Karl Paul Mattlage v. Celeste Mattlage, Individually and as Executrix of the Estate of Marvin Mattlage, Mark Mattlage, and Robert Snowden--Appeal from 414th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00260-CV

Karl Paul Mattlage,

Appellant

v.

Celeste Mattlage, Individually

and as Executrix of the Estate of

Marvin Mattlage, Mark Mattlage,

and Robert Snowden,

Appellees

From the 414th District Court

McLennan County, Texas

Trial Court No. 2006-2947-5

DISSENT to order denying

MOTION FOR REHEARING

The issue in this summary judgment proceeding is whether we are going to allow a fact finder to decide a factual dispute, or whether we will frame the issue as a legal question and thus resolve it ourselves. I ll go with the jury trial on the facts of this case.

Karl Mattlage stresses on rehearing two factors that have caused me to change my opinion of the proper result in this appeal. The two issues are (1) whether the waiver of a specific clause in a real estate contract had the legal effect argued by the party; and (2) what do we do with newly discovered evidence, evidence not before the trial court at the time of the summary judgment hearing? Both issues are critical to the prior disposition but I believe the second issue to have the potential for more frequent statewide implications.

The opinion on original submission presents the issues and the general law sufficiently so I will not repeat them herein. What was omitted from the prior recitation of facts was a complete quotation of the alleged waiver of the financing contingencies. That alleged waiver was in the form of a letter as follows:

1309 Villa Mill Alley

Key West, FL 33040

July 15, 2004

Mr. and Mrs. Marvin Mattlage

3218 Canaan Church Road

Crawford, TX 76638

Re: Farm and Ranch Contract last dated February 6, 2004 ( Contract ) by and between Marvin William Mattlage and his wife, Celeste Mattlage ( Seller ) and Mark D. Mattlage and Robert J. Snowden ( Buyer ) for the Home Place of Marvin William Mattlage, 3218 Canaan Church Road, Crawford, TX 76638 ( Property ) AND Unimproved Property Contract last dated February 6, 2004 ( Land Contract ) by and between Celeste Mattlage ( Seller ) and Mark D. Mattlage and Robert J. Snowden ( Buyer ) for 1.05 acres of the F. Scranton Survey, abstract #0787.00522, City of Crawford, McLennan County, Texas ( Property )

Subject: Waiver of Contingency Clause

Dear Marvin (Dad) and Celeste:

In accordance with the terms of the above-referenced Contract and Land Contract, although we have not sold and closed on the sale of our property at 1309 Villa Mill Alley, Key West, Florida, we hereby submit in writing our waiver of the Sale of Buyer s Property clause in the Miscellaneous Clauses section of both the Contract and Land Contract thus removing this contingency and all financing contingencies and continuing with the Contract and Land Contract.

Please let us know if you have any questions regarding this matter.

Sincerely,

/s/

Mark D. Mattlage

/s/

Robert J. Snowden

Now what is important here is that the actual language of the letter only waives one clause of the contract:

. . . we hereby submit in writing our waiver of the Sale of Buyer s Property clause in the Miscellaneous Clauses section . . .

The buyer s letter then purports to state the legal effect of this waiver:

. . . thus removing this contingency and all financing contingencies . . .

The problem is that the legal effect of the waiver of the specific clause waived the Sale of Buyer s Property clause would not have the legal effect now argued by the buyer of also waiving the Special Provisions: 1 clause. This clause provides as follows:

11. SPECIAL PROVISIONS: This sale is contingent upon the following:

1. The property shall appraise for at least $400,000.00, however, in the event is shall appraise for less than said purchase price, Seller, Marvin William Mattlage, will agree to carry a short term lien note for the difference. (Emphasis in original.)

While this Special Provisions clause also relates to an aspect of the financing of the purchase price, the question the fact question is whether the buyers also waived the Special Provisions clause. Today the buyer s motivation is to say: Sure, we intended to waive that clause too! But the motives have changed. Looking at the contract as of the date of the purported waiver, and if that waiver had the effect now argued by the buyers and as determined by the court, and further if the buyers were, have been, and are ready, willing, and able to close on the sale for the cash consideration of $400,000, why did the sale not close at that time, or before Marvin s death, or within a reasonable time thereafter? Were the buyers just stalling - waiting for the inevitable?

Thus, I would hold that there is a fact question on the scope of what was waived, reverse the summary judgment, and remand to the trial court for further proceedings.

Scope of Summary Judgment Record

This brings forth the issue of broader importance. When, as here, evidence is discovered after the summary judgment, does it serve the purpose of summary judgment proceedings for the appellate court to ignore that evidence? Because I would remand this entire proceeding for further proceedings in the trial court, proceedings in which this evidence could be used to whatever extent and for whatever purpose is appropriate, I need not decide the issue. But I make the observation that it seems a waste of judicial resources to have to pursue an appeal and a trial court proceeding related to newly discovered evidence at the same time. At the very least, when, as here, there was a summary disposition at the trial level, we should be careful about turning a blind eye to newly discovered evidence. Maybe that is the time to use the Greek goddess of justice who appears without a blindfold as our inspiration, rather than the Roman concept which is traditionally blindfolded,[1] and actually look at the scales of justice to see in which direction they are inclined so that they may be righted a concept at which jurors are uniquely suited.

Based on the foregoing, I withdraw my vote to affirm the trial court s judgment and, instead, dissent to the Court s denial of the motion for rehearing.

TOM GRAY

Chief Justice

Dissent to order delivered and filed December 12, 2007

To be published with opinion issued November 7, 2007

[1] See http://lib.law.washington.edu/ref/themis.html.