In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00336-CV ___________________________
DENISE PAULINE GRAY, Appellant
V.
LARRY CROSBY, Appellee
On Appeal from the 355th District Court Hood County, Texas Trial Court No. C2022369
Before Kerr, Birdwell, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION
This lawsuit arose from a dispute concerning a residential lease agreement that
contained an option to purchase. After Appellant Denise Pauline Gray, the tenant
under the aforementioned lease, failed to vacate the premises following the lease’s
termination, Appellee Larry Crosby sued her for breach of contract and for
declaratory relief. Gray, who maintained that she had exercised the purchase option
before the lease terminated, filed a breach-of-contract counterclaim seeking specific
performance of the purchase option. The trial court granted Crosby summary
judgment on his affirmative claims and on Gray’s counterclaim. Gray timely
appealed. We will affirm.
I. BACKGROUND
In March 2020, Gray and Crosby—who are both licensed realtors—entered
into a written lease agreement whereby Gray agreed to rent a home that Crosby
owned in Granbury (the Property). The lease contained the following provision
granting Gray the option to purchase the Property:
[Crosby] does hereby agree to provide [Gray] an option to purchase the [Property] for the agreed purchase price of $399,000.00 after [the] 1[-]year anniversary date from move in. Option to purchase extended until lease terminates and/or tenant vacates. Election to purchase must be submitted to [Crosby] prior to 90 days before termination date of the lease. Full security deposits will be credited toward the purchase price at closing. While the purchase-option provision required Gray to “submit[]” her election
to purchase to Crosby, it did not specify how it was to be “submitted.” However, the
2 lease’s generally applicable “notices” paragraph provided that “[a]ll notices under this
lease must be in writing and are effective when hand-delivered, sent by mail, or sent
by electronic transmission.”
Further, although the purchase-option provision required that Gray must
exercise her option “prior to 90 days before” the lease’s termination date, the lease did
not have a fixed termination date. Rather, it had a primary term that ran from April 1,
2020, through July 31, 2022, but if neither party gave the other written notice of
termination at least 30 days before the primary term’s expiration, then the lease
automatically and perpetually renewed on a month-to-month basis until one of the
parties provided the other with a written termination notice.
Because neither party provided the other with a written termination notice
during the primary term, the lease automatically renewed on a month-to-month basis
on August 1, 2022. On that date, Crosby hand-delivered a written termination notice
to Gray. The notice stated that her “last day to rightfully occupy the premises” was
August 31, 2022, and that if she failed to vacate the Property by that date, she would
be required to pay holdover rent.
Gray did not vacate the Property by August 31, 2022. Instead, she claimed that
the lease had not terminated and refused to pay any holdover rent. Additionally, she
maintained that because she had purportedly exercised her purchase option, she had
the right to purchase the Property at the agreed-upon $399,000 price.
3 Crosby sued Gray for declaratory relief and breach of contract. Specifically,
Crosby asked the trial court to declare that (1) the lease terminated on August 31,
2022; (2) the deadline for Gray to exercise her purchase option was June 2, 2022 (i.e.,
the 90th day before August 31, 2022); (3) because Gray failed to notify Crosby that
she was exercising her purchase option before this deadline, Crosby was not obligated
to sell the Property to her; and (4) Gray no longer had any right to possess the
Property. Regarding his breach-of-contract claim, Crosby alleged that Gray had
breached the lease by failing to pay holdover rent as required.
Gray responded with a general denial and several affirmative defenses. She also
asserted a breach-of-contract counterclaim against Crosby based on his refusal to sell
her the Property for the $399,000 price reflected in the purchase option. She sought a
judgment ordering Crosby to specifically perform his purported obligation to sell her
the Property at that price.
Shortly after filing suit, Crosby served Gray with requests for admissions. Gray
failed to respond by the applicable deadline. See Tex. R. Civ. P. 198.2(b). As a result,
Gray was deemed to have admitted, among other things, that “at no time before
June 3, 2022, did [she] send an email, letter, or text message to [Crosby] that state[d]
that [she was] electing to exercise [her] right to purchase the Property.” See Tex. R.
