Preview
FILED
12/3/2020 10:40 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kevin Molden DEPUTY
NO. DC-19-14078
MITCHELL L. GRIFFITH, IN THE DISTRICT COURT
Plaintiff,
VS. 134™ JUDICIAL DISTRICT
KRISTY L. WATERS,
Defendant. DALLAS COUNTY, TEXAS
DEFENDANT KRISTY L. WATERS’
MOTION FOR SUMMARY JUDGME
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Kristy L. Waters, Defendant, and pursuant to Rule 166a of the Texas Rules
of Civil Procedure, files this her Motion for Summary Judgment, and for same would respectfully
show the Court as follows:
THE MOTION
I
This motion, if granted by the Court, would resolve completely the Plaintiffs lawsuit against
the Defendant, as set forth in the Plaintiff's Original Petition and Request for Disclosures.
FACTS
Il.
The Plaintiff, Mitchell L. Griffith (“Griffith”), as seller, and Kristy L. Waters (“Waters”),
as buyer, entered into a Residential Condominium Contract (the “Contract”), on or about June 13,
2019. The Contract was for the purchase ofa condominium, Unit 1810, at 1717 One Arts Plaza,
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Dallas, Texas 75201 (the “Condo”). A true, correct and complete copy of the Contract, including
seller’s temporary residential lease, and all addenda and amendments to the Contract, is attached
to the Affidavit of Kristy L. Waters in Support of Motion for Summary Judgment (“Waters’
Affidavit”) as Exhibit “A,” and is also attached to Plaintiff's Original Petition and Request for
Disclosures (the “Petition”) filed in this cause. Waters’ Affidavit and the complete Contract, as
attached to Waters’ Affidavit and to the Petition, are incorporated into this motion for all purposes.
Il.
The initial closing date in the Contract was established as July 31, 2019, and the total
agreed purchase price for the Condo was $860,000.00, with Waters to pay $400,000.00 in cash at
the closing, and with Waters to obtain $460,000.00 in third party conventional financing. The
obligation to purchase was made contingent upon Waters being able to obtain third party financing.
The financing terms are set forth in the Third Party Financing Addendum, which was signed by the
parties and made part of the Contract. [Waters’ Affidavit, paragraph 4.]
Iv.
The Contract provided for Waters to deposit earnest money in the sum of $8,000.00 with
Republic Title Company, which the escrow agent acknowledged receiving from Waters on June 14,
2019. A true and correct copy of the earnest money check, as negotiated by the escrow agent (in
somewhat reduced size because it is a banking record), is attached to Waters’ Affidavit as Exhibit
“B,” and incorporated herein for all purposes. Once the Contract was signed and the earnest money
was paid, Waters promptly applied for third party financing from her chosen lending company,
Service First Mortgage, on the terms described in the Third Party Financing Addendum. [Waters’
Affidavit, paragraph 5.]
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Vv.
Griffith and Waters signed a total of four amendments to the Contract. They signed the First
Amendment on or about June 20, 2019, the purpose of which was to service, repair, replace or adjust
a cook top, two balcony receptacles and a shower head. [Waters’ Affidavit, paragraph 6.] (Please
note that the First Amendment is not germane to the disposition of this motion. It is referenced only
to provide a brief description to the Court of all four the amendments to the Contract.)
VI.
In accordance with the Contract, Waters arranged and paid for an independent, third party
inspection of the Condo. Waters also arranged and paid for a professional appraisal of the Condo.
The lender, Service First Mortgage, was provided with the appraisal, dated July 24, 2019. Service
First Mortgage determined that a revision to the appraisal would be required, and Griffith and
Waters mutually agreed to extend the closing to a later date. The Second Amendment was initially
signed by Waters on July 28, 2019, and was delivered to Griffith on July 28 for Griffith’s signature.
A minor formatting change was made, and it was signed by Griffith on July 29, 2019 and then
resubmitted to Waters for signing on the same date. As per the Second Amendment, the closing
date was changed to August 9, 2019. [Waters’ Affidavit, paragraph 7.]
VII.
Following the Second Amendment, by mutual agreement of Griffith and Waters, the closing
date was changed two more times. The Third Amendment changed the closing date to August
13, 2019. [Waters’ Affidavit, paragraph 8.]
VIII.
The Fourth Amendment (and final amendment), was signed by both parties on August
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13, 2019, by which the closing date was changed to August 28, 2019. There was also made a
part of the Fourth Amendment under “Other Modifications” the following: “1) This amended.
closing date is time of the essence. If this contract does not close and fund by 5:00 PM CT on
set closing date, the contract will automatically terminate and earnest money will
automatically be delivered to Seller.” This language was made part of the Fourth Amendment,
which was signed first by Griffith, and was then presented to Waters for Waters’ signature. A true
and correct copy of the Fourth Amendment, which is of significance to this motion, is attached to
both Waters’ Affidavit and to the Petition. [Waters’ Affidavit, paragraphs 3 and 9.]
IX.
