Rudolph H. Karen v. Rudy B. Karen ( 1997 )

karen TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



   NO. 03-96-00525-CV     

Rudolph H. Karen, Appellant

v.

Rudy B. Karen, Appellee



     FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT NO. 10,744, HONORABLE CLAYTON E. EVANS, JUDGE PRESIDING     

Rudolph H. Karen ("Appellant"), was the buyer in an executory contract for the sale of residential land. His father, appellee, Rudy B. Karen ("Rudy"), was assigned the seller's interest in the contract. Appellant failed to make his monthly payments and Rudy sued for title to the property. Rudy moved for and the trial court granted summary judgment. Appellant appeals by one point of error. We will affirm.

BACKGROUND

Jean Karen ("Jean") is Rudy's ex-wife and Appellant's former stepmother. She and Rudy divorced in 1984, and they each apparently retained an undivided one-half interest in six lots in Llano County. In 1992, Appellant and his then wife, Cindi Lou Karen ("Cindi"), entered into a contract for deed with Jean to purchase her interest in the six lots.

As years went by, problems apparently developed between Rudy and his son over the property and their respective rights. Rudy ultimately sued his son and daughter-in-law over their use of the land, seeking a declaration of the rights of the respective parties to the contract, a permanent injunction against interference with the property, and damages for alleged waste and destruction.

In 1995, while the trouble was brewing between Rudy and his son, Jean assigned her interest in the property to Rudy and named him grantee of a deed she placed in escrow with her attorney. As a consequence of this transaction, Rudy replaced Jean as seller with respect to her one-half interest in the real estate.

On May 11, 1995, Rudy sent a letter to his son informing him that he was in default of the contract for failure to make prompt monthly payments and gave him 60 days to cure the default. Rudy amended his suit to include a breach of contract claim when his son failed to pay. The terms of the contract provided that "[i]f Buyer defaults in prompt payment of the monthly payments . . . Seller may invoke the following [three] remedies, subject only to the provisions of the Texas Property Code." Rudy pursued the second remedy which involved cancellation of the contract, forfeiture of all Appellant's interest in the property, and retention of all previous payments made by Appellant.

Rudy moved for summary judgment on his breach of contract claim, alleging that his son and daughter-in-law were in default of monthly payments and that they failed to cure the default even after having received proper notice of Rudy's intent to forfeit their interest in the property and accelerate the indebtedness. ⁽¹⁾ Rudy sought possession of the entire premises, a hearing on property damage, and attorneys' fees. Appellant in turn filed a document styled "Response to Plaintiff's Motion for Summary Judgment and Defendant's Counter-Motion for Summary Judgment."

The court rendered summary judgment for Rudy and awarded him all right, title, and interest in and to the property, a permanent injunction against his son's and daughter-in-law's interference with the property, attorneys' fees, and court costs. The court denied all other relief requested by the parties. Rudy's son alone appeals the judgment.

DISCUSSION

In a single point of error, Appellant claims that the trial court erred in granting Rudy's motion for summary judgment because a genuine issue of material fact exists concerning whether Appellant defaulted on the real estate contract. We disagree.

The standard for review of a trial court's grant of summary judgment is well known. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Dear v. City of Irving, 902 S.W.2d 731, 735-36 (Tex. App.--Austin 1995, writ denied). The dispositive question on appeal, as in the trial court, is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to all elements of plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Dear, 902 S.W.2d at 736. In deciding whether a genuine issue of material fact exists, evidence favorable to the nonmovant will be taken as true and all reasonable inferences will be drawn and doubts resolved in his favor. See Nixon, 690 S.W.2d at 548-49; Dear, 902 S.W.2d at 735-36.

Appellant argues that his summary judgment evidence raises an issue with respect to whether he defaulted on the real estate contract. In support of this contention, he offers two theories: (1) he made the late payments, and (2) Rudy waived his right to the late payments. ⁽²⁾

We first address whether Rudy established as a matter of law that his son did not make the required payments. The parties agreed that an executory contract existed for the sale of residential property. Rudy's summary judgment proof included an authenticated copy of the contract and accounting records to show his son's monthly payment history. The summary judgment proof established that through March 1995, four whole payments and one partial payment had not been received.

