Preview
Filed: 12/16/2019 7:12 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 39298374
By: Lisa Kelly
12/17/2019 9:41 AM
CAUSE NO. 19-CV-2056
HONORIO JARITAS § IN THE DISTRICT COURT OF
Plaintiff, §
§
§
V. § GALVESTON COUNTY, TEXAS
§
DALE A. BROWN, individually §
and d/b/a SAN LEON §
CONSTRUCTION SERVICES, and §
CHARLES T. PHILLIPS, §
TRUSTEE, §
Defendants. § 56th JUDICIAL DISTRICT
PLAINTIFF’S TRIAL BRIEF REGARDING EXECUTORY CONTRACTS FOR
UNIMPROVED REAL PROPERTY UNDER CHAPTER 5 OF THE TEXAS
PROPERTY CODE
Plaintiff Honorio Jaritas files this Trial Brief Regarding Executory Contracts
for Unimproved Real Property under Chapter 5, Subchapter D of the Texas Property
Code. The purpose of this Brief is to provide the Court with the legal authority that:
• Chapter 5, Subchapter D of the Texas Property Code applies to sales of
unimproved real property;
• Testimony and affidavits contained outside of the Contract can be used
as evidence to prove intent to use the property as a residence; and
• Restricting evidence of residential intent to the four corners of the
contract benefits unscrupulous sellers and eliminates the effectiveness
of the statute
Chapter 5, Subchapter D of the Texas Property Code applies to sales of
unimproved real property.
1. Chapter 5, Subchapter D of the Texas Property Code deals exclusively
with executory contracts entered into between buyers and sellers of real property.
Tex. Prop. Code § 5.062(a). As specifically stated in the statute, Subchapter D applies
to transactions in the form of an executory contract for the conveyance of real
property that is either used or will be used as the purchaser’s residence. Id. The
statute makes no reference on whether this includes unimproved real property,
improved real property, or both.
2. This statute has been applied to unimproved real property purchased
with the intent to use it as a residence in the future. Sanchez v. Brandt, 567 S.W.2d
254 (Tex. Civ. App. – Corpus Christi 1978, writ refused n.r.e.). In Sanchez v. Brandt,
Sanchez, the purchaser, brought suit against Brandt, the seller, for specific
performance under the executory contract for the sale of 10 acres of unimproved land
when the Seller refused payment from Purchaser after Seller sent a forfeiture letter
without first complying with the notice provisions of Article 1301b. Id. at 256. Article
1301b is the prior version of the statute dealing with executory contracts. The Seller
argued that Article 1301b did not apply to the executory contract at issue because the
parties were dealing with unimproved real property. Id.
3. The Court of Civil Appeals went through great length to discuss the
language used by the legislature in Article 1301b and explained that the general
language of the statute is broad in that the terms used by the legislature do not
expressly limit its applicability to improved real property. Id at 258. The pertinent
part of Article 1301b states “A purchaser in default under an executory contract for
the conveyance of real property used or to be used as the purchasers residence…” Id.
at 2571. By following the rules of statutory construction and give the words their
1
This language that is at issue in the Sanchez case is the same language at issue in the case
at hand.
Page 2 of 7
ordinary and common meaning, the Court explained that the Seller’s argument of
applying the statute to only improved property would severely limit the legislatures
intention in enacting the statute. Id. at 259. The Court stated that during the time
the statute was enacted, it was common knowledge that contract for deeds were
intended to aid less fortunate people that did not have the financial means to obtain
conventional financing when purchasing residential property and these facts were
within contemplation of the Legislature when the statute was enacted. Id. The Court
explained that if they were to construe the statute in the way the Seller urged it to,
it would frustrate the legislative intent and therefore, the Court held, Article 1301b
applied to unimproved real property as well as improved real property. Id.
4. As Sanchez v. Brandt demonstrates, the language used in the statute is
intended to be read in a broad manner and it would go against the legislative intent
to limit its application to only improved real property. Therefore, Subchapter D
applies to executory contracts for the purchase of improved or unimproved real
property so long as it is used or will be used as the purchaser’s residence.
Testimony and affidavits contained outside of the Contract can be used as
evidence to prove intent to use the property as a residence.
5. To prove a purchaser’s intent to use the property as his or her residence,
Courts have allowed affidavits of the purchaser, affidavits of other witnesses, and
direct testimony during trial to meet the intent requirement of the statute.