Civ. P. 198.2(c). Gray filed a “Motion to Undeem Deemed Admitted Admissions,”
but the trial court denied it.
4 After the trial court denied Gray’s request to withdraw her deemed admissions,
Crosby filed a motion asking the trial court to reconsider its earlier denial of his first
motion for partial summary judgment, which had focused specifically on his
declaratory-judgment claim. Following a hearing,1 the trial court signed an order
granting the motion and making the following declarations:
(1) The lease terminated on August 31, 2022; (2) To exercise her option to purchase the property, Gray had to submit written notice to Crosby of her intent to do so no later than June 2, 2022; (3) Crosby has no obligation to sell the residence to Gray because [she] did not provide him with her written notice of intent by June 2, 2022; and (4) Gray has no present right to purchase or possess the property. At the same time that he filed his motion to reconsider, Crosby also filed a
second motion for partial summary judgment specifically focusing on his breach-of-
contract claim. In this motion, Crosby asserted that Gray had continued to occupy
1 The trial court held a joint hearing on Crosby’s motion to reconsider and his second motion for partial summary judgment (discussed below). Although the trial court’s official court reporter has advised us that he reported this hearing—and six others in this case—Gray elected not to include the reporter’s records from any of these hearings in the appellate record. While the Texas Supreme Court has held that a reporter’s record is neither necessary nor appropriate to the purposes of a summary- judgment hearing, Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 291 n.141 (Tex. 2004), the filing of a reporter’s record of a summary-judgment hearing—if available— may nevertheless aid an appellate court by, inter alia, helping to clarify the parties’ arguments or providing additional details regarding the trial court’s rulings, see, e.g., Gonzales v. Williams, No. 11-17-00130-CV, 2019 WL 2710046, at *1 n.3 (Tex. App.— Eastland June 28, 2019, no pet.) (mem. op.).
5 the Property after the lease terminated and that she had breached the lease by failing
to pay him holdover rent. Following a hearing,2 the trial court signed an order
granting Crosby’s second partial-summary-judgment motion.
Crosby filed a third partial-summary-judgment motion addressing Gray’s
counterclaim. Ultimately, the trial court signed an order granting this motion and
rendering judgment that Gray take nothing on her counterclaim.
After the trial court granted all three of Crosby’s partial-summary-judgment
motions, the “sole remaining issue” in the case was Crosby’s request for attorney’s
fees and costs. Following a bench trial on that issue, the trial court signed a final
judgment awarding Crosby attorney’s fees and costs and memorializing its phased
disposition of the case. This appeal followed.
II. DISCUSSION
On appeal, Gray advances two arguments to support her contention that the
trial court erred by granting Crosby summary judgment on his breach-of-contract
claim.3 First, she argues that she orally exercised her purchase option and that the trial
2 See supra note 1. 3 Gray’s brief enumerates only one issue—whether the trial court “properly granted” Crosby summary judgment “on the issue of liability for breach of contract.” Nevertheless, because we liberally construe briefs and because the argument and statement-of-facts sections of Gray’s brief flesh out her single issue, we conclude that she has fairly raised the two arguments outlined herein, and we will address both of them. See Tex. R. App. P. 38.1(f) (“The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.”); Perry v. Cohen, 272 S.W.3d 585, 587–88 (Tex. 2008) (“[W]e liberally construe issues presented to
6 court erred by concluding that the lease required her to communicate her election in
writing. Second, she argues that Crosby’s notice of termination was defective and
that, consequently, the lease never terminated. Neither of these arguments has merit.4
