RWH Homebuilders, LP v. Black Diamond Development LLP and Kirby Frank, Inc. ( 2015 )

Affirmed and Memorandum Opinion filed August 25, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00948-CV
RWH HOMEBUILDERS, LP, Appellant/Cross-Appellee
V.
BLACK DIAMOND DEVELOPMENT LLP AND KIRBY FRANK, INC.,
Appellees/Cross-Appellants
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Cause No. 2011-39246
MEMORANDUM OPINION
In this appeal, appellees/cross-appellants, Black Diamond Development LLP
and Kirby Frank, Inc. contend that the trial court erred by declaring that
appellant/cross-appellee, RWH Homebuilders, LP, had a right to purchase fifteen
lots without first satisfying liens on the property. RWH Homebuilders asserts that
there is no legally sufficient evidence to support the trial court’s determination of a
fair market value of $2.4 million for the lots. We affirm.
BACKGROUND
This appeal primarily concerns the enforcement of a “right of repurchase”
arising from a contract entered into by Black Diamond and the developer of
property located north of Memorial Drive between Westcott and Shepherd.
In 2006, Y-H Sabinal (the Developer) purchased certain property to develop
the land for a gated community of up-scale townhomes and villas (the Caceres
subdivision). In connection with the acquisition of the Caceres subdivision, the
Developer received a development loan from Regions Bank (the Bank). At the
time of the loan, RWH Homebuilders1 had already agreed to purchase twenty
percent of the lots in the Caceres subdivision.
In May of 2006, the Developer targeted a discrete number of high-end,
highly qualified builders to participate in building homes in the Caceres
subdivision. The Developer decided to sell half of the lots in the Caceres
subdivision to RWH Homebuilders and half of the lots to Black Diamond. The
Developer executed two lot purchase contracts in which each homebuilder agreed
to purchase fifty percent of the lots in the Caceres subdivision.
Both lot purchase contracts contained a section entitled “Right to
Repurchase.” The right of repurchase section in each lot purchase contract
provided that if one builder decided not to build on a lot, the other builder would
have the first option to buy that lot before it was offered to anyone else. Reciprocal
rights of repurchase in favor of the other builder were included in both of the lot
1
RWH Homebuilders, LP, is referred variously throughout the underlying case and this
opinion as RWH Homebuilders, Rohe & Wright Builders, and RWH. RWH Homebuilders, LP is
the legal entity and Rohe & Wright is its nickname. In its findings of fact, the trial court found
that “[w]hile Defendant challenges whether Plaintiff RWH Homebuilders, LP, had the right of
repurchase, as opposed to any other entity, it is clear that references in the lot purchase contracts
to Rohe & Wright Builders were meant to be as to Plaintiff RWH Homebuilders, LP.” We will
refer to appellant as RWH Homebuilders.
2
purchase contracts executed by the builders.
Over the course of twelve months in 2008, RWH Homebuilders and Black
Diamond purchased the lots in accordance with their lot purchase contracts. In
order to finance its purchase of the lots, Black Diamond received a loan from the
Bank and the Bank received a deed of trust.2 At approximately the same time,
RWH Homebuilders purchased its respective lots with financing from the Bank.
In January 2010, Black Diamond informed RWH Homebuilders that Black
Diamond was no longer paying its banks on loans in the Caceres subdivision.
Black Diamond also represented that it would not be paying its share of
homeowners’ association assessments or property taxes. Black Diamond then
entered into negotiations with the Bank to purchase its loans encumbering its lots
at a discount. On April 19, 2011, Black Diamond and the Bank executed an
agreement, in which Black Diamond acquired the right to purchase the notes and
liens encumbering its lots in the Caceres subdivision (the “Regions Contract”). The
Bank afforded RWH Homebuilders the same opportunity. Black Diamond began
searching for an investor to finance the $1.425 million buyout price for the Bank.
RWH Homebuilders also entered into an agreement with the Bank to purchase its
notes and found an investor to finance the purchase price.
