Annette Burrus v. Tornillo DTP VI, L.L.C.
08-13-00333-CV
| Tex. App. | Nov 13, 2015Background
- Burrus entered a real estate purchase contract to sell land; contract required Burrus to remove a mobile home and deliver vacant property within 30 days after closing.
- Purchaser Franklin assigned the contract to Tornillo DTP VI, L.L.C., which planned development for a Dollar General lease.
- The Reyes family occupied a mobile home on the property and claimed an oral contract for deed; their temporary restraining order halted Tornillo’s construction.
- Tornillo settled with the Reyes family, then sued Burrus for breach seeking monetary damages for delay and related expenses.
- Trial court granted summary judgment for Tornillo; on appeal Burrus argued the supporting affidavit contained hearsay and the contract permitted only specific performance or rescission, not money damages.
- Burrus failed to include the affidavit and the purchase contract in the appellate record and did not obtain rulings on her hearsay objections in the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of affidavit (hearsay) | Burrus: affidavit contains inadmissible hearsay and should not support summary judgment | Tornillo: affidavit was part of the summary-judgment proof filed in the trial court | Court: Burrus waived the objection by failing to obtain a written ruling and/or preserve the evidence in the appellate record; issue overruled |
| Omission of affidavit and purchase contract from appellate record | Burrus: attached missing documents to her brief and argued error | Tornillo: documents were not in clerk’s record and cannot be considered on appeal | Court: documents not in record cannot be considered; presumes omitted evidence supports summary judgment |
| Available remedies under purchase contract | Burrus: contract allowed only specific performance or rescission, not monetary damages | Tornillo: asserted damages for breach arising from failure to deliver vacant possession and resulting losses | Court: did not reach substantive contract-remedy dispute because record omissions require presumption that contract supported judgment |
| Preservation of error for appeal | Burrus: timely raised objections to affidavit in trial court | Tornillo: no written ruling obtained; no implicit ruling shown | Court: objections waived without written ruling or record evidence of a ruling; appeal fails |
Key Cases Cited
- Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547 (Tex. 2004) (appellant must bring forward record of summary-judgment evidence)
- Reeves County v. Houston Cas. Co., 356 S.W.3d 664 (Tex. App. — El Paso 2011) (presumption that omitted evidence supports judgment)
- Robb v. Horizon Communities Improvement Ass’n, Inc., 417 S.W.3d 585 (Tex. App. — El Paso 2013) (documents attached to brief but not in record cannot be considered)
- Warriner v. Warriner, 394 S.W.3d 240 (Tex. App. — El Paso 2012) (same)
- Fox v. Wardy, 234 S.W.3d 30 (Tex. App. — El Paso 2007) (refusing to consider affidavit attached only to brief)
- Giese v. NCNB Tex. Forney Banking Ctr., 881 S.W.2d 776 (Tex. App. — Dallas 1994) (defect in form of summary-judgment evidence requires objection and ruling)
- Vasquez v. S. Tire Mart, LLC, 393 S.W.3d 814 (Tex. App. — El Paso 2012) (hearsay objections to summary-judgment evidence must be preserved)
- Trinh v. Campero, 372 S.W.3d 741 (Tex. App. — El Paso 2012) (requirement for an implicit ruling to preserve error)
- Torres v. GSC Enterprises, Inc., 242 S.W.3d 553 (Tex. App. — El Paso 2007) (same)
- Strunk v. Belt Line Road Realty Co., 225 S.W.3d 91 (Tex. App. — El Paso 2005) (same)
Conclusion: Judgment affirmed; appellate court presumed omitted summary-judgment evidence supported the trial court and found Burrus failed to preserve objections to the affidavit.