                             NUMBER 13-10-207-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

RAJENDRAKUMAR GHANDI,                                                      Appellant,

                                          v.

NAINESH GANDHI AND CHANDAN HOSPITALITY, LLC,                              Appellees.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                        MEMORANDUM OPINION
                Before Justices Benavides, Vela, and Perkes
                   Memorandum Opinion by Justice Vela
      This is an appeal from a partial summary judgment granted in favor of Nainesh

Gandhi and Chandan Hospitality, LLC (―Nainesh‖), appellees, and against appellant,

Rajendrakumar Gandhi (―Rajendrakumar‖) in a suit alleging a cause of action for specific

performance to purchase and sell a hotel in accordance with an executed contract.
Rajendrakumar also pleaded a cause of action for fraud in the alternative. The trial court

severed the summary judgment from Nainesh’s counterclaim for entitlement to the

deposited earnest money and a claim for wrongful filing of a lis pendens, making the

summary judgment final for purposes of appeal. Rajendrakumar raises three issues,

complaining that the trial court erred in granting summary judgment. We reverse and

remand.

                                      l. BACKGROUND

       The petition, filed by Rajendrakumar against Nainesh, urged a cause of action for

the specific performance of a contract to purchase and sell a hotel, or, alternatively, for

fraud. Rajendrakumar owns a hotel in Kingsville, Texas which is immediately adjacent to

the disputed property, the Econo Lodge Hotel (―hotel‖), owned by Nainesh through his

company Chandan Hospitality, LLC. In 2008, Rajendrakumar and Nainesh entered into

negotiations to purchase and sell the hotel. After both parties had agreed to the sales

price of $830,000, Rajendrakumar produced a form contract entitled ―Earnest Money

Contract,‖ which Rajendrakumar’s business partner and wife presented to Nainesh.

Upon Nainesh’s acceptance, both parties executed the contract on May 7, 2008.

Paragraph four of the contract provides that the contract is contingent on financing, which

must be obtained within ninety days from the date of signing. Paragraph ten, on the

other hand, states that the closing shall take place no later than seventy-five days from

the date of signing. We quote the following part of the contract as germane to this

opinion:




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      4. FINANCING: This Contract is contingent on the approval of a
      permanent loan for Buyer by a third party. Purchaser shall have Ninety
      (90) days from the date of this contract in order to obtain financing.

      10. POSSESSION AND CLOSING: The settlement or closing of the sale
      shall be on or before seventy-five days from the date hereof in the offices of
      Stewart Title Company of Corpus Christi, Texas.

      14. DEFAULT: Upon failure of buyer to comply herewith, Seller may
      terminate this Contract and retain the Earnest Money as liquidated
      damages. Upon Seller’s failure to comply herewith, Buyer can enforce
      specific performance or may terminate this Contract, upon which event all
      Earnest Money will be returned to Buyer.

      The contract further specified that $10,000 would be escrowed. Rajendrakumar

subsequently furnished Nainesh with an earnest money check, which was later endorsed

to Kleberg County Title Company, a company different from that specified in paragraph

ten of the earnest money contract. On August 4, 2008, the eighty-ninth day after signing,

Rajendrakumar was ready to close on the sale. Nainesh, citing the seventy-five day

closing provision in paragraph ten of the contract, refused to sell the property. On

September 26, 2008, Rajendrakumar subsequently filed suit seeking specific

performance for the purchase and sale of the hotel and for additional economic and

exemplary damages. Rajendrakumar also pleaded, in the alternative, for a finding of

fraud. Nainesh answered the lawsuit and counterclaimed for the $10,000 deposited as

earnest money and for wrongful filing of a lis pendens.

      On June 3, 2009, Nainesh moved for partial summary judgment. The motion

detailed the facts and mentioned the cause of action pleaded—specific performance of

the earnest money contract for the purchase and sale of the hotel. The motion stated

that Rajendrakumar should take nothing by his lawsuit because he breached the contract


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by failing to close on the sale within seventy-five days as stated in the contract. In

support of the assertion that the seventy-five day provision should govern, Nainesh

alleged that the contract should be interpreted by either: (a) construing the contract

against the plaintiff since he authored the contract and was the one with the most control

over the stipulated verbiage; or alternatively by (b) finding that the contract was not

binding because it either lacked mutual assent or because it lacked the necessary

specificity; or by (c) holding that the express language in the contract should be given

greater credence and overrule any general inferences to the contrary.        The motion

further sought recovery, as a counterclaim, of $10,000 for the earnest money deposit and

requested a cancellation of the lis pendens. Nainesh alleged that because the contract

should be construed against the plaintiff, that the earnest money, in accordance with

paragraph fourteen of the contract, entitled him to terminate the contract and retain the

earnest money. The motion was supported by the affidavit of Nainesh.