6. In Marker v. Garcia, the Garcias, the purchasers, submitted affidavits
outlining their intention to use their undeveloped property at issue in this case as
their residence within three years and that they had taken steps to make
Page 3 of 7
improvements on the property by erecting a fence. 185 S.W.3d 21, 25 (Tex. App. – San
Antonio 2005, no pet.). The Court noted that while the Garcias’ affidavits may not be
enough to succeed on summary judgment alone, their affidavits, combined with other
witnesses affidavits, was enough evidence to at least overcome summary judgment
in favor of the Seller, because the evidence presented was enough to raise a fact issue
as to whether there was intent to use the property as a residence in the future. Id. at
27-28.
7. Additionally, in Sanchez v. Brandt, on the issue of whether there was
sufficient evidence presented to the jury on whether the Purchaser intended to use
the unimproved property as his residence, the Court laid out all evidence presented
by the Purchaser on this issue. Sanchez, 567 S.W.2d at 257. The Court explained that
the Purchaser testified at trial that from the time he entered into the executory
contract he intended to build a ranch house on the property to reside in with his
family, he visited the property every time he was in town, he acquainted himself with
the neighbors around the area, and he testified in great length his plans to develop
the property and the improvements he intended to make. Id. The Court of Civil
Appeals held that the testimony of an interested party, although not conclusive, has
probative force to raise a fact question and therefore, sufficient evidence was
presented. Id.
8. Defendant references the case Edascio, L.L.C v. NextiraOne L.L.C., 264
S.W.3d 786 (Tex. App. – Houston [1st Dist.] 2008, pet. denied) as to why parol
evidence is not admissible in the case at hand. However, this case is not on point and
Page 4 of 7
as evidenced above, Courts have allowed evidence in the form of testimony and
affidavits outside of the contract to come in to back up the buyer’s assertions that the
property was purchased with the intent to use it as a residence.
9. Based on the above-cited case law, it is obvious that affidavits and/or
testimony from the purchaser or other interested witness is enough evidence to raise
a fact question for the jury. Here, the use of Plaintiff’s affidavit and testimony before
the Court can be used to prove up his intent to use the Property as his residence and
should be ruled as admissible before this Court.
Restricting evidence of residential intent to the four corners of the contract
benefits unscrupulous sellers and eliminates the effectiveness of the statute
10. From a policy perspective, if evidence of residential intent is restricted
to only what is contained within the four corners of the contract, it would allow
unscrupulous sellers to take advantage of purchasers in any contract for deed
transaction. The purpose of the statute is to protect buyers of real property to be used
for residential purposes from unscrupulous sellers by creating protections that
benefit the inexperienced buyer. If buyers cannot present their residential intent
through the use of extrinsic evidence, this would allow the seller to format the
contract in a way that would allow them take advantage of the buyer by formatting
the contract so that the buyer’s intent to use the property as a residence would be
kept out of the terms of the contract.
11. It is unfathomable that the Legislature intended this to be the outcome
when drafting the statute. By refusing to allow the purchaser to prove his or her
residential intent through the use of extrinsic evidence would eliminate the
Page 5 of 7
effectiveness of the statute and create an outcome that is opposite of what the statute
is intended to do – protect the buyer.
CONCLUSION AND PRAYER
12. Chapter 5, Subchapter D of the Texas Property Code applies to both
improved and unimproved real property as long as there is intention by the purchaser
to use said property as a residence. Evidence of intent to use the property as a
residence can be in the form of affidavits and testimony given in open court.
WHEREFORE, Plaintiff Honorio Jaritas respectfully requests that this Court
allow for the introduction of his affidavit and/or his testimony showing his intent to
use the Property at issue in this case as his residence.
Respectfully submitted,
SANDERS MCGARVEY LLP
By: C
Cassandra M. McGarvey
Texas Bar No. 24056191
Houston, Texas 77046
Telephone: 713-493-7547
Facsimile: 713-955-9670
eservice@sandersmcgarvey.com
ATTORNEY FOR PLAINTIFF
HONORIO JARITAS
Page 6 of 7
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this document was served on
the following, on this 16 th day of December 2019:
Via E-File
Todd W. Deatherage
SIXTA & ASSOCIATES, P.C.
