Charlotte B. Lytz v. Susan Whaley, Frank Harrell, Paul Harrell and Dennis Stautz ( 2008 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-07-371 CV ______________________

CHARLOTTE B. LYTZ, Appellant

V.

SUSAN WHALEY, FRANK HARRELL, PAUL HARRELL AND DENNIS STAUTZ, Appellees

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On Appeal from the 411th District Court San Jacinto County, Texas Trial Cause No. CV-11462-B

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MEMORANDUM OPINION

Charlotte B. Lytz appeals the trial court's judgment awarding appellees Susan Whaley, Frank Harrell, Paul Harrell, and Dennis Stautz $97,333.33, plus interest, attorney's fees, and costs, against Lytz for breach of a contract for the sale of real estate. We reverse the judgment and remand the case to the trial court.

Background

Susan Whaley, Frank Harrell, Paul Harrell, Dennis Stautz, S. Ruth Brogdon, Claudia Taylor, Carole Yeager, Connie Lambert, and Charlotte B. Lytz are co-owners of land in San Jacinto County, Texas. They each own a one-ninth undivided interest in the property. The parties could not agree on a partition of the property, so appellees filed suit against the other co-owners, including appellant Lytz, for partition and order of sale. See Tex. R. Civ. P. 770. In an amended petition, appellees also alleged that Lytz had breached a contract, executed after suit was filed, for the sale of the property. The prospective buyer, John Lewis, deposited $21,900 as earnest money with an escrow agent as required by the contract. Lytz signed the contract, but refused to return the closing documents. Lewis then terminated the contract and recovered the earnest money, as expressly permitted by the contract.

After the contract was terminated, the trial court granted appellees' motions for sale of property incapable of division, and to conclude sale, motions appellees filed pursuant to the Property Code. See Tex. Prop. Code Ann. § 23.001 (Vernon 2000); see also Tex. R. Civ. P. 761, 770. Lytz appealed the order granting appellees' motions, and the Supreme Court transferred that appeal to the Thirteenth Court of Appeals.

The trial court then granted appellees' motion for partial summary judgment against Lytz on the breach of contract claim. The court granted a severance motion, and signed the final judgment awarding appellees $97,333.33, plus interest, court costs, and attorney's fees.

The Trial Court's Jurisdiction

In issue one, Lytz maintains that appellees' breach of contract claim was "implicitly" overruled by the order granting appellees' motion for sale of property, and that the court's plenary power expired before entry of the judgment she attacks in this appeal. She maintains the district court lacked jurisdiction to render judgment on the breach of contract claim.

The partition orders do not explicitly address appellees' breach of contract claim, nor did the orders necessarily or implicitly address the claim; the claim is different from that made pursuant to the Property Code, but not necessarily inconsistent. "[W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).

A judicial partition proceeding involves intermediate appealable orders. See Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980); Snow v. Donelson, 242 S.W.3d 570, 572 (Tex. App.--Waco 2007, no pet.); Long v. Spencer, 137 S.W.3d 923, 925 (Tex. App.--Dallas 2004, no pet.). Certain intermediate orders in a partition action are appealable to "provide[] a practical way to review controlling, intermediate decisions before the consequences of any error do irreparable injury." Long, 137 S.W.3d at 926 (citations omitted). The appealability of the partition orders did not, by itself, divest the court of jurisdiction over the separate contract claim, however.

Because the orders on the motion for sale of property and motion to conclude sale did not clearly and unequivocally state that they finally disposed of all claims and all parties, the trial court retained jurisdiction to enter the subsequent judgment related to appellees' breach of contract claim. See Lehmann, 39 S.W.3d at 205. We overrule issue one.

The Contract Claim

In issue two, Lytz argues that when co-owners enter into a written agreement to sell real property, and one co-owner breaches the agreement, only the buyer can sue for damages for breach of contract. ⁽¹⁾

We are to construe the contract to give effect to the intention of the contracting parties. See J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). The contract stated that "Seller," defined as "Susan Whaley, Frank Harrell, Paul Harrell, Dennis Stautz, S. Ruth Brogdon, Charlotte B. Lytz, Claudia Taylor, Connie Lambert, and Carole Yeager[,]" agreed to sell 87.6 acres to "Buyer," John Lewis. The contract contained express promises between the seller and the buyer. The contract also provided certain remedies to the seller if the buyer breached, and remedies to the buyer if the seller breached. When Lytz, as the owner of an undivided interest in the property, refused to execute the closing documents, the buyer was then entitled under the terms of the contract to terminate the contract and recover the earnest money. He did this. The contract did not include any express promises between the co-owners, nor did it expressly provide any remedy to the individual co-owners if one of the co-owners failed to perform. See generally Carnell v. Kinser, 196 S.W.2d 941, 943-45 (Tex. Civ. App.--Amarillo 1946, writ ref'd). The sellers were not participants in a joint venture. See generally Ayco Dev. Corp. v. G.E.T. Serv. Co., 616 S.W.2d 184, 186 (Tex. 1981) (elements of joint venture). Essentially, each co-owner agreed severally with the buyer to sell only that co-owner's interest in the property; no co-owner had the authority or the ability to convey more than his or her interest in the land to the buyer. See generally Williams v. Cullen Ctr. Bank & Trust, 685 S.W.2d 311, 313 (Tex. 1985) (Generally, one co-tenant cannot bind the other co-tenants by contracting with third persons.). We are not confronted here with a claim by the buyer that all co-owners were jointly liable to the buyer in damages, nor does this case present a contribution claim. Choosing a remedy under the terms of the contract, the buyer elected to "terminate this contract and receive the earnest money, thereby releasing both parties from this contract." The contract limited the remedial rights of the parties under these circumstances -- where the buyer elected to terminate the contract -- to the parties' release from the contract. Once chosen by the buyer, the provision in the contract was clearly intended to be an exclusive remedy resulting in a cancellation of the contract and release of all parties.

Because the motion for summary judgment did not establish that Lytz owed a duty under the contract to appellees, or that appellees were entitled to recover damages from Lytz under the contract, the trial court erred in granting summary judgment on the claim. ⁽²⁾ We sustain issue two. We need not address Lytz's third issue as it would entitle her to no greater relief. See Tex. R. App. P. 47.1. We reverse the trial court' s judgment and remand the case to the trial court.

REVERSED AND REMANDED.

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DAVID GAULTNEY

Justice

Submitted on February 7, 2008

Opinion Delivered July 31, 2008

Before Gaultney, Kreger, and Horton, JJ.

1. Although Lytz labels the issue as one of "standing," we do not see the question as one implicating subject matter jurisdiction. See DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008); see also Patterson v. Planned Parenthood of Houston and Se. Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998) (discussing "standing").

2. Although Lytz filed no response to the motion for summary judgment, and no response to requests for admissions, the movants still must establish entitlement to judgment as a matter of law. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see, e.g., Wesson v. Jefferson Sav. & Loan Ass'n, 641 S.W.2d 903, 905-06 (Tex. 1982) (no duty). However, Lytz did not file a motion for summary judgment. We therefore must remand the case to the trial court. Compare Lubbock County, Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 583 (Tex. 2002) (When both sides move for summary judgment and the trial court grants one motion and denies the other, the appellate court should render the judgment the trial court should have rendered).