Summary
holding that contract for sale of real estate terminated by date certain expressed in contract without any written extension amendment
Summary of this case from Lyons v. OrtegoOpinion
No. 04-05-00165-CV
Delivered and Filed: February 8, 2006.
Appeal from the 198th Judicial District Court, Kerr County, Texas, Trial Court No. 03-442-B, Honorable Emil Karl Prohl, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Jay W. Colvin III and Colvin-River Hills LLC (collectively, "Colvin") appeal from the trial court's judgment signed on January 4, 2005. On appeal, Colvin asserts four points of error: (1) that as a matter of law his earnest money contract with Curt and Polly Rickert did not terminate by its own terms on March 31, 2003, but was extended by the Rickerts' subsequent actions, and his performance was excused by their anticipatory breach; (2) that the trial court abused its discretion as a matter of law when it declined to rule on his amended motion for new trial based on new evidence, and his motion for leave to file the amended motion; (3) the court abused its discretion in failing to grant the amended motion for new trial because the new evidence negates the court's finding of mutual mistake with respect to the contract; and (4) if a new trial is granted on the contract dispute with the Rickerts, the easement dispute with the Bettacs must also be remanded for a new trial or arbitration. Other than as mentioned in his fourth issue, Colvin does not challenge the portion of the trial court's judgment finding in favor of Robert and Suzanne Bettac, and holding that Colvin had no right to use their roadway easement or to force the Bettacs to upgrade it, and was not entitled to any relief against the Bettacs. Colvin also does not challenge the award of attorney's fees to the Bettacs. We affirm the judgment of the trial court.
Factual Procedural Background
The underlying action is a consolidation of two lawsuits: (1) a suit by Colvin against Curt and Polly Rickert for specific performance of an earnest money contract for the sale of their land, and for compensation for improvements made by Colvin to the property; and (2) a suit by the adjoining landowners, Robert and Suzanne Bettac, against Colvin for a declaratory judgment that Colvin had no right to use the roadway easement that provides access to the Rickerts' and Bettacs' property, and for an injunction prohibiting Colvin's use of the roadway easement, and a counter-suit by Colvin against the Bettacs for tortious interference with the sale contract and for declaratory judgment that the Bettacs have a duty to contribute to upgrading the roadway easement to bring it into compliance with county subdivision standards.
We begin by summarizing the factual and procedural background of the consolidated case. Curt and Polly Rickert and Robert and Suzanne Bettac initially bought a tract of land in Kerr County together as partners. The relationship between the Rickerts and Bettacs subsequently became strained. On June 21, 2002, the Rickerts and Bettacs partitioned the property into two dominant estates, Tract A owned by the Rickerts in fee simple, and Tract B owned by the Bettacs in fee simple, and a roadway easement that runs alongside the two dominant tracts, Tract C, in which each owns a one-half fee simple interest. At the same time, they entered into an "Easement and Agreement" which provides in relevant part that Tract C is only to be used for ingress and egress to the two dominant estates to which it is appurtenant, i.e., Tracts A and B. The Easement and Agreement further provides that the Rickerts and Bettacs are equally obligated to maintain and repair the roadway easement, including the fences and gates currently in place, and to split the costs of maintenance and repair upon thirty days' prior written notice, subject to an objection and arbitration to resolve any dispute. The Easement and Agreement provides that use of the roadway easement is restricted to the designated private use, and that there shall be no other use of the easement.
On December 9, 2002, the Rickerts entered into an earnest money contract for the sale of Tract A and their one-half interest in Tract C to Colvin, who owns other property abutting Tracts A and B and on either side of Tract C. The contract contained a special provision inserted by Colvin stating that the property was to be "delivered compliant with the laws of the State of Texas and County of Kerr." The original closing date for the sale was January 6, 2003, but the transaction did not close because issues had arisen regarding completion of a new survey, whether the sale would be conducted as a tax deferred exchange, and whether the roadway easement had to be upgraded to be brought into compliance with Kerr County platting and subdivision requirements.
At the time of the contract, the Kerr County Commissioners Court was considering whether the Rickerts and Bettacs were required to plat their property, but had not yet made a determination. It was not until May 24, 2004 that the Commissioners Court entered Order #28660 stating that the Rickerts and Bettacs were required to plat their property, which involved bringing the roadway easement into compliance with Kerr County subdivision standards. The order was admitted into evidence at trial and considered by the court.
