MICHAEL M. CORMAN, ET AL., Appellant v. FABRIQUE, INC., Appellee

Affirmed and Opinion filed December 19, 1989.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00221-CV
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MICHAEL M. CORMAN, ET AL., Appellant
V.
FABRIQUE, INC., Appellee
 
.................................................................
On Appeal from the 68th District Court
Dallas County, Texas
Trial Court Cause No. 86-17024-C
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O P I N I O N
Before Justices Stewart, Lagarde, and Burnett
Opinion By Justice Lagarde
        Fabrique, Inc., the tenant, originally filed suit against Michael, Catherine, and Laura Corman, as landlords, for unreasonably withholding consent to a sublease that Fabrique submitted for their approval. After a jury trial, the trial court rendered a judgment on the jury's verdict in favor of Fabrique. The Cormans raise thirteen points of error on appeal of that judgment. We overrule all thirteen points and affirm the judgment of the trial court.
        The ground lease in question originated between Jack Corman and Harry Brown as landlords and Texiana Restaurants, Inc., as the tenant, a corporation related to Fabrique through their parent corporation, Riviana Foods, Inc. Jack Corman assigned his landlord's interest in the ground lease to his children, the Cormans, in 1985 or 1986. The ground lease covered a one-acre portion of the Richardson East Shopping Center in Richardson, Texas, including a building which had been used as a restaurant. The ground lease took effect on February 6, 1978, and consisted of a twenty-year primary lease with two five-year options after the expiration of the original twenty-year period. Texiana operated a restaurant for two years and then assigned its tenant's lease to Hospitality Restaurants, Inc., which operated a restaurant until it filed bankruptcy in 1982. Fabrique purchased the tenant's lease through the bankruptcy court in 1983. The lease provided for rent of $20,000 per year, or $1,666.66 per month, plus four percent of any tenant gross income which exceeded $500,000 per year (percentage rentals). The Cormans were represented in all matters by Jack Corman.
        Pursuant to the ground lease between Fabrique and the Cormans, Fabrique had the right to sublet with the consent of the Cormans. Specifically, the ground lease provided that:
        Tenant [Fabrique] shall have the absolute right to assign or sublet this lease and its leasehold interest, upon such terms and conditions, in each instance, as Tenant in its sole discretion shall deem appropriate and advisable, provided the Tenant received written consent from Landlord [the Cormans], which consent shall not be unreasonably withheld.
Further, even though the ground lease permitted Fabrique to sublet the premises, it also required Fabrique to remain liable for the lease even if Fabrique subleased the premises. In August 1986, Fabrique tendered a proposed sublease with Z.L.Z., Inc. (ZLZ) to the Cormans requesting their consent to a sublease. The Cormans requested information about the proposed subtenant and its business operation. Thereafter, Fabrique and the Cormans communicated in writing regarding ZLZ until October 15, 1986, when the Cormans advised Fabrique that they would not consent to the sublease to ZLZ. Fabrique and the Cormans later agreed to a sublease of the premises to a company owned by Jack Corman on the same terms as the ZLZ sublease, and in July 1987, Jack Corman paid $220,000 to Fabrique for its interest in the lease.
        In their first point of error, the Cormans contend that the trial court erred in submitting jury question number one without a definition of the term "unreasonable" because it was used in the charge in a peculiar legal sense. In a related point, the Cormans' second point of error, the Cormans assert that the trial court erred in refusing to submit the following question and instruction:
        Issue No. 1
                Do you find that the Defendants' withholding of consent to the Plaintiff's sublease to Z.L.Z., Inc. was unreasonable?
 
                 You are instructed that for the Defendants' withholding of consent to be unreasonable it must have been arbitrary, made without fair, solid and substantial cause or reason. Arbitrary acts are those which can fairly be termed capricious, despotic, tyrannical, bound by no law, and which are performed without regard to principles.
                
                 You are further instructed that although a decision is mistaken or wrong, it is not necessarily arbitrary.
 
