Glenn v. Pack
| Decision Date | 13 January 2011 |
| Docket Number | NO. 02-09-00204-CV,02-09-00204-CV |
| Parties | TERRY GLENN AND MONICA GLENN,APPELLANTS v. ROBERT J. PACK, JR.APPELLEE |
| Court | Texas Court of Appeals |
FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
In eighteen issues, Appellants Terry and Monica Glenn appeal the trial court's judgment awarding Appellee Robert Pack damages and attorneys' fees for his breach of contract and tortious interference with contract counterclaims.
We affirmed in part, reversed and rendered in part, and reversed and remanded in part.
On March 29, 2007, the Glenns signed a contract (Pack-Glenn contract) to purchase Robert Pack's residence. A temporary residential lease, incorporated into the contract, allowed the Glenns to take possession of the property on March 31. Closing, scheduled for April 4, did not occur.2 On April 3, Pack entered into a contract (Pack-Funk contract) to sell the property to another couple, the Funks, to close on April 17.
On April 9, the Glenns' then attorney, Daryl Washington, filed a lawsuit against Pack for breach of contract and a motion to temporarily enjoin the property's sale. On April 16, at a hearing on the injunction, Washington learned of the Pack-Funk contract and the April 17 closing date. At 4:30 p.m. on April 16, Washington filed a lis pendens on Pack's residence. On April 17, Washington sent a copy of the lis pendens and a letter asserting that a constructive lien had been placed on Pack's residence to both Pack's real estate agent, Lisa DeLeon, and Pack's attorney, Roger Yale.3 The April 17 closing did not occur. On May 25, the Funks, citing the lis pendens as the reason, terminated the Pack-Funkcontract.4 In response to the Glenns' suit, Pack requested a declaratory judgment that the Glenns breached the Pack-Glenn contract and that the lis pendens constituted a fraudulent filing. Pack also filed counterclaims for damages and attorneys' fees based on chapter 12 of the civil practice and remedies code, breach of the Pack-Glenn contract, and tortious interference with the Pack-Funk contract.
During the charge conference, the trial court dismissed Pack's chapter 12 and declaratory judgment claims and submitted the breach of contract, tortious interference, and attorneys' fees claims to the jury. The jury returned a verdict in Pack's favor, awarded him damages on all submitted claims, and awarded Pack appellate, but not trial, attorneys' fees. The trial court set aside the $0 trial attorneys' fees award and awarded Pack $82,500. The trial court denied the Glenns' motion for new trial. This appeal followed.
The Glenns bring eighteen issues on appeal. In issues eight through fifteen, the Glenns challenge the legal and factual sufficiency of the evidence to support the jury's findings that they breached the Pack-Glenn contract and tortiously interfered with the Pack-Funk contract. The Glenns also argue that the trial court erred by allowing the acts of an attorney to be imputed to a client and the client's wife (issues one and two); allowing the jury to consider damages on Pack's tortious interference claim (issue three); failing to apply the one satisfaction rule (issue four); submitting a jury instruction awarding the Glenns' earnest money to Pack as damages (issue five); responding incorrectly to juror's questions during deliberations (issue six); failing to require Pack to segregate his attorneys' fees among his four counterclaims (issue sixteen); and failing to grant a mistrial due either to adverse publicity (issue seventeen) or to the court reporter's actions in taking the record with her on vacation (issue seven). And, in issue eighteen, the Glenns contend that the cumulative impact of these errors requires reversal.
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1988), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and "insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support a finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co., inc. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the evidence is so weak, or so contrary to the overwhelming weight of the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
To recover for breach of contract, a plaintiff must prove (1) a valid contract, (2) that the plaintiff performed or tendered performance under the contract, (3) that the defendant breached the contract, and (4) that the plaintiff suffered damages as a result of the breach. See Muenster Hosp. Dist. v. Carter, 216 S.W.3d 500, 505 (Tex. App.—Fort Worth 2006, no pet.). The parties dispute each other's claim to performance and claim that the other party breached. Both sides also point to the other side's alleged breach as an excuse for their own non-performance. The Glenns argue that Pack breached the contract by failing to deliver possession of the residence on the morning of March 31. Additionally, Monica Glenn claims that she could not have breached the contract because of her limited involvement in the transaction. Pack blames his late departure fromthe residence on the Glenns' late escrow payment and argues that Terry's text messages and the Glenns' failure to take possession the night of March 31 show that the Glenns unequivocally breached the contract.
The Pack-Glenn contract called for the Glenns to deposit $50,000 into an escrow account upon contract execution. Terry Glenn testified that the Glenns deposited the funds into escrow after 5:00 p.m. on March 30. Pack testified that late in the afternoon on March 30, prior to the Glenns' escrow fund deposit, because he was unsure of the Glenns' intentions in pursuing the contract, he cancelled his moving company reservation. After Pack received notice of the Glenns' escrow fund deposit, he arranged for a rental truck and enlisted friends and family to assist him in packing and moving.
Beginning at 9:00 a.m. on March 31, the parties, in increasingly frustrated text and email messages, negotiated numerous revised possession deadlines. Around 2:30 p.m., Craig Rozen, acting as Terry's agent, sent an email to Pack declaring the contract "null and void" for Pack's failure to be "off the property Friday night March 30." Despite this email, the parties continued to negotiate possession.
Around 9:30 p.m. on March 31, after a day-long exchange of tense communications, Robert DeLeon sent Terry a text stating that he could take possession and that Terry should bring his checkbook with him. Terry, after another heated exchange, indicated that Pack could DeLeon replied that Terry could pick up his earnest money from the title company. Terry then responded, "[Expletive] that I might sue and still get the house!" Neither of the Glenns appeared at Pack's house to take possession on the night of March 31.
Terry testified that his text messages and statements were made in frustration; that he did not take possession after it was offered late on March 31 because he needed to be home with his family; that, regardless of his or Rozen's communications on March 31, he still wanted the house; and that on April 1, he attempted to finalize his possession and purchase of Pack's residence. Pack testified that he authorized Robert DeLeon to accept Terry's contract termination. Robert DeLeon testified that on April 1, the day after the Glenns terminated the Pack-Glenn contract, he met with the Funks to negotiate a contract and that the parties signed the Pack-Funk contract on April 3. Robert DeLeon also testified that in the common course of business, possession of the property is due anytime on the date listed in the contract.
Monica testified that she signed, but had not read, the Pack-Glenn contract; that she relied on Terry to handle everything related to the contract; that she did not remember when she realized she would not be moving into the house on March 31; and that, after March 31, she had very little to do with the house. She also stated that she did not attend the closing scheduled for April 4.
Terry's text messages amount to an anticipatory repudiation and establish more than a scintilla of evidence to support Pack's breach of contract claim. See Jenkins v. Jenkins, 991 S.W.2d 440, 447 (Tex. App.—Fort Worth 1999, pet. denied) (). Further, even though Terry indicated that he would take possession, he became angry when asked to bring his checkbook and did not take possession. Thus, Terry cannot claim that his repudiation was due to a genuine misunderstanding as to matters of fact or law. See id.
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