On the afternoon of August 22, 2019, Waters, through her real estate agent, Kevin Jenkins,
by email informed Republic Title Company, Griffith and others, that due to the lender’s (Service
First Mortgage) determination that it would decline financing concerning the Condo property,
Waters was providing all recipients with “Notice of Buyers Termination of Contract.” This
effectively meant that Waters was not going to close on August 28, 2019. In fact, the Contract did
not close on or before August 28, 2019, at 5:00 p.m., Central Time. [Waters’ Affidavit, Exhibit “C,”
page 1.] During the evening of August 22, 2019, Griffith, a licensed attorney, sent an email to
Republic Title Company and others stating, “Per the terms of Amendment4 (attached), I trust
that Republic Title will be releasing the $8,000 of earnest money currently on deposit with
Republic Title at 5pm CT on August 28, 2019 to me. Please advise as to how those funds will
be released.” [Waters’ Affidavit, Exhibit “C,” page 2.] On the morning of August 23, 2019,
Griffith sent a similar email to Mr. Jenkins stating, “...(T)he earnest money is to be
automatically released on August 28" (per the terms of Amendment No. 4 and per Republic
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Title). [Waters’ Affidavit, Exhibit “C,” pages 3-4.] Waters, through her attorney, Gaylene Rogers
Lonergan, wrote an email to Griffith on August 27, 2019, with an attached letter referring to and
quoting from the Fourth Amendment, stating that Ms. Lonergan was concurrently notifying the title
company to forward a Release of Earnest Money for Waters to sign. [Waters’ Affidavit, Exhibit “C,”
pages 5-8.] Approximately ten minutes later, Ms. Lonergan sent the title company and others an
email, requesting that Republic Title send a Release of Earnest Money to Waters, thereby releasing
the earnest money to Griffith. [Waters’ Affidavit, Exhibit “C,” pages 9-11.] Subsequently, on the
morning of August 28, 2019, Griffith, acting unilaterally, reversed his position, stating
unequivocally to Republic Title Company, Ms. Lonergan, Waters and others, that Republic
Title Company was “NOT” to send the earnest money to Griffith and, if Republic Title
Company felt obligated pursuant to the Contract to deliver to Griffith the earnest money,
Griffith would “refuse” the earnest money and return it to the escrow agent, Republic Title
Company. [Waters’ Affidavit, Exhibit “C,” pages 12-13.] True and correct copies of the foregoing
emails, as hi-lighted to reflect relevant provisions, are attached to Waters’ Affidavit as Exhibit “C,”
and incorporated into this motion for all purposes. [Waters’ Affidavit, paragraph 10.]
X.
Griffith initiated this lawsuit on September 6, 2019, claiming $1,000,000 in damages.
Waters has alleged in her pleading, that the Fourth Amendment is unambiguous on its face, that it
constitutes an election of remedies by Griffith (based upon the express agreement of the parties) as
to what would occur, if the closing did not take place by 5:00 p.m., CT, on August 28, 2019. Waters
has alleged that in making the Fourth Amendment agreement, Griffith also waived filing a claim
for damages, choosing instead to receive the earnest money. Further, Waters has alleged that
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Griffith’s subsequent unilateral position that he would refuse the earnest money, and instead file a
suit for damages, constitutes an anticipatory repudiation of the Contract, as expressed in the Fourth
Amendment. Waters respectfully requests the Court to take judicial notice of the allegations, claims
and defenses contained in her pleadings, as filed with this Court, as well as the fact that Griffith has
filed a lawsuit for damages, as reflected in the Petition filed in this Court.
LAW AND AUTHORITIES
This Motion Concerns the Fourth Amendment
XI.
This motion concerns specifically the Fourth Amendment, which was agreed to by both
parties on August 13, 2019. The Fourth Amendment represents the final, agreed extension by the
parties of the closing date-setting the Contract closing date and funding to take place by not later
than 5:00 p.m., CT, on August 28, 2019. The Fourth Amendment expressly sets forth the remedy
that the parties had agreed upon, in the event that the Contract did not close by the stated date and
time-the Contract would automatically terminate and the earnest money would automatically
be delivered to the Seller. It is undisputed that the Contract did not close by 5:00 p.m., CT, on
August 28, 2019, and the Contract did not fund by 5:00 p.m., CT, on August 28, 2019. See: Waters’
Affidavit.
Whether a Contract is Ambiguous or Unambiguous is a Question of Law for the Court
XII.
The Texas Supreme Court has held that the construction of an unambiguous contract is a
question of law. Kachina Pipeline Company, Inc. v. vs Lillis, 471 S.W.3d 445, 449 (Tex. 2015),
citing, Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); Dynegy Midstream Services, Limited
MOTION FOR SUMMARY JUDGMENT-Page 6
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Partnership v. Apache Corp., 294 8.W.3d 164, 168 (Tex. 2009) (whether a contract is ambiguous
is itselfa legal question for the court). For this reason, it is for this Court to determine whether the
Contract and, specifically the Fourth Amendment, is unambiguous. Waters submits that the Fourth
Amendment is clear and unambiguous. It is not subject to more than one interpretation.
Established Legal Principles Aid the Court in Construing a Contract
XII.
Well-established legal principles, as expressed by the Texas Supreme Court, apply. “In
construing a contract, a court must ascertain the true intentions of the parties as expressed in the
writing itself.” Italian Cowboy Partners, Ltd. v. Prudential Insurance Company of America, 341
S.W.3d 323, 333 (Tex. 2011). “A contract is not ambiguous simply because the parties disagree
over its meaning.” Dynegy, 294 S.W.3d at 168. Rather, “[i]fa written contract is so worded that
it can be given a definite or certain legal meaning, then it is not ambiguous.” Lillis, 471 S.W.3d at
450, citing National Union Fire Ins. Co. Of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520
(Tex. 1995) (per curiam). Extrinsic evidence can be considered only to interpret an ambiguous
writing, not create an ambiguity. Lillis, 471 S.W.3d, at 450, citing Friendswood Dev. Co. v.
McDade & Co., 926 S.W.2d 280, 283 (Tex. 1996).
Courts Interpret Contracts According to Their Plain and Ordinary Meaning
XIV.
Courts are to interpret contracts according to their plain and ordinary meaning, based upon
the language chosen by the parties. “We give contract terms their plain and ordinary meaning unless
the instrument indicates the parties intended a different meaning.” Lillis, 471 S.W.3d, at 450, citing,
Dynegy, 294 S.W.3d at 168. In the case at hand, there can be no more plain and ordinary meaning
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than the actual words appearing in the Fourth Amendment. The parties agreed that if the Contract
did not close and fund by a date and time certain, the Contract would automatically terminate,
and the earnest money would automatically be delivered to the Seller. It is undisputed that the
Contract did not close and fund by the agreed date and time. The remedy that was chosen by the
parties, according to their language, is clear. Griffith was, by his own agreement, obligated to
accept the earnest money and was also obligated, along with Waters, to accept termination of the
Contact.
Courts Are to Examine the Entire Agreement and Give Effect to Each Provision
XV.
The Fourth Amendment language is also consistent with other provisions contained in the
Contract, such that Griffith cannot maintain an action for alleged damages. “When discerning the
contracting parties’ intent, courts must examine the entire agreement and give effect to each
provision so that none is rendered meaningless.” Lillis, 471 S.W.3d, at 450, citing, Tawes, 340
S.W.3d at 425. Paragraph 15 of the Contract provides in substantial part: “15, DEFAULT.
