### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00519- CV

John T hom as Aiken, App ellant

v. Angeliqu e S. Naylor, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 3-0 0352 7, H ONO RAB LE GUS J. STRAUSS JR., JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant, J ohn Thomas Aiken, appea ls from a summary judgme nt rende red by the district c ourt of Travis county in a suit involving title to a house and lot in A ustin. This Court will

reve rse the judg ment in part and a ffirm it in part.

Appellee Ang elique S. Nay lor boug ht th e h o u s e and lot at 1101 Durha m Drive in 2003. She financ ed the purcha se wit h a thi rty y ear $187,010 loan, s ecur ed by a deed of trust held ultimately

by Wells Farg o Ba

nk. I n 2004, Naylor and Aiken enter ed into a lease ag ree ment with an option to purcha se the house and lot. The lease ag ree ment require d Aiken to pay Nay lor $189, 5 7 7.58 in base renta l
pay ments, $5,000 of which wa s prepa id in cash and $184,577.58 of which was tendere d by a note
pay able to Naylor on or befor e April 10, 2009. Aiken was obliga ted by the terms of the note to make annual pay

ments of $2,272.20 to Naylor. Nay lor then delivere d possession of the proper ty to Aiken.The lease ag ree ment g rante d Aiken an option to purcha se the proper ty p ri o r to the maturity of the note. Naylor signe d a deed to the proper ty , but it was held in escr ow pending Aiken’s exercise of the opt ion. Aiken, however, did not exercis e t h e o p t i o n n or di d he pay the balance of the not e on maturity . Aiken re mained on the property and continued to make pay ments to Naylor throug h J uly 2013. After that date, he made no further pay ments althoug h he continued to live there

. Naylor filed an e viction suit i n justice court, a nd Aiken, in turn, filed the instant law suit. Aiken sued Naylor and Well s Fa rg o to quiet title to the proper ty

. He also soug ht damag es ag ainst Naylor for alleg ed vi o l at i o n o f the Texas Property Code and the Texas Debt Practice s Act. I n addition, he asser ted a claim ag ainst Nay

lor for money had and rec eived and unjust enric hment. Finally , Aiken soug ht a decla ration that the liens held by Nay lor and Wells Fa

rg o wer e barr ed by limit ations. Naylor filed an answe r a

n d a n o r ig in a l a

n d a me n d e d c o u

n te r c la im reque sting damag es for brea ch of the lease contra ct, a decla ration that the lease ag ree ment was valid and enfor cea ble, and a dec lara tion defining the rig hts of the par ties under the le ase a g ree ment. There afte r, Naylor f

ile d a traditional and no-evide nce motion for summary judgme nt. The district court g rante d Naylor’s m o t i o n , noting, howeve r, that the summary judgme nt was interlocutory in that it did not dispose of Aiken’s claims ag ainst Wells Fa rg o. After Aiken nonsuited the bank, the district c ourt signe d a judg ment, incorpora ting the summar

y judgme nt. The summary judgme nt provided, among other things, that Aiken take nothing. The
summary judgmen t further decla red that the ag ree ment betwee n Aiken and Nay lor was valid and enfor cea ble; that Aiken’s option to purcha se had expired; that the rela tionship betwee n Nay lor and

2Aiken was that of lessor and lessee; that no title dispute exis ted; and that Nay lor was not prec luded from pursuing her justice c ourt eviction suit.

I n his lead issue, Aiken maintains that the district court improperly g rante d summary judgme nt relief not spe cifica lly reque sted in Nay lor’s motion. The rig ht to summary j u d gm ent exis ts only by virtue of Texas Rule of Civil Procedur e 166a. To be entitled to a summary judgme nt one must strictly comply with the provisions of Rule 1 6 6 a. T

o b i n v. Garcia , 316 S.W .2d 396, 400 (Tex. 1958); Moody v. Temple Nat’l Bank , 545 S.W .2d 289, 290 (Tex. Civ. App.—Austin 1977, no writ). Rule 166a(c ) require s that the motion for summary judgme nt “ state the specific g rounds there for.” Tex. R. Civ. P. 166a(c ). A summary judgme nt must stand or fall on the g rounds expressly stated in the motion. McConnell v. Southside Indep. Sch. Dist. , 858 S.W .2d 337 , 341 (Tex. 1993); see Tex. R. Civ. P. 166a(c ) (“I ssues not expressly prese nted to the trial court by written m o t ion, answe r or other response shall not be considere d on appea l as g rounds for r ever sal.”).

