Kathleen Burke v. The Weitzman Group--Appeal from County Court at Law No 1 of Hays County

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MEMORANDUM OPINION
No. 04-02-00570-CV
Kathleen BURKE,
Appellant
v.
THE WEITZMAN GROUP,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 265352
Honorable Shay Gebhardt, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: January 29, 2003

AFFIRMED

Kathleen Burke ("Burke") appeals a judgment rendered in favor of The Weitzman Group ("Weitzman") in a breach of contract case. In two issues, Burke contends: (1) the evidence is insufficient to support the jury's breach of contract finding; and (2) the trial court abused its discretion in refusing to submit Burke's requested jury question regarding her excuse for failing to comply with the contract. We affirm the trial court's judgment.

Background

David Carl Kocurek, Jr. ("Kocurek"), a real estate broker and vice-president of Weitzman, approached Whataburger to determine if it was interested in leasing a tract of real property owned by Burke. Whataburger subsequently expressed interest, and Kocurek presented Burke's broker with a letter of intent from Whataburger.

On November 8, 1999, Weitzman and Burke entered into a Commission Agreement. Under the terms of the agreement, Weitzman was to receive commissions based on the net rent to be paid by Whataburger to Burke. The commission was calculated based on rent payable during the first ten years of the fifteen-year lease. (1) For the lease period from the commencement of the lease through the end of month 12, the commission payable was $1,728.00. If Whataburger exercised its option to terminate the lease, the Commission Agreement stated that no additional commissions will have been earned and payable. The Commission Agreement then set forth additional commissions to be paid in the event Whataburger did not exercise its option to terminate the lease as set forth in the lease agreement. If Whataburger did not exercise its option to terminate the lease, the Commission Agreement provided for the payment of the following additional commissions: (1) $6,912.00 based on rent payable from month 13 of the lease through the end of month 60; and (2) $9,936.00 based on rent payable from month 60 of the lease through the end of month 120. (2) Fifty percent of the initial $1,728.00 commission was to be paid upon the execution of the lease, and the remaining fifty percent was to be paid upon the commencement of the lease. The remaining commissions were to be paid on or before January 1, 2001, if Whataburger did not exercise its right to terminate the lease.

The Lease Agreement was executed on November 11, 1999. The lease gave Whataburger a one time right to terminate the lease at the end of the twelfth lease month or on December 31, 2000, by providing Burke sixty days prior written notice. Accordingly, Whataburger would have been required to notify Burke of its intent to terminate the lease by October 31, 2000.

On the day the lease was signed, Burke paid Weitzman $864.00, representing fifty percent of the initial commission of $1,728.00. On January 11, 2000, Weitzman sent Burke an invoice for the remaining $864.00 due from the initial commission payment. Burke returned the invoice with her check for $864.00. The returned invoice contained several statements that Burke had inserted, indicating that Weitzman would be paid as Burke collected rent from Whataburger concluding, "When I see the building open for business and if your client is not late in subsequent rental payments I will discuss your commission. Other wise [sic] it has not been earned." Kocurek testified that he did not know how to interpret Burke's comments. However, he did not consider her comments to be a proposal to modify the Commission Agreement, and he did not accept any change in terms.

Sometime in July or August of 2000, Whataburger contacted Kocurek requesting an amendment to the lease. Kocurek never discussed the amendment with Burke. Kocurek contacted Burke's broker and told him that Whataburger had an amendment to submit. Whataburger requested a form for the amendment from Kocurek. Although Kocurek submitted a form, Whataburger rejected the form and drafted its own. Kocurek contacted Burke's broker when he received the amendment, and Burke and Whataburger entered into the amendment on August 15, 2000. The amendment gave Whataburger an additional right to terminate the lease at the end of the sixtieth month of the lease or on December 31, 2004, by providing Burke with sixty days prior written notice.