If Buyer fails to comply with this contract, Buyer will be in default, and Seller may (a) enforce
specific performance, seek such other relief as may be provided by law, or both, or (b)
terminate this contract and receive the earnest money as liquidated damages, thereby releasing
both parties from this contract.” For reasons expressed throughout her pleading, Waters denies
that she failed to comply with the Contract, but for purposes of argument, if Waters had failed to
comply with the Contract, the conjunction “ r” separates alternative (a) from alternative (b) in
paragraph 15. Under paragraph 15, if the seller can establish a failure by the buyer to comply with
the contract, the seller may either seek specific performance or other legal remedies OR terminate
IN FOR SUMMARY JUDG! age 8
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the contract and receive the earnest money as liquidated damages, but not both. The very concept
of earnest money as “liquidated damages” means that the pursuit of alleged actual damages is not
available. That is the plain and ordinary meaning of paragraph 15 which, again, is a question of law
for the Court. Lillis, Id. The Fourth Amendment is entirely consistent with paragraph 15, the effect
of which was that Griffith chose subparagraph (b) of paragraph 15, meaning if the August 28 closing
and funding were to not occur, the Contract would be terminated, Griffith would receive the earnest
money, and Griffith and Waters would both be released from the Contract.
The Case of Brewer v. Myers is Instructive and On Point
XVI.
The case of Brewer v. Myers, 545 S.W.2d 235 (Tex. App.-Tyler, 1976, no writ), in which
the Tyler Court of Appeals upheld the trial court’s granting of a summary judgment in favor of the
defendant/buyer under a real estate contract, is instructive. In Brewer, the question before the court
was whether a provision for liquidated damages in a contract for the sale of real estate limits the
plaintiffs/sellers to the retention of a stipulated sum as their exclusive remedy. The court, in
Brewer, ruled that the sellers’ remedy was limited to the earnest money deposit. The Brewer court
stated that the evidence was not in dispute. The parties had signed an earnest money contract, the
defendant/buyer had deposited $200 as earnest money, as called for in the contract. The defendant
subsequently failed and refused to purchase the property. The contract stated that the sellers “shall
have the right to retain said cash deposit as liquidated damages.” The plaintiffs/sellers had argued
that this provision gave the sellers the right to elect between liquidated damages or actual damages
and as such, the sellers had the right to refuse the earnest money and instead sue for actual damages.
Brewer, 545 S.W.2d at 236. The Brewer court disagreed. The court determined that the contract
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was not ambiguous. Brewer, 545 S.W.2d at 238. The court ruled that the sellers had bound
themselves to accept the earnest money as liquidated damages, and they could not subsequently
refuse to accept the earnest money and sue for alleged actual damages. The court, in Brewer, wrote,
“Had the parties intended to give the plaintiffs the right to refuse liquidated damages and sue for
actual damages they could have easily so stated in the contract.” Brewer, 545 S.W.2d at 237. In the
case at hand, the language employed by the parties is even more specific. It does not say merely that
the seller has the right to retain the earnest money, but that the “earnest money will automatically
be delivered to the Seller.” There is no discretion and there is no provision in the Fourth
Amendment, or elsewhere, for the Griffith to refuse the earnest money. In Brewer, the plaintiffs
also argued that there was a question as to whether the plaintiffs/sellers had in fact accepted the
earnest money, maintaining that there was no summary judgment proof that they had elected to
retain the earnest money. They argued that this created a fact question, such that the summary
judgment should not have been granted. The Brewer court summarily dismissed this argument,
writing, “The question of whether the plaintiffs elected to retain the deposit as liquidated damages
does not constitute a material fact issue. Under the terms of the contract, plaintiffs bound
themselves to accept such sum as compensating for their loss resulting from the happening of the
contingency named. Plaintiffs cannot escape the obligations of the contract on the ground that the
liquidated damages were not accepted or retained by them.” Brewer, 545 S.W.2d at 238. The
Court, in Brewer, held, “It follows, therefore, as a matter of law, that the contract under its own
terms affords no basis for a cause of action for actual damages and the trial court properly disposed
of the matter by granting the defendant’s motion for summary judgment.” Brewer, 545 S.W.2d at
237. The judgment of the trial court was affirmed. Brewer, 545 S.W.2d at 238. Similarly, in the
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instant case, Griffith could not just refuse the earnest money. He had bound himself to accept the
earnest money, as stated in the Fourth Amendment. Because, as in Brewer, Griffith has no basis for
a cause of action for actual damages, this Court should dispose of Griffith’s claims by granting
Waters’ motion for summary judgment.
Election of Remedies by Griffith
XVII.
When Griffith agreed to the Fourth Amendment, he chose, in the event that the Condo did
not close and fund by 5:00 p.m. on August 28, 2019, to have the Contract automatically terminate
and to automatically receive the earnest money, thereby releasing both parties. By signing the
Fourth Amendment, Griffith elected, of the two alternatives of paragraph 15 of the Contract, the
remedy of termination/receipt of earnest money. He elected that remedy, to the exclusion of
pursuing any claim for alleged damages. The doctrine of “election of remedies” is an affirmative
defense that, under certain circumstances, bars a person from pursuing two inconsistent remedies.
Medina v. Herrera, 927 8.W.2d 597, 600 (Tex. 1996). In the case at hand, paragraph 15 of the
Contract, when construed with the Fourth Amendment, renders inconsistent the remedy of pursuing
damages and remedy of the receipt of earnest money. When Griffith entered into the Fourth
Amendment, he chose earnest money. In Bocanegra v. Aetna Life Ins. Co., 605 8.W.2d 848, 851
(Tex. 1980) the Supreme Court noted that the election of remedies doctrine combines elements of
estoppel, ratification, and unjust enrichment. The Bocanegra Court determined that the election
doctrine may constitute a bar to relief when: (1) one successfully exercises an informed choice; (2)
between two or more remedies, rights or states of facts; (3) which are inconsistent as to; (4)
constitute manifest injustice. Id. at 851. In the instant case, it is manifestly unjust for Griffith,
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having agreed to the terms of the Fourth Amendment remedies of automatic receipt of the earnest
money and automatic contract cancellation, to subsequently reject his agreement and, instead,
pursue a legal action for damages.
