Mildred Miman a/k/a Mildred E. Miman v. John Roderick--Appeal from 216th Judicial District Court of Gillespie County

MEMORANDUM OPINION

 
No. 04-02-00641-CV
Mildred MIMAN a/k/a Mildred E. Miman,
Appellant
v.
John RODERICK,
Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 9513
Honorable Stephen B. Ables, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 17, 2003

REVERSED AND REMANDED

This is an appeal from a summary judgment entered in favor of John Roderick ("Roderick") and against Mildred Miman ("Miman"). In three issues, Miman complains that the trial court erred in: (1) failing to grant her motion to transfer venue; (2) granting summary judgment on a contract upon which Roderick did not file suit; and (3) granting summary judgment ordering sale of property pursuant to the contract upon which suit was filed. Also, Roderick brings one cross-issue on appeal claiming he is entitled to damages for Miman's filing of a frivolous appeal. We reverse and remand.

Factual and Procedural Background

Roderick and Miman's half-brother, Gregory W. G. Lehman ("Lehman") died in 1997. Roderick and Miman each filed suit in Gillespie County contesting Lehman's will. The other parties to the will contest were Wallace Klussman and Roger Holmes. The matter was mediated in Kendall County by J. Ken Nunley, and the parties reached a settlement. An agreed judgment was signed by all parties and entered by the district court in Gillespie County. Under the settlement agreement, Roderick and Miman received approximately 644 acres of land in Blanco County. The agreed judgment referred to a Joint Operating Agreement entered into between Roderick and Miman. The judgment read, in part: "John Roderick and Mildred Miman are operating their interest in the estate by Joint Operating Agreement, filed in [this] cause." The Joint Operating Agreement recited that it "concern[ed] the use, ownership, and operation of the 640 [plus or minus] acre Blanco County tract awarded to Miman and Roderick in connection with the settlement of the Gregory Lehman will contest litigation." Paragraph four of the Joint Operating Agreement provided that if the parties receive a bona fide offer to purchase the property for $2400.00 cash per acre or greater, "the property shall be sold and proceeds applied to estate tax, expense of sale and balance to be divided equally." Roderick and Clint Hendricks entered into an earnest money contract for sale of the property for $2400.00 per acre. Miman refused to sign the contract. In response, Roderick brought this suit against Miman for specific performance of the Joint Operating Agreement according to the terms of the contract of sale. Miman filed a motion to transfer venue to her county of residence, Burleson County. Following a hearing, the trial court denied the motion to transfer venue.

The trial court then granted Roderick's motion for summary judgment, ordering Miman to abide by the Joint Operating Agreement and to perform the terms and conditions of the earnest money contract. Miman filed a motion for new trial, contending the earnest money contract was incomplete because some of the blanks on the form contract were not filled in. In response, Roderick filed a "Motion to Modify Judgment," attaching the same contract form, but with the blanks on the form filled in. At the hearing on the motion to modify judgment, Roderick argued that the blanks were minor matters that should not prohibit the trial court from modifying the judgment to take into account the now-completed blanks. The trial court agreed with Roderick and entered a final summary judgment, ordering the completed form to be substituted in place of the original incomplete earnest money contract. Miman appeals.

Venue

In determining whether venue was proper, we consider the entire record including the trial on the merits. Tex. Civ. Prac. & Rem. Code Ann. 15.064(b) (Vernon 2002); Eddins v. Parker, 63 S.W.3d 15, 17 (Tex. App.--El Paso 2001, pet. denied). If there is any probative evidence in the record demonstrating that venue was proper in the county where judgment was rendered, we must uphold the trial court's ruling. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993); Eddins, 63 S.W.3d at 17. In conducting this review, we must view all the evidence in the light most favorable to the trial court's ruling. Ruiz, 868 S.W.2d at 758; Eddins, 63 S.W.3d at 18.

The pertinent parts of the venue statute provide that suits shall be brought "in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred" or the "county of defendant's residence at the time the cause of action accrued if defendant is a natural person." Tex. Civ. Prac. & Rem. Code Ann. 15.002(a) (Vernon 2002). Roderick brought suit in Gillespie County, contending a substantial part of the events or omissions giving rise to the claim occurred in Gillespie County. According to Roderick, venue was proper because the Joint Operating Agreement was entered into in connection with the agreed judgment and settlement agreement, which was filed in Gillespie County. Therefore, a substantial part of the claim arose in Gillespie County. Miman disagreed, urging the trial court to transfer venue to her county of residence, Burleson County. Miman argues that Roderick's suit is only tangentially related to the underlying will-contest suit and that none of the acts or omissions giving rise to Roderick's suit occurred in Gillespie County. According to Miman, Roderick's suit is not based on the Joint Operating Agreement, but rather on Miman's alleged failure to comply with the terms of the Joint Operating Agreement to sell the land.

The issue, thus, is whether there is probative evidence that all or a substantial part of the events or omissions giving rise to the claim occurred in Gillespie County. To make this determination, we must examine the essential elements of Roderick's claim. Chiriboga v. State Farm Mut. Auto Ins. Co., 96 S.W.3d 673, 680 (Tex. App.--Austin 2003, no pet.). In his petition, Roderick alleges that "this is a suit for specific performance of a settlement agreement that was negotiated and entered into by [Roderick] and [Miman] when both filed suit in a pending estate in [Gillespie County], and [Miman] has breached said agreement . . . ." Roderick further alleges that Miman "failed and refused to sign the contract of sale and continues to fail and refuse to perform pursuant to the terms of the Joint Operating Agreement." Thus, this is a suit for breach of contract in which Roderick seeks specific performance of the contract. Specifically, it is a suit for breach of a settlement agreement that was entered into in connection with the Gillespie County estate matter.

