                               NUMBER 13-13-00003-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG

ABEL MORENO,                                                                       Appellant,

                                                    v.

KENNETH W. LANGSTON,                                                                       Appellee.


                       On appeal from the 267th District Court
                            of Jackson County, Texas.


                               MEMORANDUM OPINION
                Before Justices Benavides, Perkes, and Longoria
                    Memorandum Opinion by Justice Perkes
        Appellant Abel Moreno filed suit against appellee Kenneth Langston, alleging

breach of a contract for the sale of land, and sought specific performance of the contract.

Langston answered, arguing that Moreno failed to timely make payments on the contract

and that he committed waste upon the property.1 Langston also filed a counterclaim


        1 In addition, Langston asserted special exceptions and several affirmative defenses including prior
material breach, waiver, estoppel, justification, and mitigation of damages.
seeking money damages and other relief.2 After Langston filed a combined no-evidence

and traditional motion for summary judgment, the trial court granted summary judgment

against Moreno, and entered judgment in favor of Langston awarding the following relief:

(1) cancelation of the Contract for Sale of Land; (2) designation of fee simple with no

encumbrances upon the property; (3) liquidated damages in the sum of $19,196.86; and

(4) attorney’s fees and court costs. By a single issue, Moreno contends the trial court

erred by granting summary judgment. We reverse and remand.

                                         I.      BACKGROUND

       In January 2003, Moreno contracted with Langston to purchase 21.65 acres of

land in Jackson County, Texas. The contract obligated Moreno to pay Langston monthly

installments of four hundred dollars, payable on the 25th day of each month, and stated

in relevant part:

       BUYER COVENANTS AND AGREES AS FOLLOWS:

                 1. To make prompt payment of said indebtedness as the same shall
                    become due and payable and to do and perform all of the
                    covenants and agreements herein imposed upon the Buyer.

                 2. To pay when due all taxes and assessments of every nature and
                    kind, inclusive of State, County, City, and School Taxes, that fall
                    due on said property after the date of this contract.

                 3. To keep the improvements on said property in good repair and
                    condition and not to permit or commit waste thereof and to permit
                    Seller, Seller’s agent or representative, to enter said premises at
                    all reasonable times for the purpose of inspection thereof.

                 4. That in the event Buyer fails to keep improvements in good repair
                    and condition, as aforesaid, and any sums which may be so paid
                    out by Seller therfor [sic] shall bear interest from the dates of such
                    payments at the rate of (6)% per annum and shall be paid by

       2   Moreno did not file an answer to Langston’s counterclaim.
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                 Buyer to Seller upon written demand at the same place at which
                 the hereinabove mentioned installments are payable.

The contract further specified the remedy for buyer’s breach of contract:

      In the event Buyer shall default in the prompt payment of said indebtedness
      or shall violate or omit to perform any of the provisions of this agreement
      and such default, violation or omission shall continue for a period of ten (10)
      days, then in any of such events Seller may elect, Buyer expressly waiving
      demand and notice, to declare the entire unpaid indebtedness, together with
      all interest accrued thereon, immediately due and payable and enforce
      collection thereof, or declare this contract cancelled and of no further force
      and effect, and in the event Seller elects to declare this contract canceled
      and of no further force and effect, all monies that have been paid to or
      deposited with Seller will be forfeited and belong to Seller as liquidated
      damages to compensate Seller for breach of contract and for rental and
      deterioration of the property, and immediately upon this contract being
      declared cancelled and of no further force and effect all the rights, claims
      and interest of Buyer in and to said property shall thereupon terminate and
      be at an end and the property shall unconditionally belong to the Seller.

      After Langston delivered a “Notice of Eviction”, Moreno filed a breach of contract

suit alleging that he had submitted payments on the contract as agreed, but that Langston

had refused to accept his payments.       Langston filed a counterpetition alleging that

Moreno breached the contract by: (1) failing to timely make his monthly payment within

ten days of May 25, 2009; and (2) committing waste on the property by burning and

burying objects on the property and allowing Brigham Oil and Gas to dump oil and gas

waste on the property.

