1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeal s, sitting by ass ignment. T EX
. GOV ’ T CODE ANN
. § 75.00 2(a)( 1) (Vernon Su pp. 20 02). NO. 07-02-0036 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E DECEM BER 13, 2002

______________________________

REGINA MALNA R, Appellant
v. KENNE TH W . MEC HELL and V IRGINIA M ECHELL, Appellees

_________________________________ FROM THE 21 7th DIST RICT COURT OF ANGELINA CO UNTY; NO. CV-32800-00-2 ; HON. DAVID V. WILSON, PRESIDING

_______________________________ Before QUINN and REAVIS, JJ., and BOYD, SJ. 1 In three issues, appell ant Re gina Ma ln ar (Ma lnar) com plains of a s um m ary judgm entgranted in favor of appellees Kenneth M echell and his wife Virgini a Mec hell (hereinafter

referred to collectively as the Mechells). The latter sued Malnar (vi a trespass to try titl e) to ob tain a j udg m ent adj udicatin g th em titl e to a house and the realty on which itsta nd s. Th re e i ssu es ar e p re se nt ed fo r r ev ie w. Each involve s the Mechells’ compli ance with the term s of the Texas Property Code. That is, she alleges that they failed to prove,2 She ac tually w as g iven a credit of $14 ,395.0 8 aga inst th e purc has e price. 2 as a m atter

of law, that theyafforded her the notice of their intent to resc ind allegedl y due her under those provisions. We reverse the judgm ent. Backgr ound Malnar and theMe che lls e xe cuted acon tra ct f or t he s ale of re al p ro perty (the contract) on A ugu st 2 2, 1 997 . Th e re alty con sis ted of ahou se a nd t he la nd o n w hich it stood. Fur

the rm ore , it s purchase price was $85,00 0. Of that $85,000, Malnar was deeme d to ha ve pa id $1 4, 39 5 a t th e t ime th e co nt ra ct was e xe cuted. 2 The balance, however, was to be paid in monthly installme nts of $561.31, thefirst com ing due on Septem ber

22, 1997, and the rem ainder coming due on t he 22nd of each ensuing m onth. Several years later, Malnar defaulted on her obligation. According to t he sum m ary ju dgmen t evid ence provided by the M echells, she failed to pay the Novem ber 22, 1999 paym entand at lea st one other. This circumstan ce caused the Mechells, on Novem ber 23, 1999, to send her ( through thei r attorney) a written notice of def ault. In that notice, the Me che lls i nf or med Ma l na r t ha t t wo i ns ta l l men ts wer e o ut st an di ng an d t ha t t he su m d u e totaled $1,601.04. Furtherm ore, of t hat sum , $135.40 constituted principal, $987.22 constituted in te re st , a nd $4 78 .4 2 co ns ti tu te d e scr ow. Malnar was also told, via the letter, thattheMe che ll s i ntended to cancel the contrac t if she did not cure the default by Decem ber 23, 1999. Needless to say, M alnar did not cure the d efaul t by Decem ber 23, 1999. Consequentl y, on Decem ber 23, 1999, counsel for the Mechells sent M alnarwritten notice stating that the contract was ca nceled and that her interest in the realty was forfeited.3 Actually, they did so twice. The fi rst moti on was g ranted by the tri al court but rev ersed on ap pe al.

The ap pe llate

cou rt h eld that the Mechells f ailed to show ownership of the property and, theref ore, their ri ght to su mm ary judg ment. Malnar v. Mechell , No . 0 9- 00 -3 12 -C V, s lip op ., 2 00 1 Te x. Ap p. LE XI S 4 88(Tex. App. — Beaumont January 25 , 2001).

4 Since the cancel lation occ urred in 1999, the version of the Cod e in existe nce at that time, i.e. the 1995 v ersi on, appl ie s. 3 After filing the s uit fromwhic h this app eal arose, the M echells sou ght sum m ary judgm ent. 3 In their m otion they alleged that they “provided [Malnar] all notices required bylaw in a tim ely manner and in a ccordanc e with all provisions of the Texas Property Code.” Thetria l cou rt g ran ted them otio n an d state d in its judgm ent that the m ovants “have taken all necessary and lawf ul steps to effect a cancellation of the contract for deed . . . and the eviction of the D efendant . . . .” Standard of Review The standa rds of r

eview governing appeals f

rom sum m ary j udgm ents ar e w ell
settled. Rathe r tha n reiterate them , we refer t he parties to Nix on v. Mr. Property Management

