Thursday, May 22, 2008

Was the property purchased or merely rented by defendant who assumed payments on the mortgage?

Deed declared void ab initio. Summary judgment for original owner affirmed.

Kindsfather v. Green (Tex.App.- Houston [1st Dist.] May 22, 2008)(Taft) (real estate law, summary judgment in ownership dispute, title dispute, validity of deed, forged deed, trespass to try title, conversion, adverse possession, real esate transactions statute of frauds)


Appellant, Ray Kindsfather (“Kindsfather”), appeals from a summary judgment rendered in favor of appellee, Frank Green (“Green”). We determine whether the trial court erred in rendering summary judgment because either (1) Kindsfather provided the court with sufficient evidence of fact issues to preclude traditional summary judgment or (2) Kindsfather produced sufficient evidence to raise a genuine issue of material fact to preclude a no-evidence summary judgment. We affirm.


In November of 1987, Green acquired the property that is the subject of this suit. In May of 1995, Kindsfather moved onto the property with, he alleges, the understanding that he was purchasing the property by assuming Green’s mortgage and making a $5,000 payment to Green. In contrast, Green contends that his agreement with Kindsfather provided for Kindsfather only to rent the property, with Green maintaining ownership.

It is undisputed that Kindsfather made all of Green’s mortgage payments beginning in May of 1995 until the mortgage was paid in full in early 2005. In addition to paying the mortgage in full, Kindsfather asserts that he made at least $40,000 worth of improvements to the property.

Upon learning that the mortgage had been fully paid, Green discovered that Kindsfather was listed as the record owner of the property under a deed that purported to convey the property from Green to Kindsfather. Using this deed, Kindsfather had applied for and was given a home equity loan in 2003 in the amount of $96,000. There is a dispute as to whether there had been any contact between Kindsfather and Green from the time that Kindsfather moved onto the property until August of 2005, when Green sent Kindsfather a “notice and demand to vacate” letter.

On August 15, 2005, Green filed suit, asserting claims of trespass to try title, theft, and conversion and seeking declaratory judgment on the validity of the deed. On October 12, 2005, Kindsfather responded by general denial and also asserted the defenses of title by adverse possession, statute of limitations, laches, estoppel, unclean hands, and the statute of frauds and alleged claims of breach of contract, quantum meruit, and declaratory judgment.

Green moved for both traditional and no-evidence summary judgment. See Tex. R. Civ. P. 166a(c) (traditional); Tex. R. Civ. P. 166a(i) (no-evidence). The trial court granted the motion and issued certain declarations pursuant to Green’s request for declaratory relief. Specifically, the court declared that the special warranty deed purporting to transfer title of the property from Green to Kindsfather was forged and that, due to the forgery, the deed was invalid and void ab initio. The trial court declared that the property belonged to Green, that Green was entitled to possession of the property, and that Kindsfather had no title or interest in the property. The trial court also awarded damages in Green’s favor.

Standard of Review

To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). A plaintiff moving for summary judgment on its claim must establish its right to summary judgment by conclusively proving all the elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. “We review a no-evidence summary judgment by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences.” Patriacca v. Frost, 98 S.W.3d 303, 306 (Tex. App.—Houston [1st Dist.] 2003, no pet.). A trial court improperly renders a no-evidence summary judgment if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.—Houston [1st Dist.] 2000, no pet.). More than a scintilla of evidence exists when the evidence “would allow reasonable and fair-minded people to differ in their conclusions.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

A. Traditional Summary Judgment

In his second motion for summary judgment, Green presented evidence to support his causes of action against Kindsfather, including his trespass to try title claim and Texas Theft Liability Act claim, and to establish his right to a declaratory judgment as to the validity of the deed over the property in dispute. Specifically, Green presented evidence that Kindsfather forged a deed purporting to convey the property from Green to Kindsfather and that Kindsfather refused to vacate when Green tried to remove him from the property. Green also presented evidence that Kindsfather used the forged deed to obtain a loan against the property, which resulted in a larger lien on the property and a loss of at least $30,000 in equity in the property.