      In response, Rajendrakumar argued that the motion was improper because the

defendant failed to conclusively establish, as a matter of law, that he had breached the

contract. Rajendrakumar also urged that the affidavit of Nainesh was improper summary

judgment evidence because it was conclusory. Rajendrakumar further argued that the

motion for summary judgment was improper because it was premature as material facts

remained disputed and such facts should have been resolved prior to any such

determination made on summary judgment.

      Rajendrakumar contends that the determination regarding whether a mutual or

unilateral mistake occurred is a question of fact. He also contends that because there


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was no clause in the contract stating that time was of the essence, the summary judgment

should not stand. Rajendrakumar argues that after the closing date lapsed, he had a

reasonable time to close on the sale and such determination of reasonableness is a

question of fact. The trial court granted Nainesh’s motion for partial summary judgment.

Rajendrakumar subsequently filed this appeal.

                                    II. STANDARD OF REVIEW

       In a summary judgment case, the movant must show that there is no genuine issue

of material fact and that the movant is entitled to judgment as a matter of law. TEX. R.

CIV. P. 166a(c); Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215–216 (Tex.

2003); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Lear

Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). The movant has the burden of

proof. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A

defendant who conclusively negates at least one essential element of the plaintiff’s cause

of action, or who conclusively establishes all of the elements of an affirmative defense, is

entitled to summary judgment. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995);

Klentzman v. Brady, 312 S.W.3d 886, 896–897 (Tex. App.—Houston [1st Dist.] 2009, no

pet.). The burden to raise a fact issue shifts to the non-movant only after the movant has

established that it is entitled to summary judgment as a matter of law. Casso v. Brand,

776 S.W.2d 551, 556 (Tex. 1989).

       We review a traditional motion for summary judgment de novo. Mid-Century Ins.

Co. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007); Valence Oper. Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005); Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.


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1994). We consider the evidence in the light most favorable to the non-movant and

resolve all doubts in the non-movant’s favor. W. Invs., Inc. v. Urena, 162 S.W.3d 547,

550 (Tex. 2005). Issues not expressly presented to the trial court by written motion,

answer or other response shall not be considered on appeal as a ground for reversal.

See TEX. R. CIV. P. 166a(c); City of Houston, 589 S.W.2d at 677.

                                           III. ANALYSIS

       In issue two, Rajendrakumar contends that the trial court erred in granting

summary judgment because a factual issue remained disputed that precluded a

determination made on summary judgment. Rajendrakumar alleged three arguments

that potentially raised a fact issue: (1) whether or not the contract was entered into by

mutual mistake; (2) whether or not there was a unilateral mistake in which Nainesh knew

about and remained silent; and/or (3) whether or not Rajendrakumar performed under the

contract in a ―reasonable‖ time, since the contract did not stipulate that time was of the

essence.

       Rajendrakumar first argues mutual mistake. The law presumes that a written

agreement correctly embodies the parties' intentions, and is an accurate expression of

the agreement the parties reached in prior oral negotiations. See Estes v. Republic Nat'l

Bank of Dallas, 462 S.W.2d 273, 275 (Tex. 1970). A mutual mistake of fact occurs when

both parties to a transaction have a belief that a present fact exists, that actually does not

exist, and that fact is material to the transaction. Valero Energy Corp. v. Teco Pipeline

Co., 2 S.W.3d 576, 588–89 (Tex. App.—Houston [14th Dist.] 1999, no pet). In order to

establish the defense of mutual mistake, the defendant must raise a fact issue showing


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that the contracting parties were acting under the same misunderstanding of the same

material fact. Johnson v. Conner, 260 S.W.3d 575, 581 (Tex. App.—Tyler 2008, no pet.)

(citing N. Natural Gas v. Chisos Joint Venture I, 142 S.W.3d 447, 456 (Tex. App.—El

Paso 2004, no pet.)). Parol evidence is admissible to show that the writing, because of a

mutual mistake, incorrectly reflects the true agreement.       However, the affirmative

defense is unavailable unless the party claiming mistake presents "clear, exact, and

satisfactory evidence." Estes v. Republic Nat'l Bank of Dallas, 462 S.W.2d at 275. The

question of mutual mistake is determined not by self-serving subjective statements of the

parties’ intent, but rather solely by objective circumstances surrounding execution of the

contract. Williams v. Blash, 789 S.W.2d 261, 265 (Tex. 1990). The party asserting a

mistake must prove what the true agreement was, but his case is not made by proof that

there was an agreement which is at variance with the writing. He must go further and

establish the fact that the terms or provisions of the writing, which differ from the true

agreement made, were placed in the instrument by mutual mistake. Estes v. Republic

Nat'l Bank of Dallas, 462 S.W.2d at 275; see also Clemmens v. Kennedy, 68 S.W.2d 32l,

324 (Tex. Civ. App.—Texarkana 1934, writ ref'd).

