Joseph Perot Sr. v. Stewart Title Company--Appeal from Co Civil Ct at Law No 2 of Harris County

Affirmed and Memorandum Opinion filed November 13, 2003

Affirmed and Memorandum Opinion filed November 13, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01357-CV

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JOSEPH PEROT, SR., Appellant

V.

STEWART TITLE COMPANY, Appellee

On Appeal from the Civil Court at Law No. 2

 Harris County, Texas

Trial Court Cause No. 766,759

 

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

Joseph Perot, Sr., appeals from a summary judgment favoring Stewart Title Company. Perot sued Stewart Title alleging a breach of contract based on its release of escrow funds to McDonald s Corporation. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.[1]

Stewart title moved for summary judgment based on traditional and no-evidence grounds.[2] The trial court granted the motion without specifying the grounds. We use the normal standards of summary judgment review.[3]

Specifically, Perot alleges Stewart Title knew he had a legal claim to the money and breached the escrow agreement by releasing the funds without his authorization. Under the terms of the escrow agreement, Stewart Title was instructed to hold the Escrow Sum until it receives written instructions executed by both Buyers and Sellers. However, [i]n the event of any disagreement resulting in adverse claims or demands being made, Stewart title was authorized [t]o refuse to comply with any claim or demand . . . as long as this disagreement shall continue. [4]

There was indeed a dispute between Perot and McDonald s regarding $60,000 of the amount in escrow. The parties are well aware of the nature of this disagreement, so we will not recount it here. The dispute was brought into federal court on at least three separate occasions.[5] In the second, a settlement agreement was reached in which Perot agreed to release his claim to the money.[6] However, this agreement apparently fell apart when Perot refused to sign a written agreement, fired his attorney, and filed a motion for reinstatement with the district court.[7] The court refused to reinstate and no appeal was taken.[8]

In the third lawsuit, Perot again made the same claims.[9] The district court held that the dismissal in the second case, although made initially without prejudice to the right to move for reinstatement, operated as a bar to the third suit because the second court denied the motion to reinstate.[10] The third court further held all of Perot s claims were time-barred under Texas statutes of limitations.[11] The Fifth Circuit affirmed the district court, specifically stating: The district court . . . properly dismissed the Perots claims against McDonald s Corporation, both because the identical claims were dismissed in a prior action and because the claims are time-barred. [12]

It is therefore clear that Perot has no extant claims to the $60,000 in escrow funds. The money was placed in the fund by McDonald s; Perot sued McDonald s for the money but he lost. The escrow agreement authorized Stewart Title [t]o refuse to comply with any claim or demand . . . as long as this disagreement shall continue. The disagreement no longer continues, notwithstanding Perot s efforts to the contrary.[13]

Perot would have us hold that until he signs a document instructing Stewart Title to release the funds, it breaches the agreement by releasing the funds. A release of escrow funds cannot be held up by a party with no legal claim to the funds.[14]

The trial court s summary judgment was proper on both traditional and no-evidence grounds. As a matter of law, Perot has no claim to the funds. Further, Perot presented no evidence Stewart Title breached the contract.[15]

The trial court s judgment is affirmed.[16]

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed, November 13, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

[1] See Tex. R. App. P. 47.4.

[2] See Tex. R. Civ. P. 166a.

[3] See id.; King Ranch, Inc. v. Chapman, 46 Tex. Sup. Ct. J. 1093, 1097, 2003 WL 22025017 (Aug. 18, 2003) (no-evidence standard); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (traditional standard).

[4] Stewart Title also had a second option to interplead the escrow sum in a court of competent jurisdiction. The choice is clearly left to Stewart Title to make in its own discretion.

[5] Perot v. McDonald s Corp., No. 96 20653, slip op. at 2 (5th Cir. April 3, 1997) ( Perot I ) (affirming dismissal in appeal of arbitrator s decision); Perot v. McDonald s Corp., C.A. No. H96 1013 (S.D. Tex. Sept. 16, 1997) ( Perot II ) ( Order of Dismissal on Settlement Announcement ); Perot v. McDonald s Corp., C.A. No. H01 3167 (S.D. Tex. Jan. 10, 2002) ( Perot III ) ( Order of Dismissal ).

[6] Perot II, C.A. No. H96 1013. A transcript of the settlement prove-up also appears in the record.

[7] See Perot III, C.A. No. H01 3167.

[8] See Perot II, C.A. No. H96 1013 (S.D. Tex. Jan. 2, 1998) (order denying motion to reinstate).

[9] In the third lawsuit, Perot also sued Stewart Title, but that portion of the suit was dismissed for a lack of subject matter jurisdiction (diversity) apparent on the face of the complaint. Perot III, C.A. No. H01 3167.

[10] Id.

[11] Id.

[12] Perot v. McDonald s Corp., No. 02 20176, slip op. at 2 (5th Cir. Aug. 19, 2002), cert. denied, 71 U.S.L.W. 3639 (U.S. April 7, 2003). The Fifth Circuit also sanctioned Perot for filing a frivolous appeal of the dismissal of the suit against Stewart Title. Id. The court warned Perot that any future abuse of the appellate process would result in higher sanctions. Id.

[13] We disagree with Perot that Stewart Title s motion did not raise this ground. In its motion, Stewart Title stated under the heading Why summary judgment should be granted[:] The subject matter of Perot s dispute with McDonald s has been the subject of no fewer than four adjudications. The motion then goes on to discuss the settlement, the three dismissals, and the affirmance of the third dismissal.

[14] Cf. Stephenson v. LeBoeuf, 16 S.W.3d 829, 842 (Tex. App. Houston [14th Dist.] 2000, pet. denied) (finding portion of escrow funds should be distributed to claimant because claim was not discharged in bankruptcy).

[15] On appeal, Perot also contends the trial court erred in refusing his requests for findings of fact and conclusions of law. It is well-settled that such a request is improper after a grant of summary judgment. See IKB Indus. (Nig.) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 42 (Tex. 1997). This issue is overruled.

In his reply brief, Perot cites two opinions from the Waco Court of Appeals for the proposition that when a party attaches proof to a no-evidence motion, the court should treat it as a traditional motion. See Runge v. Raytheon E-Sys., Inc., 57 S.W.3d 562, 563 (Tex. App. Waco 2001, no pet.); Torres v. City of Waco, 51 S.W.3d 814, 821 (Tex. App. Waco 2001, pet. denied). However, the no-evidence portion of Stewart Title s motion does not cite to any proof, but relies entirely on the assertion that Perot can show no proof of contractual duty or breach. Accordingly, the facts of this case are distinguishable from those in Runge and Torres and we need not consider whether to follow the Waco court s reasoning. Indeed, in Runge, the court specifically stated the problem was the movant s failure to adequately segregate the no-evidence from the traditional grounds. 57 S.W.3d at 564. That is not the case in Stewart Title s motion.

[16] It should also be noted that although technically improper, see Tex. R. App. P. 38.3, in the interest of justice, we have herein considered Perot s additional arguments in his reply brief.