1. Ownership of the Property

In his first point of error, Kindsfather contests the trial court’s granting of Green’s motion for summary judgment because Kindsfather presented evidence “that he had acquired ownership of the property through limitations, or adverse possession, or by contract.” He further argues that, if he did not establish a greater right to ownership of the property than Green’s right, he is nevertheless entitled to recover in quantum meruit for the improvements made to the property. We address each of these issues in turn.

a. Green’s Entitlement to Summary Judgment on Kindsfather’s Claims of Ownership by Deed

(1) Transfer by Deed

In his first point of error, Kindsfather argues that he “created a fact issue by showing that Green had agreed to sell [Kindsfather] the property” by transferring the property to him by deed.

Green put forth summary judgment evidence of his original deed to the property, which he filed in Harris County in November 1987, as well as Kindsfather’s 2004 deed. In addition to this evidence, Green presented an affidavit signed by the notary public who authenticated Kindsfather’s 2004 deed. In this affidavit, the notary public stated that Kindsfather was the only person who appeared before him on the day that he notarized the 2004 deed, Kindsfather’s name was the only name legible on the acknowledgment, and “Frank C. Green and” must have been added after he had placed his signature and seal on the deed.

Kindsfather does not admit or deny that he altered the deed or that Green signed the deed.
[Kindsfather asserts the Fifth Amendment to all questions regarding the forgery.] Kindsfather thus fails to raise a fact question as to whether he has a superseding deed. Therefore, no fact issue is raised as to ownership of the property by Green under the 1987 deed and Green’s evidence that the 2004 deed was forged.

(2) Transfer by Written Agreement

Kindsfather contends that his alleged agreement to purchase the property, despite the absence of a valid deed transfer, is a writing sufficient to overcome the statute of frauds and, alternatively, that he meets an exception to the statute of frauds because he made partial performance on the agreement, occupied the property, and made improvements to the property. Therefore, he argues, his assertion of a claim to the property is not barred by lack of a valid contract conveying the property to him, nor is it time-barred by the lapse of time between the creation of the contract in 1995 and his assertion of title to the property in 2004.

The statute of frauds provides that an agreement for the sale of real estate must be in writing. Tex. Bus. & Com. Code Ann. § 26.01(b)(4) (Vernon Supp. 2007). The writing must contain all of the essential elements of the agreement, “so that the contract can be ascertained from the writings without resorting to oral testimony.” Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978). Kindsfather presented no writing that could overcome the statute of frauds. Kindsfather points to the loan-assumption papers as an adequate writing to defeatthe statue of frauds, but such papers are not part of the record.

Furthermore, Kindsfather does not establish an exception to the statute of frauds. He cites Choi v. McKenzie as supporting his assertion that an exception applies. There are three elements for partial performance to act as an exception to the statute of frauds: (1) payment of consideration, (2) possession, and (3) improvements to the property that would make the transaction a fraud if not enforced. Choi v. McKenzie, 975 S.W.2d 740, 743 n.2 (Tex. App.—Corpus Christi 1998, pet. denied). Although Kindsfather contends that he made an agreement to purchase the property from Green for his assumption of the mortgage and $5,000, he admits that the $5,000 was never paid, and he does not present evidence of improvements that would make the transaction a fraud if not enforced.

In the last part of his first point of error, Kindsfather argues that he providedbenefits to Green for which he is entitled to compensation in the form of $40,000worth of improvements to the property. Kindsfather cites no authority to support thisargument, nor does he provide any record citations. We decline to consider thischallenge because it is inadequately briefed. See Tex. R. App. P. 38.1(h); Stephensv. Dolcefino, 126 S.W.3d 120, 130 (Tex. App.—Houston [1st Dist.] 2003), pet.denied, 181 S.W.3d 741 (Tex. 2005). We note that parties who represent themselvespro se must comply with all applicable laws and rules of procedure and are held to the same standards as are licensed attorneys. See Mansfield State Bank v. Cohn, 573S.W.2d 181, 184–85 (Tex. 1978); Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex.App.—Houston [1st Dist.] 1985, no writ).

There is no evidence of an agreement for the sale of the property to Kindsfather that satisfies the statute of frauds and no evidence that an exception to the statute of frauds would obviate the need for a contract of sale. Thus, Kindsfather failed to raise a fact issue as to whether Green agreed to sell him the property.

