Annette Burrus v. Tornillo DTP VI, L.L.C.
08-13-00333-CV
| Tex. App. | Dec 11, 2015Background
- Burrus executed a real estate purchase contract to sell property containing a mobile home occupied by the Reyes family; the contract required Burrus to relocate the mobile home and deliver possession within 30 days after closing.
- Franklin Land assigned the contract to Tornillo DTP VI, L.L.C., which intended the site for a Dollar General store; construction began in 2012 but was delayed because the Reyes family remained on the property and sued claiming an oral contract for deed.
- The Reyes family obtained a temporary restraining order, halting construction and exposing Tornillo to delay costs and potential liability under its lease with Dollar General; Tornillo settled with the Reyes family to minimize damages.
- Tornillo sued Burrus for breach of the purchase contract seeking monetary damages for the costs and consequences of Burrus’s failure to remove the Reyes and the mobile home; the trial court granted summary judgment for Tornillo.
- Burrus appealed, arguing (1) the summary judgment relied on an affidavit containing inadmissible hearsay and (2) the contract limited Buyer’s remedies to specific performance or termination (with return of earnest money), precluding monetary damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of affidavit (hearsay) used for summary judgment | Burrus: affidavit contains inadmissible hearsay and should not support summary judgment | Tornillo: affidavit was proper summary-judgment evidence | Court: Error not preserved—Burrus objected but obtained no written or implicit ruling, so hearsay objection waived |
| Whether contractual remedy clause made remedies exclusive | Burrus: clause limits Buyer to specific performance or termination and refund of earnest money (no other damages) | Tornillo: clause is permissive (“may”); remedies not expressly exclusive, so other remedies available | Court: Clause permissive, not exclusive; Tornillo could pursue monetary damages for breach |
| Entitlement to monetary damages for breach | Burrus: contract precluded money damages; only contractual remedies allowed | Tornillo: sought consequential damages for breach (delays, settlement costs) | Court: Monetary damages permitted; summary judgment for Tornillo affirmed |
Key Cases Cited
- Giese v. NCNB Tex. Forney Banking Ctr., 881 S.W.2d 776 (Tex. App.—Dallas 1994) (evidence defects in form for summary judgment must be raised and ruled on)
- Vasquez v. S. Tire Mart, LLC, 393 S.W.3d 814 (Tex. App.—El Paso 2012) (objections to summary-judgment evidence must be ruled on or are waived)
- Trinh v. Campero, 372 S.W.3d 741 (Tex. App.—El Paso 2012) (implicit ruling must be shown by record beyond granting summary judgment to preserve objection)
- Strunk v. Belt Line Road Realty Co., 225 S.W.3d 91 (Tex. App.—El Paso 2005) (preservation of complaint about summary-judgment evidence requires trial-court ruling)
- Pelto Oil Corp. v. CSX Oil & Gas Corp., 804 S.W.2d 583 (Tex. App.—Houston [1st Dist.] 1991) (inclusion of a remedy in a contract does not make it exclusive absent clear intent)
- Bifano v. Young, 665 S.W.2d 536 (Tex. App.—Corpus Christi 1983) (courts should not construe contractual remedies as exclusive unless clearly intended)
- Vandergriff Chevrolet Co. v. Forum Bank, 613 S.W.2d 68 (Tex. Civ. App.—Fort Worth 1981) (same principle regarding exclusivity of contractual remedies)
- Winston Acquisition Corp. v. Blue Valley Apartments, Inc., 436 S.W.3d 423 (Tex. App.—Dallas 2014) (contract language expressly stating a remedy is the “sole and exclusive remedy” will limit recovery)