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Date: 03-04-2020

Case Style:

Inland Western Dallas Lincoln Park Limited Partnership and RPAI Southwest Management, LLC v. Hai Nguyen and Mai Nguyen, Individuals, d/b/a Romie's Nail Boutique

Case Number: 05-17-00151-CV

Judge: Robert D. Burns III

Court: Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney: R. Spencer Shytles

Defendant's Attorney: Edward Jason Dennis


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After a majority of the Court voted to grant reconsideration en banc, the Court sitting en
banc heard the parties’ oral arguments. Subsequent to oral argument some members of the Court
changed their position; they felt that en banc reconsideration was improvidently granted.
Consequently, the Court denies appellees’ motion for reconsideration. However, because I find
sufficient evidence supporting the jury’s verdict for negligent misrepresentation, and because the
case presents extraordinary circumstances, I dissent.
Specific, narrow facts frame this tort case, and the arguments and defenses not raised
mandate the outcome in equal measure with those arguments and causes of action that were raised.
Here, a commercial tenant relied on his landlord’s acceptance of oral notice exercising the tenant’s
right to automatically renew a lease. Although the lease required written notice to exercise the
renewal option and included a no-waiver provision, the landlord had previously accepted oral
notice for exercise of the renewal option, and the tenant’s corroborated and unrebutted testimony
before the jury established acceptance of his renewal notice. In fact, at trial, before the jury, two
of the landlord’s representatives admitted the tenant was entitled to rely on the acceptance of his
oral renewal. Given these specific facts, the omission of common and obvious defenses upon
which many similar cases rest, and our obligation to construe the evidence upon which reasonable
jurors could disagree in support of the jury’s verdict, I would reverse liability on the fraudulent
inducement claim but affirm the judgment with respect to liability for negligent misrepresentation.
I would also reverse the damages awarded for “mitigation” and “property damage” for negligent
misrepresentation. But because there is some evidence of the correct measure of damages under
the negligent misrepresentation claim, I would remand for a new trial.
Appellate courts are duty bound to indulge every reasonable inference to sustain a jury
verdict when the evidence supports the verdict. This mandate, derived from the Seventh
Amendment to the United States Constitution and article I, section 15 of the Texas Constitution,
deserves more than the mere cursory glance given by the majority. The refusal of the panel, and then the majority of our court, to square this judgment with the City of Keller1 decision and our
Court’s precedents, combined with the succession of panel opinions, must be a bitter pill for
appellees to swallow. And while the number of jury trials declines in our state, appellate courts
that discard the hard work of twelve citizens, the trial judge, the attorneys, and witnesses who all
did their level best to levy justice deserve some blame for that decline.
We need trials, and a steady stream of them, to ground our normative standards— to make them sufficiently clear that persons can abide by them in planning their affairs—and never face the courthouse—the ultimate settlement. Trials reduce disputes, and it is a profound mistake to view a trial as a failure of the system. A well conducted trial is its crowning achievement.
1 City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Patrick E. Higginbotham, Judge Robert A. Ainsworth, Jr. Memorial Lecture, Loyola
University School of Law: So Why Do We Call Them Trial Courts?, 55 SMU L. REV. 1405,
1423 (2002). Or, as Chief Justice William Rehnquist noted:
[W]hat many of those who oppose the use of juries in civil trials seem to ignore [is that t]he founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.2

Outcome: Accordingly, we should affirm the jury’s verdict regarding liability on the negligent misrepresentation claim, and because there is some evidence of recoverable out-of-pocket consequential damages, remand for a new trial on the misrepresentation claim.

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