Reeves, Jr., Robert C. v. Memorial Terrace, Ltd., Ede I. Nemeti, Arpad Domyan, Katherine Domyan, Spasco, Ltd., and Left BK, L.P.--Appeal from 189th District Court of Harris County

Affirmed as Modified and Memorandum Majority and Concurring Opinions filed December 21, 2004

Affirmed as Modified and Memorandum Majority and Concurring Opinions filed December 21, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-00633-CV

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ROBERT C. REEVES, JR., Appellant

V.

 MEMORIAL TERRACE, LTD., EDE I. NEMETI,

ARPAD DOMYAN, KATHERINE DOMYAN,

SPASCO, LTD., AND LEFT BK, L.P., Appellees

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On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 01 10100

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M E M O R A N D U M C O N C U R R I N G O P I N I O N

I respectfully concur in the court=s judgment. I write separately to address two aspects of the case not mentioned in the majority opinion: (1) the unusual characteristics of the agreement in question and (2) the inapplicability of the Goswami presumption[1] to the buyer=s pleading amendments.

 The Parties= Agreement

The parties= written agreement for the sale of land contained no recitation of consideration. Although the form used by the parties provided a blank for the parties to write in an amount of independent consideration for the buyer=s right to terminate the earnest money contract for any reason within thirty days, the parties put A$0.00@ in this blank. Furthermore, the contract contains no consideration for the eleven-day period in which the buyer (Robert C. Reeves) could deposit the earnest money. As the majority points out, it is undisputed that the buyer did not deposit any earnest money.

The preprinted form contract provided the sellers with the following remedies if the buyer failed to comply with the parties= agreement: (1) the right to enforce specific performance or seek other relief as may be provided by law or both; and (2) the right to terminate the agreement and receive the earnest money as liquidated damages, thereby releasing the parties from the agreement. The parties, however, deleted the first item, leaving the sellers with only one remedy for the buyer=s failure to comply C the earnest money as liquidated damages.

Based on the unusual language of this agreement, the majority correctly holds that the agreement is unenforceable due to a lack of consideration and mutuality. See Culbertson v. Brodsky, 788 S.W.2d 156, 157 (Tex. App.CFort Worth 1990, writ denied) (holding that contract of sale for real estate was unenforceable for lack of consideration because there was no separate consideration for buyer=s right, in his sole discretion during a 60-day period, to terminate and receive a full return of his earnest money, with neither party having any continuing obligation to the other); Hott v. Pearcy/Christon, Inc., 663 S.W.2d 851, 853B54 (Tex. App.CDallas 1983, writ ref=d n.r.e.) (holding that, because the parties= agreement limited seller=s remedy for buyer=s breach to recovery of earnest money, the agreement was unenforceable for lack of consideration at least until the buyer deposited the earnest money and that, because the seller revoked the gratuitous option before the buyer tendered the earnest money, there was no enforceable contract); Echols v. Bloom, 485 S.W.2d 798, 800 (Tex. Civ. App.CHouston [14th Dist.] 1972, writ ref=d n.r.e.) (holding that agreement was unenforceable for lack of consideration because seller terminated before buyer tendered earnest money and because there was no separate consideration for 14-day period during which buyer could decide whether buyer wanted to go through with the transaction). The trial court did not err in granting summary judgment for the sellers.

Inapplicability of the Goswami Presumption

Additionally, the majority correctly holds that the trial court did not err in granting a final summary judgment even though the sellers= motion for summary judgment did not address the new claims added by the buyer in his fifth amended petition, after the summary-judgment hearing. The summary-judgment rule itself provides some support for this holding, but beyond that the buyer invokes the Texas Supreme Court=s holding in Goswami to argue that these newly added claims were properly before the trial court and thus the court could not have disposed of them when they were not addressed in the sellers= summary-judgment motion. See Goswami v. Metro. Sav. & Loan Ass=n, 751 S.W.2d 487, 490 (Tex. 1988). In Goswami, our high court held that, despite the clear language of Texas Rule of Civil Procedure 63 requiring leave of court for late-filed pleadings, leave of court will be presumed if (1) the record is silent of any basis to conclude that the trial court did not consider this pleading; and (2) the opposing party does not show surprise or prejudice. Goswami, however, is not without limits. It does not apply in cases, such as this one, in which the late-filed pleading is filed after the summary-judgment hearing. See Automaker, Inc. v. C.C.R.T. Co., 976 S.W.2d 744, 745 (Tex. App.CHouston [1st Dist.] 1998, no pet.); Leinen v. Buffington=s Bayou City Serv. Co., 824 S.W.2d 682, 685 (Tex. App.CHouston [14th Dist.] 1992, no writ). Given the buyer=s failure to obtain leave of court, the trial court did not err in granting summary judgment despite the buyer=s filing of the fifth amended petition after the summary-judgment hearing. See Automaker, Inc., 976 S.W.2d at 745; Leinen, 824 S.W.2d at 685. Accordingly, the majority correctly overrules this challenge to the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Majority and Concurring Opinions filed December 21, 2004.

Panel consists of Justices Edelman, Frost, and Guzman. (Edelman, J., majority.)

[1] See Goswami v. Metro. Sav. & Loan Ass=n, 751 S.W.2d 487, 490 (Tex. 1988) (holding that, notwithstanding provision of Texas Rule of Civil Procedure 63 requiring leave of court for late-filed pleadings, leave of court will be presumed if (1) the record is silent of any basis to conclude that the trial court did not consider this pleading; and (2) the opposing party does not show surprise or prejudice).