                 You are further instructed that it is not unreasonable for a landlord to withhold consent to a sublease for the reason that the sublease would not produce an adequate amount of rent.
(Footnotes omitted.) The Cormans maintain that because the lease does not contain a definition of the term "unreasonable" and because this court, in Mitchell's, Inc. v. Nelms, 454 S.W.2d 809, passim (Tex. Civ. App.--Dallas 1970, writ ref'd n.r.e.), implies that the term "unreasonable" has a special and peculiar legal meaning, the trial court erred in submitting the following question to the jury without a definition of unreasonable: "Was the CORMAN'S withholding of consent to the Z.L.Z., Inc. sublease unreasonable." By failing to submit the Cormans' requested definition of unreasonable, the Cormans argue that the jury was free to believe that the Cormans were unreasonable for not considering the best interests of Fabrique, who was paying rent but receiving no income from the property, or of ZLZ, which lost an opportunity to start a business at the location of its choosing.
        The Cormans rely on rule 277 of the Texas Rules of Civil Procedure which provides that the trial court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict. Tex. R. Civ. P. 277. The Cormans argue that if an explanatory instruction is of a legal term, it must be included in the court's charge. Bellefonte Underwriters Ins. Co. v. Brown, 663 S.W.2d 562, 577 (Tex. App.--Houston [14th Dist.] 1983), rev'd on other grounds, 704 S.W.2d 742 (Tex. 1986); Compton v. Thacker, 474 S.W.2d 570, 573 (Tex. Civ. App.--Dallas 1971, writ ref'd n.r.e.). The Cormans maintain that a term in the court's charge should also be defined when it is a common term employed in a peculiar legal sense or if it is used under circumstances which might confuse or mislead the jury unless explained. See Hogenson v. Williams, 542 S.W.2d 456, 460 (Tex. Civ. App.--Texarkana 1976, no writ). For these reasons, the Cormans assert that the trial court erred by failing to submit a definition of "unreasonable."
        Before addressing the Cormans' first two points of error, we find it helpful to set out the standard of review regarding the submission of issues. The general rule is that the trial court has considerable discretion in deciding what definitions and instructions are necessary and proper in submitting issues to the jury, and the standard of review is that of abuse of discretion. Green Tree Acceptance, Inc. v. Combs, 745 S.W.2d 87, 89 (Tex. App.--San Antonio 1988, writ denied); Rendon v. Texas Employers' Ins. Ass'n, 599 S.W.2d 890, 896 (Tex. Civ. App.--Amarillo 1980, writ ref'd n.r.e.). Absent a showing of a denial of a party's rights which was reasonably calculated to cause and probably did cause the rendition of an improper verdict in the case, no abuse of discretion on the part of the trial court is shown. Combs, 745 S.W.2d at 89; Hamblet v. Conveney, 714 S.W.2d 126, 129 (Tex. App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). Although rule 277 requires the trial court to define legal and other technical terms to the jury and submit explanatory instructions, the trial court is required to define or explain only those words or phrases given a peculiar and distinctive meaning by law. Words that have no special legal or technical meaning apart from their ordinary usage need not be defined. See Taylor v. Lewis, 553 S.W.2d 153, 159 (Tex. Civ. App.--Amarillo 1977, writ ref'd n.r.e.); Miller v. Watson, 257 S.W.2d 839, 841 (Tex. Civ. App.--Dallas 1953, writ ref'd n.r.e.).
        The word "unreasonable" is one of common use having no special legal or technical meaning apart from its ordinary, accepted use, and, therefore, we conclude that it need not be defined in the charge. Upon review of the Mitchell's case cited by the Cormans in support of their argument that a definition of "unreasonable" should have been submitted to the jury, we conclude that their reliance on this case is misplaced. The trial in the Mitchell's case was before the court and, therefore, did not involve a jury charge. Thus, the Mitchell's case does not directly support the Corman's contention that a definition of "unreasonable" should have been submitted to the jury. The most that can be said is that the refusal to affirmatively instruct the jury on the definition of "unreasonable" left the jury free to misconstrue the ususal and ordinary meaning of the term. See Taylor, 553 S.W.2d at 160. Moreover, as will be discussed in the Cormans' third and fourth points of error, we cannot conclude that such a denial of the Cormans' rights was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Accordingly, the Cormans' first two points of error are overruled.
        In their third point of error, the Cormans maintain that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict because there was no evidence to support the jury's answer to question number one. In their fourth point of error, the Cormans assert that the trial court erred in failing to grant their motion for new trial because there was insufficient evidence to support the jury's answer to question number one. In support of their assertions, the Cormans argue that there was no evidence that the decision to withhold consent to the ZLZ sublease was based on anything but financial considerations. The Cormans assert that, quite simply, Jack Corman made a thorough analysis of the proposed ZLZ sublease, ZLZ, and the type of business ZLZ intended to operate before recommending to the Cormans that consent to the sublease be denied. They maintain that it was in their best interest, since Fabrique was only making the base rental payments and no percentage rentals to the Cormans, to get a tenant into the building who could operate a successful restaurant which would produce enough revenue to activate the percentage rental