Luccia v. Ross

• Decision Date: 04 September 2008
• Docket Number: No. 01-07-00080-CV.,01-07-00080-CV.
• Citation: 274 S.W.3d 140
• Parties: Paul LUCCIA, Individually & d/b/a Cabot & Rowe, Appellant, v. Kathryn L. ROSS, Appellee.
• Court: Texas Court of Appeals

274 S.W.3d 140

Paul LUCCIA, Individually & d/b/a Cabot & Rowe, Appellant, v. Kathryn L. ROSS, Appellee.

No. 01-07-00080-CV.

Court of Appeals of Texas, Houston (1st Dist.).

September 4, 2008.

Rehearing Overruled January 16, 2009.

Frank N. Luccia, Scott B. Novak, Luccia & Evans, L.L.P., Houston, TX, for Appellant.

Charles E. Fitch, Law Office of Charles E. Fitch, P.C., Houston, TX, for Appellee.

Panel consists of Justices TAFT, KEYES, and ALCALA.

OPINION

ELSA ALCALA, Justice.

In this breach of contract case concerning the sale of real property, appellant, Paul Luccia, individually and doing business as Cabot & Rowe (Luccia), appeals from the trial court's summary judgment order rendered in favor of appellee, Kathryn L. Ross. Luccia, the tenant, filed suit against Ross, the landlord, asserting that Ross refused to honor the terms of their lease agreement (the "Lease Agreement") that allowed Luccia to purchase the rental property. Luccia sought specific performance and attorney's fees. In five issues, Luccia asserts the trial court erred by (1) construing the Lease Agreement as stating a limit on the time that Luccia could exercise the option to purchase the property; (2) construing the Lease Agreement as requiring Luccia to close the sale within the term of the lease; (3) determining that the option to purchase the property was extinguished by Luccia's failed attempt to purchase the property; (4) requiring a formal tender of purchase money when Luccia demonstrated that he was ready, willing, and able to purchase the property; and (5) failing to determine that it was unnecessary for Luccia to show tender of the purchase money because Ross was unwilling to sell the property at the contract price.

We conclude the Lease Agreement did not limit the number of times that Luccia could attempt to purchase the property, as long the option was taken within the terms of the lease, which it was. We also conclude that Luccia's evidence conclusively established that he proved the element of tender, and therefore we remand to the trial court for consideration of the remaining elements of Luccia's breach of contract action. We need not address Luccia's fifth issue, in which Luccia contends that the cause should be remanded for an alternative reason. We reverse the trial court's judgment and remand this cause for further proceedings consistent with this opinion.

Background

On April 29, 2003, Luccia leased an office building on Montrose Boulevard in Houston, Texas, from Ross pursuant to the Lease Agreement. The Lease Agreement expired on July 31, 2005. Section 36 of the Lease Agreement incorporated the "Special Provisions" attached to the Lease Agreement as "Exhibit A." Exhibit A provided, in pertinent part,

SALE PRICE: $502,000.00 — Net Sales Price $555,000.00 less rent credit of $48,000.00 and $5,000.00 deposit

RENTAL CREDIT: Fifty Percent (50%) of rents applied to sale price.

....

OPTION TO PURCHASE: Anytime with credit on rents prorated.

On September 30, 2004, Luccia provided written notice to Ross of his desire to exercise the option to purchase the property under the terms of the Lease Agreement. Luccia and Ross entered into a contract on December 21, 2004 for sale of the property (the "Purchase Contract"). The Purchase Contract provided that the closing would take place by January 31, 2005, and that time was of the essence. The Purchase Contract provided that Ross could keep Luccia's earnest money of $5,000 as liquidated damages in the event of default.

In the Purchase Contract, the parties also agreed to a special provision that stated,

The Lease/Purchase Contract executed by parties on April 29, 2003 is incorporated herein for all purposes and Earnest Money/deposit of $5,000.00 is incorporated in this sale contract and will be forfeited if default occurs or closing is after January 1[sic], 2005, lease payments will continue on schedule and Lessee/Buyer will reimburse Lessor/Seller for insurance premiums paid.

Luccia was unable to close the sale by January 31, and as a result of the default, Ross terminated the Purchase Contract, taking the $5,000 as liquidated damages.

