Greenway Plaza, Ltd., et al v. Southwestern Bell Telephone Company--Appeal from Co Civil Ct at Law No 4 of Harris County

Opinion issued September 30, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-00-00757-CV

GREENWAY PLAZA, LTD., Appellant

V.

SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee

On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 656,628-101

O P I N I O N

Greenway Plaza, Ltd. (1) appeals (1) the summary judgment rendered in favor of appellee, Southwestern Bell Telephone Company, and (2) the denial of Greenway's motion for summary judgment. We affirm in part and reverse in part.

Facts and Procedural History

In November 1995 Southwestern Bell began eminent-domain proceedings against Greenway and others to acquire easements for telecommunication services in Five Greenway Plaza. On October 29, 1999, representatives of both Greenway and Southwestern Bell met without counsel to discuss settlement. Southwestern Bell brought to the meeting a proposed one-page "Memorandum of Intention to Settle." After several hours of negotiation, Greenway and Southwestern Bell revised the proposed one-page settlement agreement and signed it ("the Memorandum"). The Memorandum provided that the "specific language and other terms of the settlement agreement will be negotiated between our attorneys, but we agree that it will contain the above terms."

After further negotiations and exchanges of proposed final settlement documents, Greenway and Southwestern Bell were unable to reach an agreement. Greenway took the position that the Memorandum was binding and enforceable under Texas Rule of Civil Procedure 11. In March 2000 Southwestern Bell filed a petition for declaratory judgment as a part of the eminent-domain proceeding, requesting the trial court to declare the Memorandum did not satisfy the requirements of Rule 11 and was unenforceable as a matter of law. Greenway counterclaimed for breach of contract, alleging that Southwestern Bell had breached the Memorandum by refusing to execute the formal documents contemplated by the Memorandum.

Both parties filed motions for summary judgment. In its brief, Southwestern Bell asserted the following as grounds for summary judgment: (1) the Memorandum did not satisfy Rule 11 because it left material terms open for future negotiations; (2) the Memorandum did not satisfy Rule 11 because it did not contain a description of the physical location of the easements to be conveyed; and (3) the Memorandum was nothing more than a nonbinding "agreement to agree." The trial court granted Southwestern Bell's motion on the ground that the Memorandum "did not include an adequate description of the terms of the access agreement and for that reason is not an enforceable agreement." The trial court denied Greenway's motion. After severing the claims in Southwestern Bell's petition for declaratory judgment and Greenway's counterclaim for breach of contract into a separate cause (trial court cause number 656,628-101), the trial court rendered a final declaratory summary judgment that (1) the Memorandum was unenforceable and (2) Greenway take nothing on its breach-of-contract counterclaim.

Discussion

If both parties file competing motions for summary judgment and one is granted and the other overruled, the appellate court must consider all issues presented on appeal, including the propriety of the order overruling the losing party's motion. Jones v. City of Houston, 907 S.W.2d 871, 875 (Tex. App.--Houston [1st Dist.] 1995, writ denied). A party moving for summary judgment has the burden of proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).

In its first issue, Greenway contends the trial court erred in rendering summary judgment on a ground not stated in Southwestern Bell's motion for summary judgment. We agree.

Texas Rule of Appellate Procedure 166a(c) requires that the "motion for summary judgment shall state the specific grounds therefor." The trial court granted Southwestern Bell's motion on the ground that the Memorandum "did not include an adequate description of the terms of the access agreement and for that reason is not an enforceable agreement." This is not one of the specific grounds Southwestern Bell stated in its motion, and the trial court erred in rendering summary judgment on a ground not expressly set out in the motion. Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993).

We sustain issue one.

In issue two, Greenway contends the trial court erred in denying its motion for summary judgment regarding its counterclaim for breach of contract. In that counterclaim, Greenway alleged Southwestern Bell "has breached the settlement by, among other actions or inactions, refusing to execute the formal documents contemplated by the settlement agreement [Memorandum]." Greenway phrased its ground in its motion for summary judgment in the form of a question: "Under Texas law, were those contemplated formal documents intended by the parties to be a condition precedent to the formation of a contract or rather merely a memorialization of an already enforceable contract?" Greenway's motion requested the trial court to order specific performance as the remedy.

Greenway argues the Settlement Agreement was enforceable under Texas Rule of Civil Procedure 11, citing Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995). In Padilla, the Texas Supreme Court held that a series of letters discussing settlement constituted a binding settlement agreement. Id. at 460-61. Padilla differs from this case, however, because Greenway and Southwestern Bell were negotiating an interest in real property.

Under the statute of frauds, a contract or agreement for the sale of land is not enforceable unless the agreement is in writing and signed by the person to be charged with the agreement. Tex. Bus. & Com. Code Ann. 26.01 (Vernon 2002). The statute of frauds requires an agreement to be "complete within itself in every material detail" and to contain "all of the essential elements of the agreement." Padilla, 907 S.W.2d at 460. To meet the statute-of-frauds requirements, the property description "must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty." Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex. 1972). The supreme court has also stated:

The description necessary to meet the requirements of the statute cannot be arrived at from tenuous inferences and presumptions of doubtful validity, especially where the same writing gives rise, with equal validity, to conflicting inferences and presumptions that lead away from the subject matter of the contract. It is immaterial that the . . . property was the property in the contemplation of the parties at the time the [agreement was] written, or even that parol evidence leads the court to believe that the . . . property was the subject matter of the contract. Unless the description contained in the writing leads to that conclusion with reasonable certainty, the contract is unenforceable.

Rowson v. Rowson, 275 S.W.2d 468, 471 (Tex. 1955).

The Memorandum recites the parties "agree to settle the condemnation lawsuit filed by [Southwestern Bell] to acquire property rights in Five Greenway Plaza." While it is true that Southwestern Bell's original condemnation petition contained detailed descriptions of eight easements it sought, it is not evident from the Memorandum which of the easements Greenway and Southwestern Bell agreed to be part of the nine-year "access contract" mentioned in the Memorandum. Accordingly, the Memorandum cannot satisfy the strict requirements of the statute of frauds and the trial court did not err in denying Greenway's motion for summary judgment.

We overrule issue two.

We reverse the portion of the trial court's judgment rendering summary judgment for Southwestern Bell, affirm the portion of the trial court's summary judgment denying Greenway's motion for summary judgment, and remand the cause to the trial court for further proceedings.

Frank C. Price (2)

Justice

Panel consists of Justices Mirabal, Nuchia, and Price.

Do not publish. Tex. R. App. P. 47.

1. At the time the trial court proceeding was initiated, Crescent Real Estate Equities Funding III, L.P. was the successor in interest to Greenway Plaza, Ltd., a Texas Limited Partnership.

2. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.