In mid-December 2002, shortly after entering into the contract with the Rickerts, Colvin began using the roadway easement, Tract C, to access his other properties and began making other uses of the roadway easement such as tearing down a boundary fence, clearing trees and stumps, mowing, leaving debris on the road, and using heavy equipment to cross over the road to and from his property. The Bettacs repeatedly warned Colvin both verbally and in writing that he had no right to use Tract C in that manner and asked him to stop. Colvin continued his use of Tract C until a temporary restraining order was entered in July 2004.
Three written amendments to the contract between Colvin and the Rickerts were signed by the parties — on December 22, 2002, February 28, 2003, and March 6, 2003. The December 22, 2002 amendment provided in part that Colvin was to receive a "readable" copy of the survey and partition agreement. The February 28, 2003 amendment provided in part that the Rickerts would provide a new survey rather than a re-certification of the existing survey, the Rickerts would complete "any legal requirements for . . . the access road easement . . . required by governmental authorities," and that the sale would be conducted as a tax deferred exchange. The amendment also contained a provision in which the Rickerts granted Colvin an agricultural surface lease on the property until closing which permitted him to clear trees, build fences, improve roads, install water lines, graze his cattle, etc., during the pendency of the contract. The amendment also provided that the cost of such work was to be approximately $40,000, and was the sole responsibility of Colvin. Finally, the March 6, 2003 amendment extended the closing date to "on or before March 31, 2003."
On March 31, 2003, no completed survey had been delivered to the title company, and no agreement had been reached between the Rickerts and Colvin on whether and how to upgrade the roadway easement to comply with county standards. On March 31 at 2:05 p.m., Curt Rickert faxed a letter to Doug Evans, the real estate agent representing Colvin, that stated, "the property which we have had agreements and contracts on is not going to close on the stated date. At this time various other legal concerns have to be addressed. Therefore, this will terminate all contracts and agreements concerning the sale of the property. . . ." Evans called Colvin and informed him of the letter; Colvin contacted his attorney. Later that same afternoon, Colvin's attorney faxed a letter to Curt Rickert stating that Colvin had not received the required survey, and that "his survey objections will most likely include a request that the survey reflect the alterations to the roadway . . . which are necessary, along with the filing of a county lane subdivision plat, to enable Seller to lawfully convey the Property . . . [t]he Buyer will be prepared to close the sale . . . within 7 days after the survey objections have been cured."
After March 31, 2003, the Rickerts and Colvin continued communicating about the sale, and exchanged correspondence regarding a reduction in the real estate agent's commission from 6% to 3%, what, if anything, had to be done to upgrade the roadway or get a variance in order to sell the property, and setting a new date for a closing. On April 16, 2003, Colvin submitted a fourth amendment setting a new closing date of May 1, 2003 to the Rickerts for their signature, but they never signed it.
On July 8, 2003, Colvin filed suit against the Rickerts seeking specific performance of the contract, and a declaratory judgment of the parties' rights and duties under the contract, including whether the property is subject to county subdivision rules and regulations; in an amended petition, Colvin additionally requested damages for his costs for bringing the property into compliance with county regulations. In a second amended petition filed August 2, 2004, after the Commissioner's Court platting order, Colvin added a cause of action for tortious interference against the Bettacs, and sought specific performance of the Easement and Agreement to require the Rickerts and the Bettacs to plat the property and split the cost of bringing the roadway easement up to county standards. The Rickerts' answer pled, in part, that the contract had terminated before the lawsuit was filed and there was no justiciable controversy between the parties related to the contract. In an amended answer filed November 12, 2004, the Rickerts added the affirmative defenses of mutual mistake as to the road easement and ambiguity of the contract; they also asserted a cross-claim against Colvin for fraud and misrepresentation.
At that time, the two cases had been consolidated.
On July 15, 2004, the Bettacs filed suit against Colvin to enjoin him from using the roadway easement for any purpose other than access to Tract A and from any use of Tract B, and for a declaratory judgment setting out the rights and duties under the Easement and Agreement. A temporary restraining order was issued, and a hearing on the request for temporary injunction was held on July 28, 2004. Suzanne Bettac testified to the various uses of the roadway easement by Colvin that violated the Easement and Agreement, including allowing his goats and livestock to wander on to the road and Tract B, and allowing hunters to use the road to access his properties. Two letters from the Rickerts dated September 3, 2003 and May 17, 2004, were admitted stating that Colvin was no longer their tenant and had no right to be on their property, i.e., Tract A or C. On August 26, 2004, the court signed an order granting the temporary injunction against Colvin, and consolidated the Rickert and Bettac lawsuits for purposes of a final hearing and trial on the easement issues and the contract issues.
