Reeder John v. Billie Brewer Curry ( 2013 )


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  • AFFIRM; Opinion Filed December 31, 2013.
    Court of Appeals
    S     In The
    Fifth District of Texas at Dallas
    No. 05-12-00836-CV
    JOHN REEDER, Appellant
    V.
    BILLIE BREWER CURRY, INDIVIDUALLY AND AS SUCCESSOR TO W.C.
    BREWER, DECEASED, AND TRINITY MATERIALS, INC., Appellees
    On Appeal from the 86th District Court
    Kaufman County, Texas
    Trial Court Cause No. 66-738-86
    OPINION
    Before Justices FitzGerald, Francis, and Myers
    Opinion by Justice Myers
    John Reeder appeals the summary judgment that he take nothing on his claims against
    Billie Brewer Curry, individually and as successor to W.C. Brewer, Deceased, and Trinity
    Materials, Inc. Reeder brings six issues asserting the trial court erred by granting appellees’
    motion for summary judgment and by failing to grant a continuance of the summary judgment
    hearing. We affirm the trial court’s judgment.
    BACKGROUND
    In 1995, Reeder and Curry executed a contract for deed 1 in which Curry and her father
    purported to sell Reeder 608.48 acres. 2 Reeder agreed to make monthly payments to Curry for
    1
    Curry and Reeder also executed an earnest money real estate contract for the property, but they never closed on that contract. None of the
    parties’ arguments in this appeal concern that contract.
    fifteen years. In 2001, Curry borrowed money from American National Bank and assigned the
    contract for deed to the bank. The bank instructed Reeder to make the monthly payments to it.
    In 2004, the IRS issued levy notices against Curry and instructed Reeder to pay the IRS any
    amounts he owed to Curry. According to Reeder, the confusion over whether he owed the
    monthly payment to the bank or to the IRS caused him to miss at least one payment. Curry
    declared Reeder in default under the contract for deed, declared the property forfeited, and stated
    she was keeping all the payments to that point as liquidated damages pursuant to the contract.
    Curry then sold the property to Trinity Materials and paid her debt to the bank. Reeder tried to
    send payments to the bank and Curry, but they both returned the payments stating they no longer
    had any interest in the property.
    Reeder brought suit against appellees for several causes of action, including specific
    performance and damages for breach of the contract for deed, trespass, fraud, tortious
    interference with contract, and for injunctive relief. Appellees moved for summary judgment on
    Reeder’s claims, which the trial court granted. Reeder appealed, and this Court reversed the
    summary judgment, concluding “a genuine issue of material fact exists on whether Reeder’s
    failure to make the payments for September and October was reasonable in light of the
    circumstances.” 
    Reeder, 294 S.W.3d at 858
    . We remanded the case to the trial court for further
    proceedings. 
    Id. at 862.
    Back in the trial court, appellees moved for summary judgment on Reeder’s claims on the
    ground that the property description in the contract for deed was insufficient under the statute of
    frauds and no contract formed between Reeder and Curry. Reeder filed a motion to continue the
    summary judgment hearing while he conducted discovery and determined whether to bring an
    2
    The background facts are set out in greater detail in this Court’s opinion from the first appeal of this case, Reeder v. Curry, 
    291 S.W.3d 851
    , 853–55 (Tex. App.—Dallas 2009, pet. denied).
    –2–
    action to reform the contract to provide a sufficient description of the property. The trial court
    denied Reeder’s motion for continuance and granted appellees’ motion for summary judgment,
    rendering judgment that Reeder take nothing on his claims.
    MOTION FOR CONTINUANCE
    In his sixth issue, Reeder contends the trial court erred by denying his motion for
    continuance of the summary judgment hearing. We review a trial court’s decision to grant or
    deny a party additional time for discovery before a summary judgment hearing for an abuse of
    discretion. Cooper v. Circle Ten Council Boy Scouts of Am., 
    254 S.W.3d 689
    , 696 (Tex. App.—
    Dallas 2008, no pet.). A trial court abuses its discretion when it acts without reference to any
    guiding rules or principles. Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241–42
    (Tex. 1985). In considering whether the trial court abused its discretion, we consider such
    factors as the length of time the case had been on file before the hearing, the materiality of the
    discovery sought, whether the party seeking the continuance exercised due diligence in obtaining
    the discovery, and what the party expected to prove. 
    Cooper, 254 S.W.3d at 696
    .
