Tom Norman v. Ann Crouch and Omni Capital Corporation D/B/A South Georgia Shopping Center ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00312-CV
TOM NORMAN, APPELLANT
V.
ANN CROUCH AND OMNI CAPITAL CORPORATION
D/B/A SOUTH GEORGIA SHOPPING CENTER, APPELLEES
On Appeal from the 47th District Court
Randall County, Texas
Trial Court No. 63550-A, Honorable Dan L. Schaap, Presiding
April 22, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Tom Norman, appearing pro se, appeals the trial court’s denial of his
motions for summary judgment and new trial. We will affirm.
Factual and Procedural Background
In July 2005, Norman entered into a commercial leasing agreement with
appellee, Omni Capital Corporation, to rent property located within the South Georgia
Shopping Center for a period of five years. Under the terms of the lease, Norman was
to pay monthly rents at the beginning of each month in amounts that increased
throughout the term of the lease. At the end of the lease term, the agreement provided
that any holding over of the leased property would be construed as a month-to-month
tenancy with a rental rate of $6,750.00 per month.
Norman became delinquent under the lease contract nearly immediately after it
became effective. By June 2010, the last month of the lease term, Norman was
delinquent $148,322.83 in past rents and other charges. After the lease term expired,
Norman failed to remove his property from the leased premises. As such, under the
terms of the lease, Omni considered Norman a holdover tenant. In February 2011,
during the period of this holdover tenancy, a water leak occurred that damaged the
property that Norman kept in the leased premises. Eventually, Norman agreed to the
entry of a judgment of eviction from the leased premises and removed his property at
the beginning of April 2011. Because Norman failed to make any rental payments
during this holdover period, under the terms of the lease, Norman owed Omni
$60,750.00 in holdover rents.
In 2007, Norman arranged the purchase of an antique Burlington train car. The
purchase price of the train car was $8,000. Norman paid $500 as a down payment,
while Ann Crouch paid the remaining $7,500 as well as the cost of moving the train car
to the shopping center and the cost of having it installed. Norman intended to restore
the train car and to use it as a coffee shop but he did not do any repair work on the train
car. Norman was aware that Crouch’s primary interest in acquiring the train car was as
a tax deduction.
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In 2009, the parties agreed that Norman would transfer ownership of the train car
to Omni, who would then make a charitable donation of the train car. As a result of this
transaction, Norman was to receive a credit against his past due rents. However, the
nature of the credit that was to be given to Norman was in dispute at the time of trial.
According to Norman, he was to receive the fair market value of the train car as a credit
against his past due rents with any excess value to be paid to Norman in cash.
According to Omni and Crouch, the agreement was that Norman would receive a credit
against his past due rents equal to the amount of tax savings Omni realized from the
charitable donation of the train car. Omni realized a tax savings of $18,907 for donating
the train car and it credited this amount against Norman’s past due rents.
In April 2011, Norman brought the instant suit against Crouch and Omni for
damages arising out of claims of breach of contract, quantum meruit, conversion,
negligence, fraud, theft, veil piercing, and constructive eviction. In response, Omni filed
a counterclaim for past due rents.
In July 2013, Norman filed a chapter 7 bankruptcy petition. Omni asserted its
claims for past due rents in Norman’s bankruptcy. In August 2013, the bankruptcy court
issued an order on motion to modify stay that authorized Omni to pursue its claims in
the present suit. Norman’s past-due rents were ultimately discharged in bankruptcy in
October 2013.
The case went to trial on May 5, 2014. Norman proceeded with a negligence
claim related to property damage from the water leak and he proceeded with breach of
contract, fraud, conversion, and quantum meruit claims related to the train car
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agreement. At the close of Norman’s evidence, the trial court granted appellees’ motion
for directed verdict as to Norman’s negligence, fraud, and conversion claims. Omni
presented its claim of breach of contract for past-due rents. The jury verdict found that
Norman breached the lease agreement and that Omni was due $190,165.83 in past-
due rents under the lease. The trial court entered judgment in accordance with the
jury’s verdict, but specifically noted in its judgment that the award of damages was
subject to the discharge in bankruptcy.
By his appeal, Norman presents three issues. His first issue contends that the
trial court erred when it denied Norman’s motion for summary judgment. By his second
issue, Norman contends that the trial court erred by denying his motion for new trial that
relied on termination of the bankruptcy court’s order on motion to modify stay. By his
third issue, Norman contends that the evidence was legally insufficient to support the
damages awarded to Crouch and Omni. Crouch and Omni respond to each of
Norman’s issues but also raise a separate procedural issue upon which we will decide
this appeal. See TEX. R. APP. P. 47.1.
Analysis
None of Norman’s issues challenge the take-nothing judgment entered against
Norman on his claims for affirmative relief. As such, we cannot reverse the trial court’s
take-nothing judgment against Norman. See Walling v. Metcalfe, 863 S.W.2d 56, 58
(Tex. 1993) (per curiam) (appellate court may not reverse judgment for reason not
raised). Rather, Norman’s issues challenge the award of damages to Omni for past due
rents. However, there is no dispute that Omni’s claims to these past due rents were
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validly discharged in Norman’s bankruptcy and, therefore, the award of damages in this
case is unenforceable. In fact, the judgment itself expressly makes the award of
damages to Omni “subject to” the discharge in bankruptcy. Because the debt reflected
in this judgment was discharged in bankruptcy, it is “wholly extinguished.” Dilworth v.
Moore, 173 S.W.2d 191, 192 (Tex. Civ. App.—San Antonio 1943), aff’d, 179 S.W.2d
940 (Tex. 1944). The legal effect of the discharge is that the debt or obligation “no
longer exists.” Id. As such, even were we to sustain all of Norman’s issues, it would
have no legal consequence and would constitute an advisory opinion, which this Court
may not issue. See TEX. CONST. art. II, § 1; see also Johnson v. State, Nos. 07-09-
00286-CR, 07-09-00287-CR, 2009 Tex. App. LEXIS 8399, at *1-2 (Tex. App.—Amarillo
Oct. 30, 2009, no pet.) (mem. op., not designated for publication).
Conclusion
Because Norman does not challenge the take-nothing judgment entered against
him on his affirmative claims for relief and any error found in the award of damages to
Crouch and Omni are of no legal consequence, we affirm the judgment of the trial court.
See TEX. R. APP. P. 43.2(a).
Mackey K. Hancock
Justice
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