Opinion filed October 8, 2015
In The
Eleventh Court of Appeals
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No. 11-14-00120-CV
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ALICE RUTH PETERS, INDEPENDENT EXECUTRIX FOR THE
ESTATE OF JO ALICE STOUT, ET AL., Appellants
V.
JERRY BOB YOUNG AND WIFE,
KAREN ELAINE YOUNG, Appellees
On Appeal from the 50th District Court
Baylor County, Texas
Trial Court Cause No. 10,532
MEMORANDUM OPINION
This is an appeal from a final judgment in which the trial court, based on the
jury’s answers, ordered Jo Alice Stout and Jack L. Stout1 to specifically perform
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Jack L. Stout and Jo Alice Stout died during the pendency of this suit. Alice Ruth Peters, the
independent executrix for the Estate of Jo Alice Stout, was substituted for Jo Alice Stout. The Estate of
Jack L. Stout was represented by Anne F. Stout, as the independent executrix of the Estate of Jack L. Stout
and individually; Jack Mark Stout and Molly Stout Urbanzcyk as Trustees for Sarah McKay Stout and
Braden Kaven Lowe Stout, minor children; Jack Mark Stout, individually; and Molly Stout Urbanzcyk,
individually. For ease of reference, we refer to Appellants as Jack L. Stout and Jo Alice Stout.
under an option contract. Jerry Bob Young and his wife, Karen Elaine Young, filed
suit against Jo Alice Stout and Jack L. Stout for specific performance under an option
contract for the purchase of real property located in Baylor County. Jo Alice Stout
filed a motion for summary judgment in which she alleged that the option contract
was void based on the “Rule Against Perpetuities.” The trial court denied her motion
and concluded that there were “material fact issues” and that the option contract was
not void due to the Rule Against Perpetuities. The parties went to trial, and the jury
found that the Stouts failed to comply with the option contract. The trial court
subsequently entered a final judgment in which it ordered specific performance
under the option contract and awarded attorney’s fees to the Youngs. We affirm.
In September 2001, Jo Alice Stout and Jack L. Stout entered into an option
contract with the Youngs for the purchase of real property. The Stouts were the
owners of an undivided interest; the option contract was conditioned on the partition
of the property. The option contract stated:
This option is for an indefinite term and shall continue for a
period to and including a six (6) month period commencing upon actual
receipt by [Youngs] from [Stouts] of a certified copy of a final
judgment issued by a court of competent jurisdiction over all interested
parties and the property or a partition deed obtained through settlement
by all parties having an interest in the property evidencing a partitioning
of each [Stout’s] portion of the property from an undivided interest to
the total property to specific acreage in the property as set forth in the
judgment or partition deed.
At least four times between 2002 and 2004, Appellees refused to waive the
condition precedent that the Stouts partition the land. In August 2009, after
receiving notice that the land would not be partitioned, the Youngs nevertheless
exercised their option to buy the undivided interest of the Stouts. The Stouts refused
to honor the option contract. Jo Alice Stout and Jack L. Stout filed separate notices
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of appeal and present different issues on appeal. We will address Jo Alice Stout’s
issues first.
Jo Alice Stout presents two issues on appeal. In her first issue, she challenges
the trial court’s denial of her motion for summary judgment. The denial of a
summary judgment is not reviewable on appeal, as it is not a final judgment.
Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Further, we do
not have jurisdiction to review whether a trial court erred when it denied a party’s
motion for summary judgment if a trial on the merits followed the trial court’s denial
of the motion. Superior Broad. Prods. v. Doud Media Grp., L.L.C., 392 S.W.3d
198, 204–05 (Tex. App.—Eastland 2012, no pet.); see Ackermann v. Vordenbaum,
403 S.W.2d 362, 365 (Tex. 1966). A trial on the merits of Jo Alice Stout’s Rule-
Against-Perpetuities defense followed the trial court’s denial of Jo Alice Stout’s
motion for summary judgment on the Rule Against Perpetuities. Jo Alice Stout’s
first issue is overruled.
In her second issue, Jo Alice Stout argues that the trial court erred when it
entered judgment in favor of the Youngs because the option contract violated the
Rule Against Perpetuities. This is essentially a legal or factual sufficiency challenge
to the jury’s findings and the judgment entered based on the jury’s findings. To
preserve a legal sufficiency or no-evidence issue for appeal when a jury trial was
held, a party must use one of the following methods: (1) a motion for instructed
verdict, (2) an objection to the submission of the issue to the jury, (3) a motion to
disregard the jury’s answer, (4) a motion for judgment notwithstanding the verdict,
or (5) a motion for new trial specifically raising the complaint. Cecil v. Smith, 804
S.W.2d 509, 510–11 (Tex. 1991) (citing Aero Energy, Inc. v. Circle C Drilling Co.,
699 S.W.2d 821, 822 (Tex. 1985)); Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm,
Inc., 927 S.W.2d 146, 148–49 (Tex. App.—Corpus Christi 1996, no writ). A
complaint challenging the factual sufficiency of the evidence to support a jury
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finding must be urged in a motion for new trial in order to preserve the issue for
appeal. TEX. R. CIV. P. 324(b); Cecil, 804 S.W.2d at 510; Arroyo Shrimp Farm, 927
S.W.2d at 149. We have reviewed the record and find that Jo Alice Stout did not
challenge the legal or factual sufficiency of the evidence in the trial court at any
juncture. Accordingly, we hold that Jo Alice Stout has waived her second issue on
appeal.
Additionally, we note that, at oral argument, the attorney for Jo Alice Stout
conceded that the trial court made no adverse ruling on whether the Rule Against
Perpetuities applies. Under Texas Rule of Appellate Procedure 33.1(a)(2), because
Jo Alice Stout did not receive an adverse ruling from the trial court, this complaint
was not properly preserved for appellate review. See TEX. R. APP. P. 33.1(a)(2). We
overrule Jo Alice Stout’s second issue.
Jack L. Stout argues five issues on appeal. Although he labels the findings as
trial court findings, in each of his issues, Jack L. Stout actually attacks the jury
findings in favor of the Youngs. Stout does not differentiate whether these issues
are based on legal or factual sufficiency. We will address both the legal and factual
sufficiency challenges to the jury’s findings.
An attack based on the legal sufficiency of evidence supporting a jury finding
may be preserved for appeal in any of five ways: (1) an objection to the charge, (2) a
motion for directed verdict, (3) a motion to disregard the finding, (4) a motion for
judgment notwithstanding the verdict, or (5) a motion for new trial. Cecil, 804
S.W.2d at 510–11. Jack L. Stout failed to properly preserve his no-evidence
complaint for appeal. He did not object to the jury submission on the basis that no
evidence exists to support the submission, nor did he file a motion for directed
verdict, a motion for judgment notwithstanding the verdict, a motion to disregard the
jury’s findings, or a motion for new trial. We therefore conclude that Jack L. Stout
waived any legal sufficiency complaint.
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Next, we turn to the factual sufficiency complaints on appeal. A complaint
challenging the factual sufficiency of the evidence to support a jury finding must be
urged in a motion for new trial in order to preserve the issue for appeal. TEX. R. CIV.
P. 324(b); Cecil, 804 S.W.2d at 510. We have reviewed the record and find that Jack
L. Stout did not challenge the factual sufficiency in a motion for new trial. Jack L.
Stout has waived any factual sufficiency complaint. We overrule Jack L. Stout’s
issues on appeal.
We affirm the judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
October 8, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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