Abel Moreno v. Kenneth W. Langston ( 2015 )

NUMBER 13-13-00003-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ABEL MORENO, Appellant,
v.
KENNETH W. LANGSTON, Appellee.
On appeal from the 267th District Court
of Jackson County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Perkes
Appellant Abel Moreno filed suit against appellee Kenneth Langston, alleging
breach of a contract for the sale of land, and sought specific performance of the contract.
Langston answered, arguing that Moreno failed to timely make payments on the contract
and that he committed waste upon the property.1 Langston also filed a counterclaim
1 In addition, Langston asserted special exceptions and several affirmative defenses including prior
material breach, waiver, estoppel, justification, and mitigation of damages.
seeking money damages and other relief.2 After Langston filed a combined no-evidence
and traditional motion for summary judgment, the trial court granted summary judgment
against Moreno, and entered judgment in favor of Langston awarding the following relief:
(1) cancelation of the Contract for Sale of Land; (2) designation of fee simple with no
encumbrances upon the property; (3) liquidated damages in the sum of $19,196.86; and
(4) attorney’s fees and court costs. By a single issue, Moreno contends the trial court
erred by granting summary judgment. We reverse and remand.
I. BACKGROUND
In January 2003, Moreno contracted with Langston to purchase 21.65 acres of
land in Jackson County, Texas. The contract obligated Moreno to pay Langston monthly
installments of four hundred dollars, payable on the 25th day of each month, and stated
in relevant part:
BUYER COVENANTS AND AGREES AS FOLLOWS:
1. To make prompt payment of said indebtedness as the same shall
become due and payable and to do and perform all of the
covenants and agreements herein imposed upon the Buyer.
2. To pay when due all taxes and assessments of every nature and
kind, inclusive of State, County, City, and School Taxes, that fall
due on said property after the date of this contract.
3. To keep the improvements on said property in good repair and
condition and not to permit or commit waste thereof and to permit
Seller, Seller’s agent or representative, to enter said premises at
all reasonable times for the purpose of inspection thereof.
4. That in the event Buyer fails to keep improvements in good repair
and condition, as aforesaid, and any sums which may be so paid
out by Seller therfor [sic] shall bear interest from the dates of such
payments at the rate of (6)% per annum and shall be paid by
2 Moreno did not file an answer to Langston’s counterclaim.
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Buyer to Seller upon written demand at the same place at which
the hereinabove mentioned installments are payable.
The contract further specified the remedy for buyer’s breach of contract:
In the event Buyer shall default in the prompt payment of said indebtedness
or shall violate or omit to perform any of the provisions of this agreement
and such default, violation or omission shall continue for a period of ten (10)
days, then in any of such events Seller may elect, Buyer expressly waiving
demand and notice, to declare the entire unpaid indebtedness, together with
all interest accrued thereon, immediately due and payable and enforce
collection thereof, or declare this contract cancelled and of no further force
and effect, and in the event Seller elects to declare this contract canceled
and of no further force and effect, all monies that have been paid to or
deposited with Seller will be forfeited and belong to Seller as liquidated
damages to compensate Seller for breach of contract and for rental and
deterioration of the property, and immediately upon this contract being
declared cancelled and of no further force and effect all the rights, claims
and interest of Buyer in and to said property shall thereupon terminate and
be at an end and the property shall unconditionally belong to the Seller.
After Langston delivered a “Notice of Eviction”, Moreno filed a breach of contract
suit alleging that he had submitted payments on the contract as agreed, but that Langston
had refused to accept his payments. Langston filed a counterpetition alleging that
Moreno breached the contract by: (1) failing to timely make his monthly payment within
ten days of May 25, 2009; and (2) committing waste on the property by burning and
burying objects on the property and allowing Brigham Oil and Gas to dump oil and gas
waste on the property.