On May 4, 2011, Black Diamond emailed RWH Homebuilders, asking if it
would be willing to waive its repurchase rights. These negotiations were never
finalized. Instead, Black Diamond sent a letter to RWH Homebuilders on May 11,
2011, informing it of its intention to sell fifteen of its lots in the Caceres
subdivision. Black Diamond then entered into an agreement with Lovett Custom
Homes, Inc. on May 20, 2011 (“the Lovett Homes Contract”), in which Black
2
The parties also purchased some of the lots with financing from IBC Bank. Only the
lots financed by the Bank are at issue in this appeal.
3
Diamond contracted to sell the fifteen lots. Under this agreement, Lovett Homes
would acquire the lots under a deed in lieu of foreclosure and Black Diamond and
its guarantors would be released from any obligations under the notes and liens.
This agreement was never finalized.
On May 24, RWH Homebuilders responded to Black Diamond’s letter by
stating that it was electing to exercise its option to purchase the lots, subject to
confirmation and approval of the purchase price. The letter further stated that
“RWH is ready to proceed with the purchase of the Regions Lots once market
value has been determined.”
After receiving RWH Homebuilders’s letter, Black Diamond entered into an
agreement with Kirby Frank,3 in which Kirby Frank agreed to purchase the loans
securing the fifteen lots from the Bank (“the Kirby Frank Contract”). This
agreement called for the acquisition of the fifteen lots in the same manner in which
the lots were purported to be sold outright to Lovett Custom Homes, Inc. under the
Lovett Homes Contract.
On June 1, Black Diamond and RWH Homebuilders met to discuss market
value for the fifteen lots. Chad Muir, a part owner of RWH Homebuilders, testified
that representatives of Black Diamond stated that they had entered into an
agreement with Kirby Frank. Muir further testified that the Black Diamond
representatives informed him that they were not allowed to agree to market value
without Frank Liu’s consent.
On June 13, Black Diamond sent a letter to RWH Homebuilders alleging
that it failed to properly exercise the option to repurchase. Black Diamond stated
that the right of repurchase expired because RWH Homebuilders’s letter
3
Both Lovett Homes and Kirby Frank, Inc. are owned and controlled by the same person,
Frank Liu.
4
conditioned its acceptance upon “confirmation and approval of the purchase price.”
On June 14, Kirby Frank posted the lots for public foreclosure.
RWH Homebuilders sued Black Diamond and Kirby Frank under the
Uniform Declaratory Judgment Act, seeking a determination of its right to
purchase the fifteen lots. RWH Homebuilders also sought a temporary injunction
to forestall the foreclosure sale of the fifteen lots. The trial court granted the
temporary injunction on November 21, 2011. The parties proceeded to a bench
trial, in which the trial court signed a judgment in favor of RWH Homebuilders.
The trial court also signed findings of fact and conclusions of law. The trial
court issued these relevant findings of fact, among others:
18. The Court finds that Plaintiff RWH Homebuilders, LP did have a right of
repurchase under PX-7, the Black Diamond lot purchase contract.
29. Regions Bank agreed for Black Diamond to purchase its loans for the 15
Black Diamond lots in Caceres for a discounted note payoff. For the
payment of $1.425 million, Regions Bank would release Black Diamond
from all loan and interest obligations and return the 15 lots to Black
Diamond free and clear of any liability for the Regions Bank loans.
30. Black Diamond began dealing with potential investors to raise the
$1.425 million buyout price for Regions Bank.
32. Black Diamond could not find an investment option where title to the
lots would not be transferred to a third party.
33. Black Diamond and its counsel believed that transfer of the lots to a third
party would trigger Rohe & Wright’s right of repurchase rights, and asked
Rohe & Wright to waive its option.
35. Ultimately, as seen in PX-8, Black Diamond sent notice to Rohe &
Wright that it had an option to repurchase the 15 lots in Caceres financed by
Regions Bank.
38. As found in PX-11, on May 24, 2011, Rohe & Wright timely accepted
Black Diamond’s tendered option to purchase the 15 lots financed by
Regions Bank.
45. Before the parties could meet to discuss market value, Black Diamond
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contracted to sell the 15 lots to Lovett Homes on May 20, 2011.
