Ethel Annette Pettigrew v. Robert Gastineau

• Court: Court of Appeals of Texas
• Decided: October 14, 2020
• Docket: 10-18-00203-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00203-CV

ETHEL ANNETTE PETTIGREW, Appellant v.

ROBERT GASTINEAU,1 Appellee

From the 249th District Court Johnson County, Texas Trial Court No. DC-C201500720

MEMORANDUM OPINION

Appellant Ethel A. Pettigrew (Pettigrew) appeals the trial court’s order granting

Appellee Robert Gastineau’s (Gastineau) motions for summary judgment.2 We affirm.

1 Appellee notes in his Second and Third Amended Original Petitions that his actual name is Robert Gastineau. We change the heading accordingly.

2 James L. Pettigrew (Mr. Pettigrew), Pettigrew’s father, was added as a defendant in Gastineau’s Third Amended Original Petition. Gastineau’s claims against Mr. Pettigrew were voluntarily dismissed, and Mr. Pettigrew is not a party to this appeal. Background

The statement of facts included in Pettigrew’s brief notes the following:

[I]n October of 2011 [Gastineau] signed a contract for deed to purchase property belonging to Pettigrew via owner financing, specifically a purchase price of $135,000, with a five year loan at a five percent rate of interest. Due to the poor condition of the house, [Gastineau] and Pettigrew also entered into a “Renovation and Improvement Addendum,” to offer credits against the monthly mortgage payments to [Gastineau] to offset his costs in repairing the house. There were numerous conflicts between Pettigrew and [Gastineau] but it is a [sic] undisputed that [Gastineau] made all mortgage payments until April of 2015 when Pettigrew began returning them. Another party, Terry Burns, attempted to purchase a neighboring five acre tract from Pettigrew, leading to a dispute between he, [Gastineau], and Pettigrew as to precisely where the property line between the two tracts was located. On June 18, 2015, [Gastineau] was served with a notice of acceleration of loan and foreclosure from Pettigrew. Several actions were brought and dismissed by the parties in the justice court. [Gastineau] has been in exclusive possession of the land ever since.

We accept these facts as true because they have not been contradicted. See TEX. R. APP. P.

38.1(g); see also In re R.A.O., 561 S.W.3d 704, 706 (Tex. App.—Houston [14th Dist.] 2018,

no pet.).

The record reflects that the five-acre tract purchased by Gastineau was part of a

ten-acre parcel originally owned by Mr. Pettigrew, who sold the ten-acre parcel to his

daughter, Pettigrew, in 2008 subject to a $20,000 lien.3 Pettigrew sold five acres out of the

undivided ten-acre parcel to Gastineau in 2011 (the West Tract). No survey was

conducted at the time of the sale, and no deed of trust was executed.

3 The contract for land deed between Pettigrew and Gastineau incorrectly reflects this amount as $40,000.

Pettigrew v. Gastineau Page 2 The same month that Gastineau and Pettigrew executed the Contract for Land

Deed, Pettigrew sold the remaining five acres of the ten-acre parcel (the East Tract) to

Burns. Burns discovered that the East Tract was in a flood plain that was incompatible

with the placement of a septic system. Pettigrew then notified Gastineau that she was

taking two acres from the West Tract to give to Burns for installation of a septic system.

Gastineau did not legally contest this move. Burns either defaulted on his contract with

Pettigrew or she allowed him to rescind their contract, but the title of the East Tract

remained in Pettigrew’s name.

A series of lawsuits followed, with Pettigrew attempting to oust Gastineau from

the West Tract through eviction proceedings. The proceedings were either dismissed by

agreement of Pettigrew and Gastineau or, in one case, a judgment of acquittal was

entered in favor of Gastineau. See Pettigrew v. Gastineau, Cause No. FD150077 (Johnson

County Justice Court, Precinct #2, Place #1, Tex. June 5, 2015).

Gastineau initiated the present suit on October 16, 2015, asserting claims for

trespass to try title, trespass to real property, breach of contract, and statutory fraud. On

December 17, 2015, Pettigrew filed an answer and asserted counterclaims for breach of

contract and for a declaratory judgment. Pettigrew requested a declaration that the

contract between her and Gastineau was valid and enforceable, that Gastineau failed to

comply with the contract, that Pettigrew properly terminated the contract, and that

Pettigrew is entitled to possession of the West Tract. Pettigrew was represented by

counsel at the time she filed her answer and counterclaims. On April 21, 2016, Gastineau

Pettigrew v. Gastineau Page 3 filed a second amended original petition that included additional facts in support of his

suit and added claims under the Deceptive Trade Practices Act and the Property Code.