    In the motion, Reeder stated he needed to take the deposition of a surveyor, Greg Sjerven.
    Sjerven stated in his affidavit that he could not do a survey of the property based on the property
    description in the contract for deed, yet Reeder stated Sjerven did a survey of the land in 2006.
    Reeder also stated he needed to take Curry’s deposition because she stated in an affidavit that
    when she signed the contract for deed, she did not know what land she conveyed. Reeder also
    stated that further discovery was necessary to determine if the contract for deed was supposed to
    be for all the property Curry owned in those surveys, because if it was, then the property
    description was adequate. Reeder also stated that Curry used the same property description in
    the affidavit of forfeiture of the property. Reeder also stated in the motion that he wanted time to
    –3–
    bring an action for reformation of the contract before the trial court heard the motion for
    summary judgment.
    In this case, Reeder filed suit on November 30, 2004 and moved for continuance of the
    summary judgment hearing and modification of the scheduling order on March 26, 2012, over
    seven years later. More than one and one-half years had passed between this Court’s mandate
    remanding the case for further proceedings and the motion for continuance. Trinity had raised
    the defense of the statute of frauds in its first amended answer filed in July 2005. In January
    2011, over a year before the summary judgment motion, Trinity and Curry filed special
    exceptions to Reeder’s fourth amended petition complaining that the property description in the
    petition, which was the same as the description in the deed, “utterly fails to identify the property
    as required by Texas R. Civ. P. 783.” The trial court granted the special exception, giving
    Reeder fourteen days to replead using a metes-and-bounds description, but Reeder’s subsequent
    amended petitions referred only to the contract for deed and did not provide a metes-and-bounds
    description.
    The record also shows Reeder deposed Curry on February 3, 2012 and Sjerven on April
    5, 2012. Although Curry’s deposition occurred before appellees filed their motion for summary
    judgment asserting the inadequacy of the property description, Sjerven’s deposition was after the
    filing of the motion for summary judgment and one week before the April 12 summary judgment
    hearing. Reeder does not explain why Sjerven’s April 5, 2012 deposition did not provide Reeder
    the information he needed.
    Reeder did not explain in his motion for continuance why the property description would
    be sufficient if it was for all the property Curry owned in each survey. Nor did he cite any
    authority in support of this assertion. In his brief on appeal, Reeder states additional discovery
    was necessary to determine whether Curry owned any other property in the county other than the
    –4–
    acres in the property description, and he stated that this information “would be relevant to
    determining the sufficiency of the property description and as a result for responding to the
    motion for summary judgment.” Reeder did not explain why whether Reeder owned additional
    property was relevant to the sufficiency of the property description, and he cited no authority in
    support of this assertion. The rules of appellate procedure require that a party present argument
    and cite authority in support of the contentions made in the brief. TEX. R. APP. P. 38.1(i).
    Because Reeder cited no authority and presented no argument beyond the conclusion that the
    information was relevant, we conclude Reeder has not properly briefed this assertion.
    Reeder also asserts that if a contract for real property does not sufficiently describe the
    property, the plaintiff can request an opportunity to plead for reformation of the contract.
    However, Reeder did not request leave to amend his petition to allege a cause of action for
    reformation of the contract.
    To the extent Reeder is arguing the trial court should have continued the case until
    Reeder could conduct additional discovery and then decide whether to allege and prosecute an
    action for reformation of the contract, the trial court could have reasonably concluded that such
    an action was barred by the four-year statute of limitations. See TEX. CIV. PRAC. & REM. CODE
    ANN. § 16.051 (West 2008); Miles v. Martin, 
    321 S.W.2d 62
    , 69 (Tex. 1959) (cause of action for
    reformation of contract governed by four-year statute of limitations); Lathem v. Richey, 
    772 S.W.2d 249
    , 253 (Tex. App.—Dallas 1989, writ denied) (citing Miles). Reeder had not yet filed
    a suit for reformation when he filed his motion for continuance, which was over sixteen years
    after he signed the contract for deed with its defective property description and over five years
    since Trinity alleged the statute of frauds.
    In light of this evidence, including the length of time the case had been on file, and the
    length of time the trial court could have believed Reeder should have been aware of the
    –5–
    inadequacy of the property description, we conclude Reeder has not shown the trial court abused
    its discretion by denying the motion for continuance of the summary judgment hearing. We
    overrule Reeder’s sixth issue.
