### 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. 03-14-00291- CV

Michael G lenn Mott, Appellant

v. Willie Ed ward Kellar a/k/a W. E. Kellar; Jose ph G. Tuck, In divid ually; an d Tuck & Kize r, P LLC, a Pr ofession al Limite d Li abili ty Com pany, Ap pellees

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 423 RD JUDICI AL DISTRICT NO. 423 ,215 7, H ONO RAB LE CHRI STO P HER DARROW DUGGAN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Michae l Mott appea ls from a summary judgme nt in favor o f Wi ll ie E d w ard Kellar and J oseph G. Tuck, Kellar ’s attorney , in a suit involving the sale of rea l estate. I n four issues

on appea l, Mott contends principally that the trial court err ed when it g rante d the appellee s’ motion
f o r s u mm a r y ju d g me n t. O n th e r e c o r d b e f o r e u s , w e mu s t r e v e r s e th e tr ia l c o u r t’ s s u mm a r y ju d g me n t.

BACK GR OUND
I n 1999, Mott and Ke l l ar en tere d into a contra ct for deed for cer tain proper

ty in
Ba strop County

. Under this contract , M o t t ag ree d to make monthly pay ments to Kellar for 1

“A contra ct for deed is a form of rea l proper ty convey ance in which the purcha ser obtains 1 an immediate rig ht to possession but the seller reta ins leg al t i t l e an d h as no obliga tion to transfe r it unless and until the purcha ser finishes p ay i n g the full purcha se price

. . . .” Shook v. W alden , 368 S.W .3d 604, 624 (Tex. App.—Austin 2012, pet. denied) (citing Flores v. Millennium Interests, Ltd. , 185 S.W .3d 427, 429 (Tex. 2005)).1 8 0 m onths and to pay taxes on the property , and Kellar agr eed to deliver to Mott the d ee d t o t h e

proper ty afte r Mott ha d paid the full amount due. I n J une 2012, evidently in response to eff orts by Kellar to f

orec lose on the proper

ty , Mott filed a pro se petition in district court alleg ing that Kellar and Tuck had committed fra ud and had failed to de liver the deed to Mott despite the fac t that Mott had made all pay

ments require d by

the contra ct. L ibera lly

construing Mott’s petition, see Corona

v. Pilgrim’s Pride Corp. , 245 S.W .3d 75, 78 (Tex. App.—Texar kana 2008, pet. denied) (“We revie w and evalua te pro se pleading s with liberality and patience

. . . .”), we understand the petition to ask the district court to order that Mott have possession of the proper ty and that Kellar deliver the deed
to the proper

ty to Mott in acc ordanc e with the contra ct’s terms. I n his answe r, Kellar asser ted that 2
Mott was delinquent in his pay ments under the contra ct and had failed to pay taxes on the proper ty for sever al y ear s. I n Fe bruar y 2014, Kellar and Tuck filed a motion for summary judgme nt that they expli citly sty le a “traditional” motion. The district court g rante d final summary judgme nt in the defe ndants’ fa

vor and dismissed Mott’s claims in April 2014, and Mott then filed this appea l.

STANDARD OF REVIEW
I n his first and fourth issues, Mott contends that the di strict court erre d in g ran t i n g
summary judgme nt in favor of Kellar and Tuck. We revie w summary judgme nts de novo. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). We take as true all evidenc e favor able

Kellar separ ately broug ht a forc ed entry and detainer suit ag ainst Mott. A justice of the 2 peac e court rende red an eviction j udg ment in Fe bruar y 2013 order ing that Kellar have possession of the proper

ty

. Mott appea led to the county court at law, and in April 2013, the county court signe d a judgme nt order ing that Kellar h av e p ossession of the proper ty

. No party arg ues that the county court’s judg ment is somehow dispositi ve of the issues befor e us. 2to the non-moving party , and we indulge ever y rea sonable infe renc e and r esolve a ny doubts in the non-moving party ’s favor

. Id. I n a traditional summary -judg ment motion, as the appellee s have filed here , the movant bea

rs the initial burden to show that he is e ntitled to judgment as a matter of la

w b ec au s e t h er e is no g enuine issue of materia l fac t. See Tex. R. Civ. P. 166a(c ); Provident Lif e &
Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 216 (Tex. 2003). I f the movant produce s evidenc e entitling him to summary judgme nt, the burden shifts to the nonmovant to prese nt evidenc e raising a fa ct issue. See P han Son Van v. Pe na , 990 S.W .2d 751, 754 (Tex. 1999).