(3) Transfer by Adverse Possession

Kindsfather argues that he filed two affidavits, his own and that of Debbie Daniels, which were some evidence that Kindsfather agreed to sell him the property in return for $5,000 and Kindsfather’s assumption of the mortgage, that Green signed the assumption papers, that Kindsfather occupied the property “openly and with the intent to appropriate” it, and that Kindsfather made more than $40,000 in improvements on the property. Kindsfather contends on appeal that this evidence raises a fact issue on his defense of adverse possession.

Under Texas law, adverse possession requires “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.” Tex. Civ. Prac. & Rem. Code Ann. § 16.021(1) (Vernon 2002); Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990). A person seeking to establish title to land by virtue of the statute of limitations relating to adverse possession has the burden of proving every fact essential to that claim by a preponderance of the evidence. Rhodes, 802 S.W.2d at 645.

The true meaning of “hostile” in the context of adverse possession refers to whether the claim is inconsistent with the rights of the true owner. Taub v. Houston Pipeline Co., 75 S.W.3d 606, 626 (Tex. App.—Texarkana 2002, pet. denied) (noting that claim is hostile when acts performed by claimant and use made of land are of nature and character that would reasonably notify true owner of adverse claim). There is no legal requirement that personal animosity be present. However, the statute requires visible appropriation; “mistaken beliefs about ownership do not transfer title until someone acts on them.” Tran v. Macha, 213 S.W.3d 913, 914 (Tex. 2006) (citing Bywaters v. Gannon, 686 S.W.2d 593, 595 (Tex.1985)). In other words, there must be adverse possession, not just adverse beliefs. See id.

Although the relationship between Kindsfather and Green is disputed (landlord/tenant or seller/owner), the evidence shows conclusively that Kindsfather was occupying the property with Green’s permission. Kindsfather presented evidence that he believed he was purchasing the property rather than leasing it. However, it is uncontested that Kindsfather took no action inconsistent with his agreement with Green that could be construed as “visible appropriation” (because the use was consistent with Green’s permission) from the time he took possession of the property in 1995 until at least 2003, when the special warranty deed was notarized and Kindsfather took out a loan against the property. Thus, Kindsfather presented no evidence to raise a genuine issue of material fact on his defense of adverse possession. We overrule point of error one.

B. No-Evidence Summary Judgment

Kindsfather’s second point of error states, in its entirety:

To overcome a No-Evidence Motion for Summary Judgment, it is incumbent on the nonmovant to produce more than a scintilla of evidence to raise an issue of fact on the challenged allegations. Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003); Boales v. Brighton Builders, 29 S.W.3d 159 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). The discussion of the facts as recited in Point One shows that Kindsfather has met this burden.

Because Kindsfather relies upon the same arguments that we overruled in our discussion of his point of error one, we overrule point of error two.

C. Off-Set for Improvements

In his third point of error, Kindsfather argues that he provided evidence of substantial improvements and repairs that he made to the property in dispute and “provided a fact issue as to his claims of unjust enrichment, quantum meruit, estoppel, and damages resulting from Green’s breach of contract.” He contends that this evidence should be used “as a recovery or set-off against Green.” We decline to consider this challenge because it contains no legal argument or references to legal authority and is, therefore, inadequately briefed. See Tex. R. App. P. 38.1(h); Stephens v. Dolcefino, 126 S.W.3d 120, 130 (Tex. App.—Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex. 2005). We overrule point of error three.


We affirm the judgment of the trial court.

Tim Taft

Panel consists of Justices Taft, Keyes, and Alcala.

Res Ipsa Loquitur defined and ruled out in slip & fall case

Wet bathroom floor did not "speak for itself" as a evidence of managerial negligence and was under the control of the injured guest for the night, not the management. Ergo any injury sustained in guest's fall was not the hotel's fault. No evidence summary judgment for defendant affirmed.

Carlson v. Remington Hotel Corp. (Tex.App.- Houston [1st Dist.] May 22, 2008)(Nuchia)(premises liability, res ipsa loquitur)


In one issue, appellants, Lori and Shannon Carlson challenge the trial court's no-evidence summary judgment in favor of appellees, Remington Hotel Corporation d/b/a Hilton Houston NASA Clear Lake Hotel, New Clear Lake Hotel, d/b/a Nassau Bay Hilton, and New Clear Lake Group, GP, LLC, (collectively "the hotel"). We affirm.


