JIGNA, INC.,FROM A DISTRICT COURT f/k/a CMW, INC., APPELLANT, v. J. P. AWALT, JR.-AGENT, J. P. AWALT, JR., MARVELLE AWALT MUNTZEL, GRACE ELIZABETH AWALT PHILLIPS, AND NOLAN ENTERPRISES, INC., APPELLEE

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 5th District Court of Appeals » 1989 » JIGNA, INC.,FROM A DISTRICT COURT f/k/a CMW, INC., APPELLANT, v. J. P. AWALT, JR.-AGENT, J. P. AWALT, JR., MARVELLE AWALT MUNTZEL, GRACE ELIZABETH AWALT PHILLIPS, AND NOLAN ENTERPRISES, INC., APPELLEE

State: Texas

Court: Texas Northern District Court

Docket No: 05-88-00903-CV

Case Date: 08/11/1989

Plaintiff: JIGNA, INC.,FROM A DISTRICT COURT f/k/a CMW, INC., APPELLANT,

Defendant: J. P. AWALT, JR.-AGENT, J. P. AWALT, JR., MARVELLE AWALT MUNTZEL, GRACE ELIZABETH AWALT PHILLIPS, A

Preview:JIGNA, INC.,FROM A DISTRICT COURT f/k/a
CMW, INC., APPELLANT, v. J. P. AWALT, JR.-
AGENT, J. P. AWALT, JR., MARVELLE AWALT
MUNTZEL, GRACE ELIZABETH AWALT
PHILLIPS, AND NOLAN ENTERPRISES, INC.,
APPELLEES
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00903-CV
JIGNA, INC.,FROM A DISTRICT COURT
f/k/a CMW, INC.,
APPELLANT,
v.
J. P. AWALT, JR.-AGENT,
J. P. AWALT, JR.,
MARVELLE AWALT MUNTZEL,
GRACE ELIZABETH AWALT PHILLIPS,
AND NOLAN ENTERPRISES, INC.,
APPELLEES. OF DALLAS COUNTY, TEXAS
BEFORE JUSTICES HOWELL, LAGARDE, AND WHITTINGTON
OPINION BY JUSTICE WHITTINGTON
AUGUST 11, 1989
This is an appeal by Jigna, Inc., f/k/a CMW, Inc. (Jigna) and Rasik T. Motiwala FN:1 from the granting of
motions for summary judgment in favor of Nolan Enterprises, Inc. (NEI), J. P. Awalt, Jr.-Agent, J. P. Awalt, Jr.,
Marvelle Awalt Muntzel, and Grace Elizabeth Awalt Phillips. FN:2 Final judgment in the case awarded NEI damages
and attorney's fees against Jigna and Motiwala, personally. The judgment also ordered that Jigna take nothing on its
claims against the Awalts and NEI. The trial court also granted a "motion to foreclose" on a temporary restraining
order (TRO) bond and judgment was rendered for NEI against Jigna and the surety on the bond, jointly and severally,
for $2,500, the amount of the bond, from which Jigna and Motiwala appeal.
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In six points of error, Jigna and Motiwala FN:3 contend that the trial court erred in 1) rendering summary
judgment on Jigna's affirmative claims for relief; 2) rendering judgment against Motiwala in the absence of personal
service or appearance by him; 3) rendering summary judgment against Motiwala because he is not liable; 4) rendering
summary judgment for NEI on its affirmative claims for relief; 5) ordering foreclosure upon the TRO bond because the
wrongfulness of the TRO was not conclusively established; and 6) ordering foreclosure upon the TRO bond when
NEI's actual damages were not conclusively established. We affirm in part and reverse in part.
FACTS
On April 25, 1978, Jigna and the Awalts entered into a lease agreement for the Awalt's five-story building located
at 807 Elm Street in Dallas. Jigna operated a fast food restaurant at the leased premises. J. P. Awalt, Jr., acting for
himself and as agent for his sisters, Marvelle Awalt and Grace Awalt, was subsequently presented with a proposal by
Jigna for a sublease of another floor of the building to be used for the operation of another fast food restaurant by Dr.
