Opinion filed August 1, 2019



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 18

- 00009

- CV

__________ IN THE MATTER OF THE ESTATE OF HILDA LOUISE TATU M, DECEASED

On Appeal from the County Court at Law

Erath County , Texas Trial Court Cause No. P09416

O P I N I O N This appeal involves a dispute among family members regarding the validity of a warranty deed dated December 17, 1999 (the 1999 Deed). The parties dispute whether certain executing grantors of the 1999 Deed conveyed their individual interests in the property at issue even though the 1999 Deed was not exec uted and delivered by all of the proposed grantors who owned an interest in the property being conveyed

. Appellants (Larry W ayne Tatum, Deritha Q uay Davis, Herbert F ranklin Tatum, and Betty K athryn Culbertson) and Appellee (Vicki Lynn Truss) owned an2

equa l, undivided future interest in the property and executed the 1999 Deed. Appellee is also the independent executor of her mother’s estate

. In her capacity as independent executor, Appellee filed a traditional motion for summary judgment arguing that the 1 999 Deed was valid to convey the individual interests of the executing grantors because they all executed and delivered the 1999 Deed. In response, Appellants argued that a genuine issue of material fact existed regarding whether they executed and deliver ed the 1999 Deed with the intent of conveying the executing grantors ’ individual interests in the property without the signatures of all the proposed grantors

. The trial court granted summary judgment in favor of Appellee. In one issue on appeal, Appellan ts challenge the trial court’s grant of summary judgment. Because we conclude that a genuine issue of material fact exists regarding
whether the enforceability of the 1999 Deed was conditioned on the execution and delivery of the 199 9 Deed by all of the p roposed grantors , we sustain Appellants ’
sole issue and reverse and remand. Background Facts George and Hilda Tatum had ten children : Deritha Q uay Davis, John W illie Tatum, Herbert F ranklin Tatum, Larry W ayne Tatum, Betty K athryn Culbertson,
Deborah D orris Sauer, Georgia E llouise Arms, Timothy D an Tatum, Vicki Lynn Truss, and Ricky G lenn Tatum. On January 18, 1982, George and Hilda executed and delivered to their
children a warranty deed concerning a 134

- acre tract of land , which constituted the family farm (the Property)

. The deed reserved a life estate in t he P roperty for George
and Hilda and conveyed the remainder (future) interest to each of their ten children in equal shares. However, i n 1999, John died
, and his interest in the P roperty transferred to his widow , Marian M eaders Tatum. At that point, the future interest3

in the P roperty was held by George and Hilda’s surv iving nine children and John’s
widow
, Mari an (collectively, the Tatum Children). After John’s death, Hilda approached an a ttorney and asked him to draft a deed that would convey each of the T atum Children’s interest in the Property back

to George and Hilda

. Shortly thereafter, d uring a family Christmas gathering in
December 1999, Hilda approached each of the Tatum Children with the 1999 Deed
and asked each of them to convey their interest back to her and George

. The 1999
Deed listed all ten Tatum Children as the g rantors , and it purported to convey the Property in fee simpl e back to George and Hilda; the 1999 Deed made no reference
to the undivided future interests of the g rantors. Appellants allege that they and Hilda understood that the 1999 Deed would not be effective unless it was signed by all of the Tatum Children

. Appellants also allege that they signed and acknowledged the 1999 D eed based upon this belief

. Appellee and three other Tatum Children also executed the 1999 D eed. However, Timothy and Marian never signed the 1999 Deed. Therefore, ultimately, only eight of the ten Tatum Children signed the 1999 Deed. George died in 2000. In 2001 and 2002, believing the 1999 Deed was never
executed or delivered
, Betty, Deborah, Georgia, and Ricky each executed an affidavit (the Affidavits) to rescind his or her signature on the 1999 Deed “due to the failure to obtain full legal consent from all involved parties .” Deborah, Georgia, and Ricky are not parties to this action. Appellants allege that
, i n 2003, Hilda arranged a meeting with the Tatum
Children to discuss the Tatum C hildren’s transfer of their interests in the Property

. This time, however, Hilda requested that the Tatum Children consider transfer ing

t heir interests among themselves so that only on e of them would hold the entire
interest

. At that time, Larry was the only child who expressed an interest in purchasing the other Tatum Children’s remainder interests.4