On February 23, 2005, Lori Carlson, her husband, daughter, and mother checked into two adjoining rooms at the hotel. According to Lori, when she awoke the next morning, she stepped off the carpet into the bathroom and fell, hitting her head and her side between the bathtub and the toilet. Lori alleged that the carpeting next to the bathroom was "soaked with water." She testified that no one else used the bathroom that morning "that I'm aware of" and "as far as I know." Appellants alleged that the cause of the wet carpet was "air conditioner condensate" leaking from the nearby air conditioner.

Danny Gentry, the hotel employee who investigated appellants' complaint, testified that he went to appellant's room and saw that the floor was "noticeably wet." He said that appellants told him they did not know where the water came from. When asked his opinion of the source of the water on the floor, he said, "It could have been the bathtub overflowed. It could have been the toilet overflowed. It could have been the sink. I mean, none of those appeared to me to be overflowing, though . . . It's possible it could have ran down the inside of the wall." He testified that he did not see the air conditioner leaking and he did not inspect the pipe or the auxiliary pipe to see if either were clogged. He said that before the air conditioner drain line would leak, condensate would leak from the auxiliary line and drip directly into the bathtub. He said that the auxiliary line was not dripping.

Appellants brought a premises-liability suit against the hotel. Appellees filed a no-evidence motion for summary judgment, which the trial court granted on March 5, 2007. The trial court denied appellants' motion for new trial.

In their sole issue on appeal, appellants assert that the trial court erred in granting the hotel's no-evidence motion for summary judgment. Specifically, appellants argue that res ipsa loquitur applies because, they say, they have ruled out all causes except a leaking air conditioner and the hotel had control over the air conditioner's maintenance.

Standard of Review

We follow the well-known standard of review for Rule 166a(i) summary judgments. Tex. R. Civ. P. 166a(i) ("After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial."); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.).

Res Ipsa Loquitur

Res ipsa loquitur is a doctrine that permits the fact-finder to infer negligence in the absence of direct proof. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982). A plaintiff who successfully invokes the doctrine of res ipsa loquitur can survive a no-evidence challenge on the issue of negligence. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 251 (Tex. 1974).

Res ipsa loquitur applies only when (1) the character of the accident is such that it would not ordinarily occur without negligence and (2) the instrumentality causing the injury was under the management and control of the defendant. Marathon Oil Co. v. Sterner, 632 S.W.2d 571, 573 (Tex. 1982).

The first factor, which supports the inference of negligence, can be proven with general knowledge or expert testimony that the accident would not ordinarily occur in the absence of negligence. See Mobil Chem. Co., 517 S.W.2d at 252; see Trans Am. Holding, Inc. v. Market-Antiques and Home Furnishings, Inc., 39 S.W.3d 640, 649 (Tex. App.--Houston [1st Dist.] 2000, pet. denied).

The second factor connects the negligence to the defendant. Mobil Chem. Co., 517 S.W.2d at 251. "The possibility of other causes does not have to be completely eliminated, but their likelihood must be so reduced that the jury can reasonably find by a preponderance of the evidence that the negligence, if any, lies at the defendant's door." Id. When the plaintiff's evidence shows only that it is equally probable that the negligence was that of another, the second factor has not been proven. See Marathon Oil Co., 632 S.W.2d at 574.


Appellees filed a no-evidence motion for summary judgment, alleging that appellants had no evidence that the hotel had actual or constructive knowledge of the alleged dangerous condition on the premises, i.e., the water on the floor near the bathroom. To prevail on a premises liability claim, a plaintiff must prove:

(1) that the owner had actual or constructive knowledge of some condition on the premises;
(2) that the condition posed an unreasonable risk of harm;
(3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and
(4) that the owner's failure to use reasonable care proximately caused the plaintiff's injuries.

Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996).

"Thus, the existence of actual or constructive knowledge of a premises defect is a threshold requirement for such a claim." Id. "

A slip-and-fall plaintiff satisfies the notice element by establishing that (1) the defendant placed the substance on the floor, (2) the defendant actually knew that the substance was on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it." Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).

