Sterling David Kubecka v. State

Citation: Not availableDocket: 06-03-00064-CR

Court: Court of Appeals of Texas; July 27, 2004; Texas; State Appellate Court

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Sterling David Kubecka appealed his conviction for theft related to an overdraft on his Republic Bank account, asserting that the trial court improperly excluded testimony from his friend Martin Tellez. Tellez was to testify that Kubecka had asked him to pay $7,000 directly to the bank to cover Kubecka's overdraft, which Kubecka argued demonstrated his intent not to deprive the bank of funds. The appellate court determined that Tellez's testimony was not hearsay because it was not offered to prove the truth of Kubecka's statement but rather to show Kubecka's intention to satisfy his debt to the bank. Despite this, the court upheld the exclusion of the testimony, concluding it lacked relevance and that the trial court acted within its discretion. The ruling emphasized that even if a trial court's reasoning for excluding evidence is incorrect, the exclusion may still be valid if supported by other legal theories. The appellate court affirmed the trial court’s judgment, maintaining Kubecka's sentence of twenty months' confinement and a $6,445 fine.

A trial court is deemed to abuse its discretion if it acts arbitrarily or unreasonably, failing to adhere to guiding rules and principles. In the case involving Kubecka, the key issue was his intent to deprive the bank of funds, which was to be assessed based on circumstances from late April 2002, when an overdraft occurred. Testimony from late June 2002, although potentially relevant, was too distanced in time and context to be considered directly pertinent. The trial court had discretion to exclude this testimony due to its lack of relevance, particularly given intervening bank collection efforts and other unknown events that could have influenced Kubecka's intent. Consequently, the court's decision to exclude the evidence was upheld, affirming the judgment.

Additionally, regarding the statute of limitations, it began in 1992 when the bank foreclosed on the property. Northwest referenced a case involving Stevens, where the court found that when a demand is a prerequisite to filing a lawsuit, the statute of limitations does not commence until that demand is made. Stevens' demand made within the limitations period led the court to conclude without addressing the reasonableness of any delay. It is established that if demand is integral to a cause of action, the limitations period does not begin until the demand is made, unless there is a waiver or unreasonable delay in making the demand.

In Intermedics, Inc. v. Grady, the case is distinguished from Stevens based on explicit agreements made between the parties regarding post-foreclosure actions, which did not impose a demand timeframe on the Bank or its nominee. While Stevens had already incurred losses before making demand, the current case allows the Bank to delay demand until it needed to exercise fueling rights. Consequently, the cause of action did not accrue until the demand was denied in January 2001, invalidating the statute of limitations defense used for summary judgment.

Regarding the 1993 License Agreement, Rolling Lands challenges the trial court's summary judgment, arguing the agreement was limited in duration and remained effective during Rolling Lands' acquisition of the Tract, with rights assigned from the Bank. Northwest contends the agreement is terminable at will due to its silence on duration, referencing Clear Lake City Water Authority, where indefinite contracts are inherently terminable at will. However, when a contract's duration is contingent on specific events, it is not terminable at will, as established in City of Big Spring v. Bd. of Control. The court must interpret contracts based on the parties' intent as reflected in the agreement, ensuring all provisions are meaningful and enforceable as written.

The 1993 Agreement allows for termination of access rights under specified conditions: (a) if the Landowner defaults on payment of access fees, (b) if the Landowner violates certain restrictions, or (c) if the Airport permanently closes. The trial court incorrectly granted summary judgment assuming the 1993 Agreement was terminable at will, as its terms are fixed and determinable.

In relation to the 1989 Agreement and Consent regarding fueling rights, Rolling Lands argues that the trial court erred in granting summary judgment in favor of Northwest. The dispute centers on paragraph ten of the 1989 Consent, which stipulates that in the event of a foreclosure, Northwest Airport must execute new agreements with the lender or purchaser that mirror the terms of prior agreements, while acknowledging that these new agreements would supersede any existing rights. Rolling Lands interprets a specific phrase to mean Northwest loses its termination rights, implying that the fueling rights would become perpetual as long as fees are paid. Conversely, Northwest asserts that paragraph ten allows for the execution of new agreements post-foreclosure that maintain the same terms but are not affected by current or future defaults against Jet, thereby preserving its rights under the 1984 Agreement.

Northwest asserts that any new agreements in favor of Rolling Lands would remain subject to the termination policy outlined in the 1984 Agreement, which stipulated that notice of termination given on October 18, 2000, would result in the termination of all fueling rights by May 31, 2001, regardless of any new agreements. The 1984 Agreement also indicated that fueling agreements had a primary term ending on May 31, 1996, with automatic one-year extensions unless there was a default or a timely notice of termination was given. Consequently, the fueling rights agreement was still valid when Rolling Lands requested a new agreement, which should contain terms consistent with the 1984 Agreement. The 1989 Consent further clarified that any new agreement would not be affected by any existing or future defaults. Northwest is thus obligated to execute a new fueling rights agreement for Rolling Lands, which must be done with a timely notice if they wish to prevent renewal.

