Glenn R. Dexter v. Reisel R. Strickland and Bobbie Sue Strickland ( 2010 )

MEMORANDUM OPINION
No. 04-09-00459-CV
Glenn R. DEXTER,
Appellant
v.
Reisel R. STRICKLAND and Bobbie Sue Strickland,
Appellees
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 08-07-0443-CVW
Honorable Donna S. Rayes, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: September 15, 2010
AFFIRMED IN PART, REVERSED AND REMANDED IN PART
This is an appeal from a take-nothing no-evidence summary judgment rendered in favor
of the appellees on all of appellant’s claims. Because the summary judgment granted more relief
than was requested, we affirm in part and reverse and remand in part.
BACKGROUND
Appellant, Glenn Dexter, was the owner of a tract of land in Wilson County, Texas. In
2004, the Floresville Independent School District and Wilson County obtained a judgment
04-09-00459-CV
against Dexter for unpaid taxes on the property. The property was later sold at a public auction
to Gus Brieden. Pursuant to his rights under the Texas Tax Code, Dexter expressed his desire to
redeem the property; however, he lacked the funds to pay the redemption amount of $23,375.11
to Brieden. To accomplish the redemption of the property, Dexter entered into an agreement
with the appellees, Reisel and Bobbie Sue Strickland, under which the Stricklands would deliver
the $23,375.11 to Brieden in exchange for Brieden executing a Cash Warranty Deed that
conveyed a life estate to Dexter and the remainder estate to the Stricklands. Under the Cash
Warranty Deed, Dexter had the right to receive the rents, revenues, and profits from the property
for and during his natural life on the condition he pay one-half of all ad valorem taxes during the
term of his life estate.
Dexter and the Stricklands also executed an Option to Purchase Real Estate that gave
Dexter an option to purchase the property from the Stricklands under the following conditions:
The Option may be exercised by written notice to [the Stricklands] of the
Remainder Interests by [Dexter] at any time prior to the end of the [one-year
option] period and the Payment of the sum of [$23,375.11] prior to the end of the
option period.
After receipt of the cash consideration, the [Stricklands] shall deliver a
Cash Warranty Deed to [Dexter].
Within the year, Dexter gave the Stricklands written notice of his intent to purchase the
property. In his written notice, Dexter stated
. . . I have on hand a cashier’s check to Reisel Strickland for the full and
final payment of [$23,375.11] and a receipt for payment of the current year taxes
in the amount of [$1,411.57].
After receipt of the cash consideration, you Reisel Strickland . . . shall
deliver the cash warranty deed to [Dexter].
Dexter did not include the cashier’s check with the written notice, and the Stricklands did
not convey the warranty deed to Dexter. About two years later, Dexter filed suit against the
Stricklands for breach of contract and failure to perform under the Cash Warranty Deed and the
-2-
04-09-00459-CV
Option to Purchase Real Estate. The Stricklands filed a no-evidence motion for summary
judgment on the grounds that there was no evidence Dexter paid the sum of $23,375.11 to the
Stricklands prior to the end of the option period. The Stricklands argued that Dexter’s partial
performance of the Option to Purchase Real Estate—giving notice he had a check—did not give
rise to any duty on their part to perform their obligation under the agreement. The trial court
granted the Stricklands’ motion and Dexter now appeals.
GROUNDS FOR SUMMARY JUDGMENT
Language in a summary judgment that expressly disposes of all claims and parties is a
final and appealable order “even though the record does not provide an adequate basis for
rendition of judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). “[I]f a
defendant moves for summary judgment on only one of [multiple] claims asserted by the
plaintiff, but the trial court renders judgment that the plaintiff take nothing on all claims asserted,
the judgment is final—erroneous, but final.” Id. Here, the Stricklands did not move for
summary judgment on Dexter’s claim that they breached the Cash Warranty Deed by failing to
pay him rents and their share of the taxes. Nevertheless, the trial court rendered a summary
judgment in favor of the Stricklands in which the trial court dismissed Dexter’s “original,
supplemental, and amended petitions” and adjudged that Dexter take nothing on his claims.
Accordingly, the trial court’s judgment was a final judgment encompassing all of Dexter’s
claims; but because Dexter’s claim that the Stricklands breached the Cash Warranty Deed was
not addressed in the Strickland’s motion, summary judgment on that claim was erroneous. Id.
When a trial court grants more relief than requested and, as a consequence, makes an
otherwise partial summary judgment final, that judgment, although erroneous, is final and
appealable. Lehmann, 39 S.W.3d at 202, 205-06. In that situation, a court of appeals must
-3-
04-09-00459-CV
consider all matters raised on appeal and reverse only those portions of the judgment that were
rendered in error. Page v. Geller, 941 S.W.2d 101, 102 (Tex. 1997). Accordingly, we reverse
the trial court’s judgment in favor of the Stricklands on Dexter’s claim that the Stricklands
breached the Cash Warranty Deed and remand that claim to the trial court for further
proceedings. We next consider the merits of the remaining claim.
OPTION TO PURCHASE REAL ESTATE
In response to the Strickland’s no-evidence motion on the Option to Purchase Real
Estate, Dexter filed an affidavit in which he attested to various complaints regarding failure to
pay taxes, failure to pay rents, and damage to the property allegedly caused by the Stricklands.
His affidavit did not address his failure to pay the sum of $23,375.11 to the Stricklands prior to
the end of the option period. Dexter later filed a second response to the motion for summary
judgment; however, at the summary judgment hearing, the Stricklands objected to the response
as untimely. The trial court sustained the objection on the record and stated it would only
consider Dexter’s affidavit as his summary judgment response. On appeal, Dexter does not
challenge this ruling.
A no-evidence summary judgment motion is properly granted when the non-movant fails
to bring forth more than a scintilla of probative evidence that raises a genuine issue of material
fact. Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App.—San Antonio 1999,
no pet.); TEX. R. CIV. P. 166a(i). More than a scintilla of evidence exists if the evidence would
allow reasonable and fair-minded people to differ in their conclusions. Forbes, Inc. v. Granada
Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence exists if
the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id.
Because Dexter did not present more than a scintilla of evidence as to the elements of his breach
-4-
04-09-00459-CV
of the Option to Purchase Real Estate, the trial court did not err in rendering a take-nothing
summary judgment in favor of the Stricklands on this claim.
CONCLUSION
We reverse the trial court’s summary judgment in favor of the Stricklands on Dexter’s
claim that the Stricklands breached the Cash Warranty Deed and remand that claim to the trial
court for further proceedings. The summary judgment is affirmed in all other respects.
Sandee Bryan Marion, Justice
-5-