Hasmukh Shah. Jigna had also proposed a sublease to a printing company, PDQ Press. The lease between Awalt and
Jigna provided in paragraph 14, for subleasing by Jigna as follows:
14.                                                                                                                         ASSIGNMENT AND SUBLEASING: If not in default of any of the terms, conditions or covenants
contained in this Lease, Tenant may without the consent of the Landlord, assign this lease or sublet the demised
premises or any portion thereof, except that no assignment or subletting shall be for any use more hazardous on
account of fire or otherwise, or for a use that will cause wear and tear more than the use for which the premises are
leased as defined in Par. 3 above.
Pursuant to paragraph three of the Awalt/Jigna lease, the premises were to be used for the commercial purpose of
"restaurant and warehouse storage of various merchandise" and also "other business purposes" at Jigna's discretion.
Paragraph eight of the Awalt/Jigna lease restricted alterations to the premises as follows:
8.                                                                                                                          ALTERATIONS, ADDITIONS, AND IMPROVEMENTS: Tenant shall not create any openings in
the roof or exterior walls, nor make any alterations, additions, or improvements to the demised premises without prior
written consent of Landlord. Consent for non-structural alterations, additions, or improvements shall not be
unreasonably withheld by Landlord. Tenant shall have the right at all times to erect or install shelves, bins, machinery,
air conditioning or heating equipment, and trade fixtures, provided that Tenant complies with all applicable
governmental laws, ordinances, and regulations. Tenant shall have the right to remove at the termination of this Lease
such items so installed, provided Tenant is not in default; however Tenant shall prior to the termination of this Lease
repair any damaged caused by such removal.
(Emphasis ours). In paragraph two of the same lease, Jigna accepted the condition of the leased premises as being
suitable in their present condition:
2.                                                                                                                          ACCEPTANCE OF PREMISES: Tenant acknowledges that it has fully inspected the demised
premises and Tenant hereby accepts the demised premises, and the buildings and improvements situated thereon, as
suitable for the purposes for which the same are leased in their present condition, except: None.
NEI/JIGNA DISPUTE
NEI was another tenant of Awalt's in the same building. Electricity to the Jigna premises was provided through a
common meter on NEI's adjoining premises. Jigna and NEI had a separate agreement involving a submeter which was
installed at Jigna's expense and Jigna was to reimburse NEI for a pro rata share of NEI's electric utility charges based
upon Jigna's usage as shown by the submeter. Later, Jigna and NEI reached an additional agreement whereby a fire
door was installed at Jigna's expense, giving access from Jigna's restaurant to NEI's lobby to meet a requirement of the
City of Dallas Fire Code.
A payment dispute regarding utility sharing and exit door fees later arose between NEI and Jigna. There was
evidence that Jigna and NEI resolved their differences by agreeing that Jigna could use the fire door exit without
charge in exchange for the free use of certain storage space on Jigna's premises by NEI.
In July 1984, NEI threatened to cut off electricity to Jigna due to a disagreement on payment of utility costs by
Jigna. Jigna sought and obtained a TRO prohibiting such action. Jigna further sought damages against NEI for
conspiracy with the Awalts to interfere with Jigna's leasehold interest and seeking to drive Jigna out of the premises.
NEI counterclaimed for actual and exemplary damages, declaratory relief, and attorneys' fees under the utility and exit
door agreements. The counterclaim was filed against both Motiwala personally, and Jigna.
JIGNA/AWALT DISPUTE
Jigna began its restaurant operations on the first floor of the leasehold in April 1978. The remainder of the floors
were essentially unused for commercial purposes. In March 1982, Jigna undertook to sublease the premises to P.D.Q.
Press, Inc. for a printing business to be conducted on the second floor of the building, and requested the Awalts'
consent. In Jigna and Motiwala's joint brief, Jigna contends that "Awalt never [consented] and the PDQ sublease
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proposal was withdrawn."