Deritha, Herbert, Betty, Timothy, and Marian subsequently conveyed their
interests in the Property to Larry. Larry properly filed and recorded the conveyances
in December 2003. Deborah, Georgia, Vicki, and Ricky also spoke with Larry about selling their interests
, but they were unable to reach an agreement. Hilda, d espite helping facilit ate the transfers, properly filed and recorded the 1999 Deed in March
2004.
Hilda died in 2016
, and her will was admitted to probate. Appellants assert
that
, i n Hilda’s will, she claimed ownership to 80% of the remainder interest in the Property. 1 The trial court appointed Appellee as executor of the estate. As executor of the estate, Appellee filed suit for declarator y judgment asking
the trial court to declar e that the 1999 Deed transferred 80% of the remainder
interest s in the Property to George and Hilda and to declare that the Affidavits were
ineffective rescissions of each affiant’s signature on the 1999 Deed. In response, Appellants filed a joint a nswer and counterclaim
, seeking declaratory judgment as to the validity and enforceability of the 1999 Deed and Affidavits. According to Appellants, because the “1999 Deed was never fully executed and delivered,” it
“failed to become effec tive or convey any interest in the property addressed therein.” Appellee later filed a motion for summary judgment asking the trial court to declare the 1999 Deed effective as a conveyance of the interest of the eight Tatum
Children who executed the 1999 D eed. The trial court granted Appellee’s motion for summary judgment and entered a Final Judgment finding that the 1999 Deed was not ambiguous and was “valid, effective, and enforceable against the eight grantors who signed” the 1999 Deed. This appeal followed.

1 Hilda’s w ill is not in the appellate record.5 Analysis In Appellants’ sole issue, they contend that the trial court erred when it granted Appellee’s motion for summar y judgment. Specifically, Appellants argue , among other things
, that a genuine issue of material fact exists as to whether the 1999 Deed

was executed and delivered by the executing grantors with the intent of conveying their individual, fractional interests in the Property without all of the Tatum Children signing and conveying their interests as well

. Appellants argue that, based on their discussions with Hilda, they understood that the 1999 Deed would convey their individual interests in the Property only if all the Tatum Children executed the 1999
Deed. B ecause no t all of the Tatum Children executed the 1999 Deed, Appellants argue that the 1999 Deed did not convey their interests despite them having signed
the 1999 Deed

. We review a trial court’s summary judgment de novo. See First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 219 (Tex. 2017)

. A party moving for traditional summary judgment bears the burden of proving that
there is no genuine issue of material fact as to at least one essential element of the cause of action being asserted and that it is entitled to judgment as a matter of law

. T EX

. R. C IV

. P

. 166a(c) ; Nassar v. Liberty Mut. Fire Ins. Co. , 508 S.W.3d 254, 257 (Tex. 2017)

. If the movant initially establishes a right to summary judgment on the issues expressly presented in the motion, then the burden shifts to the nonmovant to present to the trial court any issues or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678

– 79 (Tex . 1979). When reviewing a summary judgment , we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and reso lve any doubts in the nonmovant’ s favor. Provident Life & Accident Ins. Co. v. Knott
, 128 S.W.3d 211, 215 (Tex. 2003)

.6

In the present case, Appellants essentially contend that the trial court improperly granted summary judgment in favor of Appellee because ther e was a genuine issue of material fact as to whether the enforceability of the 1999 Deed was conditioned upon the execution and delivery of the 1999 Deed by all of the proposed grantors. Appellee asserts that the parol evidence rule precludes our consider ation
of extrinsic evidence in support of this contention. We disagree with Appellee.

“ It is well settled that a written instrument may not be varied by evidence of an oral agreement that contravenes its terms. ” Litton v. Hanley , 823 S.W.2d 428, 430 (Tex

. App.

— Houston [1st Dist.] 1992, no writ). This is known as the parol
evidence rule. See i d. However, parol evidence is admissible to show that an agreement was not to become effective except upon certain conditions or contingencies. Baker v. Baker , 183 S.W.2d 724, 728 (Tex. 1944). Under this exception to the parol evidence rule , extrinsic evi dence is admissible to establish an oral condition precedent if it is not inconsistent with the terms of the written agreement. See DeClaire v. G & B McIntosh Family Ltd. P ’ ship , 260 S.W.3d 34,
45

– 46 (Tex. App.

— Houston [1st Dist.] 2008, no pet.)

. A condi tion precedent is a
condition “t o be performed before the agreement becomes effective, and which calls for the happening of some event or the performance of some act after the terms of the contract have been agreed on, before the contract shall be binding on the parties.” Rincones v. Windberg , 705 S.W.2d 846, 848 (Tex. App.

— Austin 1986, no writ) (quoting B LACK ’ S L AW D ICTIONARY (4th ed.) at 366 ).
Here , Appellants presented summary judgment evidence which showed that the parties orally agreed on a condition precedent to the enforcement of the 1999
Deed

— the condition precedent being th e execution and delivery of the 1999 Deed by all of the Tatum Children

. Specifically, Appellants produced personal affidavits
in which t hey explain ed the events surrounding their signing of the 1999 Deed.7

In Larry’s affidavit, he stated that Hilda presented the 1999 Deed to him at the family Christmas party and asked him to sign it. Larry explained that he “told her that [he] would not sign to give [his] 1/10th back unless all of [his] siblings would do so.” Larry stated that, in response, “[ Hilda ] assured [him] that she would not and could not do anything unless she got all ten [ Tat um Children ] to agree and sign