clause. Furthermore, the Cormans contend that they did not consent to the ZLZ sublease because, among other reasons: (1) the underlying lease had twenty-one more years to run, but the ZLZ sublease obligated it to stay no more than three years; (2) the proposed business, a pancake restaurant, was believed less likely to produce significant percentage rentals to the landlord than would a conventional "three meal" restaurant that would be open all day; (3) ZLZ had no track record in the restaurant business, and the principal of the company had not worked in the business for seven years; (4) ZLZ was undercapitalized with only $8,788 in assets, and Fabrique would not provide a certified balance sheet of the assets of the guarantor of the ZLZ lease; (5) ZLZ did not appear to have access to sufficient liquid assets to meet the capitalization recommended by the restaurant franchisor; (6) the proposed sublease did not obligate ZLZ to spend money to refurbish the restaurant, which had been vacant for four years, and was in disrepair; (7) although Fabrique proposed to post a bond to guarantee that lease payments would be made, the bond would not obligate ZLZ to stay more than three years, and it did not guarantee that there would ever be any percentage rentals to the Cormans; and (8) it was believed that there were other restaurant tenants available who would be more creditworthy, who would sign a longer lease, and who would produce percentage rental income to the Cormans.
        When reviewing a no evidence challenge, we must only consider the evidence and reasonable inferences drawn therefrom, which, when viewed in their most favorable light, support the jury verdict or court finding. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987); Alm v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex. 1986). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford, 726 S.W.2d at 16. When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
        Fabrique originally bought the lease in question for the purpose of subleasing the premises for a higher rental rate than Fabrique was obligated to pay to the Cormans. The evidence is undisputed that the premises were best suited for use as a restaurant. In its efforts to sublease the premises, Wilbur Knutson FN:1 testified that Fabrique solicited approximately seventy different individuals or real estate firms and held two "open houses." Fabrique was attempting to sublease the premises for $4,500 per month, which exceeded the $1,666.66 per month it was required to pay the Cormans.
        The evidence showed that ZLZ, a corporation owned equally by Rick Zappolo and his wife, Zappolo's parents, and Zappolo's grandmother, contacted Fabrique about subleasing the premises. Zappolo testified that he had financial training and extensive restaurant experience. He received a degree in banking from the University of South Carolina in 1975. Zappolo stated that his experience in the restaurant business began at age fifteen when he went to work at "McDonalds" and that he worked at McDonalds for four to five years. Upon graduating from college, Zappolo moved to Atlanta and joined "Ranch House" restaurants, FN:2 and, in one and one-half years, Zappolo had moved through the ranks of manager trainee, assistant manager, and manager. Zappolo testified that Ranch House Restaurants ran family, full-service restaurants which served breakfast, lunch, and dinner. Thereafter, Zappolo went to work for "Dennys" restaurants for one and one-half years, and then he returned to Ranch House and took over management of all ten of their restaurants in Atlanta, Georgia. He held the position of district manager for two years. Zappolo testified that he moved to Dallas, Texas, and started his own business, a direct mailing company, which he sold to the Dallas Morning News three years later.
        In the summer of 1985, Zappolo contemplated getting into the restaurant business once again. He decided to open an "Original Pancake House" restaurant, a national chain which started in 1953 and had fifty-two franchised restaurants. Zappolo stated that, in order to obtain a franchise, he had to satisfy the franchisor's financial requirements and background check. He then pursued site selection with the assistance of real estate companies and brokers. Zappolo testified that his first choice for the location of the restaurant was the premises leased by Fabrique from the Cormans and that the franchisor agreed with Zappolo's decision. Zappolo approached Fabrique about the sublease and actually signed a sublease with Fabrique on July 30, 1986. Fabrique signed the sublease on August 14, 1986. The ZLZ sublease was drafted so that it would run the same time frame as the original ground lease, meaning the sublease could run to the year 2008; however, a three-year option was incorporated into the ZLZ sublease that would allow ZLZ to give up the sublease but required payment of an additional year's rent. Zappolo personally guaranteed the first three years of the sublease.
