COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
ANITA SANCHEZ, Individually and as § No. 08-20-00027-CV Independent Executor of the Estate of LEOPOLDO GILBERT SANCHEZ, § Appeal from the Deceased, § 327th District Court Appellant, § of El Paso County, Texas v. § (TC#2016DCV1112) HECTOR BARRAGAN, SR.,
Appellee. §
OPINION
Appellant Anita Sanchez appeals the trial court’s summary judgment against her on
Appellee Hector Barragan’s action for declaratory judgment. Appellant’s late husband, Leopoldo
Sanchez, entered into an agreement to sell a parcel of property and other personal property to
Appellee. After Appellee paid the agreed-upon price in full, Mr. Sanchez refused to tender the
deed for the property to Appellee. Mr. Sanchez passed away during the pendency of litigation
between the parties over ownership of the property in question, and his wife, Appellant, entered
the suit on behalf of Mr. Sanchez’s estate, and in her individual capacity, claiming an ownership
interest in the property. The trial court rendered summary judgment in favor of Appellee on his
action for declaratory judgment, and declared, among other things, that Appellee owned 100 percent of title on the subject property in fee simple absolute, as a result of his having tendered
full performance under his agreement with Mr. Sanchez.
We affirm.
BACKGROUND
Summary judgment evidence from both parties provides the background to this case. The
summary judgment standard obligates us to consider the evidence in the light most favorable to
Appellant, the non-movant. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.
1995).
The Property and the Agreement
Appellee met Mr. Sanchez in 2006. At the time, Mr. Sanchez told Appellee he was
unmarried. In 2009, Appellee and Mr. Sanchez entered into an agreement for Appellee to purchase
the property located at 1223 Tio Dink in El Paso, Texas (hereafter, the Agreement). Mr. Sanchez
owned Lot 12, Block 1, Corrales Estates, commonly known as 1223 Tio Dink Circle, since 1997
when he purchased it. The Agreement also included purchase of a Silver Creek mobile home, a
storage shed, and a Rambler. The contract price for all four—the real property, the mobile home,
the storage shed, and the Rambler (collectively, the Property)—was $52,000. The following day,
Appellee made a down payment of $13,000 to Mr. Sanchez. He continued paying thereafter at a
rate of $600 per month.
In September of 2014, Appellee learned Mr. Sanchez got married in 1998. Appellee was
particularly surprised because, at Mr. Sanchez’s insistence, the Agreement contained a provision
allowing Mr. Sanchez’s girlfriend, Maria Rocio Cook, to live at 1223 Tio Dink.
Appellee made his final payment to Mr. Sanchez on November 14, 2014. The check
2 contained the notation, “Final Payment 1223 Tio Dink.” Mr. Sanchez accepted, endorsed, and
cashed the final check, and, according to Appellee, all previous checks before it. Appellee paid
Mr. Sanchez the total sum of $52,000. After making the final payment, Appellee asked
Mr. Sanchez for a warranty deed and bill of sale for the Property. Mr. Sanchez refused, citing
pressure put on him by Appellant to withhold the documents from Appellee.
Appellee’s Lawsuit and Appellant’s Answer
Appellee filed suit against Mr. Sanchez, alleging causes of action for breach of Section
5.077 and 5.079 of the Texas Property Code, common law fraud and misrepresentation, statutory
fraud, and breach of contract. In addition to damages, Appellee alternatively sought specific
performance under the Agreement.
Shortly after Appellee filed his original petition, Appellant made an entry of appearance as
a “third party respondent” to Appellee’s lawsuit. She then filed an entry of appearance claiming
she represented Mr. Sanchez pursuant to a power of attorney. Subsequently, she filed an answer
as a third-party defendant in the case. A short time later, Mr. Sanchez filed his answer.
In their answers, Appellant and Mr. Sanchez denied liability. They also alleged facts
implying Appellee coerced or otherwise fraudulently induced Mr. Sanchez into signing the
Agreement, due to the fact Mr. Sanchez was ill with cancer. They alleged Appellee knew
Mr. Sanchez was married when he entered into the Agreement and falsely represented to
Mr. Sanchez that he could convey the property to Appellee with a clear title. They further alleged
any agreement to sell the property at 1223 Tio Dink was not in writing because the Agreement
listed the property for sale as 1223 “Tio Dick.”