    SUMMARY JUDGMENT
    Reeder’s remaining issues contend the trial court erred by granting appellees’ motion for
    summary judgment.      The standard for reviewing a traditional summary judgment is well
    established. See Nixon v. Mr. Prop. Mgmt. Co., 
    690 S.W.2d 546
    , 548–49 (Tex. 1985); McAfee,
    Inc. v. Agilysys, Inc., 
    316 S.W.3d 820
    , 825 (Tex. App.—Dallas 2010, no pet.). The movant has
    the burden of showing that no genuine issue of material fact exists and that it is entitled to
    judgment as a matter of law. TEX. R. CIV. P. 166a(c). In deciding whether a disputed material
    fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be
    taken as true. 
    Nixon, 690 S.W.2d at 549
    ; Yost v. Jered Custom Homes, 
    399 S.W.3d 653
    , 659
    (Tex. App.—Dallas 2013, no pet.); In re Estate of Berry, 
    280 S.W.3d 478
    , 480 (Tex. App.—
    Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant
    and any doubts resolved in its favor. City of Keller v. Wilson, 
    168 S.W.3d 802
    , 824 (Tex. 2005).
    We review a summary judgment de novo to determine whether a party’s right to prevail is
    established as a matter of law. Dickey v. Club Corp., 
    12 S.W.3d 172
    , 175 (Tex. App.—Dallas
    2000, pet. denied).
    The nonmovant must present summary judgment proof when necessary to show a fact
    issue. City of Hous. v. Clear Creek Basin Auth., 
    589 S.W.2d 671
    , 678 (Tex. 1979). The
    nonmovant must expressly present to the trial court in a written answer or response to the motion
    those issues that would defeat the movant’s right to summary judgment and failing to do so, may
    not assign them on appeal as error. TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to
    –6–
    the trial court by written motion, answer or other response shall not be considered on appeal as
    grounds for reversal.”); City of 
    Hous., 589 S.W.2d at 678
    .
    ADEQUACY OF THE PROPERTY DESCRIPTION
    In his first issue, Reeder contends the trial court erred by granting appellees’ motion for
    summary judgment because the property description in the contract for deed sufficiently
    identified the property.
    To comply with the statute of frauds, a property conveyance “must be in writing and must
    be subscribed and delivered by the conveyor or by the conveyor’s agent authorized in writing.”
    TEX. PROP. CODE ANN. § 5.021 (West 2004). Additionally,
    [t]o be valid, a conveyance of real property must contain a sufficient description
    of the property to be conveyed. A property description is sufficient if the writing
    furnishes within itself, or by reference to some other existing writing, the means
    or data by which the particular land to be conveyed may be identified with
    reasonable certainty.
    AIC Mgmt. v. Crews, 
    246 S.W.3d 640
    , 645 (Tex. 2008). A “conveyance of property . . . which
    fails to describe a definite tract of land is void.” 
    Id. The writing
    does not have to list metes and
    bounds to be enforceable, but it must provide the necessary information to identify the property
    with reasonable certainty. May v. Buck, 
    375 S.W.3d 568
    , 574 (Tex. App.—Dallas 2012, no pet.).
    An unidentifiable portion of a larger, identifiable tract is not sufficient to satisfy the statute of
    frauds. 
    Id. at 574–75.
    “The legal description in the conveyance must not only furnish enough
    information to locate the general area as in identifying it by tract survey and county, it need
    contain information regarding the size, shape, and boundaries.” 
    Id. at 575
    (quoting Reiland v.
    Patrick Thomas Props., Inc., 
    213 S.W.3d 431
    , 437 (Tex. App.—Houston [1st Dist.] 2006, pet.
    denied)). “Even when ‘the record leaves little doubt that the parties knew and understood what
    property was intended to be conveyed, . . . the knowledge and intent of the parties will not give
    –7–
    validity to the contract and neither will a plat made from extrinsic evidence.’” 
    Reiland, 213 S.W.3d at 437
    (quoting Morrow v. Shotwell, 
    477 S.W.2d 538
    , 540 (Tex. 1972)).
    The contract for deed described the property to be sold as follows:
    28.71 acres in the W. A. Carter Survey Abstract 95
    226.92 acres in the J.M. Carter Survey Abstract 95
    203.75 acres in the J. Beck Survey Abstract A-37
    149.1 acres in the M. J. Love Survey Abstract 295
    The property description gave no metes and bounds or other description of the property to be
    conveyed from each survey, and it did not “contain information regarding the . . . shape, and
    boundaries.”