In response to appellees' no-evidence motion for summary judgment, appellants provided deposition testimony from Lori Carlson and from Danny Gentry, the hotel's employee. Neither deposition provides direct evidence that appellees caused, actually knew of, or had a reasonable opportunity to discover the water on the carpet in the hotel room. Thus, appellants provided no evidence that appellees had actual or constructive notice of the alleged, dangerous condition, i.e., the wet carpet.

However, appellants argue that res ipsa loquitur applies. Because appellants had no expert testimony, they needed to show that it is generally known that carpet adjacent to a bathroom would not become wet in the absence of negligence. We are aware of no such general knowledge, and appellant has not shown that proposition to be true. Moreover appellants have not shown that the wet carpet, i.e., the instrumentality that caused the accident, was in the control of appellees. See Marathon Oil Co., 632 S.W.2d at 573 (holding that plaintiff must show the instrumentality causing the injury was under management and control of defendant).

In fact, it was not; it was in appellant's control overnight.

Accordingly, we hold that res ipsa loquitur does not apply to this case.

We overrule appellants' only issue.


We affirm the judgment of the trial court.

Sam Nuchia

Panel consists of Justices Nuchia, Hanks, and Higley.

Lori Carlson and Shannon Carlson v. Remington Hotel Corporation d/b/a Hilton Houston NASA Clear Lake; New Clear Lake Hotel d/b/a Nassau Bay Hilton; and New Clear Lake Group, GP, LLC Appeal from 55th District Court of Harris County
Trial Court Judge: Hon. Jeffrey Brown
Attorney(s): Clay Dugas , Mike Jacobellis J. Preston Wrotenbery Kevin D. Jewell

Special Appearance Denied | Forum Selection Clause Enforced

Halabu v. Petroleum Wholesale, LP (Tex.App.- Houston [1st Dist.] May 22, 2008)(Bland) (denial of special appearance affirmed, forum selection clause given effect)

In his sole issue, Halabu contends that the trial court erred in denying his special appearance. Halabu also asserts that the trial court should not have considered Petroleum’s late-filed affidavit by Ken Dixon.

Special appearances are governed by Rule 120a, which provides that “a special appearance may be made by any party . . . for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process by the courts of this State.” Id. 120a.

On appeal we review de novo the trial court’s determination to grant or deny a special appearance. Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).

The plaintiff bears the initial burden of pleading sufficient allegations to bring a nonresident defendant within the provisions of the Texas long-arm statute. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 793 (Tex. 2002). A nonresident defendant challenging the court’s exercise of personal jurisdiction through a special appearance carries the burden of negating all grounds for personal jurisdiction alleged by the plaintiff. Id.; Glattly v. CMS Viron Corp., 177 S.W.3d 438, 446 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

We review all evidence in the record to determine if the nonresident defendant negated all possible grounds. N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985)).

Trial courts must frequently resolve questions of fact before deciding the jurisdictional question. BMC Software, 83 S.W.3d at 794. When a trial court issues findings of fact and conclusions of law, we may review the findings of fact on legal and factual sufficiency grounds and review the conclusions of law de novo as a legal question. Silbaugh v. Ramirez, 126 S.W.3d 88, 94 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing BMC Software, 83 S.W.3d at 794).

If the trial court does not issue findings of fact, “all facts necessary to support the judgment and supported by the evidence are implied.” BMC Software, 83 S.W.3d at 795. In other words, if the trial court does not issue findings of fact, a reviewing court should presume that the trial court resolved all factual disputes in favor of its judgment. Tri-State Bldg. Specialties, Inc. v. NCI Bldg. Sys., L.P., 184 S.W.3d 242, 246 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Coleman, 83 S.W.3d at 806; BMC Software, 83 S.W.3d at 795).