46. As reflected by PX-45, the purpose of this agreement was for Black
Diamond to sell the 15 Regions lots to Lovett Homes. The lot sale
agreement in PX-45 called for Lovett Homes to acquire the 15 lots indirectly
by an assignment to Lovett Homes of the Regions Contract, which was the
discounted note payoff agreement in PX-42. Lovett Homes would obtain the
15 lots under a deed in lieu of foreclosure process under which Black
Diamond and its Guarantors Tom Zenner and Bonner Ball would be released
from any obligations under the notes and liens that were subject of the
Regions Contract, PX-42.
49. Black Diamond started negotiations with Lovett Homes to execute what
was called a loan purchase agreement, but despite its name, the agreement
still called for the purchase of the 15 Regions Bank lots.
50. At the last minute, the purchaser was changed from Lovett Homes,
which was owned and controlled by Frank Liu, to another entity that was
owned and controlled by Frank Liu, Defendant Kirby Frank, Inc.
51. This agreement with Kirby Frank, PX-46, although styled an acquisition
of loans, called for the acquisition of the 15 Regions Bank lots in the same
manner in which the lots were purported to be sold outright to Lovett Homes
under PX-45, the lot sale contract between Black Diamond and Lovett
Homes.
52. Just like how the Lovett Homes lot sale agreement in PX-45 called for
the assumption of Black Diamond’s rights to the Regions Contract, with a
release of Black Diamond and its Guarantors, and acquisition of the lots by
deed in lieu of foreclosure, the loan sale agreement with Kirby Frank in PX-
46 also called for the very same procedure to acquire title to the 15 Regions
Bank lots.
60. The Court also finds that Rohe & Wright should be entitled to purchase
the lots for the “then market value” free and clear of any claim from Kirby
Frank.
63. In obtaining Black Diamond’s rights under the Regions Contract, Kirby
Frank expressly agreed that it would be subject to, or bound by, Rohe &
Wright’s rights of repurchase.
65. The Court thus finds that Rohe & Wright has the right to repurchase the
15 Regions Bank lots free and clear of any claims of Kirby Frank . . . .
84. The Court thus finds that Rohe & Wright validly exercised its option to
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repurchase and that the “then market value” that the Court finds is $160,000
per lot for a total of $2,400,000.
In its conclusions of law, the trial court stated:
99. Rohe & Wright has a right of repurchase to acquire the 15 Regions Lots
from Black Diamond.
100. Rohe & Wright validly accepted Black Diamond’s tender of that right
of repurchase, and Rohe & Wright should be able to purchase those lots for
the then market value which is 2.4 million.
102. Rohe & Wright shall take those lots free and clear of any claims by
Kirby Frank.
RWH Homebuilders filed this appeal, challenging the trial court’s value
determination of the fifteen lots. Black Diamond and Kirby Frank filed a cross-
appeal, challenging the trial court’s conclusion that RWH Homebuilders was
entitled to purchase the lots free and clear of Kirby Frank’s rights. RWH
Homebuilders did not file any brief in response to the appellees’ cross-appeal.
STANDARD OF REVIEW
When specific findings of fact and conclusions of law are filed and a
reporter’s record is before the appellate court, the findings will be sustained if there
is evidence to support them and we will review the legal conclusions drawn from
the facts found to determine their correctness. TMC Worldwide, L.P. v. Gray, 178
S.W.3d 29, 36 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A trial court’s
findings of fact in a bench trial have the same force and dignity as the jury’s
verdict upon questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794
(Tex. 1991). When the trial court acts as a factfinder, its findings are reviewed
under legal and factual sufficiency standards. Id.
We review the trial court’s conclusions of law de novo. See BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Conclusions of law are
7
upheld if the judgment can be sustained on any legal theory the evidence supports.
Waggoner v. Morrow, 932 S.W.2d 627, 631 (Tex. App.—Houston [14th Dist.]
1996, no writ). Incorrect conclusions of law do not require reversal if the
controlling findings of fact support the judgment under a correct legal theory. See
id.
