Date: 03-21-2002

Case Style: CORNELIO LOPEZ AND WIFE, ROSIE LOPEZ, Appellants, v. DANIEL SULAK AND WIFE, SANDRA SULAK, Appellees

Case Number: 13-00-00499-CV

Judge: Hinojosa

Court: Court of Appeals of Texas, Thirteenth District

Plaintiff's Attorney: Unknown

Defendant's Attorney: Unknown

Description: Appellants rented a building at 308 Third Street in Louise, Texas, from the owner, Mrs. Gordon. Appellants operated a child-care facility at 308 Third Street. Mrs. Gordon subsequently sold a tract of land ("the property") consisting of four lots, which included 308 Third Street, to appellees. The property adjoined appellees' residence. Appellees allowed appellants to continue operating their child-care business at 308 Third Street. However, when various problems arose, appellees gave appellants notice to vacate the premises, but they refused.

Appellees eventually filed a forcible detainer action against appellants in the justice court of Wharton County. Appellants answered that they "were in fact the owners of the premises which they occupy, and that [appellees] are not the equitable owners of such premises, and that in fact [appellees] have no standing to assert a claim for eviction." Appellants also counterclaimed for possession of a pickup truck and some tools they claimed appellees had converted. On July 16, 1999, the justice court signed a "Final Judgment Nunc Pro Tunc," which states, in relevant part, as follows:

After hearing the evidence presented and the argument of counsel, the Court finds that CORNELIO & ROSIE LOPEZ were tenants and that DANIEL & SANDRA SULAK are the landlords of the property in question; that the landlords are entitled to possession of the property; and that the tenants are required to vacate the premises on or before March 28, 1999 at 6:00 p.m.

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Appellants attempted to appeal the justice court's judgment, but their appeal was dismissed for procedural reasons.

On July 20, 1999, appellants filed the underlying case in the district court of Wharton County. They alleged that: (1) they had been operating the child-care facility at 308 Third Street when Mrs. Gordon decided to sell the property; (2) because appellants were not able to buy the property themselves, they entered into the following oral agreement with appellees: (a) appellees would purchase the property, (b) appellants would reimburse appellees for the note payments, (c) appellants would pay the property taxes and insure the property, and (d) when the note was paid off in five years, appellees would convey the property to appellants; (3) appellants made the agreed-upon payments until December 1998, when appellees refused to accept any further payments; (1) (4) appellees wrongfully breached the oral agreement for the purchase of the property; (5) appellees wrongfully evicted appellants from the property, causing the loss of their child-care business; and (6) appellees wrongfully appropriated appellants' 1975 Chevrolet pickup. Appellants asserted causes of action for breach of contract, fraud, violation of the Texas Deceptive Trade Practices - Consumer Protection Act ("DTPA"), (2) violation of section 27.01 of the Texas Business and Commerce Code for fraud in real estate transactions, (3) intentional and tortious interference with appellants' business relationships, conversion, and trespass. They sought damages for mental anguish, loss of income from the child-care business, $10,000.00 for the equity they had in the property, and $4,900.00 for conversion of the pickup and tools it contained. They also sought exemplary damages and attorney's fees. Appellants did not seek title to the property in question, nor specific performance of the alleged oral contract.

Appellees answered with a general denial and filed a counterclaim alleging that: (1) they alone purchased the property from Mrs. Gordon, who disliked appellants and did not want to sell them her property or associate with them in any way; (2) they purchased the property for $27,500.00 (they paid $5,000.00 down, and Mrs. Gordon financed the balance for five years with monthly payments of $456.22); (3) they entered into an oral lease agreement with appellants that appellants would lease part of the property (308 Third Street) for their child-care facility, subject to the following conditions: (a) appellants would operate the child-care facility in accordance with all applicable laws, (b) appellants would obtain insurance coverage to protect appellees from any liability in connection with the child-care business, (c) appellants would maintain the property and pay for all repairs, and (d) appellants would pay all property taxes due on the property; (4) appellants would pay appellees a monthly rental of $456.22 (the same amount appellees were paying on the purchase note); (5) the parties discussed the possibility of appellants purchasing a portion of the property from appellees sometime in the future, but nothing was ever agreed upon; (6) appellees always intended to retain at least part of the property for themselves; (7) appellants failed to comply with the lease agreement by: (a) failing to operate the child-care facility in accordance with State law, (b) failing to maintain the property, (c) failing to insure the property, and (d) failing to pay the 1998 property taxes (which appellees had to pay); (8) appellees gave appellants notice, in February, 1999, to vacate the property; (9) appellants sought to purchase 308 Third Street at that time, but were unable to obtain funding; and (10) appellees were forced to commence a forcible entry and detainer action in justice court after appellants refused to vacate. Appellees sought to recover: (1) $600.00 they paid under a note made by Mr. Lopez and co-signed by Mrs. Sulak, which she was forced to pay when he defaulted, minus the $50.00 fair market value of the Chevrolet pickup (a total of $550.00); (2) $1,500.00 on an unpaid contract for the sale of furniture; (3) $750.00 for "some calf meat;" (4) $480.00 for a limousine rental; (5) $780.00 for graduation portraits for appellants' son; and (6) $41,000.00 to repair damages to the property caused by appellants.

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On the 25th day of May, 2000, the Defendants' Motion for Summary Judgment was called for hearing. All parties appeared by and through their respective counsel. After examining the pleadings, hearing the evidence presented and the argument of counsel, IT IS ORDERED, ADJUDGED AND DECREED by the Court that the Defendants' Motion for Summary Judgment should be granted, and IT IS GRANTED.

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Appellees filed a motion to dismiss, asserting this Court is without jurisdiction to hear this appeal. They assert the order granting summary judgment was not final because it did not dispose of appellees' counterclaims. In their response, appellants contend the "Mother Hubbard" clause in the order makes it a final and appealable order.

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Click the case caption above for the full text of the Court's opinion.

Outcome: We affirm the trial court's order granting appellees' motion for summary judgment as to appellants' causes of action for trespass and conversion of the tools and the 1975 pickup truck. We reverse the trial court's order granting appellees' motion for summary judgment as to appellants' causes of action for: (1) breach of contract, (2) fraud, (3) violation of the DTPA, (4) violation of section 27.01 of the Texas Business and Commerce Code for fraud in a real estate transaction, and (5) intentional and tortious interference with business relationships. We remand this cause to the trial court for further proceedings consistent with this opinion.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None