP. Cong AsN.   91.006(b).




                                                                     10—
the contention that all of Harrison’s damages could have been avoided by allowing Davis to remain

on the premises.

        Appellants argue that Davis paid $197,000 on improvements to the property that appellants

should have been credited. Davis did testit3r he spent about that much on gravel for the property. but

he also conceded that Harrison had no obligation to reimburse him for that expense.

        Appellants contend Harrison should have protested tax amounts and hired an appraiser to

determine the value ofthe property. Appellants offered no evidence that these efforts would have

avoided damages to Harrison. Indeed, Harrison testified that he believed the property was

undervalued on the tax rolls and that protests or appraisals could “backfire” on him, actually costing

rather than saving him money.

       Finally, appellants complain that Harrison hauled away vehicles and boat hulls that had been

abandoned on the premises. Appellants contend Harrison should have attempted to auction them,

sell them for parts or salvage, or contact their owners to collect storage fees. Appellants have not

identified any legal authority that requires a landlord, after a tenant abandons the leased premises.

to canyon the tenant’s business or to proceed in any particular fashion with the tenant’s abandoned

inventory. A landlord’s duty under those circumstances is to use objectively reasonable efforts to

re-lease the premises to a suitable tenant Palisades Plaza, 948 S.W.2d at 299. The record indicates

Harrison complied with this duty. He prepared the property for a new tenant, placed signs

advertising the availabffity of the property, and he posted the property in the appropriate multiple

listing service and with online services. He accepted a temporary lease and credited appellants for

the $20,000 received from that venture. And he ultimately re-leased the property in May2010, four

years before the Lease would have expired. We conclude appellants did not establish that Harrison

failed to mitigate his damages.



                                               —11—
         We overrule appel hints’ fourth   issue.


                                           EXCLtInD WlTNFsS


         In their sixth issue. appellants contend the trial court erred in excluding Elov .Jones from

serving as a “rehuttal witness” at trial. Appellants called Jones during their case—in—chiet hut they

had not disclosed him as a witness in discovery. Harrison objected, and the trial court excluded

Jones. The rules of civil procedure govern a party’s failure to disclose a witness before trial:

         A party who fails to make, amend, or supplement a discovery response in a timely
         manner may not    . oiler the testimony of a witness (other than a named party) who
                               .




         was not timely identified. unless the court finds that:

                   (I) there was good cause [‘or the failure to timely make, amend, or
                   supplement the discovery response; or

                   () the failure to timely make. amend. or supplement the discovery response
                   will not unfairly surprise or unfairly prejudice the other parties.

1EX. R. Civ. P. 193.6(a). The burden of establishing good cause (or the lack of unfair surprise or

unfair prejudice) is on the party calling the witness, and a finding of good cause (or of the lack of

unfair surprise or unfair prejudice) must he supported by the record. TEx. R. Civ. P. 193.6(h). We

review the trial court’s exclusion of a witness on nondisclosure grounds for an abuse of discretion.

Fort   J3rown 171/as III Condo. Ass ‘n, inc. v. Gi/lenwater. 285 S.W.3d 879, 881 (Tex. 2009).

         Appellants contend that Eloy Jones would have testified that Harrison ‘did forcibly remove

Davis from the premises while under the influence of alcohol.” They’ say they could not have

expected Harrison to lie about that, so there was good cause to allow Jones’s undisclosed “rebuttal”

testimony. The record includes appellants’ bill containing Jones’s actual testimony. That bill states

in its entirety:

         Q. Mr. Jones. do you know this gentleman over here to my right?
         A. Yes. sir.




                                                    —12--
        (,).   And \\hats his name?

        \. I dont knov his name. but I know his lace.

        Q. ‘You know his       face. Where do you know him from?

        A. Because he’s the owner of VSC.

        Q. And when you worked over at California Crossing?
       A. Yes, sir.

       Q. Did von ever see him come to the yard?
       A. Yes sir.

       Q. Was he drunk when he showed up there?
       A. Once      --   one time, to be drunk one time.

       Q. Okay. Did you ever see him come over there and order employees of the company
       you worked for out of the yard?

       A. Yes. sir.

       Q. And what did he tell them to do?
       A. F-Ic just told us to get out of the yard. You know. he got a gun --as a matter of
       fact. one time he got a gun, told us to get out of the yard with a gun. I left, you know,
       because I didn’t want to get shot, you know.

       Q. Did he threaten to shoot anyone?
       A. Yeah, because he told everybody get out of the yard. Em going to shoot
       everybody. Everybody left. you know. 1 put parked car outside the yard, you know.
                                                           --




       outside the gate.

This proposed testimony. contrary to appellants’ assertions. makes no reference to Davis at all. It

states that Jones worked at California Crossing. but it does not say when. And although appellants

aver this testimony would he harmful to Harrison, Jones identifies the man in his recollection as the

president of VSC. But even if the subject o-f Jones’s testimony was Harrison, and the events he
recites involved Davis’s eviction, the question of whether I larrison had a gun or had been drinking

is not central to either side’s case. [here is no claim oivronuful eviction here.

