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Peace v. Itcoa LLC

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 5, 2018


          On appeal from the 261st District Court of Travis County, Texas.

          Before Justices Rodriguez, Longoria, and Hinojosa


          LETICIA HINOJOSA Justice.

         Appellants 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).[2] 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.

         I. Background[3]

         The 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:

         (Image Omitted)

         Hovis 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.

         According 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, which stated:

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 . . . .

         The 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 ever happen.
Could be to your advantage, but nonetheless wanted you to know.
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.

         After 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 ...

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