Waiver by Griffith
XVIII.
As a result of signing the Fourth Amendment, Griffith also waived any right he might
otherwise have had to pursue any alleged claim for damages. Waiver is a party’s intentional
relinquishment of a known right or intentional conduct inconsistent with the assertion of that right.
Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996). A right that is subject to
waiver may spring from law or from a contract. Tenneco Inc., Id. While waiver is ordinarily a
question of fact, when the surrounding facts and circumstances are undisputed, the question
becomes one of law. Motor Vehicle Board v. El Paso Independent Automobile Dealers Ass'n, Inc.,
1 S.W.3d 108, 111 (Tex. 1999). When Griffith agreed to the Fourth Amendment, he intentionally
relinquished the right of suing for specific performance, damages or any other legal remedy and,
instead, accepted termination of the Contract, receipt of the earnest money as liquidated damages,
and the release of both parties from the Contract. In his email to Republic Title Company on the
evening of August 22, 2019 and his email to Waters, through Mr. Jenkins, on the morning of August
23, 2019, Griffith reaffirmed that this remedy had been chosen, stating that if the Condo were to not
close on August 28, 2019, the earnest money would automatically be released to him, as seller. In
doing so, Griffith for the second and third times (the first being when the Fourth Amendment was
signed) engaged in conduct inconsistent with the pursuit of a claim for damages.
Anticipatory Repudiation of Contract by Griffith
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XIX,
After Griffith and Waters signed the Fourth Amendment and after Griffith insisted that the
earnest money would be automatically released to him, Griffith abruptly changed positions and
stated that he would not accept the earnest money, that he would return the earnest money to the title
company if the title company were to send it to him. In stating that he would refuse and even return
the earnest money and, instead sue for damages, Waters maintains that Griffith anticipatorily
repudiated the Contract, as embodied in the Fourth Amendment. A repudiation or anticipatory
breach occurs when a party’s conduct “shows a fixed intention to abandon, renounce, and refuse to
perform the contract.” SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc.,
128 S.W.3d 304, 315 (Tex. App.-Dallas 2004, no pet.); Grp. Life & Health Ins. Co. v. Turner, 620
S.W.2d 670, 673 (Tex. Civ. App.-Dallas 1981, no writ). Griffith made it clear in his emails to
Waters and to the title company, that he was abandoning, renouncing and refusing to perform the
contract terms of the Fourth Amendment, in that he stated he would not accept the earnest money
and, instead, would file a legal action for damages. The legal action that Griffith filed is this
lawsuit. The remedy for anticipatory repudiation is that the non-repudiating party’s performance
is excused. A party’s performance is excused, if the other party repudiates a dependent promise.
See: Glass v. Anderson, 596 S.W.2d 507, 511 (Tex. 1980). A dependent promise is a promise that
is conditioned on the performance of a reciprocal promise by the other party. 46933, Inc. v. Z&B
Enters., 899 S.W.2d 800, 807-08 (Tex. App.-Amarillo 1995, writ denied). In the case at hand, the
promises of automatic delivery of the earnest money (and Griffith’s acceptance of same) and
automatic termination of the Contract are dependent promises, as they are conditioned on the
performance of reciprocal promises by both parties. As such, due to Griffith’s anticipatory
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repudiation of the Fourth Amendment, any further performance(s) by Waters to Griffith was/were
excused.
WHEREFORE, PREMISES CONSIDERED, Kristy L. Waters prays that the Court set this
motion for hearing and, upon hearing same, grant her motion for summary judgment as requested
herein, dismiss all of the Plaintiff's causes of action filed herein and/or grant judgment in favor of
the Defendant as to all of the Plaintiffs causes of action, and grant such other and further relief, at
law or in equity as the Court may deem just and proper.
Respectfully submitted,
By: /s/ H. Guy Smith
H. Guy Smith
Texas State Bar No. 18605400
Law Office of H. Guy Smith PLLC
900 Jackson Street, Suite 750
Dallas, Texas 75202-4461
972-774-9000 (telephone)
guy@gsmithlegal.com
By: /s/ Conrad Kasselman
Conrad Kasselman
State Bar No. 11105700
Kasselman & McCorkindale, P.C.
900 Jackson Street, Suite 770
Dallas, Texas 75202
(214) 744-1276 (telephone)
(469) 586-7409 (cell phone)
conrad@jadpe.com
ATTORNEYS FOR DEFENDANT,
KRISTY L. WATERS
MOTION FOR SUMMARY JUDGMENT-Page 14
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CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the above and foregoing Motion for
Summary Judgment has been served pursuant to the Texas Rules of Civil Procedure on all parties
on this the 3rd day of December, 2020.
