Appeal from the 333rd District Court Harris County, Texas
Trial Court Case No. 2017-02059
consists of Justices Keyes, Lloyd, and Goodman.
OPINION ON REHEARING
V. KEYES JUSTICE.
Kenny Huang a/k/a Kenny Hsieh-I Huang, moved for
rehearing and en banc reconsideration of our December 6, 2018
opinion in this case. In a previous order, we granted
Huang's motion for rehearing, vacated our December 6,
2018 opinion and judgment, and dismissed Huang's motion
for en banc reconsideration as moot. We now issue the
following opinion and judgment on rehearing.
appeal, we determine whether a real estate broker is entitled
to receive a commission in connection with the sale of a
motel. The broker, Kenny Huang, sued the seller of the motel,
appellant NLD, Inc., claiming that it owed him a commission
because he had introduced the parties to the sale and
brokered an earlier attempt to sell the property that
ultimately resulted in the sale of the property from the same
seller, NLD, to the same buyer, Mahendra Bhakta. The trial
court rendered summary judgment in favor of Huang, granting
him $38, 250 in actual damages and a total of $16, 000 in
trial and conditional appellate-level attorney's fees.
appeal, NLD argues that the trial court erred in granting
summary judgment in favor of Huang because there was no
written contract entitling him to a commission, Huang did not
perform or tender performance, and NLD did not breach a
contract. NLD also argues that the trial court erred by
denying its cross-motion for summary judgment. We affirm.
August 2014, Kenny Huang, a licensed real estate broker,
introduced Lan Nguyen, the president of NLD, who was
attempting to sell the West Airport Inn located in Stafford,
Texas (the "motel"), to a potential buyer, Bhakta.
The parties reached an agreement for the sale of the motel
and executed a sales contract on August 24, 2014. The sales
contract, a standard Texas Association of Realtors form, was
signed by the Buyer (Bhakta) and by the Seller (NLD, Inc.)
through Nguyen. The record contains evidence that NLD, not
Nguyen, was the owner of the property.
9 of the standard contract form signed by Nguyen and Bhakta,
styled "Brokers," included a realtor's
commission in the amount of three percent of the sales price
to be paid "at the closing of this sale" to
Huang's employer, Champions Real Estate Group. The
contract listed Champions as the "Principal Broker"
and named Huang as the "Agent." The contract stated
that the Principal Broker "is an intermediary between
Seller and Buyer." This section also provided as an
option that the Seller could pay the Principal Broker the
fees specified by a separate written agreement. The parties
rejected this option. Instead, as part of the transaction
Nguyen agreed to pay Champions a commission of three percent
of the sales price "from the Seller's proceeds"
"at the closing of this sale." Champions has since
assigned its interest in the commission to Huang.
"Parties," the contract listed as Seller "Lan
Guyen/West Airport Inn (NLAVICO, Inc.)." A handwritten
addendum corrected the spelling of Nguyen's last name.
Bhakta was listed as the Buyer. The signature page of the
contract again listed the Seller as "Lan [Nguyen]/West
Airport Inn. . . . By: Lan [Nguyen]." Evidence in the
record indicates that, in operating the motel, NLD conducted
business as "Little York Suite A.K.A. West Airport Inn
sale was made expressly contingent on Bhakta's ability to
obtain third-party financing. Specifically, the
"Commercial Contract Financing Addendum" to the
A. THIRD PARTY FINANCING:
(1) The contract is contingent upon Buyer obtaining a third
party loan(s) secured by the Property in the amount of
$1, 000, 000.00 for not less than 20 years
with the initial interest rate not to exceed 7.000%
per annum and payments calculated on an amortization period
of no less than 20 years.
(2) Buyer will apply for the third party loan(s) described in
Paragraph A(1) promptly after the effective date [of the
sales contract, August 26, 2014]. If Buyer cannot obtain the
loan(s), Buyer may give Seller written notice within
30 days after the effective date and the contract
will terminate and the earnest money . . . will be refunded
to Buyer. If Buyer does not give such notice within
the time required, this contract will no longer be subject to
the contingency described in this Paragraph A.
(3) Each note to be executed under this addendum is to be
secured by vendor's and deed of trust liens.
sales contract set the closing date for the sale "within
7 days after lender approves of loan." Under the
contract, Bhakta paid $10, 000 in earnest money, and he
agreed to pay $400, 000 in cash at closing and to borrow the
remaining $1, 000, 000 of the $1, 400, 000 purchase price.
sale did not close at that time. Contending that a nuisance
lawsuit filed by the City of Stafford clouded title to the
West Airport Inn, Bhakta declined to go through with the
transaction. However, the written notice required within
thirty days to terminate the contract was not given.
Accordingly, on September 26, 2014, the contract was no
longer "contingent," but rather was a fully
enforceable and binding contract. This binding agreement
included Champions' and Huang's brokers'
commission as an integral part of the contract.
October 2014, Huang emailed Bhakta and Nguyen's daughter,
stating that "because of the property law suit, the
title cannot be tran[s]ferred" and that "[b]uyer
still want[s] the property if the suit is cleared."
Huang circulated a "Release of Earnest Money" form
to both Nguyen and Bhakta and secured the parties'
signatures. The Release stated:
NOTICE: This form provides for the release of the parties,
brokers, and title companies from all liability under the
contract (not just for disbursement of earnest money). Do not
sign this form if it is not your intention to release all the
persons signing this form from all liability under the
contract. READ THIS RELEASE CAREFULLY. If you do not
understand the effect of this release, consult your attorney
A. The undersigned Buyer and Seller release each other,
any broker, title company, and escrow agent from any and all