Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Caron v. Smaby

Court of Appeals of Texas, First District

June 8, 2017

ROBERT CARON AND SUJATA KIMBERLY CARON, Appellants
v.
STEPHEN A. SMABY AND SHELLEY L. GREENE, Appellees

         On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2014-18651

          Panel consists of Chief Justice Radack and Justices Jennings and Bland.

          MEMORANDUM OPINION

          Terry Jennings Justice.

         Appellants, Robert Caron and Sujata Kimberly Caron (collectively, the "Carons"), challenge the trial court's judgment, entered after the trial court granted a series of summary judgments, in favor of appellees, Stephen A. Smaby and Shelley L. Greene (collectively, the "Smabys"), on the Carons' claims for breach of contract and specific performance and the Smabys' counterclaims for breach of contract. The Carons further challenge the trial court's January discovery order imposing death penalty sanctions against them.[1] In four issues, the Carons contend that the trial court erred in granting the Smabys summary judgment and imposing death penalty sanctions against them.

         We affirm.

         Background

         In their first amended petition, the Carons alleged that on October 9, 2013, they and the Smabys entered into "an executory contract for deed" (the "Contract for Sale") and "[a] concurrent rental agreement" (the "Lease Agreement") for real property located at 10243 Pineland Drive, Harris County, Texas (the "property"). Pursuant to the terms of the Contract for Sale, the Carons were to make a payment of $50, 000 to the Smabys by January 15, 2014. Although the Carons attempted to wire the Smabys payment on that date, they, due to problems with their bank's computer system, were not able to make the required payment on time. When the Carons then sought to modify the parties' agreement to allow the deadline for the $50, 000 payment to be extended "by a day or two so as to not cause [the Carons] to be liable for any breach, " the Smabys refused their request, "improperly attempted to rescind the [parties'] contract, " and "sought to have [the Carons] evicted from [the property] for failure to pay rent." The Carons brought claims against the Smabys for breach of contract, specific performance, and trespass to try title.

         The Smabys answered, generally denying the Carons' allegations and asserting various affirmative defenses and counterclaims for breach of the Contract for Sale and breach of the Lease Agreement.[2] In their first amended answer and counterclaim, the Smabys alleged that they and the Carons entered into the Lease Agreement on October 9, 2013. The rental term of the Lease Agreement began on October 9, 2013 and was to end on July 15, 2014. The parties executed the Contract for Sale on October 10, 2013.

         Under the terms of the Contract for Sale, the Carons were to close on the sale of the property no later than January 15, 2014. However, if the Carons wished to extend the closing date until April 15, 2014, they had the option to do so, provided that they paid $50, 000 to the Smabys by January 15, 2014. The Carons also had the option to extend the closing date beyond April 15, 2014 to July 15, 2014, i.e., the final closing date, if they paid the Smabys an additional $100, 000 by April 15, 2014.

         According to the Smabys, the Carons did not close on the sale of the property by January 15, 2014, and they did not pay the additional monies required to extend the closing date. Thus, the Smabys terminated the Contract for Sale. They also terminated the Lease Agreement because the Carons did not make any rental payments in accordance with the parties' agreement after January 2014. On March 21, 2014, after the Carons had "refused to leave the [p]roperty, " the Smabys "obtain[ed] an order of eviction" and a writ of possession.

         The Carons then filed the instant suit against the Smabys, "seeking injunctive relief that would restrain [the Smabys] from enforcing the [w]rit of [p]ossession order on the [p]roperty." On May 13, 2014, the trial court granted the Carons a temporary injunction, allowing them to avoid eviction and continue to live in the property.[3] Under the terms of the trial court's temporary injunction, the Carons were required to pay into the trial court's registry, no later than May 19, 2014, the $150, 000 payment "required under the Contract [for] Sale to extend the January 15, 2014 closing date to July 15, 2014." (Emphasis omitted.) The Carons were also required to pay "all arrears in both rental payments and accrued taxes on the [p]roperty ($30, 900.00) by the same deadline." And they were ordered to pay the Smabys $10, 300 on or before the fifth day of each month after May 19, 2014, "as an ongoing monthly rental and tax fee."

         The Smabys further alleged that the Carons never made any of the payments required by the trial court's temporary injunction, and the trial court, on June 16, 2014, dissolved the temporary injunction and ordered the Carons to immediately vacate the property.[4] The Carons then "ignored the [trial court's] [v]acate [o]rder, " and the Smabys "set a show cause hearing [on July 28, 2014] to determine whether the [Carons] should be held in contempt of court." After the hearing, the trial court concluded that the Carons had "chose[n] to deliberately and inexcusably to violate the [v]acate [o]rder by remaining in possession of the [p]roperty." And the trial court again ordered the Carons to vacate the property, which they did on August 1, 2014.

