NUMBER 13-06-108-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHARLES R. WARD, III A/K/A CHUCK R. WARD, Appellant,
v.
CHARLES AND DIANA MALONE, Appellees.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez
This suit involves multiple causes of action--claims and cross-claims-between Charles and Diana Malone, appellees, and Charles R. Ward, III a/k/a Chuck R. Ward, appellant. (1) The case was tried before a jury, and a take-nothing final judgment was entered in favor of appellant. The only challenges on appeal are the trial court's pre-trial rulings granting appellees' no-evidence summary judgment motion and denying appellant's traditional motion on appellant's trespass to try title and writ of possession action. By one issue, appellant contends the trial court erred when it denied him relief on his claim that appellees defaulted under a contract for deed. We affirm.
I. Background
Appellant and appellees entered into a contract for deed on November 30,1999. The contract set out, in relevant part, the following: "[i]n the event that the Borrowers [appellees] transfer ownership (either legal or equitable) or any security interest in the mortgaged property, whether voluntary or involuntary, the Lender [appellant] may at its option declare the entire debt due and payable." On August 25, 2000, appellees signed a contract with their attorney, Ward Thomas, Jr., agreeing to "assign absolutely and not for the purposes of security an undivided 1/3 interest in the one certain Contract for Deed dated November 30, 1999 between Charles and Diana Malone and Chuck R. Ward . . . ."
On October 23, 2001, appellant's counsel sent a letter to Mr. Malone informing him that "[a]s a consequence of . . . transferring 1/3 ownership," appellant was exercising his option and declaring the entire debt due and payable. The letter stated that "DEMAND IS MADE THAT THE REMAINING AMOUNT OF $49,317.22 (as of November 1, 2001) BE PAID NO LATER THAN NOVEMBER 15, 2001 at 5:00 pm. YOUR FAILURE TO COMPLY WITH THIS ACCELERATION NOTICE WILL BE CONSIDERED AN ACT OF DEFAULT." Appellant's demand was based on the premise that the assignment was a condition precedent to his right to accelerate the debt, rather than an act of default--an argument he now brings on appeal.
On November 16, 2001, a second letter was sent to Mr. Malone informing him that because he failed to comply with the "notice of intent to accelerate," he was "in default." It set out that "[a]ccordingly, YOU ARE GIVEN NOTICE THAT YOU ARE NOT COMPLYING WITH THE TERMS OF THE CONTRACT TO BUY YOUR PROPERTY. Unless you take action specified in this notice by December 3, 2001 THE SELLER HAS THE RIGHT TO TAKE POSSESSION OF YOUR PROPERTY." In order to avoid repossession, appellant informed Mr. Malone that he was required to "[p]ay the now delinquent amount of $48,914.90" and "attorney's fees of $175.00."
Claiming that appellees had been in default of the contract since December 3, 2001, appellant's December 22, 2001 letter to appellees demanded that they "vacate the property no later than 15 days from the date of this letter." Appellant continued sending demand letters in 2002.
II. Standard of Review
The standard for review of a traditional summary judgment is well established: the movant must show there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). That is, a defendant movant must conclusively negate at least one essential element of each of the plaintiff's causes of action or, alternatively, must conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Evidence is conclusive only if reasonable persons could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Where the defendant establishes his right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence sufficient to raise a genuine issue of material fact. Clarendon Nat'l Ins. Co. v. Thompson, 199 S.W.3d 482, 486-487 (Tex. App.-Houston [1st Dist.] 2006, no pet.). If the plaintiff does so, summary judgment is precluded. Id.
We review the trial court's summary judgment granting appellees' no-evidence motion under the standards of rule 1661(i). Tex. R. Civ. P. 1661(i). A no-evidence motion is essentially a motion for a pretrial directed verdict. Id.; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex. 2006). Once a no-evidence motion is filed, the non-moving party must present evidence raising an issue of material fact as to the elements of the claim challenged in the motion. Mack Trucks, 206 S.W.3d at 581-82. A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (per curiam); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet.).
"When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides' summary judgment evidence and determine all questions presented." FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). Based on our review, this Court should then render the judgment that the trial court should have rendered. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001); Werden v. Nueces County Hosp. Dist., 28 S.W.3d 649, 650-51 (Tex. App.-Corpus Christi 2000, no pet.). "When a trial court's order granting summary judgment does not specify the grounds relied upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious." FM Props., 22 S.W.3d at 872.