    Appellees relied on Sjerven’s testimony in support of their summary judgment ground
    that the property description was inadequate. Sjerven testified in his affidavit that “there is no
    W.A. Carter Survey Abstract No. 95 in Kaufman County, Texas.” He also testified that each of
    the other surveys contained more acreage than was included in the contract for deed, and that
    that there was no way to determine from the contract for deed which part of each survey was
    included in the transaction or whether there was only one parcel or many. He stated, “Without
    more information than is provided in the contract for deed, it would be impossible for me to
    survey or to specifically identify the land that the contract for deed is intended to cover.”
    Reeder argues the property description is adequate because Curry used a nearly identical
    property description in the affidavit of forfeiture declaring Reeder had forfeited the property for
    breaching the contract for deed. 3 However, the fact that Curry may have used the same or
    similar property description in another document is no evidence of whether the property may be
    identified with reasonable certitude.
    3
    In the affidavit of forfeiture of contract for deed, Curry changed the third listing to “the J. Black Survey Abstract A-37” instead of the “J.
    Beck Survey Abstract A-37.”
    –8–
    Reeder also argues the property description was adequate because “Sjerven prepared a
    survey of the Property for the benefit of John Reeder on February 24, 2006.” In support of this
    statement, Reeder cites what he states is a copy of the survey, but nothing on the survey shows it
    is based on the property description in the contract for deed. The only property on the survey
    attributed to Reeder is three tracts in the “J. Carter Sur. A-95,” two for 64.673 acres and one for
    43.830 acres, which total 173.176 acres, far less than the 226.92 acres listed on the property
    description for the “J.M. Carter Survey Abstract 95.” The copy of Sjerven’s survey in the
    appellate record does not appear to show any other tracts owned by Reeder. The acreage listed
    in Sjerven’s survey for each of the different abstracts greatly exceeds the acreage listed in the
    contract for deed’s property description. Sjerven’s survey does not show the property listed in
    the property description of the contract for deed may be identified with reasonable certainty.
    We conclude as a matter of law that the property description in the contract for deed is
    inadequate because it does not provide “the means or data by which the particular land to be
    conveyed may be identified with reasonable certainty.” AIC 
    Mgmt., 246 S.W.3d at 645
    . We
    overrule Reeder’s first issue.
    PERFORMANCE AS EXCEPTION TO STATUTE OF FRAUDS
    In his second issue, Reeder contends that even if the property description is inadequate,
    the statute of frauds does not apply because there was partial performance of the contract. To
    establish partial performance of a contract for the sale of real estate as an exception to the statute
    of frauds, the plaintiff must prove it (1) paid consideration, (2) took possession of the land, and
    (3) made permanent and valuable improvements to the land with the defendant’s consent or, if no
    improvements were made, that other factors would make the transaction fraudulent if it were not
    enforced. Boyert v. Tauber, 
    834 S.W.2d 60
    , 63 (Tex. 1992) (elements to take oral contract for
    transfer of real estate out of statute of frauds).
    –9–
    In his response to the motion for summary judgment, Reeder stated “that today he has
    fully performed 100% of the financial obligation by paying the $650,000.00 according to the
    terms of the contract either to Mrs. Curry and/or to the registry of the court.” However, Reeder
    did not state in his response that he made any improvements to the land, he did not identify in the
    response what “permanent and valuable improvements” he made to the land, nor did he identify
    any “other factors” that “would make the transaction a fraud on the purchaser” if it were not
    enforced. 
    Boyert, 834 S.W.2d at 63
    . We conclude Reeder’s response to the motion for summary
    judgment did not expressly present the performance exception to the statute of frauds. See City
    of 
    Hous., 589 S.W.2d at 678
    . Accordingly, it “shall not be considered on appeal as a ground for
    reversal.” TEX. R. CIV. P. 166a(c).
    Reeder also argues that the statute of frauds is not enforced when to do so would amount
    to a virtual fraud by causing a substantial detriment to one party and an unearned benefit to the
    other party. See, e.g., Exxon Corp. v. Breezevale, Ltd., 
    82 S.W.3d 429
    , 439 (Tex. App.—Dallas
    2002, pet. denied); Carmack v. Beltway Dev. Co., 
    701 S.W.2d 37
    , 40 (Tex. App.—Dallas 1985,
    no writ). However, Reeder did not present this argument in his response to the motion for
    summary judgment. Accordingly, we may not reverse on that ground. See TEX. R. APP. P.
