Reversed and Remanded and Memorandum Opinion filed May 1, 2003.
In The
Fourteenth Court of Appeals
____________
NO. 14-01-01164-CV
____________
GERALD T. OWENS, Appellant
V.
SALLY FARRIER OWENS, Appellee
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 99-48470B
M E M O R A N D U M O P I N I O N
Appellant Gerald T. Owens appeals the trial court=s summary judgment in favor of appellee Sally Farrier Owens based on Gerald=s alleged anticipatory repudiation of a ASeparation Agreement@ between the parties. We find there was a genuine issue of material fact precluding summary judgment and therefore reverse and remand to the trial court.
I. Factual and Procedural Background
In December of 1979, Gerald and Sally entered into a ASeparation Agreement@ in New York, and a New York court entered a divorce judgment based on that agreement. The ASeparation Agreement@ provides that Gerald will pay Sally $4,855.50 per month starting on January 10, 1980, and terminating on the death of either party or the remarriage of Sally.
Gerald domesticated the New York judgment in Texas and filed a motion to modify this judgment in the trial court. After filing the motion, counsel for Gerald sent a letter, dated February 28, 2001, to counsel for Sally, the body of which read in its entirety:
In light of Mr. Owens= immediate financial situation, and the imminence of the hearing on our motion to eliminate Aalimony@, [sic] Mrs. Owens will not be receiving any loan, advance, or support payment for March.
Inasmuch as the applicable New York statute provides that a modification of a support obligation is retroactive, his paying her now would only mean that she would have to repay the money in the future.
If Mr. Owens= financial situation improves, or if the Court should not agree with our position, Mr. Owens will, of course, re-examine the matter.
In respect of the mortgage installment due Wells Fargo for the month of March, it is Mr. Owens= intention to pay direct his 42% share thereof. Mrs. Owens needs to pay the remaining portion either direct to Wells Fargo, or by promptly furnishing the funds therefor to Mr. Owens in order that he may remit the full amount.
As I stated, we will review the situation after Judge Squier=s decision.
Sally filed a motion for summary judgment alleging that, as a matter of law, this letter from Gerald=s counsel constitutes an anticipatory repudiation of the ASeparation Agreement@ that entitles Sally to judgment in the amount of the present value of all future payments that Sally would receive under the ASeparation Agreement,@ based on her expected life span.
The trial court granted Sally=s motion and signed an interlocutory judgment that Sally recover from Gerald $474,091, plus interest. The trial court later signed a severance order that made this judgment final.
II. Issues and Analysis
In his first issue, Gerald asserts the trial court erred in granting summary judgment because there was a genuine issue of material fact concerning whether Gerald repudiated the ASeparation Agreement@ by sending the February 28, 2001 letter. We agree.
The only basis for summary judgment that Sally alleged in her motion was that Gerald anticapatorily repudiated the ASeparation Agreement@ in the February 28th letter. The only summary-judgment evidence of this alleged repudiation is the letter itself.
The Texas Supreme Court has described anticipatory repudiation as follows:
The intention to abandon the contract at some future date is no breach of it; but, when that intention is declared in positive terms and unconditionally, it has the effect . . . to repudiate the contract itself, and to terminate the contractual relations between the parties . . . . But, to have this effect, the declaration of an intention not to perform the contract in the future must be unconditional in its terms . . . AIt must be a distinct and unequivocal [sic] absolute refusal to perform the promise . . .@
Kilgore v. Northwest Texas Baptist Educational Soc., 37 S.W. 598, 600 (Tex. 1896) (quoting Benjamin, Sales ' 568). Furthermore, to recover for anticipatory repudiation, Sally must prove that Gerald=s distinct, unequivocal, and unconditional repudiation of the ASeparation Agreement@ was without just excuse. See Van Polen v. Wisch, 23 S.W.3d 510, 516 (Tex. App.CHouston [1st Dist.] 2000, pet. denied).
The February 28th letter states that because of Gerald=s financial situation and an imminent hearing on his motion to Aeliminate >alimony,=@ Gerald would not be making the March 2001 payment. Gerald plainly states that, if the trial court disagrees with his position regarding the elimination of alimony, then he will re-examine the matter. Although Gerald=s letter indicates that Gerald will not be making the March 2001 payment, it is not clear that this statement applies to any obligation under the ASeparation Agreement@ other than the obligation to make the March 2001 payment. Further, the summary-judgment proof does not establish that Gerald distinctly, unequivocally, and unconditionally declared an intention to abandon or renounce his obligations under the ASeparation Agreement.@ Having reviewed the summary‑judgment proof using the familiar standard of review for traditional motions for summary judgment[1], we hold that the February 28th letter does not prove anticipatory repudiation as a matter of law and that there is a genuine issue of material fact as to whether Gerald has distinctly, unequivocally, unconditionally, and without just excuse declared an intention not to perform under the ASeparation Agreement@ in the future. See Van Polen, 23 S.W.3d at 516B17; McKenzie v. Farr, 541 S.W.2d 879, 881B82 (Tex. Civ. App.CBeaumont 1976, writ ref=d n.r.e.). Accordingly, we find the trial court erred in granting summary judgment, and we sustain Gerald=s first issue.
In his fourth issue, Gerald complains that the trial court erroneously granted a severance of these alimony issues from other issues that were pending between the parties in the trial court. After reviewing the record, we find no indication that Gerald objected to the severance in the trial court, thus preserving his complaint for appellate review. Because Gerald=s fourth issue presents nothing for our review, we overrule it. See Tex. R. App. P. 33.1; Shank, Irwin, Conant & Williamson v. Durant, Mankoff, Davis, Wolens & Francis, 748 S.W.2d 494, 501 (Tex. App.CDallas 1988, no writ).
Having sustained Gerald=s first issue, we need not address his other issues.[2] We reverse the trial court=s summary judgment, and remand this case to the trial court for further proceedings consistent with this opinion.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed May 1, 2003.
Panel consists of Justices Yates, Anderson, and Frost.
[1] See Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).
[2] Because we reverse on liability and remand the entire case, we do not reach the issue of whether the trial court applied a proper measure of damages.