After Luccia failed to meet the January 31 deadline, he made a second attempt to purchase the property under the option to purchase portion of the Lease Agreement. Luccia secured approval for a loan to purchase the property. The mortgage broker sent a letter to Ross informing her of the approval and requesting a final payoff amount so that a closing could be scheduled. Luccia notified Ross of his intent to purchase the property by sending notice to Ross that, pursuant to the option to purchase the property, "financing has been approved and that a May 15, 2005 closing date has been set." Luccia's attorney also sent a letter to Ross's attorney stating,

Please allow this letter to serve as notice of Mr. Paul Luccia's unconditional and unqualified acceptance of the "option to purchase anytime with credit on rents prorated" as provided in Exhibit A of the commercial lease executed by your client, Ms. Ross, and my client, Paul Luccia, in connection with certain real property located at 3209 Montrose Blvd. in Houston, Texas. Mr. Luccia is ready, willing and able to meet his obligation with closing set for May 15, 2005.

Ross declined to sell the property to Luccia, contending that a "new contract with new terms" would be necessary. Luccia responded to Ross's refusal to sell by filing this suit for breach of contract, seeking the remedy of specific performance or, alternatively, damages. Ross counterclaimed seeking a declaration that Luccia had no right to exercise the option and also seeking damages for Luccia's breach of contract for failing to meet the terms of the original Lease Agreement. Specifically, Ross alleged that

Luccia breached the Lease by his (i) failure to timely pay rentals when due and (ii) by doing certain damage to the Leased Premises upon his vacating of the Leased Premises. Ross faithfully performed her obligations under the Lease and Luccia breached his obligations. Luccia failed to pay rent due for the months of June and July, 2005, in the sum of $8,366.39. Rental, with insurance payment was $4,256.08 per month. Luccia paid only $145.77 for those two months. As a result of Luccia's breach of the Lease Ross has sustained damages for plumbing repairs and clean up caused by a flood when the water was turned on after Luccia vacated the leased premises. The damages were caused by faulty plumbing work which Luccia had performed. All conditions precedent to recovery have been performed or have occurred. Ross also seeks to recover her attorney's fees in connection with this action, in an amount of at least $50,000.00.

Also, in her prayer, Ross requested "recovery of damages as a result of Luccia's breach of the Lease."

Ross filed a motion for summary judgment challenging Luccia's breach of contract lawsuit for the refusal to sell the property. Ross's motion, as amended, asserted that (1) Ross satisfied her obligations under the Lease Agreement when Luccia exercised the option to purchase in the attempted sale of the property that never closed, and Ross was no longer required to give Luccia a second opportunity to exercise the option to purchase; and (2) the evidence was undisputed that Luccia failed to timely tender the price due in a purchase contract, which therefore precluded Luccia's right to obtain specific performance that would require that the sale of the property take place. The sole assertion in Luccia's motion for summary judgment was that the terms of the Lease Agreement allowed him to have multiple attempts to exercise the option to purchase the property, and that the only limitation was the limitation that the option be taken during the term of the lease. Within this issue, Luccia raised the same issues in the motion for summary judgment as in this appeal, that the option survived the failed closing of the Purchase Contract and that actual tender was not required.

The trial court granted Ross's amended motion for summary judgment, rendering judgment that Luccia take nothing against Ross. Further, the trial court's order "adjudged and decreed that all claims to any option, right to purchase or other interest in or claim asserted by [Luccia] to certain property located at 3209 Montrose ... be and is hereby removed as clouds on [Ross's] title to such real property described above." The trial court did not specify the grounds on which it granted summary judgment. The trial court later severed Ross's breach of contract claim into a separate cause of action.¹

Summary Judgment Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). As here, when both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented. Comm'rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 411-12 (Tex. App.-Houston [1st Dist.] 1998, no pet.). We render such judgment as the trial court should have rendered. Agan, 940 S.W.2d at 81; Rubalcada, 960 S.W.2d at 412. When, as here, a summary judgment does not specify the grounds on which it was granted, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

Summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX.R.CIV. P. 166a(c). A motion must state the specific grounds relied upon for summary judgment. Id. In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence Operating Co., ...