Frasier v. Schauweker

915 S.W.2d 601, 1996 WL 16606
CourtCourt of Appeals of Texas
DecidedJanuary 18, 1996
DocketNo. 14-94-00965-CV
StatusPublished
Cited by1 cases

This text of 915 S.W.2d 601 (Frasier v. Schauweker) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frasier v. Schauweker, 915 S.W.2d 601, 1996 WL 16606 (Tex. Ct. App. 1996).

Opinion

OPINION

EDELMAN, Justice.

David A. Frasier and Virginia A. Frasier, husband and wife, appeal from a summary judgment granted in favor of John Schau-weker on the ground that there were genuine issues of material fact. We reverse and remand.

The parties entered into a standard form earnest money contract1 for Schauweker to buy, and the Frasiers to sell, a parcel of real [603]*603estate located in Houston, Texas. Schauweker deposited $1,000 earnest money to be held in escrow by a title company. Paragraph 4(E) of the contract provided:

Within 10 work days from the effective date of this contract, Buyer shall apply for all third party financing or noteholder’s approval of any assumption and shall make every reasonable effort to obtain financing or assumption approval.... If financing (including any financed PMI premium) or assumption approval is not obtained within [60 or 152] days from the effective date hereof, this contract shall terminate and the Earnest Money shall be refunded to Buyer.

(emphasis added).

Schauweker applied for a loan to finance the purchase of the property, but the loan was approved for only $128,250 of the purchase price rather than $132,400, as specified in the contract. After his demand for release of the earnest money was allegedly refused, Schauweker filed suit against the Frasiers to collect the $1,000 earnest money deposit and attorney’s fees of $4,000. The Frasiers counterclaimed that “Schauweker breached the agreement by not attempting to obtain financing and by demanding return of the earnest money prior to the concluding date of the contract.” As a result of this alleged breach, the Frasiers claimed recovery of actual damages totaling $17,158.67 or, alternatively, liquidated damages of $1,000.

Schauweker filed a motion for summary judgment to recover on his claim and deny that of the Frasiers. As to the Frasiers’ counterclaim, Schauweker’s motion for summary judgment argued that:

[Schauweker] is entitled to judgment as a matter of law that [the Frasiers] take nothing on their counter-claim because their counter-claim does not state a cause of action (sic) which relief may be granted. Further, uncontradicted summary judgment evidence establishes there is no genuine issue as to any material fact to establish that [the Frasiers’] claim for expenses, allegedly incurred in reliance on the Contract, is not permitted under the Contract. As a matter of law, more than mere reliance is required to impose liability upon [Schauweker] for these expenses. The Contract was an integrated agreement merging any prior or contemporaneous oral agreements, and permitting no changes except in writing. As a matter of law, any agreement by [Schauweker] to pay these expenses must be contained in a written agreement signed by both parties. There is no such agreement so [the Frasi-ers’] claim fails as a matter of law. [The Frasiers] should take nothing on their claim and [Schauweker] should have his costs and attorney’s fees.

In a later section entitled “Facts,” the motion alleged, among other things, that Schauweker fully complied with the contract, and that he applied for a loan, but it was approved for less than the amount specified in the contract.

In their response to Schauweker’s motion for summary judgment, the Frasiers argued that there were several fact issues, including (a) whether Schauweker made every reasonable effort to obtain financing as required by the Earnest Money Contract, (b) whether the Frasiers were entitled to the Earnest Money funds as liquidated damages after rejecting the contract, and (c) whether the claimed attorney’s fees were reasonable and recoverable. Among the evidence attached to the Frasiers’ response was an affidavit of the Frasiers’ attorney controverting the reasonableness and recoverability of attorneys fees. In addition, an affidavit of Mr. Frasier stated that when Schauweker’s lender offered to loan less than the amount specified in the contract, Mr. Frasier offered to finance the balance, but Schauweker declined.

Immediately before the summary judgment hearing, Schauweker non-suited his claim against the Frasiers, apparently because his earnest money had since been re[604]*604funded. The trial court entered a take-nothing summary judgment against the Frasiers’ counterclaim, and awarded Schauweker attorneys fees of $500.00 and costs. The summary judgment did not state the grounds upon which it was granted.

In their first point of error, the Frasiers claim that the summary judgment should not have been granted because there was a fact issue concerning whether Schauweker complied with the earnest money contract by making every reasonable effort to obtain financing. In addition, the Frasiers contend that actual and liquidated damages had been properly pled and were recoverable under the contract. In their second point of error, the Frasiers claim that there was also a fact issue regarding the award of attorneys fees.

A movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.1995). In reviewing a summary judgment, evidence favorable to the non-movant is taken as true, and every reasonable inference is indulged, and all doubts are resolved, in favor of the non-movant. Id. When a summary judgment does not specify the grounds upon which it was granted, it will be affirmed if any ground asserted in the motion has merit. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1998).

Effort to Obtain Financing

In this case, Schauweker’s summary judgment was based on the contention that the Frasiers’ pleading had failed to state a cause of action. Although the factual recitation of the motion alleged that Schauweker complied with the contract and applied unsuccessfully for a loan, that was not a ground on which summary judgment was sought in the motion. Thus, there is some question whether the summary judgment could be affirmed on that basis. See Tex.R.Civ.P. 166a(c) (a motion for summary judgment shall state the specific grounds therefor and be granted only if the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion); Chopra v. Hawryluk, 892 S.W.2d 229, 234 (Tex.App.—El Paso 1995, writ denied) (holding that even where the proof supports judgment on a particular theory, summary judgment is not proper unless the motion specifically relies on that theory).

Moreover, Schauweker argues that once he filed some evidence that he made a reasonable effort to obtain financing, the burden of showing a fact issue shifted to the Frasiers, and they failed to file sufficient summary judgment proof to do so. On the contrary, however, summary judgment for a defendant is proper only when the proof shows that no genuine issue of material fact exists on one or more elements of the plaintiffs cause of action, or when the defendant establishes each element of an affirmative defense as a matter of law. Black v. Victoria Lloyds Ins. Co.,

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Cite This Page — Counsel Stack

Bluebook (online)
915 S.W.2d 601, 1996 WL 16606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frasier-v-schauweker-texapp-1996.