Blundell v. Lemon
| Decision Date | 26 February 1980 |
| Docket Number | No. 8750,8750 |
| Citation | 596 S.W.2d 239 |
| Parties | Benny BLUNDELL, Appellant, v. George S. LEMON, Sr., Appellee. |
| Court | Texas Court of Appeals |
Michael Thomas, Robert S. Fain, Jr., Thomas & Fain, Dallas, for appellant.
Robert Rolston, Russell & Rolston Law Offices, Mt. Pleasant, for appellee.
This is a summary judgment case. Appellant (plaintiff), Benny Blundell, brought suit against George S. Lemon, Sr., appellee (defendant), seeking the specific performance of a purported contract for the sale of 120 acres of land in Franklin County, and in the alternative, a suit for damages based upon the alleged fraudulent conduct of Lemon. Lemon filed a motion for summary judgment and the trial court granted a partial summary judgment in favor of Lemon, declaring that Blundell take nothing by virtue of his claim for specific performance and for an equitable lien against the property. Lemon's son apparently purchased the land under a previously executed contract. The trial court entered its order severing the partial summary judgment from the remaining issues relative to fraud. Blundell submits one point of error for our consideration.
Appellant Blundell's single point of error is as follows:
"The trial court erred in granting Appellee's motion for summary judgment."
While appellant's point of error is a general one, it could be sufficient to challenge the summary judgment on appeal pursuant to Tex.R.Civ.P. 418. Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex.1970). However, an examination of the complaint under this point of error reveals that Blundell is insisting for the first time, on appeal, that a material fact issue existed as to whether or not the relationship between himself as a prospective purchaser, and that of Lemon as a realtor, constituted a fiduciary relationship which would impose a constructive trust on the property in favor of Blundell to prevent the unjust enrichment of Lemon. Since this argument is being raised for the first time on appeal, it cannot be considered by this Court.
Tex.R.Civ.P. 166-A now provides in part the following:
". . . Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. . . ."
The Texas Supreme Court, in City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979), stated that the amendment to Rule 166-A was a response to criticism that the non-movant in a summary...
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Lemon v. Spann
...matters covered by the partial summary judgment from the remaining issues of fraud. An appeal was perfected and we affirmed. Blundell v. Lemon, 596 S.W.2d 239 (Tex.Civ.App.-Texarkana 1980, no writ). On that appeal Blundell insisted that a material fact issue existed as to whether the relati......
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Ramirez v. Bagley Produce Co.
...trial court expressly, he may not later assign them as error on appeal. City of Houston v. Clear Creek Basin Authority, supra; Blundell v. Lemon, 596 S.W.2d 239 (Tex.Civ.App. Texarkana 1980, no writ). Even if Ramirez' First Amended Answer could be construed as a written response to the moti......