In September 1982, Jigna again requested consent from the Awalts regarding certain structural modifications of
the premises in connection with another sublease of the second floor to Hasmukh Shah, M.D. J. P. Awalt, Jr. advised
Jigna that he was reluctant to consent to any structural modifications of the leased premises if it would impair the
structural integrity of the premises. Jigna's proposed modifications included the cutting of holes in the floors as
openings for additional stairways accessing the basement and second floor.
Initially, the Awalts refused consent for this structural modification. During further negotiations, the Awalts'
counsel wrote Jigna's engineers a letter informing them that the Awalts were reluctant to consent to any modifications
which would impair the structural integrity of the premises because the Awalts' father, now deceased, had previously
been advised that the flat slab construction of the building had been criticized by other engineers. In response to that
letter, Jigna's engineers said that a cursory inspection revealed that the building was structurally sound. The Awalts
contend that they then consented to the structural alterations, but that Jigna demanded financial compensation as well
for loss of the PDQ and Shah potential subleases, leading to the present suit.
Jigna contends that the Awalts had knowledge that the building was not structurally sound at the time they leased
the premises to it, evidenced by a letter written to the Awalts' father in 1934 by engineers who criticized the building's
slab foundation system. The summary judgment evidence shows that J. P. Awalt, Jr. said that he did not find the 1934
letter until sometime between 1980 and 1983, after the premises were leased to Jigna. At the top of the letter is a
notation, in J. P. Awalt, Sr.'s handwriting, which says "J. P., Jr., preserve this record." J. P. Awalt, Jr., in his
deposition, said that to his knowledge, no other engineering studies had been done to evaluate the structure of the
building.
Jigna sued the Awalts on theories of 1) fraudulent inducement, 2) breach of implied warranty of suitability, 3)
violations of the Texas Deceptive Trade Practices Act (DTPA), 4) breach of contract, 5) tortious interference with
business relations, 6) misrepresentation, and 7) conspiracy.
STANDARD OF REVIEW
The function of summary judgment is not to deprive a litigant of his right to trial by jury, but to eliminate patently
unmeritorious claims or untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952);
Futerfas v. Park Towers, 707 S.W.2d 149, 156 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). A defendant moving for
summary judgment must show either: (1) that as a matter of law the plaintiff cannot establish his case; or (2) that all
essential elements of his defense are conclusively established as a matter of law. Bell v. Sharif-Munir-Davidson
Development Corp., 738 S.W.2d 326, 329 (Tex. App.--Dallas 1987, writ denied). A defendant-movant will prevail on a
motion for summary judgment which establishes that as a matter of law the plaintiff cannot prove his case, if the
defendant disproves at least one element of each of the plaintiff's theories of recovery. Traylor v. Unitedbank Orange,
675 S.W.2d 802, 804 (Tex. App.--Beaumont 1984, writ ref'd n.r.e.). The trial court, when deciding whether there exists
any disputed material fact which precludes summary judgment, should consider all evidence favorable to the non-
movant as true; further, every reasonable inference from the evidence must be indulged in favor of the non-movant,
and any doubts resolved in its favor. If there is a genuine issue of material fact, the motion for summary judgment
must be denied. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Bell, 738 S.W.2d at
329.
Jigna failed to timely file a response to the Awalts' motion for summary judgment and further failed to obtain
leave of court for late filing. Therefore, we do not consider its response. See INA of Texas v. Bryant, 686 S.W.2d 614,
615 (Tex. 1985). See also Goswami v. Metropolitan Savings & Loan, 751 S.W.2d 487, 489 n.1 (Tex. 1988). Jigna filed
no response to NEI's motion.
We now look at whether the defendant/movants' motions for summary judgment establish as a matter of law that
there is no genuine issue of fact as to one or more essential elements of each of Jigna's causes of action. Gibbs v.