A one-day bench trial was held on November 23, 2004. At the beginning of the trial, the judge announced that the first issue to be determined was whether a contract still existed between the Rickerts and Colvin. Colvin proceeded to present evidence on his claim for specific performance. The owner of the title company, Diane Green, testified that as of March 31, 2003 the title company had not received a new completed survey as required by the contract for closing; there was only a copy of the old survey in the title company file. Ms. Green further testified that on March 31, no money was tendered and neither party appeared for the closing. As of the trial date, the earnest money was still in escrow and its release had never been requested. There was only one written extension of the closing date in the file, the extension to March 31, 2003, and no notice of termination of the contract in the file, which was not unusual. Polly Rickert testified that with respect to her May 4, 2003 fax to Colvin's attorney, her reference to a "new closing date" was not meant as an extension because she and her husband had terminated the original contract, but, rather, was meant to refer to a possibility of entering into a new contract upon resolution of the outstanding issues. Ms. Rickert stated that the March 31, 2003 closing date was never extended. The real estate agent, Doug Evans, who only represented Colvin in the transaction, testified that a letter dated April 27, 2003 referred to his agreement to reduce his commission from 6% to 3% in order to help the sale go forward for the buyer. He stated that Colvin was "anxious" to close the transaction and had done "significant" work on the property; he also stated there was no indication that "time was of the essence" in the contract language. He acknowledged receiving the March 31, 2003 fax from Curt Rickert stating that the contract was terminated, and stated he never saw any document signed by the parties that extended the closing date beyond March 31, 2003; no other contract was signed after March 31, 2003. Evans testified he did not recall any discussions about the road's compliance before the contract was signed, and did not know if there was a "meeting of the minds" on the cost of the road upgrades. A civil engineer hired by Colvin in July 2004 to assess the road testified to his opinion that to upgrade the road to partial compliance with county standards would cost between $125,000 and $130,000, and to upgrade the road to full compliance would cost $700,000 to $800,000.
Prior to trial, Colvin filed an election of remedies stating that he elected to enforce specific performance of the contract except for the provision requiring the property to be in compliance with county laws, but was also seeking damages for the cost of bringing the roadway into compliance with county standards.
Specifically, Ms. Rickert testified, "We understood that we had terminated the existing contract. We understood that with these defects, we could not sell the property to anybody. If . . . Mr. Colvin had expressed continued interest in purchasing the parcel, and so our understanding was if we resolved these issues, we would enter into a new contract and sell him the property."
Jay Colvin testified that he entered into the earnest money contract with the Rickerts on December 9, 2002 for a purchase price of $288,400 cash; he had initially planned to do a tax deferred exchange but changed it to cash when other circumstances changed. He requested the added provision requiring delivery of the property in compliance with Kerr County laws because he "had concerns" whether the property division and road were up to legal standards. The transaction was not ready to close on January 6, 2003. Colvin was not concerned that the second amendment to the contract signed in February 2003 did not provide a new closing date because he did not yet have the completed survey and there were other unresolved issues at that time. He testified that on March 31, 2003, he was "ready and willing" to close, but did not appear or tender the purchase price because he had still not seen a completed survey and had no assurance that the road was in compliance; no deed was tendered to him by the Rickerts on March 31. Colvin stated he first saw the completed survey sometime after April 16, 2003. Colvin testified that he did not interpret Curt Rickert's March 31 fax to mean the deal was over because his attorney had told him the contract kept going and the parties had been talking about extending. However, Colvin later testified that his biggest concern on that date was that "he called me up at the last minute and cancelled the contract." Colvin stated he did not intend the March 31 response letter from his attorney to the Rickerts to extend the contract because he did not think an extension was necessary. Colvin did request the Rickerts to sign a written extension after March 31, which would have set a closing date of May 1, 2003, but they did not sign. Colvin conceded that the Rickerts had submitted a new contract to him in September or October 2003, but he did not sign it because it had a higher purchase price. Colvin stated that he remained ready and willing to close on the sale of the Rickerts' property as of the date of trial. Finally, Colvin testified that he did not anticipate a cost as high as $120,000 to upgrade the road at the time he entered into the contract. With respect to his use of the roadway easement, Colvin testified he did some work on the road and used it to cross people and equipment between his properties while he had the agricultural lease in 2003 and 2004.