III. Applicable Law
A. Act of Default
"A contract for deed, unlike a mortgage, allows the seller to retain title to the property until the purchaser has paid for the property in full." Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 429 (Tex. 2005). Such sales are regulated by statute which, among other things, defines "default" as the failure to make timely payments or comply with a term of an executory contract and requires the seller to provide the purchaser with notice and an opportunity to cure before enforcing the remedy of forfeiture and acceleration against a purchaser in default under an executory contract. See Former Tex. Prop. Code Ann. §§ 5.061, 5.063, 5.065. (2)
The statutory requirements of former section 5.061 of the property code--the statute in effect at the time of the alleged default--provided as follows:
A seller may enforce the remedy of rescission or of forfeiture and acceleration against a purchaser in default under an executory contract for conveyance of real property used or to be used as the purchaser's residence only if the seller notifies the purchaser of:
(1) the seller's intent to enforce a remedy under this section; and
(2) the expiration of the following periods:
(A) if the purchaser has paid less than 10 percent of the purchase price, 15 days after the date notice is given;
(B) if the purchaser has paid 10 percent or more but less than 20 percent of the purchase price, 30 days after the date notice is given; and
(c) if the purchaser has paid 20 percent or more of the purchase price, 60 days after the date notice is given.
Former Tex. Prop. Code Ann. § 5.061. Former section 5.063, the "right to cure" section in effect at the time of the alleged default, set out the following:
Notwithstanding an agreement to the contrary, a purchaser in default under an executory contract for the conveyance of real property used or to be used as the purchaser's residence may, at any time before expiration of the applicable period provided by Section 5.061 of this code, avoid the enforcement of a remedy described by that section by complying with the terms of the contract up to the date of compliance.
Former Tex. Prop. Code Ann. § 5.063.
B. Condition Precedent
"A condition precedent may be either a condition to the formation of the contract or to an obligation to perform an existing agreement." Ford v. City State Bank of Palacios, 44 S.W.3d 121, 139-140 (Tex. App.-Corpus Christi 2001, no pet.) (quoting Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976)). Because there appears to be no disagreement that the contract was formed in this case, the condition precedent urged by appellant in this case would be an event that must happen or be performed before a right can accrue to enforce an obligation. See Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex. 1992); Hohenberg Bros., 537 S.W.2d at 3 ("Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty.").
IV. Analysis
Acknowledging that if there is a default under en executory contract, notice and a right to cure must be given, appellant contends that appellees' assignment of the 1/3 interest in the property was not a default but a condition precedent that gave him the right to accelerate the debt. He contends that the non-payment of the debt, once accelerated, was the default for which he gave adequate notice. However, except for citing to one case for the proposition that we must ascertain the true intention of the parties in construing a contract, appellant has not provided supporting authority for his contention. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Thus, this contention is inadequately briefed.
Nonetheless, we disagree with appellant's premise that the assignment was not an act of default but was instead a condition precedent that triggered his right to accelerate the debt. The dispute between appellant and appellees centers not on the existence of the condition precedent, but rather on the terms of the agreement. It is obvious that the default in this case, contemplated by the contract for deed and statute for which notice and the right to cure are to be given, was the transfer of 1/3 of the land. That default authorized appellant to accelerate and begin foreclosure proceedings. However, the applicable sections of the Texas Property Code clearly provide that the maturity of payments due under a contract for deed cannot be accelerated unless there has first been an act of default under the contract for deed and the person obligated to make the payments has been given notice and an opportunity to cure the default. (3) See Former Tex. Prop. Code Ann. §§ 5.061, 5.063, 5.065. Therefore, as appellees urged in their no-evidence motion for summary judgment and now on appeal, the threshold issue is whether notice was given.
Reviewing both sides' summary judgment evidence, we find no evidence of appellant's providing notice to appellees and an opportunity to cure. (4) See FM Props., 22 S.W.3d at 872. Based on our review, we conclude that the trial court properly granted appellees' no-evidence motion for summary judgment and denied appellant's traditional motion. See Holy Cross Church, 44 S.W.3d at 566. We, therefore, overrule appellant's sole issue.
We decline to address appellant's remaining argument regarding appellees' alleged limitations defense as it is not dispositive to this appeal. See Tex. R. App. P. 47.1.
V. Conclusion
The judgment of the trial court is affirmed.
NELDA V. RODRIGUEZ
Justice
Memorandum Opinion delivered and
filed this 6th day of December, 2007.
1. This case has been before this Court on two prior occasions. See Ward v. Malone, 115 S.W.3d 267, 271 (Tex. App.-Corpus Christi 2003, pet. denied) (setting aside the judgment and dismissing the appeal for want of jurisdiction because the justice court and county court at law did not have jurisdiction to determine the issue of title); Malone v. Ward, No. 13-01-813-CV, 2002 Tex. App. LEXIS 7251, at *7-*10 (Tex. App.-Corpus Christi Oct. 10, 2002, pet. denied) (mem. op., not designated for publication) (reversing and remanding the grant of Ward's no-evidence summary judgment because there was more than a scintilla of evidence raising a genuine issue of material fact on the asserted claims).
2. Amended by Acts 1995, 74th Leg., ch. 994, § 2, eff. Sept. 1, 1995. In September 2001, section 5.061
was amended and renumbered as section 5.064, section 5.063 as section 5.065, and section 5.065 as
section 5.061.
3. 4.