         Subsequently, the Smabys moved for partial summary judgment on the Carons' claim for breach of the Contract for Sale, arguing that they were entitled to judgment as a matter of law because they had "pleaded the affirmative defense of [b]reach of [c]ontract" and the Contract for Sale was a valid, enforceable contract; the Smabys were parties to the Contract for Sale; the Smabys performed on the Contract for Sale by having the property available for sale pursuant to the terms of the parties' agreement; the Carons breached the Contract for Sale by not closing on the sale of the property on or before January 15, 2014, or alternatively, by not making the additional payments required to extend the closing date; and the Smabys suffered damages as a result of the Carons' breach. The Smabys also moved for partial summary judgment on the Carons' claim for specific performance, arguing that they were entitled to judgment as a matter of law because the Carons had not performed on the Contract of Sale, which they were required to do in order to seek specific performance. On November 4, 2014, the trial court granted the Smabys summary judgment, ordering that the Carons "take nothing on their claims of specific performance and breach of contract" against the Smabys. (Emphasis omitted.)

         The Smabys also moved for partial summary judgment on their own counterclaims for breach of the Contract for Sale and breach of the Lease Agreement, arguing that they were entitled to judgment as a matter of law because the Contract for Sale and the Lease Agreement were valid, enforceable contracts; the Smabys were parties to the Contract for Sale and the Lease Agreement and performed on the Contract for Sale and Lease Agreement by having the property available for lease and sale pursuant to the agreements; the Carons breached the Contract for Sale and the Lease Agreement by not "making the required monetary payments"; and the Smabys suffered damages in the amount of $309, 115.68. On December 15, 2014, the trial court granted the Smabys summary judgment on their breach-of-contract counterclaims and ordered the Carons to pay $176, 715.68 on the Smabys' counterclaim for breach of the Contract for Sale and $132, 400 on the Smabys' counterclaim for breach of the Lease Agreement.

         During the course of the parties' litigation, the Smabys also moved to compel discovery after the Carons had not responded to their requests for disclosure, interrogatories, and requests for production of documents. On September 22, 2014, the trial court ordered (the "September discovery order") the Carons, by October 6, 2014, to "fully and completely produce . . . all responsive documents to [the Smabys'] Production Request[s], " "fully and completely respond to [the Smabys'] Interrogatories, " and "fully and completely respond to [the Smabys'] Disclosure Requests." The trial court also imposed a $500 sanction against the Carons, which they were required to pay to the Smabys by October 6, 2014.

         After the Carons did not comply with the trial court's September discovery order, the Smabys again moved to compel discovery and for sanctions. On October 28, 2014, the trial court ordered (the "October discovery order") the Carons, by November 10, 2014, to comply with its September discovery order and pay an additional $1, 000 sanction to the Smabys. In doing so, the trial court found that the Carons had "repeatedly violated [the trial] [c]ourt['s] orders, the latest being th[e] [trial] [c]ourt's Discovery Order of September 22, 2014, " previously violated the terms of the trial court's temporary injunction, ignored the trial court's order to vacate the property, and "engaged in a pattern of abuse not only in th[e] [trial] [c]ourt but [also] in the 129th District Court of Harris County, Texas[, ] wherein that court applied death penalty sanctions [because of the Carons'] repeated failure to abide by the court's discovery orders." (Emphasis omitted.)

         After the Carons failed to comply with the trial court's October discovery order, the Smabys moved to strike and for sanctions, requesting that the trial court "strik[e] [the Carons'] claims against [them], not allow[] [the Carons] to assert [any] defenses to [the Smabys'] claims . . ., and assess[] reasonable and necessary attorney['s] fees." On January 12, 2015, the trial court ordered (the "January discovery order") the Carons' pleadings to be struck and their claims against the Smabys to be dismissed with prejudice. The trial court's order further "precluded" the Carons "from alleging, supporting or opposing any designated claims or defenses" and "prohibited" them "from introducing any evidence on such designated matters." And the trial court ordered the Carons to pay the attorney's fees incurred by the Smabys. In doing so, the trial court found that the Carons had "repeatedly violated [the trial] [c]ourt['s] orders, the latest being th[e] [trial] [c]ourt's Discovery Order of October 28, 2014, " and their deliberate decision to ignore the October discovery order, as well as the trial court's previous orders, indicated that "no lesser sanctions would promote compliance." (Emphasis omitted.) Further, the trial court found that the Carons "should not be allowed to benefit from their deliberate misconduct, " their "pattern of abuse . . . justif[ied] striking [their] pleadings and entering an order refusing to allow [them] to assert any claims against [the Smabys] or oppose [the Smabys'] claims, " and the "continued pattern of abuse exemplified by [the Carons'] blatant disregard of the discovery process and [the trial] [c]ourt['s] orders . . . justifie[d] the presumption that [their] claims ha[d] absolutely no merit." Finally, the trial court found that at the time that it issued the January discovery order, the Carons were "pro se [p]laintiffs" who "ha[d] not complied with the [trial] [c]ourt's discovery orders" and "continued to fail to assist their next potential attorney . . . in answering discovery."

