Walker v. Horine

572

banc). Thus, conduct must judged showing be on this prejudice case reflects no particular case, the facts of the allega that would “undermine confidence in the Strickland, at -, tions must firmly founded. outcome.” Johnson v. 466 U.S. State, 148, (Tex.Crim.App. also, at S.Ct. 2068. See Henderson v. 1981). State, 662, (Tex.App. — San 1984, pet.). Appellant’s Antonio Even if a defendant has shown grounds of are error overruled. particular pro errors of counsel were is affirmed. fessionally unreasonable under the afore guidelines, mentioned “preju the second prong

dice” requires Strickland test a showing that “there a prob reasonable that,

ability for counsel’s unprofession errors, al the result of the proceeding would have been different. A reasonable probability probability is a sufficient to un dermine confidence in the outcome.” WALKER, Appellant, Charles Vartan Strickland, at -, 466 U.S. 104 S.Ct. at enough 2068. It is not for the defendant to show that the errors had some conceivable Maurice S. HORINE, M.D., and Retama Furthermore, effect on the outcome. Centers, Inc., Nursing Appellees. Manor making this determination the assessment No. 13-84-149-CV. prejudice proceed should assump Appeals Texas, Court of tion that the decisionmaker is reasonably, Corpus Christi. conscientiously, and impartially applying govern Id., standards that the decision. 14, March 1985. at -, 466 U.S. 104 S.Ct. at 2067-2069. Rehearing April Denied 1985. Our review the record re Rehearing Motion For Second veals that trial counsel: filed numerous June 1985. Denied pre-trial rulings motions and obtained thereon, including excluding a ex motion offenses; application

traneous filed probation; effectively procured and exam witnesses;

ined numerous defense exten sively witness cross-examined State’s es; attempting to introduced evidence dis the eyewitness;

credit obtained favorable throughout rulings objections on numerous trial; and filed a for new trial motion surprise testimony eye based witness, allegedly in violation of dis Furthermore,

covery motion. the maxi punishment appellant could have re mum $10,000 years or life with a ceived sen Appellant ten-year fine. received We conclude that tence and a fine. $500 received under circumstances “reasonably effective assistance coun even if sel.” We further conclude that error taken appellant’s allegations of evidence, true, light inculpatory Dobbs,

Harry Jr., Corpus Christi, ap- for pellant. Chriss,

William Kleberg, J. Dyer, Red- Weil, Christi, Corpus ford & appellees. for

OPINION

PER CURIAM.