Langston filed a combined no-evidence motion for summary judgment and
traditional motion for summary judgment. With respect to his no-evidence motion,
Langston asserted that Moreno “has no evidence to demonstrate that [he] performed
under the Contract, by tendering prompt payment for the month for May, 2009 . . .
therefore, [he] does not meet all of the elements for a breach of contract claim.” With
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respect to his traditional motion, Langston asserted that Moreno defaulted on the contract
by committing two prior material breaches of contract: (1) failing to tender prompt
payment under the Contract for the month of May, 2009; and (2) committing waste on the
property. In support of his traditional motion, Langston presented the following evidence:
(1) Langston’s affidavit; (2) a copy of the Contract for Sale; (3) a copy of Moreno’s request
to landfarm; (4) a copy of the Texas Railroad Commission’s authorization for Brigham Oil
and Gas to dump oil and gas waste on the property; and 5) Bernard T. Klimist’s affidavit
regarding attorney’s fees. Moreno filed a response, and in support thereof, Moreno
attached his affidavit claiming that he tendered payment for May 2009; denying that he
committed waste; and asserting that the land value had actually increased. The trial
court granted Langston’s motions for summary judgment without stating grounds.
II. SUMMARY JUDGMENT3
A. Applicable Law and Standards of Review
Under a traditional motion for summary judgment, the movant must establish that
no material fact issue exists and that it is entitled to judgment as a matter of law. TEX.
R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002);
Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.—Corpus Christi 2002, pet. denied).
After the movant produces evidence sufficient to show it is entitled to summary judgment,
the non-movant must then present evidence raising a fact issue. See Walker v. Harris,
3 Langston argues that Moreno failed to address the issue of waste Langston raised in his motion
for summary judgment. We disagree. Moreno’s response to Langston’s motion included a statement
from Moreno’s affidavit denying that he committed waste. Moreno also argued in the trial court as he does
in this court that “there is a fact issue as to a material fact that precludes the granting of this motion for
summary judgment.” Since Langston brought one motion for summary judgment alleging both no-
evidence and traditional grounds, we construe Moreno’s argument as responding to both summary
judgment grounds.
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924 S.W.2d 375, 377 (Tex. 1996). A no-evidence summary-judgment motion should be
granted if there is no evidence of at least one essential element of the plaintiff’s claim.
See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). All that is
required of the non-movant is to produce a scintilla of probative evidence to raise a
genuine issue of material fact on the challenged element. Forbes, Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). The burden of producing evidence
is entirely on the non-movant; if the non-movant produces evidence to raise a genuine
issue of material fact, summary judgment is improper. TEX. R. CIV. P. 166a(i).
In our de novo review of a trial court's summary judgment, we consider all the
evidence in the light most favorable to the non-movant, crediting evidence favorable to
the non-movant if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582
(Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005); Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). When an order granting summary
judgment does not specify the grounds on which summary judgment was granted, a court
may uphold the summary judgment on any ground presented in the motion. Joe v. Two
Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). If a party moves for both a
no-evidence summary judgment and a traditional summary judgment, we will first review
the trial court's judgment under the no-evidence standard. Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004).
III. PROMPT PERFORMANCE ON THE CONTRACT
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The elements of a breach of contract action are: (1) existence of a valid contract;
(2) performance or tendered performance by the plaintiff; (3) breach by the defendant;
and (4) damages sustained by the plaintiff as a result of the breach. Sauceda v. GMAC
Mortg. Corp., 268 S.W.3d 135, 140 (Tex. App.—Corpus Christi 2008, no pet.).
In his no-evidence motion, Langston only challenges the second element of
Moreno’s claim, arguing that Moreno has no evidence to demonstrate that Moreno
promptly tendered payment for May 2009. In his traditional motion, Langston submitted
an affidavit attesting that Moreno “tendered the payment due on the Contract for the
month of May 2009 on June 11, 2009. The check was not received by [Langston] . . .
until June 12, 2009. Payment was not received by [Langston] until 18 days had elapsed
from the due date of May 25, 2009.” Therefore, Moreno was required to produce a
scintilla of probative evidence to rebut Langston’s claim and testimony. See Forbes, Inc.,
124 S.W.3d at 172.
In support of his response, Moreno submitted an affidavit in which he attested that
he “made all payments to [Langston] until Mr. Langston refused to accept my payment in
May 2009.” (Emphasis added). Since the payment was not due until May 25, with a
grace period of ten days, the last day Moreno could have tendered payment for the month
of May was June 4, 2009. Resolving any doubts in favor of Moreno, we conclude from
this statement that a fact issue exists regarding whether Moreno promptly tendered
payment to Langston in May 2009. See City of Keller, 168 S.W.3d at 825. Moreno’s
affidavit creates a scintilla of probative evidence that he performed under the contract.