/s/ Conrad Kasselman
Conrad Kasselman
MOTION FOR SUMMARY JUDGMENT-Page 15
(CK2321\MS5.01)
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
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Conrad Kasselman on behalf of Conrad Kasselman
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Envelope ID: 48594270
Status as of 12/4/2020 9:46 AM CST
Associated Case Party: MITCHELLL.GRIFFITH
Name BarNumber Email TimestampSubmitted | Status
Austin Smith | 24102506 asmith1300@gmail.com 12/3/2020 10:40:49 AM | SENT
Case Contacts
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Louis Rajsich louis@mitznerllp.com 12/3/2020 10:40:49 AM SENT
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Conrad Kasselman conrad@jadpc.com 12/3/2020 10:40:49 AM SENT
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Francine Ly fly@dallascourts.org 12/3/2020 10:40:49 AM SENT
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Doug Salisbury doug@mitznerllp.com 12/3/2020 10:40:49 AM SENT
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FILED 12/3/2020 10:40 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Kevin Molden DEPUTY NO. DC-19-14078 MITCHELL L. GRIFFITH, IN THE DISTRICT COURT Plaintiff, VS. 134™ JUDICIAL DISTRICT KRISTY L. WATERS, Defendant. DALLAS COUNTY, TEXAS DEFENDANT KRISTY L. WATERS’ MOTION FOR SUMMARY JUDGME TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Kristy L. Waters, Defendant, and pursuant to Rule 166a of the Texas Rules of Civil Procedure, files this her Motion for Summary Judgment, and for same would respectfully show the Court as follows: THE MOTION I This motion, if granted by the Court, would resolve completely the Plaintiffs lawsuit against the Defendant, as set forth in the Plaintiff's Original Petition and Request for Disclosures. FACTS Il. The Plaintiff, Mitchell L. Griffith (“Griffith”), as seller, and Kristy L. Waters (“Waters”), as buyer, entered into a Residential Condominium Contract (the “Contract”), on or about June 13, 2019. The Contract was for the purchase ofa condominium, Unit 1810, at 1717 One Arts Plaza, MOTION FOR SUMMARY JUDGMENT-Page 1 (CK2321\MS5.01) Dallas, Texas 75201 (the “Condo”). A true, correct and complete copy of the Contract, including seller’s temporary residential lease, and all addenda and amendments to the Contract, is attached to the Affidavit of Kristy L. Waters in Support of Motion for Summary Judgment (“Waters’ Affidavit”) as Exhibit “A,” and is also attached to Plaintiff's Original Petition and Request for Disclosures (the “Petition”) filed in this cause. Waters’ Affidavit and the complete Contract, as attached to Waters’ Affidavit and to the Petition, are incorporated into this motion for all purposes. Il. The initial closing date in the Contract was established as July 31, 2019, and the total agreed purchase price for the Condo was $860,000.00, with Waters to pay $400,000.00 in cash at the closing, and with Waters to obtain $460,000.00 in third party conventional financing. The obligation to purchase was made contingent upon Waters being able to obtain third party financing. The financing terms are set forth in the Third Party Financing Addendum, which was signed by the parties and made part of the Contract. [Waters’ Affidavit, paragraph 4.] Iv. The Contract provided for Waters to deposit earnest money in the sum of $8,000.00 with Republic Title Company, which the escrow agent acknowledged receiving from Waters on June 14, 2019. A true and correct copy of the earnest money check, as negotiated by the escrow agent (in somewhat reduced size because it is a banking record), is attached to Waters’ Affidavit as Exhibit “B,” and incorporated herein for all purposes. Once the Contract was signed and the earnest money was paid, Waters promptly applied for third party financing from her chosen lending company, Service First Mortgage, on the terms described in the Third Party Financing Addendum. [Waters’ Affidavit, paragraph 5.] MOTION FOR SUMMARY JUDGMENT-Page 2 (CK2321\MS5.01) Vv. Griffith and Waters signed a total of four amendments to the Contract. They signed the First Amendment on or about June 20, 2019, the purpose of which was to service, repair, replace or adjust a cook top, two balcony receptacles and a shower head. [Waters’ Affidavit, paragraph 6.] (Please note that the First Amendment is not germane to the disposition of this motion. It is referenced only to provide a brief description to the Court of all four the amendments to the Contract.) VI. In accordance with the Contract, Waters arranged and paid for an independent, third party inspection of the Condo. Waters also arranged and paid for a professional appraisal of the Condo. The lender, Service First Mortgage, was provided with the appraisal, dated July 24, 2019. Service First Mortgage determined that a revision to the appraisal would be required, and Griffith and Waters mutually agreed to extend the closing to a later date. The Second Amendment was initially signed by Waters on July 28, 2019, and was delivered to Griffith on July 28 for Griffith’s signature. A minor formatting change was made, and it was signed by Griffith on July 29, 2019 and then resubmitted to Waters for signing on the same date. As per the Second Amendment, the closing date was changed to August 9, 2019. [Waters’ Affidavit, paragraph 7.] VII. Following the Second Amendment, by mutual agreement of Griffith and Waters, the closing date was changed two more times. The Third Amendment changed the closing date to August 13, 2019. [Waters’ Affidavit, paragraph 8.] VIII. The Fourth Amendment (and final amendment), was signed by both parties on August MOTION FOR SUMMARY JUDGMENT-Page 3 (CK2321\MS5.01) 13, 2019, by which the closing date was changed to August 28, 2019. There was also made a part of the Fourth Amendment under “Other Modifications” the following: “1) This amended. closing date is time of the essence. If this contract does not close and fund by 5:00 PM CT on set closing date, the contract will automatically terminate and earnest money will automatically be delivered to Seller.” This language was made part of the Fourth Amendment, which was signed first by Griffith, and was then presented to Waters for Waters’ signature. A true and correct copy of the Fourth Amendment, which is of significance to this motion, is attached to both Waters’ Affidavit and to the Petition. [Waters’ Affidavit, paragraphs 3 and 9.] IX. On the afternoon of August 22, 2019, Waters, through her real estate agent, Kevin Jenkins, by email informed Republic Title Company, Griffith and others, that due to the lender’s (Service First Mortgage) determination that it would decline financing concerning the Condo property, Waters was providing all recipients with “Notice of Buyers Termination of Contract.” This effectively meant that Waters was not going to close on August 28, 2019. In fact, the Contract did not close on or before August 28, 2019, at 5:00 p.m., Central Time. [Waters’ Affidavit, Exhibit “C,” page 1.] During the evening of August 22, 2019, Griffith, a licensed attorney, sent an email to Republic Title Company and others stating, “Per the terms of Amendment4 (attached), I trust that Republic Title will be releasing the $8,000 of earnest money currently on deposit with Republic Title at 5pm CT on August 28, 2019 to me. Please advise as to how those funds will be released.” [Waters’ Affidavit, Exhibit “C,” page 2.] On the morning of August 23, 2019, Griffith sent a similar email to Mr. Jenkins stating, “...