APPEAL FROM THE 241ST APPELLANT JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS
The opinion of the court was delivered by: J Ames T. W Orthen Chief Justice
Ben Jarvis appeals the summary judgment granted in favor of Robert J. Peltier, Sr. and Calvin C. Smith. In two issues, Jarvis contends the trial court improperly granted Peltier's and Smith's motions for summary judgment and denied Jarvis's competing motion for summary judgment. We reverse, render in part, and remand in part.
Jarvis and Smith were cotenants in a twelve acre tract in Smith County, with Jarvis owning an undivided two-thirds interest and Smith owning an undivided one-third interest. Jarvis owned two acres in fee simple adjoining the east side of the twelve acre tract that he and Smith jointly owned. Jarvis proposed to Smith that they partition the twelve acre tract, with Jarvis receiving the eight contiguous acres adjoining his two acre tract, and Smith receiving the four westernmost acres. Jarvis also informed Smith that if they could not reach an agreement, he planned to ask the court to divide the property for them.
Smith made a counterproposal to Jarvis that he would partition the twelve acre tract without going to court if he could have the middle four acres of the tract. Jarvis would then have the western four acres as well as the eastern four acres of the tract. Smith explained that he wanted the middle four acres because he had already been farming that tract. Jarvis accepted Smith's proposal with the condition that he be given an "option" to purchase Smith's four acre tract if and when Smith decided to sell it.
On March 11, 1998, Jarvis and Smith exchanged deeds to carry out their partition agreement. Additionally, on the same day, Smith signed the following document:*fn1
THE STATE OF TEXAS COUNTY OF SMITH
For and in consideration of the premises and a part of the consideration of the partition deed this date executed by Ben E. Jarvis and myself. [sic] I have granted and do hereby gran[t] unto Ben E. Jarvis an option to purchase the 4.041 acre tract in the T. Coulter Survey, Smith County, Texas which was set aside to me by deed from Ben E. Jarvis.
The terms of the option are that if I desire to sell the property and I have an offer I would accept, I will submit the offer to Ben E. Jarvis, who shall have thirty days from the date of the submission of the offer to accept. If he does not accept within said 30 day period, I will complete the sale to the other party who made the offer.
Dated this the 11th day of March 1998.
/s/ Calvin C. Smith CALVIN C. SMITH
THE STATE OF TEXAS COUNTY OF SMITH
This instrument was acknowledged before me on this the 11th day of March, 1998 by CALVIN C. SMITH.
(NOTARY SEAL) /s/ Tara L. Nowlin Notary of Public, State of Texas
On December 17, 2007, Smith entered into a contract of sale with Peltier in which he agreed to sell his four acre tract to Peltier for $80,000.00. Peltier received a title policy commitment issued by First American Title Insurance showing on its Schedule B as an exception from coverage the "[t]erms of that certain option by and between Calvin C. Smith and Ben E. Jarvis as recorded in volume 5039, page 22, Official Public Records, Smith County, Texas." On January 17, 2008, Smith executed a deed conveying the property to Peltier for $80,000.00.
In late January 2010, Jarvis learned that Smith had sold the four acre tract to Peltier. He immediately sent both the following letter:
Mr. Calvin C. Smith 819 Lyons Ave. Tyler, Texas 75701
Mr. Robert J. Peltier, Sr. P. O. Box 7028 Tyler, Texas 75711
Re: 4.037 acres, Tobias Coulter Survey
This last week we discovered that Calvin C. Smith and wife, Jimmye Ruth Smith executed a deed to Robert J. Peltier, Sr. dated January 14, 2008, covering 4.037 acres in the Tobias Coulter Survey, A-199 Smith County, Texas.
Attached hereto is a copy of the Option from Calvin C. Smith to me dated March 11, 1998 as recorded in Volume 5039, Page 22 of the Smith County Official Records.
This was the first notice I have had of the above mentioned deed.
I have talked to Mr. Peltier regarding the price he paid to Mr. Smith. He declined to tell me the sales price.
It would be appreciated of [sic] both of you would contact me regarding this matter. At this time, I would like to exorcise [sic] the option.
I will need a copy of the cancelled check, closing statement and title policy before declining or accepting any offer.
If I do not receive the information requested within 10 days from your receipt of this letter, I will forward this to my attorney with ...