Co., 690 S.W.2d 546, 548 (Tex. 1985) and Kimber v . Si deris, 8 S.W.3d 672, 674-75 (Tex. A pp.—Am arillo 1999, no pet.). Next, the exten t of the prior notice which the Mechells were toafford Malnar depends upon whet her the realty wasused or to be used f or residential purposes. If it was so used, then the prov isions of the Texas P roperty Code controlled, as those prov isions existed before the 2 001 amendments. 4 Next, accord ing to §5 .06 2 of tha t C ode , th e se ll er cou ld declare forfeiture and rescind the contract 15 days after affording the sel l er notice of his intent to do so if the buyer had paid less than 10% of th e sales price. Act of M ay27, 1995, 74 th Leg., R.S. ch.5 Mal nar does n ot c ont end t hat the not ic e was no t sen t t o her resi denc e or pl ace of busi ness. 6 The $67.70 figure wa s derived by d iv idi ng $135.40 by two. Next, $135.40 equal ed the total outstanding pr in cip al (a nd ju s t t hepr in cip al ) w hi ch ha d a cc ru ed via t hefai lu retoma ke two monthl y in stallm en ts. So, if fai ling to pay f or two months results in the total principal of $135.40 accrui ng, then principal for one m onth would be no more than $67.70. 4 994, §2, 1995 Tex. Gen. Laws 4982-83. If the buyer had paid 10% bu t less t han 20 %, then the seller had to wait 30 days. Id. If 20% or more of the price had been paid, then the buyer

was ent itled to 60 days prior notice. Id. Fina lly, if t he n otice was s ent by m ail, then the notice was

deemed “given when it [was] mailed to purchaser ’s residence or place of business.” 5 W ith this in mind, we turn to the factsof this case. Applica tion Issue Three We initi ally ad dress Malnar’s thi rd issue gi ve n i ts ease of disposition. In it, she argues that a m aterial issue of fact ex ists regarding whether s he paid 20% or m ore of the purchase pr i ce by th e t i me the Mechells notified her of their intent to rescind. W e disagree and overrule the issue. In reading the record in a light most favorable to Malnar, see Miller v. Galveston/Hous ton Diocese, 911 S.W.2d 897, 898 -99 (Te x. Ap p.— Am arillo1995, no w rit) (obligating us t o so re ad th e r ec or d) , we discover that she initially paid $14,395.08 for the realty and the n m ade24 m ont hly paym ents of $561.31. A ccording to the notice of default, each paym ent consisted of principal in an amount approx imating $67.70. 6 If one w ere to
m ultip ly67.70 by 24, he would derive a sum of $1,624.80. If t hat sum were then added to the initial $14,395.08 paid by Malnar, then the total am ount of paym ents m ade against the original pur

cha se p riceof $ 85, 000 w ould be $ 16, 019 .88 . N ex t, t he la tte r is a ppr

ox im ate ly5

18.8% of $85,000. And, becaus e 18 .8% is le ss tha n 20 %, theMe che lls established, as
a m atter of l aw , th at t hey

w ere not

oblig ate d to

aff ord Ma lnar

60 d aysprio r no ticeof t heir intent to rescind. Issues One and Two Next, we address the contentions asserted via the first and seco nd issues. Therein, she alleges that a ma terial issue of fact existsregardi ng whether she was afforded 30 days priornotice of their intent to rescind as required by statute. We ag re e a nd su st ai n t he m. In com put in g a pe riod of d aysund er t he T exas P rop ert y C ode , th e fir

st d ay is excluded fr om t he calculat ion while the last day is included. T EX
. G OV ’ T C ODE A NN
. §311.014(a) (Vernon 1998). For instance, in Clayb o n v. State , 6 72 S.W .2 d 8 81 (T ex. App.—Dallas 1984, pet. ref’d), the co urt was a sked w hether the trial court afforded counsel ten days to prepare for trial as requ ired by a st atute there involved. Counsel was appointed on the 8th of July and trial started on J uly 18th. In applying to t he circumstances before it a provision identical to §311.014 of the Governm ent Code, the court held that counsel had only been afforded n ine days preparation time, even though July 18th was

the tenth day

after July 8th. Claybon v. State , 672 S.W.2d at 882. So, w hat
we l ea rn fr om Claybonis that if a certa in period m ust ex pire beforean act can occur, the last day of

the period must not only be incl uded in the calcula tion but al so expire in toto if one is tocom ply w ith §311.0 14(a). Final ly, so interpreting §311.014(a) in circumstances like those atbar would also
com port with §5.061(2) of the Texas P roperty Code. This is true because t hat provision expres sly

require s the “expirati on” of the ti me period before the sel ler can i nvo ke hi s7 We did no t ign ore the Mec he lls ’ co nte ntio n th at b eca us e Ma lna r re ceived no ticeof th eir acton the 24th, they co mplied with t he Co de. Section 5.061 does not state that the seller can resci nd before or on the 30th day as