        Fabrique submitted the ZLZ sublease to the Cormans on or about August 28, 1986, and the Cormans responded by requesting financial statements for ZLZ and Zappolo and inquiring as to whether Fabrique would pay for its review of the proposed sublease, whether Fabrique's payment would be guaranteed, what type of hours ZLZ intended to conduct business, what holidays ZLZ would close the restaurant, and whether ZLZ would operate a "one meal only" restaurant. On September 12, 1986, Fabrique responded to the Cormans' request for information, including Zappolo's financial statement and a "Lease Bond Guaranteeing Payment of Base Rent" and by restating that Riviana Restaurants Corporation, a corporation related to Fabrique, would comply with its obligations, if any, under the guaranty which was incorporated into the original ground lease. At the time the sublease was signed, Zappolo's personal financial statement reflected a net worth of $398,217. On September 15, 1986, Fabrique received a letter from the Cormans in which the Cormans raised additional financial questions regarding ZLZ. The Cormans also attempted to alter the terms of the sublease by insisting that ZLZ pay rent directly to them, rather than to Fabrique. On October 3, 1986, Jack Corman told Fabrique that he would not recommend to the Cormans to consent to the ZLZ sublease unless ZLZ was creditworthy or the sublease was guaranteed by a creditworthy entity. Thereafter, Fabrique continued to provide financial assurances of ZLZ's performance, and Fabrique agreed to provide a surety bond that would not only guarantee that the rent would be paid, but also that any percentage rent would be paid. The Cormans never consented to the ZLZ sublease, so Fabrique commenced legal proceedings against the Cormans in December 1986. The Cormans, through their company, C.M.L. & Company, Inc. (CML), submitted their own proposed sublease for consideration by Fabrique. The proposed CML sublease was virtually identical to the ZLZ sublease. In fact, a representative of Fabrique testified that the proposed CML sublease was a photocopy of the ZLZ sublease, except for some "whiteouts" in it that changed the names and a few of the conditions. The proposed CML sublease did change certain terms of the sublease, but these terms were not acceptable to Fabrique. Fabrique and CML continued to negotiate, and they eventually agreed upon the terms of the sublease. The final terms of the sublease were virtually identical to the ZLZ sublease. In fact, the CML lease provided for the same amount of rental payments and a three-year option which would allow CML to give up the lease, and pursuant to the terms of the lease, it was possible for the sublease to run to the year 2008.         From these facts, we conclude that there is more than a scintilla of evidence to support the jury's answer to question number one regarding the Cormans unreasonable withholding of their consent to the ZLZ sublease. There is evidence that the Cormans had repeated assurances as to the financial status of ZLZ and Zappolo and an offer from Fabrique to supply a lease bond guaranteeing payment of monthly rentals and percentage rentals. Moreover, the Cormans consented to the CML lease which was virtually identical to the ZLZ lease which was not approved by the Cormans. Therefore, the no evidence challenge fails, and the Cormans' third point of error is overruled.
        In support of their factual insufficiency argument, the Cormans assert that ZLZ was formed just one month before it executed a sublease with Fabrique, and at that time, ZLZ's assets totaled a mere sum of $8,788; ZLZ's shareholders were not obligated to put additional money into the corporation; and ZLZ was not required, pursuant to the terms of its sublease with Fabrique, to refurbish the old restaurant. The Cormans also assert that the restaurant that ZLZ proposed to open had a limited menu and limited hours of operation. In support of their argument, John Murphy Graul, a real estate broker, testified that he believed that a full-menu, late-night restaurant would likely produce more revenue. Also, Jack Corman testified that he was concerned about the fact that ZLZ had no track record in operating a restaurant and that Zappolo had not worked in the restaurant business for seven years. Jack Corman further testified that it was in the best interest of the Cormans to sublease the premises to a restaurant with the best potential of producing percentage rentals for the Cormans, and he stated that a pancake restaurant such as the type ZLZ proposed to open would not generate sufficient gross income, based upon his experience, to produce percentage rentals. Jack Corman stated that after subletting the premises in question to Fabrique, he turned down an offer for a "Mexicalle Rose" restaurant with rent of $5,417 per month, plus 5% of the gross, and the lease was going to be guaranteed by the owners of Pizza Inn. Jack Corman testified that he eventually leased the premises to Kentucky Fried Chicken for twenty years at $5,417 per month for the first five years, $6,230 per month for the next five years, $7,165 per month for the next five years, and $8,240 per month for the next five years with an option of an additional five years at $9,476 per month. FN:3 Corman also defended his use of the same sublease form by testifiying that he used it in order to assure that Fabrique would accept the sublease.
        In reviewing factual insufficiency points, this Court will consider all of the evidence in the record that is relevant to the fact being challenged. This Court may set aside the verdict only 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). Because an appellate court is not a fact finder, it may not pass upon the credibility of the witnesses or substitute its judgment for that of the trier-of-fact. This is true even if there is conflicting evidence upon which a different conclusion could be supported. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). Based upon the foregoing evidence, we cannot conclude that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We will not substitute our judgment for that of the jury. Accordingly, the Cormans' fourth point of error is overruled.
        In their fifth point of error, the Cormans argue that the trial court erred in sustaining Fabrique's objection to the testimony of Jack Corman as to the advice he received from his attorneys regarding acceptance or rejection of the proposed ZLZ sublease. When questioned about his considerations before rejecting the proposed ZLZ sublease, Jack Corman testified as follows:
        A.    [Jack Corman] . . . I sought out the advice of my lawyer; Wise, Stuhl and Andres. . .
 