      Langston filed a combined no-evidence motion for summary judgment and

traditional motion for summary judgment.        With respect to his no-evidence motion,

Langston asserted that Moreno “has no evidence to demonstrate that [he] performed

under the Contract, by tendering prompt payment for the month for May, 2009 . . .

therefore, [he] does not meet all of the elements for a breach of contract claim.” With

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respect to his traditional motion, Langston asserted that Moreno defaulted on the contract

by committing two prior material breaches of contract:                    (1) failing to tender prompt

payment under the Contract for the month of May, 2009; and (2) committing waste on the

property. In support of his traditional motion, Langston presented the following evidence:

(1) Langston’s affidavit; (2) a copy of the Contract for Sale; (3) a copy of Moreno’s request

to landfarm; (4) a copy of the Texas Railroad Commission’s authorization for Brigham Oil

and Gas to dump oil and gas waste on the property; and 5) Bernard T. Klimist’s affidavit

regarding attorney’s fees. Moreno filed a response, and in support thereof, Moreno

attached his affidavit claiming that he tendered payment for May 2009; denying that he

committed waste; and asserting that the land value had actually increased. The trial

court granted Langston’s motions for summary judgment without stating grounds.

                                     II.      SUMMARY JUDGMENT3

        A. Applicable Law and Standards of Review

        Under a traditional motion for summary judgment, the movant must establish that

no material fact issue exists and that it is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002);

Mowbray v. Avery, 76 S.W.3d 663, 690 (Tex. App.—Corpus Christi 2002, pet. denied).

After the movant produces evidence sufficient to show it is entitled to summary judgment,

the non-movant must then present evidence raising a fact issue. See Walker v. Harris,


        3  Langston argues that Moreno failed to address the issue of waste Langston raised in his motion
for summary judgment. We disagree. Moreno’s response to Langston’s motion included a statement
from Moreno’s affidavit denying that he committed waste. Moreno also argued in the trial court as he does
in this court that “there is a fact issue as to a material fact that precludes the granting of this motion for
summary judgment.” Since Langston brought one motion for summary judgment alleging both no-
evidence and traditional grounds, we construe Moreno’s argument as responding to both summary
judgment grounds.
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924 S.W.2d 375, 377 (Tex. 1996). A no-evidence summary-judgment motion should be

granted if there is no evidence of at least one essential element of the plaintiff’s claim.

See Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). All that is

required of the non-movant is to produce a scintilla of probative evidence to raise a

genuine issue of material fact on the challenged element.        Forbes, Inc. v. Granada

Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). The burden of producing evidence

is entirely on the non-movant; if the non-movant produces evidence to raise a genuine

issue of material fact, summary judgment is improper. TEX. R. CIV. P. 166a(i).

       In our de novo review of a trial court's summary judgment, we consider all the

evidence in the light most favorable to the non-movant, crediting evidence favorable to

the non-movant if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582

(Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005); Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). When an order granting summary

judgment does not specify the grounds on which summary judgment was granted, a court

may uphold the summary judgment on any ground presented in the motion. Joe v. Two

Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). If a party moves for both a

no-evidence summary judgment and a traditional summary judgment, we will first review

the trial court's judgment under the no-evidence standard. Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 600 (Tex. 2004).



                    III.   PROMPT PERFORMANCE ON THE CONTRACT


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      The elements of a breach of contract action are: (1) existence of a valid contract;

(2) performance or tendered performance by the plaintiff; (3) breach by the defendant;

and (4) damages sustained by the plaintiff as a result of the breach. Sauceda v. GMAC

Mortg. Corp., 268 S.W.3d 135, 140 (Tex. App.—Corpus Christi 2008, no pet.).

      In his no-evidence motion, Langston only challenges the second element of

Moreno’s claim, arguing that Moreno has no evidence to demonstrate that Moreno

promptly tendered payment for May 2009. In his traditional motion, Langston submitted

an affidavit attesting that Moreno “tendered the payment due on the Contract for the

month of May 2009 on June 11, 2009. The check was not received by [Langston] . . .

until June 12, 2009. Payment was not received by [Langston] until 18 days had elapsed

from the due date of May 25, 2009.” Therefore, Moreno was required to produce a

scintilla of probative evidence to rebut Langston’s claim and testimony. See Forbes, Inc.,

124 S.W.3d at 172.

      In support of his response, Moreno submitted an affidavit in which he attested that

he “made all payments to [Langston] until Mr. Langston refused to accept my payment in

May 2009.” (Emphasis added). Since the payment was not due until May 25, with a

grace period of ten days, the last day Moreno could have tendered payment for the month

of May was June 4, 2009. Resolving any doubts in favor of Moreno, we conclude from

this statement that a fact issue exists regarding whether Moreno promptly tendered

payment to Langston in May 2009. See City of Keller, 168 S.W.3d at 825. Moreno’s

affidavit creates a scintilla of probative evidence that he performed under the contract.

