Forrest Dickey, Jr. and Rose Ann Dickey, (APPELLANTS/CROSS-APPELLEES) v. McComb Development Co., Inc., (APPELLEE/CROSS-APPELLANT)--Appeal from 221st District Court of Montgomery County

CONCURRING OPINION

 
No. 04-02-00289-CV
Forrest DICKEY, Jr. and Rose Ann Dickey,
Appellants
v.
McCOMB DEVELOPMENT CO., INC.,
Appellee
From the 221st Judicial District Court, Montgomery County, Texas
Trial Court No. 00-10-06323
Honorable Kathleen Stone, Judge Presiding

Opinion by: Paul W. Green, Justice

Concurring opinion by: Catherine Stone, Justice

 

Sitting: Catherine Stone, Justice

Paul W. Green , Justice

Sandee Bryan Marion, Justice

 

Delivered and Filed: June 25, 2003

 

I concur in the judgment of the majority. I write separately, however, because I believe the majority has considered irrelevant evidence in reviewing the trial court's decision. It is undisputed that the Dickeys do not currently reside on the subject property, thus the only question for the trial court to determine was whether the property was "to be used as the purchaser's residence" at some point in the future. See Tex. Prop. Code Ann. 5.062 (a) (Vernon Supp. 2003). In answering this question, there is no need to consider that the Dickeys do not receive mail at the property, they do not have a homestead exemption on the property, or that they are not registered to vote or employed in the county where the property is located. Since an intent to reside on the property in the future is sufficient to gain the protections of the Property Code, where the Dickeys reside or vote or work at the present time is of no consequence. What is of consequence, however, is Mrs. Dickey's statement that they plan to return to the property no sooner than 2007. The trial court was entitled to assess the credibility of this testimony in light of the absence of any definite plan or preparations for a return to the property, and in light of the Dickeys' attempt to sell the property. I concur with the majority that the trial court, as the trier of fact, could reasonably infer from this record that the Dickeys did not in fact intend to use this property in the future as a residence.

I am compelled to note, however, that the facts of this case display the inherent unfairness that can arise when a contract for deed is employed as a means of obtaining real property. See Pamela Brown, Lawyers Team Up to Help in Colonia, 63 Tex. B.J. 462 (2000) (noting that contracts for deed often are high interest notes that are virtually impossible to pay off and that families can pay for years only to find that if they missed one payment they can lose the property, including any improvements that had been made). Indeed, in this case it is undisputed that despite a history of several late payments, the Dickeys did cure any missed or late payments. It appears that after paying more than $200 per month for eight years, and after making improvements to the property, the Dickeys have lost their interest in the property because they tendered their check one day late. Sadly, Texas law permits this to occur.

Catherine Stone,

Justice