When reviewing the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder
could and disregard contrary evidence unless a reasonable factfinder could not. See
id. at 827. We must determine whether the evidence at trial would enable
reasonable and fair-minded people to find the facts at issue. See id. The evidence is
legally insufficient when (1) there is a complete absence of evidence of a vital fact;
(2) the court is barred by rules of law or evidence from giving weight to the only
evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact
is no more than a mere scintilla; or (4) the evidence establishes conclusively the
opposite of the vital fact. Id. at 810.
In a factual sufficiency review, we must consider and weigh all of the
evidence in a neutral light. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d
757, 761 (Tex. 2003). The evidence is factually insufficient only if we conclude
that the verdict is so against the great weight and preponderance of the evidence as
to be manifestly unjust, regardless of whether the record contains some evidence of
probative force in support of the verdict. Id.
The factfinder is the sole judge of the witnesses’ credibility and the weight
to be given to their testimony. See City of Keller, 168 S.W.3d at 819. We may not
substitute our judgment for that of the factfinder merely because we reach a
8
different conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).
ISSUES AND ANALYSIS
Black Diamond and Kirby Frank contend that the trial court erred by
determining that RWH Homebuilders had a right to purchase the fifteen lots free
and clear of Kirby Frank’s rights. RWH Homebuilders asserts that the evidence is
legally insufficient to support the trial court’s value determination.
I. The Evidence is Sufficient to Support the Trial Court’s
Conclusion that RWH Homebuilders Had a Right to Purchase the
Lots
In three issues, Black Diamond and Kirby Frank argue that RWH
Homebuilders’s claim is precluded as a matter of law because (1) Kirby Frank
purchased the notes from the Bank, which were superior to RWH Homebuilders’s
right of repurchase; (2) the Kirby Frank Contract excluded third party
beneficiaries; and (3) RWH Homebuilders failed to properly exercise the right of
repurchase.
A. Right of Repurchase
Black Diamond and Kirby Frank first contend that RWH Homebuilders did
not have a right to purchase the lots because (1) Black Diamond never had superior
title to the lots; (2) the right of repurchase was subject to the Bank’s liens; (3)
RWH Homebuilders is estopped from claiming the right of repurchase is superior;
and (4) Kirby Frank is subrogated to the Bank’s development loan.
RWH Homebuilders’s entire case centers on the “right of repurchase.” A
right of first refusal, as a preemptive right, requires the property owner to first offer
the property to the person holding the right of first refusal at the stipulated price
and terms in the event that the owner decides to sell the property. Riley v. Campeau
Homes (Tex.), Inc., 808 S.W.2d 184, 187 (Tex. App.—Houston [14th Dist.] 1991,
9
writ dism’d). Unlike an option contract, a right of first refusal does not give the
holder the power to compel an unwilling owner to sell. See id. An owner does not
have to sell and, until the owner decides to sell, there is nothing to exercise and it is
not possible to fix a certain purchase price. Id. However, once an owner decides to
sell, there is an obligation to offer the holder of the right of first refusal the
opportunity to buy the burdened property on the terms offered by a bona fide
purchaser. Id.
An option, on the other hand, provides the holder of the option the right to
compel a sale of property on the stated terms before the expiration of the option.
Id. at 188. A right of first refusal ripens into an option when the owner elects to
sell. Id. When an owner is required to notify the holder of a right of first refusal of
the owner’s election to sell, “the right matures into an enforceable option when the
owner gives the required notice.” Id. (quoting Holland v. Fleming, 728 S.W.2d
820, 822−23 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.)).
Although both parties refer to this right as a “right of repurchase” or an
“option,” it is a right of first refusal.4 Black Diamond’s lot purchase contract
expressly states that:
In the event that after closing on the purchase of Lots, [Black
Diamond] decides to resell any or all of those lots without a residence
constructed thereon (“the Resold Lots”), then [the Developer] shall
have the right to repurchase those Lots at the lesser of then market
value or the original Purchase Price. [The Developer] shall assign this
right to repurchase to Rohe & Wright Builders and, in the event Rohe
& Wright Builders does not elect to repurchase, [the Developer] may
purchase the Resold Lots.