On June 23, 2016, while the case was still pending and prior to Gastineau moving

for summary judgment, Pettigrew deeded her interest in the entire ten-acre parcel back

to Mr. Pettigrew. Mr. Pettigrew signed a release of lien on June 27, 2016. On July 6, 2016,

Mr. Pettigrew gave Gastineau a notice to vacate the property. Gastineau filed a third

amended original petition on July 11, 2016 adding Mr. Pettigrew as a defendant. Also,

on July 11, 2016, Pettigrew’s attorney was granted leave to withdraw. On September 30,

2016, Mr. Pettigrew sold the entire ten acres to Gastineau for the purchase price of

$89,548.08 that included a tractor, bushhog, and box blade. The warranty deed was

secured by a vendor’s lien and deed of trust. Gastineau filed a motion for nonsuit as to

his claims against Mr. Pettigrew on October 3, 2016 that was granted on the same date.

On June 14, 2017, Gastineau filed a motion for no evidence and traditional

summary judgment on Pettigrew’s counterclaims and for traditional summary judgment

on his own claims. Pettigrew, who remained without counsel, filed an untimely response

to Gastineau’s motion on July 26, 2017. Pettigrew’s response consists of approximately

four hundred pages of largely indecipherable documents. At a hearing on the same date,

Pettigrew orally requested a continuance in order to obtain counsel. Gastineau’s attorney

represented to the trial court that Gastineau was not seeking monetary damages or

attorney’s fees, merely an equitable remedy under the DTPA of rescinding the contract

with Pettigrew. The trial court reset the hearing for October 30, 2017. Ten days before

the hearing, Pettigrew requested another continuance in order to “extend the time to

Pettigrew v. Gastineau Page 4 allow Affidavit of Evidence and Revised Counter Suit submission.” Attached to the

motion was Pettigrew’s response to Gastineau’s no evidence motion for summary

judgment, another 141 pages of documents. At the October 30th hearing, the trial court

continued the case for another six months. The trial court did not specifically address

Pettigrew’s request to extend the time to file her “affidavit of evidence.” On April 10,

2018, Pettigrew filed a “Supplemental Amended Response Answer to Plaintiffs ‘No

Evidence’ Motion & Petitions, Third Revised Counterclaim and Interposing

Counterclaim for Judicial Foreclosure.” At a hearing on the same date, Pettigrew

requested another six-month continuance that was denied by the trial court. New counsel

for Pettigrew entered an appearance on April 19, 2018.

On May 24, 2018, the trial court signed an order granting Gastineau’s motions for

summary judgment specifically finding:

[T]he Owner Finance Contract for Land Deed recorded at Instrument#: 12110, recorded on June 8, 2015, in the Real Property Records of Johnson County, Texas arose from multiple violations of Chapter 5 of the Texas Property Code, and is clouding title to the 10-acre tract located and commonly known as 7124 Sky Road, Joshua, Texas 76058, Johnson County, Texas.

The trial court directed that the Judgment be recorded in the real property records of

Johnson County, Texas, and “that upon such recordation any lien created in favor of Ethel

Annette Pettigrew created under the Owner Finance Contract for Deed recorded at

Instrument #: 12110, recorded on June 8, 2015, in the Real Property Records of Johnson

County, Texas, shall no longer have any force or effect.” The trial court further dismissed

Pettigrew’s counterclaims for breach of contract and for declaratory judgment.

Pettigrew v. Gastineau Page 5 Issues

In her one point of error, Pettigrew asserts: “Summary judgment was improper in

this case and resulted in unjust enrichment of Appellee at the expense of Pettigrew.” In

her brief, Pettigrew argues that the trial court erred in granting Gastineau’s motion for

summary judgment because “the court gave effective ownership of the western tract of

land to [Gastineau], when it [is] undisputed he has not paid a fair price for it, as well as

effective ownership of the eastern tract of land, when it is undisputed he has paid nothing

for it.” In her request for relief, Pettigrew requests that the trial court’s judgment be

reversed and that judgment be entered in favor of her against Gastineau. Pettigrew

alternatively requests that the trial court’s judgment be reversed and the case remanded

for a new trial or that the trial court’s judgment be modified to reflect only the rescission

of the contract for deed.

Standard of Review

We review a trial court's ruling on a motion for summary judgment de novo. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a

party moves for both traditional and no-evidence summary judgment on the same

ground or issue, we first review the trial court’s judgment under the no-evidence

standard of review. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). “That

is because if the non-movant fails to produce legally sufficient evidence to meet his

Pettigrew v. Gastineau Page 6 burden as to the no-evidence motion, there is no need to analyze whether the movant

satisfied its burden under the traditional motion.” Id.4

We review a no-evidence summary judgment under the same standard as a

directed verdict. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). Once

such a motion is filed, the burden shifts to the nonmoving party to present evidence

raising an issue of material fact as to each challenged element of its cause of action. Id. at

582. We consider the evidence in the light most favorable to the non-movant, crediting

evidence a reasonable jury could credit and disregarding contrary evidence and

inferences unless a reasonable jury could not. See Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 756 (Tex. 2007) (per curiam); City of Keller v. Wilson, 169 S.W.3d 802, 823 (Tex.

2005). When the non-movant presents more than a scintilla of probative evidence that

raises a genuine issue of material fact, a no-evidence summary judgment is improper.

Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009). More than a scintilla of evidence

exists when the evidence “rises to a level that would enable reasonable and fair-minded

people to differ in their conclusions.”5 King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751

(Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

4 Although Pettigrew’s responses to Gastineau’s motions for summary judgment were untimely, the trial court’s recitation in the order granting summary judgment that it had reviewed the evidence and heard the arguments is a sufficient “affirmative indication” that Pettigrew’s responses and attached evidence were considered by the trial court. See B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 260-61 (Tex. 2020).

5 Because we find the trial court’s ruling on the no-evidence motion for summary judgment dispositive, we will not address the ruling on the traditional motion for summary judgment.

Pettigrew v. Gastineau Page 7 As noted previously, Gastineau represented to the trial court that he was not

seeking monetary damages on any of the claims he asserted against Pettigrew, but merely

the equitable remedy of rescinding the contract.

Discussion

To the extent Pettigrew seeks a declaration that she is the owner of the entire ten

acres, she is without standing to assert such a claim. As previously noted, Pettigrew sold

her interest in the property to her father. Without an interest in the property, Pettigrew

has no standing to assert any claims related to ownership of the property. See Heckman

v. Williamson County, 369 S.W.3d 137, 151 (Tex. 2012) (appellate court has no jurisdiction

if plaintiff lacks standing). Pettigrew also has no standing to contest whether the price

Gastineau paid for the property is “fair” because the price was paid to Mr. Pettigrew.

While Pettigrew asserts that it is “undisputed” that Gastineau has paid nothing for the

East Tract, it is only undisputed that Gastineau did not pay her for the East Tract. The

East Tract was owned by Mr. Pettigrew when Gastineau purchased it.

Pettigrew also argues that Gastineau “offered no evidence whatsoever to show he

was entitled to ownership or possession [of] either tract.” The documents related to the

transfer of the ten acres from Pettigrew to Mr. Pettigrew and from Mr. Pettigrew to

Gastineau were included as exhibits to Gastineau’s summary judgment motion. Those

documents are sufficient to establish that Gastineau is legally in possession of the entire

ten acres and that Pettigrew’s actions violated the DTPA since the real estate contract was

not in compliance with the Property Code. Pettigrew presents not even a scintilla of

probative evidence that she retains ownership of the ten-acre tract or any portion of it or

Pettigrew v. Gastineau Page 8 that Gastineau breached the contract between them. Pettigrew did not specify for the

trial court nor this court what documents out of the 400-plus pages she presented

supports her counterclaims or negates the elements of Gastineau’s claim. The trial court

did not err, therefore, in granting Gastineau’s no-evidence motion for summary

judgment.

Pettigrew raises the issue of unjust enrichment for the first time in this appeal.

Under Rule 33.1, a party must show that a complaint was made to the trial court by a

timely request, objection, or motion that “stated the grounds for the ruling that the

complaining party sought from the trial court with sufficient specificity to make the trial

court aware of the complaint, unless the specific grounds were apparent from the

context;” and trial court ruled or refused to rule on the request, objection, or motion. TEX.

R. APP. P. 33.1(a). See also Mack Trucks, 206 S.W.3d at 577 (“Except for fundamental error,

appellate courts are not authorized to consider issues not properly raised by the

parties.”). There is nothing in the record to indicate that Pettigrew presented the trial

court with a claim of unjust enrichment. While Pettigrew represented herself throughout

the majority of this case, pro se litigants are held to the same standard as licensed lawyers

and must comply with applicable laws and rules of procedure. See Pena v. McDowell, 201

S.W.3d 665, 667 (Tex. 2006) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85

(Tex. 1978)); see also Giraldo v. Southwestern Adventist Univ., No. 10-16-00145-CV, 2017 WL

1573143, at *1 (Tex. App.—Waco Apr. 26, 2017, pet. denied) (mem. op.).

Finally, Pettigrew’s brief does not specifically identify how the trial court erred.

An appellant’s brief “must contain a clear and concise argument for the contentions

Pettigrew v. Gastineau Page 9 made, with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).

“This is not done by merely uttering brief conclusory statements, unsupported by legal

citations.” Tesoro Petroleum Corp. v. Nabors Drillings USA, Inc., 106 S.W.3d 118, 128 (Tex.

App.—Houston [1st Dist.] 2002, pet. denied); see also Yoonessi v. D’Arcy, No. 05-07-00689-

CV, 2008 WL 4981631, at *1 (Tex. App.—Dallas Nov. 25, 2008, pet. denied) (mem. op.);

Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.) (“Failure to cite

applicable authority or provide substantive analysis waives an issue on appeal.”).

Accordingly, we overrule Pettigrew’s sole issue.

Conclusion

Having overruled the one issue Pettigrew raises in this appeal, we affirm the trial

court’s judgment.

REX. D. DAVIS Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed October 14, 2020 [CV06]

Pettigrew v. Gastineau Page 10