This is appeal from a ordering trial court partial a severance and summary judgment granting specific per- option formance of an to contract. appellant, Walker, The Charles Vartan owner, entered into a contract with Retama Centers, (Retama), Nursing Manor Inc. herein, lessee and one of the for purpose leasing property certain nursing premis- be utilized as a home. The years es were leased for a term of fifteen and three Simultaneously, months. parties option entered into an agreement gave agreement. This Retama property the leased after from Walker at time the end of sixty-third of the initial term of $530,000.00. price the lease at a August option agreement was on executed 1972, 24, agree- the same date as the lease ment, that run states shall concurrently with the contract of lease agreement. A of first refusal was agreement. included in the also 29, September subsequently, Retama 1978, assigned its interest Horine, ap- contract to Maurice the other pellee. attempted Horine exercise the 1978, the fall of re- Walker Appellees fused to sell. then sued Walker specific performance for granted appel- agreement. The trial court summary judgment lee Horine’s motion for per- specifically ordered Dallas, (Tex.1974); Manges in favor of Ho- 516 S.W.2d 138 form the contract 605, Bar, Inc., option. rine’s The trial court severed v. Astra 596 S.W.2d 1980, (Tex.Civ.App. Corpus action from the remainder of the lawsuit Christi writ — n.r.e.); Kain, for af- which concerned Walker’s claims ref’d Neuhaus (Tex.Civ.App. Corpus firmative relief. Christi — n.r.e.). writ ref’d Appellees moved theory the option affidavit, is at specifically Appel- should be enforced. response, that he tached his states theory (although apparent lant’s defensive Maurice Horine and believes record) appear his in the answer does not (not brother, Perry party Horine his Perry (appellee’s Horine and a brother lawsuit), deprive acted in concert him broker, party real estate who was not nursing reasonable value lawsuit), appel- acted collusion with home. This does not serve to affidavit lee to of deprive Maurice Horine raise a fact issue each element of the on Ap- property. the of reasonable value required. affirmative defense fraud is of as first of are the pellant’s points error to attempts Appellant also to utilize in granting effect that the trial court erred interrogatories his own to de answers to appellees’ summary judgment motion for appellees’ feat It settled law motion. is prove because failed to lack of non-moving may party that a not resort to an fraud. Walker claims that was moving party’s his own answers to the appellees’ essential element of cause of ac- interrogatories proof of the existence of specific performance. tion for genuine a issue of material fact. Thur The in a movant Express, 600 S.W.2d man v. Frozen Food required prove case he is to that entitled writ); (Tex.Civ.App. 1980, 369 no — Dallas prevail to every each and element of his (Tex. Johnson, 577 S.W.2d Stanford required of action. He is cause writ); Civ.App. Corpus no Christi — v. negate each of the defenses which could Co., Inc., Jeffrey Larry Plotnick by non-movant, have been raised but (Tex. Civ.App. S.W.2d 99 — Dallas City were not. Houston v. Clear Creek of writ). (Tex. Authority, Basin response to motion 1979). Appellant’s summary a judgment did not raise Here, granted appel- trial court concerning of the af- issue the elements op lees’ to specifically motion enforce the fraud; therefore, ap- firmative of defense appellant’s tion Because contract. answer negate of pellees’ burden the absence record, is not included in the we unable are Appellant’s first and fraud never arose. pled that he an conclude affirmative points of error are overruled. second In sum defense fraud. order to avoid a error, point he In third mary judgment based the affirmative a fact issue as to asserts that there is fraud, upon it defense of was incumbent parties the lease whether intended appellant to raise issues fact on each of purchase agreement and the 1) following that a elements: material separate He made; agreement as instruments. 2) it representation of fact was that false; 3) that, argues point in his fourth that the trial speaker made was when the it, false, finding in the contract was he it court erred that he knew it or that made was enough knowledge certain to invoke the recklessly any without of its definite and assertion; 4) performance. Appellant positive remedy specific that truth and a assignment clauses he it should claims that the made with the intention it 5) party; agreement and the upon by the lease be acted contradiction, it; 6) thereby upon agreement and are party reliance acted a creating ambiguity presents injury. Leas an thereby he suffered Custom Ap- jury. fact issue to be determined ing, Bank & Trust Co. Inc. Texas pellee, hand, on the other contends that the unreasonably shall not be withheld. agreement lease ours.) and the (Emphasis agreement separate We instruments. purchase agreement The agree. only following language contains with granted The trial court regard to assignability of the contract: specific performance in favor of The terms of this and Horine. The evidence shows that Horine offer first of refusal shall [unin assignee was never the lease. His telligible] and inure to the benefit of the agreement assigned only with Re- Retama hereto, parties heirs, their executors and option agreement tama’s interest in the and administrators, lessors assigns. and agreement did not disturb the lease ours) (Emphasis Retama and Walker. Walker contends that agreement provides: lease further agreement pur- the lease and agreement part Agreement chase were same Section 8 Entire This agreement. interrogato- relating lease and his answers to exhibits hereto is ries, original- agreement he claims that parties entire between ly part may of the lease changed verbally, contract but was made not be separate request only instrument at his since writing option price make signed by believed would it party against whom the get necessary difficult to financing. waiver, change, enforcement of mod- discharge sought. ification or purchase agreement, The en- Generally, option agreement by parties tered is not con day into the the same lease, they grants completed executed the sidered contract until it is ac the purchase premises cepted the leased as follows: within the time limit and in the prescribed. op manner The exercise of an agrees “That Walker shall Retama tion, offer, acceptance any like must be have purchase the leased positive unequivocal. Presby and Austin premises, which shall include all those Theological Seminary terian v. Moor mentioned, items heretofore and other man, (Tex.1965). 717 S.W.2d by items so owned included Walker and nursing facility by home covered Here, option agreement is in a lease, said at time after the end of by separate writing signed which is both sixty-third term the initial no parties. allegation There is of record lease, $530,000.00, price said at a supported by it was not consideration. FIVE HUNDRED AND THIRTY THOU- price It is dated and states the the land. cash, SAND DOLLARS which refers to A of the lease for a It exhibit with shall run concurrent the said Con- description land. is sufficient This agreement, tract of Lease re- under the statute of to describe land thereto; provided, newal or extension option agreement because the doc frauds however, paid payments that no of rental by ument furnishes within itself the means under the terms of said lease shall property could be identified with which applied purchase price.” to said certainty. Shotwell, v. reasonable Morrow agreement The lease contains the follow- (Tex.1972); 477 S.W.2d 538 Nash v. Ca ing regard assignment: clause with naster, (Tex.Civ.App 410 S.W.2d . —Dal 1966, writ). option agreement no The las This lease and lessee’s interest in this sublet, sold, stated that it could not be enforced until assigned, lease shall not be transferred, sixty-third after the end of the month of oth- mortgaged, pledged, or It the initial term of the lease. also re disposed or erwise encumbered that, otherwise, optionee if to exer part, quired law desired by whole or or prior option, the notification to Walker consent and cise without written writing. approval lessor, to be in approval ex ambiguity, the court need not look to agreement The lease and the Randal, v. correctly trinsic evidence. were determined Rutherford v. Entzminger (Tex.1980); 593 S.W.2d 949 separate the court to be two instruments. Provident and Accident Insurance they Although day, executed on the same Life Co., (Tex.App. part trans 652 S.W.2d 533 necessarily same — Houston writ). agreement gives the The court will action because each Dist.] [1st sepa parties its search for the intent of the parties separate as as limit benefits well expressed intent within the four obligations. agreement pro to the rate The lease corners of a document. See assignment prior written vides for Rutherford Randal, 953; Smith v. Lid at permission of lessor. No similar writ dell, (Tex.1963). Appel 367 S.W.2d 662 provision agree in the option ten exists points third and fourth of error are lant’s option agreement ment. The states that its overruled. assigns. By con will inure to the benefits struing agreements separate the two as error, point fifth contracts, both, may give we effect to argues that trial court in find erred effect. See Gua may take each stand and ing a matter law that as Tuttle, dalupe-Blanco Authority River assignable. Appel was valid and (Tex.Civ.App. Antonio — San its lant claims that Retama’s exercise of (Tex. w.o.m., ref’d 174 S.W.2d 589