. ” Betty also stated in her affidavit the circumstances surrounding her signing of the 1999 Deed. Betty stated that Hilda wanted Betty “to sign [her] 1/10 of the farm
back over to [Hilda and George] .” Betty stated that she was reluctant at first
, but
, “after [Hilda] assured [her] that the deed would not become valid unless all ten signatures were obtained, [she] signed.” Similarly, Herbert stated that Hilda wanted him to “deed the farm back over
to her and [George] .” Herbe rt explained that Hilda informed him that all of the Tatum Children needed to sign the 1999 Deed for it to be effective. Herbert stated that, given this understanding, he “signed the document, thinking that this is what the family wanted.” However, becau se Marian and Timothy did not sign, Herbert thought that the 1999 D eed was rendered “null and void, as [Hilda] had previously
indicated
, ” and that “each sibling [owned a] 1/10 share.” Finally, Deritha stated that, although she also signed the 1999 Deed, she “understood that [the 1999 Deed] was invalid because all 10 [grantors] did not sign.” Moreover, the condition precedent that all the Tatum Children must have signed the 1999 D eed for the 1999 D eed to be effective is not inconsist ent with the
terms of the 1999 D eed. The 1999 D eed is silent as to its legal effect when not all of the proposed grantors execute and deliver the 1999 D eed . Importantly, no provision in the 1999 D eed states that the 1999 D eed is operative to convey the
i ndividual interest of an executing grantor regardless of whether all of the proposed grantors execute the 1999 D eed . In fact, the 1999 D eed makes no reference to the individual interests of the proposed grantors. Rather, the P roperty being conveyed8

is de scribed in terms of a full fee simple interest in the family f arm. Because each proposed grantor equally owned a one

- tenth future interest in the P roperty, the only way for the grantees to hold a full fee simple interest in the P roperty as a result of
the 1999 Deed is if all of the proposed grantors execute d and deliver ed the 1999
D eed . As a result, we conclude that the oral condition precedent contemplated by the parties does not contravene the terms of the 1999 D eed. In light of Appel lants ’ affidavits, and because evidence of the parties’ oral condition precedent is not inconsistent with the terms of the 1999 Deed, we conclude that Appellants produced sufficient evidence to raise a genuine issue of material fact regarding whether the p arties intended the enforceability of the 1999 Deed to be conditioned upon the execution of the 1999 Deed by all of the Tatum Children. See generally Castroville Airport, Inc. v. City of Castroville , 974 S.W.2d 207 (Tex. App.

— San Antonio 1998, no pet.) (r eversing summary judgment on similar grounds ). Therefore, summary judgment should not have been granted in favor of Appellee. Appellee maintains , however, that
, although all of the Tatum Children did not sign the 1999 Deed, Appellants nonetheless conveyed their interests in the Property because they did sign the 1999 Deed. To support her argument, Appellee cite s to Hays v. Marble , 213 S.W.2d 329, 33 5 (Tex . Civ. App.

— Amarillo 19 48 , writ
dism’d ). In Hays , the Amarillo Court of Civil Appeals examined the validity of a contract and accompanying deed that was signed by some
, but not all
, of the tenants in common of a piece of property. Hays , 213 S.W.2d at 334

– 35. In holding that those who signed the deed were bound by its provisions, the appellate court
reasoned:
E ach of several tenants in common is entitled to sell his interest without regard to whether the others wish to do so or not and those signing a contract

. . . are legally bound by its terms though some of them might9

refuse to join therein or, by reason of other circumstances, specific performance against them cannot be decreed.
Id. at 335. We note, h owever, that the appellate court also provided an exception to this general rule: [W] here the contract provides, or the parties have an agreement and understanding, that the contract is not to be complete unless all of the sellers ex ecute it, such a provision is valid and the contract cannot be enforced unless all of the sellers sign it.
Id. The appellate court specifically noted that such a provision or agreement was absent in the contract and that there was no testimony or evidence that any such agreement existed either among the tenants who signed the deed or between them and the grantee. I

d.
Unlike in Hays , h ere, the summary judgment evidence showed that Appellants and Hilda did have an agreemen t and understanding that the 1999 Deed would not be effective unless and until it was signed by all of the Tatum Children. Thus, although Appellants signed the 1999 Deed, a genuine issue of material fact remains regarding the enforceability of the 1999 De ed. Additionally, Appellee argues that, because the 1999 Deed is unambiguous,
extrinsic evidence, such as Appellants’ personal affidavits, cannot be considered to raise a fact issue regarding intent . We disagree. As discussed above, extrinsic evidence is admissible to establish an oral condition precedent. See Baker , 183
S.W.2d at 728 ; DeClaire
, 260 S.W.3d at 45

– 46.
When we consider Appellants ’ summary judgment evidence, we conclude that a genuine issue of mater ial fact exists regarding whether the parties intended the enforceability of the 1999 Deed to be conditioned upon the execution of the 1999 Deed by all of the Tatum Children . Thus, we conclude that the trial court erred in concluding that, as a matter of law, the 1999 D eed was valid , effective, and10

enforceable to convey Appellants’ interests when not all of the Tatum Children
executed and delivered the 1999 Deed

. Accordingly, we sustain Appellants’ sole issue on appeal. This Court’s Ruling
We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion

.

KEITH STRETCHER
JUSTICE

August 1, 2019
Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. 2
Willson, J., not participating.

2 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.