long as n otice of the resciss ion is not received until sometime thereafter. It says that 30 days must expire be forethe y ca n re sc ind . Fur the rmor e, if th e d ateon wh ich n otice is receiv ed constitutes the pertinent date, then we must still c onclude that Mal nar receiv ed notice bef ore the expi ration of 30da ys . Thi s is so bec ause § 5.0 62( c) o fthe Tex as P rop ert y Co destate s t ha t “[n ]ot ice by mail i s g iven w he n it i s mai led . . . . “ Act of May 27, 1995, 74 th Leg., R.S. c h. 994, §2, 1995 Tex . Gen. Laws 4982-83. And, the record ill ustrates that the notice here was mailed on De cember 23 rd. So, it appears that Mal nar receiv ed notice of the cancell ation on Decem ber 23rd and not the 24th. 6 remedy of rescission or forfei ture. Act of May 27, 1995, 74 th Leg., R.S. ch. 994, §2, 1995 Te x. Gen. Laws 49 82-83. If the 30th day has not ex pired, then the party has not com plied with § 5.061(2)

. Here, sum mary

judgm entevidenceappearsof r eco rd illu str

atin g th at t he M ech ells rescinded or canceled the contract on Decem ber 23, 1999. This act was m ade manifest bya letter dated and m ailed on December 23 rd, t hough Mal nar received it on the 24th. Sim plyp ut, Decem ber 23rd was the 30th day of the time period contem plated u nde r §5. 061 (2) . S o, t he M ech ells invoked their remedy of rescission or forfeiture on the 30th dayof the tim e period, and thereby denied M alnar the full 30 days she had to cure the default. See id. §5.063 (affording the buyer the opportunity tocure). And, because the statute required the expi rationof 30 days before they could do so, they did not prove, as
a ma tter of law, that

they com pl i ed “with all provisions of the Texas Property Code” as alleged in their motion for sum mary judgm ent. 7 Final ly, and to the ex

tent that the M echells cont en d th at § 5.0 61 d oesnot app ly because there is no evi dence that the contr act invol ved realty u sed or to be used as a residence, we s ay the following. The term“residence” has been construed as the place whe re one actually lives or has his home. Owens-Corni ng v. Carter

, 997 S.W.2d 560, 5717

(T ex. 1999), cert. deni ed, 528 U.S. 1005, 120 S.Ct. 500, 145 L .Ed.2d 386 (1999). I t connotes a hom e and a fixed place of habitation to wh ich one inte nds to return when away. Id. Thisdoes not

me an, however, that one m ust be physically present w ithin the home to claim it a s a res iden ce. He m ay w ell liv e te m por

arily in on e pla ce while m aintainin g his reside nce at another. See Tovar v. B oard of Trustees , 9 94 S.W .2 d 7 56 , 7 62 (T ex. App.—CorpusChristi 1999, pet. denied) (stating that if a person m oves to a new location only tem por arily , pr ese ntly inte ndin g to ret urn to the previous place of habitation, the person does not lose his residence). And, tha t he l eas ed t he a bod e w hile p hys icall y absentfrom it does not m ean, in and of itself, that the abode was no longer his residence. Ki rk v. Barnett, 566 S.W.2d 122, 123 (Tex. Civ. App. —Houston [14th D ist.] 1978, no w rit). Next, in again viewing the evidence and reasonable inferences therefromin a light most favorable to Malnar, we find the following in the r ecord. First, after execut ing the contract, Malnar

moved into and lived in the house. W ithin a year, however, s he “moved out.” It was left vacant for seve ral months b efore she rented it to a third par ty. The lessee then vacate d th e pr

em isesin Ma y of

199 9. A nd, tho ugh theMe che lls asserted that it w as vacant until January of 2000, the y neverthel ess attested that M alnar’s young children w ere in the house (along w ith a m att res s an d re frig era tor ) w hen the y at tem pte d togain possession of it on Decem ber 27, 1999, four days after term inating the contract. Furth ermore, during an encounter w ith the Mechells on that date, i.e. Decem ber 27th, Malnar informed them

that she “was going to m ove back in” and, according to them , “she di d. ” T he fo re go i ng co ns ti tu te s s ome evidencefromwhic h a j urycould reasonably infer thatthe contract involved real property used or to be used as M alnar’s residence. Again,8 W hen she actually return c annotbe div ined fr om the record. All we kno w is that her children w ere there when the Mechells attem pted to g ain possession of it and that Malnar i nform ed the Mechell s of her intent to return to the a bode

. 8 she bought the house, m oved into it, lived there, moved out, and then returned. 8 And, that she rented the facility to a third party does not establish, as a m atter of law, either that sh e abandoned it as a residence or that it was not used or to be used as a residence. Kirk v. Barnet t, supr a . Thus, at the very l east, a material i ssue of fact exists regarding whether the realty was us ed or to be used as a residence for purposes of §5. 061 of the Texas Property Code. Accordingl y, the judgm ent of the tria l cou rt isrev ers ed a nd t he caus e is reman ded for further proceedings.

Brian Quinn Justice Publish.