Approximately two and a half years after Appellant filed her original answer, she amended
3 to answer on behalf of Mr. Sanchez’s estate following his death. Her amended answer is otherwise
substantially the same as her original answer. However, she amended a second time in early 2019,
this time alleging a counter claim against Appellee for unlawful conversion of rental income on
the Property.
In September of 2019, Appellee supplemented his petition to include Mr. Sanchez’s estate
and Appellant, individually and as the administrator of Mr. Sanchez’s estate, as defendants in the
case. In the supplemental petition, Appellee alleged that, despite filing a lis pendens on the
Property at the inception of the lawsuit, Appellant attempted to convey the property to herself by
Special Executor’s Warranty Deed. He also asserted his action for declaratory judgment, seeking
a declaration of his rights regarding the Property, and nullifying the purported conveyance of the
Property made by Appellant.
Appellee’s Motion for Summary Judgment and Appellant’s Response
After filing his supplemental petition, Appellee moved for summary judgment on his
declaratory judgment action. He alleged Mr. Sanchez purchased the Property as a single man,
before his marriage to Appellant, and thus the Property was Mr. Sanchez’s separate property to
which Appellant possessed no rights. He described his agreement with Mr. Sanchez to purchase
the Property, the terms of the Agreement, and payments made to that end. He explained his
discovery of Mr. Sanchez’s marriage to Appellant, her resistance to finalizing conveyance of the
Property to Appellee, and her attempt to convey the Property as the administrator of Mr. Sanchez’s
estate to herself. The motion sought a declaration that Appellee paid Mr. Sanchez in full according
to the terms of the Agreement and Appellee is thus the sole owner in fee simple of the Property.
Appellee also sought to void the purported conveyance by Appellant of the Property to herself.
4 In support of his motion, Appellee attached the following summary judgment evidence:
• The buyer’s statement and special warranty deed for Mr. Sanchez’s 1997 purchase of the property at 1223 Tio Dink Circle, El Paso, Texas 79907; The receipt for purchase of the mobile home composing a portion of the Property at issue;
• The certificate of marriage between Mr. Sanchez and Appellant;
• A receipt and handwritten acknowledgment from Mr. Sanchez for the $13,000 down payment on the Property;
• The Agreement;
• Affidavits from two witnesses who attested to the Agreement’s signing by Appellee and Mr. Sanchez;
• A handwritten note purportedly made by Mr. Sanchez indicating the amount paid through May of 2014 on the Property and the remaining balance due;
• Check copies and stubs of the final six payments Appellee made to Mr. Sanchez for purchase of the Property;
• Appellee’s affidavit in support of his motion; and
• An affidavit from Carlos Muniz, who worked as Appellee’s assistant during the relevant time frame and witnessed incidents relevant to the parties’ relationship.
In response to Appellee’s motion, Appellant asserted several grounds for why the trial court
should deny Appellee’s motion. First, she alleged some of the check stubs and check copies
provided by Appellee as evidence of payments made to Mr. Sanchez for the Property were not
labeled as being mortgage payments, and thus a fact issue existed regarding whether they were
applied as mortgage payments. In support, Appellant provides three check stubs listing “Teaching
Materials” as the description of the checks, each for $600.
Next, Appellant claimed the Agreement was for purchase of property at “Tio Dick,” rather
than Tio Dink. Appellant also claims the Agreement lacks a sufficient legal description of the
Property, and thus a fact issue exists regarding the parties’ intent to enter into an agreement 5 regarding the property at Tio Dink, rather than “Tio Dick.”
Finally, Appellant urges the signature on the Agreement purporting to be that of
Mr. Sanchez is not identical to the signatures on other documents offered by Appellee as summary
judgment evidence. In support, she provided a copy of Mr. Sanchez’s driver’s license, which bears
his signature.
The trial court granted Appellee’s motion and entered declaratory judgment for Appellee,
as follows:
• The Agreement “was a binding and enforceable contract covering the [Property], which were the separate property of [Mr. Sanchez]; and that [Appellee] paid [Mr. Sanchez] in full the contract price of $52,000.00[.]”
• Appellee “is the sole and rightful, legal and equitable owner of 100% of the fee simple title to the real estate located at 1223 Tio Dink, El Paso, Texas 79907 and legally described as: Lot 12, Block 1, CORRALES ESTATES, an Addition to the City of El Paso, El Paso County, Texas, according to the map and plat thereof filed for record in the Real Property Records of El Paso County, Texas.”
• Appellee is the “sole and rightful, legal and equitable owner of 100% of the title” to the Silver Creek mobile home, the storage shed, and the Rambler.
