*2 STOREY, аnd AL- the effective date of the days from Before SPARLING LEN, tract. JJ. date of the effective days Within eleven STOREY, Justice. rejected Hott, buyer, Charles W. sued stating a letter to Hott the contract Inc., seller, per- cy/Christon, specific the re- as modified.” After “unacceptable
formance of a land sales contract. the Pearcy/Christon, but before jection by title cy/Christon counterclaimed to quiet lapsed, had Hott tendered sixteen days asserting its land lack of consideration for $5,000 which Pearcy/Christon agreement its es- convey. pleaded Hott money There was no promptly refused. counterclaim, defense to and toppel in the Pearcy/Chri- Hott to paid by nor tendered alternatively, sought damages for breach of $5,000 tender. ston before and contract fraud in the inducement. that Pearcy/Christon concedes appeals Hott from summary been a had “had there contract and [Hott] granted Pearcy/Christon claiming error in ear paid [Pearcy/Christon] accepted and grant the court’s refusal to summa- his own contract, on the money nest [Hott] ry judgment perform- motion for specific We option purchase.” have a valid judg- ance and also its of summary generally the mutual agree. promise While ment against damages. claims for We sell are buy sufficient tо create affirm. land, they are convey contract to binding The contract sued upon prepared by liability the is buyer’s not sufficient when accepted Hott and by Pearcy/Christon sub- money. of his earnest limited to forfeiture ject to certain counter-рroposals which it in an limiting results liability The effect inserted in the its Upon contract. return will of revocable at the option purchase, Hott the approved but counter-proposals, seller, unless and until an independent the made certain additionаl alterations before Bloom, paid. Echols v. 485 consideration signing. Pearcy/Christon that these claims 798, 800 (Tex.Civ.App. S.W.2d —Houston alterations were material and consequently Here, writ ref’d [14th Dist.] the contract became a which counter-offer the option revoked was never accepted it. the by Although independent the payment bulk the arguments on deal appeal with of the as well before Hott’s exercise the effect of these changes in terms of option. we unnecessary find it contract cоm option An has two reach these issues because we hold which ponents: (1) underlying contract granted contract an option which was re- (2) the binding accepted; is not until voked before the payment independent open hold to the optionеe covenant to consideration that would an make it irrevo- De accept. Key Plantation opportunity option cable contract. Co., v. 589 velopers, Mortgage Inc. Colonial
Essential to our two holding provi- are (5th option Cir.1979). F.2d The sions оf contract. is that provision One terms component states the agreement which limits Hott’s liability under the seller is to sell his willing tract to forfeiture of his earnest money. land, within optionee accept if the elects to The makes contingent other the cоntract Aerojet-General Corp. time. agreed purchaser’s ability Kirk, to secure satis- F.Supp. (N.D.Fla.1970); financing. Mitchell, did at 40 factory Broady an immediate of earnest Both require payment (Tex.Civ.App.1978). option provide but it did that was to money, supported must be underlying Echols, payments series of to the seller to by make a consideration. 800; financing Key Developers,
extend the deadline of the contin- 589 F.2d Plantation The first such in the gency. payment, passed, at 168. If no consideration has $5,000, amount was to be sixteen its J. рaid option during is revocable term. PERILLO, J. CALAMARI & disagree CONTRACTS tion. We contentions. allega- 2-27 (2d 1977). ed. Once consideration § all three of these issues to passes, option presented becomes irrevocable tions court, summary judg- this is the trial which denied typically what labeled 4-15, granted of Hott’s claims and contract. Id. at 158. all § motion. We reach With contracts that are court neces- conclusion here the trial supported consideration there is no re re- sarily of these issues when disposed quirement mutuality obligation be re- parties’ solved the cross-motions nature, very cause their one three issues sponses all obligated perform at the election pleaded the trial court. Hott any executory other who is bound upon Pear- alleging that in reliance Hues, obligation. Smith v. he cy/Christon’s representations purchased 485, at gives 490. When the notice optionee *4 a lot. parking for use as adjacent property the and complies or otherwise with terms his judgment for summary Hott moved option regardless conditiоns of — in and specific performance entire claim for option existence of for the —a affidavit, was also supporting his formed, one executory bilateral contract mo- Pearcy/Christon’s in to response made and the party having convey duty summary stated: judgment, tion other El Natural duty pay. Paso 28, believing that Pear- On October Associates, Building Gas Co. v. Western obli- contractually Inc. was cy/Christon 1135, 1140 (10th Cir.1982); F.2d 1A A. COR de- convey property to me gated to BIN, 264, (1963). at 514-15 CONTRACTS § a A, solely scribed on Exhibit here, we conclude Under facts I on this contract reliance my result of was made option never irrevocable tract an additional purchase contracted to of Pear- payment consideration and as a for use of land a third from option it cy/Christon revoked the bеfore of with a tract lot in association parking terms. accepted according was to its Pearcy/Christon, purchased land from 800; Echols, Real Granger 485 S.W.2d at so had Pear- Inc. I not have done Anderson, Estate Exchange v. 145 S.W. into Inc. not entered cy/Christon, writ). (Tex.Civ.App. no A. as Exhibit contract attached hereto — Austin It was con cannot