* * *
    Q.    [Cormans' attorney] What was this advice?
 
            [Fabrique's attorney]: Your honor, I object on the grounds of hearsay.
 
            THE COURT: Sustained.
        Assuming, arguendo, that error occurred, we conclude that any error was waived. The Cormans made no formal bill of exceptions or informal offer of proof with respect to what Jack Corman was told by his lawyers. Rule 52 of the Texas Rules of Appellate Procedure establishes the procedures a party must follow in order to preserve error with respect to the rejection of evidence. Specifically, rule 52(b) provides that: "When the court excludes evidence, the party offering same shall as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, an offer of proof in the form of a concise statement." Tex. R. App. P. 52(b). This rule allows any party who is dissatisfied with any ruling, opinion, or other action of the trial court to embody such exception in a bill of exception which then serves as a memorial of matters occurring at the trial of the cause which do not otherwise appear of record. See Continental Trailways, Inc. v. McCandles, 450 S.W.2d 707, 710 (Tex. Civ. App.--Austin 1969, no writ). The Cormans have not complied with this rule, and they have, therefore, waived error, if any. The Cormans' fifth point of error is overruled.
        In their sixth, seventh, and eighth points of error, the Cormans argue that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict because, as a matter of law: (1) Fabrique assigned its interest in the ground lease effective April 16, 1987, retaining no cause of action for rent, lost profits, or other damages following that date; (2) Fabrique, by signing the "Assignment of Ground Sublease and Assumption Agreement" (the Agreement), released the Cormans from any claim for rent, lost profits, or other damages incurred after July 1, 1987; and (3) by signing the Agreement, Fabrique was estopped from making any claim for rent, lost profits, or other damages after July 1, 1987. The Agreement provides as follows:
                THIS ASSIGNMENT OF GROUND SUBLEASE AND ASSUMPTION AGREEMENT (this "Assignment"), is executed to be effective the 16th day of April, 1987 by and between FABRIQUE, INC., a Texas corporation ("Assignor"), and JACK CORMAN, an individual residing in Dallas County, Texas ("Assignee");
 
 
 
                F. Assignor desires to assign to Assignee all of its right, title and interest under the Lease and Assignee desires to accept such assignment and assume the obligations of Assignee under the lease from and after the effective date hereof
 
. . .
        . . . Assignor does hereby ASSIGN, TRANSFER, SET OVER, and DELIVER UNTO Assignee all of Assignor's right, title and interest in the Lease but subject to all terms, conditions, reservations, and limitations set forth in the Prime Lease and the Lease and those matters of record affecting the Property (all such properties, right, and interests, subject as aforesaid, being hereinafter collectively called the "Assigned Lease").
 
