Opinion
No. 05-08-00475-CV
Opinion issued March 27, 2009.
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-3515-06.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
A residential landlord sued its tenant for unpaid rent and won summary judgment against the tenant. We reverse and remand for further proceedings.
I. Background
A. Facts
The Frankel Family Trust d/b/a Estates on Frankford operates an apartment complex. In January 2006, Jon M. Voorhies signed a one-year lease for an apartment in that complex. The Trust alleges that Voorhies moved out early and failed to pay rent and other charges required by the lease totaling approximately $4,615.77.
The Trust's summary-judgment evidence shows that Voorhies furnished the Trust with written notice of the presence of mold in the air conditioning vent in his master bedroom on August 5, 2006. In the notice, Voorhies invoked a lease provision called the "mold avoidance policy" that allowed him to terminate the lease if mold was discovered in his apartment and if he vacated the apartment "as quickly as possible" after the Trust verified the mold condition. On August 7, he told the property manager, Heidi McNeely, that he wanted to be released from his lease. He also showed her the mold in the ducts behind his air vents, and she took pictures of the mold. McNeely asked him to fill out a "notice to vacate" for her file. In her written report recounting that day's events, McNeely stated that Voorhies told her that he would probably move out by the end of August but that it might be "more like 30 days since he is traveling so much." Voorhies left the country on business that day and was out of the country from August 7-11, August 26 through September 1, and September 10-29. During this time period, Voorhies was looking for another place to live. McNeely tried to contact Voorhies on August 25 and August 31 and left messages for him.
On or about September 21, while Voorhies was out of the country, his fiancee, Teresa Brewer, delivered two documents to McNeely: a printout of an email Voorhies had sent to Brewer, and a letter Voorhies had written to McNeely. In the letter, Voorhies gave McNeely his contact information while abroad, designated Brewer as his contact person, and identified three maintenance requests regarding his apartment. He said nothing about the mold problem or his prior request to be released from his lease. In the email addressed to Brewer, Voorhies instructed Brewer to deliver the letter to the Trust. The email also contained the following paragraph:
On a similar note, can you also try and touch base with Heidi [McNeely]. She is the manager there at the Estates of Frankford. She is/was under the impression that I was going to move out of the complex because of some issues that I had there. Just let her know that I have been out of town and have not had enough time to take care of those things, so I will just keep the place probably until the end of the lease due to time constraints. I will stop by and talk to her when I am back in town the week of Oct 2-6th regarding the apt.
According to Voorhies's affidavit, he did not intend Brewer to deliver the email to the Trust and did not intend to advise the Trust that he was going to keep the apartment.
At some point before October 12, Voorhies signed a contract to buy a house. On October 12, Voorhies gave McNeely a written "notice to vacate" stating that he intended to vacate the premises on November 12. McNeely signed and dated the notice and did not indicate that there were any problems. Four or more days later, Voorhies received a letter from McNeely advising him of the Trust's position that he had forfeited any right to vacate under the mold provision because he had failed to vacate as quickly as possible after discovering the condition. He contacted McNeely, who further explained that her management took the position that he had taken too long. He submitted a timeline showing the days he had been out of the country, but the Trust did not change its position. He moved out on October 31, 2006. The Trust's property supervisor furnished an affidavit in which he testified that Voorhies owed the Trust $4,615.77 for unpaid rent, rental concessions, utilities, carpet cleaning, and a reletting fee.
B. Procedural history
The Trust sued Voorhies for breach of contract in December 2006. The Trust filed a motion for summary judgment in December 2007. Voorhies timely served his response to that motion. The trial judge heard the motion and signed an order granting summary judgment in the Trust's favor. The judge awarded the Trust $4,615.77 as actual damages, over $11,000 in attorneys' fees, and additional contingent appellate attorneys' fees. The judge also ordered Voorhies to take nothing on his counterclaims against the Trust.