• The Special Executor’s Warranty Deed for the Property executed by Appellant in 2019 is “null and void and of no legal effect and … is removed from the chain of title[.]”
This appeal followed.
DISCUSSION
Appellant lists three issues on appeal: (1) whether the trial court erred when it pronounced
the executory contract at issue covered the property on Tio Dink when the executory contract
language stated it was for property on “Tio Dick;” (2) whether the trial court erred when it
pronounced Appellee made payment in full to Mr. Sanchez for the covered property; (3) whether
6 the trial court erred when it held the signatures on the executory contract belonged to Mr. Sanchez. 1
The first and third issues challenge the existence and/or validity of the Agreement between the
parties. The second issue challenges Appellee’s performance under the contract.
Appellant’s issues boil down to whether a genuine issue of material fact exists as to any
element of Appellee’s cause of action against her to preclude summary judgment. In his summary
judgment motion, Appellee sought only a declaration of his rights under the executory contract
and pleaded he would waive his remaining claims if the trial court granted summary judgment in
his favor. Accordingly, we must determine whether the trial court erred in granting summary
judgment in favor of Appellee on his declaratory judgment action against Appellant.
Standard of Review
We review declaratory judgments under the same standard as other judgments or decrees.
TEX.CIV.PRAC.&REM.CODE ANN. § 37.010; Hawkins v. El Paso First Health Plans, Inc., 214
S.W.3d 709, 719 (Tex.App.—Austin 2007, pet. denied). Here, because the trial court rendered the
declaratory judgment through summary judgment proceedings, “we review the propriety of the
trial court’s declarations under the same standards we apply to summary judgment.” See Hawkins,
214 S.W.3d at 719.
We review a trial court’s decision to grant summary judgment de novo. Valence Operating
Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional motion for summary
judgment, the movant must show that there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Provident Life & Accident Ins. Co.
1 In her response to Appellee’s Motion, Appellant posited the Agreement does not constitute a valid executory contract for the sale of land because it includes a lease agreement to a third party unrelated to Appellee, as purchaser. However, this issue has not been raised as a point of error on appeal, and we therefore assume Appellant abandoned it. See TEX.R.APP.P. 38.1. 7 v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). After the movant satisfies his burden, the burden
shifts to the nonmovant to provide evidence which raises a genuine issue of material fact and thus
avoids summary judgment. See Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d
507, 511 (Tex. 2014). This standard applies in actions for breach of an executory contract for the
sale of land. See Reeder v. Curry, 294 S.W.3d 851, 855 (Tex.App.—Dallas 2009, pet. denied).
In reviewing the summary judgment evidence, we accept as true the evidence favoring
Appellant, the non-movant, “indulging every reasonable inference and resolving all doubts in the
[Appellant’s] favor.” Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995).
Summary Judgment Evidence
Evidence relied upon in summary judgment must be otherwise admissible under the rules
of evidence. United Blood Servs. v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). Unfiled discovery
products may be used as summary judgment evidence when they are attached to the motion or
response. TEX.R.CIV.P. 166a(d).
Appellee provided a number of documents as summary judgment evidence, including
documents of which he has personal knowledge regarding their creation and/or content, and other
documents he received from Mr. Sanchez and/or Appellant in discovery, based on notations made
on the face of the documents. Likewise, Appellant attached documents received from Appellee in
response to discovery, based upon notations on the face of the documents indicating as much. Both
parties specifically reference the documents they rely upon in Appellee’s motion and Appellant’s
response, respectively, and their contents, and we accordingly find they are competent summary
judgment evidence. See Barraza v. Eureka Co., a Div. of White Consol. Indust., Inc., 25 S.W.3d
225, 228-29 (Tex.App.—El Paso 2000, pet. denied)(attaching portions of unfiled discovery and
8 referencing it in movant’s motion is sufficient for summary judgment evidence); see also
TEX.R.CIV.P. 166a(d). To the extent either party objected in principal to any documents offered as
summary judgment by the other side, no such objection was made in the record or ruled upon by
the trial court, and has therefore been waived. See City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 677 (Tex. 1979)(formal defects in summary judgment evidence must be made in
writing and ruled upon by the trial court). 2
Appellant claimed throughout her response to Appellee’s motion that Appellee failed to
produce a number of documents requested in written discovery, the contents of which would
allegedly illustrate a fact issue. Appellant sought a continuance of the summary judgment hearing
to conduct additional discovery, which the trial court never ruled upon. However, the record does
not reflect any effort by Appellant to compel responses to discovery, and no rulings by the trial
court to that effect. A motion for discovery sanctions was filed, but not ruled upon. Furthermore,
on appeal, Appellant does not complain about the trial court’s failure to rule upon the motion for
continuance or the motion for sanctions, although her brief does mention Appellee’s failure to
produce requested documents. To the extent Appellant claims additional time to conduct discovery
would yield evidence creating a fact issue, her complaint is waived. See TEX.R.APP.P. 33.1 (to
preserve error, a party must make a timely request, objection, or motion stating the grounds with
sufficient specificity to make the trial court aware of the complaint).
