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Allen v. Irwin

Court of Appeals of Texas, Third District, Austin

June 5, 2019

Janice Su Allen, Individually and as Trustee of the Eagle Pass Living Trust, Appellant
v.
James Irwin, Appellee

          FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-16-001369, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING

          Before Justices Baker, Triana, and Smith

          MEMORANDUM OPINION

          Thomas J. Baker, Justice.

         Janice Su Allen, individually and as trustee of the Eagle Pass Living Trust, appeals a trial court judgment granting James Irwin's request for specific performance of a real estate contract pursuant to which James Anglim agreed to convey to him property located in Travis County. We will affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On December 23, 2015, Irwin and Anglim executed a Texas Association of Realtors form Commercial Contract-Improved Property (the Irwin Contract) pursuant to which Anglim agreed to sell and convey to Irwin property located at 3717 North Ranch Road 620 in Travis County (the Property). The contract contained the following provision:

Feasibility Period: Buyer may terminate this contract for any reason within 90 days after the effective date (feasibility period) by providing Seller written notice of termination.

         The Irwin contract was first escrowed at First American Title Company, and Irwin placed $1, 000 as earnest money in escrow with that title company. Later, Irwin changed title companies and escrowed the Irwin Contract at Independence Title Company, placing $1, 000 as earnest money in escrow with that title company. Additionally, Irwin paid $1, 000 directly to Anglim.

         In January 2016, during the Irwin Contract's feasibility period, Anglim and Allen, as representative of the Eagle Pass Living Trust, entered into a contract to sell the Property to Allen, acting for the Trust (the Allen I Contract). The Allen I Contract was escrowed at Gracy Title Company. When Allen executed the Allen I Contract, she knew of the Irwin Contract.[1]

         On January 25, 2016, Anglim signed a Commercial Contract Termination Notice, which a realtor acquaintance of Allen's had prepared, in which Anglim purported to terminate the Irwin Contract. Allen delivered the Termination Notice to Independence Title Company that day. A representative of Independence Title Company then called Irwin to tell him that Allen had brought in the Termination Notice and further reported that Allen was upset when she was told that the Termination Notice was not effective because Irwin had not signed it. On January 26, Irwin discovered that the Allen I Contract had been escrowed at Gracy Title Company. Irwin informed Gracy Title Company of the previously executed Irwin Contract. Irwin's attorney also sent Gracy Title Company a letter informing it of the Irwin Contract. The next day, Gracy Title Company informed Allen that Irwin had a prior contract to purchase the Property from Anglim.

         On February 3, 2016, Anglim and Allen, as representative of the Trust, executed a second contract whereby Anglim agreed to sell the Property to Allen, as representative of the Trust (the Allen II Contract). The Allen II Contract was escrowed at Austin Title Company. On February 29, the transaction closed, and Anglim executed a Warranty Deed conveying the Property to the Trust. The Warranty Deed was recorded in the Travis County Public Deed Records on March 3.

         In mid-March 2016, Irwin demanded that Anglim and Allen, for the Trust, specifically perform the Irwin Contract and convey the Property to him pursuant to its terms.[2]Irwin also filed a lis pendens in the Travis County Public Deed Records. Allen did not respond to this demand. Irwin again demanded, in January 2017, that Allen, for the Trust, specifically perform the Irwin Contract and convey the Property to him pursuant to its terms. Again, Allen did not respond to this demand.

         Irwin then sued Anglim and Allen, individually and as trustee of the Trust, in Travis County district court asserting causes of action for breach of contract and tortious interference with contract. Irwin also sought declarations that the Irwin Contract was a valid and enforceable contract and that Anglim and Allen were legally obligated to convey the Property to Irwin pursuant to that contract. Irwin sought an order compelling specific performance of the Irwin Contract.[3] Irwin also sought to recover attorneys' fees and costs from Anglim and Allen.

