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Jetall Companies, Inc. v. Dyke

Court of Appeals of Texas, Fourteenth District

May 14, 2019

JETALL COMPANIES, INC., Appellant
v.
GENE VAN DYKE AND ASTRID VAN DYKE, Appellees

          On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 2018-77552

          Panel consists of Justices Christopher, Hassan, and Poissant.

          MEMORANDUM OPINION

          Margaret "Meg" Poissant, Justice

         This interlocutory appeal arises from the trial court's order denying appellant Jetall Companies, Inc.'s ("Jetall") motion to dismiss filed pursuant to the Texas Citizens Participation Act ("TCPA")[1] and order overruling objections to TCPA evidence.[2] We reverse and render in part, and remand in part.

         I. Background

         Appellees Gene Van Dyke and Astrid Van Dyke (Van Dykes) live in a home in Houston, Harris County, Texas (the "Property"). The Van Dykes placed their home on the market for sale. On February 4, 2018, the Van Dykes executed a contract (the "Contract") for the sale of the Property. The Contract was an option contract between the Van Dykes, as sellers, and Jetall, as buyer. The terms of the Contract did not give Jetall an exclusive option to purchase. The Contract identified May 5, 2018, as the termination option deadline and June 4, 2018, as the closing date.

         Thereafter, the parties executed a series of amendments over the next few months, which served to extend either the termination option period or closing date or both. On August 6, 2018, the Van Dykes and Jetall executed the fourth amendment to the Contract, which extended the closing date from August 6, 2018, to August 13, 2018. On August 13, 2018, the Van Dykes traveled to the title company and closed the transaction by signing all necessary documents. Jetall, however, did not close the transaction. Instead, Jetall asked the Van Dykes to extend Jetall's closing date until August 17, 2018. The Van Dykes agreed and the parties executed the fifth and final amendment to the Contract, which extended Jetall's closing date.

         On August 17, 2018, Jetall did not appear for the closing, did not tender the purchase price to the Van Dykes or the escrow agent, and did not execute any closing documents. According to the Van Dykes, Jetall never performed its obligations under the Contract, and no conveyance of the Property ever occurred.

         Unbeknownst to the Van Dykes, on August 17, 2018, instead of closing on the Property, Ali Choudhri, President of Jetall, filed with the Harris County Clerk Real Property Records the following:

Affidavit and Memorandum of Contract to Purchase Real Estate
Grantor: GENE VAN DYKE, ASTRID VAN DYKE
Grantee: JETALL COMPANIES INC. AND/OR ASSIGNS
Property Address: 2940 Inverness Drive, Houston, Harris County, Texas 77019
Legal: Lot 2, Block 92, TRS 2B-2 & 2C of Tall Timbers Section of River Oaks
Be the world hereby appraised that I/we (Grantee) have an exclusive option to purchase the real property legally described above as Property, through a contract entered into by and between Grantor, and Grantee. Anyone dealing in and with the subject property shall contact Grantee at 1001 West Loop South, Suite 700, Houston, Texas 77027 or 713-789-7654 regarding the terms of the option to purchase and the parties' respective rights thereunder.[3]

         On October 24, 2018, Walter Bering (licensed real estate broker for the Van Dykes) sent by email a Notice of Seller Termination of Contract and Request for the Release of Earnest Money to Jetall and the escrow agent at Transact Title.

         On October 25, 2018, Jetall filed a lawsuit against the Van Dykes, alleging claims for breach of contract, fraud and fraudulent inducement, and fraud in a real estate transaction. Jetall requested its attorney's fees. Jetall alleged in its petition that the Van Dykes "refused to cooperate with Plaintiff to finalize the sale."

         On November 26, 2018, the Van Dykes filed their Original Answer, including a general denial as well as "Verified Denial, Affirmative Defenses, and other Pleas and Claims." In Paragraph 16 of their Answer, the Van Dykes assert the following:

The Van Dykes also seek recovery of all their costs, damages and attorneys' fees. Plaintiff fraudulently filed a cloud on the Van Dykes' property, located at 3940 Inverness Drive, Houston, Harris County, Texas 77019 (the "Inverness Property"). The Van Dykes own the Inverness Property in fee simple title. Plaintiff fraudulently filed a lis pendens in the Harris County Real Property Records under Harris County Clerk's file no. RP-2018-377709 (the "Memorandum"), for the sole purpose of creating a cloud on title to the Inverness Property. The filing of the Memorandum constitutes a violation of TEX. CIV. PRAC. & REM. CODE § 12.001, et seq. Plaintiff had no legal right to file the Memorandum in the Harris County Real Property Records. At the time the Memorandum was filed in the Harris County Real Property Records, Plaintiff knew or should have known that the recorded document was fraudulent, as described by § 51.901 (c) of the Texas Government Code. Plaintiff knew or should have known that it had no probable right of recovery against the Van Dykes at the time it filed the Memorandum. Accordingly, the Van Dykes request that the Court expunge the Memorandum, order it cancelled and removed as a cloud on the Van Dykes' Inverness Property, as well as award them all their attorney's fees, costs, damages and any other remedies permitted under TEX. Civ. PRAC. & REM. CODE § 12.006, and as per the terms of the subject Contract.

         Additionally, in their conclusion of the Answer, the Van Dykes request the trial court:

. . .cancel and expunge plaintiffs (sic) Memorandum from the Real Property Records of Harris County, Texas, as a fraudulent or wrongful lis pendens or cloud on the Van Dykes' Inverness Property, and award the Van Dykes judgment against Plaintiff for ...

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