      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00519-CV



                                 John Thomas Aiken, Appellant

                                                  v.

                                  Angelique S. Naylor, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
      NO. D-1-GN-13-003527, HONORABLE GUS J. STRAUSS JR., JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant, John Thomas Aiken, appeals from a summary judgment rendered by the

district court of Travis county in a suit involving title to a house and lot in Austin. This Court will

reverse the judgment in part and affirm it in part.

               Appellee Angelique S. Naylor bought the house and lot at 1101 Durham Drive in

2003. She financed the purchase with a thirty year $187,010 loan, secured by a deed of trust held

ultimately by Wells Fargo Bank.

               In 2004, Naylor and Aiken entered into a lease agreement with an option to purchase

the house and lot. The lease agreement required Aiken to pay Naylor $189,577.58 in base rental

payments, $5,000 of which was prepaid in cash and $184,577.58 of which was tendered by a note

payable to Naylor on or before April 10, 2009. Aiken was obligated by the terms of the note to make

annual payments of $2,272.20 to Naylor. Naylor then delivered possession of the property to Aiken.
                The lease agreement granted Aiken an option to purchase the property prior to the

maturity of the note. Naylor signed a deed to the property, but it was held in escrow pending Aiken’s

exercise of the option. Aiken, however, did not exercise the option nor did he pay the balance of

the note on maturity. Aiken remained on the property and continued to make payments to Naylor

through July 2013. After that date, he made no further payments although he continued to live there.

Naylor filed an eviction suit in justice court, and Aiken, in turn, filed the instant lawsuit.

                Aiken sued Naylor and Wells Fargo to quiet title to the property. He also sought

damages against Naylor for alleged violation of the Texas Property Code and the Texas Debt

Practices Act. In addition, he asserted a claim against Naylor for money had and received and unjust

enrichment. Finally, Aiken sought a declaration that the liens held by Naylor and Wells Fargo were

barred by limitations.

                Naylor filed an answer and an original and amended counterclaim requesting damages

for breach of the lease contract, a declaration that the lease agreement was valid and enforceable, and

a declaration defining the rights of the parties under the lease agreement.

                Thereafter, Naylor filed a traditional and no-evidence motion for summary judgment.

The district court granted Naylor’s motion, noting, however, that the summary judgment was

interlocutory in that it did not dispose of Aiken’s claims against Wells Fargo. After Aiken nonsuited

the bank, the district court signed a judgment, incorporating the summary judgment.

                The summary judgment provided, among other things, that Aiken take nothing. The

summary judgment further declared that the agreement between Aiken and Naylor was valid and

enforceable; that Aiken’s option to purchase had expired; that the relationship between Naylor and



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Aiken was that of lessor and lessee; that no title dispute existed; and that Naylor was not precluded

from pursuing her justice court eviction suit.

               In his lead issue, Aiken maintains that the district court improperly granted summary

judgment relief not specifically requested in Naylor’s motion.

               The right to summary judgment exists only by virtue of Texas Rule of Civil

Procedure 166a. To be entitled to a summary judgment one must strictly comply with the provisions

of Rule 166a. Tobin v. Garcia, 316 S.W.2d 396, 400 (Tex. 1958); Moody v. Temple Nat’l Bank,

545 S.W.2d 289, 290 (Tex. Civ. App.—Austin 1977, no writ). Rule 166a(c) requires that the motion

for summary judgment “state the specific grounds therefor.” Tex. R. Civ. P. 166a(c). A summary

judgment must stand or fall on the grounds expressly stated in the motion. McConnell v. Southside

Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see Tex. R. Civ. P. 166a(c) (“Issues not

expressly presented to the trial court by written motion, answer or other response shall not be

considered on appeal as grounds for reversal.”).

               Naylor’s motion for summary judgment only addresses Aiken’s claim to quiet

title and certain declaratory relief. It makes no mention of Aiken’s claim for damages for violation

of the Texas Property Code and the Texas Debt Practices Act, nor does it speak to Aiken’s claim for

money had and received and unjust enrichment. Accordingly, that part of the summary-judgment

motion is not in compliance with Rule 166a(c).

               Naylor insists that Aiken waived his claim for non-specificity by not asserting it in

the district court. Naylor’s argument is without merit. “When the motion for summary judgment

clearly presents certain grounds but not others, a non-movant is not required to except.” McConnell,



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858 S.W.2d at 342. Moreover, Aiken filed a motion for new trial specifically pointing out that

Naylor’s motion for summary judgment did not seek relief on his claims under the Texas Property

Code and the Texas Debt Practices Act.

                Aiken next asserts that summary judgment was improper because “issues of fact”

exist as to which party holds superior title to the house and lot. In support of this assertion, without

citing authority or record references, Aiken claims his execution of the note “paid the lease in full,

i.e., Aiken exercised his option to purchase the property and that the lease no longer exists.” Aiken

also asserts that Naylor executed and delivered to him a deed to the property.

                Aiken’s argument has no merit. First, Naylor did not deliver a deed to the property

to Aiken; rather, the deed was held in escrow pending full payment of the note. Further, nothing in

the lease agreement provides that Aiken’s execution of the note constituted the exercise of his option

to purchase the property. Instead, paragraph 23 sets out in detail the manner in which the option to

purchase may be exercised. Aiken complied with none of the requirements of paragraph 23. Finally,

nothing in the lease provides for the demise of the lease upon execution of the note. To the contrary,

the lease viewed as a whole contemplates an on-going relationship between the lessor and lessee.

