Opinion
No. 05-17-00151-CV
08-29-2018
INLAND WESTERN DALLAS LINCOLN PARK LIMITED PARTNERSHIP AND RPAI SOUTHWEST MANAGEMENT, LLC, Appellants v. HAI NGUYEN AND MAI NGUYEN, INDIVIDUALS, D/B/A ROMIE'S NAIL BOUTIQUE, Appellees
On Appeal from the 68th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-15-08114
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Fillmore
This case arises from a dispute over renewal of a commercial lease of space in a shopping center. Appellees Hai Nguyen and Mai Nguyen, doing business as Romie's Nail Boutique, sued appellants Inland Western Dallas Lincoln Park Limited Partnership, their landlord (Inland or landlord), and RPAI Southwest Management LLC, which provided property management services to Inland, for fraudulent inducement and negligent misrepresentation in connection with renewal of the commercial lease. Appellants bring this appeal of the trial court's final judgment on a jury verdict finding appellants liable for fraudulent inducement and negligent misrepresentation, and awarding appellees $300,000.00 in damages and $19,972.60 in prejudgment interest. In six issues, appellants contend the trial court erred by allowing the jury to consider misrepresentations from persons other than the individual alleged in appellees' pleadings to have made a misrepresentation, the evidence is legally and factually insufficient to support the jury's findings appellants fraudulently induced, and made negligent misrepresentations to, appellees and to support the damages awarded by the jury, the trial court erred by submitting an improper measure of damages for appellees' fraudulent inducement and negligent misrepresentation claims, the damages awarded by the jury are excessive, and the trial court erred by awarding prejudgment interest.
Because appellees share the same surname, we refer to them by their first names in this opinion.
Lease documents indicate Inland Western Dallas Lincoln Park, L.P. was "Owner" of the property subject of the lease, and "Inland Southwest Management, LLC" was managing agent for "Owner."
Appellants preserved their complaints in a Motion for Directed Verdict, Second Amended Motion Notwithstanding the Verdict, and First Amended Motion for New Trial.
For the reasons that follow, we reverse the trial court's judgment and render judgment that appellees take nothing on their fraudulent inducement and negligent misrepresentation claims against appellants.
Because we resolve this appeal on the ground the evidence is legally insufficient to support the jury's findings that appellants committed fraudulent inducement or negligent misrepresentation, we need not address appellants' other complaints. See TEX. R. APP. P. 47.1.
Background
On June 30, 2005, appellees purchased Romie's Nail Boutique, an established nail salon business in a busy shopping center. Appellees purchased the business for the full asking price of $270,000, because it was in "a good location for a nail salon" - a "really busy plaza" with "[a] lot of busy businesses." According to Hai, the nail salon's location was the primary factor in appellees' decision to purchase it. Inland, as landlord, permitted appellees to assume the nail salon's lease, and appellees, as assignees, executed an assignment and assumption of lease on August 19, 2005. The assigned lease term began in 2002 and expired on December 31, 2007. This original lease granted appellees the option to renew the lease for two five-year terms under substantially the same terms and conditions as the original lease, excepting rent, which would be based upon then prevailing market rates for similarly situated properties. To exercise the option to renew, the lease required the tenant to "notify Landlord in writing of its intention to renew no later than [120] calendar days prior to the expiration date of the then current term of [the] Lease." The lease also provided, "Tenant shall not be entitled to rely on any representations . . . of Landlord other than those expressly set forth in this lease."
Appellees did not notify appellants in writing of appellees' intention to renew the lease in 2007. Rather, in May or June of 2007, Hai called Jason Kasal, an Inland leasing manager, and told Kasal that appellees "would like to renew the lease." According to Hai, Kasal responded, "Okay, I'll work on that. I'll send you the proposal[.]" Although Kasal did not forward the renewal documents to Hai until October 8, 2007, Hai was not "upset by the delay in Mr. Kasal getting back to [him]." Hai testified he trusted Kasal's representations "because [Kasal was] a special lease person. He specialize[d] on it. So, I believed him." The proposed 2008 lease included an exclusivity provision which granted appellees the exclusive right to operate a nail salon in the shopping center. The parties executed the proposed 2008 lease, with a term beginning on January 1, 2008, and ending on December 31, 2012 (the 2008 lease). The 2008 lease granted appellees the option to extend the lease for one additional five-year period following expiration.
