*3 MсKEITHEN, C.J., Before BURGESS $28,000 paid by ation the sum of a third- GAULTNEY, JJ. later, party financier. Several months
Savages Doyles sued the for breach OPINION failing timely contract for to make a upon policy. They the homeowner’s sub- BURGESS, DON Justice. sequently pleading amended their to add ' Rocky Savage and Elena Hope Savage statutory prac- claims for appeal judgment granting summary tices and fraud in a real estate transaction. judgment defendants, for the Woodrow W. See Tex. Bus. & Com.Code Ann. Doyle Mary Doyle, Ann dispute (Vernon 17.46(b)(12),(24); §§ 27.01 2002 & arising out of a real estate transaction. Supp.2004). Savages allegedly discov- summary judgment We reverse the in part ered previous damage extensive water and remand for further proceedings con- they the home while were repairing the opinion. sistent with this damage leaking from the heater. water 3, July 2001, Doyles On Rocky According to an by Rocky affidavit filed Savage entered into a contract for deed Savage, no claim was made on the insur- $38,000 which Savage agreed to pay 17, 2002, May ance until and then the property. payment The final claim wаs denied for untimeliness. The $28,000 was due October 2001. The Doyles moved for summary judgment “de- required keep claring that the Plaintiffs’ claims have According insured. Rocky extinguished, been released and satisfied” affidavit, Savage’s the house sustained wa- recovery attorney and for fees. The ter damage from a water heater malfunc- trial granted the motion and entеred September about Rocky 2001. Sav- a take-nothing judgment. age reported to Woodrow and asked appellants to make a claim their first contend a his 16, 2001, insurance. On Rocky October material fact precludes summary issue Savage executed a judgment deed that re- on the breach of contract claim.2 cited as consideration the cancellation of summary judgment The motion for con- Rocky Savage case, Savage Hope judgment Elena al- 2. In a the issue on lege they appeal are married is whether the movants met their sum- to each other. The date by establishing burden that no marriage of their is a fact issue in this case. genuine issue of material fact exists and that аffidavit, Rocky Savage they In his avers were they judgment are entitled to as a matter of married when he executed the contract for 166a(c). law. Tex.R. Civ. P. The standards According Doyle’s deed. to Woodrow affida- (1) reviewing summary judgment are: vit, date, days Rocky five after that said movants for have the bur- going and Elena were not married and were showing genuine den thеre is no issue to be married in Hawaii. Where we refer to of material fact and that are entitled to name, Hope Savage by Elena her maiden we law; (2) deciding as a matter of do so ease and not be- identification disputed whether there is a material fact issue cause we have determined her marital status precluding summary judgment, evidence fa- any particular point in time. vorable to the non-movants will be taken as
234 Inc., Indus., Pittsburgh, tends executed PA v. CBI Rocky (Tex.1995). Savage canceled contract for S.W.2d operated to all claims deed and deed, A such as the
arising out of the contract for deed. The by Savage, instrument executed does Savages am- argue title s a conveyance establish but functions biguous regard whether title, or right right, of whatever interest intended release his by grantor possesses seek to a breach of the contract at the time of execution. enforce Enters., appellees, and that affidavit estab- Rogers his Ricane determination by lished an case, issue In this ap- *4 the appellees trier fact. The contend quitclaim operat contend the pellees deed quitclaim clear on face that it its as a of claims for ed release breach cancelled the contract and released contract, deceptive practices, and rights Rocky and all Sav- claims in a fraud' real estate transaction. “In age had this property.3 related to a effectively order to release claim in Tex as, 'men releasing the instrument must ambiguous a contract is Whether tion’ the claim released. if the to be Even question examining a by is of law decided executed, claims exist the release when is light the contract as a whole in clearly subject any claims not within the present circumstances its execution. discharged.” matter of the are not release v. New Corp. Columbia Gas Transmission v. Brady, Bank & Trust Co. 811 Victoria (Tex. Gas, Ltd., 940 589 Ulm S.W.2d (Tex.1991). “Further S.W.2d 1996). unambiguous An can be contract more, general categorical clauses release a as a given meaning or certain definite narrowly disputes Id. are construed.” The law, subject matter of a сontract over water insurance interpretation more than one reasonable deed, quitclaim not in the are mentioned of con applying pertinent after the rules expressly only Savage’s releases which ambiguous, a fact struction is and creates property. claim an interest the real parties’ “Although issue on Id. the intent. in oral statements the argue The the can recited vary tentions are inadmissible to or contra unrecorded contract for cellation the agreement, dict the the terms later-filed suit for breach deed negotiations and all prior examine of contract because contract has been on the bearing incidents relevant in the repudiated. cancelled recital parties.” Baty intent of the v. ProTech evidence that the con quitclaim deed is (Tex.App. Ins. Agency, by the tract for deed has been cancelled denied). 