Rolling Lands also contends that deed restriction J, which prohibits fuel sales without Northwest's permission, is unenforceable due to potential violations of the Texas Free Enterprise and Antitrust Act (TFEAA) or as an unreasonable restraint on competition. The court addressed three key issues: whether the 1993 lawsuit precludes Rolling Lands' TFEAA claim under res judicata; whether deed restriction J constitutes a monopoly under TFEAA; and whether it is an unreasonable covenant not to compete under Texas Business Commerce Code. The court concluded that Rolling Lands is not barred by res judicata and rejected the claims of unenforceability for deed restriction J, finding it neither a monopoly nor an unreasonable restraint on competition. For a monopoly claim to succeed, it must demonstrate that the defendant holds significant market power and acquired it through improper means, with the Fifth Circuit indicating that monopoly status is unlikely if market share is below seventy percent.

The trial court's evaluation of market share evidence was limited to an affidavit from Jagit S. Gill, president of Gill Aviation, which indicated that Northwest controlled less than half a percent of the total aviation fueling market and approximately 3.5% of the general aviation market in Houston. Rolling Lands did not present any evidence to dispute this affidavit or establish a genuine issue of material fact regarding monopoly possession. Consequently, the trial court correctly determined that Deed Restriction J did not violate Texas Business and Commerce Code Ann. § 15.05(b). 

The court also addressed whether the deed restriction constituted an unenforceable covenant not to compete under Texas Business and Commerce Code Ann. §§ 15.50-15.52. It concluded that the fueling rights restriction was a legitimate restraint on the use of land, distinguishing it from a noncompetition contract, and classified it as a covenant running with the land. The requirements for such a covenant were met: it impacted the land's use, bound the parties and their assigns, indicated intent to run with the land, and Rolling Lands had notice of the restrictions prior to purchasing the property. 

Regarding Rolling Lands' motion for summary judgment seeking declaratory relief and specific performance based on the 1993 Agreement, the court emphasized that the intent of the parties must be derived from the agreement itself. The 1993 Agreement allowed for assignment, provided that the usage at the time was consistent with applicable deed restrictions. The Bank assigned all relevant rights to Rolling Lands, including airport access, thus entitling Rolling Lands to enforce the rights under the 1993 Agreement.

Rolling Lands seeks both enforcement of the 1993 Agreement and a declaratory judgment confirming the validity of the 1989 Agreement and Consent. They are entitled to a new fueling rights agreement with terms consistent with the 1984 Agreement, adhering to its specified duration. Additionally, Rolling Lands has requested $100,000 in attorney's fees under the Texas Uniform Declaratory Judgments Act, which allows for such fees when deemed equitable and just. Established case law confirms that a party awarded a declaratory judgment in a summary judgment proceeding is entitled to attorney's fees. The determination of whether these fees are reasonable and necessary involves assessing several factors, including the complexity of the legal issues, customary fees in the locality, and the attorney's experience.

Rod Hardie, an attorney with experience since 1982, provided an uncontroverted affidavit supporting the fee request, asserting that the amount requested is reasonable based on his knowledge of customary fees and the services rendered. However, the affidavit lacks sufficient evidence to substantiate Hardie's conclusion. In summary judgment proceedings, the moving party must demonstrate the absence of genuine issues of material fact, with any ambiguities resolved in favor of the nonmoving party.

The affidavit in question claims that attorney's fees include anticipated services rather than services already performed, lacking necessary details for the court to assess the reasonableness of these fees. Consequently, despite being unchallenged, Rolling Lands did not provide adequate evidence for a summary judgment ruling on the attorney's fees, necessitating a remand for factual determination on their reasonableness and necessity. The court reversed the summary judgment for Northwest and granted Rolling Lands' motion, affirming the validity and enforceability of the 1989 and 1993 agreements. It ordered that a new fueling rights agreement be executed under terms similar to the 1984 Agreement, with specific renewal conditions. The court also addressed motions for rehearing from both parties, maintaining its original rulings but clarifying the enforceability of deed restriction J (fueling rights) and confirming the validity of the 1993 License Agreement, which stemmed from a prior settlement. The court's clarifications ensure that the issues not resolved in the summary judgment motions, including Rolling Lands' breach of contract claim, are left for future trial court determination.

Both banks are collectively referred to as 'Bank' for the sake of this opinion. Amendments noted in the document do not apply to this case. Northwest argues that all claims stemming from an indivisible contract must be addressed in a single lawsuit. A key aspect of paragraph ten is referenced later. The contract in question is primarily focused on specific rights related to the Tract rather than ongoing performance, distinguishing it from the Clear Lake case (Clear Lake City Water Auth. v. Clear Lake Util. Co., 549 S.W.2d 385, Tex. 1977). It is acknowledged that 'amended fuel agreements' pertains to the 1984 agreement. Section 15.04 of the Code mandates that this Act aligns with federal judicial interpretations of related federal antitrust statutes (Tex. Bus. Com. Code Ann. 15.04, Vernon 2002). If a trial court incorrectly grants a partial summary judgment, it is typically inappropriate for an appellate court to render judgment for the appellant. However, if the partial summary judgment pertains to a declaratory judgment, the appellate court may properly render such judgment if it should have been granted by the trial court (CU Lloyd's of Tex. v. Feldman, 977 S.W.2d 568, 569, Tex. 1998; Bowman v. Lumberton Indep. Sch. Dist., 801 S.W.2d 883, 889, Tex. 1990; Jones v. Strauss, 745 S.W.2d 898, 900, Tex. 1988). The judgment rendered for Rolling Lands is classified as a declaratory judgment.