Hai testified he called Kasal on May 22, 2012, because the 2008 lease expired at the end of the year. Hai told Kasal he wanted "to renew the lease again," and Kasal told him he would "work on that and . . . send [Hai] the proposal." Hai testified,
. . . I told him that I would like to renew the lease. And he said, okay, I'll work on that. I'll send you the proposal. So I thought it just could be the same as in 2007. He's wait (sic) for like another four months to send me the proposal.
Hai was not concerned when he did not hear from Kasal in the months following the May 22, 2012 phone call because Kasal "took a long time" in 2007 to send the proposal. Hai also thought Kasal was "a busy man and maybe he's real busy and he took his time to send [Hai] the proposal." Hai testified he trusted and relied on Kasal's representation he would send Hai the 2013 lease renewal documents. Hai did not provide written notification to Kasal of appellees' intent to exercise the option to renew the lease, and Kasal did not request or otherwise acknowledge the 2008 lease provision requiring written notification.
Kasal assigned the 2013 lease renewal to Selina Johnson, a leasing agent who reported to him. According to Johnson, no specific Inland employee was responsible for lease renewals in the shopping center, and lease renewal work was shared between the employees based on their current work load. Johnson testified there was "no method to the madness other than shuffling out the workload depending on what the workload [was] with [their] team."
Johnson called Hai in early August 2012 and informed him the 120-day deadline to provide written notification to exercise the option to renew the 2008 lease had expired. Johnson could not recall why she first contacted Hai about the 2013 lease renewal in August of 2012, a month after the July 1 deadline to provide notice of intent to exercise the option to renew the lease under the same terms and conditions as the 2008 lease. According to Johnson, whether Inland contacted a tenant prior to the expiration of the deadline to exercise an option to renew a lease was decided on a "case-by-case" basis. Johnson conceded that if the landlord wanted to renegotiate the terms and conditions of a lease, it was in the "best interest of [the] landlor[d] for tenants not to timely exercise [their] right to renew."
Johnson asked Hai to send a written request to renew the lease. In an August 10, 2012 email to appellees, Johnson stated, "I know that we spoke last week regarding your upcoming renewal. Just wanted to see when we may finalize renewal terms." By letter dated August 15, 2012, Hai provided written notice of appellees' intent to exercise the option to renew the 2008 lease for a "5 years [sic] term and the additional option for another 5 years [sic] term thereafter." Hai testified that Johnson subsequently called him and said, "you're late . . . [s]o we terminate[d] your option of the lease. . . . So we're going to write up a brand new lease for you."
Johnson testified she told Hai that appellees had no right to renew the lease under the same terms and conditions as the 2008 lease because they did not give timely written notice of intent to exercise the option to renew. By letter dated September 7, 2012, Johnson notified appellees "the option was not exercised in a timely manner so therefore it [was] considered null and void." Johnson's September 7 letter proposed a lease for a five-year term commencing on January 1, 2013, and expiring on December 31, 2018. The proposed lease terms did not include an exclusivity provision. Johnson's letter concluded, "If you are in agreement, please confirm and we will prepare an amendment incorporating the terms set forth above, together with such modifications as might be necessary to update your lease to the current form."
In a September 11, 2012 email to Johnson, Hai stated appellees had reviewed Johnson's "renewal letter" and decided "to take this advantage [sic] to renew the lease for another five (5) year term." Hai also asked "if there is any option on this renewal after it's expired in December 2018 like the last term we had?" Ten days later, Johnson notified appellees by email that she would "need to get a 90 day landlord recapture right here in order to submit the proposal" and asked if appellees were "good to go with this." Hai responded on October 1, 2012, indicating appellees were "OK with the landlord's decision to move forward on the renewal of the lease," but questioning whether there was "any other option" than the "90 day landlord recapture." By letter dated October 31, 2012 to Inland, Hai requested that Inland reconsider the landlord recapture provision in paragraph seven of the 2013 lease so that appellees would have "a chance to stay for another five (5) year lease[.]" The landlord recapture provision was not removed from the proposed 2013 lease.
Although Hai's October 31, 2012 letter noted that the 2013 lease omitted the exclusivity provision that was included in the 2008 lease, his sole request to Johnson was to remove the landlord recapture provision.