See Forbes, Inc., 124 S.W.3d at 172. Therefore, the trial court should have denied


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Langston’s no-evidence and traditional motions for summary judgment, wherein Langston

alleged untimeliness of payment as a breach of contract.

                                            IV.     WASTE

        In addition to non-payment, Langston claims that Moreno also breached the

contract by committing waste on the property. In support of this ground in his traditional

motion for summary judgment, he presented evidence that: (1) the parties executed the

contract for sale in 2003; (2) in June 2005, Moreno requested a landfarming permit from

the Railroad Commission of Texas; (3) Brigham Oil and Gas received permission from

the Railroad Commission of Texas to landfarm 12,000 barrels of drilling mud on 20 acres

of the property. Langston also submitted an affidavit attesting that “[Moreno] burned and

buried multiple objects on the property, causing damage to the land.” The affidavit

further alleged that “[Moreno] also illegally contracted with Brigham Oil and Gas to dump

oil and gas waste on the property.” Moreno responded by affidavit by generally denying

that he committed waste and asserting that the property value actually increased.

        In the landlord-tenant context, the doctrine of waste serves to protect the

landowner's reversionary interest in the property and exists only when one in possession

destroys or permanently damages the land, which causes a loss to the persons who

subsequently may be entitled to the land.4 R.C. Bowen Estate v. Continental Trailways,

256 S.W.2d 71, 72 (Tex. 1953); Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741,

753 (Tex. App.—El Paso 2000, no pet.). The doctrine of waste reflects the implicit duty



        4 We treat Moreno’s interest in the land as a tenancy. See Martinez v. Daccarett, 865 S.W.2d

161, 163 (Tex. App.—Corpus Christi 1993, no pet.) (concluding that in the event of default in contract for
deed, the relationship between parties is one of landlord-tenant).
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of a tenant to exercise reasonable care to protect leased premises from injury other than

by ordinary wear and tear. Because the tenant has such a duty, its breach constitutes

waste. Id. To constitute waste, the act allegedly causing it must be wrongful. R.C.

Bowen Estate, 256 S.W.2d at 72 (defining waste as an injury to the reversionary interest

in land caused by the wrongful act of a tenant or other party rightfully in possession); see

e.g. Oldham v. Keaton, 597 S.W.2d 938, 942 (Tex. Civ. App.—Texarkana 1980, writ ref'd

n.r.e.) (holding that cause of action for waste includes unauthorized destruction or

severance of minerals on or from the land); Erickson v. Rocco, 433 S.W.2d 746, 751 (Tex.

Civ. App.—Houston [14th Dist.] 1968, writ ref'd n.r.e.) (holding that waste includes injury

resulting from a failure to exercise reasonable care in preserving the property).

        To prevail in his motion for summary judgment, Langston has the burden to show

that Moreno caused permanent damage to the property as a matter of law. Langston’s

nonspecific claim that Moreno buried and burned “multiple objects” fails to show

permanent harm to the property and fails to indicate how the property was permanently

damaged. In addition, the documentary evidence of the landfarming does not indicate

whether the landfarming actually occurred; whether landfarming drilling waste caused

permanent harm to the property; and what, if any, damages to the property specifically

resulted from any alleged landfarming.5

        We conclude that Langston failed to meet his burden of proof required for summary




         5 While the trial court awarded liquidated damages to Langston, there is no evidence in the record

that the harm cause by Moreno’s alleged breach is incapable or difficult of estimation, and that the amount
of liquidated damages called for is a reasonable forecast of just compensation. See Stewart v. Basey, 245
S.W.2d 484 (Tex. 1952) (considering difference between enforceable liquidated damages provision and
unenforceable penalty).
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judgment. See Mowbray, 76 S.W.3d at 690. The trial court erred in granting summary

judgment for Langston on his counterclaim for breach of contract on this ground. See

Sauceda, 268 S.W.3d at 140.

                                 V.    CONCLUSION

       We reverse the judgment of the trial court and remand for further proceedings

consisted with this opinion.


                                             GREGORY T. PERKES
                                             Justice

Delivered and filed the
11th day of June, 2015.




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