Issues Nos. One and Three: Validity and Enforceability of the Agreement
We must determine first whether Appellee and Mr. Sanchez had a valid, enforceable
contract. Specifically, we must examine whether a genuine issue of material fact exists regarding
2 Although substantive defects in summary judgment evidence may be raised for the first time on appeal, no such objection has been raised in this appeal. 9 the description of the Property in the Agreement, since it listed the address as “Tio Dick” instead
of Tio Dink; and whether the signature on the Agreement as the seller belonged to Mr. Sanchez.
Applicable Law
The construction of a contract is a question of law that we review de novo. Chrysler Ins.
Co. v. Greenspoint Dodge of Houston, Inc., 297 S.W.3d 248, 252 (Tex. 2009). A court’s primary
goal in interpreting a contract is to give effect to the parties’ intent as expressed in the writing.
Luckel v. White, 819 S.W.2d 459, 461–63 (Tex. 1991). That intent is garnered from the language
of the contract, which is considered in its entirety in an effort to understand, harmonize, and
effectuate all its provisions, so that none will be rendered meaningless. Anadarko Petroleum Corp.
v. Thompson, 94 S.W.3d 550, 554 (Tex. 2002). “No single provision taken alone will be given
controlling effect; rather, all the provisions must be considered with reference to the whole
instrument.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Further, the Court should not
construe a contractual provision in a manner that is unreasonable or absurd. See Reilly v. Rangers
Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987).
In a real estate sales contract, the property to be conveyed is generally considered to be an
essential term of the contract and a description of the land to be conveyed is considered essential
to its enforceability. See, e.g., Loeffler v. Lytle Ind. Sch. Dist., 211 S.W.3d 331, 346 (Tex.App.–
San Antonio 2006, pet. denied)(holding that a contract to sell real property was unenforceable
because it did not contain a sufficient description of land subject to contract); Joplin v. Nystel, 212
S.W.2d 869, 872 (Tex.Civ.App.–Amarillo 1948, no writ)(draft sales agreement that provided only
a “partial description of the land” was unenforceable). Further, when a contract is in writing, the
statute of frauds requires an adequate property description in the contract itself that allows the
10 property to be identified with “reasonable certainty.” See, e.g., Texas Builders v. Keller, 928
S.W.2d 479, 482 (Tex. 1996); Kanan v. Plantation Homeowner’s Ass’n, Inc., 407 S.W.3d 320,
330–31 (Tex.App.—Corpus Christi 2013, no pet.).
A party must establish a meeting of the minds to prove the existence of an enforceable
contract. See Southern v. Goetting, 353 S.W.3d 295, 299 (Tex.App.—El Paso 2011, pet. denied)
(citing Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007)); see also David J. Sacks,
P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008). Further, the terms of the agreement must be
definite, certain, and clear as to all essential terms. Goetting, 353 S.W.3d at 299–300. When
essential terms are missing from the parties’ agreement, the parties have, at most, only entered into
an agreement to make a future agreement, with the essential terms left open to future negotiations,
which, in turn, cannot constitute a binding contract. Id.; see also, T.O. Stanley Boot Co., Inc. v.
Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992).
“With respect to typographical errors, ‘written contracts will be construed according to the
intention of the parties, notwithstanding errors and omissions, by perusing the entire document and
to this end, words, names, and phrases obviously intended may be supplied.’” Falk & Fish, LLP
v. Pinkston’s Lawnmower and Equipment, Inc., 317 S.W.3d 523, 527-28 (Tex.App.—Dallas 2010,
no pet.)(quoting City of Galveston v. Galveston Mun. Police Ass’n, 57 S.W.3d 532, 539
(Tex.App.—Houston [14th Dist.] 2001, pet. denied)).