Johnson testified that appellees' exclusive right under the 2008 lease to operate a nail salon in the shopping center "absolutely" was a "valuable right for a tenant." According to Johnson, Kasal did not direct her to add the landlord recapture provision to, or remove appellees' exclusivity right from, the 2013 lease. Rather, the proposed 2013 lease was "presented up the ladder on renewal terms" and decided by a "committee," which was "[her] team." According to Hai, appellees signed the proposed 2013 lease, because they "had no choice."
By letter dated April 22, 2015, Inland notified appellees it was exercising its right to recapture the premises and terminate the 2013 lease. Hai testified that appellees attempted but failed to find a comparable lease space in which they could operate Romie's Nail Boutique. Unable to "find space to replace the space [they] lost when [Inland] terminated [appellees'] lease," appellees purchased another existing nail salon business for $220,000. According to Hai, the value of Romie's Nail Boutique was $300,000, and appellees had received offers to purchase the business for that amount and more; but after appellants terminated the 2013 lease, the value of Romie's Nail Boutique was "zero."
Hai testified appellees' written notice to exercise the option to renew the 2013 lease would not have been late if Kasal had not stated in May of 2012 that he was sending Hai the lease renewal documents. Hai testified he "[was] not suing on the lease," but, rather, "because [appellants] made misrepresentations to [him] that caused [him] not to timely renew the lease[.]" Johnson agreed that appellees "had a right to rely on the truthfulness of what [she] said," and were "entitled to rely" on Kasal's representation that he would "send [Hai] the renewal paperwork." However, in Johnson's opinion, in renewing the 2013 lease, "it would [not] be fair" for Hai to rely on the same procedures that the parties followed for the 2008 lease renewal.
The Jury Charge
The jury charge presented four questions to the jury. For purposes of this appeal, we are required to address question number one, which related to appellees' cause of action for fraudulent inducement, and question number three, which related to appellees' cause of action for negligent misrepresentation. As relevant to this appeal, the jury was charged in question number one:
Do you find that an agent or representative of Defendants:The jury answered "yes" to question number one. As relevant to this appeal, the jury was charged in question number three:
1. made a material misrepresentation, and
2. the misrepresentation was made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, and
3. the misrepresentation was made with the intention that it should be acted on by the other party, and
4. the other party relied on the misrepresentation and thereby suffered injury?
"Misrepresentation" means a false statement of fact or a promise of future performance made with an intent, at the time the promise was made, not to perform as promised.
. . . .
Did any agent of the Defendants make a negligent misrepresentation on which Plaintiffs justifiably relied?The jury answered "yes" to question number three. Accordingly, the jury found appellants had committed fraudulent inducement and made a negligent misrepresentation and awarded mitigation damages of $210,000 and property damages of $300,000 for each claim. The trial court rendered judgment on the jury's verdict, awarding appellees total damages in the amount of $300,000, and prejudgment interest in the amount of $19,972.60.
Negligent misrepresentation occurs when -
a. a party makes a representation in the course of his business or in a transaction in which he has a pecuniary interest, and
b. the representation supplies false information for the guidance of others in their business, and
c. the party making the representation did not exercise reasonable care or competence in obtaining or communicating the information.
. . . .
Issue on Appeal
In their second point of error, appellants argue the trial court erred by denying appellants' motion for directed verdict and second amended motion for judgment notwithstanding the verdict because the evidence was legally insufficient to support the jury's affirmative answers to jury charge question numbers one and three.
Standard of Review
We review a trial court's decision to grant or deny a motion for a directed verdict and a motion for judgment notwithstanding the verdict under a legal sufficiency standard of review. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (test for legal sufficiency is same for directed verdict, judgment notwithstanding the verdict, and appellate no-evidence review). A party challenging the legal sufficiency of the evidence supporting an adverse jury finding on an issue on which it did not have the burden of proof at trial must demonstrate on appeal that there is no evidence to support the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). In evaluating the legal sufficiency of the evidence to support a finding, we determine whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller, 168 S.W.3d at 827; Edwards v. Mid-Continent Office Distribs., L.P., 252 S.W.3d 833, 836 (Tex. App.—Dallas 2008, pet. denied). We view the evidence in a light most favorable to the finding, crediting favorable evidence if reasonable jurors could, while disregarding all evidence to the contrary, unless reasonable jurors could not. City of Keller, 168 S.W.3d at 807, 827. So long as the evidence falls within the zone of reasonable disagreement, we will not substitute our judgment for that of the fact-finder. Id. at 822. Anything more than a scintilla of evidence is legally sufficient to support the finding. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005). However, if the evidence is "so weak that it only creates a mere surmise or suspicion" that a fact exists, it is regarded as no evidence. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156 (Tex. 2014).