A. STANDARD OF REVIEW
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable
obtain a just, fair, and equitable adjudication of the rights of the litigants.”); see also Espinoza Valle v. Hertz Elec., LLC, No. 03-20-00056-CV, 2021 WL 1991268, at *2 n.3 (Tex. App.—Austin May 19, 2021, no pet.) (mem. op.) (liberally construing appellants’ brief and addressing “issue as stated and fairly raised” in the brief’s argument section as opposed to limiting analysis to the narrowly framed issue as stated in the brief’s “issues presented” section). 4 As Crosby points out, Gray’s brief’s argument section—which contains only three paragraphs—lacks substantive legal analysis and record citations to support certain of her contentions. Thus, Gray has arguably forfeited her appellate arguments. See Tex. R. App. P. 38.1(i) (providing that an appellant’s brief “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.) (admonishing that the “[f]ailure to cite applicable authority or provide substantive analysis waives an issue on appeal”); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (observing that error may be waived by inadequate briefing). But because Gray’s arguments lack merit, we overrule them on that basis. See Zermeno v. State, No. 14-19-00789-CR, 2021 WL 4472528, at *3 n.4 (Tex. App.—Houston [14th Dist.] Sept. 30, 2021, no pet.) (mem. op., not designated for publication) (exercising discretion to address issue on the merits despite appellant’s inadequate briefing but admonishing that failure to comply with briefing requirements “usually results in the waiver of an issue”); see also Eco Planet, LLC v. ANT Trading, No. 05-19-00239-CV, 2020 WL 6707561, at *5 (Tex. App.—Dallas Nov. 16, 2020, pet. denied) (mem. op.) (Osborne, J., concurring) (“Appellate courts have the discretion to waive issues for inadequate briefing.” (first citing Fredonia State Bank, 881 S.W.2d at 284; and then citing Horton v. Stovall, 591 S.W.3d 567, 569–70 (Tex. 2019)); cf. Perry, 272 S.W.3d at 587 (“[A]ppellate courts should reach the merits of an appeal whenever reasonably possible.”).
7 to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could and disregarding evidence contrary to the nonmovant unless reasonable jurors
could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff
is entitled to summary judgment on its own cause of action if it conclusively proves all
essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones,
710 S.W.2d 59, 60 (Tex. 1986). But to be entitled to summary judgment on a
defendant’s counterclaim, a plaintiff must conclusively negate at least one of the
counterclaim’s essential elements. See EM Bldg. Contractors Servs., LLC v. Byrd Bldg.
Servs., LLC, No. 05-19-00153-CV, 2020 WL 4592791, at *3, *17 (Tex. App.—Dallas
Aug. 11, 2020, no pet.) (mem. op.) (citing Adams v. Tri–Continental Leasing Corp.,
713 S.W.2d 152, 153 (Tex. App.—Dallas 1986, no writ)).
B. BREACH-OF-CONTRACT ELEMENTS
“The essential elements of a breach of contract claim are (1) the existence of a
valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of
the contract by the defendant, and (4) damages sustained as a result of the breach.”
Berdin v. Allstate Ins. Co., No. 02-22-00426-CV, 2023 WL 7037619, at *6 (Tex. App.—
Fort Worth Oct. 26, 2023, no pet.) (mem. op.) (citing City of The Colony v. N. Tex. Mun.
Water Dist., 272 S.W.3d 699, 739 (Tex. App.—Fort Worth 2008, pet. dism’d)).
Because Crosby presented summary-judgment evidence supporting each of these
8 elements,5 Gray bore the burden to raise a genuine issue of material fact concerning at
least one of them. See Fernandez v. Indep. Bank, No. 02-20-00375-CV, 2021 WL
4621758, at *2 (Tex. App.—Fort Worth Oct. 7, 2021, no pet.) (mem. op.) (citing
Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018)).
Gray advances two arguments to support her contention that a genuine issue of
material fact exists regarding the third element—whether she breached the lease. But
both of these arguments run counter to the established rules of contractual
interpretation and are therefore unpersuasive.