General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). Because Jigna and Motiwala wish to contend on appeal that
summary judgment was improperly granted without having filed a timely response to the motion, the only issue before
this Court is whether the grounds expressly presented to the trial court by the movants' motions and summary
judgment evidence are insufficient as a matter of law to support summary judgment. It is not the duty of this Court to
sift the summary judgment record to see if there are other issues of law or fact that could have been raised by the non-
movant, Jigna, but were not. Woolrige v. Groos National Bank, 603 S.W.2d 335, 344 (Tex. Civ. App.--Waco 1980, no
writ); INA of Texas, 686 S.W.2d at 615.
THE AWALTS' MOTION
In their first point of error, Jigna contends that the trial court erred in rendering summary judgment against it on
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its affirmative claims for relief. Jigna had various claims for relief, which included claims for: 1) fraudulent
inducement; 2) breach of implied warranty; 3) breach of contract; 4) tortious interference with business relations; 5)
express misrepresentation; 6) conspiracy; (7) and five claims for relief under the DTPA. We will address each of these
causes of action in turn.
FRAUDULENT INDUCEMENT
Jigna contends that, at the very least, there was a fact issue as to whether J. P. Awalt was aware, at the time the
lease was executed, that the premises contained structural defects and that it was fraudulently induced to enter into the
contract.
The Awalts as movant, must show in order to prevail on its motion for summary judgment that Jigna could not
establish its case for fraudulent inducement. Bell, 738 S.W.2d at 329. The Awalts could accomplish this by disproving
at least one element of this theory of recovery. Traylor, 675 S.W.2d at 804. The elements of a cause of action for fraud
are: 1) that a material misrepresentation was made; 2) that it was false; 3) that, when the speaker made it, he knew it
was false or made it recklessly without any knowledge of its truth and as a positive assertion; 4) that he made it with
the intention that it should be acted upon by the party; 5) that the party acted in reliance upon it, and 6) that he thereby
suffered injury. Trenholm v. Ratcliff, 646 S.W.2d 727, 930 (Tex. 1983). A knowing concealment of a material fact
may also constitute fraud. See Spolijaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986). It was Jigna's
contention, in its petition, that the Awalts concealed structural defects in the building, and this constituted fraud
because, had it known of the defects, it would not have leased the building. We now look to the Awalts' motion and
proof to see which elements it sought to establish against Jigna.
The Awalts' motion argues that: 1) no representations were made concerning the leased premises; and 2) the
summary judgment evidence reflects that the building is structurally sound and so any such representation is true. The
record reflects that there is a fact issue raised by the summary judgment evidence as to whether the building is
structurally sound. The 1934 letter, an exhibit to J. P. Awalt Jr.'s deposition, reflects that there was some concern as to
the structural soundness of the building. There was also a fact issue as to whether J. P. Awalt, Jr., concealed this
potential problem with the building from Jigna. Although J. P. Awalt, Jr., testified that he did not know about their
1934 letter until after 1980, the notation on the 1934 letter from J. P. Awalt, Sr., addressed to J. P. Awalt, Jr., did say
for J. P. Awalt, Jr., to preserve the letter. The issue of whether J. P. Awalt, Jr., knew of these facts is not appropriate
for determination by summary judgment. Lawrence v. TD Industries, 730 S.W.2d 843, 844 (Tex. App.--Dallas 1987,
writ ref'd n.r.e.). Issues of intent, knowledge and state of mind are not susceptible to being readily controverted and are
best left to the determination of the trier of fact. Id.
The Awalts have not shown, by their motion and summary judgment proof, that at least one element of Jigna's
fraudulent inducement cause of action is conclusively established against it.
We next consider whether the Awalts were entitled to summary judgment on this cause of action because they
conclusively established the affirmative defense of waiver as a matter of law, as they contend in their brief. Bell, 738
S.W.2d at 329. The Awalts alleged in their motion that Jigna waived its right to sue for fraudulent inducement
concerning the condition of the premises when it signed the lease agreement containing paragraph two, in which it said
it inspected the premises and agreed that they were suitable for the expressed purposes of the lease.