Any ultimate fact may be proved by circumstantial evidence. Hoffmann v. Dandurand, 143 S.W.3d 555, 559 (Tex. App.—Dallas 2004, no pet.) (ultimate fact is one that is essential to cause of action and would have direct effect on judgment); Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). An ultimate fact is established by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts proved in the case. Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995). However, to withstand a legal sufficiency challenge, circumstantial evidence still must consist of more than a scintilla. Id.
Generally, when the evidence is legally insufficient to support a judgment, we render the judgment the trial court should have rendered. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Res. Corp., 299 S.W.3d 106, 124 (Tex. 2009).
Analysis
Appellants contend in their second point of error that the trial court erred by denying their motion for directed verdict, second amended motion for judgment notwithstanding the verdict, and first amended motion for new trial because the evidence was legally insufficient to support the jury's affirmative findings in jury charge question numbers one and three that appellants fraudulently induced and made a negligent misrepresentation to appellees.
Appellants argue in their first point of error that because appellees' pleadings specifically name only Johnson as the source of the representations that are the subject of their claims, they cannot recover damages for representations by Kasal. Appellees contend Kasal's representations were properly the subject of the trial court's judgment because appellants did not specially except to appellees' pleadings, their original petition gave fair notice of their claims with respect to Kasal's representations, and Kasal's representations were tried by consent. We conclude, infra, that appellees did not establish all of the elements of a claim for either fraudulent representation or negligent misrepresentation. Accordingly, we need not consider whether Kasal's representations were properly the subject of the trial court's judgment.
Fraudulent Inducement
To establish a claim for fraudulent inducement, the plaintiff must prove the following elements of fraud as they relate to an agreement between the parties: (1) the defendant made a material misrepresentation that was false, (2) the defendant knew the misrepresentation was false when made or made the misrepresentation recklessly as a positive assertion without knowledge of its truth, (3) the misrepresentation was intended to be acted upon by the plaintiff, and (4) the plaintiff actually and justifiably relied on the misrepresentation and suffered injury. Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 302-03 (Tex. App.—Dallas 2009, no pet.).
Appellees were required to show appellants knew a misrepresentation was false when made or made the misrepresentation recklessly as a positive assertion without knowledge of its truth. While "slight circumstantial evidence" of fraud, when considered with a breach or promise to perform, can be sufficient to support a finding of fraudulent intent, Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 775 (Tex. 2009) (per curiam), the evidence presented must have been relevant to the defendant's intent at the time the promise was made. Formosa Plastics Corp., USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). Intent tends to be a fact question within the province of the trier of fact because it "so depends upon the credibility of the witnesses and the weight to be given to their testimony." Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986); see also Janvey v. Golf Channel, Inc., 487 S.W.3d 560, 567 (Tex. 2016). Evidence of intention not to perform that is "so weak that it creates only a mere surmise or suspicion of its existence . . . constitutes no evidence" and will not support a verdict. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992)
Because the issue of scienter is dispositive on appellees' fraudulent inducement claim, we need not reach whether the evidence supports the jury's findings as to the other elements of a claim for fraudulent inducement, see TEX. R. APP. P. 47.1; however, for the reasons discussed infra, the evidence is also legally insufficient to support a finding appellees justifiably relied on Kasal's statements.
Appellees' fraudulent inducement claim was based on Kasal's representation in a telephone call with Hai that he would "work on" and "send [Hai] the proposal" for the 2013 lease renewal. Appellees do not contend there was direct evidence that Kasal knew his representation was false when made or that he made the representation recklessly without knowledge of its truth. Rather, they argue the following "circumstantial evidence support[ed] the jury's finding as to scienter or recklessness": (1) Kasal made the representation on behalf of appellants, (2) Kasal "directed Ms. Johnson as her superior in her declaring the requested extension as null and void," (3) Kasal was "on the committee that added the demand for the right of recapture" to be added to the lease, and (4) "the failure of Mr. Kassal (sic) to appear at trial-without any explanation."