be said that this a void [emphasis added] a tract but it never became merely that estoppel Hott relies on Whether binding An owner of land has contract. not estoppel equitable by contract or power to an to his respect with to but the facts pleadings, clear from the terms property any upon any time and demonstrate his affidavit gether with gives law him the may he see fit. And the upon not may rely law that he matter of power gratuitous option to revoke will not contract Estoppel by either theory. therefore, conclude, it is We that accepted. fully not exe was lie because the contract re proper was with summary judgment independent of considera cuted payment specific perform spect Hott’s claim Equitable Echols, at 801. tion. ance. re requires it not lie because estoppel will upon misrepresentation, which that the trial liance Hott next contends Be Echols, id. at 802. here. judgment presеnt granting summary court erred in as a matter dispose estoppel plead did not cause judgment because the defense, upon to estab relied damages based facts two alternative claims Hott’s affidavit Hott lish it contract and fraud. were upon brеach of response as in motion as well judgment that did of his also contends motion, the matter estoppel promissory Pearcy/Christon’s his claim of dispose of judg by summary disposed defeat Pear- was alleged properly which was lack considera- mеnt. defense of cy/Christon’s was a agree Hott sole and I Similarly, because relied tends —the contract his contract at all. This is
ly pactum: on the belief that nudum no obligated convey truth of whether regardless a basic rather upon any representa than or a contract sale. property document is an by Pearcy/Christon, tion made him majority’s with the disagree I further element of fraud is Hott lacking. essential of the issues of disposition alleged “By entering that into fact pled estoppel Plaintiff Hott fraud. ... or expressly defendant fraud; therefore, obtain successfully implication in fact at law represented or Pearcy/Chri- summary defendant obli perform defendant intended cannot ston must demonstrate gations thereunder.” It clear pleaded. as his case is Clark prevail Hott’s as well as his pleading (Tex. Hospital, Memorial that he did not rely 1977, writ). Civ.App. Tyler— any representations by Pearcy/Chri- made Summary Motion for ston but instead relied the written August 1981, alleged dated Judgment Therefore, document. while Pear- consideration, but that the “contract” lacks cy/Christon’s judgment motion estoppel or regarding the motion is silent negate claim, did not Hott’s fraud Hott’s On 1981 Hott countered fraud. pleading claim, own and motion negated the his motion for and we should not remand the case for trial Pearcy/Christon’s motion. answer already an issue *5 resolved. of spoke only validity Hott’s motion to the Finally, in the of absence a allege by he did affi- although binding contract supported by considera repre- a reliance a davit detrimental tion, Hott cannot succeеd on his of breach On by Pearcy/Christon.1 sentation made event, claim. In any Pearcy/Chri- 26, 1981, Pearcy/Christon again complied ston the terms of the motion summary judgment filed a by revoking acceptance. Again, answer to Hott’s motion. that the was cy/Christon alleged document Consequently, Pearcy/Christon as movant contract, and, again, as a unenforceable established its right to summary judgment estoppel. there was no mention of fraud or title, matter of law on its claim to quiet sum, In nowhere demon- which necessarily disposed оf the specific prevail that Hott under his strated cannot performance issues, promissory estoppel of fraud and pleadings estoppel. and also demonstrated as a matter law of that there could be no issue of fact relative Yet the claims majority “[T]he damages Hott’s affirmative claims for allegations presented for fraud and breach of contract. trial all three of these issues to the here court.... We reach conclusion
The
is affirmed.
trial court
of
necessarily dispоsed
SPARLING, Justice,
parties’
these issues when it resolved the
dissenting.
responses
cross-motions
The majority
space
devotes considerable
all
issues
the trial court.” The
three
issue
whether the
state-
simply
record
does not
this
question
was an
or a contraсt of sale.
ment.
I find the majority’s conclusionunnecessary
an option
because
is a contract —for which
of the
of es-
majority disposes
issue
Therefore,
there must be
by simply stating
[estoppel]
consideration.
if
“...
toppel
there
no
a
passing
requires
upon misrepresentation
reliance
Hott to Pearcy/Christon
was not
here.”2
such
majority
present
By
which
—as
allegation
quoted
opin-
majority
supporting
conclusion, majority
grand
1. This
in the
2.
In
Bloom,
ion.
cites Echols v.
ment, point theory out to court properly pled which was but unad
recovery
dressed defendant’s Motion for Summa Tatum,
ry Judgment. 33. I refuse follow Tatum. respectfully BYRD, Appellant, Sam City of Houston v. Clear Creek Basin (Tex.1979), Authority, *6 PHARRIS, Appellee. Bobby Lee may trial court teaches “[t]he default for judgment by No. 04-83-00457-CV. lack in response of an answer or Texas, Appeals Court of motion the mov- non-movant when Antonio. San ant’s summary judgment proof legally Creek, 589 at insufficient.” Clear 9, 1983. Nov. 678. A defendant has the burden estab lishing by judg motion he is entitled recovery. of law all theories of
matter Telephone Bell
Chessher Southwestern
Co., (Tex.1983); Ashcroft Co.,
W.T. Bradshaw and 601 S.W.2d 1980, writ ref’d
(Tex.Civ.App. — Eastland proof does shift burden of the movant Creek, 589 S.W.2d
proceedings. Clear In v. Texas General also Orozco (Tex.Civ.App. Co., dem. — El promise writ).
Paso Because trial “no evidence.” record had entire court Echols conclusion of to draw the before it from which