         Irwin filed a motion for partial summary judgment on his breach of contract claim seeking specific performance of the Irwin Contract by Anglim and Allen. Irwin contended that, as a matter of law, he was entitled to specific performance of the Irwin Contract because he was willing and able to perform and had complied with his contractual obligations, and any failure to tender performance on his part was excused by Anglim's repudiation of the Irwin Contract. Irwin argued that because Allen purchased the Property with full knowledge of his rights under the Irwin Contract, he could enforce specific performance against her, and Allen was therefore legally obligated to convey the Property to him. Allen filed a response to the motion for summary judgment in which she asserted that Irwin could not assert a breach of contract claim against her seeking specific performance because Allen was not a party to any contract with Irwin. Allen also filed special exceptions and a motion to dismiss on the same ground. The trial court overruled Allen's special exceptions and denied her motion to dismiss. The trial court granted Irwin's motion for partial summary judgment on his claims against Anglim[4] but denied it as to his claims against Allen.

         Allen amended her petition to assert affirmative defenses of failure to mitigate, waiver and estoppel, and privilege or justification. She also asserted counterclaims of trespass to try title and suit to quiet title. Irwin and Allen then both filed additional motions for summary judgment. The trial court denied Irwin's and Allen's motions for summary judgment on the breach of contract claim because, although the court found that Irwin had stated a cause of action against Allen for breach of contract, it found that there was a disputed fact issue as to Allen's knowledge of the Irwin Contract.[5] The trial court found that the affirmative defense of justification and privilege did not apply to Irwin's claim of breach of contract and granted Irwin's motion for summary judgment on that affirmative defense.[6] The trial court found that Allen's affirmative defense of failure to mitigate did not apply to Irwin's request for specific performance, but that it did apply to Irwin's alternative request for relief of damages. Because Allen voluntarily withdrew her affirmative defenses of waiver and estoppel, the trial court dismissed Irwin's motion related to those defenses as moot.

         By the time of trial, Irwin had been granted an interlocutory summary judgment that Anglim breached the Irwin Contract, and the trial court had rejected Allen's affirmative defenses to Irwin's claims against her. At trial, the parties stipulated, among other things, that Allen knew of the Irwin Contract when she executed the Allen II Contract. After conducting a bench trial, the trial court rendered judgment awarding Irwin the relief he sought. Specifically, the court granted Irwin's request for specific performance of the Irwin Contract and decreed that, as of the date of the final judgment after the trial, Irwin became the owner of the Property. The trial court further ordered that the judgment in the case could be filed in the Real Property Records of Travis County to serve as a muniment of Irwin's title.[7] The court also ordered that Irwin recover from Anglim and Allen, jointly and severally, $144, 176.37 in attorneys' fees and expenses pursuant to Texas Civil Practice and Remedies Code chapter 38 and section 37.009. See Tex. Civ. Prac. & Rem. Code §§ 37.009 (in proceeding under Uniform Declaratory Judgments Act, court may award costs and reasonable and necessary attorneys' fees as are equitable and just); 38.001-.006 (providing recovery of attorneys' fees for breach of contract claim). At Allen's request, the trial court filed findings of fact and conclusions of law. See Tex. R. Civ. P. 296. Among other things, the trial court found that Allen "did not act in good faith in any aspect of the transactions" to purchase the Property. Allen then perfected this appeal, bringing thirteen discrete issues challenging various pre-trial orders and aspects of the trial court's judgment.

         DISCUSSION

         In her first issue, Allen asserts that the trial court erred when it denied her motion for summary judgment based on her affirmative defense that section 22.001 of the Texas Property Code barred Irwin's breach of contract and declaratory judgment claims. See Tex. Prop. Code § 22.001 ("A trespass to try title action is the method of determining title to lands, tenements, or other real property."); Martin v. Amerman, 133 S.W.3d 262, 265-67 (Tex. 2004); see also Tex. Civ. Prac. & Rem. Code ยง 37.004(c) (declaratory judgment is available when "sole issue concerning title to real property is the determination of the proper boundary line ...


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