To cross the rabbi’s eyes

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Amarillo – To defend yourself against the charge of murdering your own parents, you should plead that, since you are now an orphan, you deserve leniency.

Not. That’s chutzpah. This is meshuga.

The McLennan County Appraisal District moved out of office space leased from Hoppenstein Properties, Inc., of Amarillo, even though there was still time to run on its agreement. When the tax men moved out, they still owed either $474,638, or $418, 591.27 – or maybe, as the jury wound up seeing things, $373,638, or as the Seventh District Court of Appeals at Amarillo decided by their own calculations, $461,995.16.

It gets complicated, but one thing the appeals court definitely decided in the dispute is that when a Waco jury in the 170th District Court “simply awarded a judgment of $373,638,” it was unsupported by any fact, figure, or basis of contract law.

How it derived that that sum is unknown…Nor does the District cite us to any evidence or methodology from the…amount can be calculated.”

What happened is simple enough. One day in the year 2009, the District took the advice of its chief appraiser and decided to move out of the building it had leased from Hoppenstein in favor purchasing a new building.

How to beat the lease?

The appraiser showed them the way. He recommended, in the words of the appeals court, that “a new building be purchased, and advised it that the District had the discretion to end the contract by simply omitting from future budgets money earmarked for lease payments.”

Such a deal. The appeals court explains it this way.

They concluded that, “we note that the conduct of the District tends to run afoul of general contract principles. For instance, where one assumes an obligation, he generally cannot excuse his non-performance by voluntarily pursuing a course of conduct that leaves him unable to perform.”

Predictably, no one is happy.

Though the jurors rendered judgment in favor of the former landlord, Hoppenstein, “neither party was satisfied.”

According to Hoppenstein, “the trial court should have 1) granted its motion for judgment notwithstanding the verdict on the amount of lost rent to which it was entitled and 2) awarded it attorney’s fees.”

The District’s appeal held “that 1) the trial court should have granted its motions for summary judgment and judgment notwithstanding the verdict on the basis there was no funding for the lease after December 31, 2009, thereby bringing into effect a contract provision which specifically released it from liability, 2) the contract impermissibly created debt and was void, and 3) the trial court erred in not excusing two jurors for cause.”

It’s hard to say, but it’s safe to assume that no one is less unhappy now that in May of this year, the 17th District Appeals Court affirmed the jury’s judgment.

Hoppenstein gets not a penny more in lost rent and attorney’s fees because of two well-chiseled provisions of the law.

In the first place, the trial court did not err by denying a motion for a judgment notwithstanding the verdict because a couple of cases on point established that, as Hoppenstein asserted in their appeal, “The movant must establish both that no evidence supports the jury’s answer and that the evidence conclusively establishes the answer sought in the motion.”

The appeals panel agreed heartily, and responded by saying “To that, we add a principle uttered by our Supreme Court in City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). There we were told that it is not necessary to have testimony from both parties before a jury may disbelieve either; yet, a jury may not ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been easily controverted.”

From there, the Court gave a recital of the testimony of Hoppenstein’s bookkeeper, $474,638.24; entries in the general rent ledger, $477,778.39, and the District’s calculation that the outstanding amount was $461,995.16.

Attorney’s fees?

It’s a provision of the Local Government Code that “Attorney’s fees incurred by a local government entity or any other party in the adjudication of a claim by or against a local governmental entity shall not be awarded to any party in the adjudication unless the local governmental entity has entered into a written agreement that expressly authorizes the prevailing party in the adjudication to recover its reasonable and necessary attorney’s fees by specific reference to this section.”

There is no such written agreement that “expressly authorizes” the payment of attorney’s fees in the record. The lease stipulated only that the matter be settled by existing law.

The big enchilada on the District’s plate:

THE DISTRICT AND LANDLORD MUTUALLY AGREE THAT DISTRICT’S OBLIGATION TO PAY THE CONSIDERATION HEREIN EXPRESED MAY BE MADE ONLY AND SOLELY FROM FUNDS AVAILABLE FOR THE PURPOSE OF THIS AGREEMENT. THE LOSS OR REDUCTION OF FUNDS BY THE DISTRICT SHALL RENDER THIS AGREEMENT NULL AND VOID AS TO THOSE PROVISIONS FOR WHICH FUNDING IS NOT AVAILABLE.”

The appeals court countered very neatly by replying in this way.

There is evidence of record illustrating the coffer used to fund the District’s expenses contained monies sufficient to satisfy the lease obligation. But, instead of using the monies for that purpose, the board of directors charged with disbursing or budgeting the funds opted to use them to acquire another facility…In other words, monies were available to satisfy the District’s lease obligation, but the District not only opted to use them for another purpose but also swayed those in charge of their dispersal to divert them to that other purpose. Under those circumstances, it cannot be said that the funds were unavailable.”

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One thought on “To cross the rabbi’s eyes”

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