. . .
                 4. All of the covenants, terms, and conditions set forth herein shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
The Cormans also signed a document entitled "Consent and Release by Landlord" (the Release) which was attached to the Assignment and provided that:
                The undersigned [the Cormans], being the current Landlord under the Assigned Lease, hereby consents to this Assignment and releases Assignor [Fabrique] as well as any guarantor of the tenant's obligations under the Assigned Lease from any obligations under the Lease accruing from or after April 16, 1987 . . . It is understood that this Assignment as well as the foregoing release shall not be considered as a release or impairment of any claim that Assignor or its predecessors in interest may have against the undersigned or that the undersigned may have against Assignor that predated the latest date set forth in the acknowledgements of Assignor and Assignee below.
(Emphasis added.) The acknowledgement on the Release was executed on June 30, 1987.
        The Cormans maintain that it is undisputed that in July 1987, the Assignment and the Release were finalized and that Jack Corman paid Fabrique $220,000 in return for its execution of the documents. Thus, the Cormans assert that if, in fact, they had unreasonably withheld consent to the ZLZ sublease, Fabrique would have been entitled to damages of no more than $4,500 per month from the date when ZLZ would have begun paying rent to April 16, 1987, the effective date of Fabrique's sublease and Assignment. The Cormans argue that Fabrique's claim at trial for an additional loss was a claim for lost profits after it sold its lease; therefore, the claim is barred. The Cormans rely on Forrest v. Hanson, 424 S.W.2d 899, 904 (Tex. 1968), in support of their proposition that if a party attempts to claim an interest which he purported to convey, he is in effect denying a fact represented by his conveyance which works as an estoppel. In the alternative, the Cormans argue that Fabrique's actions in assigning all of its right, title, and interest to Jack Corman operated as a waiver and release of any claim for lost profits which it would have incurred after the effective date of the Assignment. Burton v. National Bank of Commerce, 679 S.W.2d 115, 117 (Tex. App.--Dallas 1986, no writ).
        In response, Fabrique argues that its claim for damages was not impaired by signing the Assignment. Fabrique argues that the fact that the effective date of the Assignment was backdated to April 16, 1987, had no effect on the amount of rent Fabrique would have received, but did not receive, from ZLZ as of the date of the Assignment. Fabrique asserts that the Assignment had no effect on the amount of money it attempted to recover for the decrease in the value of the leasehold at the time of the Assignment to Jack Corman because the economic loss occurred prior to and at the time of the Assignment; thus, the Assignment did not operate as a waiver, release, or relinquishment of any rights or cause of action by Fabrique.
        We agree with Fabrique. The question of whether a contract is ambiguous is one of law for the court. R & P Enterprises v. LaGuarta, Gavree & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980). In the interpretation of contracts, the primary concern of courts is to ascertain and give effect to intentions of the parties as expressed in the instrument. Id. To achieve this objective, the court will examine and consider the entire instrument so that none of the provisions will be rendered meaningless. Id. at 519. If a written instrument is so worded that a court may properly give it a certain or definite legal meaning or interpretation, it is not ambiguous. Id. Applying these rules, we conclude that the language of the Assignment makes it clear that no release or waiver was intended to result from the Assignment for any claim that predated June 30, 1987. Specifically, the parties agreed that the Assignment, as well as the Release, would "not be considered as a release or impairment of any claim that" Fabrique "or its predecessors in interest may have against the" Cormans ". . . that predated the latest date set forth in the acknowledgements. . . ." As previously stated, the latest date was June 30, 1987. Thus, neither the Assignment nor the Release denied Fabrique its right to pursue its claims against the Cormans for rent, lost profits, or other damages that predated June 30, 1987. We hold, therefore, that the trial court did not err in failing to grant the Cormans' motion for judgment notwithstanding the verdict. The Cormans' sixth, seventh, and eighth points of error are overruled.
        In their ninth and tenth points of error, the Cormans assert that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict and their motion for new trial because there was no evidence and, in the alternative, insufficient evidence to support the jury's answer to question number 2a finding damages for lost rentals to be $31,687.93. The jury found in its answer to question number 2a that Fabrique sustained damages for lost rentals and taxes of $31,687.93. This amount was apparently based upon an assumption that ZLZ would have opened its doors and begun paying rent in the amount of $4,500 on January 1, 1987. The monthly rent was multiplied by the six months FN:4 for a total of $27,000 in out-of-pocket rental payments, which Fabrique claimed it lost, plus $4,687.93, representing taxes that Fabrique had to pay between January 1, 1987, and June 30, 1987. FN:5
        The Cormans contend that Fabrique's only evidence of when ZLZ would have begun operations was the testimony of ZLZ's principal, Zappolo, who stated that under the circumstances, had the Cormans consented on October 15, 1986, to the sublease, rather than withholding their consent, ZLZ would not have been ready to begin business before February 1, 1987. The Cormans assert that because the Assignment provides that any claim for damages incurred after April 16, 1987, were transferred to Jack Corman, Fabrique's damages for lost rent would have been $4,500 per month for two and one-half months, or $11,250, plus $4,687 in tax payments.
        Fabrique claims that it is entitled to: six months rent at $4,500 per month, which represents the first six months of 1987 when ZLZ would have been paying rent to Fabrique FN:6 ; taxes in the amount of $4,687.93 which represents the amount of taxes ZLZ would have paid pursuant to the ZLZ sublease; and $8,499.99 which represents the economic loss incurred by Fabrique when it sold the lease to Jack Corman. Fabrique explains that if the Cormans had consented to the ZLZ sublease, ZLZ would have already paid rent to Fabrique for the first six months of the year before the closing of the Assignment. Fabrique also accuses the Cormans of mischaracterizing the timing and nature of the economic damages that Fabrique claimed it incurred. Fabrique asserts that the $8,499.99 in damages was incurred as a result of the value and purchase price of the leasehold as reflected in the Assignment and thereafter.
        Using the previously stated standards for reviewing no evidence and insufficient evidence complaints on appeal, we conclude that the trial court did not err in denying the Cormans' motion for judgment notwithstanding the verdict and motion for new trial. Knutson testified that under normal circumstances, Fabrique would have expected to obtain the Cormans' consent to the sublease within two weeks of its submission on August 28, 1986, that most of the remodeling of the premises would take around two months, and that approximately seventy-five days would lapse before Fabrique could expect to start receiving rent. In assessing Fabrique's damages, Knutson nevertheless postponed this period to 120 days; thus, he anticipated the payment of rent to commence on January 1, 1987. In addition, Zappolo testified that once he had signed the sublease, he expected to be able to open the doors of the restaurant within ninety to 120 days. He had already contacted an architect who went out to look at the site, and they had discussed what needed to be done to the premises. Zappolo stated that the architect was ready to proceed on a day's notice and would have needed two to three weeks to complete the work. Zappolo testified that he then would have gone to the City of Richardson for a building permit, which would have taken three days to one week to be approved. Once approval was obtained, Zappolo stated that construction would have taken no more than sixty days and maybe even less than sixty days.