2001, pet. Dist.] Houston [14th contemporane It parties. was executed Parol for the evidence is admissible Elena ously warranty with deed to if purpose creating аmbiguity, but we thus, circumstances surround Hope; parol is ambiguous, determine a contract quitclaim deed ing the execution of evidence admissible resolve the ambi is support parties Co. guity. National Union Fire Ins. also conclusion true; (3) every to the effect the execu- must 3. The issue confined reasonable inference upon appel- quitclаim indulged deed be favor of the non-movants claim, and the merits of Nixon lants' contract doubts resolved their favor. Co., are Management contract for deed Mr. claim for breach of the Property before us. 548-49 Rocky cancelled the contract for Savages tend the cannot assert “a claim Savage. As the movants ambiguity” quitclaim in the deеd be- appellees must establish as comply plead- cause failed to with a matter of law that Savage re- ing requirements of Rule 94 of the Texas leased his breach when plaintiffs, Rules Civil Procedure. As parties cancelled the contract. We Savages required were not to assert agree petition. defenses in them affirmative We ambiguоus, clearly deed is not as it states: note that the deed and the cir- “for and in consideration of the sum of the surrounding cumstances its execution were cancellation of that one certain unrecorded court, presented trial as required ... good Contract for Deed and other the rule on procedure. valuable consideration....” When 166а(c). See Tex.R. Crv. P. contract was canceled in consideration for expressly deed does not the tort deed, parties’ obligations claim, and the cancellation of the contract under the contract ended. A cancelled for necessarily satisfy deed does not legal is ineffective as a obligation. Rocky Savage’s tort claim. affidavit raises *5 North, Ltd., Ferguson v. DRG/Colony fact issue on the intent in execut- (Tex.App.-Austin document; therefore, ing the the trial denied). 1989, writ The trial court cor- in granting summary judg- erred rectly granted summary judgment on ground. ment on that plaintiffs breach of contract claim because the contract was cancelled. Issue one is summary judg motion overruled. argued ment alsо that the contract provision deed contains an “as that is”
In their second appellants contend precludes “a claim for minor proper some the trial court erred in granting summary ty damage.”5 A valid is” agreement “as judgment on deceptive prac- their trade prevents buyer from holding seller tices claim.4 As with the breach of con- buyer agrеed liable because the has claim, tract moved for sum- determining take the full risk of the value on the of practices purchase and has disclaimed reli ground on the representations deed ance on whatever cancelled the contract for sell deed and released all Rocky Savage’s of er have made. See Prudential Ins. Assocs., against Doyles. Ltd., Appellees con- Am. v. Co. of Jefferson plaintiffs’ petition alleges 4. The any on this issue not on the of represented value, value, the defendants that the contract as to the future rights conferred or involved condition, or reme- size, use, age, or other mat- involve, dies it did not have or and that defen- Buyer acknowledges selling ter. that in dants failed to disclose information concern- property Seller makes no warrantied [sic] ing known the defendants at other than title. This contract is the entire the time transaction with the intent to only agreement Buyer and between and plaintiffs induce the into a transaction Seller, written, incorporates and it all other would not have entеred into had the informa- verbal, express, implied agreements tion been disclosed. any party any agent made between or any party to this contract in connection provides: 5. The contract for deed any provisions with this transaction. If in Buyer property Buy- has examined the any provisions this conflict in contract complete er’s satisfаction knows its instrument, any other those in this purchasing property, condition. In shall control. Buyer Buyer’s relies on examination and (1) (2) representation; falsity; on: do material “[W]e (3) (4) knowledge; to induce agreement that an can have actual intent suggest ‘as is’ (5) (6) reliance; reliance; injury. Id. every this determinative effect circum- affidavit, Rocky Savage at 834-35. In his buyеr by A agree- stance. is not bound walls, states that he did look inside the purchase something ment to ‘as that he is’ during inspection prop his but that induced to of a make because fraudulent erty spare plywood he found some representation or concealment informa- why it garage and asked Woodrow Id. at 162. “A seller seller.” According Savage, “Mr. wаs there. ways: cannot have it he cannot as- both any problems.” Savage also denied buyer thing the condition of a sure cleaning relates that while the water dam buyer’s agreement pur- to obtain the leak, age hot he and from the water heater is’, chase ‘as then disavow assur- Elena discovered additional water procured ‘as agreе- ance which is’ indicate had “would the home affecting validity Id. ment.” Matters previously damaged extensively.” been of a disclaimer of reliance include whether Doyle provided an affida reply, Woodrow inspection the seller obstructed an vit which states that the water the clause is an property, impor- whether been turned off seven months bеfore part bargain tant the basis of possession property, took boiler-plate, mere and whether the trans- knowledge had no leak that he sophisticated parties action is between According Doyle, in the water heater. “The dealing length. arm’s Id. repaired he and son had the roof on the his surrounding and the circumstances its for- *6 July house in and “there have mation determine whether disclaimer plywood” Doyle been some there. stated is binding.” Schlumberger of reliance Savage he that “explained Mr. before Swanson, Corp. Tech. v. affi we entered into a contract.” Neither (Tex.1997). This record reveals clearly, davit the matter but all states length provides arms’ but no transaction must be in favor of the inferences resolved sophistica- information about the relative appears Savage It discover non-movant. parties negotiation tion of the and the after he damage ed water inside the walls the contract terms. executed the contract deed. Woodrow summary the context of Doyle son in a re admits he assisted his containing buy a document July 2000, in and asserts pair the home conclusively disclaimer of reliance ne er’s Savage, roof reported repair that gates the element of reliance. Procter any prob “denied Capital Corp., RMC aware repair lems.” was of a pet.). no To (Tex.App.