C. THE LEASE’S WRITTEN-NOTICE REQUIREMENT
First, Gray argues that the lease’s purchase-option provision did not require her
to notify Crosby in writing that she had elected to purchase the Property. According
to Gray, because she had orally exercised her purchase option before Crosby delivered
his notice terminating the lease, the lease never terminated, and she therefore did not
Crosby attached to his second summary-judgment motion a copy of the fully 5
executed lease as well as his affidavit stating that (1) he entered into the lease with Gray in March 2020; (2) Gray continued to reside at the Property as of the date that the affidavit was signed; (3) he had hand-delivered a written notice—a true and correct copy of which was attached to his affidavit—to Gray stating that he was terminating the lease effective August 31, 2022; (4) Gray had “failed to timely leave” the Property after the lease’s termination; and (5) Gray had never paid him any holdover rent or late fees. He also attached a transcript of Gray’s June 2023 deposition in which she acknowledged that the lease had commenced in April 2020, that Crosby had hand-delivered a notice terminating the lease effective August 31, 2022, and that she continued to live on the Property after August 31, 2022.
9 owe Crosby any holdover rent. But Gray could not orally exercise her purchase
option.
The lease’s purchase-option paragraph provides that to exercise the option,
Gray must “submit” her “election” to Crosby “prior to 90 days before [the]
termination date of the lease.” While the purchase-option paragraph made it clear
that to exercise her option, Gray was required to inform Crosby of her election at
least 90 days before the lease terminated, it did not specify the manner in which Gray
must do so.
But, as noted, the lease’s generally applicable notices paragraph provided that
“[a]ll notices under this lease must be in writing and are effective when hand-
delivered, sent by mail, or sent by electronic transmission.” Under the established
rules of contract construction, the lease must be construed as a whole; thus, the
purchase-option and notices paragraphs must be read together. See Fischer v. CTMI,
L.L.C., 479 S.W.3d 231, 239 (Tex. 2016). Taken together, these provisions make clear
that Gray was required to inform Crosby of her election to purchase the Property in
writing—the only manner in which the parties could send notices under the lease.
In her briefing, Gray implies that because—unlike certain other paragraphs in
the lease—the purchase-option paragraph does not use the term “notice,” she was not
required to communicate her election in writing. But this hypertechnical reading of
the contract ignores the common, ordinary meaning of the word “notice.” See
Anadarko Petrol. Corp. v. Hous. Cas. Co., 573 S.W.3d 187, 192 (Tex. 2019) (instructing
10 that courts must give undefined contractual terms their “common, ordinary
meaning”); cf. Thomasson v. Kirk, 859 S.W.2d 493, 496 (Tex. App.—Houston [14th
Dist.] 1993, writ denied) (rejecting interpretation of a will that involved “isolating
certain of [the testator’s] words in a kind of hypertechnical vacuum” because it
obscured his clear intent). Black’s Law Dictionary defines (1) “notice” as “[l]egal
notification required by law or agreement,” (2) “notification” as “[a] formal
announcement of a legally relevant fact, action, or intent,” and (3) “notify” as “[t]o
inform (a person or group) in writing or by any method that is understood.” Notice,
Notification, Notify, Black’s Law Dictionary (12th ed. 2024). Here, the purchase-option
paragraph provides that for Gray to exercise her option, she must inform (i.e., notify)
Crosby of her election (i.e., her legally relevant intent) to purchase the Property.
Thus, even though the word “notice” does not appear in the purchase-option
paragraph, any fair reading of this paragraph makes clear that to exercise her purchase
option, Gray had to provide notice of her election to Crosby. And under the lease’s
terms, this notice—like all other notices—had to be in writing.
In sum, because the lease required Gray to notify Crosby in writing of her
election to purchase the Property, she cannot raise a fact issue as to whether she
timely exercised her purchase option—or the dependent question of whether she
breached the lease by failing to pay holdover rent—by claiming that she orally
submitted her election to Crosby.
11 D. EFFECTIVENESS OF CROSBY’S TERMINATION NOTICE
In her second argument, Gray contends that because Crosby’s termination
notice was defective, the lease never terminated. According to Gray, the lease’s
termination-notice paragraph—which provides that a party may terminate the lease on
30 days’ written notice after the expiration of the primary term—conflicts with and
renders meaningless the purchase-option paragraph, which requires Gray to submit
her election to purchase the Property “prior to 90 days before” the lease’s termination
date. Thus, Gray asserts that the lease must be construed as requiring Crosby to give
her “notice of 90 days plus a reasonable time” to terminate the lease. We disagree.
