Andre K. KARAM D/B/A Andre Karam Company, Appellant/Cross-Appellee, v. Seok Lee BROWN, Appellee/Cross-Appellant
2013 Tex. App. LEXIS 9095
| Tex. App. | 2013Background
- In Aug 2007 Brown bought commercial property from Karam, executing a $300,000 note secured by deed of trust and vendor’s lien; note/deed allowed acceleration on default.
- Karam’s counsel sent a July 9, 2010 notice of default and demand to cure; on July 13, 2010 counsel sent another letter declaring the balance due if not cured and enclosed a Notice of Substitute Trustee’s Sale for Aug 3, 2010.
- Brown made an irregular 2010 payment history: some full, some partial payments, and at least one month (June) with no payment; disputed partial payments included $2,954.22 (claimed credited as April) and $649.41 (claimed received mid‑July).
- Karam foreclosed and purchased the property at the August 3, 2010 sale; Brown sued for declaratory relief, wrongful foreclosure, and breach of contract.
- At bench trial parties stipulated to the 2010 payment report and to attorney‑fee stipulations; trial court found for Brown, awarded damages and trial attorney’s fees but denied appellate fees and denied Brown’s motion to amend and Karam’s motion to reopen.
- On appeal the court affirmed parts favorable to Karam but reversed/remanded as to Brown’s cross‑issues (appellate fees, damages computation, and denial of leave to amend).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the July 13 notice and enclosed trustee’s sale constituted notice of acceleration | Brown: the combination was a clear, unequivocal acceleration (notice of intent then notice of acceleration) | Karam: acceleration only would take effect after the cure deadline (contingent) | Held: July 13 letter + posted notice constituted clear notice of acceleration; trial court correctly found acceleration occurred |
| Factual sufficiency of findings that Brown made a mid‑July $649.41 payment | Brown: trial court credited testimony that payment was received about mid‑July | Karam: testimony imprecise and other records place payment in June or not at all | Held: trial court’s findings not against great weight; testimony uncontroverted as to receipt; finding upheld |
| Factual sufficiency of finding that Brown made $2,954.22 (April) payment | Brown: corporate rep testified she received a cashier’s check in March that should have been credited as April | Karam: payment report showed no April payment; check dated 2009 | Held: conflicting evidence permissible; trial court reasonably credited testimony; finding upheld |
| Whether trial court abused discretion by denying Karam’s motion to reopen to admit bank statement showing June payment | Karam: bank statement would prima facie show June payment and was decisive | Brown: evidence was available to Karam and not produced; trial court balanced reopening factors | Held: no abuse of discretion; Karam failed to show diligence or lack of availability; denial affirmed |
| Whether Karam waived right to accelerate by accepting payments after declaring default | Brown: accepting post‑default payments (including July partial) was inconsistent/inequitable and waived acceleration | Karam: accepted payments were not acceptance to cure; no waiver shown | Held: trial court properly found waiver—Karam’s conduct inconsistent and inequitable; waiver sustained |
| Whether trial court erred in denying Brown appellate attorney’s fees, miscalculating damages, and denying leave to file trial amendment | Brown: appellate fees were stipulated and mandatory when trial fees are awarded; trial failed to subtract the April payment from outstanding balance; denial to amend prejudiced her | Karam: trial court discretion; challenges to calculations | Held: appellate fees award reversed (must award stipulated appellate fees); damages remanded to correct arithmetic (add $2,954.22 credit); denial of leave to amend was an abuse—remanded for further proceedings |
Key Cases Cited
- Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562 (Tex. 2001) (both notice of intent to accelerate and notice of acceleration must be clear and unequivocal)
- Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232 (Tex. 1982) (notice of intent to accelerate must precede notice of acceleration and afford opportunity to cure)
- Meadowbrook Gardens, Ltd. v. WMFMT Real Estate Ltd. P’ship, 980 S.W.2d 916 (Tex. App.—Fort Worth) (notice of trustee’s sale following notice of intent can constitute notice of acceleration)
- McLemore v. Pacific Sw. Bank, FSB, 872 S.W.2d 286 (Tex. App.—Texarkana) (same—trustee’s sale notice can serve as notice of acceleration)
- Burney v. Citigroup Global Markets Realty Corp., 244 S.W.3d 900 (Tex. App.—Dallas) (filing for expedited foreclosure or notice of sale after intent-to-accelerate can constitute notice of acceleration)
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (standard for reviewing conclusions of law and upholding judgment on any legal theory supported by evidence)
- DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160 (Tex. App.—Fort Worth) (if trial attorney’s fees are mandatory under §38.001, appellate fees are likewise mandatory)