Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 261st District Court of Travis County, Texas.
Justices Rodriguez, Longoria, and Hinojosa
MEMORANDUM OPINION 
LETICIA HINOJOSA Justice.
Jeffery Peace and Caroline Peace, the purchasers of real
estate in the City of Westlake Hills, Texas (the City),
appeal from a final judgment providing that they take-nothing
from appellees Independence Title Company (ITC), Mona
McMahan, and Wm. Brian McMahan, P.C. (collectively the
McMahans). In two issues, the Peaces complain that
the trial court erred in (1) granting the motions for summary
judgment, advanced on no-evidence and traditional grounds,
filed by ITC and the McMahans; and (2) denying their motion
for partial summary judgment. We affirm.
facts of this case are largely undisputed and generally begin
with an oral promise to the City by Amy Hovis to donate a
fifteen foot right-of-way for expansion of a roadway from
property that Hovis later sold to the Peaces for $635, 000
and which is the subject of this suit on appeal. The
summary-judgment record reveals that the City agreed to
partition Hovis's single lot into two lots in exchange
for Hovis's donation. The outline of this agreement was
written in the minutes of an August 20, 2011 city council
meeting. Approximately a month later, the City partitioned
the lots by filing a plat vacation with the Travis County
Clerk. The partition created two parcels of land that face
opposite roads-101 McConnell Drive and 102 Westhaven Drive. A
drawing of the property provided by the Peaces' in their
summary-judgment response depicts the following:
never reduced her oral donation offer to writing. Instead,
Hovis entered an agreement to sell the property to the Peaces
for $635, 000, without first transferring the right-of-way.
to the summary-judgment evidence, Hovis, ITC, and the
McMahans did not inform the Peaces of the right-of-way
agreement before they closed on the property. Nevertheless,
during the purchase-option period, the Peaces were made aware
of the possibility of a roadway expansion. On October 19,
2011, Hovis's real estate agent forwarded to the Peaces
an email message from Jean Goehring, Hovis's husband,
I know that title and survey review period begins today, and
I wanted to pass [on] a drawing that I prepared to illustrate
for Jeff and Carrie [Peace] a proposed right of way for 101
McConnell in the event of a possible expansion of Bee Cave.
The expansion of Cave Rd. has been discussed for the past 15
or so years and would require the acquisition of right of way
for the entire length of Bee Cave Rd.-including the dozens of
commercial owners. This was discussed when we acquired 101
Westhaven and 102 Westhaven and when Chris and Gerri bought
100 Westhaven. Any expansion would also require the consent
of the other 3 residential property owners adjacent to 101
and all have said no. No building setbacks would be affected
and we are really talking about a few feet inside the steel
fence that is currently there. If Jeff has any questions,
please have him call me at the number below . . . .
As you know, I'm currently on City Council and can share
any past or present info on this . . . .
uncontroverted summary-judgment evidence revealed that the
day before closing, Hovis's real estate agent again
informed the Peaces of the possible roadway expansion,
directly writing to them:
Congrats on your imminent two closings tomorrow. I left you a
voicemail today Jeff [Peace] regarding this "right of
way" outlined in the email sent 10/19 on the McConnell
lot. (see attached survey)
Apparently, it's not in writing anywhere (nor recorded)
with the city of Westlake (the red lines drawn on survey.)
There may be a time they attempt to put it in writing with
you the new owner, but don't know when or if that will
Could be to your advantage, but nonetheless wanted you to
Amy signed her paperwork today, so it'll just be a matter
of funding tomorrow.
Look forward to seeing you both once you're down here.
Call at anytime if you need me.
the sale, according to the summary-judgment evidence, the
City sought to have the Peaces effectuate Hovis's oral
promise; the Peaces declined the City's request. On
October 23, 2012, the City's mayor wrote to the Peaces,
recounting the following:
Please sign the enclosed Right of Way Warranty, have them
notarized, and return them to City Planner Davin Fillpot at
City Hall at 911 Westlake Drive. (The City offers ...