Xiu Juan Chen v. RB & RB Investment, Inc.--Appeal from 234th District Court of Harris County

Affirmed as Modified and Memorandum Opinion filed February 13, 2003

Affirmedas Modified and Memorandum Opinion filed February 13, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00178-CV

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XIU JUAN CHEN, Appellant

V.

RB & RB INVESTMENTS, INC., Appellee

On Appeal from the 234th District Court

Harris  County, Texas

Trial Court Cause No. 00-56014

M E M O R A N D U M O P I N I O N

Appellant, Xiu Juan Chen, appeals from a judgment in favor of appellee RB & RB Investments, Inc. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. The facts of this appeal are known to the parties, so we do not recite them here.

Whose Fault?

The parties agree the restaurant fire involved here was caused by defective electrical wiring, and that both parties knew of the problem several weeks prior thereto; they disagree as to whose contractual duty it was to make the repairs. The trial court decided the issue by summary judgment, dismissing Chen=s counterclaims (asserting breach of contract, negligence, and the like).

Paragraph 9 of the lease titled AMaintenance and Repair@ did not expressly mention the restaurant=s electrical system. But it did recite in pertinent part:

Landlord shall keep the foundation, the exterior walls . . . and the roof of the Leased Premises in good repair . . . Tenant shall . . . make all needed repairs . . . except for repairs required to be made by Landlord under this section.

We agree with the trial court that the lease unambiguously placed the duty to repair electrical wiring on Chen. By mentioning only structural components of the premises in describing the landlord=s duties, we cannot construe the lease as Chen suggests to include the wiring as well. See Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 854 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (applying maxim expressio unius est exclusio alterius); Sun Operating L.P. v. Holt, 984 S.W.2d 277, 292 (Tex. App.CAmarillo 1998, pet. denied). Further, the lease recited that Chen had examined the premises and accepted them AAS IS.@ Finally, Chen presented no summary judgment evidence that the defective wire was located in an Aexterior@ wall as opposed to an Ainterior@ wall. The trial court did not err in granting summary judgment, and Chen=s fifth issue is overruled.

Notice to Repair

In her first issue, Chen alleges she cannot be held liable for breach of contract as appellee failed to give her thirty days= notice and time to cure any non-compliance with the maintenance provisions of the lease. Section 14(f) of the lease required RB to give Chen notice and an opportunity to cure before it could treat any failure to comply with the lease as a default justifying termination. But the lease specifically noted that RB=s remedies described in the lease were Ain addition to, and not in lieu of, any of its other remedies . . . otherwise available to Landlord at law or in equity.@ Nothing in the lease obligated RB to give thirty days= notice before suing for breach of contract. Nor does the lease absolve Chen for breach of contract unless that breach extended for more than thirty days. Chen=s first issue is overruled.

Provision of Insurance

In her second issue, Chen asserts the same thirty days=notice provision applies to her duty to provide insurance. It is undisputed she obtained insurance as required by the lease, and that her insurer has paid $151,000 to RB for damage to the building, and $30,000 to Chen for loss of business. The only insurance issue was who should get the $60,000 for lost property that her insurer interpleaded. RB never claimed and the trial court never submitted any question to the jury regarding breach of this provision; thus, we overrule Chen=s second issue.

The Deposits

In her third issue, Chen challenges another pretrial summary judgment in which the trial court ruled that she owed RB $2,500 for her last month=s rental. Her arguments that she had paid the rent or that RB waived it were not raised in her response or supported by summary judgment evidence;[1] accordingly, they may not be considered on appeal. See Tex. R. Civ. P. 166a(c); McConnell v. Southside I.S.D., 858 S.W.2d 337, 343 (Tex. 1993). Chen=s third issue is overruled.

In her fourth issue, Chen asserts a similar challenge to the same summary judgment in which the trial court ruled that she owed RB $2,500 for a security deposit. Again, there was no timely response. But the lease provides that the security deposit was to protect RB from Aany arrears of rent [or] other payments due Landlord hereunder, and any other damage, injury expense or liability@ caused by Chen=s default. The jury fixed RB=s damages from lost rent and property due to the fire at $73,750; by adding $2,500 for the security deposit, the trial court allowed RB to recover this amount twice. We sustain Chen=s fourth issue.

The Excluded Witness

In her sixth and seventh issues, Chen complains that the trial court prohibited her from testifying that she owned some of the property that RB claimed to have lost, and excluded her witness Barbara Sue Cranford who would have testified to the same. The trial court excluded both matters because RB objected (without contradiction by Chen) that such information was not disclosed until during or immediately before trial, despite relevant discovery requests directed toward her for such information.

At trial, Chen presented no excuse for her failure, or explanation why her surprise evidence was anything but unfair; thus, exclusion was mandatory. See Tex. R. Civ. P. 193.6; Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). No error or abuse of discretion has been shown, and Chen=s sixth and seventh issues are overruled.

The judgment is modified to delete recovery by RB & RB Investments, Inc. of the $2,500 deposit under the lease, and as so modified, the judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed February 13, 2003.

Panel consists of Chief Justice Brister and Justices Yates and Hudson.

[1] She did raise these issues in her motions for reconsideration filed over a period of weeks after the trial court granted summary judgment. No order granting reconsideration or allowing a late filing appears in our record; thus we may not consider these responses. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996).