Appellees were required to present evidence that, at the time Kasal made the representation, he did so "with the intent to deceive and with no intention of performing as represented." Formosa Plastics Corp., 960 S.W.2d at 48. A mere failure to perform a promise is not evidence of fraud. Id. Thus, the mere fact that Kasal said he would send the 2013 lease renewal documents to Hai, but failed to do so, is not evidence of scienter or recklessness. Id.
The circumstantial evidence relied upon by appellees does not establish the requisite intent. There is no evidence that Kasal assigned appellees' 2013 lease renewal to Johnson with the intent to change the terms and conditions of appellees' lease, or impede appellees' exercise of the option to renew the 2013 lease on the same terms and conditions as the 2008 lease. The evidence does not support appellees' claim that Kasal "directed Ms. Johnson as her superior in her declaring the requested extension as null and void," as appellees claim. Rather, Johnson testified that not only was she unaware Kasal told Hai he would "send [Hai] the proposal," she did not even know Kasal had spoken with Hai about the 2013 lease renewal. Hai's testimony corroborated Johnson's testimony that she was unaware of Kasal's representation. Hai testified he did not tell Johnson he had previously spoken with Kasal about exercising the option to renew the 2013 lease; and Hai's August 15, 2012 and October 31, 2012 letters to Johnson did not mention Kasal or any previous attempt to exercise the option to renew the lease. The record is void of evidence Kasal participated in the decision to declare appellees' attempt to exercise the option to renew the lease "null and void" for lack of timely written notice. Nor is there evidence Kasal participated in the decision to add the landlord recapture right provision to, and remove the exclusivity provision from, the 2013 lease.
There is not a scintilla of evidence Kasal told Hai he would "send [Hai] the proposal" knowing the statement was false when made or made recklessly as a positive assertion without knowledge of its truth. Because appellees offered no evidence establishing the scienter element of a claim for fraudulent inducement, we conclude the evidence is legally insufficient to support the jury's answer to jury charge question number one. See Bradford v. Vento, 48 S.W.3d 749, 756 (Tex. 2001). We resolve appellants' second point of error as to appellees' fraudulent inducement claim in their favor.
Negligent Misrepresentation
To establish a claim for negligent misrepresentation, the plaintiff must prove: (1) the defendant made a representation in the course of its business or in a transaction in which it had a pecuniary interest, (2) the defendant supplied false information for the guidance of others in their business, (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information, and (4) the plaintiff suffered pecuniary loss by justifiably relying on the representation. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653-54 (Tex. 2018). Accordingly, to prevail on their negligent misrepresentation claims, appellees were required to show not only that they relied on Kasal's statement that he would "send [Hai] the proposal" for the lease renewal, but also that their reliance was justifiable. See Patrushy v. Bloomberg, No. 05-14-00175-CV, 2015 WL 3896097, at *9 (Tex. App.—Dallas June 24, 2015, no pet.) (citing Miller Glob. Props., LLC v. Marriott Int'l, Inc., 418 S.W.3d 342, 347-48 (Tex. App.—Dallas 2013, pet. denied)). Although justifiable reliance usually presents a question of fact, it may be negated as a matter of law when circumstances exist under which reliance cannot be justified. JPMorgan Chase Bank, N.A., 546 S.W.3d at 654.
Because the element of justifiable reliance is dispositive on appellees' negligent misrepresentation claim, we do not reach whether the evidence supports the jury's findings as to the other elements of a claim for negligent misrepresentation. See TEX. R. APP. P. 47.1.
