Dickey v. McComb Development Co., Inc.

Dallas, orders. County See Dunn v. (Tex.App.-Dallas writ). Second, Gonzalez claims the or- der of transfer involved the exercise of

judicial discretion, per- and thus was not in light Judge

mitted Ponce’s disqualifi- Jimmy Swaggart cation. See Ministries Ass’n, v. Tex. Commerce Bank Nat’l (Tex.App.-Houston 775-77 writ). examplе, [14th Dist.] For in order to determine that a transfer of the

contested case to district court was war- ranted, Judge Ponce ‍​‌​‌‌​‌​‌​​​‌​​‌‌​‌​​‌‌‌‌​‌‌‌​‌‌​‌​​​‌‌​​‌​​‌​‌‌‍had to conclude that timely motion to transfer was filed.

Determination of this necessarily factor involved the exercise of discretion. There-

fore, Judge we conclude that Ponce had no

authority sign the transfer order be-

cause it involved the exercise of discretion.

Conclusion Based on the foregoing, conditionally we grant Annette petition Gonzalez’s for writ mandamus, if which will issue trial court does not vacate its order trans-

ferring the underlying county cause from Further,

court to district court. deny we petition Valerie Prescott’s for writ of man- damus. DICKEY,

Forrest Jr. and Rose Dickey, ‍​‌​‌‌​‌​‌​​​‌​​‌‌​‌​​‌‌‌‌​‌‌‌​‌‌​‌​​​‌‌​​‌​​‌​‌‌‍Appellаnts, McCOMB DEVELOPMENT

CO., INC., Appellee. No. 04-02-00289-CV. Texas, Appeals Court of San Antonio. June T. Patrick Fowler and

Bryan William Fowler, Conroe, Appellee. Madisonville, Appel- Tinsley, Alan L. lant. Justice, STONE,

Sitting: CATHERINE GREEN, Justice, and PAUL W. MARION, BRYAN Justice. SANDEE

OPINION GREEN,

Opinion by W. Justice. PAUL wrongful a This case arises from termi- Appellants of contract suit. For- nation Rоse Ann rest and filed suit Appellee Development McComb (McComb) Inc., Co., claiming wrongfully par- terminated the land, contract for the sale of failed to ties’ a proper pay- notice of default provide land, to give for the and failed ment opportunity to cure Dickeys a sufficient counterclaim, filed a the default. McComb breached the ‍​‌​‌‌​‌​‌​​​‌​​‌‌​‌​​‌‌‌‌​‌‌‌​‌‌​‌​​​‌‌​​‌​​‌​‌‌‍alleging sought a declara- contract. McComb judgment provisions the notice tory by inapplica- were advocated hand. See Tex. PROP. case ble to the (Vernon 1995).1 §§ 5.061-.063 Codе Sept. September Leg., 74th 1. Amended Acts ch. eff. claim, The trial court found in alleging favor of breach of contract and granting nothing a take verdict in favor. seeking declaratory its judgment appeal now in two issues. notice did apply. Following a bench the