Waiver is the intentional relinquishment of a known right. University Nat'l Bank v. MacFarland, 635 S.W.2d 200,
(Tex. Civ. App.--Austin 1982, no writ). The affirmative defense of waiver has as its elements: 1) an existing right; 2)
knowledge, actual or constructive, of its existence; and 3) an actual intention to voluntarily relinquish it. Rio Delta
Land Co. v. Johnson, 475 S.W.2d 346 (Tex. Civ. App.--Corpus Christi 1971, writ ref'd n.r.e.). A party cannot waive a
right without full knowledge of the material facts. Cattle Feeders v. Jordan, 549 S.W.2d 29, (Tex. Civ. App.--Corpus
Christi 1977, no writ). It can hardly be said that Jigna could have waived the alleged fraud of the Awalts since it was
not aware FN:4 of the facts about the building which, it is contending, the Awalts concealed. Awalt has failed to
establish this affirmative defense. Point of error one as to fraudulent inducement is sustained.
IMPLIED WARRANTY
The Awalts contend that there are no implied warranties given by the landlord in a commercial lease. They also
allege that Jigna expressly waived any implied warranties by signing the lease accepting the premises "in their present
condition." They further assert that Jigna waived any right to sue under such cause of action for breach of implied
warranty when it signed a settlement agreement which stated in pertinent part, that the agreement:
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constitutes the entire lease agreement between the parties; that any prior modifications, changes, alterations or
amendments that might have been made are hereby rescinded, abandoned and/or waived; that there are presently no
modifications, changes, alterations or amendments to the attached Exhibit "A" Lease Agreement except as expressly
provided for therein; and that any and all claims, rights, actions, or causes of action, whether now known or unknown,
which either party may claim to have arising from any previous modifications, amendments, alterations or changes of
the attached Exhibit "A" Lease Agreement are hereby released and discharged forever.
There is an implied warranty of suitability in commercial leases. Davidow v. Inwood North Professional Group,
747 S.W.2d 373, 377 (Tex. 1988). This warranty can be waived. Davidow, 747 S.W.2d at 377. In the lease Jigna
signed, it said that it inspected the premises and accepted them as "suitable" for the lease purposes. We hold that this is
an effective waiver of the warranty of suitability. Davidow, 747 S.W.2d at 747. We overrule this point of error as to
breach of implied warranty.
DTPA
In its petition, Jigna asserted violations of the Texas Deceptive Trade Practices Act (DTPA), section 17.46(b) (5),
(7), (23) and section 17.50(a)(2) and (3). Section 17.46(b)(5) prohibits representations that goods have characteristics,
uses, or benefits which they do not have; section 17.46(b)(7) prohibits representations that goods are of a particular
standard, quality, or grade, if they are of another; section 17.46(b)(23) creates a cause of action for "the failure to
disclose information concerning goods or services which was known at the time of the transaction if such failure to
disclose such information was intended to induce the consumer into a transaction into which the consumer would not
have entered had the information been disclosed;" section 17.50(a)(2) creates a DTPA cause of action for breach of an
express or implied warranty; and section 17.50(a)(3) creates such a cause of action for unconscionable conduct,
defined as an act or practice which, to a person's detriment, takes advantage of the lack of knowledge, ability,
experience, or capacity of a person to a grossly unfair degree, or results in a gross disparity between the value received
and consideration paid. TEX. BUS. & COM. CODE ANN. §§ 17.46(b) (5), (7), (23) and 17.50(a)(2) and (3) (Vernon
1987).