        Counsel lbr appellants stated at trial that he had only learned who Jones was that day. l3ut

he gave no explanation why he could not have identifled Jones as a witness in a timely fashion. This

record does not include a showing of good cause to admit the undisclosed testimony of Jones.

        We overrule appellants’ sixth issue,

                                        WHITE’S LInhIIT         s   GuRNToI

        In their third issue, appellants contend the trial court erroneously denied White’s motion Ibr

directed verdict because Harrison failed to prove that White’s Guaranty relates to the Lease at issue

in this case. The basis of appellants argument is that the address of the premises at issue on the

Guaranty (2000 California Crossing) is different from the address on the Lease (2160 California

Crossing). Thus, appellants argue. White is not liable as a guarantor of this Lease. Harrison

responds that appellants never asserted by verified pleadings any denial of liability in the capacity

as guarantor” of the Lease,

        We agree with Harrison. White did not comply with rule 93. which states:

       A pleading setting up any of the following matters, unless the truth of such matters
       appear of record, shall be verified by affidavit.

               2. That   .   .   .   the defendant is not liable in the capacity in which he is sued.

TEx. R. Civ. P. 93(2). Texas law requires a verified plea to be filed anytime the record does not

affirmatively demonstrate the defendant’s right to be sued in the capacity in which the plaintiff has

sued him. See Pledger v. SchoellkopJ 762 S.W.2d 145. 146 (Tex. 1988) (“The rule means just what

it says.”). Here, White claims not to be liable as guarantor of the Lease. Because he failed to raise

this defense through a verifIed denial—as rule 93(2) and caselaw require—there is no               issue for us




                                                         —1 T
to review. ec H iinmcr v. llaiinu Prime. Inc.. 05-08-01323-C V. 2009 WI. 3838867. at *2 (l’ex.

 \pp.——l )allas Nov. 1 8. 2009, no pet.) (“I3ecause Wi mmer thiled to vcri1 his plea in accordance with

rule 93. he did not raise a material issue of tact as to whether he personally guaranteed the debt.”)

(memo op.).

        Even if we addressed the substance of this issue—-a challenge to the trial court’s ruling on

White’s motion br directed verdict—appellants’ argument would fail nonetheless. An appeal from

the denial of a motion ftr directed verdict is in essence a challenge to the legal sufficiency of the

evidence. Solares v. So/ares, 232 S.W.3d 873, 878 (Tex. App.—Dallas 2007, no pet.). Thus. White

is contending there was no evidence supporting his liability for the Lease under the Guaranty. We

review the evidence in the light most favorable to the verdict, crediting favorable evidence if a

reasonable fact finder could, and disregarding contrarY evidence unless areasonable fact tinder could

not. See (‘i/v   0/   Keller. 1 68 S.W.3d at 807.

        White testified he signed the Lease on behalf of tenant VSC and, on the same day, he signed

the Guaranty “as a personal guarantor.” The Guaranty’s iirst paragraph reads:

       In order to induce MIKE HARRISON (“Landlord”) to execute the forgoing Net
       Commercial Lease Agreement (the “Lease”) with VSC, LLC, a Nevada LLC
       (“Tenant”), for a certain Demised Premises at 2000 California Crossing, City of
       Dallas being a 10.47 acre tract of land in the ELI MERRELL SURVEY. ABSTRACT
       No. 978, CITY BLOCK 6488. the City of Dallas. Dallas County. Texas,.

As this first paragraph establishes, the Guaranty was an inducement for Harrison to enter into “the

forgoing Net Commercial Lease Agreement” with VSC. In this case, the Guaranty is not merely

attached to the Lease: it forms the last page of the Lease. Thus not only does the language of the

Guaranty reference the Lease signed by White, the very structure of the two documents supports the

relationship between them.




                                                    l5
        Likewise the legal description of the leased premises supports the relationship between the

documents. The Lease describes the leased premises as:

        Being a 10.47 acre tract of land in the Eli Merrell Survey, Abstract No. 978, CITY
        BLOCK 6488. the City of Dallas. Dallas County, Texas.

This description mirrors the one quoted above from the Guaranty. Both documents unambiguously

encompass the entire 10.47 acre tract, not some portion or division thereof. As a rule, because a

lease is a grant of realty that must essentially meet the same requirements as a deed, the legal

description of a property will control over a common description or street address. See Nat ‘1

Convenience Stores, Inc. v. Martinez. 784 S.W.2d 468. 471 (Tex. App.—Texarkana 1989. writ

denied).

        When construing a written contract such as this Guaranty. our primary concern is to ascertain

the true intentions of the parties. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). To do so we

review the entire agreement. and we supply tenns that were ‘obviously intended.” Hasty v. Keller

HCP Partners, LP., 260 S.W.3d 666,670 (Tex. App.—Dallas 2008, no pet.). ‘Written contracts

will be construed according to the intention of the parties. notwithstanding errors and omissions.”