        As summary judgment evidence, Rajendrakumar filed his own affidavit in which

he averred that he and Nainesh discussed financing for the purchase and discussed that

he would have ninety days to organize financing to purchase and close the deal. They

agreed to use Kleberg County Title Company to escrow the earnest money funds and

handle the closing. Rajendrakumar stated that at that time they again discussed the

closing date that would occur within ninety days. Rajendrakumar also submitted the


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affidavit of Jean Stewart, from the Kleberg County Title Company, as summary judgment

evidence. She averred that on May 29, 2008, Kleberg County Title Company mailed a

commitment for title insurance to Nainesh for his review.            A closing date was

subsequently set by the parties for August 4, 2008 to occur at Kleberg County Title.

Rajendrakumar averred, and it is uncontroverted, that the parties agreed to use Kleberg

County Title Company to escrow the earnest money funds and handle the closing. It is

uncontroverted that they deposited $10,000 with Kleberg County Title. He also stated

that on July 22, 2009, one day past the seventy-five day deadline that Nainesh now

urges, a professional appraiser retained by ValueBank met with Rajendrakumar and

Nainesh to inspect the property. A draft settlement was sent to the parties before the

closing date, but Nainesh did not show up for the closing and did not notify the title

company that he did not intend for the closing to occur on August 4, 2008.

        Francis Stokes, senior vice president for ValueBank Texas, averred in an

affidavit that it was his understanding that Rajendrakumar had ninety days to secure

financing for his purchase. ValueBank Texas approved the financing request and was

ready to fund the transaction.

        Rajendrakumar alleged that the seventy-five day provision expressed in the

contract resulted from either a mutual mistake of fact or from a unilateral mistake of which

Nainesh was aware and purposefully remained silent.            Rajendrakumar claims the

understanding and intent of the parties create a fact issue which was impermissibly

determined on summary judgment. We agree.




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        Nainesh’s    summary      judgment       evidence   controverts   Rajendrakumar’s,

suggesting that he relied on the seventy-five day provision in the contract and was ready

to sell at that time. He averred that he subsequently decided not to sell the hotel. There

is no evidence that Nainesh took any action to see that that the closing occurred within

seventy-five days.

      Although Rajendrakumar was the author of the contract, it is clear from the

summary judgment evidence submitted that both parties, as well as all individuals who

prepared affidavits and were involved in the transaction, mutually believed that the

closing would occur within ninety days, and not seventy-five days as Nainesh now

argues. It would be totally inconsistent for the parties to agree to close at Kleberg

County Title, escrow funds there, and allow an appraiser to look at the property after

seventy-five days had passed, if, indeed, Rajendrakumar had to close the deal within

seventy-five days at a title company in Corpus Christi. It would also make no sense for

Rajendrakumar to have ninety days to obtain financing for the property, yet be required to

close within seventy-five days.

      The summary judgment evidence is clear that both parties acted upon a belief that

closing would occur within ninety days. The evidence submitted by Rajendrakumar is

clear and exact. We hold that the summary judgment evidence creates a fact issue with

respect to mutual mistake. Since there remains a genuine issue as to a material fact, a

determination made on summary judgment was improper. TEX. R. CIV. P. 166a(c). We

sustain issue two and hold that the trial court improperly granted summary judgment.




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         Rajendrakumar alleges in issue three that the notice of lis pendens was not

improper and thus the trial court erred in the cancellation of such notice. A party is

eligible to file a notice of lis pendens when they are a party to an action involving the title

of real property and seeking affirmative relief. TEX. PROP. CODE ANN. § 12.007(a) (West

Supp. 2010). Because the trial court determined that Rajendrakumar take nothing by his

lawsuit, the lis pendens was cancelled. However, because the summary judgment is

reversed and Rajendrakumar is seeking affirmative relief by his pleading for specific

performance, the notice of lis pendens was not improper. We sustain issue three.

                                         IV. CONCLUSION

       We conclude that the trial court erred by granting partial summary judgment.

Having addressed all dispositive issues, the judgment of the trial court is reversed and

remanded.



                                                   ROSE VELA
                                                   Justice

Delivered and filed the
4th day of August, 2011.




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