Opinion
NO. 12-11-00251-CV
11-21-2012
DWAYNE GILBREATH AND PATSY GILBREATH, APPELLANTS v. MATTIE STEED AND PAT BIRMINGHAM, APPELLEES
APPEAL FROM THE 402ND
JUDICIAL DISTRICT COURT
WOOD COUNTY, TEXAS
MEMORANDUM OPINION
Dwayne Gilbreath and Patsy Gilbreath appeal the trial court's summary judgment entered in favor of Pat Birmingham. In three issues, the Gilbreaths argue that the trial court erred in granting summary judgment in Birmingham's favor, awarding damages, and awarding attorney's fees. We reverse and render.
BACKGROUND
J.W. Steed was married to Mattie Steed. During their marriage, J.W. acquired the subject property from his parents. The deed transferring the property stated, in pertinent part, as follows:
In the event that Grantee herein desires to sell the property at anytime [sic] in the future, the following named individuals, hereinafter called Optionees, shall have the first right to purchase the land: Pat Birmingham, Andy Steed, Gary Steed, Vickie James, and Jelline Steed. In the event that Grantee desires to sell the property, Grantee shall secure from a prospective buyer, which may include any of the Optionees, a written offer to purchase the property, including the amount of the purchase price. Grantee shall then give notice of said written offer to all Optionees. Any or all of the Optionees shall have the first right to purchase the property at an amount equal to, or greater than, the amount stated in the said [sic] written offer to purchase, and said Optionee shall have a period of six months in which to secure and to pay to Grantee the amount of the purchase money. Grantee shall give notice to the prospective buyer of this first right to purchase.J.W. and Mattie lived on the property, and it is undisputed that the property was their homestead. In time, Mattie's health deteriorated and she moved to a nursing home.
In late 1999, J.W. conveyed the property to his son, William, but continued to live on it. The deed from J.W. to William was recorded in December 1999. Shortly before J.W.'s death in December 2002, Birmingham discovered that J.W. had sold the property to William. On April 29, 2003, William sold the property to the Gilbreaths. The deed to the Gilbreaths was recorded on May 5, 2003.
The deed included a recital that William gave J.W. ten dollars and other good and valuable consideration in exchange for the property. Mattie was not listed as a grantor in the deed nor did she otherwise consent to the transfer.
On June 6, 2007, the Gilbreaths filed the instant suit against Mattie to determine whether Mattie had maintained a homestead right in the property. On October 9, 2007, Birmingham intervened and sought to enforce her right of first refusal. Mattie died in December 2007. Thereafter, both parties filed motions for summary judgment. The trial court granted Birmingham's traditional and no evidence motions and denied the Gilbreaths' motion. This appeal followed.
Birmingham also filed a no evidence motion for summary judgment.
SUMMARY JUDGMENT
In their first issue, the Gilbreaths argue that the trial court erred by granting summary judgment for Birmingham because her cause of action was barred by limitations. In their second issue, the Gilbreaths contend that the trial court erred in awarding "summary judgment damages." In their third issue, the Gilbreaths argue that the trial court erred in awarding attorney's fees. Standard of Review
The Gilbreaths raised the issue of limitations in their response to Birmingham's traditional motion for summary judgment. Limitations also was one of the bases for their motion for summary judgment.
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The standard for reviewing a traditional summary judgment is well established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985); First Union Nat'l Bank v. Richmont Capital Partners I, L.P., 168 S.W.3d 917, 923 (Tex. App.–Dallas 2005, no pet.). The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon, 690 S.W.2d at 548. When the movant seeks summary judgment on a claim in which the nonmovant bears the burden of proof, the movant must either negate at least one essential element of the nonmovant's cause of action or prove all essential elements of an affirmative defense. See Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). When the movant seeks summary judgment on a claim in which the movant bears the burden of proof, the movant must prove all essential elements of the claim. Winchek v. Am. Express Travel Related Servs. Co., 232 S.W.3d 197, 201 (Tex. App.–Houston [1st Dist.] 2007, no pet.). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).
Additionally, after an adequate time for discovery has passed, a party without the burden of proof at trial may move for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of its claim. See TEX. R. CIV. P. 166a(i). Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We review a no evidence motion for summary judgment under the same legal sufficiency standards as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). A no evidence motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. Id. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. Id.