Before the 1995 amendment to the venue statute, there was no substantiality requirement; venue was allowed in the county in which all or part of the cause of action accrued. Chiriboga, 96 S.W.3d at 681. The amended statute makes a "substantial" part of the cause of action the issue. Id. As an appellate court, we are not to determine the best venue; rather, we are to determine whether the venue facts satisfy the substantiality requirement of the amended statute. Id.

The 1995 amendment to the venue statute was apparently patterned after a 1990 federal venue statute which provides for venue in diversity cases in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 457 (Tex. App.--Corpus Christi 2000, no pet.) (quoting 28 U.S.C. 1391(a)(2)). When the Texas legislature adopts a statute with wording substantially similar to a federal statute, we presume, absent some indication to the contrary, that the legislature intended to adopt the construction placed on that wording by the federal courts, and we look to federal cases as a guide to interpreting the state statute. Id.

In making the substantiality determination, federal courts consider the totality of the events leading up to the claim. Id. at 459 (citing Etienne v. Wolverine Tube, Inc., 12 F. Supp. 2d 1173, 1181 (D. Kan. 1998)). And, in a breach of contract action, federal courts consider "where the contract was negotiated or executed, where it was to be performed, and where the alleged breach occurred." Id. Further, under the old Texas venue statute, with regard to contract claims, the cause of action accrues in any county where the contract was formed, where it was performed, and where it was breached. Id.

The settlement agreement entered into by Roderick and Miman was a part of and referenced in the judgment entered in the estate suit in Gillespie County. The duties under the contract arose when it was entered into in connection with the judgment entered in Gillespie County. Without the underlying judgment in the Gillespie County estate lawsuit, there would be no contract or corresponding duties under the contract to be breached. Thus, we find that there is probative evidence from which the trial court could conclude that a substantial part of the events giving rise to the claim for breach of the settlement agreement occurred in Gillespie County. We overrule Miman's first issue.

Summary Judgment

In her second issue, Miman contends the trial court erred in granting final summary judgment because it did not grant judgment on the contract for sale presented to Miman. Miman also argues that the first summary judgment was erroneously granted because the offer presented in the earnest money contract was for an amount less than $2,400. Thus, it was not a bona fide offer which she was required to accept and as such, Roderick did not establish that she breached the contract as a matter of law.

To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition, we must assume all evidence favorable to the nonmovant is true. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548-49. A defendant is entitled to summary judgment if the evidence disproves as a matter of law at least one element of the plaintiff's cause of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence that would raise a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

According to Miman, Roderick failed to establish as a matter of law that she was presented the offer in the earnest money contract attached to the "Final Summary Judgment." Roderick agrees that Miman was not presented with the earnest money contract attached to the final summary judgment, but was instead presented with a similar contract that had several blanks. According to Roderick, however, the matters that had been left blank were inconsequential. In order to avoid wasting judicial resources, Roderick presented a more complete contract to the court, which the trial court incorporated into its final summary judgment.

Miman, however, emphasizes that the blanks were not inconsequential. In the earnest money contract presented to Miman, Paragraph 4(D) is blank. In the earnest money contract incorporated by the final summary judgment, Paragraph 4(D) is completed to state the following:

Within 30 days after the effective date of this contract Buyer shall apply for all third party financing or noteholder's approval of any assumption and shall make every reasonable effort to obtain financing or assumption approval. Financing or assumption approval shall be deemed to have been obtained when the lender has determined that Buyer has satisfied all of lender's financial conditions (those items relating to Buyer's ability to qualify for assumption approval or a loan). If financing (including the fact amount of any lender required stock) or assumption approval is not obtained within 120 days after the effective date hereof, this contract shall terminate and the Earnest Money shall be refunded to Buyer. Each note to be executed hereunder shall be secured by vendor's and deed of trust liens. See special provisions.

The special provisions, paragraph 11 of the contract, provide that "Buyer [is] to extend closing additional 30 days if necessary to obtain satisfactory financing." This special provision clause extending the closing date was also in the contract presented to Miman. The language allowing the contract to terminate if the buyer could not obtain financing, however, was not. We agree with Miman that the new language in Paragraph 4(D) is not inconsequential. It substantially changes the earnest money contract by giving the buyer an escape clause if he fails to obtain financing. As such, Roderick failed to prove as a matter of law that Miman refused to comply with the earnest money contract incorporated into the final summary judgment. And, the trial court, therefore, erred in incorporating an earnest money contract into its final summary judgment that was substantially different from the earnest money contract presented to Miman.

In her third issue, Miman argues that we cannot reform the judgment to incorporate the earnest money contract with which she was presented. We agree. By entering the second summary judgment within its plenary power, the first summary judgment became null and void. See Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308, 310 (Tex. 2000) (stating that trial court has authority to change its judgment within its plenary power). We, therefore, reverse the trial court's judgment and remand this cause to the trial court for further proceedings consistent with this opinion. (1)

Sanctions For Frivolous Appeal

Finally, we consider Roderick's cross-issue on appeal. Roderick requests that we find Miman's appeal frivolous and award him damages under Texas Rule of Appellate Procedure 45. As we are reversing the trial court's judgment and remanding the cause, we hold that Miman's appeal is not frivolous. We, therefore, overrule Roderick's cross-issue.

Conclusion

Having found error, we reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.

Karen Angelini, Justice

1. By reversing and remanding this cause, we need not reach Miman's other arguments.