"[N]egligent misrepresentation is a cause of action recognized in lieu of a breach of contract claim, not usually available where a contract was actually in force between the parties." Airborne Freight Corp., Inc. v. C.R. Lee Enters., Inc., 847 S.W.2d 289, 295 (Tex. App.—El Paso 1992, writ denied). "The existence of a written contract makes it harder for a party to show reliance on subsequent oral representations. The contract itself is notice of binding duties, and when it requires that amendments be in writing, that is additional notice not to rely on oral representations." Bluebonnet Sav. Bank, F.S.B., v. Grayridge Apt. Homes, Inc., 907 S.W.2d 904, 908 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (existence of written contract provided notice of binding duty that amendments be in writing and not to rely on oral agreement to restructure loan). "A party to an arms-length transaction must exercise ordinary care and reasonable diligence for the protection of its own interests, and a failure to do so is not excused by mere confidence in the honesty and integrity of the other party." Miller Glob. Props., 418 S.W.3d at 348. Therefore, "reliance upon an oral representation that is directly contradicted by the express, unambiguous terms of a written agreement between the parties is not justified as a matter of law." JPMorgan Chase Bank, N.A., 546 S.W.3d at 658 (quoting DRC Parts & Accessories, L.L.C. v. VM Motori, S.P.A., 112 S.W.3d 854, 858-59 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)); Miller Glob. Props., 418 S.W.3d at 348 (When the written terms of a contract contradict an oral representation, "there can be no justifiable reliance.").
Moreover, when a contract states the parties may not rely on representations other than those appearing in the contract itself, reliance on an oral statement in connection with a subject covered by the contract is not justifiable as a matter of law. C & A Invs., Inc. v. Bonnet Res. Corp., 959 S.W.2d 258, 264 (Tex. App.—Dallas 1997, writ denied) (plaintiff could not justifiably rely on statement in schedule of loans when loan agreement executed by plaintiff precluded any statement in schedule of loans from becoming an enforceable representation or term of the party's agreement); BioSilk Spa, L.P. v. HG Shopping Ctrs., L.P., No. 14-06-00986-CV, 2008 WL 1991738, at *2 (Tex. App.—Houston [14th Dist.] May 8, 2008, pet. denied) (mem. op.) ("When the parties' written agreement addresses the substance of the oral statement and contains language precluding reliance on external representations, Texas courts find reliance on subsequent oral promises unreasonable."); Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 651-52 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
In this case, appellants and appellees were operating under an existing contract, the 2008 lease, that governed the terms and conditions of their business relationship. The 2008 lease required appellees to "notify Landlord in writing of its intention to renew no later than [120] calendar days prior to the expiration date of the then current term of [the] Lease." Moreover, the 2008 lease explicitly precluded reliance on representations external to the lease: "Tenant shall not be entitled to rely on any representations . . . of Landlord other than those expressly set forth in this lease." When appellees executed the lease documents, they contractually agreed not to rely on any statements by appellants other than statements expressly set forth in the lease, and the express terms of the 2008 lease precluded justifiable reliance on Kasal's oral representation. See Bonnet Res. Corp., 959 S.W.2d at 264; see also Simpson v. Woodbridge Props. L.L.C., 153 S.W.3d 682, 684 (Tex. App.—Dallas 2004, no pet.) (disclaimer of reliance clause in contract negated reliance on post-contract oral misrepresentations).
Hai's October 31, 2012, letter to Johnson acknowledged that appellees did not give timely notice of their intent to exercise the option to renew the 2013 lease on the same terms and conditions as the 2008 lease, and that as a result of their breach, they lost the option and would have to enter into a "new" lease. Given appellees' awareness that the parties' contract required written notification within 120 days of the expiration of the 2008 lease to exercise the option to renew, and that the lease contained language expressly precluding reliance on any representations by appellants other than those set forth in the lease, we conclude, as a matter of law, that appellees failed to prove they justifiably relied on Kasal's representation that he would "send [Hai] the proposal."
We therefore conclude the evidence is legally insufficient to support the jury's answer to jury charge question number three. We resolve appellants' second point of error as to appellees' negligent misrepresentation claim in their favor.
Conclusion
We reverse the trial court's judgment and render judgment that appellees take nothing on their fraudulent inducement and negligent misrepresentation claims against appellants.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE 170151F.P05
JUDGMENT
On Appeal from the 68th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-15-08114.
Opinion delivered by Justice Fillmore, Justices Lang and Schenck participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that:
Appellants Hai Nguyen and Mai Nguyen, Individuals, d/b/a Romie's Nail Boutique take nothing on their claims against appellees Inland Western Dallas Lincoln Park Limited Partnership and RPAI Southwest Management, LLC.
It is ORDERED that appellants Inland Western Dallas Lincoln Park Limited Partnership and RPAI Southwest Management, LLC recover their costs of this appeal from appellees Hai Nguyen and Mai Nguyen, Individuals, d/b/a Romie's Nail Boutique. Judgment entered this 29th day of August, 2018.