Background trial court nothing judg- rendered a take ment in 25, 1992, finding favor of Texas February Appellants On For- Property §§ inap- Code 5.061-.063 to be Dickey rest and Rose Ann a entered into plicable holding and that additional notice Appellee contract for deed with McComb Co., Inc., priоr was not Development required to the cancellation purchase for the Dickeys’ of the contract. The trial court approximately 1.24 acres of land in Mont- possession awarded title and of the land to gomery County, Subsequent Texas. to en- contract, tering attorneys McComb and refused to award Dickeys into the made fees to Dickeys The now property several to the and appeal in two issues. moved years onto land. Several later Dickeys it necessary found to move off Property § of the change because of a attempt deed restrictions. After a failed issue, Dickeys their first Dickeys eventually claim the trial court in finding erred leased the land to a third party. wrongful was termination of the con tract 10, between themselves and McComb. 2000, Dickeys On about June Although Dickeys specifically received a notice from McComb which frame sufficiency, they this issue as one of stated that the Dickeys delinquent were essentially are arguing that evidence of their monetary install- legally submitted to the trial court was and April ments for May and of 2000 and had fаctually support insufficient to the trial pay also failed to certain taxes. court’s conclusion. The notice Dickeys they informed the had 13, 2000, days, 30 until July to correct In determining whether these defaults or the contract would be presented at trial sufficient terminated would lose support finding, a trial court’s we consider their property. interest in the On only the most evidence favorable to appropri- tendered the disregard court’s decision and all evidence ate sum to McComb.2 McComb returned contrary. and inferences to the Lenz v. days the check two later with a letter from Lenz, (Tex.2002). 79 17 If attorney, stating its was re- than there is more a scintilla of evidence to jected it day was one late and findings, sufficiency the legal terminating Dickey/ contract. challenge will fail. Formosa Plastics subsequently brоught Corp. Eng’rs suit USA v. Presidio & Contrac tors, (Tex.1998). against McComb for wrongful termination 960 S.W.2d contract, of the alleging reviewing sufficiency that McComb the factual of evi dence, comply failed to with 5.061 of the Texas we examine the evidence in a neu a Code. McComb filed countеr- tral and will reverse if the chal- May. appropriate property pre- section amended renumbered taxes had section 5.064. viously paid proper taxing been author- ity- $403.00, Dickeys paid 2. The the combined April due amount of the installments mean, finding great is so absent from it does lenged physically itself, preponderance longer is no his weight abode Bain, Malnar, 929; manifestly unjust. as to be Cain residence. (Tex.1986). 175, 176 (Tex. Barnett, Kirk v. 1978, no Civ.App.-Houston [14th Dist.] trial, At that Texas argued writ). 5.061, 5.062, and Property Code sections situation, man- applicable 5.068 are thе testimo- At offered period dating a 60 cure before a seller prove ny of Rose purchaser’s enforce forfeiture of a to reside on the (1) at proper- interest when of a least 20% not actual- spite in of the fact that did (2) purchase price paid and ty’s has been land of the ly on the at the time live property is “used or be used as the the to breach. Rose Ann testified alleged purchaser’s residence.” See Tex. PROP. to and made the 5.061(Vernon 1995). Because in home on the land their mobile lived parties stipulated both have to the fact approximately 1998. In from 1992 to paid that the had than 20% more the Dickeys were forced to move off of the purchase price of the total at the time of change to a in restrictions land due land breach, alleged to be the thе issue daugh- desire to and their continue by this the resolved Court is whether showing in participation raising ter’s Dickeys’ professed to reside animals. at- After the moving, property at some future date undisclosed and, tempted property when require to of applicatiоn is sufficient the failed, to property that venture leased provisions. Code’s notice party.3 Rose Ann testified a third McComb contends family did not mail at the receive apply there is no evidence that the designation had their homestead realty contract invоlved or be used used to taxing property by from the removed as a residence. to authority, longer registered and were The term has been “residence” in County. Montgomery vote or place as the actually construed where one Rose Ann testified that she Finally, оr has his home. Corning lives Owens intended back onto her husband to move Carter, (Tex.1999); 571 in than property no sooner Mechell, Malnar v. S.W.3d years from time of five (Tex.App.-Amarillo pet.). “Resi high daughter graduated from when place connotes a fixed dence” home and a addition, Ann was not school. Rose to which of habitation one returns when date, stating to able to commit Corning, away. Owens at 571. predict the future” and she “can’t not, however, An individual does have her depended moved whether present physically be within the home producе not daughter. did to claim it as his He order residence. prepara- plans evidence definite temporarily place while main live one question. to the tions to return Malnar, taining residence his in another. addition, light fact in a most favorable 91 S.W.3d at 928. Viewed reasonаbly a trier fact could that an individual the abode while leases record, appear, executory contract 3. The from the was in violation have leased the until the family from 1998 had with McComb. leasing time trial in 2002. of the land responded, up infer from the record that “Takе it with Rose Ann” going