        From these facts and based upon our conclusion that neither the Assignment nor the Release denied Fabrique its right to pursue its claims against the Cormans for rent, lost profits, or other damages it incurred or suffered prior to June 30, 1987, we hold that there is more than a scintilla of evidence to support the jury's answer to question number 2a finding damages for lost rentals to be $31,687.93. Accordingly, we overrule the Cormans' ninth point of error that there was no evidence to support the jury's answer to question number 2a.
        In support of the Cormans' tenth point of error, they refer to testimony elicited from Zappolo on cross-examination. After telling him to assume that the Cormans consented to the sublease on October 15 and that it would take 120 days to get the restaurant opened, Zappolo was asked when, based upon those assumptions, ZLZ would commence paying rent. Zappolo responded that February 1, 1987, would be the first day that ZLZ could begin paying rent. Even with this evidence, we cannot conclude that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Therefore, we overrule the Cormans' tenth point of error challenging the factual sufficiency of the evidence to support the jury's answer to question number 2a.
        In points of error eleven and twelve, the Cormans maintain that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict and motion for new trial because there was no evidence and, in the alternative, insufficient evidence to support the jury's answer to question number 2b finding damages for lost economic benefit to be $8,499.99. Finally, in their thirteenth point of error, the Cormans argue that the trial court erred in overruling their objection to the testimony of Wilbur Knutson as to his subjective reasons for offering to sell the Fabrique lease to Jack Corman for $220,000 rather than for a different figure.
        The Cormans assert that the jury finding of damages in the amount of $8,499.99 for "lost economic benefit" was, in effect, a recovery for lost profits. The Cormans objected at trial to testimony by Knutson as to his reasons for selling the Fabrique lease to Jack Corman for $220,000. The Cormans assert that the trial court improperly overruled the objection and allowed Knutson to testify that he intended the $220,000 to represent profits that he thought Fabrique would have made on the ZLZ sublease beginning in October 1987, but that did not include $8,499.99 in profits, which Fabrique's attorney denominated as "lost economic benefit." The Cormans argue that the amount of the eventual selling price of the lease to Jack Corman, and how that figure was arrived at subjectively by one of the parties, was irrelevant to any issue before the trial court and was, in effect, the creation of damages which did not otherwise exist. The Cormans state that by selling the lease to Jack Corman in July 1987, Fabrique received the objective value placed on the lease by both of the parties. Additionally, the Cormans assert that the trial court erred in admitting Knutson's testimony since he admitted that he arrived at the $220,000 figure based upon the assumption that ZLZ would have stayed as a rent-paying tenant for the remaining twenty-one years of the lease, even though ZLZ had an option to leave after three years.
        In response, Fabrique asserts that as stated by Knutson at trial, Fabrique would have started receiving rent from ZLZ on January 1, 1987, and from CML on October 1, 1987. Fabrique maintains that the jury's answer to question number 2a represents the damages associated with the first six months of 1987, and question number 2b represents the lost economic benefit suffered for the remaining three months, specifically from July 1, 1987 to October 1, 1987. Fabrique explains that if the Cormans had consented to the ZLZ sublease, ZLZ would have occupied the premises and paid rent thereafter, and the subsequent CML sublease had the effect of mitigating Fabrique's ongoing damages because beginning October 1, 1987, and continuing thereafter, Fabrique could expect to receive rent from CML. Fabrique contends, however, that the CML sublease did not operate to mitigate its damages before October 1, 1987. Fabrique states that the relevant inquiry is whether it was made whole for the nine months between January 1 and October 1, 1987. Fabrique asserts that it lost an economic benefit associated with these months equal to the difference between what Fabrique would have received from ZLZ and what it in turn would have been required to pay the Cormans for each of these three months. Fabrique explains that the difference was $4,500, minus $1,666.66, or $2,833.33 per month, resulting in an economic loss of $8,499.99 over a period of three months.
        The only case the Cormans cite in support of their proposition is Page v. Hancock, 200 S.W.2d 421 (Tex. Civ. App.--Austin 1947, writ ref'd n.r.e.). The court in Page determined that loss of anticipated profits from a new and unestablished business is not recoverable. Id. at 423. The rationale behind the rule of denying a recovery where the facts show that such profits claimed are too uncertain or speculative, or where the enterprise is new or unestablished, is still enforced on the ground that the profits which might have been made from such business are not susceptible of being established by proof to that degree of certainty which law demands. Id. Here, however, the damages sought by Fabrique are not too uncertain or speculative; rather, the damages are lost rentals during a three-month period which are easily estimated.
        As previously stated, we hold that the Assignment and Release are unambiguous. The Release did not impair any claim that Fabrique had against the Cormans that predated June 30, 1987, since their claim for lost rent from January 1, 1987, through October 1, 1987, existed before June 30, 1987. However, we must determine whether the evidence regarding Fabrique's lost economic benefit was legally and factually sufficient.
        It is undisputed that on April 16, 1987, Fabrique and Corman entered into a sublease agreement. FN:7 Fabrique's representative testified that the Cormans consented to the sublease sometime in late May 1987. Based upon this evidence, coupled with the testimony of Knutson and Zappolo regarding their estimate of the number of days it would take to remodel the premises before commencing payment of rent, we conclude that there is more than a scintilla of evidence to support the jury's answer to question number 2b. Therefore, we hold that the Cormans' no evidence challenge fails. Accordingly the Cormans' eleventh point of error is overruled.
        With regard to the Cormans' challenge as to the factual sufficiency, for reasons set forth in our discussion of the Corman's tenth point of error, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we overrule the Cormans' twelfth point of error.
        In their thirteenth point of error, the Cormans allege that the testimony complained of should not have been admitted because it was not relevant. However, the Cormans fail to cite any authority in support of their proposition. A point of error that is not briefed fails to meet the minimum requirements of rule 74(f) of the Texas Rules of Appellate Procedure. Thus, the Cormans have waived their thirteenth point of error.
        The judgment of the trial court is affirmed.
 