4
This right has been variously referred to in cases as a right of first refusal, preemptive
right to purchase, or preferential right to purchase. See Tenneco Inc. v. Enter. Prods. Co., 925
S.W.2d 640, 644 (Tex. 1996); Sanchez v. Dickinson, 551 S.W.2d 481, 485 (Tex. Civ. App.—San
Antonio 1977, no writ).
10
Because the lot purchase contract requires Black Diamond to first offer the
property to RWH Homebuilders in the event that it decides to sell the property, it is
a right of first refusal. See Riley, 808 S.W.2d at 187.
Frank Liu, the representative for Kirby Frank, was the first to testify at trial.
Liu testified that he originally tried to purchase the fifteen lots from Black
Diamond, which was reflected in the Lovett Homes Contract. The Lovett Homes
Contract was titled “Purchase and Sale Agreement” and stated that “[Black
Diamond] desires to sell the Lots (directly or indirectly) and [Lovett Homes]
desires to acquire the Lots (directly or indirectly), subject to the terms and
conditions of this agreement.” Liu stated that he was aware of RWH
Homebuilders’s right of repurchase. Section C of the Lovett Homes Contract
expressly states that under Black Diamond’s lot purchase contract, RWH
Homebuilders has an option to repurchase the lots if Black Diamond intended to
sell them prior to constructing a home. This contract further stated that Black
Diamond provided RWH Homebuilders notice of its intention to sell and that
RWH Homebuilders exercised its option to purchase the lots. The Lovett Homes
Contract stated that Lovett Homes could acquire the lots directly with cash or
indirectly, “pursuant to an assignment of the Regions Contract and a deed in lieu of
foreclosure from [Black Diamond] in consideration of a release of [Black
Diamond] and each guarantor with respect to any obligations under the notes and
liens that are the subject of the Regions Contract.” The contract also stated that it
would terminate if RWH Homebuilders exercised its repurchase option. Thus, the
Lovett Homes Contract was never finalized.
Instead, Kirby Frank and Black Diamond executed the Kirby Frank
Contract, which was similarly titled “Purchase and Sale Agreement.” The Kirby
Frank Contract stated that “[Black Diamond] desires to assign the Regions
11
Contract to [Kirby Frank] at the First Closing.” The contract further provided that
“[t]he assignment of the Regions Contract is subject to any rights of RWH pursuant
to its exercise of the repurchase option relating to the Regions Lots.” (Emphasis
added). The agreement stated that:
[Kirby Frank] acknowledges that RWH’s exercise of its repurchase
options with respect to the Regions Lots and IBC Lots requires that
the market value and purchase price be determined. [Black Diamond]
shall not agree to any market value or purchase price without first
obtaining [Kirby Frank’s] prior written direction and/or consent,
which shall be in [Kirby Frank’s] sole direction.
The Kirby Frank Contract also stated that at the first closing, Kirby Frank would
release Black Diamond “from and agree that [Black Diamond] shall have no
personal liability on the loans secured by the Regions Lots (provided such
agreement shall not impair [Kirby Frank’s] right to foreclose on the Regions
Lots).” After the first closing, pursuant to the contract, Black Diamond was
required to execute and deliver a deed in lieu of foreclosure to Kirby Frank.
The Regions Contract was attached to the Kirby Frank Contract. The
Regions Contract included a “First Amendment to Sale and Assignment
Agreement,” which added a condition of closing. This condition stated “[t]he
obligation of [Black Diamond] to acquire the Assigned Rights is subject to RWH
foregoing exercising its right of repurchase.”
Black Diamond argues that it could not convey superior title to the lots
because it never had superior title. In support of this proposition, Black Diamond
cites to the general proposition that if an express vendor’s lien is reserved in a deed
to secure the payment of purchase money, superior title remains in the vendor and
the vendee acquires an equitable right to obtain legal title by paying the purchase
money. See State v. Forest Lawn Lot Owners Ass’n, 254 S.W.2d 87, 91 (Tex.