(T)he earnest money is to be automatically released on August 28" (per the terms of Amendment No. 4 and per Republic MOTION FOR SUMMARY JUDGMENT-Page 4 (CK2321\MSI.01) Title). [Waters’ Affidavit, Exhibit “C,” pages 3-4.] Waters, through her attorney, Gaylene Rogers Lonergan, wrote an email to Griffith on August 27, 2019, with an attached letter referring to and quoting from the Fourth Amendment, stating that Ms. Lonergan was concurrently notifying the title company to forward a Release of Earnest Money for Waters to sign. [Waters’ Affidavit, Exhibit “C,” pages 5-8.] Approximately ten minutes later, Ms. Lonergan sent the title company and others an email, requesting that Republic Title send a Release of Earnest Money to Waters, thereby releasing the earnest money to Griffith. [Waters’ Affidavit, Exhibit “C,” pages 9-11.] Subsequently, on the morning of August 28, 2019, Griffith, acting unilaterally, reversed his position, stating unequivocally to Republic Title Company, Ms. Lonergan, Waters and others, that Republic Title Company was “NOT” to send the earnest money to Griffith and, if Republic Title Company felt obligated pursuant to the Contract to deliver to Griffith the earnest money, Griffith would “refuse” the earnest money and return it to the escrow agent, Republic Title Company. [Waters’ Affidavit, Exhibit “C,” pages 12-13.] True and correct copies of the foregoing emails, as hi-lighted to reflect relevant provisions, are attached to Waters’ Affidavit as Exhibit “C,” and incorporated into this motion for all purposes. [Waters’ Affidavit, paragraph 10.] X. Griffith initiated this lawsuit on September 6, 2019, claiming $1,000,000 in damages. Waters has alleged in her pleading, that the Fourth Amendment is unambiguous on its face, that it constitutes an election of remedies by Griffith (based upon the express agreement of the parties) as to what would occur, if the closing did not take place by 5:00 p.m., CT, on August 28, 2019. Waters has alleged that in making the Fourth Amendment agreement, Griffith also waived filing a claim for damages, choosing instead to receive the earnest money. Further, Waters has alleged that MOTION FOR SUMMARY JUDGMENT-Page 5 (CK23211MS5.01) Griffith’s subsequent unilateral position that he would refuse the earnest money, and instead file a suit for damages, constitutes an anticipatory repudiation of the Contract, as expressed in the Fourth Amendment. Waters respectfully requests the Court to take judicial notice of the allegations, claims and defenses contained in her pleadings, as filed with this Court, as well as the fact that Griffith has filed a lawsuit for damages, as reflected in the Petition filed in this Court. LAW AND AUTHORITIES This Motion Concerns the Fourth Amendment XI. This motion concerns specifically the Fourth Amendment, which was agreed to by both parties on August 13, 2019. The Fourth Amendment represents the final, agreed extension by the parties of the closing date-setting the Contract closing date and funding to take place by not later than 5:00 p.m., CT, on August 28, 2019. The Fourth Amendment expressly sets forth the remedy that the parties had agreed upon, in the event that the Contract did not close by the stated date and time-the Contract would automatically terminate and the earnest money would automatically be delivered to the Seller. It is undisputed that the Contract did not close by 5:00 p.m., CT, on August 28, 2019, and the Contract did not fund by 5:00 p.m., CT, on August 28, 2019. See: Waters’ Affidavit. Whether a Contract is Ambiguous or Unambiguous is a Question of Law for the Court XII. The Texas Supreme Court has held that the construction of an unambiguous contract is a question of law. Kachina Pipeline Company, Inc. v. vs Lillis, 471 S.W.3d 445, 449 (Tex. 2015), citing, Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); Dynegy Midstream Services, Limited MOTION FOR SUMMARY JUDGMENT-Page 6 (CK2321\MS5.01) Partnership v. Apache Corp., 294 8.W.3d 164, 168 (Tex. 2009) (whether a contract is ambiguous is itselfa legal question for the court). For this reason, it is for this Court to determine whether the Contract and, specifically the Fourth Amendment, is unambiguous. Waters submits that the Fourth Amendment is clear and unambiguous. It is not subject to more than one interpretation. Established Legal Principles Aid the Court in Construing a Contract XII. Well-established legal principles, as expressed by the Texas Supreme Court, apply. “In construing a contract, a court must ascertain the true intentions of the parties as expressed in the writing itself.” Italian Cowboy Partners, Ltd. v. Prudential Insurance Company of America, 341 S.W.3d 323, 333 (Tex. 2011). “A contract is not ambiguous simply because the parties disagree over its meaning.” Dynegy, 294 S.W.3d at 168. Rather, “[i]fa written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous.” Lillis, 471 S.W.3d at 450, citing National Union Fire Ins. Co. Of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (per curiam). Extrinsic evidence can be considered only to interpret an ambiguous writing, not create an ambiguity. Lillis, 471 S.W.3d, at 450, citing Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex. 1996). Courts Interpret Contracts According to Their Plain and Ordinary Meaning XIV. Courts are to interpret contracts according to their plain and ordinary meaning, based upon the language chosen by the parties. “We give contract terms their plain and ordinary meaning unless the instrument indicates the parties intended a different meaning.” Lillis, 471 S.W.3d, at 450, citing, Dynegy, 294 S.W.3d at 168. In the case at hand, there can be no more plain and ordinary meaning MOTION FOR SUMMARY JUDGMENT-Page 7 (CK23211MS5.01) than the actual words appearing in the Fourth Amendment. The parties agreed that if the Contract did not close and fund by a date and time certain, the Contract would automatically terminate, and the earnest money would automatically be delivered to the Seller. It is undisputed that the Contract did not close and fund by the agreed date and time. The remedy that was chosen by the parties, according to their language, is clear. Griffith was, by his own agreement, obligated to accept