Until two years before the contract, Colvin had been a licensed real estate agent for over thirty years.
The trial court granted judgment for the Rickerts, and found the contract had expired by its terms, had been entered into without a meeting of the minds, and was void. The court denied the Rickerts' claim for attorney's fees because it was based on the void contract. The court then proceeded to consider the easement dispute between Colvin and the Bettacs. The court admitted the transcript of the temporary injunction hearing into evidence, received the Bettacs' offer of proof on Colvin's easement violations, and heard testimony from Colvin that he had believed he had a right to use the roadway easement under the contract and/or lease, and had indeed used the roadway to access his other properties, torn down a fence abutting the roadway, mowed and cleared trees from the road. The court denied the Bettacs' request for a permanent injunction in view of Colvin's acknowledgment in open court that he would discontinue using the road, denied Colvin's requests for relief against the Bettacs, and awarded the Bettacs their attorney's fees.
The final judgment was signed on January 4, 2005, and the court subsequently entered findings of fact and conclusions of law in support of its judgment. Specifically, the court found that the earnest money contract expired by its own terms when the parties failed to close on March 31, 2003, and that Colvin and the Rickerts had no meeting of the minds and were operating under a mutual mistake as to the cost and burden of bringing the roadway easement into compliance with Kerr County standards; therefore, the contract was null and void and Colvin was not entitled to specific performance. With respect to the Bettacs' suit on the easement, the court found that a justiciable controversy existed as to Colvin's right to use the road easement, and that Colvin had used the road easement in violation of the easement restrictions filed in the county deed records. The court also found that a permanent injunction was not necessary, and dissolved the temporary injunction that had been granted. Finally, the court found that Colvin lacked capacity to enforce the county subdivision restrictions and the terms of the Easement and Agreement, and was not entitled to any relief against the Bettacs. The court awarded the Bettacs $21,060 in attorney's fees.
After conclusion of the trial, but before the judgment was signed, Colving filed a "Motion for Judgment of Reformation Sua Sponte or Otherwise," which was effectively denied by the entry of the final judgment. Colvin did not plead for reformation of the contract and there is no evidence to indicate the issue of reformation was tried by consent. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 688 (Tex. 1991) (per curiam).
Colvin timely filed a motion for new trial on February 3, 2005, challenging the findings that the contract had expired and was entered under a mutual mistake, and asking for reformation and/or restitution, neither of which had been pled. Colvin subsequently filed an amended motion for new trial based on "new evidence" on March 8, 2005, along with a motion for leave filed on March 10, 2005, arguing that a new Commissioner's Court order signed on February 14, 2005 rescinded its prior order requiring platting of the Rickerts' property, and therefore negated the court's finding of mutual mistake. The clerk's record shows that a hearing was set for March 14, 2005 on the motion for new trial. On March 18, 2005, the court signed an order denying Colvin's motion for new trial; there is no order ruling on the amended motion for new trial, or the motion for leave, in the record. Colvin timely brought this appeal.
We were not provided a transcript of this hearing in the appellate record.
Expiration of Contract
In his first issue, Colvin argues that "as a matter of law" the real estate purchase contract did not terminate by its own terms when the parties failed to close on March 31, 2003, the Rickerts' subsequent actions served to extend the contract, and the Rickerts' failure to close was an anticipatory breach that excused his performance. We construe Colvin's first issue as a challenge to the legal sufficiency of the evidence to support the trial court's finding of fact, and the propriety of the court's conclusion of law, that the contract expired on March 31, 2003, and that neither party breached the contract. The court's Finding of Fact No. 19 states, "Said earnest money contract expired accourding [sic] to its terms on March 31, 2003, and it was not extended thereafter. Even if the contract had not been void (as discussed elsewhere herein), neither Colvin nor Rickert breached the contract during its stated term." The court's Conclusion of Law No. 4 states, "The earnest money contract was null and void from its inception. Had it not been void, the contract nevertheless expired according to its terms before performance by the parties, none of whom breach[ed] the contract during its term. The contract was not extended."