We may set aside a finding of fact only if the evidence would not enable a reasonable and fair minded finder of fact to make the finding under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

Two requirements must be met before a Texas court can exercise personal jurisdiction over a nonresident defendant. First, the Texas long-arm statute must authorize the exercise of jurisdiction, and second, the exercise of jurisdiction must be consistent with the guarantees of due process. Coleman, 83 S.W.3d at 806; Tri-State Bldg. Specialties, Inc., 184 S.W.3d at 248.With respect to personal jurisdiction, federal due process requires two things. First, the nonresident defendant must have purposefully established such minimum contacts with the forum state that the defendant could reasonably anticipate being sued there. Glattly, 177 S.W.3d at 446 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76, 105 S. Ct. 2174, 2183–84 (1985)). Second, if the nonresident defendant has purposefully established minimum contacts with the forum, the exercise of personal jurisdiction must also comport with traditional notions of fair play and substantial justice. Id. at 447 (citing Burger King, 471 U.S. at 475–76, 105 S. Ct. at 2183–84). As to fairness, the defendant bears the burden of presenting a “compelling case” that exercising jurisdiction over him would not be fair or just. See id. at 450.

Only in rare cases, however, will a Texas court’s exercise of personal jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state. Guardian Royal Exch. Assur., Ltd. v. English Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991).

Personal jurisdiction is a waivable requirement. Burger King, 471 U.S. at 473 n. 14, 105 S. Ct. at 2182 n. 14; Ins. Corp. of Ir. v. Compagnie des Bauxites de GuinĂ©e, 456 U.S. 694, 703, 102 S. Ct. 2099, 2105 (1982). A forum-selection clause is one of several ways in which a litigant may expressly or impliedly consent to personal jurisdiction. Abacan Technical Servs. Ltd. v. Global Marine Intern. Servs. Corp., 994 S.W.2d 839, 843 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (citing Burger King, 471 U.S. at 473 n. 14, 105 S. Ct. at 2182 n. 14). Enforcement of a forum-selection clause is mandatory absent a showing that “enforcement would be unreasonable and unjust, or that the clause was invalid due to fraud or overreaching.” In re Automated Collection Techs., Inc., 156 S.W.3d 557, 559 (Tex. 2004) (quoting In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex. 2004)).Petroleum Wholesale premised jurisdiction on Halabu’s agreement to the forum-selection clause in the “Fuel Marketing Location Agreement,” which Halabu allegedly personally guaranteed. Halabu contests enforcement of the clause designation performance in Harris County on the grounds that the personal guarantee was not part of the agreement, that he did not sign the personal guarantee, and that he did not authorize Senawi to sign it as his agent.

Halabu asserts that the evidence is insufficient to support a finding that he guaranteed the agreement and is therefore bound by the forum-selection clause. Specifically, Halabu states that “Petroleum Wholesale had no evidence to challenge that produced by Halabu,” and thus, “the proof supports only one conclusion; the Trial Court did not have personal jurisdiction over Halabu.”

Contrary to Halabu’s assertions, Petroleum Wholesale presented proof that Halabu agreed to be bound by the forum-selection clause: it provided the original contract and the guarantee with Halabu’s signature. Even if we do not consider the late-filed affidavit, “the clause is prima facie valid and enforceable unless the opponent establishes a compelling reason not to enforce it.” Abacan Technical, 994 S.W.2d at 843. Although Halabu presented contradictory evidence to establish that Halabu did not sign the affidavit and did not authorize Senawi to sign the affidavit as his agent, it is the sole province of the fact-finder to resolve conflicts in the evidence. See Benoit v. Wilson, 150 Tex. 273, 281–82, 239 S.W.2d 792, 796–97 (1951); Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 401 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.). The trial court had before it the signed agreement that included the forum-selection clause, as well as the signed personal guarantee. The trial court reasonably could have disregarded Senawi’s affidavit that stated that he was not authorized to sign for Halabu and concluded that Halabu intended to agree to the forum-selection clause for purposes of personal jurisdiction.

Because it may be reasonably inferred from the evidence that Halabu agreed to be bound by the forum-selection clause, sufficient evidence supports the trial court’s findings. See Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (if it may reasonably be inferred from the circumstantial evidence that one or more of the appellants assisted in the offense, then there is some evidence to support the jury’s verdict).ConclusionWe affirm the trial court’s order denying Halabu’s special appearance.

Excerpts from opinion by Justice Jane Bland
Before Chief Justice Radack, Justices Jennings and Bland
No. 01-07-00614-CV Shamil Halabu v. Petroleum Wholesale, L.P.
Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Caroline E. Baker
Attorneys: Sean S. Modjarrad Roger G. Jain Patty A. Morris Stuart W. Lapp Daniel Prescott McManus

Parol evidence rule nixes breach of contract claim

Court concludes that the parol evidence rule barred the introduction of the evidence on which Edascio based its breach of contract claim and on which the jury awarded Edascio damages and, thus, that the trial court did not err in granting NextiraOne judgment notwithstanding the verdict.

