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Click here for the full text of this decision The court is required to construe restrictive covenant liberally to give effect to its purpose and intent. The court holds the deed restriction prohibits use of the leased property as a used car lot. FACTS:Eric Perez leased two lots at 7411 and 7415 Long Point Road in Houston to operate a used car lot. The “Commercial Lease” he signed was for a period of three years beginning on March 1, 2000, and limited his use of the lots to the sale, financing and insurance of autos. Two months later, a Houston city attorney sent a letter informing him he was violating a deed restriction limiting the property to residential use, and threatening a suit unless he shut down his business within 15 days. Perez complied, and then sued the appellants, James Lee, Grace Real Estate Management and Grace Real Estate Management Corp., for damages. After a bench trial, the trial court found appellants breached the commercial lease with Perez and awarded him $17,605 in actual damages, $12,000 for trial attorney’s fees, but no fees for this appeal. Although the appellants requested findings of fact and conclusions of law, they never filed a notice of past due findings, and thus waived any right to receive them. HOLDING:Affirmed as reformed. The appellants assert there is no evidence they breached the parties’ commercial lease. Although the lease contains no express warranty by the landlord concerning the suitability of the property, Texas law provides an implied warranty that a commercial lease is suitable for the intended commercial purpose. Here, the deed restriction rendered these lots unsuitable for the purpose designated in the parties’ lease. This implied warranty applies only to latent defects, which appellants contend this was not. There was conflicting evidence whether appellants told Perez about the restriction; accordingly, the court defers to the trial court’s implied conclusion that they did not. Nevertheless, appellants contend Perez is charged with constructive notice because the deed restrictions appear in the county real property records. Real property records constitute constructive notice to buyers, but the courts have not generally imposed on others a similar irrebuttable presumption of notice. If the court did so, every prospective tenant would have to obtain a title opinion. The court declines the appellant’s invitation to extend the doctrine of constructive notice that far. The appellants point to five other provisions of the lease they say disavow any implied warranty. First, they point to a provision indicating the tenant accepted the property “as is.” Such provisions may indeed waive express or implied warranties, but this one did not. The “as is” clause here related to the physical condition of the property that a physical examination would reveal. The deed restriction here was not a “condition” of the premises, and would not be disclosed by an examination of the lots themselves. Second, they point to a merger provision voiding any prior agreements. But an implied warranty is not a prior agreement; it is part of the contract itself. Moreover, the lease itself stated the lots would be used for a used car business, so no prior understanding was necessary. While Perez presented evidence about representations made before the lease was signed, the breach action on which he recovered relies solely on the lease rather than anything preceding it. Third, appellants point to a provision requiring Perez to “comply with all laws, orders, and requirements of all governmental entities with reference to the use and occupancy of the leased premises.” Assuming this deed restriction is a requirement of a governmental entity, it is undisputed Perez did comply by shutting down his business. His compliance hardly excuses appellants’ initial breach of the implied warranty regarding how the premises could be used. Fourth, appellants point to a provision they say limits Perez’s remedies to terminating the lease or making repairs for the landlord’s account. But the lease also provided this remedy was cumulative rather than preclusive of the tenant’s other rights and remedies. A cumulative remedy cannot preclude the one Perez pursued. Finally, appellants point out the commercial lease shows only “Grace Real Estate Management” as landlord; they argue judgment against any other party was improper. But at trial, James Lee admitted he owned the lots, and deeds were introduced proving that to be so. Lee also testified he and his wife were the sole owners, officers and directors of the corporate defendant. There was evidence the corporation’s charter had been forfeited for failure to pay franchise taxes long before this lease was signed. None of the appellants filed a verified denial that they had been sued in the wrong capacity. In their motion for new trial, the appellants themselves alleged that “defendants” (i.e., all of them) leased the two lots to Perez. The court holds there was some evidence justifying a judgment against each of the defendants. The court reforms the trial court’s judgment in accordance with the uncontested evidence to add $10,000 for the services of Perez’s attorneys in this successful appeal, and $5,000 in the event appellants make an unsuccessful appeal to the Texas Supreme Court. OPINION:Brister, C.J.; Brister, C.J., Anderson and Seymore, JJ.

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