12
1953). Other than citing to this general proposition, Black Diamond does not cite
to any case, nor can we find one, stating that Black Diamond was prohibited from
selling the lots to RWH Homebuilders.
Black Diamond’s lot purchase contract expressly provided that if Black
Diamond sold the lots prior to construction, RWH Homebuilders had the right to
repurchase those lots at the lesser of then market value or the original purchase
price. Although the lot purchase contract was never recorded, Liu testified that he
was aware of the right of repurchase and the Kirby Frank Contract stated that
“[t]he assignment of the Regions Contract is subject to any rights of RWH
pursuant to its exercise of the repurchase option.”5 An unrecorded conveyance of
an interest in real property is binding on a subsequent purchaser who had notice of
it. See Tex. Prop. Code § 13.001(b) (“The unrecorded instrument is binding on . . .
a subsequent purchaser who does not pay a valuable consideration or who has
notice of the instrument.”). Thus, Kirby Frank had actual knowledge of the right of
repurchase and cannot claim superior title. See Madison v. Gordon, 39 S.W.3d
604, 606 (Tex. 2001) (“Actual notice rests on personal information or
knowledge.”).
Black Diamond and Kirby Frank further argue that the right of repurchase
was subject to the liens secured by the Bank. Black Diamond points to language in
the lot purchase contract which states that “title shall be subject only to those
matters to which the Lot was acquired, plus any plat and/or easement filed incident
to the development of the Subdivision.” Muir testified, however, that he believed
this provision meant the right of repurchase was subject to “easements or things
that would be in a plat.”
5
Because the Kirby Frank Contract was subject to RWH Homebuilder’s right of
repurchase, rather than the Developer’s, we find no merit in Black Diamond and Kirby Frank’s
argument that the Developer did not assign the right of repurchase.
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Black Diamond and Kirby Frank also assert that RWH Homebuilders is
estopped from claiming the right of repurchase is superior because the Developer
“agreed by closing documents and deeds that no rights were ahead of Regions
liens.” Black Diamond directs this court’s attention to a closing certificate
executed by RWH Homebuilders, in which it states that “there are no liens, claims
or charges against the Property whatsoever . . . .” The doctrine of quasi-estoppel
precludes a party from asserting, to another’s disadvantage, a right inconsistent
with a position previously taken by that party. Eckland Consultants, Inc. v. Ryder,
Stilwell Inc., 176 S.W.3d 80, 87 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
This doctrine applies when it would be unconscionable to allow a party to maintain
a position inconsistent with one in which it had acquiesced, or from which it had
accepted a benefit. Id. We disagree with Black Diamond’s interpretation of this
language. Although RWH Homebuilders states that there were no liens or claims
affecting the property, it did not mention the right of repurchase. Thus, RWH
Homebuilders is not estopped from claiming it had a right to purchase the lots.
Kirby Frank contends that it was subrogated to the Bank’s development loan
with the Developer, which occurred prior to the right of repurchase. Black
Diamond and Kirby Frank cite to the general proposition of equitable subrogation,
arguing that Kirby Frank received the Bank’s priority rights from the development
loan. The doctrine of equitable subrogation allows a third party who discharges a
lien upon the property of another to step into the original lienholder’s shoes and
assume the lienholder’s right to security against the debtor. LaSalle Bank Nat’l
Ass’n v. White, 246 S.W.3d 616, 619 (Tex. 2007). The development loan between
the Bank and the Developer does not give rise to a claim for equitable subrogation
because the Bank assigned Kirby Frank its rights to the loan between the Bank and
Black Diamond.
14
Based on the evidence adduced at trial and viewing the evidence in the light
most favorable to the judgment, we conclude that a reasonable factfinder could
conclude that RWH Homebuilders had a right to purchase the fifteen lots. Thus, we
find that there is legally sufficient evidence to support the trial court’s conclusion.
See City of Keller, 168 S.W.3d at 827. We further conclude that the evidence
supporting the trial court’s finding of a right to repurchase is not against the great
weight and preponderance of the evidence as to be manifestly unjust. Accordingly,
the trial court’s conclusion is supported by factually sufficient evidence. See
Jackson, 116 S.W.3d at 761.
