Opinion
No. 05-03-00357-CV
Opinion Filed March 29, 2004.
On Appeal from the 191st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 01-09487-J.
Affirmed.
Before BRIDGES, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
Annie M. Rolfe d/b/a Rolfe's Quality Printing sued Drs. Gosby S. and Shirley W. King for specific performance of an alleged contract for the sale of a commercial building owned by the Kings. The trial court granted summary judgment in the Kings' favor. On appeal, Rolfe asserts (1) the contract is sufficiently definite to enforce sale of the building, (2) the option provision satisfied the statute of frauds, and (3) the Kings were not entitled to summary judgment under an estoppel theory. Because the issues in this case are settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm.
The Kings leased to Rolfe commercial premises in Dallas. The lease agreement contained the following special provision:
Tenant reserves the first option to purchase said property at current market value at such time that Landlords make public notice for such sale; and tenant shall have thirty (30) days to begin and complete the necessary process for loan application to purchase said property.
In April 2001, the Kings posted "For Sale" signs on each side of the building. Six days later, Rolfe sent the Kings a letter stating, "I am serving you notice that I wish to excercise [sic] my 1st Option to Buy before you negotiate or place a contract on this building. My contract states once you place notice of intent to sale [sic], then I have the first option to buy the property. I am buying the property." Rolfe did not submit a written contract containing a price, financing terms, closing date, or other information.
In September, the Kings removed the "For Sale" signs from the building and then notified Rolfe in writing that they expected her to vacate the premises when her lease terminated October 1 and that the property was no longer for sale. Rolfe then made a written offer to purchase the property for $115,000, less the cost of reasonable and necessary repairs, and threatened legal action if the Kings did not accept the offer and enter good faith negotiations. The Kings rejected the offer, and Rolfe sued to enforce the sale of the building and for damages related to her forced hold-over tenant status.
The Kings moved for summary judgment and argued, among other things, there was no enforceable contract for the sale of real estate. In particular, the Kings asserted there was no meeting of the minds as to any material terms, including price, terms of financing, closing date or place, title insurance, inspections, prorations, or earnest money. The trial court granted the Kings' motion, and Rolfe appealed.
This Court reviews a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex. App.-Dallas 1997, pet. denied). When reviewing a traditional summary judgment, we apply well-known standards. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).
The issue in this case is not whether the lease provision is an enforceable option, or right of first refusal. Rather, Rolfe argues the option provision itself is the contract for the sale of the commercial building, and the issue is whether the provision is sufficient on its face to satisfy the statute of frauds. Rolfe argues it is. We disagree.
In the absence of equities removing the case from the statute of frauds, it is well settled that before a court will decree specific performance of a contract for the sale of land, or entertain a suit for damages for breach thereof, the written agreement or memorandum required by the statute must contain the essential terms of the contract, expressed with such certainty and clarity that it may be understood without resort to parol evidence to show the intention of the parties. Walzem Dev. Co. v. Gerfers, 487 S.W.2d 219, 222 (Tex.Civ.App.-San Antonio 1972, writ ref'd n.r.e.). It is essential to the validity of the contract that it be sufficiently certain to define the nature and extent of its obligations. Id. If an agreement is so indefinite as to make it impossible for a court to fix the legal liability of the parties thereto, it cannot constitute an enforceable contract. Id.
In her brief, Rolfe addresses only whether the term "current market value" was a sufficient price term. Even if we assumed the term was sufficiently certain to provide a price, the writing relied on by Rolfe fails to contain other terms generally associated with a contract for the sale of real estate, such as terms or manner of payment, closing date or place, title insurance, inspections, prorations, or earnest money. We conclude the absence of time and manner of payment provisions renders the writing insufficient, uncertain, and incomplete to authorize an order of specific performance. See Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614, 616 (1962) (contract providing for payment of deferred balance of purchase price in fifteen annual installments, but containing no provision for amount of installments, too indefinite and uncertain to authorize judgment of specific performance); Bean v. Holmes, 236 S.W. 120, 121 (Tex.Civ.App.-El Paso 1921, writ ref'd) (contract provision that $75,700 purchase price was "to be paid in a manner to be agreed upon by the parties at the time of the exercise of such option" rendered contract incomplete, uncertain, and insufficient to compel specific performance). There being no enforceable contract, the trial court did not err in granting summary judgment to the Kings. Our disposition of this issue precludes the need to address Rolfe's argument on estoppel. See Tex.R.App.P. 47.1.
We affirm the trial court's judgment.