Voorhies's counterclaims do not appear in our record, but this is immaterial because he raises no issue challenging the take-nothing judgment as to those claims.
Voorhies filed a motion for new trial that was overruled by operation of law, and he timely perfected appeal to this Court.
II. Standard of Review
We review a summary judgment de novo. Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 805 (Tex.App.-Dallas 2008, pet. denied). Generally, summary judgment in favor of the plaintiff is proper if the plaintiff conclusively establishes every element of its claim as a matter of law. Ortega-Carter v. Am. Int'l Adjustment Co., 834 S.W.2d 439, 441 (Tex.App.-Dallas 1992, writ denied). "A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence." W.H.V., Inc. v. Assocs. Hous. Fin., LLC, 43 S.W.3d 83, 87 (Tex.App.-Dallas 2001, pet. denied). A defendant can avoid summary judgment by pleading and raising a genuine issue of material fact as to every element of an affirmative defense. Ortega-Carter, 834 S.W.2d at 441.
We review the evidence in the light most favorable to the nonmovant and resolve all doubts in the nonmovant's favor. Roehrs, 246 S.W.3d at 805.
III. Analysis
In two issues, Voorhies argues that the trial court erred in granting summary judgment in favor of the Trust. He argues that the lease is ambiguous, that the Trust did not conclusively prove that he breached the lease even if the lease is not ambiguous, and that the Trust waived any breach-of-contract claim against him.
A. Ambiguity
The critical lease provisions are found in paragraph 18, which is entitled "Hazardous Materials; Mold Avoidance Warning." That paragraph includes the following verbiage:
MOLD AVOIDANCE POLICY. If you discover mold in your apartment unit or you notice a damp, musty smell which may be caused by mold, notify us immediately and promptly follow this with a written complaint. Upon receipt of your complaint we will immediately inspect the problem, determine the source, and perform remediation and repair. If mold or musty conditions do exist, you shall have the right to vacate your apartment, which you must do as quickly as possible after we verify the condition . . . . Unless this condition was caused by your negligence in maintaining your apartment unit or your failure to timely report the moisture problem, upon your fully vacating your apartment unit (a) you will be relieved of any further responsibility for the payment of rent under the terms of this Lease Contract, and (b) we will reimburse you up to $500 for your moving expenses upon your presenting us with valid receipts.
(Emphasis added.) Voorhies focuses on the phrase "as quickly as possible," arguing that it is ambiguous and vague on its face. The Trust responds that the phrase is not ambiguous.
A contract is ambiguous if its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. Id. at 394. If the contract is not ambiguous, the court will construe it as a matter of law. Id. at 393. If the contract is ambiguous, its interpretation becomes a fact question, which generally makes summary judgment improper. Id. at 394.
As the Trust points out, Voorhies cites no cases considering the question of whether a contractual requirement that action take place "as quickly as possible" is ambiguous. Voorhies's cases address a different situation, when a contract requires action but contains no terms stating when the action must take place. J.H. Corp. v. Keating, No. 05-97-02189-CV, 2000 WL 267481, at *3 (Tex.App.-Dallas March 13, 2000, no pet.) (not designated for publication); W. Anderson Plaza v. Feyznia, 876 S.W.2d 528, 534 (Tex.App.-Austin 1994, no writ). We have found one case in which a court concluded that the phrase was not ambiguous and would be satisfied by "performance with due diligence under the circumstances of the case, and without unreasonable and unnecessary delay." Diana Oil Co. v. Cayton, 20 S.W.2d 108, 112 (Tex.Civ.App.-Waco 1929, writ dism'd w.o.j.). On the other hand, a few courts have held that the equivalent phrase "as soon as possible" is ambiguous. See Bledsoe v. Miller, 496 S.W.2d 140, 141 (Tex.Civ.App.-El Paso 1973, no writ) (concluding that parol evidence was admissible to explain the phrase's meaning); see also Bohn Eng'g, Inc. v. Vanderwoud, No. 190822, 1997 WL 33350761, at *3 (Mich.Ct.App. May 2, 1997) (per curiam) ("[T]he term `as soon as possible' was an ambiguous term that had to be given a reasonable interpretation because it could be interpreted differently by different people."); Dalicandro v. Morrison Rd. Dev. Co., Inc., No. 00AP-619, 2001 WL 379893, at *9 (Ohio Ct. App. April 17, 2001) ("Here, the contract term `as soon as possible' is subject to different interpretations and, thus, is ambiguous.").
