CARLOS MORA AND MARIA MORA v. CITY OF MISSION, ET AL.--Appeal from 275th District Court of Hidalgo County

 NUMBER 13-04-375-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CARLOS MORA AND MARIA MORA, Appellants,

v.

CITY OF MISSION, ET AL., Appellees.

On appeal from the 275th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Ya ez, Castillo, and Garza

  Memorandum Opinion by Justice Garza

This is an appeal from an eminent domain proceeding. Carlos and Maria Mora executed a contract for deed to purchase property owned by Jose and Maria Ruiz. After the contract was executed but before title was conveyed to the Moras, the City of Mission instituted an eminent domain proceeding to condemn the property. A special commission awarded $85,000 jointly to the Moras and the Ruizes for the property. The Moras subsequently appealed the commission=s award to the county court at law, which transferred the case to district court because the Moras and the Ruizes became embroiled in a title dispute regarding the property. The Ruizes filed a motion for summary judgment, arguing that the Moras no longer had any interest in either the property or the commission=s award because they had defaulted on the contract for deed during the pendency of the eminent domain proceeding. The City of Mission also filed a motion for summary judgment, arguing that the Moras had no standing to appeal the commission=s award and no right to any portion of the award because their interest in the property had been terminated by their default on the contract. The trial court set both motions for hearing and issued a judgment stating that the Moras= interest had been canceled by their default and authorizing the City of Mission to pay the commission=s award solely to the Ruizes. The Moras now appeal by two issues.

As a preliminary matter, the Moras contend that the document was not a contract for deed but an instrument of conveyance and could not be cancelled due to their default. We disagree. In their response to the City of Mission=s motion for summary judgment, the Moras admit that they Apurchased from Jose Ruiz and Marla Idaliea Ruiz the real property in question on March 22, 2002 via a contract for deed that was filed with the Hidalgo County Clerk=s office real estate records.@ Furthermore, the document bears the characteristics of a contract for deed: it states that the sellers agree to convey title to the property subject to certain conditions, calls for a down payment, provides for monthly installments until the balance of the purchase price is tendered, and allows the purchasers to take possession of the property upon execution of the contract. Graves v. Diehl, 958 S.W.2d 468, 470B71 (Tex. App.CHouston [1st Dist.] 1997, no pet.); see also Ward v. Malone, 115 S.W.3d 267, 270B71 (Tex. App.CCorpus Christi 2003, no pet.). Given the foregoing considerations, we will not disturb the trial court=s conclusion that the document was a contract for deed. The Moras= first issue is overruled.

In their second issue, the Moras contend that the trial court improperly awarded summary judgment to the City of Mission because there was no claim or counterclaim involving the City of Mission and thus summary judgment was unavailable under rule 166a. See Tex. R. Civ. P. 166a. We disagree. This proceeding was instituted by the City of Mission to acquire a fee simple interest in land owned by the Moras and the Ruizes. The City=s motion for summary judgment sought to dispose of its claim against the Moras because the Moras no longer had any interest in the land and were not entitled to any of the proceeds of the commission=s award. The trial court=s summary judgment was not erroneous because it disposed of the City=s claim against the Moras. The Moras=second issue is overruled.

The judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 21st day of July, 2005.