The validity of a signature may be contested by expert or lay testimony. See, e.g., Edwards
v. Federal National Mortgage Association, 545 S.W.3d 169, 179-180 (Tex.App.—El Paso 2017,
pet. denied); Matter of the Estate of Zerboni, 556 S.W.3d 482, 487-88 (Tex.App.—El Paso 2018,
no pet.). However, where a litigant contesting the validity of a signature fails to offer any testimony
11 regarding the validity of a signature, it is not the trial court nor a reviewing court’s job to compare
the signature at issue with exemplars offered by the party. See Edwards, 545 S.W.3d at 179 (where
appellant stated there were “obvious differences” between the signature on a mortgage note and
the signature on a will, but offered no witness opinion regarding the signatures, this Court declined
to make its own comparison of the two).
Analysis
Appellant alleges that because the Agreement states it is for purchase of property at 1223
“Tio Dick” in El Paso, Texas, rather than 1223 Tio Dink, title to 1223 Tio Dink cannot transfer
from Mr. Sanchez to Appellee. Appellant goes so far as to state the trial court “transfigur[ed]” the
Agreement from one for property on Tio Dick into one for property on Tio Dink. According to
Appellant, the discrepancy in the property address on the Agreement creates a fact issue regarding
what property the parties actually bargained over. Appellee counters that the discrepancy is merely
a spelling error, and the remaining summary judgment evidence clarifies Appellee’s and
Mr. Sanchez’s intent to enter into an agreement regarding the property at 1223 Tio Dink.
We agree with Appellee. Appellant does not dispute Mr. Sanchez owned the property at
1223 Tio Dink, or that he purchased it in 1997 prior to his marriage to Appellant. Instead, Appellant
claims the Agreement is evidence of Mr. Sanchez’s intent to sell property to Appellee at 1223 “Tio
Dick,” since “Tio Dick” is the property’s street name listed on the Agreement. This argument lacks
merit. A simple Google search reveals “1223 Tio Dick” does not exist in El Paso. 3 If we accept
Appellant’s position, Mr. Sanchez knowingly entered into an agreement to accept money from
Appellee for property that he not only did not own, but did not exist. In other words, Mr. Sanchez
3 GOOGLE, https://www.google.com (search “1223 Tio Dick El Paso TX 79907”). 12 intended to defraud Appellee of $52,000. We do not believe it is Appellant’s intent to judicially
admit to Mr. Sanchez’s estate attempting to defraud Appellee, and we accordingly do not accept
Appellant’s argument that Mr. Sanchez intended to negotiate the sale of property to Appellee that
does not exist.
Rather, we find the “Tio Dick” reference to be nothing more than a typographical error,
and we construe the Agreement according to the intent of the parties. See Falk & Fish, LLP, 317
S.W.3d at 527-28. It is obvious the parties intended the Agreement to cover the property at 1223
Tio Dink, and we do not find the spelling error in the street name creates any ambiguity in that
intent.
It is well-established that parol evidence cannot be used to show the intent of parties
contracting for the sale of land, and the essential terms of such contract must be included in the
contract. See Wilson v. Fisher, 188 S.W.2d 150, 152 (Tex. 1945). However, while “essential
elements [of a contract] may never be supplied by parol[,] [t]he details which merely explain or
clarify the essential terms appearing in the instrument may ordinarily be shown by parol[,]” so
long as the parol evidence relied upon does “not constitute the framework or skeleton of the
agreement.” Id.
Without deeming it necessary to do so, we consider the parol evidence to the Agreement
provided as summary judgment evidence to clarify over which property Mr. Sanchez and Appellee
believed they were negotiating. Exhibit 5 to Appellee’s motion is the handwritten receipt from
Mr. Sanchez regarding Appellee’s down payment “on the Tio Dink property that I sold him.”
Exhibit 10 to Appellee’s motion is a check from Appellee to Mr. Sanchez, whose memo line reads,
“Final Payment 1223 Tio Dink.” These two instances of parol evidence clarify and explain the
13 parties’ intent to negotiate the sale and purchase of 1223 Tio Dink, despite the typographical error
in the Agreement which reads, “Tio Dick.” We do not find Appellant provided any evidence to
create an issue of material fact regarding the intent of the parties to execute the sales agreement
for the property at 1223 Tio Dink.
Further, Appellant claims the trial court erred in finding the signatures on the documents
provided as summary judgment evidence by Appellee were those belonging to Mr. Sanchez.