writ Option first under right of refusal 1943)). Agreement by Septem Purchase letter of 15,1976 rights its under the ber terminated

Appellant us to also directs a memoran- option agreement property signed parties dum of lease price its for a stated as well terminated March 1973 after the execution of rights under the lease. Walker contends agreements lease and it was intention that the lease sufficient to raise a issue as evidence failed would terminate when entering parties to the intent of the into exercise their of first refusal. por- option agreements. the lease and Here, option agreement states: agreement germane ap- tion of the to this the notwith- “Anything contrary hereinto peal states: right standing, first of refusal Retama’s grants les- Additionally, said lease unto granted hereby purchase premises to option to demised see right by given be a by Walker shall premises sixty-third after time to in to Retama’s Walker addition (63) initial month of the term of said herein, and not contained (Emphasis ours). lease. in lieu way right to as a be construed Ambiguity in a is a contract of said purchase.” to Uranium, question of law. New Mexico language option agreement of Moser, v. (Tex.Civ.App. Inc. clearly states to that n.r.e.). —Corpus writ Christi ref’d separate refusal are and the of first Only if the court finds that the contract Appellant argues that his answers rights. ambiguous application pertinent after of a as to interrogatories raise fact issue a fact created. rules of construction is issue agreements con intention that the were his Co., v. Coronado Transmission O’Shea one These answers sidered instrument. (Tex.Civ.App. Corpus S.W.2d 557 — raise fact issue. insufficient a were Here, n.r.e.). ref ’d Christi writ Express, Food v. Frozen Thurman construing court correct trial was Johnson, 577 370; at S.W.2d Stanford Jeffrey unambiguous separate documents two Larry 793; Plotnick at S.W.2d Because there no ambi instruments. was Co., Inc., Appellant’s 102. at in not trial also guity, the court was correct point of error is overruled. fifth considering lease as the memorandum of error, point appellant’s sixth of In summary judgment evidence sufficient grant- trial court erred urges of an that the a fact issue. the absence he create ing summary judgment appellee Horine third of the initial term of the lease. because there is a fact issue toas the exact Written given notice was to the appellant. relationship Perry between Horine and Re- We have also determined under foregoing Appellant’s argument tama. point is that there error that the agreement concerning is a issue fact collusion separate between was from agreement. the lease individual, acting agent as Retama’s and We find that the assignability provision herein, party appellee not a Perry Ho- assigned mandates that the could lease be Appellant points rine. only to the same evi- permission written of Walker. dence of he urged fraud that his specifically points first Walker out in his re- point of error sponse as evidence of summary judg- collusion. to the motion for Again, interrogatories his own answers to ment that evidence are pre- not sufficient raise a fact issue does not reflect permission that written cluding judgment. a summary assign His affida- requested was ever given or merely Perry vit states that Horine and Walker. We find option agree- that appellee Maurice Horine acted in concert in ment require does not permission written conspiracy deprive Therefore, him the assign. reason- it unnecessary was nursing able market precedent value his home. for the conditions of the lease response His states that is a appellee there to be met in order for collusion, presents get issue as to specific performance evi- collusion, Appellant’s dence other than a statement point contract. seventh of er- response in his that collusion has occurred. ror is overruled. preclude summary This is insufficient to point error, eighth In his he