B. Third Party Beneficiary Clause
Black Diamond and Kirby Frank contend that because the Kirby Frank
Contract excludes third party beneficiaries, RWH Homebuilders may not benefit
from it.
When interpreting a contract, we examine the entire agreement in an effort
to harmonize and give effect to all provisions of the contract so that none will be
meaningless. MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 652
(Tex. 1999). The Kirby Frank Contract contained a provision entitled “Third Party
Beneficiaries,” stating that “[t]here are no third party beneficiaries to this
Agreement and this Agreement is not intended to benefit any third parties,
including, without limitation, [the Developer], RWH, [the Bank] or IBC Bank.”
However, the contract also provided that it was “subject to any rights of RWH
pursuant to its exercise of the repurchase option relating to the Regions Lots.”
Black Diamond and Kirby Frank’s interpretation of the contract would render this
provision wholly meaningless. Further, RWH Homebuilder’s right of repurchase
originates from Black Diamond’s lot purchase contract.
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C. Whether RWH Homebuilders Properly Exercised the Right of
Repurchase
Black Diamond and Kirby Frank contend that there is no evidence RWH
Homebuilders was ready, willing, and able to close on the lots. They also argue
that there is no evidence RWH Homebuilders properly exercised the option.
The trial court found that RWH Homebuilders validly exercised its option
and that it was ready, willing, and able to perform its repurchase rights. The record
reflects that Black Diamond sent RWH Homebuilders notice on May 11, 2011,
informing it of its intention to sell the lots. RWH Homebuilders responded on May
24, stating that it intended to exercise its option to purchase the lots. Muir testified
at trial that RWH Homebuilders was willing to pay whatever the court determined
the “then market value” of the lots to be. Muir also testified that an investor
deposited $1.425 million into an escrow account so that RWH Homebuilders
would be able to purchase the lots. Muir stated that an investor arranged for the
funds to be available to RWH Homebuilders as a loan for it to purchase the fifteen
lots. When asked if RWH Homebuilders would be able to pay for the fifteen lots in
the event that the trial court found that the fair market value was more than $1.424
million, Muir stated the following: “We are prepared to pay whatever this Court
finds is the then-fair market value.” Thus, the evidence that RWH Homebuilders
was both willing and prepared to purchase the lots is sufficient to support the trial
court’s findings that RWH Homebuilders properly exercised its option to purchase
the lots and that it was ready, willing, and able to perform.
We overrule Black Diamond and Kirby Frank’s cross-appeal.
II. The Evidence is Legally Sufficient to Support the Trial Court’s
Value Determination
RWH Homebuilders contends that the evidence is legally insufficient to
16
support the trial court’s $2.4 million value determination because the great weight
of the evidence reflects a $1.424 million valuation. In response, Black Diamond
and Kirby Frank argue that the trial court’s value determination is supported by
legally sufficient evidence.
In its findings of fact, the trial court found that RWH Homebuilders was
entitled to purchase the lots for the “then market value” free and clear of any claim
from Kirby Frank. The trial court found that the “then market value” of the fifteen
lots was $160,000 per lot for a total of $2,400,000.
“Market value” is defined as “the price the property will bring when offered
for sale by one who desires to sell, but is not obliged to sell, and is bought by one
who desires to buy, but is under no necessity of buying.” City of Harlingen v.
Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001). Fair market value shall be
determined by the factfinder after the introduction by the parties of competent
evidence of value. Village Place, Ltd. v. VP Shopping, LLC, 404 S.W.3d 115, 133
(Tex. App.—Houston [1st Dist.] 2013, no pet.). Generally, a property owner is
qualified to testify to the value of his property even if he is not an expert and would
not be qualified to testify to the value of other property. See Porras v. Craig, 675
S.W.2d 503, 504 (Tex. 1984). The rule is based on the presumption that an owner
will be familiar with his own property and know its value. Custom Transit, L.P. v.
Flatrolled Steel, Inc., 375 S.W.3d 337, 352 (Tex. App.—Houston [14th Dist.]
2012, pet. denied).