In order to prevail on these DTPA causes of action, the Awalts had to affirmatively disprove at least one element
of each of Jigna's theories of recovery. Traylor, 675 S.W.2d at 804. The Awalts, in their motion, argued that: 1) there is
no implied warranty which was breached; 2) there was express waiver by Jigna of all implied warranties and waiver of
recovery for misrepresentation; 3) no representations were made; 4) all representations if made, were made in good
faith and are true; 5) the settlement agreement entered into between Jigna and the Awalts to settle the prior rent FN:5
dispute judicially estopped Jigna from now making any claim concerning oral representations. FN:6
Concerning section 17.50(a)(2) and the breach of implied warranty, we have earlier held that this was waived
under paragraph two of the lease. Concerning the representations that the premises were of a certain standard, grade or
quality, or have characteristics they do not have, sections 17.46(b)(7) and 17.45(1), the Awalts have failed to
conclusively establish, as they alleged in their motion, that no representations were made or that the representations
concerning the condition of the building were true. Traylor, 675 S.W.2d at 804. Regarding section 17.46(b)(23), "the
failure to disclose information," the Awalts have also failed to conclusively disprove at least one element of this cause
of action. Traylor, 675 S.W.2d at 804. There is at least a fact issue as to whether false representations were made or
facts not disclosed regarding the suitability of the premises. Concerning the action under sections 17.50(a)(3) for
"unconscionable conduct," we note that this particular cause of action under the DTPA was not made a ground under
the Awalt's motion for summary judgment. Therefore, the motion was, by necessity, legally insufficient to merit
summary judgment on a theory of recovery not addressed in the motion. Whiddon v. Metni, 650 S.W.2d 904, 906
(Tex. App.--Dallas 1983, writ ref'd n.r.e.). We sustain the first point of error as to the DTPA causes of action for
representations that goods are of a certain grade, standard or quality, representations that goods have characteristics or
uses which they do not have, and failure to disclose information. We overrule the first point of error as to the DTPA
causes action for breach of warranty and unconscionable conduct.
BREACH OF CONTRACT
The Awalts did not move for summary judgment on the cause of action for breach of contract. Therefore, the
motion was, by necessity, insufficient to merit summary judgment on a theory of recovery not addressed in the motion.
Whiddon, 650 S.W.2d at 906. We overrule the first point of error as to the breach of contract cause of action.
TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS
The tort of interference with business relations consists of the following elements of proof: 1) a contract subject
to interference; 2) the act of interference; 3) willful and intentional interference; 4) proximate cause; and 5) actual
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damage or loss. Armendariz v. Mora, 555 S.W.2d 400, 405 (Tex. Civ. App.--El Paso 1977, no writ). The Awalts, in
their motion, moved for summary judgment on this cause of action alleging: 1) justification in their refusal to consent
to structural alterations, since the Awalts had a legal right to withhold consent under the lease; and 2) that Jigna has no
cause of action because the sublease contracts with PDQ and Dr. Shah which were allegedly interfered with were not
in writing and, therefore, were violative of the statute of frauds. As to the first ground, there is a fact issue raised as to
whether the consent to the modifications was unreasonably withheld. The lease stated that although Jigna had to
request permission to modify the structure of the building, such consent could not be unreasonably withheld. There
was some evidence that the Awalts took an extended period of time to reply to Jigna's requests. In addition, there was
evidence that they also required a variety of information and assurances before they would consent to the
modifications. This at least raises a fact issue concerning reasonableness in the withholding of consent.
Concerning the statute of frauds defense, this ground also fails because the tort of malicious interference with
business relationships can exist even if a contract is not yet in existence. Harshberger v. Reliable-Aire, Inc., 619
S.W.2d 478, 481 (Tex. Civ. App.--Corpus Christi 1981, writ dism'd w.o.j.). Jigna's first point of error is sustained as to
the tortious interference with business relations cause of action.
EXPRESS MISREPRESENTATION
Jigna contends that the summary judgment denial of its cause of action for express misrepresentation should be
reversed. It cites no authority for this contention and makes no distinction in its brief whether such relates to fraudulent
misrepresentation, negligent misrepresentation or misrepresentation under the DTPA. We have earlier discussed the
issue of fraudulent misrepresentation and held that summary judgment was improper as to that cause of action. We also
have disposed of the issue of misrepresentations under the DTPA. The remaining type of misrepresentation to which
Jigna might be referring is negligent misrepresentation. Awalt, in its motion, moved for summary judgment on the
grounds that: 1) no representations were made; and 2) if representations were made concerning the building's
suitability, any such representations were true. The fact that the lease stated that the purposes for which the building
could be used included warehouse storage and restaurant uses amounts to a representation. Further, as discussed
earlier, there is a fact issue as to whether the representation was true. Jigna's first point of error is sustained as to the
cause of action for misrepresentation.
