Elena Markovsky v. Kirby Tower, L.P.
01-13-00516-CV
| Tex. App. | Dec 15, 2015Background
- Elena Markovsky contracted to buy a condominium from Kirby Tower, L.P., depositing $300,000 (10% purchase price) as earnest money refundable if the unit was not completed by May 31, 2008.
- The unit was not finished by that date, but Markovsky continued to engage in selection and customization activities and did not notify Kirby Tower of termination until November 5, 2008.
- Markovsky sued for declaratory relief and breach; a jury found Kirby Tower breached by missing the completion date but that Markovsky waived the breach by continuing performance; trial court entered a take-nothing judgment and awarded earnest money to Kirby Tower (later reversed on appeal because Kirby Tower had not asserted an affirmative claim for the earnest money).
- On remand Kirby Tower filed counterclaims (breach and declaratory judgment seeking the earnest money) and moved for summary judgment; it submitted the contract, the appellate opinion affirming the take-nothing judgment, and an affidavit that Markovsky had terminated and did not purchase the unit.
- The trial court granted summary judgment for Kirby Tower, awarding it the $300,000 plus interest; Markovsky’s motion for entry of judgment in her favor was denied. She appealed, contending summary judgment and denial of her motion were erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was improperly granted to Kirby Tower on its counterclaims | Markovsky argued fact issues existed on breach and affirmative defenses (compulsory counterclaim, limitations, unenforceable penalty) and that she could still obtain the earnest money | Kirby Tower argued its summary-judgment evidence conclusively established Markovsky’s breach, contractual right to retain earnest money on buyer default, and no viable affirmative-defense fact issues | Affirmed: summary judgment for Kirby Tower; its evidence showed contract, Markovsky’s breach (termination after waiver), and agreed liquidated-damages remedy; Markovsky failed to raise fact issues on defenses |
| Whether Markovsky raised fact issue that her termination was justified (no repudiation) | Markovsky claimed she reasonably (mistakenly) believed she could terminate because of noncompletion by May 31, 2008 | Kirby Tower relied on appellate finding that Markovsky waived the breach by continuing performance, so her later termination was a breach | Held: unilateral misunderstanding does not avoid liability; no evidence she retracted repudiation or cured breach — no fact issue on repudiation |
| Whether Markovsky preserved affirmative defenses (filed within seven days of hearing) | Markovsky argued the court considered her response and thus should be presumed to have granted leave to file the late answer asserting defenses | Kirby Tower argued defenses were waived because the answer was untimely and leave was not shown to be granted | Held: defenses waived (no affirmative showing trial court considered the late-filed answer); even if considered, defenses failed on the merits |
| Whether Markovsky could obtain entry of judgment awarding her the earnest money on remand | Markovsky asserted she remained entitled to declaratory relief awarding the earnest money based on noncompletion | Kirby Tower relied on its counterclaims and summary-judgment ruling; appellate law of the case barred relitigation of issues decided in the prior appeal | Held: Denial proper — prior appeal affirmed take-nothing judgment and precluded relitigation of her declaratory claim on completion-date theory; trial court properly denied her motion |
Key Cases Cited
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (standard of review for summary judgment)
- Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999) (movant must conclusively prove all elements of affirmative claim on traditional summary judgment)
- Briscoe v. Goodmark Corp., 102 S.W.3d 714 (Tex. 2003) (law of the case: appellate decisions govern subsequent stages)
- Ingersoll‑Rand Co. v. Valero Energy Corp., 997 S.W.2d 203 (Tex. 1999) (compulsory counterclaim rule)
- Henry v. Masson, 333 S.W.3d 825 (Tex. App.—Houston [1st Dist.] 2010) (continuing the contract after breach deprives party of excuse to cease performance)