-Beaumont house could have condition of thе therefore, summary judgment, avoid damage the walls. resulted in water inside buyer present summary judg “must some Doyle claims he disclosed Although the represen ment evidence that ‘but for’ account according Savage’s roof repair, tations of the the condi seller of their conversation the communication contract, subject tion of the If the knew a roof did not occur. seller buyer assented to ‘as repair performed would not have and did had been in buyer, is’ clause the sales’ contract.” Id. fact to the that is some disclose that judgment it inferred response might evidence evidence from which be property representations regarding the condi seller was aware that that his work damage must raise fact issue had sustained water only the entire and corrected and that the seller This contract on the roof Seller, Buyer and agreement between damage. concealed the water We conclude written, incorporates and it all other disputed that the existence of issues of fact verbal, express, implied agreemеnts resolution of the trade precludes any any party agent made between practices through summary judg in this contract connection any party to ment, clause in notwithstanding “as is” any provisions If with this transaction. the contract for deed. Issue two is sus any provi- conflict with in this contract tained. instrument, those sions Savages’ The final issue addresses the contract shall control. this claim for fraud in a real estate transaction. no of the cause of the There is evidence Appellants contend the motion for sum- damage, damage other than the water does address caused the hot water heater valve claim. The motion refers to the “claim plaintiff after moved into which occurred сoncerning deceptive practices” Knowledge repair of a roof house. does not mention the claim asserted under cannot equated knowledge of wa- be 27.01, Section Business and Commerce no damage. presented ter Plaintiff evi- Appellees argue Code. their motion dence of in the inducement of the “as fraud assertеd the contrary, agreement. plaintiff is” To the all potential released claims. We he dis- prepared the which have that a fact found issue sum- any representation by claimed reliance on mary judgment on that ground. Issue concerning defendant the condition three is sustained. house. In the absence of evidence of of the trial court is re- frаud in the inducement of the “as is” versed, and the cause is remanded for ne- agreement, this contractual disclaimer proceedings further consistent with this gates any claim that about opinion. the condition of the house caused REVERSED AND REMANDED. plaintiff. I would issues two overrule *7 affirm judg-
and three and the trial court’s GAULTNEY, Justice, DAVID ment.
concurring dissenting. McKEITHEN, Justice, Chief STEVE concurring dissenting. one,
I concur with the resolution of issue respectfully but dissent to the resolution of I concur in the resolution of issues two issues two three. three, to respectfully dissent the overruling of issue one. contract, prepared by plaintiff, provided in part as follows: appellants In first con- their
5. Buyer property precludes has examined the to tend a material fact issue sum- Buyer’s complete satisfaction and knows on the breach of contract purchasing proper- majority its condition. In claim. The is correct when ty, Buyer Buyer’s summary judg- relies on examination “As movants for state: ment, not on the must establish as a value, Rocky Savage other as t the fu- matter of law that released value, condition, size, use, par- claim age, ture or his breach of contract when disagree the contract.” I Buyer acknowledges other matter. ties cancelled majority’s reliance on a rescission selling that in Seller makes with the in a authority denying for relief no warrantied other than title. case as [sic] of contract where suit breach MEZA, Appellant, Maria Ab- prior
breach occurred cancellation. part buyer, sent default on the parties’ is silent Texas, Appellee. The STATE of rights upon cancellation of the contract for No. 08-03-00094-CR. it would neces- deed. While have been sary to cancel the contract for deed in Texas, Appeals of Court of Doyles convey order for the clear titlе El Paso. Hope, necessary it was Dec. breach Doyles against Doyles order for the implement Hope. the transaction with I ambig-
conclude that the
uous, clearly as it does state the any right
grantor’s intention surrender
other claim to in the real than his title that no intent is evi-
property, and
dent from the context of the transaction. in response his affidavit to the motion Savage av- summary judgment, Rocky
ers he executed the deed because being conveyed into Ele- property was party
na’s and she was not a to the name He
contract for deed. further states that purposes signed deed was only, clearing the title and he no releasing any against
intention of signed when he I that a
deed. conclude fact issue summary judg- intent claim.
ment on the breach of contract I one
would sustain issue and reverse the on all claims.