CONSPIRACY
Jigna contends that summary judgment denial of its conspiracy cause of action was error. The elements of a cause
of action for conspiracy are: 1) involvement of two or more persons; 2) an object to be accomplished; 3) a meeting of
the minds on the objects or course of action; 4) one or more unlawful overt acts; and 5) damages as a proximate result.
Ward v. Dallas Texas National Title Company, 735 S.W.2d 919, 921 (Tex. App.--Dallas 1987, writ ref'd n.r.e.). In
their motion, the Awalts contend that there was no conspiracy for the reason that there was "no discussion" or plan
between NEI and the Awalts to "put the plaintiff out of business or interfere with" its business.
The existence of conspiracy is not something which can be readily controverted by a non-movant, as the very
essence of a conspiracy is the secret intent of the co-conspirators. Futerfas v. Park Towers, 707 S.W.2d 149, 157 (Tex.
App.--Dallas 1986, writ ref'd n.r.e.). Therefore, even the affidavits and depositions brought forth by the Awalts
denying any conspiracy do not serve as a proper basis on which summary judgment may be granted. Conspiracy does
not easily lend itself to summary judgment. Stimpson v. Plano Indep. School Dist., 743 S.W.2d 944, 947 (Tex. App.--
Dallas 1987, writ denied). We hold that summary judgment was improper as to this cause of action. We sustain
appellant's first point of error as concerns the conspiracy cause of action.
NEI'S MOTION
MOTIWALA'S PERSONAL LIABILITY
In his second point of error, Motiwala argues that the judgment in favor of NEI and against him was improper as
he had never been served or appeared individually in the trial court. Motiwala, individually, was not a plaintiff in the
suit. He was a counter-defendant, as NEI had counter-sued him for failure to pay monies they contended were due
under the utility and exit door agreements. He was never served with process. Summary judgment was rendered for
NEI against both Jigna and Motiwala on their claims.
NEI contends that Motiwala cannot appeal the judgment by direct appeal if he is not a party to the suit, citing
McEwen v. Harrison, 345 S.W.2d 706 (Tex. 1961). We agree. Motiwala is limited to a bill of review as his exclusive
remedy. Id. at 710. We overrule Motiwala's point of error number two.
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In his third point of error, Motiwala alleges that the trial court erred in rendering summary judgment against him
on the merits. Again, Motiwala may not obtain review of this judgment by direct appeal, but may only appeal by way
of bill of review. McEwen, 345 S.W.2d at 710. We overrule Motiwala's point of error number three.
In it's fourth point of error, Jigna contends that the trial court erred in rendering summary judgment on NEI's
affirmative claims for relief. Jigna argues that the recovery of $8,700 for exit door fees was "fundamentally flawed"
because there was "ample deposition testimony" that this fee was waived by NEI. Because Jigna failed to file any
response to NEI's motion for summary judgment, the only issue before this court is whether the grounds expressly
presented to the trial court by NEI's motion are insufficient as a matter of law. Fisher, 597 S.W.2d at 397. We agree
that there is a fact issue as to whether the exit door fees were due and payable to NEI. Motiwala, in his deposition,
stated that NEI had agreed to exchange free storage space for free use of the exit door. Because of this, there is a fact
issue as to whether the award of $8,700 was improper. Jigna's point of error number four is sustained as to the exit
door fee award.
Jigna argues that, as to the utility charges, the award of $13,218.84 was improper because certain payments and
credits were not allowed. It is Jigna's contention that because NEI's summary judgment proof, invoices attached to its
motion and affidavit, add up to $14,248.85, an amount greater than that said to be due to NEI according to its
affidavit, there is a fact issue precluding summary judgment. We disagree. The invoices show that at least $14,248.85
is due to NEI. The affidavit says that $13,218.84 is due after all lawful offsets, payments and credits have been
allowed. There is no fact issue as to this debt in the summary judgment evidence. Jigna's point of error number four is
overruled as to these utility charges.