On appeal, Colvin does not challenge the trial court's findings of fact and conclusions of law on mutual mistake and the absence of a meeting of the minds as alternative grounds for holding the contract null and void. Unchallenged findings of fact are binding on appeal. De Benavides v. Warren, 674 S.W.2d 353, 356 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.).
Standard of Review.
We review the trial court's fact findings as we would review the legal sufficiency of the evidence supporting a jury's verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In analyzing the legal sufficiency of the evidence supporting a finding of fact under a "no evidence" point of error, we examine the record for evidence and inferences that support the challenged finding, while disregarding all contrary evidence and inferences. Id.; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (in determining legal sufficiency, reviewing court must credit favorable evidence if reasonable fact finder could, and must disregard contrary evidence unless reasonable fact finder could not). "If there is more than a scintilla of evidence to support the findings, the `no evidence' challenge cannot be sustained." Catalina, 881 S.W.2d at 297. The court, as trier of fact in a bench trial, may believe one witness and disbelieve another, may resolve inconsistencies in the evidence, and may accept lay testimony over expert testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). We review a trial court's conclusions of law de novo, and will not reverse a conclusion unless it is erroneous as a matter of law. Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex.App.-San Antonio 1999, pet. den'd). An incorrect conclusion of law will not be reversed where the controlling finding of fact supports any correct legal theory. Id. Analysis.
When a written instrument is worded such that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a matter of law. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). The reviewing court construes the contract, and its written amendments, as a whole. City of Keller, 168 S.W.3d at 811 (writings executed at different times must be considered together if they pertain to the same transaction). Here, paragraph 21 of the earnest money contract expressly provides that it can not be modified except by written agreement of the parties. The contract set an initial closing date of January 6, 2003, but the transaction did not close on that date. See Intermedics, Inc. v. Grady, 683 S.W.2d 842, 846 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.) (even when an exact date of performance is specified in a contract, it can be waived). Thereafter, the parties entered into a written extension agreement on March 6, 2003 that extended the closing date to March 31, 2003. See Siderius, Inc. v. Wallace Co., 583 S.W.2d 852, 864 (Tex.Civ.App.-Tyler 1979, no writ) (fact that parties entered into new agreement extending time for performance of contract is evidence that parties considered time to be material). The effect of an extension of time for performance of a contract is merely to substitute a new performance date, and it does not affect other provisions of the contract. Intermedics, 683 S.W.2d at 846.
There is ample evidence in the record to support the court's finding that the earnest money contract expired by its terms on March 31, 2003, and was not further extended by the parties. Diane Green testified that neither party showed up for the closing on March 31, there was not a completed survey, and the purchase price was not tendered. Colvin testified that the deal was not ready to be closed and did not close on March 31 because the survey was not complete and the road compliance issue was not resolved. Further, the evidence is undisputed that the parties signed three previous written amendments to the contract, but there was no signed amendment between the parties agreeing to extend the contract beyond the March 31, 2003 closing date. Colvin testified that the Rickerts did not sign the extension amendment that he submitted to them providing for an extended closing date of May 1, 2003. Both Ms. Green and Doug Evans, the real estate agent, testified they did not see another extension agreement beyond the March 31, 2003 closing date. Curt Rickert's fax dated March 31, 2003 clearly and unequivocally states that the contract is terminating on that date. Polly Rickert testified that her husband's fax on March 31, 2003 was a termination of the contract, and that her May 4, 2003 reference to a new closing date was not intended as an extension of the prior contract but as a reference to a possible new contract. Colvin testified the Rickerts did tender a new contract to him in September or October 2003, but he did not sign it due to the higher purchase price.
The evidence was undisputed that the parties did not enter into a written agreement extending the contract beyond March 31, 2003, and the contract, by its terms, could only be modified by written agreement. Therefore, there is legally sufficient evidence in the record to support the trial court's finding that the parties did not agree to extend the contract beyond the March 31, 2003 closing date, and the contract therefore expired according to its own terms. We hold that the contract expired according to its terms on March 31, 2003 when the transaction did not close and the contract was not extended by written agreement, and accordingly affirm the trial court's conclusion of law holding the same.
