The El Paso Education Initiative, Inc. d/b/a Burnham Wood Charter School v. Amex Properties, LLC--Appeal from County Court at Law No 6 of El Paso County (Majority)

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State: Texas

Court: Texas Northern District Court

Docket No: 08-11-00378-CV

Case Date: 10/31/2012

Plaintiff: The El Paso Education Initiative, Inc. d/b/a Burnham Wood Charter School

Defendant: Amex Properties, LLC--Appeal from County Court at Law No 6 of El Paso County (Majority)

Preview:COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

THE EL PASO EDUCATION INITIATIVE, INC., D/B/A BURNHAM WOOD CHARTER SCHOOL, Appellant, v. AMEX PROPERTIES, LLC, Appellee.

' ' ' ' ' ' No. 08-11-00378-CV Appeal from the County Court at Law Number Six of El Paso County, Texas (TC#2008-2370)

OPINION Appellant, the El Paso Education Initiative, Inc. (EPEI) which does business as Burnham Wood Charter School (the charter school) appeals the trial court's denial of its plea to the jurisdiction in which EPEI asserted that it is immune from the breach-of-contract suit filed by Appellee, Amex Properties, LLC (Amex). We affirm the trial court's order. BACKGROUND In 2008, EPEI sought to open an open-enrollment charter school in east El Paso. EPEI then began negotiations with Amex to lease its property at 1441 North Zaragosa Road for the operation of Vista Del Futuro Charter School. According to EPEI, the president of the charter school, Iris Burnham, signed a proposed first lease offer and sent it to Amex's manager, Silvia Martinez Aguirre (Martinez), who did not agree with its terms. Negotiations then continued, with Martinez revising the penalty for not meeting the occupancy date. On or about April 24, 2008, Burnham received from EPEI's attorney Jerry Wallace, a lease document that incorporated changes made to a prior version of the lease document. Burnham

then signed and transmitted the document to Martinez. Late in the day on Friday, April 25, 2008, without consulting Amex's attorney Victor Firth, Martinez took the Lease Agreement to her bank to sign it before a notary public. The twenty-four-page document, titled "Lease Agreement," bears the signature of Martinez as Manager of landlord Amex Properties, LLC, the signature of Burnham as President of tenant the EPEI, and the recital, "Executed as of 17 April 2008." Contained within the Lease Agreement are two notarized certificates of acknowledgement. A certificate acknowledging Burnham's signature was signed by a notary public on April 24, 2008, and states that Burnham, as President of EPEI, had appeared and acknowledged that she had executed the Lease Agreement "for the purposes and considerations therein expressed" on behalf of EPEI. The certificate acknowledging Martinez's signature was signed the following day, on April 25, 2008, by a notary public who states therein that Martinez, as Manager of Amex, appeared and acknowledged that Martinez had executed the Lease Agreement "for the purposes and considerations therein expressed" on behalf of Amex. Section 31.09 (Entire Agreement) of the Lease Agreement signed by Burnham and Martinez specifies that "Submission of this Lease for examination does not constitute an option for the Leased Premises and becomes effective as a Lease only upon execution and delivery thereof by Landlord to Tenant." On either Friday, April 25, 2008 or the following Monday, April 28, 2008, Martinez verbally informed the charter school's general administrator, Rebeca Perez, and its realtor, Juan Uribe, that she had executed the written Lease Agreement. Unaware that Amex and the charter school had executed a lease document, Firth had continued working on the lease document on Sunday, April 27, 2008. That same day, Firth sent 2

an email to EPEI's attorney Wallace, in which Firth set forth Amex's "responses to your revisions to my initial lease draft," expressed a hope that the parties could reach agreement "along these lines," requested Wallace to refrain from making other revisions without speaking with him, identified as the "major issue" Amex's proposed revision regarding a reduction of deposit as the sole relief for a delayed completion date, noted his concern that it would be difficult to meet the completion date "[i]f the parties cannot reach terms," and stated that his hope was that "we can get things in a position for the parties to sign as early as possible this week." In his deposition, Firth later explained that when he sent the email on Sunday, he had intended that it be a rejection of the charter school's most recent proposal and had not known at that time that the parties had already "made their deal" or had signed the agreement. The following day, April 28, 2008, Wallace and Firth spoke by phone. At the time, neither Wallace nor Firth was aware of the fact that Burnham and Martinez had signed or executed any documents. In his deposition, Wallace stated that he considered Firth's email to be a counteroffer. Later that day or early on Tuesday, April 29, 2008, Firth learned that Martinez had signed a lease agreement on the preceding Friday, April 25, 2008. As soon as Firth learned that Burnham and Martinez had signed the Lease Agreement, he informed Wallace of that fact and told Wallace that because their clients had "made their deal," a contract had been formed and the parties would need to address their remaining concerns in an amendment to the executed Lease Agreement.1 On April 29, 2008, Wallace informed Firth by email that the charter school was formally withdrawing its counteroffers and rejected all offers and counteroffers submitted by Amex as the
1

Firth and Wallace disagree about the specific date on which Firth then verbally informed Wallace that their clients had signed a lease despite ongoing negotiations, but the evidence is consistent with a date following soon after the weekend of April 26-27, 2008.

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charter school no longer desired to lease property from Amex. Firth sent an email reply asking Wallace to explain the impasse. On May 1, 2008, Wallace sent another email to Firth stating that the charter school had rejected Amex's counteroffers, noting Amex's desire to meet Burnham's terms regarding the lease, and setting forth Burnham's terms regarding occupancy, rental, deposit, space and other requirements. That same day, Firth informed Wallace that he had confirmed that Martinez had signed the Lease Agreement on April 25, 2008. On May 5, Martinez faxed to Wallace the Lease Agreement signed by Martinez and Burnham. On June 16, 2008, Amex filed a breach-of-contract suit for anticipatory breach of contract after receiving notice from Burnham's attorney, Jerry Wallace, that Burnham rejected the lease and rejected any assertion that a valid lease existed. The charter school filed a plea to the jurisdiction contending that although it had submitted an offer to Amex in the form of a final, signed lease contract, because Amex did not communicate its acceptance of the offer after signing the lease document but, instead, allegedly had rejected the offer and had attempted to negotiate more favorable terms, and because the charter school had rejected all of Amex's counteroffers, no enforceable contract had been formed. The charter school asserted that, absent an enforceable contract, it is immune from suit as a matter of law and its plea to the jurisdiction should be granted. The trial court denied the charter school's plea to the jurisdiction, and EPEI filed this interlocutory appeal. STANDARD OF REVIEW The existence of a trial court's subject-matter jurisdiction is a question of law reviewed de novo. Texas Dep=t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). When a plea to 4

the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Miranda, 133 S.W.3d at 227; see Bland Ind. School Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). When the jurisdictional challenge implicates the merits of the plaintiff=s cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. Miranda, 133 S.W.3d at 227. If a fact question regarding the jurisdictional issue is created by the evidence, the trial court cannot grant the plea to the jurisdiction and the fact issue will be resolved by the fact finder. Id. at 227-28. When the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. This standard generally mirrors that of a summary judgment under Rule 166a(c) of the Rules of Civil Procedure. TEX. R. CIV. P. 166a(c); Miranda, 133 S.W.3d at 228; El Paso Community College Dist. v. Chase, 355 S.W.3d 164, 166-67 (Tex.App.

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