the earnest money and was also obligated, along with Waters, to accept termination of the Contact. Courts Are to Examine the Entire Agreement and Give Effect to Each Provision XV. The Fourth Amendment language is also consistent with other provisions contained in the Contract, such that Griffith cannot maintain an action for alleged damages. “When discerning the contracting parties’ intent, courts must examine the entire agreement and give effect to each provision so that none is rendered meaningless.” Lillis, 471 S.W.3d, at 450, citing, Tawes, 340 S.W.3d at 425. Paragraph 15 of the Contract provides in substantial part: “15, DEFAULT. If Buyer fails to comply with this contract, Buyer will be in default, and Seller may (a) enforce specific performance, seek such other relief as may be provided by law, or both, or (b) terminate this contract and receive the earnest money as liquidated damages, thereby releasing both parties from this contract.” For reasons expressed throughout her pleading, Waters denies that she failed to comply with the Contract, but for purposes of argument, if Waters had failed to comply with the Contract, the conjunction “ r” separates alternative (a) from alternative (b) in paragraph 15. Under paragraph 15, if the seller can establish a failure by the buyer to comply with the contract, the seller may either seek specific performance or other legal remedies OR terminate IN FOR SUMMARY JUDG! age 8 (CK(232NMSI.01) the contract and receive the earnest money as liquidated damages, but not both. The very concept of earnest money as “liquidated damages” means that the pursuit of alleged actual damages is not available. That is the plain and ordinary meaning of paragraph 15 which, again, is a question of law for the Court. Lillis, Id. The Fourth Amendment is entirely consistent with paragraph 15, the effect of which was that Griffith chose subparagraph (b) of paragraph 15, meaning if the August 28 closing and funding were to not occur, the Contract would be terminated, Griffith would receive the earnest money, and Griffith and Waters would both be released from the Contract. The Case of Brewer v. Myers is Instructive and On Point XVI. The case of Brewer v. Myers, 545 S.W.2d 235 (Tex. App.-Tyler, 1976, no writ), in which the Tyler Court of Appeals upheld the trial court’s granting of a summary judgment in favor of the defendant/buyer under a real estate contract, is instructive. In Brewer, the question before the court was whether a provision for liquidated damages in a contract for the sale of real estate limits the plaintiffs/sellers to the retention of a stipulated sum as their exclusive remedy. The court, in Brewer, ruled that the sellers’ remedy was limited to the earnest money deposit. The Brewer court stated that the evidence was not in dispute. The parties had signed an earnest money contract, the defendant/buyer had deposited $200 as earnest money, as called for in the contract. The defendant subsequently failed and refused to purchase the property. The contract stated that the sellers “shall have the right to retain said cash deposit as liquidated damages.” The plaintiffs/sellers had argued that this provision gave the sellers the right to elect between liquidated damages or actual damages and as such, the sellers had the right to refuse the earnest money and instead sue for actual damages. Brewer, 545 S.W.2d at 236. The Brewer court disagreed. The court determined that the contract MOTION FOR SUMMARY JUDGMENT-Page 9 (CK2321\MS5.01) was not ambiguous. Brewer, 545 S.W.2d at 238. The court ruled that the sellers had bound themselves to accept the earnest money as liquidated damages, and they could not subsequently refuse to accept the earnest money and sue for alleged actual damages. The court, in Brewer, wrote, “Had the parties intended to give the plaintiffs the right to refuse liquidated damages and sue for actual damages they could have easily so stated in the contract.” Brewer, 545 S.W.2d at 237. In the case at hand, the language employed by the parties is even more specific. It does not say merely that the seller has the right to retain the earnest money, but that the “earnest money will automatically be delivered to the Seller.” There is no discretion and there is no provision in the Fourth Amendment, or elsewhere, for the Griffith to refuse the earnest money. In Brewer, the plaintiffs also argued that there was a question as to whether the plaintiffs/sellers had in fact accepted the earnest money, maintaining that there was no summary judgment proof that they had elected to retain the earnest money. They argued that this created a fact question, such that the summary judgment should not have been granted. The Brewer court summarily dismissed this argument, writing, “The question of whether the plaintiffs elected to retain the deposit as liquidated damages does not constitute a material fact issue. Under the terms of the contract, plaintiffs bound themselves to accept such sum as compensating for their loss resulting from the happening of the contingency named. Plaintiffs cannot escape the obligations of the contract on the ground that the liquidated damages were not accepted or retained by them.” Brewer, 545 S.W.2d at 238. The Court, in Brewer, held, “It follows, therefore, as a matter of law, that the contract under its own terms affords no basis for a cause of action for actual damages and the trial court properly disposed of the matter by granting the defendant’s motion for summary judgment.” Brewer, 545 S.W.2d at 237. The judgment of the trial court was affirmed. Brewer, 545 S.W.2d at 238. Similarly, in the MOTION FOR SUMMARY JUDGMENT-Page 10 (CK23211MS5.01) instant case, Griffith could not just refuse the earnest money. He had bound himself to accept the earnest money, as stated in the Fourth Amendment. Because, as in Brewer, Griffith has no basis for a cause of action for actual damages, this Court should dispose of Griffith’s claims by granting Waters’ motion for summary judgment. Election of Remedies by Griffith XVII. When Griffith agreed to the Fourth Amendment, he chose, in the event that the Condo did not close and fund by 5:00 p.m. on August 28, 2019, to have the Contract automatically terminate and to automatically receive the earnest money, thereby releasing both parties. By signing the Fourth Amendment, Griffith elected, of the two alternatives of paragraph 15 of the Contract, the remedy of termination/receipt of earnest money. He elected that remedy, to the exclusion of pursuing any claim for alleged damages. The doctrine of “election of remedies” is an affirmative defense that, under certain circumstances, bars a person from pursuing two inconsistent remedies. Medina v. Herrera, 927 8.W.2d 597, 600 (Tex. 1996). In the case at hand, paragraph 15 of the Contract, when construed with the Fourth Amendment, renders inconsistent