In addition, we also affirm the trial court's conclusion of law that neither party breached the contract during its term. See Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (whether a party breached a contract is a question of law). The Kerr County Commissioner's Court order requiring platting of the Rickerts' property was not issued until well after the March 31, 2003 expiration of the contract. During the term of the contract, the issue of whether the Commissioner's Court would require platting of the property, and thus upgrading of the roadway easement, was merely pending before the Commissioner's Court; no final determination was made until Order #28660 was issued on May 24, 2004. Therefore, the Rickerts were under no duty or obligation under the terms of the contract to incur the cost of upgrading the road until there was a determination by the Commissioner's Court of whether the property was required to comply with Kerr County regulations.
Finally, Colvin argues on appeal that the Rickerts' failure to close on March 31, 2003 was an anticipatory breach or repudiation of the contract, contrary to the trial court's finding that neither party breached the contract. An anticipatory breach is "the repudiation of a contract before the time of performance has arrived [which] amounts to a tender of breach of the entire contract and allows the injured party to immediately pursue an action for damages." Murray v. Crest Const., Inc., 900 S.W.2d 342, 344 (Tex. 1995) (per curiam) (citing Pollack v. Pollack, 46 S.W.2d 292, 293 (Tex.Com.App. 1932)); see Tips v. Hartland Developers, Inc., 961 S.W.2d 618, 623 (Tex.App.-San Antonio 1998, no pet.) (party injured by anticipatory breach of another may elect to sue for damages under the contract). Here, Colvin elected to proceed on his cause of action for specific performance of the contract, rather than an action for damages for breach of contract. The record shows Colvin did not plead a cause of action for anticipatory breach or repudiation, and it was not tried by implied consent of the parties; therefore, Colvin was not entitled to a finding or judgment on that basis. A judgment must conform to the pleadings and proof. Tex. R. Civ. P. 301; Mapco, 817 S.W.2d at 688; Latch v. Gratty, Inc., 107 S.W.3d 543, 546 (Tex. 2003) (per curiam).
We overrule Colvin's first issue, and affirm the trial court's findings of fact and conclusions of law that the contract expired according to its terms when the parties failed to close on March 31, 2003, the contract was not extended, and the contract was not breached by any party.
Motion for New Trial Issues
In his second and third issues, Colvin asserts the trial court abused its discretion in failing to rule on his motion for leave to file the amended motion for new trial based on new evidence, and in failing to rule on and grant the amended motion for new trial, because the new evidence presented in the motion ( i.e., the February 14, 2005 Commissioner's Court Order) negates the trial court's finding that the contract was void for mutual mistake. The Rickerts assert in their brief that the trial court considered and denied both the original motion for new trial and the amended motion for new trial at the March 14, 2005 hearing, but simply signed the written order that was submitted, which refers only to "the Motion for New Trial." We have not been provided with a record of the March 14, 2005 hearing, and thus can not determine whether the issue of the "new evidence" was considered and ruled on at the hearing. The Rickerts alternatively argue that the "new evidence" would not change the outcome of the trial because the contract was also held to have expired or been terminated, and therefore there was no abuse of discretion in denying the motion. The Bettacs argue the amended motion for new trial was untimely filed and is a nullity which preserves nothing for review on appeal.
Standard of Review.
A party seeking a new trial on grounds of newly discovered evidence must show the trial court that: (1) the evidence has come to his knowledge since the trial; (2) it was not owing to the want of due diligence that it did not come sooner; (3) it is not cumulative; and (4) it is so material that it would probably produce a different result if a new trial were granted. In re C.Z.B., 151 S.W.3d 627, 632 (Tex.App.-San Antonio 2004, no pet.). "Whether a motion for new trial on the ground of newly discovered evidence will be granted or refused is generally a matter left to the sound discretion of the trial court, and the trial court's action will not be disturbed on appeal absent an abuse of such discretion." Id. When a motion or amended motion for new trial is untimely filed, however, it is a nullity and preserves nothing for appellate review regardless of whether the trial court ignores or denies the untimely motion for new trial. Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003).
Analysis.