Na y l or’s motion for summary judgme nt only addre sses Aiken’s claim to quiet title and cer

tain decla ratory relief

. I t makes no mention of Aiken’s claim for damag es for violation of the Texas Property Code and the Texas Debt Practice s Act, nor does it speak to Aiken’s claim for
money had and rec eived a nd unjust enrichment. According ly , that part of the s ummary -judg ment motion is not in compliance with Rule 166a( c).

Naylor insists that Aiken wa ived his claim for non- specific ity by not asserting it in the di strict court. Nay lor’s arg ument is without merit. “When t he mot ion for summ ary judgme nt clea rly prese nts cer

tain g rounds but not others, a non-movant is not require d to except.” McConnell ,

3858 S.W .2d at 342. M o re o ver, Aiken filed a motion for new trial specific ally pointing out that

Naylor’s motion for summary judgme nt did not se ek relief on his c laims unde r the Texas Prope rty Code and the Te x as De bt Practice s Act.

Aiken next asser

ts that summary judgme nt was im p ro p er beca use “issues of fac t” exis t as to which party holds superior title to the house and lot. I n support of this asser tion, without citing authority or rec ord ref ere nces, Aiken claims his e x ecution of the note “paid the lease in f ull, i.e., Aiken exercised his option to purcha se the proper ty and that the lease no longe r exis ts.” Aiken also asser ts that Nay lor executed a

nd delivere d to him a deed to the pr operty

. Aiken’s arg

ument has no merit. First, Nay lor did not deliver a deed to the proper ty
to Aiken; rathe r, the deed was held in escr ow pending full pay ment of the note. Fur

ther, nothing in the lease ag ree ment provides that Aiken’s execution of the note constituted the exercise of his option
to purcha se the proper

ty

. I nstead, para g raph 23 sets out in detail the manner in which the option to purcha se may be exercised. Aiken complied with none of the require ments of para g raph 23. Finally , nothing in the lease provides for the demise of the lease upon execution of the note. To the contra ry , the l ease viewed as a whole contemplates an o n -go i n g relationship betwee n the l essor and lessee. For example, para g raph 6 limit s the lessee’ s use of the proper ty ; para g raph 8 sets out the lessee’ s duty to repa ir and maintain the premises; para g raph 16 entitles the lessor to acc eler ate the note upon the breach of

any covena nt of the lea se ag ree ment; and, finally , para g raph 18 pe rmits the lessor to
enter and inspect the proper ty

. Be cause Aiken did not exercise the option to purcha se the proper ty , Naylor reta ins superior title to the proper ty

.

4Aiken next claims that Nay lor’s claims for brea ch of contract an d decla ratory judgme nt are barr ed by

the four- y ear

statute of limitations. W e do not ag ree . Aiken filed his orig inal petition on October 1 0 , 2013, and an amende d orig inal petition on October 14, 2013. I n these pleading s Aiken asser ted claims rela ted to the parties’
transac tion reg arding the house and lot in questi on. Nay lor filed her orig inal answe r and
counter claim asser

ting her brea ch of contra ct claim on November 13, 2013. On Marc h 19, 2014, she filed her amende d counter claim reque sting, in a ddition, a decla ration that the lease ag ree ment was valid; that Aiken’s option to purcha se had expired; and that the rela tionship betwee n her and Aiken was that of le ssor and lesse e.

Tex. Ci v. Prac. & Rem. Code § 16.069 provides:
(a) I f a co u n t er cl ai m o r cr o s s cl ai m ar ises out of the same transac tion or occur renc e that is the basis of an action, a party to the action may file the countercl ai m o r cross claim even though as a separ ate action it would be barr ed by limit ation on the date the party ’s answe r is require d. (b) The counter claim or cross claim must be filed not later than the 30th day afte r the date on w hich the par ty ’s answe r is require d.

Tex. Ci v. Prac. & Rem. Code § 16.068 provides:

I f a filed pleading rela tes to a cause of action, cross action, counter claim, or defe nse that is not subject to a plea of limit ation wh en the pleading is filed, a subsequent amendment or supplement to the pleading that chang es the fac ts or g rounds of liability or defen s e i s n o t subject to a plea of limit ation unless the amendment or supplement is wholly based on a new, distinct, or differ ent transac tion or occur renc e.