Id. (quoting Am. 10-Minute Oil Change, Inc. v. Metro. Nat’! Bank—Farmers Branch, 783 S.W.2d

598.600 (Tex. App.—Dalias 1989, no writ)). In Hasty v. Keller, this Court concluded that an error

in the name ofthe landlord did not create a fact issue on the guarantor’s obligation when the parties’

intent was clear from the documents. 260 S.W.3d at 670. We conclude the reference to different

street addresses in the Lease and Guaranty is an obvious mistake and that the documents evidence

a clear intent that White be the personal guarantor of VSC’s obligations under the Lease.

       Appellants rely on Marshall v. FordMotor Co.. 878 S.W.2d 629 (Tex. App.—Dallas 1994,

no pet.). In that case, the Marshalls guaranteed payment for sales by Ford Marketing Corporation




                                               -16-
to Joniar Parts Warehouse, Inc. Ic[ at 630.      Fhe agreement was signed sometime in I 973 the

opinion does not relate the precise date. At the end of the following year. on December 3       .   1974.

Ford Marketing Corporation was merged into Ford Motor Company. Id. Jomar and Ford Motor

Company continued to do business, and in 1990 Jomar’s account became delinquent. Although

those parties attempted to work out the issue, Ford Motor Company eventually sued Jomar and the

Marshalls on the debt. Id. The trial court concluded the Marshalls were liable under the guaranty.

but this Court disagreed. We concluded the terms of the guaranty unambiguously guaranteed

.Tomar’s payments for sales made by Ford Marketing Corporation. and none of the debt at issue

proceeded from sales by Ford Marketing Corporation. Id. at 631—32. As we said in that case. “Once

the terms of a guaranty are ascertained, the guarantor is entitled to have his agreement strictly

construed and it ma not he extended by construction or implication beyond the precise terms of his

contract.” Id at 631.

        Marshall is clearly distinguishable from White’s case. The Marshalls guaranteed a named.

existing entity: Ford Marketing Corporation. For more than a year, the guaranty could have been

enforced had Jomar defaulted on payments to that entity.            However, when Ford Marketing

Corporation ceased to exist, the guaranty could not be enforced against a different entity. In White’s

case, he effectively argues his signature on the Guaranty was meaningless when he signed it:

White’s Guaranty could never have been enforced against him, because there is no lease between

Harrison and VSC for property located at 2000 California Crossing. We reject this construction of

the Guaranty. We cannot infer that a Guaranty that expressly says it was intended to induce Harrison

to enter into the Lease was never intended to apply to the Lease.

        We conclude the trial court correctly denied White’s motion for directed verdict.           We

overrule appellants’ third issue.




                                                -17—
                                    REcovF;RY OF 1 NFS PII)

        In their ninth issue, appellants’ contend there was no evidence that the taxes paid by Harrison

for the years 2007, 2008, and 200’) were related to the leased premises. Because Harrison had the

burden to prove his damages. we review the evidence in the light most tavorable to the verdict.

crediting favorable evidence if a reasonable fact tinder could, and disregarding contrary evidence

unless a reasonable fact tinder could not. See City of Keller. 168 S.W.3d at 807. Appellants’

argument is again related to street addresses assigned to the property in question. Our review oI’the

record establishes that harrison produced two tax statements for each of the three tax Years at issue.

Each year, one statement was for a property identified as 2000 California Crossing and one statement

was for a property at 2158 California Crossing. All of the statements refer to block 6488. the same

block referenced in the legal descriptions of the Lease and the Guaranty. The statements also give

the amount ofacreage for the property at each address. The acreage on the two statements combined

is 10.47 acres, the same acreage referenced in the Lease and the Guaranty. Harrison identified the

statements as the ones covering the leased premises. Appellants did not offer evidence of the taxes

they paid in earlier years that might have been contrary to Harrison’s evidence. We conclude a

rational fact finder could certainly have concluded the statements were the proper ones for the leased

premises. See   id.

       We overrule appellants’ ninth issue as well.

                                           CoNcLusioN

       We have decided all of appellants’ issues against them. We affirm the trial court’s judgment.




                                                            FRR’ P. 11 l’7GLRAI F)
                                                       .11. ‘SE [Cl.
10161 1F.P05




                                               —1 8-
                                 (nitrt nf Appraki
                         Fift1! 1itrict nf tLrxai at 1atta
                                        JUDGMENT
LARRY Wil ITE AND VSC. LLC.                           Appeal from the 193rd Judicial District
Appellants                                            Court of Dallas County, Texas. (Tr.Ct.No.
                                                      08-00073-L).
No. 05-10-0161 l-CV            \‘.                    Opinion delivered by Justice FitzGerald.
                                                      Justices O’Neill and Lanu—Miers
MIKE HARRISON. Appellee                               participating.


       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMEI). It is ORI)EREI) that appellec Mike harrison recover his costs of this appeal
from appellants Larry White and VSC. lIC.


Judgment entered December 12. 2012.

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                                                    E’RY P TRAtD
                                                     JUSTICE