117 E. Edgewood Dr., (FM2351)
Friendswood, Texas 77546
tdeatherage@sixtalaw.us
C
Cassandra M. McGarvey
Page 7 of 7
Preview
Filed: 12/16/2019 7:12 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 39298374 By: Lisa Kelly 12/17/2019 9:41 AM CAUSE NO. 19-CV-2056 HONORIO JARITAS § IN THE DISTRICT COURT OF Plaintiff, § § § V. § GALVESTON COUNTY, TEXAS § DALE A. BROWN, individually § and d/b/a SAN LEON § CONSTRUCTION SERVICES, and § CHARLES T. PHILLIPS, § TRUSTEE, § Defendants. § 56th JUDICIAL DISTRICT PLAINTIFF’S TRIAL BRIEF REGARDING EXECUTORY CONTRACTS FOR UNIMPROVED REAL PROPERTY UNDER CHAPTER 5 OF THE TEXAS PROPERTY CODE Plaintiff Honorio Jaritas files this Trial Brief Regarding Executory Contracts for Unimproved Real Property under Chapter 5, Subchapter D of the Texas Property Code. The purpose of this Brief is to provide the Court with the legal authority that: • Chapter 5, Subchapter D of the Texas Property Code applies to sales of unimproved real property; • Testimony and affidavits contained outside of the Contract can be used as evidence to prove intent to use the property as a residence; and • Restricting evidence of residential intent to the four corners of the contract benefits unscrupulous sellers and eliminates the effectiveness of the statute Chapter 5, Subchapter D of the Texas Property Code applies to sales of unimproved real property. 1. Chapter 5, Subchapter D of the Texas Property Code deals exclusively with executory contracts entered into between buyers and sellers of real property. Tex. Prop. Code § 5.062(a). As specifically stated in the statute, Subchapter D applies to transactions in the form of an executory contract for the conveyance of real property that is either used or will be used as the purchaser’s residence. Id. The statute makes no reference on whether this includes unimproved real property, improved real property, or both. 2. This statute has been applied to unimproved real property purchased with the intent to use it as a residence in the future. Sanchez v. Brandt, 567 S.W.2d 254 (Tex. Civ. App. – Corpus Christi 1978, writ refused n.r.e.). In Sanchez v. Brandt, Sanchez, the purchaser, brought suit against Brandt, the seller, for specific performance under the executory contract for the sale of 10 acres of unimproved land when the Seller refused payment from Purchaser after Seller sent a forfeiture letter without first complying with the notice provisions of Article 1301b. Id. at 256. Article 1301b is the prior version of the statute dealing with executory contracts. The Seller argued that Article 1301b did not apply to the executory contract at issue because the parties were dealing with unimproved real property. Id. 3. The Court of Civil Appeals went through great length to discuss the language used by the legislature in Article 1301b and explained that the general language of the statute is broad in that the terms used by the legislature do not expressly limit its applicability to improved real property. Id at 258. The pertinent part of Article 1301b states “A purchaser in default under an executory contract for the conveyance of real property used or to be used as the purchasers residence…” Id. at 2571. By following the rules of statutory construction and give the words their 1 This language that is at issue in the Sanchez case is the same language at issue in the case at hand. Page 2 of 7 ordinary and common meaning, the Court explained that the Seller’s argument of applying the statute to only improved property would severely limit the legislatures intention in enacting the statute. Id. at 259. The Court stated that during the time the statute was enacted, it was common knowledge that contract for deeds were intended to aid less fortunate people that did not have the financial means to obtain conventional financing when purchasing residential property and these facts were within contemplation of the Legislature when the statute was enacted. Id. The Court explained that if they were to construe the statute in the way the Seller urged it to, it would frustrate the legislative intent and therefore, the Court held, Article 1301b applied to unimproved real property as well as improved real property. Id. 4. As Sanchez v. Brandt demonstrates, the language used in the statute is intended to be read in a broad manner and it would go against the legislative intent to limit its application to only improved real property. Therefore, Subchapter D applies to executory contracts for the purchase of improved or unimproved real property so long as it is used or will be used as the purchaser’s residence. Testimony and affidavits contained outside of the Contract can be used as evidence to prove intent to use the property as a residence. 5. To prove a purchaser’s intent to use the property as his or her residence, Courts have allowed affidavits of the purchaser, affidavits of other witnesses, and direct testimony during trial to meet the intent requirement of the statute. 