TRO BOND
In its fifth and sixth points of error, Jigna contends that the trial court erred in summarily ordering foreclosure
upon the TRO bond because: 1) the wrongfulness of the TRO was not conclusively established; and 2) NEI's actual
damages proximately caused by the alleged wrongful issuance of the TRO were not conclusively established.
Concerning the wrongfulness of the TRO, Jigna contends that there was no evidence of damage to NEI due to the
TRO. The existence and amount of damages resulting from the issuance of a TRO in a question for the trier of fact.
Robinson v. Levermann, 175 S.W. 160, 163 (Tex. Civ. App.--Dallas 1915, writ ref'd). NEI was the movant on the bond
foreclosure and was charged with bringing forth such evidence. There was no evidence of such damages before the
trial court. Therefore, the foreclosure of the bond without such evidence of damages was improper. Womack v.
McMillan, 47 S.W.2d 437, 439 (Tex. Civ. App.--Amarillo 1932, no writ). We sustain Jigna's points of error five and
six.
HOLDING
The summary judgment is affirmed as to Jigna's causes of action against the Awalts for breach of implied
warranty, breach of warranty under the DTPA, unconscionable conduct under the DTPA, and breach of contract. The
summary judgment is reversed and remanded as to Jigna's causes of action against the Awalts for fraudulent
inducement, representations that goods are of a certain standard, grade or quality under the DTPA, representation that
goods have certain characteristics or uses which they do not have (DTPA), failure to disclose information under the
DTPA, tortious interference with business relations, express misrepresentation, and conspiracy. The summary
judgment is reversed and remanded as to Jigna's cause of action against NEI for conspiracy. The summary judgment is
reversed and remanded as to NEI's cause of action against Jigna and Motiwala on the exit door fee agreement and
affirmed as to NEI's cause of action on the utility sharing agreement. The order of foreclosure on the TRO bond is
reversed and remanded. The appeal is dismissed as to Rasik Motiwala.
JOHN WHITTINGTON
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00903.F The tenant then shall remain principal obligator to the Landlord for the full performance of all the terms,
conditions, and covenants of this Lease by which Tenant herein is bound; and, the acceptance of an assignment or
subletting of the premises by any firm, person or corporation shall be construed as a promise on the part of such
assignee or subtenant to be bound by and perform all of the terms, conditions and covenants by which Tenant herein is
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bound. No such assignment or subletting shall be construed to constitute a novation. In the event of default by Tenant
while the demised premises are assigned or sublet, Landlord, in addition to any other remedies provided herein (or
provided by law), may at Landlord's option, collect directly from such assignee or subtenant all rents becoming due to
Tenant under such assignment or subletting and Landlord may apply such rent against any sums due to Landlord by
Tenant hereunder. No direct collection by Landlord from any such assignee or subtenant shall release Tenant from the
further performance of its obligations hereunder.
All alterations, additions, or improvements made by Tenant shall become the property of Landlord at the termination
of this Lease; however, Tenant shall promptly remove, if Landlord so elects, all alterations, additions, and
improvements, and any other property placed in the premises by Tenant and Tenant shall repair any damage caused by
such removal.
FN:1 Motiwala is the principal of Jigna.
FN:2 The Awalt parties will be jointly referred to as "the Awalts" unless otherwise indicated.
FN:3 Jigna and Motiwala have filed a joint brief complaining of the judgment against them.
FN:4 There is at least a fact issue as to Jigna's knowledge and awareness.
FN:5 The Awalts and Jigna entered into the settlement agreement after alleged non-payment of rent disputes and
alleged oral modifications and disputes arising therefrom.
FN:6 Jigna, in its brief, said that it makes no claim upon oral representations.
File Date[01-02-89]
File Name[880903F]
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