We conclude that the phrase "as quickly as possible," as used in this lease, is ambiguous. On the one hand, the phrase could reasonably be given a strict interpretation, which would require the tenant to move out as soon as he could make arrangements to move his furniture. Or it could reasonably be given the more liberal interpretation described in Diana Oil Co., which would require the tenant to move out as soon as he could find alternative housing in the exercise of due diligence under the circumstances.
B. Genuine issue of material fact
A conclusion that a contract is ambiguous often precludes the possibility of summary judgment on a breach-of-contract claim. See Coker, 650 S.W.2d at 394. But if the Trust proved as a matter of law that Voorhies breached the contract under any reasonable interpretation of it, it follows that the ambiguity is immaterial and should not forestall summary judgment. Thus, we will assume the interpretation of the contract most favorable to Voorhies and evaluate the summary-judgment evidence.
1. "as quickly as possible"
First, we consider when Voorhies's time to vacate began to run. Voorhies's own evidence proved that the Trust's property manager saw the mold for herself on August 7 and gave Voorhies a "notice to vacate" form on that date. We conclude that this evidence conclusively establishes that the time to vacate the apartment began to run on August 7, 2006.
The question then becomes whether any reasonable fact finder would have to conclude that Voorhies did not move out "as quickly as possible" after August 7 in the exercise of due diligence under the circumstances. The Trust's evidence established that Voorhies actually vacated the apartment on October 31, which was 85 days after the triggering event. The summary-judgment evidence also supported the following facts. Voorhies was in Canada on business from August 7 to August 11. He spent a significant amount of time looking for a house from August 12 to August 25. He was in France on business from August 26 to September 1. He was intensely busy at work from September 5 to September 8, but continued to research houses online. He was in Mexico City on business from September 10 to September 29. He did more housing research the weekend of September 30 and October 1. He found the house he wanted on October 9 and signed the contract on the house by October 12. On October 12, he submitted his notice to vacate, and he moved out 19 days later. Given all of these circumstances, we conclude that a reasonable fact finder could find that Voorhies vacated his apartment "as quickly as possible" after the Trust confirmed the presence of mold in the apartment. See Diana Oil Co., 20 S.W.2d at 112 (whether time afforded by "as quickly as possible" clause expired after 40 days presented a genuine fact question given all the facts and circumstances). Accordingly, a genuine issue of material fact exists, and the summary judgment cannot be sustained on this ground.
2. Waiver
The Trust also asserted in its summary-judgment motion that Voorhies, by his conduct, waived his right to terminate the lease early under the mold avoidance policy provision. For support, the Trust relies on the letter and email that Brewer delivered to the Trust on or about September 21, 2006. In the letter, Voorhies advised the Trust that he was going to be in Mexico City "for a couple of months," that Brewer would be his "contact person," and that his apartment had three "Maintenance Issues" that did not involve mold. And in the email from Voorhies to Brewer, he told Brewer that McNeely "is/was under the impression that I was going to move out of the complex because of some issues that I had there," and he instructed Brewer to "let her know that I have been out of town and have not had enough time to take care of those things, so I will just keep the place probably until the end of the lease due to time constraints." He further said that he would talk to McNeely about the apartment when he was back in town.