6. In Marker v. Garcia, the Garcias, the purchasers, submitted affidavits outlining their intention to use their undeveloped property at issue in this case as their residence within three years and that they had taken steps to make Page 3 of 7 improvements on the property by erecting a fence. 185 S.W.3d 21, 25 (Tex. App. – San Antonio 2005, no pet.). The Court noted that while the Garcias’ affidavits may not be enough to succeed on summary judgment alone, their affidavits, combined with other witnesses affidavits, was enough evidence to at least overcome summary judgment in favor of the Seller, because the evidence presented was enough to raise a fact issue as to whether there was intent to use the property as a residence in the future. Id. at 27-28. 7. Additionally, in Sanchez v. Brandt, on the issue of whether there was sufficient evidence presented to the jury on whether the Purchaser intended to use the unimproved property as his residence, the Court laid out all evidence presented by the Purchaser on this issue. Sanchez, 567 S.W.2d at 257. The Court explained that the Purchaser testified at trial that from the time he entered into the executory contract he intended to build a ranch house on the property to reside in with his family, he visited the property every time he was in town, he acquainted himself with the neighbors around the area, and he testified in great length his plans to develop the property and the improvements he intended to make. Id. The Court of Civil Appeals held that the testimony of an interested party, although not conclusive, has probative force to raise a fact question and therefore, sufficient evidence was presented. Id. 8. Defendant references the case Edascio, L.L.C v. NextiraOne L.L.C., 264 S.W.3d 786 (Tex. App. – Houston [1st Dist.] 2008, pet. denied) as to why parol evidence is not admissible in the case at hand. However, this case is not on point and Page 4 of 7 as evidenced above, Courts have allowed evidence in the form of testimony and affidavits outside of the contract to come in to back up the buyer’s assertions that the property was purchased with the intent to use it as a residence. 9. Based on the above-cited case law, it is obvious that affidavits and/or testimony from the purchaser or other interested witness is enough evidence to raise a fact question for the jury. Here, the use of Plaintiff’s affidavit and testimony before the Court can be used to prove up his intent to use the Property as his residence and should be ruled as admissible before this Court. Restricting evidence of residential intent to the four corners of the contract benefits unscrupulous sellers and eliminates the effectiveness of the statute 10. From a policy perspective, if evidence of residential intent is restricted to only what is contained within the four corners of the contract, it would allow unscrupulous sellers to take advantage of purchasers in any contract for deed transaction. The purpose of the statute is to protect buyers of real property to be used for residential purposes from unscrupulous sellers by creating protections that benefit the inexperienced buyer. If buyers cannot present their residential intent through the use of extrinsic evidence, this would allow the seller to format the contract in a way that would allow them take advantage of the buyer by formatting the contract so that the buyer’s intent to use the property as a residence would be kept out of the terms of the contract. 11. It is unfathomable that the Legislature intended this to be the outcome when drafting the statute. By refusing to allow the purchaser to prove his or her residential intent through the use of extrinsic evidence would eliminate the Page 5 of 7 effectiveness of the statute and create an outcome that is opposite of what the statute is intended to do – protect the buyer. CONCLUSION AND PRAYER 12. Chapter 5, Subchapter D of the Texas Property Code applies to both improved and unimproved real property as long as there is intention by the purchaser to use said property as a residence. Evidence of intent to use the property as a residence can be in the form of affidavits and testimony given in open court. WHEREFORE, Plaintiff Honorio Jaritas respectfully requests that this Court allow for the introduction of his affidavit and/or his testimony showing his intent to use the Property at issue in this case as his residence. Respectfully submitted, SANDERS MCGARVEY LLP By: C Cassandra M. McGarvey Texas Bar No. 24056191 Houston, Texas 77046 Telephone: 713-493-7547 Facsimile: 713-955-9670 eservice@sandersmcgarvey.com ATTORNEY FOR PLAINTIFF HONORIO JARITAS Page 6 of 7 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this document was served on the following, on this 16 th day of December 2019: Via E-File Todd W. Deatherage SIXTA & ASSOCIATES, P.C. 117 E. Edgewood Dr., (FM2351) Friendswood, Texas 77546 tdeatherage@sixtalaw.us C Cassandra M. McGarvey Page 7 of 7