5By filing her orig inal counter claim with her answe r on November 13, 2013, Naylor

satisfied the 30-day require ment of section 16.06 9 (b ). As well, the amende d counter claim, filed

on Marc h 19, 2014, met the require ments of section 16.068

. S ee B a r r a z a v. Koliba , 933 S.W .2d 164, 167 (Tex. App.—San Antonio 1996, writ denied) ; E.P. Operating Co. v. Sonora Expl. Corp. , 862 S.W .2d 149, 152 (Tex. App.—Houston [1st Dist.] 1993, writ denied ) (“ W e hold that a
counter claim that was timely filed under section 16.069 may be amende d pursuant to section 16.068 provided the fac ts or g rounds of liability asser ted in the amendment are based on the same
transac tion or occur

renc e.”)

. Aiken asser

ts next that due to her alleg ed bankruptc y fr au d, Nay lor is judically estopped from enfor cing any rig hts or obliga tions under the note, lease , or pay ments made by him. Naylor responds that under the circ umstances of this case , the doctrine of judicial estoppel is not applicable . We ag ree .

I n 2010, Naylor filed a voluntar y petition for Chapter 7 bankruptc y . I n the var ious bankruptc y schedule s, Naylor failed to list the not e, l ease, or pay ments rec eived from Aiken. On Dec embe r 2 0 1 3 , Naylor, “in an abundanc e of caution,” re- opened her bankruptc y case disclosing the l ea s e agr ee ment and amending the sever al schedule s. About a month later, in J anuar y 2014, the bankruptc y trustee, doubtless c oncluding that the value of the claim was de minimi s, re- closed the file. J udicial esto p p el p rec ludes a party who succe ssfully maintains a position in one proce eding from afte rwa rds adopting a clea

rly inconsist en t position in another proce eding
to obtain an unfair advanta g e. J udicial estoppel is not intende d to punish inadver tent omissions or

6inconsistencies but rathe r to preve nt parties from play ing fast and loose with the judicial sy stem for

their benef

it. Ferguson v. Buildings Materials Corp. of Am. , 295 S.W .3d 642, 643 (Tex. 2009). At the time of the filing of the bankruptc y proce eding in 2010, there was no as set to disclose since the l ease ag ree ment had ex pired by its own t er m s i n 2009. At that time, Nay lor had no motive to

conce al the lease ag ree ment beca use its addition would not have ad d ed v alue to the bankruptc y
estate. Even so, Naylor voluntarily re- opened her bankruptc y case to disclose the lease , and amende d the various schedule s ref lecting the same. Thus, even assuming the exis tence o f an inconsistent position, Aiken suffe red no disadvantag e beca use of the omission, and beca use the lease was worthless, the cre ditors in the bankruptc y proce eding likewise suffe red no disadvantag e. Finally ,
we think it plain that a landlord asser ting her contra ctual rig hts in defe nding a claim of title alleg ed by her tenant is not seeking an unfair advanta g e ag ainst the tenant. The doctrine of judicial estoppel does not apply

under the se circ umstances. See id. at 644. Aiken arg ues finally that Nay lor lacks standing to claim brea ch o f th e lease ag ree ment beca use of her failure to disclose the lease and rela ted matters in her bankruptc y case . The arg ument lacks merit. Any doubt conce rning Nay lor’s standing was resolved afte r her bankruptc y schedule s

wer e amende d in Dec ember 2013 and the bankruptc y case wa s re -c losed by the trustee in J anuar y 2014. I n Marc h 2014, Naylor re- asser ted her brea ch of lease ag ree ment claim by filing her amende d counter claim.

The part of the district court’s judgme nt providing that Aiken t ak e n o t hing by his claims for damag es for violation of the Texas Property Code and the Texas Debt Practice s Act and

7for money had and rec eived and unjust enric hment is reve rsed and those cause s are rema nded to the district court; in all other re spects the judg ment is affirme d.

__________________________________________ Bob E. Shannon, Justice Be fore J ustices Goodwin, F ield, and Shannon* Affir med in part; Rever sed and Rema nded in par

t Filed: September

23, 2016 * Be fore Bob E

. S h an n o n , Chief J ustice (retired) , Third C ourt of Appeals, sitti ng by assig nment. See Tex. Gov’t Code § 74.003(b).

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