The record suggests that Appellant sent checks in the amounts necessary to make up for the missed and deficient payments, but that he conditioned the deposit of the checks upon findings of the lower court. There is evidence that the checks were never cashed because of the condition on deposit and that the checks were returned to Appellant. Additional evidence suggests no payments were received by Rudy or Jean or anyone else on their behalf after April 1995. This summary judgment proof demonstrates that, in the end, no money was received for past installments due and that Appellant was in default of his obligations. Because Rudy made an initial showing that his son failed to make his payments, we must determine whether Appellant produced controverting evidence on this issue. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

With regard to having satisfied the past payments due, Appellant offered no proof that he actually paid money to either Rudy, Jean, or anyone on their behalf. Appellant repeatedly referred the court to his discovery responses for proof of payment. However, these references are dead-ends. The responses in the record are mere statements that "[documents] are available to be inspected and/or copied by Plaintiff in the office of Jay Floyd [Appellant's attorney]," or named documents "are produced." None of the referenced documents appear in Appellant's discovery responses nor are they sufficiently described so the court can locate the documents in the record. Where documents satisfying the requests are not filed with the court, they cannot form a part of the record for purposes of summary judgment. See Tex. R. Civ. P. 166a(c), (d).

Furthermore, Appellant made several unsupported statements within his summary judgment response regarding the satisfaction of payments. These statements do not appear in affidavits or other acceptable forms of summary judgment evidence. See Tex. R. Civ. P. 166a(c), (d). The response to a motion for summary judgment is a pleading and may not itself be considered summary judgment evidence. See Kendall v. Whataburger, Inc., 759 S.W.2d 751, 754 (Tex. App.--Houston [1st Dist.] 1988, no writ).

The sum of the evidentiary record shows no proof that Appellant made payments in satisfaction of default, leaving Rudy's proof uncontroverted. Where a summary judgment movant's evidence is uncontroverted, it will be taken as true on appeal. See Bass v. Bass, 790 S.W.2d 113, 117-18 (Tex. App.--Fort Worth 1990, no writ). We hold Rudy established as a matter of law that his son failed to make the payments required under the contract. This case turns, therefore, on whether Rudy established as a matter of law that he did not waive his right to those payments.

Rudy's summary judgment proof includes affidavits that establish neither Jean nor Rudy released Appellant from any of the required payments. The proof also includes several letters sent to Appellant on behalf of Rudy demanding that Appellant satisfy the past due payments. Appellee provides no proof controverting Rudy's. We hold Rudy established as a matter of law that he did not waive his right to the late payments.

Because Rudy's uncontroverted evidence meets each element of his claim, and because Appellant did not establish his affirmative defense of waiver, Rudy's proof is sufficient to support judgment that Appellant was in default of the contract as a matter of law. ⁽³⁾ We, therefore, overrule Appellant's point of error.

We have carefully reviewed Appellant's brief. The brief does allude to other arguments, but they are not supported by a discussion of facts or authorities relied upon as required by the rules of appellate procedure. See Tex. R. App. P. 74(f). As presented, these arguments are not viable appellate complaints, and we decline to review them. See Ferguson v. DRG/Colony North, Ltd., 764 S.W.2d 874, 887 (Tex. App.--Austin 1989, writ denied).

CONCLUSION

Having overruled Appellant's point of error, we affirm the judgment of the trial court.

__________________________________________

Jimmy Carroll, Chief Justice

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: April 3, 1997

Do Not Publish

1. For statutory notice procedure, see Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 1, 1983 Tex. Gen. Laws 3484, 3484-3485 (Tex. Prop. Code §§ 5.061, 5.062, since amended).

2. Appellant never formally pleaded this affirmative defense in his original answer to the lawsuit. He raised the defensive theory of waiver for the first time in his response to Rudy's motion for summary judgment. Because Rudy did not object to the lack of a rule 94 pleading, we will assume the issue of waiver was properly before the trial court. See Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492 (Tex. 1991).

3. ³ Appellant argues that a fact issue exists as to whether his actions toward the property constituted waste or destruction in breach of the contract. Appellant also argues that his evidence conclusively proves he did not breach the provision of the contract requiring that he provide insurance and pay taxes on the property. However, it is irrelevant whether there was evidence of waste and destruction or of payment of insurance and taxes because the summary judgment record supported an independent alternative ground for the judgment that Appellant was in breach of the contract--specifically, Appellant was in default for failure to make monthly payments. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989) (appellate court must affirm summary judgment if any grounds advanced in the motion are meritorious).

Tex. R. Civ. P. 166a(c), (d). The response to a motion for summary judgment is a pleading and may not itself be considered summary judgment evidence. See Kendall v. Whataburger, Inc., 759 S.W.2d 751, 754 (Tex. App.--Houston [1st Dist.] 1988, no writ).