Appellant provided no witness testimony regarding the validity of the signature on the Agreement,
and instead asks this Court to note the “differences” between Mr. Sanchez’s signature on the
Agreement compared to other documents relied upon as summary judgment evidence. As we have
done previously, we decline to make any such comparison. See Edwards, 545 S.W.3d at 179-180.
Moreover, as he discusses in his brief, Appellee provided as summary judgment evidence
affidavits from two individuals who witnessed Mr. Sanchez and Appellee sign the Agreement, and
testified the signatures on the Agreement were those of Mr. Sanchez and Appellee. Appellant
offered no evidence controverting these affidavits. Accordingly, we find Appellant failed to
produce evidence of a material issue of fact regarding the validity of Mr. Sanchez’s signature on
the Agreement.
For these reasons, Appellant’s first and third issues are overruled.
Issue No. Two: Appellee’s Performance Under the Agreement
Having found the Agreement was valid and enforceable, we must now determine whether
a genuine issue of material fact exists regarding Appellee’s performance under the contract. In her
second issue, Appellant urges that the trial court erred when it pronounced Appellee made payment
in full to Mr. Sanchez for the covered property. In support, he claims the Agreement’s language,
14 which requires payments of $500 per month, contradicts the facts asserted by Appellee that he
made payments of $600 per month. Appellant also argues that the check copies provided by
Appellee as summary judgment evidence are insufficient to prove full payment to Mr. Sanchez
because the checks were written from Pipo’s Academy of Hair Design, of which Mr. Barragan is
the owner. Further, Appellant claims that, of the check stubs provided, some indicate the $600
payment was for “teaching materials” and some do not include a stated purpose. Appellant also
complains that the four check stubs he provided as summary judgment evidence, which list
“teaching materials” as the purpose for payment, contradict the handwritten accounting of
payments received by Mr. Sanchez from Appellee, bearing Mr. Sanchez’s signature, attached as
Exhibit 9 to Appellee’s motion.
Appellee counters by citing to the several summary judgment exhibits attached to his
motion providing evidence of monthly payments made to Mr. Sanchez, receipt of which
Mr. Sanchez acknowledged. He also cites to his affidavit, wherein he testifies to having paid
Mr. Sanchez in full under the terms of the Agreement.
First, we find it noteworthy that Appellant does not dispute Mr. Sanchez received
$52,000.00 from Appellee. Rather, she takes issue with three checks containing a notation on the
check stub as being for “teaching materials” for Pipo’s Academy of Hair Design, rather than
payments under the Agreement. Appellant claims the payments were actually business expenses
which Appellee is now trying to disguise as mortgage payments to defraud the IRS. Further, she
alleges the absence of a stated purpose on the six check copies provided by Appellee as summary
judgment evidence of the final six payments made under the Agreement does not prove the
payments were made pursuant to the Agreement.
15 The summary judgment standard requires us to construe the evidence in the light most
favorable to Appellant. See Park Place Hosp., 909 S.W.2d at 510. However, we must indulge only
reasonable inferences in favor of the non-movant, not every inference proffered by the non-
movant. See id. Under this standard, we are unable to find a material issue of fact. First, we find it
unreasonable to infer that a notation on a check stub provides greater evidence of a payment’s
purpose than the sworn testimony of the person who signed the check. This is especially true
considering the three checks in question were for $600, the same amount as each of the previous
and subsequent monthly payments under the Agreement.
However, even if we take Appellant’s claims as true and assume those three checks were,
in fact, for teaching materials, we find no contradiction between this assumption and the sworn
affidavit of Appellee, who testified to paying the contract in full. The two are not mutually
exclusive. Appellee could have made three payments to Mr. Sanchez for teaching materials and
still paid him pursuant to the Agreement, which does not contradict the other summary judgment
evidence Appellee provided as proof of payments made. Appellant has not provided any affidavit
testimony controverting Appellee’s testimony that he paid the contract in full, nor to Exhibit 9 to
Appellee’s motion which provides a summary accounting of payments made through May of 2014
under the Agreement. Accordingly, we find no error in the trial court’s determination that Appellee
performed fully under the Agreement.
Appellant’s second issue is overruled.
CONCLUSION
Having overruled each of Appellant’s three issues on appeal, we affirm the judgment of
the trial court.
16 April 14, 2021 YVONNE T. RODRIGUEZ, Chief Justice
Before Rodriguez, C.J., Palafox, and Alley, JJ.