Edascio, LLC v. NextiraOne, LLC (Tex.App.- Houston [1st Dist.] May 22, 2008)(Jennings)
(commercial law, breach of contract, JNOV, parol evidence rule precludes consideration of evidence to support claim)

Parol Evidence

In its first cross-issue, NextiraOne contends that the parol evidence rule barred evidence of the purported oral agreement on which Edascio based its breach of contract claim. NextiraOne asserts that the oral agreement Edascio sought to enforce at trial, which obligated NextiraOne to assign Edascio a specific category and number of accounts (approximately 45,000 accounts described during trial as NextiraOne's small and medium sized customers with fewer than 200 ports and the GBS and Staples accounts) on the effective date of the SOA, contradicted, varied, and supplemented the express terms of the SOA. NextiraOne further asserts that the alleged oral agreement violated the SOA's merger clause, in which the parties objectively manifested their intent to conclude a complete agreement and to bar any oral agreements. Edascio responds that the term "Territory" in the SOA was ambiguous, and it argues that the SOA was incomplete because it failed to identify the customers to be assigned. Thus, Edascio asserts that parol evidence was permissible to resolve the ambiguity and complete the SOA. Edascio also asserts that the existence of a merger clause does not eliminate the "facial ambiguity and incompleteness exceptions to the parol evidence rule."The parol evidence rule is a rule of substantive contract law, and we review parol evidence questions de novo. Baroid Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.--Houston [1st Dist.] 2005, pet. denied); City of Pasadena v. Gennedy, 125 S.W.3d 687, 691 (Tex. App.--Houston [1st Dist.] 2003, pet. denied).

When the parties have concluded a valid, integrated agreement, the parol evidence rule precludes enforcement of a prior or contemporaneous inconsistent agreement. Ledig v. Duke Energy Corp., 193 S.W.3d 167, 178 (Tex. App.--Houston [1st Dist.] 2006, pet. denied); Baroid Equip., Inc.,184 S.W.3d at 13. A written instrument presumes that all prior agreements relating to the transaction have been merged into it and will be enforced as written and cannot be added to, varied, or contradicted by parol testimony. Baroid Equip.,184 S.W.3d at 13. The parol evidence rule "is particularly applicable when the written contract contains a recital that it contains the entire agreement between the parties or a similarly-worded merger provision." Id.

When parol evidence is determined to be inadmissible, it has no legal effect and merely constitutes proof of facts that are immaterial and inoperative. Id.However, parol evidence is admissible to show the parties' true intentions if the writing is ambiguous. Ledig, 193 S.W.3d at 178-79; Gonzalez v. United Bhd. of Carpenters and Joiners of America, Local 551, 93 S.W.3d 208, 211 (Tex. App.--Houston [14th Dist.] 2002, no pet.). The determination of whether the terms of a contract are ambiguous is a question of law, which we review de novo. Bowden v. Phillips Petroleum Co., 247 S.W.3d 690, 705 (Tex. 2008); Standard Constructors, Inc. v. Chevron Chemical Co., 101 S.W.3d 619, 622 (Tex. App.--Houston [1st Dist.] 2003, pet. denied).

To determine whether a contract is ambiguous, we look at the agreement as a whole in light of the circumstances present when the parties entered into the contract. Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004). We examine and consider the entire writing in an effort to harmonize and to give effect to all the provisions of the contract so that none will be rendered meaningless. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006).Our primary concern in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. Id. If a written contract is worded in such a way that it can be given a definite or certain legal meaning, then the contract is not ambiguous. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005). A contract will become ambiguous only if its meaning is uncertain or if it is subject to two or more reasonable interpretations. Seagull Energy, 207 S.W.3d at 345. An ambiguity does not arise simply because the parties advance conflicting interpretations of the contract. Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 146 S.W.3d 123, 126 (Tex. 2004). Moreover, we may not consider extrinsic evidence to contradict or to vary the meaning of unambiguous language in a written contract in order to create an ambiguity. See Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747 (Tex. 2006).
Excerpt from Opinion by Justice Terry Jennings
Before Chief Justice Radack, Justices Jennings and Bland
No. 01-07-00362-CV Edascio, L.L.C. v. NextiraOne, L.L.C.
Appeal from 281st District Court of Harris County
Trial Court Judge: Hon. David J. Bernal
Attorneys: Stephen G. Tipps, James J. Ormiston, D. Scott Funk, Jennifer Kingaard
Sean Gorman, James E. Doyle