the remedy of pursuing damages and remedy of the receipt of earnest money. When Griffith entered into the Fourth Amendment, he chose earnest money. In Bocanegra v. Aetna Life Ins. Co., 605 8.W.2d 848, 851 (Tex. 1980) the Supreme Court noted that the election of remedies doctrine combines elements of estoppel, ratification, and unjust enrichment. The Bocanegra Court determined that the election doctrine may constitute a bar to relief when: (1) one successfully exercises an informed choice; (2) between two or more remedies, rights or states of facts; (3) which are inconsistent as to; (4) constitute manifest injustice. Id. at 851. In the instant case, it is manifestly unjust for Griffith, MOTION FOR SUMMARY JUDGMENT-Page 11 (CK2321\MS5.01) having agreed to the terms of the Fourth Amendment remedies of automatic receipt of the earnest money and automatic contract cancellation, to subsequently reject his agreement and, instead, pursue a legal action for damages. Waiver by Griffith XVIII. As a result of signing the Fourth Amendment, Griffith also waived any right he might otherwise have had to pursue any alleged claim for damages. Waiver is a party’s intentional relinquishment of a known right or intentional conduct inconsistent with the assertion of that right. Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex. 1996). A right that is subject to waiver may spring from law or from a contract. Tenneco Inc., Id. While waiver is ordinarily a question of fact, when the surrounding facts and circumstances are undisputed, the question becomes one of law. Motor Vehicle Board v. El Paso Independent Automobile Dealers Ass'n, Inc., 1 S.W.3d 108, 111 (Tex. 1999). When Griffith agreed to the Fourth Amendment, he intentionally relinquished the right of suing for specific performance, damages or any other legal remedy and, instead, accepted termination of the Contract, receipt of the earnest money as liquidated damages, and the release of both parties from the Contract. In his email to Republic Title Company on the evening of August 22, 2019 and his email to Waters, through Mr. Jenkins, on the morning of August 23, 2019, Griffith reaffirmed that this remedy had been chosen, stating that if the Condo were to not close on August 28, 2019, the earnest money would automatically be released to him, as seller. In doing so, Griffith for the second and third times (the first being when the Fourth Amendment was signed) engaged in conduct inconsistent with the pursuit of a claim for damages. Anticipatory Repudiation of Contract by Griffith MOTION FOR SUMMARY JUDGMENT-Page 12 (CK2321\MS5.01) XIX, After Griffith and Waters signed the Fourth Amendment and after Griffith insisted that the earnest money would be automatically released to him, Griffith abruptly changed positions and stated that he would not accept the earnest money, that he would return the earnest money to the title company if the title company were to send it to him. In stating that he would refuse and even return the earnest money and, instead sue for damages, Waters maintains that Griffith anticipatorily repudiated the Contract, as embodied in the Fourth Amendment. A repudiation or anticipatory breach occurs when a party’s conduct “shows a fixed intention to abandon, renounce, and refuse to perform the contract.” SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc., 128 S.W.3d 304, 315 (Tex. App.-Dallas 2004, no pet.); Grp. Life & Health Ins. Co. v. Turner, 620 S.W.2d 670, 673 (Tex. Civ. App.-Dallas 1981, no writ). Griffith made it clear in his emails to Waters and to the title company, that he was abandoning, renouncing and refusing to perform the contract terms of the Fourth Amendment, in that he stated he would not accept the earnest money and, instead, would file a legal action for damages. The legal action that Griffith filed is this lawsuit. The remedy for anticipatory repudiation is that the non-repudiating party’s performance is excused. A party’s performance is excused, if the other party repudiates a dependent promise. See: Glass v. Anderson, 596 S.W.2d 507, 511 (Tex. 1980). A dependent promise is a promise that is conditioned on the performance of a reciprocal promise by the other party. 46933, Inc. v. Z&B Enters., 899 S.W.2d 800, 807-08 (Tex. App.-Amarillo 1995, writ denied). In the case at hand, the promises of automatic delivery of the earnest money (and Griffith’s acceptance of same) and automatic termination of the Contract are dependent promises, as they are conditioned on the performance of reciprocal promises by both parties. As such, due to Griffith’s anticipatory MOTION FOR SUMMARY JUDGMENT-Page 13 (CK2321\MS5.01) repudiation of the Fourth Amendment, any further performance(s) by Waters to Griffith was/were excused. WHEREFORE, PREMISES CONSIDERED, Kristy L. Waters prays that the Court set this motion for hearing and, upon hearing same, grant her motion for summary judgment as requested herein, dismiss all of the Plaintiff's causes of action filed herein and/or grant judgment in favor of the Defendant as to all of the Plaintiffs causes of action, and grant such other and further relief, at law or in equity as the Court may deem just and proper. Respectfully submitted, By: /s/ H. Guy Smith H. Guy Smith Texas State Bar No. 18605400 Law Office of H. Guy Smith PLLC 900 Jackson Street, Suite 750 Dallas, Texas 75202-4461 972-774-9000 (telephone) guy@gsmithlegal.com By: /s/ Conrad Kasselman Conrad Kasselman State Bar No. 11105700 Kasselman & McCorkindale, P.C. 900 Jackson Street, Suite 770 Dallas, Texas 75202 (214) 744-1276 (telephone) (469) 586-7409 (cell phone) conrad@jadpe.com ATTORNEYS FOR DEFENDANT, KRISTY L. WATERS MOTION FOR SUMMARY JUDGMENT-Page 14 (CK2321\MS5.01) CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the above and foregoing Motion for Summary Judgment has been served pursuant to the Texas Rules of Civil Procedure on all parties on this the 3rd day of December, 2020. /s/ Conrad Kasselman Conrad Kasselman MOTION FOR SUMMARY JUDGMENT-Page 15 (CK2321\MS5.01) Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Conrad Kasselman on behalf of Conrad Kasselman Bar No. 11105700 conrad@jadpc.com Envelope ID: 48594270 Status as of 12/4/2020 9:46 AM CST Associated Case Party: MITCHELLL.GRIFFITH Name BarNumber Email TimestampSubmitted | Status Austin Smith | 24102506 asmith1300@gmail.com 12/3/2020 10:40:49 AM | SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Louis Rajsich louis@mitznerllp.com 12/3/2020 10:40:49 AM SENT Matthew Mitzner matthew@mitznerllp.com 12/3/2020 10:40:49 AM SENT Conrad Kasselman conrad@jadpc.com 12/3/2020 10:40:49 AM SENT Austin PSmith austin.smith@tklaw.com 12/3/2020 10:40:49 AM SENT Francine Ly fly@dallascourts.org 12/3/2020 10:40:49 AM SENT H. GuySmith guy@gsmithlegal.com 12/3/2020 10:40:49 AM SENT Doug Salisbury doug@mitznerllp.com 12/3/2020 10:40:49 AM SENT