 
 
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
890221F.U05
 
FN:1 Knutson is employed by Riviana Foods, Inc., the parent company of Fabrique.
FN:2 We note that the parent company of Ranch House restaurants is Riviana Restaurant Corporation which is a subsidiary of Riviana Foods, Inc.
FN:3 In their supplemental brief, the Cormans cite to Haack v. Great Atlantic & Pacific Tea Co., Inc., 603 S.W.2d 645 (Mo. App. 1980). Although the facts in Haack are somewhat similar to the facts in this case, the Haack case is not dispositive of the Cormans' no evidence and insufficient evidence points. Every case must be judged on its own particular facts. Moreover, a Missouri case is by no means binding on this Court.
FN:4 January 1, 1987, to June 30, 1987.
FN:5 Pursuant to the ZLZ sublease, ZLZ had agreed to pay property taxes. Since the ZLZ sublease was not approved by the Cormans, Fabrique had to pay the property taxes as required under the ground lease.
FN:6 Fabrique asserts that it continued to pay the monthly base rental installments of $1,666.66 pursuant to the ground lease; therefore, it was losing $4,500 per month.
FN:7 Although Jack Corman, as president of CML, signed the sublease on April 9, 1987, Fabrique's representative did not sign the agreement until April 16, 1987.
File Date[12-19-89]
File Name[890221F]