See Forbes, Inc., 124 S.W.3d at 172. Therefore, the trial court should have denied
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Langston’s no-evidence and traditional motions for summary judgment, wherein Langston
alleged untimeliness of payment as a breach of contract.
IV. WASTE
In addition to non-payment, Langston claims that Moreno also breached the
contract by committing waste on the property. In support of this ground in his traditional
motion for summary judgment, he presented evidence that: (1) the parties executed the
contract for sale in 2003; (2) in June 2005, Moreno requested a landfarming permit from
the Railroad Commission of Texas; (3) Brigham Oil and Gas received permission from
the Railroad Commission of Texas to landfarm 12,000 barrels of drilling mud on 20 acres
of the property. Langston also submitted an affidavit attesting that “[Moreno] burned and
buried multiple objects on the property, causing damage to the land.” The affidavit
further alleged that “[Moreno] also illegally contracted with Brigham Oil and Gas to dump
oil and gas waste on the property.” Moreno responded by affidavit by generally denying
that he committed waste and asserting that the property value actually increased.
In the landlord-tenant context, the doctrine of waste serves to protect the
landowner's reversionary interest in the property and exists only when one in possession
destroys or permanently damages the land, which causes a loss to the persons who
subsequently may be entitled to the land.4 R.C. Bowen Estate v. Continental Trailways,
256 S.W.2d 71, 72 (Tex. 1953); Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741,
753 (Tex. App.—El Paso 2000, no pet.). The doctrine of waste reflects the implicit duty
4 We treat Moreno’s interest in the land as a tenancy. See Martinez v. Daccarett, 865 S.W.2d
161, 163 (Tex. App.—Corpus Christi 1993, no pet.) (concluding that in the event of default in contract for
deed, the relationship between parties is one of landlord-tenant).
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of a tenant to exercise reasonable care to protect leased premises from injury other than
by ordinary wear and tear. Because the tenant has such a duty, its breach constitutes
waste. Id. To constitute waste, the act allegedly causing it must be wrongful. R.C.
Bowen Estate, 256 S.W.2d at 72 (defining waste as an injury to the reversionary interest
in land caused by the wrongful act of a tenant or other party rightfully in possession); see
e.g. Oldham v. Keaton, 597 S.W.2d 938, 942 (Tex. Civ. App.—Texarkana 1980, writ ref'd
n.r.e.) (holding that cause of action for waste includes unauthorized destruction or
severance of minerals on or from the land); Erickson v. Rocco, 433 S.W.2d 746, 751 (Tex.
Civ. App.—Houston [14th Dist.] 1968, writ ref'd n.r.e.) (holding that waste includes injury
resulting from a failure to exercise reasonable care in preserving the property).
To prevail in his motion for summary judgment, Langston has the burden to show
that Moreno caused permanent damage to the property as a matter of law. Langston’s
nonspecific claim that Moreno buried and burned “multiple objects” fails to show
permanent harm to the property and fails to indicate how the property was permanently
damaged. In addition, the documentary evidence of the landfarming does not indicate
whether the landfarming actually occurred; whether landfarming drilling waste caused
permanent harm to the property; and what, if any, damages to the property specifically
resulted from any alleged landfarming.5
We conclude that Langston failed to meet his burden of proof required for summary
5 While the trial court awarded liquidated damages to Langston, there is no evidence in the record
that the harm cause by Moreno’s alleged breach is incapable or difficult of estimation, and that the amount
of liquidated damages called for is a reasonable forecast of just compensation. See Stewart v. Basey, 245
S.W.2d 484 (Tex. 1952) (considering difference between enforceable liquidated damages provision and
unenforceable penalty).
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judgment. See Mowbray, 76 S.W.3d at 690. The trial court erred in granting summary
judgment for Langston on his counterclaim for breach of contract on this ground. See
Sauceda, 268 S.W.3d at 140.
V. CONCLUSION
We reverse the judgment of the trial court and remand for further proceedings
consisted with this opinion.
GREGORY T. PERKES
Justice
Delivered and filed the
11th day of June, 2015.
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