On October 30, 2000, Weitzman sent Burke a letter reminding Burke that if Whataburger did not exercise its right to terminate the lease by October 31, 2000, an additional commission of $6,912.00 was due. Kocurek testified that the letter was intended to allow Burke to pay the total additional commission of $16,848.00 in two payments. On December 13, 2000, Weitzman sent Burke a "second notice" invoice for $6,912.00. Weitzman did not receive any additional payment from Burke.

On March 8, 2001, Weitzman filed the underlying lawsuit to collect the additional commissions it claimed it was entitled to receive under the Commission Agreement. A jury found that Burke had breached the Commission Agreement and awarded Weitzman $16,848.00 in damages plus attorneys' fees. Burke timely filed this appeal.

Breach of Commission Agreement

In her first issue, Burke contends that the evidence is legally and factually insufficient to support the jury's finding that she breached the Commission Agreement.

In reviewing a legal sufficiency challenge, all the record evidence and reasonable inferences from that evidence are reviewed in a light most favorable to the findings, and the finding is upheld if it is supported by anything more than a scintilla of evidence. Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). In reviewing a factual sufficiency challenge, we examine all of the evidence and only set aside a finding if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Burke contends that the evidence is insufficient to support the jury's finding because part of the consideration for the Commission Agreement was the receipt of rental payments by Burke under the terms of the lease; accordingly, if Whataburger elected to terminate the lease at the end of the fifth year of the lease, no consideration would support the payment of commissions after the termination of the lease. Burke also contends that the amendment to the lease agreement necessarily modified the Commission Agreement because the terms of the two agreements were intertwined. Finally, Burke contends that the amendment to the Lease Agreement required a second written commission agreement because commission agreements must be in writing pursuant to the Real Estate Licensing Act. See Tex. Rev. Civ. Stat. Ann. art. 6573a, 20 (Vernon Supp. 2002) (requiring commission agreement to be in writing).

Burke's contentions are not supported by the evidence. Kocurek testified that Weitzman receives payment for bringing deals to people. Accordingly, Weitzman earned its commission when Burke and Whataburger entered into the original lease agreement. Kocurek testified that commissions are generally paid "up front," and it would be unusual to receive commissions each month as rent is paid under a lease. The Commission Agreement was executed on a different date than the lease, and Burke testified that the agreements were separate documents. Burke never contacted Weitzman about changing the terms of the Commission Agreement.

The evidence, therefore, conclusively established that the Commission Agreement was a separate contract from the lease, and the consideration for the Commission Agreement was Weitzman's location of a lessee for Burke's property. Burke was not entitled to unilaterally alter or modify the terms of the Commission Agreement by agreeing to the lease amendment. See Safeway Managing Gen. Agency for State & County Mut. Fire Ins. Co. v. Cooper, 952 S.W.2d 861, 867 (Tex. App.--Amarillo 1997, no pet.); Fubar v. Turner, 944 S.W.2d 64, 67 (Tex. App.--Texarkana 1997, no writ). Because the Commission Agreement was in writing, it complied with the terms of the Real Estate Licensing Act.

Burke's first issue is overruled.

Jury Question

In her second issue, Burke contends that the trial court erred in refusing to submit her requested jury question regarding whether Burke was excused from complying with the terms of the Commission Agreement because its terms were modified or because it was not supported by sufficient consideration. Rule 278 of the Texas Rules of Civil Procedure only requires the submission of questions that are raised by written pleadings and the evidence. Tex. R. Civ. P. 278. We review a trial court's decision to exclude a jury question under an abuse of discretion standard. Texas Dep't of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). Because there was no evidence that the Commission Agreement was not supported by consideration or that the terms of the Commission Agreement were modified, the trial court did not abuse its discretion in refusing Burke's requested question.

Burke's second issue is overruled.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

PUBLISH

1. Weitzman initially proposed a commission based on the entire fifteen-year lease term, but the proposal was changed during subsequent negotiations.

2. The commission was calculated separately for the two lease periods because the lease agreement provided for an escalation in the amount of rent Whataburger was required to pay after the end of month 60.

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