In both traditional and no evidence summary judgment motions, we review the entire record de novo and in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See TEX. R. CIV. P. 166a(c). If the trial court's order does not specify the grounds on which it granted summary judgment, we affirm the trial court's ruling if any of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Moreover, when a party moves for both a traditional and a no evidence summary judgment, generally, we first review the trial court's summary judgment under the no evidence standards of Rule 166a(i); Ridgway, 135 S.W.3d at 600. If the no evidence summary judgment was properly granted, we do not reach arguments made under the traditional motion for summary judgment. See id. at 602. It logically follows, however, that this rule cannot be applied unless the same issue was raised in both motions. See Dunn v. Clairmont Tyler, LP, 271 S.W.3d 867, 870 (Tex. App.–Tyler 2008, no pet.). In this case, the limitations issue is dispositive, but was raised only the parties' respective traditional motions. See id. Therefore, we need not address Birmingham's no evidence motion for summary judgment. Applicable Law
Homestead Rights
A conveyance by a husband, not joined by his wife, of the homestead property is merely inoperative while the property continues to be homestead, or until such time as the homestead may be abandoned, or the deed ratified in accordance with law. Grissom v. Anderson, 79 S.W.2d 619, 621 (Tex. 1935). That is, the conveyance is void as to the wife's interest, and she will not be bound by the husband's conveyance of land in which she has a homestead interest. See Tolman v. Overstreet, 590 S.W.2d 635, 638 (Tex. Civ. App.–Tyler 1979, no writ).
Right of First Refusal
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 the owner decides to sell the property. Comeaux v. Suderman, 93 S.W.3d 215, 219 (Tex. App.–Houston [14th Dist.] 2002, no pet.); Riley v. Campeau Homes (Texas), Inc., 808 S.W.2d 184, 187 (Tex. App.–Houston [14th Dist.] 1991, writ dism'd by agmt.). Unlike an option contract, a right of first refusal does not give the lessee the power to compel an unwilling owner to sell. Riley, 808 S.W.2d at 187; Sanchez v. Dickinson, 551 S.W.2d 481, 484 (Tex. Civ. App.– San Antonio 1977, no writ). 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 property on the terms offered by a bona fide purchaser. Suderman, 93 S.W.3d at 219; Riley, 808 S.W.2d at 187; Sanchez, 551 S.W.2d at 486.
Statutes of Limitations
The primary purpose of statutes of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988); see also Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734–35 (2001) (citing Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996); S.V. v. R.V., 933 S.W.2d 1, 3 (Tex. 1996)). It is in society's best interest to grant repose by requiring that disputes be settled or barred within a reasonable time. Horwood, 58 S.W.3d 732, 734–35. Generally a cause of action accrues when a wrongful act causes a legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. See S.V., 933 S.W.2d at 3; see also Li v. University of Tex. Health Sci. Ctr. at Houston, 984 S.W.2d 647, 651 (Tex. App.–Houston [14th Dist.] 1998, pet. denied). The discovery rule is the legal principle which, when applicable, provides that limitations begins to run from the date the plaintiff discovers or should have discovered, in the exercise of reasonable care and diligence, the nature of the injury. See Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998); LaGloria Oil & Gas Co. v. Carboline Co., 84 S.W.3d 228, 234 (Tex. App.–Tyler 2001, pet. denied). Discovering the "nature of the injury" requires knowledge of the wrongful act and the resulting injury. See Childs, 974 S.W.2d at 40. Birmingham's Right of First Refusal and Limitations
Here, the parties agree that Birmingham's ripened right of first refusal is governed by a four year statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(1) (West 2002). Birmingham argues, however, that the limitations period was tolled because Mattie's homestead interest rendered the sale of the property "inoperative." But as set forth above, a conveyance such as this is void only as to Mattie's interest in the property. See Tolman, 590 S.W.2d at 638. Birmingham has cited no authority, nor are we aware of any, that supports her proposition that sale of homestead property without the consent of both spouses in disregard of a third party's right of first refusal tolls the limitations period on the right of first refusal once it has become ripe. Instead, Birmingham's right of first refusal ripened into an option when J.W. elected to sell the property. See Suderman, 93 S.W.3d at 220; Riley, 808 S.W.2d at 188; Sanchez, 551 S.W.2d at 484.
Assuming arguendo that the discovery rule applied under the facts at hand, the limitations period began to run, at the latest, in December 2002, when Birmingham discovered that J.W. had sold the property to William. Accordingly, the limitations period expired in December 2006. Thus, by the time the instant suit was filed in June 6, 2007, and when Birmingham intervened in October 9, 2007, Birmingham's cause of action was barred by limitations. Accordingly, we hold that the trial court erred in granting Birmingham's traditional motion for summary judgment and in denying the Gilbreaths' motion. The Gilbreaths' first, second, and third issues are sustained.
DISPOSITION
Having sustained the Gilbreaths first, second, and third issues, we reverse the trial court's judgment and render judgment that Birmingham take nothing by her suit.
SAM GRIFFITH
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
JUDGMENT
NO. 12-11-00251-CV
DWAYNE GILBREATH AND PATSY GILBREATH,
Appellants
V.
MATTIE STEED AND PAT BIRMINGHAM,
Appellees
Appeal from the 402nd Judicial District Court
of Wood County, Texas. (Tr.Ct.No. 2007-372)
THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, because it is the opinion of this court that there was error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that the judgment be reversed and judgment rendered that PAT BIRMINGHAM take nothing by her suit, and that all costs of this appeal are hereby adjudged against the Appellee, PAT BIRMINGHAM, for which let execution issue; and that this decision be certified to the court below for observance.
Sam Griffith, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.