Entities such as corporations are treated “the same as natural persons for
purposes of the Property Owner Rule, with certain restrictions on whose testimony
can be considered as that of the property owner.” Id. (quoting Reid Road Mun.
Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 849 (Tex.
2011)). A two-pronged test governs the inquiry into whether a witness can properly
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testify under the Property Owner Rule on behalf of an entity other than a natural
person. Id. First, the Property Owner Rule is limited to those witnesses who are
officers of the entity in managerial positions with duties related to the property or
employees of the entity with substantially equivalent positions and duties. Id.
Second, the Property Owner Rule falls within the ambit of Texas Rule of Evidence
701 and therefore does not relieve the owner of the requirement that a witness must
be personally familiar with the property and its fair market value, but the Property
Owner Rule creates a presumption as to both. Id.
Tom Zenner, a partner and officer of Black Diamond, testified at trial on the
market value of the fifteen lots. Zenner stated that he was responsible for Black
Diamond’s financial obligations and that he negotiated the contracts, put the
financing in place, and ran the operations for the Caceres subdivision. Zenner
testified that he was familiar with the value of the lots within the Caceres
subdivision. Because Zenner testified that he had personal knowledge of the
Caceres subdivision and was familiar with Black Diamond’s financial obligations,
he was allowed to testify on the value of the property under the Property Owner
Rule. See Walsh v. Walsh, No. 14-10-00629-CV, 2012 WL 3016845, at *4 (Tex.
App.—Houston [14th Dist.] July 24, 2012, no pet.) (mem. op.) (providing that
witness was allowed to testify under property owner rule regarding the value of
corporate property because she was “an officer in a managerial position with duties
related to the property”).
Nonetheless, such testimony must meet the same requirements as any other
opinion evidence. Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156
(Tex. 2012). The Property Owner Rule falls under Texas Rule of Evidence 701,
which allows a lay witness to provide opinion testimony if it is (a) rationally based
on the witness’s perception, and (b) helpful to a clear understanding of the
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witness’s testimony or the determination of a fact in issue. Tex. R. Evid. 701;
Justiss, 397 S.W.3d at 157. Because property owner testimony is the functional
equivalent of expert testimony, it must be judged by the same standards. Justiss,
397 S.W.3d at 159. Thus, as with expert testimony, an owner’s property valuation
may not be based solely on the owner’s ipse dixit. See id. An owner may not
simply echo the phrase “fair market value” and state a number to substantiate the
owner’s claim; the property owner must provide the factual basis on which the
opinion rests. See id. This burden is not onerous, particularly in light of the
resources available today. See id. But the valuation must be substantiated; a naked
assertion of “fair market value” is not sufficient. See id. Even if unchallenged, the
property owner’s testimony must support the verdict, and conclusory or speculative
statements do not. See id. In addition, evidence of the amount paid in the past to
purchase property, by itself, is legally insufficient to support a finding as to the
property’s market value at a later date. See Lee v. Dykes, 312 S.W.3d 191, 195−99
(Tex. App.—Houston [14th Dist.] 2010, no pet.).
At trial, Zenner testified that he was familiar with the value of the lots within
the Caceres subdivision and that he believed they were worth “in excess of
$170,000 [per lot].” In reaching this conclusion, Zenner stated that Black Diamond
originally paid $167,000 per lot in 2008 and that their homes in the Caceres
subdivision were selling very well. Zenner testified that he brought a document to
the June 1 meeting and gave it to representatives of RWH Homebuilders. The
document was admitted into evidence and provides a summary of appraisal
information regarding twenty-seven lots in the Caceres subdivision. The document
reflects that the appraisals were conducted in January and May 2011 and that the
retail appraised value for the fifteen lots was $175,000 per lot or $2,625,000 total.
Thus, Zenner’s testimony as to the value of the lots was substantiated.
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We conclude that the evidence is legally sufficient to support the trial court’s
value determination of $2.4 million for the lots.
We overrule RWH Homebuilders’s sole issue.
CONCLUSION
We conclude that the evidence is legally and factually sufficient to support
the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices McCally, Brown, and Wise.
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