When construing a contract, our primary concern is to give effect to the
parties’ true intent as expressed in the instrument. Doe v. Tex. Ass’n of Sch. Bds., Inc.,
283 S.W.3d 451, 458 (Tex. App.—Fort Worth 2009, pet. denied). “In doing so, we
must examine and consider the entire contract in an effort to harmonize and give
effect to all provisions so that none are rendered meaningless.” Id. If two provisions
of a contract are in irreconcilable conflict, we may apply certain rules to resolve the
incongruity. See, e.g., Hous. Expl. Co. v. Wellington Underwriting Agencies, Ltd., 352 S.W.3d
462, 472 n.50 (Tex. 2011) (citing Williston on Contracts and observing the principle that
where a provision in a preprinted contract irreconcilably conflicts with a handwritten
addition made by a party, the handwritten provision will control); McCreary v. Bay Area
Bank & Tr., 68 S.W.3d 727, 731–32 (Tex. App.—Houston [14th Dist.] 2001, pet.
dism’d) (recognizing the rule of contract construction that “when there is a conflict
12 between two provisions, the specific provision controls over the general provision”).
But we may not rewrite a contract or add to its language under the guise of
interpreting it. Sundown Energy LP v. HJSA No. 3, Ltd. P’ship, 622 S.W.3d 884, 889
(Tex. 2021); see Fischer, 479 S.W.3d at 239.
Contrary to Gray’s assertion, the lease’s termination-notice paragraph does not
render the purchase-option paragraph meaningless. Indeed, because the purchase-
option paragraph is silent regarding the amount of notice that a party must provide
before terminating the lease, it does not even conflict with the termination-notice
paragraph, and the two provisions are easily harmonized.
The lease’s primary term—during which Crosby could not unilaterally
terminate the lease unless Gray defaulted—spanned from April 1, 2020, to July 31,
2022. Per the purchase-option paragraph, Gray had the option to purchase “after
[the] 1[-]year anniversary date from move in,” but, as noted, she had to provide notice
of her election to Crosby at least 90 days prior to the lease’s termination date. Thus,
she had the guaranteed and unilateral power to exercise her purchase option from
April 1, 2021, through May 1, 2022—the date that is 90 days before the primary
term’s expiration date. If Gray decided not to exercise her option during that 13-
month period, she still had the option to purchase the Property thereafter, but at that
point, she assumed the risk that Crosby would effectively nullify her purchase option
by exercising his right to terminate the lease—an action he would be inclined to take
if the market value of the Property had significantly increased.
13 Thus, the termination-notice paragraph does not render the purchase-option
paragraph meaningless; rather, reading the two paragraphs together gives effect to the
reasonable bargain that the parties struck. To accept Gray’s proposed construction of
the lease as requiring Crosby to provide more than 30 days’ notice of termination
would be to rewrite it under the guise of interpreting it—something we cannot do.
See Sundown Energy LP, 622 S.W.3d at 889.
Having rejected Gray’s argument that Crosby was required to provide more
than 30 days’ notice to terminate the lease, we conclude that Gray failed to raise a
genuine issue of material fact as to whether Crosby’s termination notice was
defective—or the dependent question of whether Gray breached the lease by failing
to pay holdover rent. Accordingly, the trial court did not err by awarding Crosby
summary judgment.6
III. CONCLUSION
Having rejected Gray’s appellate arguments, we affirm the trial court’s
judgment.
6 Because (1) Gray was deemed to admit that she had not exercised her purchase option in writing before June 2, 2022; (2) she could not orally exercise her purchase option; and (3) Crosby’s termination notice was effective, meaning that the lease terminated on August 31, 2022, Crosby conclusively negated the second element of Gray’s counterclaim for breach of contract. Thus, the trial court did not err by granting Crosby summary judgment both on his affirmative claims and on Gray’s counterclaim.
14 /s/ Brian Walker
Brian Walker Justice
Delivered: December 12, 2024