judgment upon plea based a defensive claims trial failing court erred in to call Appellant’s point collusion. sixth of error Inquiry a Court request at the of Walker is overruled. proof apparent copy when the that the error, In appellant’s point seventh Assignment Option sent to Walk in finding claims the trial court erred assignment er was different from form precedent upon all conditions which his summary proof. Appel used as judgment liability depended on the contract had been points lant out in motion trial his for new performed by appellees. Walker contends discrepancy that there is a in the notice of specif- that the could contract assignment he received and the notice of ically performed because consent assignment appears summary in the assignment granted. of the lease was never agree proof. We that the two assignment notices of different. The Appellees claim assignment agreement that was utilized as agreement provides only following con summary judgment proof 1) precedent: agree ditions that the lease phrase: following contained the effect; 2) in ment still be that the be WHEREAS, Assignor desires to sell sixty-third (63rd) after the exercised Corpus Option such and MAURICE HO- agreement; of of the initial term the lease RINE, (“Assignee”), M.D. wishes to ac- 3) and that written notice of the exercise of quire Corpus Option: such given They argue to Walker. phrase assign- of met in that all these conditions were as a This was not included agree appellees of ment sent to allegedly matter law. We that was proven if that these named conditions were Charles Walker. We doubt there is up competent summary judgment proof discrepancy, in in materiality but and, event, purchase agree discrepancy pointed was out under not ment, summary judgment proof. to the only were the conditions which need Court summary judgment appellant be met. The The letter ed to indicates that believed gave granting summary written proof no a motion for shows purchase. judgment premature The notifi to be tice of because Inquiry” court convened “Court of sixty- cation occurred after end of had requested in clerk script,” certain which he challenged validity which pleading court to include the summary judgment find that the trial evidence. We transcript to in this question in the be filed court as evidence not before the was though counsel made Even proof time it Court. summary judgment at the respon request, attorney’s it is the summary judg- proper granting its entered order sibility proper papers to see Therefore, may it used ment. not be Appeals, not the summary judg- filed with Court appellee’s motion for defeat proper perform fails to or her Appellant’s eighth point error is clerk who ment. Additionally, find that the omis duties. we judgment of the trial court overruled. The original has no answer sion is affirmed. disposition of this material effect on the JJ„ DORSEY, par- not BENAVIDES and themselves, pleadings even appeal because ticipating. verified, summary judg if do not constitute City ment evidence. Houston v. Clear OPINION ON MOTION FOR Authority, 589 Basin Creek REHEARING (Tex.1979); Savings Hidalgo Surety & PER CURIAM. Ass’n, (Tex.1971); Loan 462 S.W.2d 540 March this Court entered On Soliz, (Tex.App.— 648 S.W.2d734 Miller v. the trial affirming order 1983, writ). Appellant’s Corpus Christi response This court. order was serve to raise a fact pleadings would not granted appeal from a every on each element of the issue appellees. in favor of required. defense of fraud as is affirmative Rehearing, reas- appellant On Motion for Appellant’s supplemental to file a motion the judgment serts that should be reversed Appellant’s motion transcript is denied. for a trial on the merits and remanded rehearing for is overruled. prove failed to lack because conjunction motion for fraud. with this DORSEY,JJ., par- BENAVIDES and rehearing, appellant has motion to filed a ticipating. containing supplemental transcript file Answer, (appellant’s) Original Defendant’s Cross-Action,

Counterclaim and included, requested to be pleading was “inadvertently omitted in the tran- script filed this Court.” Appellant contends that this omitted pleading proper is material for a review AND The WESTERN CASUALTY pleading such will show this Court because COMPANY, Appellant, SURETY affirmatively pled as a fraud cause of action appellees’ defense PREIS, J.R. appel- Coastal Bend performance. Additionally, d/b/a specific Sales, Appellee. answer, original contends that his lant in- cross-action should be counterclaim No. 13-84-188-CV. transcript filed by supplemental cluded Texas, Appeals of Court of pleading such suffi- Court because Corpus Christi. the exist- raise issues of as to cient to fraud, alleged response in his ence May 1985. summary judgment. See motion for Rehearing June 1985. Denied 428. TEX.R.CIV.P. recognize that counsel We “Defendant Charles Vartan

appellant filed Request For Tran- Amended Walker’s First

Case Details

Case Name: Walker v. Horine

Court Name: Court of Appeals of Texas

Date Published: Mar 14, 1985

Citation: 695 S.W.2d 572

Docket Number: 13-84-149-CV

Court Abbreviation: Tex. App.