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Contracts Keyed to Templin
Italian Cowboy Partners, Ltd. v. Prudential Insurance Co. of America
Citation:
341 S.W.3d 323, 54 Tex. Sup. Ct. J. 822 (Tex. 2011)Facts
Francesco and Jane Secchi, successful restaurant owners, negotiated a lease with Prudential for a vacant restaurant building in Keystone Park Shopping Center to open a new restaurant called Italian Cowboy. During negotiations, Prudential’s property manager, Fran Powell, told the Secchis that the building was “in perfect condition, never a problem whatsoever” and described it as “her baby” that she had watched being built from the first brick to the last. The lease contained provisions stating that “Tenant acknowledges that neither Landlord nor Landlord’s agents, employees or contractors have made any representations or promises with respect to the Site, the Shopping Center or this Lease except as expressly set forth herein” and that the lease constituted “the entire agreement between the parties.”
After signing the lease, the Secchis began renovations. During this time, they heard from third parties that the previous tenant, Hudson’s Grill, had experienced a severe odor problem. When asked about this, Powell denied any knowledge of previous problems. Later, when the Secchis removed hardened grease blocking the inlet pipe to the grease trap, a persistent foul sewer gas odor became evident. Despite numerous attempts to remedy the odor by both the Secchis and Prudential, the problem persisted, making it impossible to operate a successful restaurant.
The Secchis eventually learned from the former manager of Hudson’s Grill that the same odor had plagued that restaurant, that attempts to remedy it had been unsuccessful, and that Powell had been aware of the problem. Upon receiving this information, the Secchis closed the restaurant, stopped paying rent, and sued Prudential for fraud, negligent misrepresentation, breach of the implied warranty of suitability, and constructive eviction, seeking rescission of the lease.
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