Another Pro-Se Appellant Gets Routed

He who represents himself has a _______ for counsel, especially in the absence of familiarity with the appeallate proces.

Reed v. REO Properties Corp. (Tex.App.- Houston [1st Dist.] May 22, 2008)(Alcala) (waiver of appeal, inadequate briefing)
Opinion by Justice Alcala Before Justices Nuchia, Alcala and Hanks
01-06-00637-CV Willis C. Reed v. REO Properties Corp.Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
Representatives of parties: Appellant pro se Appellee: Attorney Rex L. Kesler
Disposition: Affirmed

Waiver of Appeal

Reed fails to present any clear grounds for reversal on appeal and fails to cite to the record or to any authority in his brief.

Texas Rule of Appellate Procedure 38.1(h) requires that an appellant’s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(h). “Rule 38 requires [a party] to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “This is not done by merely uttering brief conclusory statements, unsupported by legal citations.” Id. “Issues on appeal are waived if an appellant fails to support his contention by citations to appropriate authority or cites only to a single non-controlling case.” Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

Reed’s brief does not present any grounds for reversal of the trial court’s judgment nor does it contain a single citation to a legal authority or the record. We therefore hold that Reed has waived his right of appeal due to inadequate briefing. Tex. R. App. P. 38.1(h); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.—Houston [1st Dist.] 2002, no pet.).


We affirm the judgment of the trial court.

Tuesday, May 20, 2008

MFNT: Order granting a new trial moots appeal

Judge reconsidered one day after notice of appeal was filed in credit card suit, granted motion for new trial, and thus reinstated case on the docket as if no final judgment had been rendered.

Stelly v. Citibank , No. 14-07-00601-CV (Tex.App.- Houston [14th Dist.] May 15, 2008)(Hedges) (credit card debt suit, appeal mooted by trial courts' grant of motion for new trial MNT while it retained plenary power)
Opinion by Chief Justice Hedges
Full case style: Diane T. Stelly v. Citibank (South Dakota) N.A.
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd
Disposition: Dismissed


On appeal, appellant Diane T. Stelly contends that the trial court erred in granting summary judgment in favor of appellee Citibank (South Dakota) N.A. on a credit card account debt Stelly allegedly owed. Stelly also contends the trial court abused its discretion in denying her motion for new trial. However, because the trial court subsequently granted Stelly's motion for new trial during the period of its plenary power, we dismiss this appeal as moot and for lack of jurisdiction.

On May 4, 2007, the trial court signed a final summary judgment awarding actual damages, attorney's fees, post-judgment interest, and costs to Citibank. Stelly timely filed a motion for new trial, and on July 17, 2007, the trial court held a hearing on the motion. At the conclusion of the hearing, the trial court orally announced that it was denying Stelly's motion. Stelly immediately filed a notice of appeal. However, the next day, July 18, the trial court entered a written order granting Stelly's motion for new trial.

Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When a motion for new trial is granted, the case is reinstated upon the docket of the trial court and will stand for trial the same as though no trial had been had. Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). Thus, when the trial court grants a motion for new trial, the trial court "essentially wipes the slate clean and starts over." Id. Here, the trial court granted Stelly's motion for new trial within the period of its plenary power. See Tex. R. Civ. P. 329b(d), (e); Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex. 1995). Therefore, the issues presented in this appeal are rendered moot and this Court lacks appellate jurisdiction. Accordingly, we order the appeal dismissed.

/s/ Adele Hedges
Chief Justice

Judgment rendered and Memorandum Opinion filed May 15, 2008.

Panel consists of Chief Justice Hedges, Justice Boyce,
and Senior Justice J. Harvey Hudson.*

*Senior Justice Hudson sitting by assignment.