    166a(c); City of 
    Hous., 589 S.W.2d at 678
    . We overrule Reeder’s second issue.
    ESTOPPEL
    In his third issue, Reeder contends appellees are estopped from asserting the insufficiency
    of the property description under the doctrines of quasi-estoppel, judicial estoppel, and estoppel
    by contract. Reeder’s response to the motion for summary judgment did not mention or present
    these legal doctrines. Reeder argues the estoppel doctrines were presented in the response
    because he stated in the response, “The Plaintiff [Reeder] incorporates by reference John
    –10–
    Reeder’s response in opposition to the motions for summary judgment filed by the Defendant,
    Trinity Materials, Inc., Volume[s] 1 through 4 the same as if they are fully set forth.”
    This four-volume document was Reeder’s 128-page response filed in April 2006 with
    over seven hundred pages of attachments.         That response concerned appellees’ motion for
    summary judgment asserting Curry was entitled as a matter of law to enforce the forfeiture
    provision of the contract for deed; that Reeder, as a matter of law, was barred by limitations and
    laches from enforcing the earnest money contract; and other issues. See 
    Reeder, 294 S.W.3d at 855
    –862. The statute of frauds and the sufficiency of the property description were not raised in
    that summary judgment proceeding. See 
    id. The trial
    court was not required to sift through
    Reeder’s lengthy 2006 response to find arguments that might apply to defeat appellees’ current
    motion for summary judgment. We conclude Reeder’s estoppel arguments were not “expressly
    presented to the trial court” as required by rule 166a(c). See McConnell v. Southside Indep. Sch.
    Dist., 
    858 S.W.2d 337
    , 342–43 (Tex. 1993) (grounds for summary judgment or issues defeating
    summary judgment must be presented in the motion or response itself and not in a separate
    document). We overrule Reeder’s third issue.
    LAW OF THE CASE
    In his fifth issue, Reeder asserts the law of the case doctrine “preclude[s] yet another
    summary judgment concerning whether there was sufficient evidence of breach of contract.”
    Reeder argues that this Court’s 2009 opinion is “law of the case” that there was a fact issue about
    whether Curry breached the contract for deed by declaring the property forfeited. Reeder did not
    raise or discuss the doctrine of law of the case in his response to the motion for summary
    judgment. Because he did not expressly present law of the case in his response to the motion for
    summary judgment, it “shall not be considered on appeal as grounds for reversal.” TEX. R. CIV.
    –11–
    P. 166a(c); see West v. Northstar Fin. Corp., No. 02-08-00447-CV, 
    2010 WL 851415
    , *10 (Tex.
    App.—Fort Worth Mar. 11, 2010, pet. denied) (mem. op.). We overrule Reeder’s fifth issue.
    CONCLUSION
    We conclude Reeder has not shown the trial court erred by granting appellees’ traditional
    motion for summary judgment asserting the contract for deed was void and unenforceable due to
    the inadequate property description. Accordingly, we need not address Reeder’s fourth issue
    contending the trial court erred by granting appellees’ no-evidence motion for summary
    judgment concerning mutuality of obligation, damages, performance under the contract for deed,
    and breach by Curry. See TEX. R. APP. P. 47.1 (opinion must address every issue necessary to
    final disposition of the appeal).
    We affirm the trial court’s judgment.
    /Lana Myers/
    LANA MYERS
    JUSTICE
    120836F.P05
    –12–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    John Reeder, Appellant                                On Appeal from the 86th District Court,
    Kaufman County, Texas
    No. 05-12-00836-CV          V.                        Trial Court Cause No. 66-738-86.
    Opinion delivered by Justice Myers.
    Billie Brewer Curry, Individually and as              Justices FitzGerald and Francis participating.
    Successor to W.C. Brewer, Deceased, and
    Trinity Materials, Inc., Appellees
    In accordance with this Court’s opinion of this date, the judgment of the trial court is
    AFFIRMED.
    It is ORDERED that appellees Billie Brewer Curry, Individually and as Successor to
    W.C. Brewer, Deceased, and Trinity Materials, Inc. recover their costs of this appeal from
    appellant John Reeder.
    Judgment entered this 31st day of December, 2013.
    /Lana Myers/
    LANA MYERS
    JUSTICE
    –13–