The Supreme Court held in Moritz that, when read together, Rules 5 and 329b(b) and (e) of the Texas Rules of Civil Procedure show that an amended motion for new trial that is filed more than thirty days after the date the final judgment is signed is untimely. Id. Rule 329b(b) provides that a party may file an amended motion for new trial without leave of court before any earlier motion for new trial is overruled, and within thirty days after the judgment. Tex. R. Civ. P. 329b(b) [emphasis added]. Rule 5 prohibits the trial court from enlarging the period for taking any action under the rules relating to new trials. Tex. R. Civ. P. 5. Finally, Rule 329b(e) provides that if a party timely files a motion for new trial, the trial court's plenary power extends an additional thirty days after the motion is overruled; during that time, the trial court may grant a new trial, or vacate, modify, correct or reform the judgment. Tex. R. Civ. P. 329b(e).
In Moritz, the court held that a trial court's order overruling an untimely motion for new trial can not be the basis of appellate review, even if the court acts within its plenary power. Moritz, 121 S.W.3d at 720 (citing Thomas v. Davis, 553 S.W.2d 624, 626 (Tex. 1977)). However, the trial court may, in its discretion, still consider the grounds raised in the untimely motion and may grant a new trial under its inherent authority if it acts before it loses plenary power. Id. (citing Jackson v. Van Winkle, 660 S.W.2d 807, 808 (Tex. 1983)). The Supreme Court summarized the effect of an untimely motion or amended motion for new trial as follows:
If the trial court ignores the tardy motion, it is ineffectual for any purpose. The court, however, may look to the motion for guidance in the exercise of its inherent power and acting before its plenary power has expired, may grant a new trial; but if the court denies a new trial, the belated motion is a nullity and supplies no basis for consideration upon appeal of grounds which were required to be set forth in a timely motion.
Moritz, 121 S.W.3d at 720 (citing Kalteyer v. Sneed, 837 S.W.2d 848, 851 (Tex.App.-Austin 1992, no writ)).
Here, Colvin's amended motion for new trial was filed on the 63rd day after the judgment was signed, and was therefore untimely. Tex. R. Civ. P. 329b(b). Under Moritz, the untimely motion's "only purpose was to guide the trial court in the exercise of its inherent authority, and it is a nullity for purposes of preserving issues for appellate review." Moritz, 121 S.W.3d at 720. On the record before us, it appears the trial court ignored the untimely amended motion for new trial. Therefore, it is "ineffectual for any purpose," and we may not consider Colvin's contention that the trial court abused its discretion in failing to rule on the motion for leave and the amended motion for new trial. Id. Likewise, even if the trial court denied the amended motion for new trial as argued by the Rickerts, and as raised in Colvin's third issue, because the motion was untimely it preserved nothing for appellate review. Id. The case relied on by Colvin in his brief, Jackson v. Van Winkle, 660 S.W.2d 807 (Tex. 1983), was overruled by Moritz to the extent that it allowed appellate review of a trial court's decision to deny an untimely motion for new trial. Moritz, 121 S.W.3d at 721. Colvin's second and third issues are overruled.
Colvin's fourth issue asserting the easement dispute concerning the Bettacs should also be remanded for a new trial is wholly dependent on this court holding that a new trial should be granted on the contract dispute. Because we overruled Colvin's first issue challenging the court's ruling that the contract terminated, we need not address his fourth issue. Moreover, Colvin's assertion in his brief that the easement issue was "not tried" and was "not ripe" is contradicted by the record and by the court's findings of fact and conclusions of law which clearly show the easement issues raised by the Bettacs' suit for declaratory judgment were fully developed by the evidence and fully disposed of by the court. As noted, supra, Colvin does not challenge any of the findings of fact and conclusions of law with respect to the easement or the award of attorney's fees to the Bettacs. Findings of fact that are not challenged are binding on appeal. De Benavides, 674 S.W.2d at 356. Instead, Colvin claims in his reply brief, without citing any authority, that all issues regarding the easement became moot when the court declared the earnest money contract void. Failure to cite any supporting authority waives this argument. Tex.R.App.P. 38.1; McGrede v. Coursey, 131 S.W.3d 189, 196 (Tex.App.-San Antonio 2004, no pet.). Colvin also asserts in his reply brief, again without citing any authority, that the trial court erred in making findings of fact and conclusions of law and awarding attorney's fees "solely on the authority of the Easement Agreement." Failure to challenge a finding, and to cite authorities in support, constitutes waiver of the issue on appeal. See id.
We overrule all of Colvin's issues on appeal, and affirm the trial court's judgment in all respects.