         Following the trial court's January discovery order, the Smabys moved for a final summary judgment, asserting that the only issue remaining for the trial court to decide was the amount of reasonable and necessary attorney's fees incurred by them. On March 10, 2015, the trial court entered its final judgment, ordering that the Smabys recover on their breach-of-contract counterclaims a total $309, 115.68 in actual damages and $68, 400 in attorney's fees, in addition to the $1, 500 in sanctions that the trial court had previously ordered the Carons to pay. The trial court also ordered that the Carons take nothing on their claims against the Smabys and all of the Carons' claims against the Smabys to be dismissed with prejudice.

         Breach-of-Contract Counterclaims

         In their second issue, the Carons argue that the trial court erred in granting the Smabys summary judgment on their counterclaims for breach of the Contract for Sale and breach of the Lease Agreement because the Smabys did not "prove as a matter of law that the Carons were in breach of the Contract for Sale" or the Lease Agreement. See Tex. R. Civ. P. 166a(c).

         We review a trial court's granting of a summary judgment de novo. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009). To prevail on a summary-judgment motion, a movant has the burden of proving that it is entitled to summary judgment as a matter of law and there is no genuine issue of material fact. Tex.R.Civ.P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a party moves for summary judgment on its own claim, it must establish its right to summary judgment by conclusively proving all the elements of its cause of action as a matter of law. Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999); Anglo-Dutch Petroleum Int'l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). Once the movant produces sufficient evidence to establish its right to summary judgment, the burden shifts to the non-movant to come forward with competent controverting evidence that raises a fact issue. See Van v. Peña, 990 S.W.2d 751, 753 (Tex. 1999). A genuine issue of fact arises if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We indulge every reasonable inference and resolve any doubts in the non-movant's favor. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When a trial court's judgment does not specify the grounds upon which the trial court relied in granting it, we must affirm "if any of the summary judgment grounds are meritorious." FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).

         Breach of Contract for Sale

         In a portion of their second issue, the Carons argue that the trial court erred in granting the Smabys summary judgment on their counterclaim for breach of the Contract for Sale because "[t]he Smabys did not prove that they were ready, willing and able to close the transaction and convey marketable title to the Carons" and "the Smabys['] proof that the Carons failed to close [on the sale of the property] on a particular date did not prove that the Carons were in breach of [the] contract."

         The elements of a valid contract are: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 236 (Tex. App.-Houston [1st Dist.] 2008, no pet.). To be enforceable, a contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the parties. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). To be entitled to summary judgment on their counterclaim for breach of the Contract for Sale, the Smabys were required to prove, as a matter of law, the following essential elements: (1) the existence of a valid contract; (2) performance or tendered performance by them; (3) breach of the Contract for Sale by the Carons; and (4) damages sustained as a result of the Carons' breach. See B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.-Houston [1st Dist.] 2009, pet. denied); Winchek v. Am. Ex. Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.-Houston [1st Dist.] 2007, no pet.).

         In their summary-judgment motion, the Smabys argued that they were entitled to summary judgment as a matter of law on their counterclaim for breach of the Contract for Sale because the Contract for Sale was a valid, enforceable contract; the Smabys performed on the Contract for Sale by having the property available for sale pursuant to the parties' agreement; the Carons breached the Contract for Sale by not paying the accrued property taxes and by not closing on the sale of the property by January 15, 2014, or alternatively by not timely paying the additional monies required to extend the closing date; and the Smabys suffered damages in the amount of $176, 715.68 as a result of the Carons' breaches.

         The Smabys attached to their motion the affidavit of Greene, who testified that on October 10, 2013, the Carons and the Smabys entered into the Contract for Sale. Section 11 of the Contract for Sale "contemplated an initial closing date of January 15, 2014" for the sale of the property. (Emphasis omitted.) However, the Carons had "the option to extend the closing date to April 15, 2014" if they paid the Smabys $50, 000 by January 15, 2014. (Emphasis omitted.) The Carons also had the option to extend the closing date beyond April 15, 2014 to July 15, 2014, i.e., the "final date for [c]losing on the [p]roperty, " if they paid the Smabys an additional $100, 000.

         Greene further testified that the Smabys "made the [p]roperty available to [the Carons] pursuant to the . . . Contract for Sale and were ready, willing and able to close on the sale of the [p]roperty to [the Carons] pursuant to the Contract [for] Sale on the First Closing Date of January 15, 2014." (Emphasis omitted.) However, the Carons "did not close on [the sale of the property on that date] nor did they pay [the Smabys] the additional $50, 000.00 . . . required under [s]ection 11 of the Contract for Sale to extend the closing period beyond January 15, 2014." (Emphasis omitted.) Further, the Carons "failed to close ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.