money. Although be used as residence and handed her Because there is more than Dorothy physically testified that she did support a scintilla of evidence to trial payment take the from Rose moth- Ann’s finding, er, court’s we find the evidence to be during testimony at no time her did she Lenz, appear accepted sufficient. ‍​‌​‌‌​‌​‌​​​‌​​‌‌​‌​​‌‌‌‌​‌‌‌​‌‌​‌​​​‌‌​​‌​​‌​‌‌‍See 79 S.W.3d at to have as Likewise, 17. viewing timely even evidence and curative of the default. a neutral can not light, say we the evi- Again, viewing dence was so against great weight ruling, most favorable court’s prеponderance of the evidence as to be than a exists more scintilla Cain, manifestly unjust. See 709 Dorothy accept McComb did not evidence, then, at 176. The factual- is also Lenz, curing as the default. See ly trial sufficient to court’s Additionally, 79 S.W.3d at the court’s decision. hоlding great weight is not Cain, preponderance of the evidence. See Acceptance Waiver/ such, at 176. As we find the Dickeys argue, The in the al supported by trial decision both court’s ternative, that even if the notice factually sufficient evidence. in apply, the trial court erred hold Dickeys’ first issue is therefore over- ing the default not cured. The Dick was ruled. eys acceptance contend that of McComb’s effect, payment, their late served as a Attorneys Fees any waiver of forfeiture. issue, In their second thе Dick brief, argues In its trial court erred in disal eys contend the argument origi- waived this because their lowing attorneys their fees. The petition nal asserted that McComb re- argue the trial court should have awarded fused, accepted, attempt rather than their necessary attorneys them reasonable However, to cure the default. fees, judicial taking notice of “usual contrary evidence was introduced to the ... without customary attorney’s fees objection. with no Assuming further evidence.” Tex. Civ. PRAC. & Rem. appeal, did not waive this issue on we must 2003). (Vernon presented determine whether original petition, Dickeys argue trial was sufficient to court’s they attorneys are to fees that entitled acceptance or refusal finding regarding the pursuant to section 37.009 of the Texas payment. of late ap Civil Practice and Remedies Code. On however, be peal, they they At that claim should trial Rose testified 38.004. Dorothy awarded the fees under section her mother delivered the check only applicable is morning July McComb on the of Section 38.004 due, party attorneys feеs when a payment recovery after the and that contrast, Hasty v. 38.001. See Dorothy accepted pleads the check. under Section Buckhorn, 494, 503 her Inwood Dorothy McComb testified she had denied). (Tex.App.-Dallas writ attorney begin procedures the foreclоsure for fees does not fall under evening pay- once the a claim When received, 38.001, take in- the trial court not ment was not and that she section as re judicial attorney’s notice of fees formed Rose Ann’s mother the late, quested by Ann’s mother Coward Gate- was too to which Rose (Tex. I Bank, concur attempt property. way eys’ Nat’l court, majority that the trial as 1975); Because with Hasty, 908 S.W.2d at 503. fact, reasonably infer could the trier fees request attorneys did not did not from record in their under 38.001 or 38.004 sections to use this in fact intend they any original have waived pleadings, as a residence. future attorneys claim fees this statute. under importantly, Dickeys did Perhaps most note, however, compelled I am prevail claims. We overrule display this case the inherent the facts of issue. Dickeys’ second a cоntract unfairness that can arise when of obtain- is as a means for deed judgment of the trial court is af- Brown, property. Pamela ing real See firmed. Colonia, toUp Help Team Lawyers (2000) by: (noting that contracts Concurring opinion Tex. B.J. 462 CATHERINE are interest notes that STONE, high for deed often Justice. virtually impossible pay off are opinion by: Concurring CATHERINE years find that pay can families STONE, Justice. can if one lose missed judgment majori- I concur property, including any ty. however, I I separately, write made). Indeed, in this case that had been majority has irrele- believe considered history undisputed despite it is vant trial court’s reviewing payments, Dickeys did several late undisputed It Dick- decision. payments. It cure missed late eys subject currently do not on the reside paying that after more than appears $200 property, thus pеr eight years, after mak- month for trial court to determine was whether property, ing improvements to the “to purchas- be used as the Dickeys have lost their interest point ‍​‌​‌‌​‌​‌​​​‌​​‌‌​‌​​‌‌‌‌​‌‌‌​‌‌​‌​​​‌‌​​‌​​‌​‌‌‍er’s at some future. residence” they tendered their property because (a) (Vernon PROp.Code See per- late. law Sadly, check one Tex. Supp.2003). In answering question, occur. mits this to no need to the Dick- is consider that eys mail property, do not receive at the

they exemption have a homestead regis- or that property, are not cоunty

tered or to vote an where the located. Since BAIN, Appellant, Michael Andrew in the to reside gain protections future is sufficient Texas, Appellee. STATE Code, where No. 06-02-00017-CR. present or vote or work time reside consequence. is of is of conse- What Tеxas, Appeals of Court of however, quence, Dickey’s is Mrs. state- Texarkana. plan to prop- ment that return to the 18, 2003. Submitted June erty 2007. sooner than The trial court Decided credibility to assess the of this was entitled light testimony absence plan preparations a return

definite the Dick-

Case Details

Case Name: Dickey v. McComb Development Co., Inc.

Court Name: Court of Appeals of Texas

Date Published: Jun 25, 2003

Citation: 115 S.W.3d 42

Docket Number: 04-02-00289-CV

Court Abbreviation: Tex. App.