For example, paragraph 6 limits the lessee’s use of the property; paragraph 8 sets out the lessee’s

duty to repair and maintain the premises; paragraph 16 entitles the lessor to accelerate the note upon

the breach of any covenant of the lease agreement; and, finally, paragraph 18 permits the lessor to

enter and inspect the property. Because Aiken did not exercise the option to purchase the property,

Naylor retains superior title to the property.




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               Aiken next claims that Naylor’s claims for breach of contract and declaratory

judgment are barred by the four-year statute of limitations. We do not agree.

               Aiken filed his original petition on October 10, 2013, and an amended original

petition on October 14, 2013. In these pleadings Aiken asserted claims related to the parties’

transaction regarding the house and lot in question.        Naylor filed her original answer and

counterclaim asserting her breach of contract claim on November 13, 2013. On March 19, 2014, she

filed her amended counterclaim requesting, in addition, a declaration that the lease agreement was

valid; that Aiken’s option to purchase had expired; and that the relationship between her and Aiken

was that of lessor and lessee.

               Tex. Civ. Prac. & Rem. Code § 16.069 provides:


       (a)     If a counterclaim or cross claim arises out of the same transaction or
               occurrence that is the basis of an action, a party to the action may file the
               counterclaim or cross claim even though as a separate action it would be
               barred by limitation on the date the party’s answer is required.

       (b)     The counterclaim or cross claim must be filed not later than the 30th day after
               the date on which the party’s answer is required.


               Tex. Civ. Prac. & Rem. Code § 16.068 provides:


       If a filed pleading relates to a cause of action, cross action, counterclaim, or defense
       that is not subject to a plea of limitation when the pleading is filed, a subsequent
       amendment or supplement to the pleading that changes the facts or grounds of
       liability or defense is not subject to a plea of limitation unless the amendment or
       supplement is wholly based on a new, distinct, or different transaction or occurrence.




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               By filing her original counterclaim with her answer on November 13, 2013, Naylor

satisfied the 30-day requirement of section 16.069(b). As well, the amended counterclaim, filed

on March 19, 2014, met the requirements of section 16.068. See Barraza v. Koliba, 933 S.W.2d

164, 167 (Tex. App.—San Antonio 1996, writ denied); E.P. Operating Co. v. Sonora Expl. Corp.,

862 S.W.2d 149, 152 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (“We hold that a

counterclaim that was timely filed under section 16.069 may be amended pursuant to section 16.068

provided the facts or grounds of liability asserted in the amendment are based on the same

transaction or occurrence.”).

               Aiken asserts next that due to her alleged bankruptcy fraud, Naylor is judically

estopped from enforcing any rights or obligations under the note, lease, or payments made by him.

Naylor responds that under the circumstances of this case, the doctrine of judicial estoppel is not

applicable. We agree.

               In 2010, Naylor filed a voluntary petition for Chapter 7 bankruptcy. In the various

bankruptcy schedules, Naylor failed to list the note, lease, or payments received from Aiken. On

December 2013, Naylor, “in an abundance of caution,” re-opened her bankruptcy case disclosing

the lease agreement and amending the several schedules. About a month later, in January 2014,

the bankruptcy trustee, doubtless concluding that the value of the claim was de minimis, re-closed

the file.

               Judicial estoppel precludes a party who successfully maintains a position in one

proceeding from afterwards adopting a clearly inconsistent position in another proceeding

to obtain an unfair advantage. Judicial estoppel is not intended to punish inadvertent omissions or



                                                6
inconsistencies but rather to prevent parties from playing fast and loose with the judicial system for

their benefit. Ferguson v. Buildings Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009). At

the time of the filing of the bankruptcy proceeding in 2010, there was no asset to disclose since

the lease agreement had expired by its own terms in 2009. At that time, Naylor had no motive to

conceal the lease agreement because its addition would not have added value to the bankruptcy

estate. Even so, Naylor voluntarily re-opened her bankruptcy case to disclose the lease, and amended

the various schedules reflecting the same. Thus, even assuming the existence of an inconsistent

position, Aiken suffered no disadvantage because of the omission, and because the lease was

worthless, the creditors in the bankruptcy proceeding likewise suffered no disadvantage. Finally,

we think it plain that a landlord asserting her contractual rights in defending a claim of title alleged

by her tenant is not seeking an unfair advantage against the tenant. The doctrine of judicial estoppel

does not apply under these circumstances. See id. at 644.

                Aiken argues finally that Naylor lacks standing to claim breach of the lease agreement

because of her failure to disclose the lease and related matters in her bankruptcy case. The argument

lacks merit. Any doubt concerning Naylor’s standing was resolved after her bankruptcy schedules

were amended in December 2013 and the bankruptcy case was re-closed by the trustee in

January 2014. In March 2014, Naylor re-asserted her breach of lease agreement claim by filing her

amended counterclaim.

                The part of the district court’s judgment providing that Aiken take nothing by his

claims for damages for violation of the Texas Property Code and the Texas Debt Practices Act and




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for money had and received and unjust enrichment is reversed and those causes are remanded to the

district court; in all other respects the judgment is affirmed.



                                               __________________________________________
                                               Bob E. Shannon, Justice

Before Justices Goodwin, Field, and Shannon*

Affirmed in part; Reversed and Remanded in part

Filed: September 23, 2016

* Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).




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