DISCUSSIO N
At the hear

t of this case is the question of whether Mott defa ulted on the contra ct for deed by failing to make the require d pay ments, and Kellar and Tuck bore an i n i t i al s u m mary judgme nt burden of showing that Mott was in defa ult. Kellar and Tuck attache d sever al exhibi ts to their motion for summary judgme nt, including, among others, a copy of the contra ct for deed, what
appea rs to be an amortization sche dule, a “Notice to Cure Def ault” purpor

ting to inform Mott that he had f ailed to make pa

y ments require d by the contra ct for deed and listi ng the amount of unpaid principal, interest, and taxes, and an “Af fidavit of Def

ault” decla

ring that Mott had defa

ulted on his obliga tions under the contra ct for deed. Assuming without deciding that Kellar and Tuck met their initial summary -judg ment burden and that t h e b u rd en s h i fted to Mott to raise a g enuine issue of materia l fac t, we conclude that Mott met his burden of raising a fac t issue by filing a decla ration in

3support of his response to the defe ndants’ motion for summary judgme nt. I n this document, Mott 3
included the f

ollowing de clar ation:

I made ever

y pay ment on the subject contra ct for deed from J u n e 1 9 9 9 to October 2012—pay

ments of $322

. 3 9 ever

y single month for a total of $51,648 including principal of $30,060 a

nd interest / tax pay

ments of $21,698.

Mott went on to note in his declara tion that the Ba strop fires ha d destroy ed the pr operty at issue.
I n short, Kellar states that Mott failed to make the require d pay ments, and Mott states that he did make the require d pay ments. This is a g enuine issue of materia l fac t. Consequently , the trial court err ed by g ranting summary judgme nt. Acc ording ly , we sust ai n M o t t ’s first and fourth issues. 4

The defe ndants filed a motion to strike Mott’s response and decla ration. Howeve r, we find 3 no indication in the rec ord that the trial court ever ruled on this motion to strike. “The g ener al rule is tha t a par

ty asser ting a n objection to evidenc e must obtain a ruling on that objection to pr eser ve err or.” W ilson v. Thomason Funeral Home, Inc. , No. 03-02-00774- CV, 2003 WL 21706065, at *4 (Tex. App.—Austin J uly 24, 2003, no pet.) (mem. op.) (citing Tex. R. App. P. 33.1(a) (2))

. Although the trial court later g rante d the defe ndants’ motion for s ummary judgme nt, “[t] he g ranting of the motion for summary judgme nt does not nece ssarily implicitl y overr ule motions or objections.” Id. ; see Parkway Dent a l A s s o cs
. , P.A. v. Ho & Huang Props., L.P. , 391 S.W .3d 596, 604 (Tex. App.—Houston [14t h Dist.] 2012, no pet.) (stating that trial court did not implicitl y exclude aff idavit by g ranting summary

judgme nt or by

lang uag e in cour

t’s order , and noting that “most of the other intermediate courts of appea ls that have addre ssed this issue” ag ree ). There fore , Mott’s decla ration rema ins part of the summar y -judg ment rec ord. Be cause we have sustained Mott’s first and fourth issues and will reve rse and rema nd, we 4 need not c onsider Mott’s r emaining issues on appea l. I n addition, w e deny Mott’s request that we rema nd this cause to a dif

fer ent trial cour

t judge

. 4CONCLUSION
W e re v er se the trial court’s summary judgme nt and rema nd this cause to the trial court for further proce eding s consistent with this opi nion.

__________________________________________ Scott K. Field, Just ice
Be fore J ustices Pury ear , Pemberton, and F ield
Reverse d and Remande d Filed: Aug ust 5, 2015

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