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Manor v. Manor

Court of Appeals of Texas, Second District, Fort Worth

December 31, 2019

George Manor, Appellant
Judy Ione Manor, Appellee

          On Appeal from the 415th District Court Parker County, Texas Trial Court No. CV15-1444

          Before Sudderth, C.J.; Kerr, J., and Gonzalez, J. [1]


          Ruben Gonzalez Visiting Judge

         Appellant George Manor filed a motion for rehearing of our October 17, 2019 memorandum opinion and judgment. We deny the motion but withdraw our prior opinion and substitute the following in its place. With the exception of a paragraph added to address one of George's arguments, our opinion otherwise remains unchanged.

         This case arises from a land dispute between ex-spouses. In six issues, Appellant George Manor appeals the trial court's denial of his motion for traditional summary judgment on the affirmative defense of the statute of frauds and the trial court's grant of summary judgment in Appellee Judy Manor's favor on her claim for breach of contract. We affirm the trial court's judgment in both respects.


         As part of their 2014 divorce, George and Judy divided their community interest in almost 300 acres of land situated in Parker County. The parties' decree awarded approximately 123 acres to Judy.[2] In 2015, the parties negotiated a sale by Judy of 32 acres of the divided land to George. On June 19, 2015, they executed a Farm and Ranch Contract (hereinafter "the Contract") which described the subject land as: "The land situated in the county of Parker, Texas, described as follows: House and 32 acres out of 123 acres TR: BLK: SURV: TEXAS & PACIFIC RR. or as described on attached exhibit, also known as 2300 Cox Road, Millsap, TX 76066." The Contract stated that an aerial photo was attached and was to be considered as part of the parties' agreement; in fact, a Google Earth photograph signed by both George and Judy and dated June 19, 2015, was attached to the Contract. We have attached the aerial photo as Exhibit A to this opinion. The Contract required a $35, 000 earnest-money deposit by George and provided the following remedies in the event of default:

15. DEFAULT: If [George] fails to comply with this contract, [George] will be in default, and [Judy] may (a) enforce specific performance, seek such other relief as may be provided by law, or both, or (b) terminate this contract and receive the earnest money as liquidated damages, thereby releasing both parties from this contract.

         The Contract also allowed for additional damages if any party "wrongfully" failed or refused to sign a release of the escrow money:

         18. ESCROW:

D. DAMAGES: Any party who wrongfully fails or refuses to sign a release acceptable to the escrow agent within 7 days of receipt of the request will be liable to the other party for liquidated damages in an amount equal to the sum of: (i) three times the amount of the earnest money; (ii) the earnest money; (iii) reasonable attorney's fees; and (iv) all costs of suit.

         The Contract set a closing date of July 6, 2015, and stated that if either party failed to close the sale by the closing date, "the non-defaulting party may exercise the remedies contained in Paragraph 15." The parties did not close on July 6, 2015. According to Judy, George repeatedly delayed the closing. In September 2015, Judy demanded release of the earnest money in lieu of specific performance; George refused to sign any such release and instead expressly directed the title company not to release the earnest money.

         In November 2015, Judy sued George for breach of contract, [3] alleging fraud and malice on his part and seeking actual damages, exemplary damages, and attorney's fees. George filed a general denial and asserted a defense of the statute of frauds. Both parties moved for summary judgment-the trial court granted Judy's motion and denied George's. The parties agreed to the amount of actual damages to be awarded to Judy ($35, 000) and agreed to try the issue of attorney's fees by affidavit and written submissions, after which the trial court awarded Judy $31, 405 in attorney's fees. A final judgment reflecting the trial court's rulings was entered in February 2018. This appeal followed.


         George brings six issues on appeal, divided into two sections. In his first set of issues, George appeals the trial court's denial of his motion for summary judgment because, in his view, the Contract is unenforceable because it does not satisfy the statute of frauds. In his second set of issues, he argues that even if the Contract is enforceable, we must reverse the trial court's order granting Judy's summary judgment motion and remand the cause to the trial court because Judy failed to establish her right to the $35, 000 in earnest money as a matter of law.

         I. Standard of review applicable to traditional summary judgments

         In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

         We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. We must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 822-24 (Tex. 2005). Uncontroverted evidence from an interested witness does nothing more than raise a fact issue unless it is clear, positive, and direct; otherwise credible and free from contradictions and inconsistencies; and could have been readily controverted. Morrison v. Christie, 266 S.W.3d 89, 92 (Tex. App.-Fort Worth 2008, no pet.) (citing Tex.R.Civ.P. 166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997)).

         The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant's cause of action or defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

         When, as here, both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties' summary judgment evidence and determine all questions presented. Mann Frankfort, 289 S.W.3d at 848. The reviewing court should render the judgment that the trial court should have rendered. See Myrad Props., Inc. ...

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