A party can waive contractual rights. Johnson v. Structured Asset Servs., LLC, 148 S.W.3d 711, 722 (Tex.App.-Dallas 2004, no pet.). Waiver occurs when a party either intentionally relinquishes a known right or engages in intentional conduct inconsistent with claiming that right. Id. Waiver is unilateral in character, and no act of the party in whose favor it is made is necessary to complete it. Id. Moreover, it need not be founded on a new agreement, supported by consideration, or based upon estoppel. Id. Waiver of a contractual right requires proof of an intent to relinquish a known right, which proof can be supplied by an express renunciation of a known right or by "silence or inaction for a period of time long enough to show an intention to yield the known right." Id. Waiver is ordinarily a question of fact, but when the surrounding facts and circumstances are undisputed, the question becomes one of law. Jernigan v. Langley, 111 S.W.3d 153, 156-57 (Tex. 2003) (per curiam). The Jernigan opinion cautions that implied waiver "must be clearly demonstrated by the surrounding facts and circumstances." Id. at 156; see also Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353 (Tex. 2005) ("While waiver may sometimes be established by conduct, that conduct must be unequivocally inconsistent with claiming a known right.").
Thus, the question presented is whether the evidence would compel any reasonable person to find that Voorhies intentionally relinquished his rights under the mold avoidance policy. On August 7, Voorhies told McNeely that he would move out within the next 24 to 30 days. The next communications the Trust received from him were the email and letter delivered by Brewer on September 21, some 45 days after August 7. Voorhies affirmatively stated in the email that he would "keep the place probably until the end of the lease due to time constraints." At that point, only about four months of the one-year lease remained. Three more weeks went by before Voorhies informed the Trust that he intended to move out on November 12-only eleven weeks before the end of the lease. All totaled, 67 days passed between Voorhies's orally telling McNeely that he intended to move out within 30 days and his written notice that he was actually going to move out.
With respect to express waiver, Voorhies's inclusion of the word "probably" in his message to McNeely makes that message equivocal, which prevents us from concluding as a matter of law that he expressly relinquished his rights under the mold avoidance policy. His statement that he would talk to McNeely "regarding the apt" upon his return from abroad is also equivocal and leaves open the possibility that Voorhies still intended to invoke early termination under the mold avoidance policy. With respect to implied waiver, the evidence that Voorhies continually looked for a suitable house when he was not traveling on business tended to show that Voorhies lacked the intent to give up his early termination rights. Implied waiver "must be clearly demonstrated by the surrounding facts and circumstances." Jernigan, 111 S.W.3d at 156. On summary judgment, that clear demonstration must be made by conclusive evidence. We conclude that the Trust's evidence of waiver, whether express or implied, is not conclusive and thus falls short of the summary-judgment standard.
D. Attorneys' fees
For the foregoing reasons, we will reverse the judgment to the extent it awards the Trust affirmative relief on its claims against Voorhies. Voorhies does not challenge the judgment insofar as it orders him to take nothing on his counterclaims, so we will affirm that portion of the judgment. The Trust argues that, based on this disposition, we should award the Trust its attorneys' fees pursuant to the terms of the lease. The lease provides that if either party brings a legal action "to enforce the terms of this Lease Contract, the prevailing party shall recover all legal costs and attorney's fees from the other party." The Trust cites no legal authority that it would be appropriate for this Court to make an award of fees at this time. Even assuming we possess the authority to make such an award, it would be premature to do so at this juncture, before the adjudication of the Trust's claim. See Hirschfeld Steel Co., Inc. v. Kellogg Brown Root, Inc., 201 S.W.3d 272, 288-89 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (affirming trial court's decision to award no fees where court had rendered take-nothing judgments against both claimant and counterclaimant). We conclude that the appropriate course is to allow the trial court to consider this matter on remand.
IV. Conclusion
We reverse the trial court's judgment to the extent that the court awarded the Trust its damages, attorneys' fees, interest, and costs of court. We affirm the judgment to the extent the court ordered Voorhies to take nothing from the Trust on his counterclaims. We remand for further proceedings consistent with this opinion.