                                 MEMORANDUM OPINION
                                        No. 04-09-00459-CV

                                         Glenn R. DEXTER,
                                             Appellant

                                                   v.

                        Reisel R. STRICKLAND and Bobbie Sue Strickland,
                                          Appellees

                     From the 81st Judicial District Court, Wilson County, Texas
                                 Trial Court No. 08-07-0443-CVW
                            Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: September 15, 2010

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

           This is an appeal from a take-nothing no-evidence summary judgment rendered in favor

of the appellees on all of appellant’s claims. Because the summary judgment granted more relief

than was requested, we affirm in part and reverse and remand in part.

                                              BACKGROUND

           Appellant, Glenn Dexter, was the owner of a tract of land in Wilson County, Texas. In

2004, the Floresville Independent School District and Wilson County obtained a judgment
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against Dexter for unpaid taxes on the property. The property was later sold at a public auction

to Gus Brieden. Pursuant to his rights under the Texas Tax Code, Dexter expressed his desire to

redeem the property; however, he lacked the funds to pay the redemption amount of $23,375.11

to Brieden. To accomplish the redemption of the property, Dexter entered into an agreement

with the appellees, Reisel and Bobbie Sue Strickland, under which the Stricklands would deliver

the $23,375.11 to Brieden in exchange for Brieden executing a Cash Warranty Deed that

conveyed a life estate to Dexter and the remainder estate to the Stricklands. Under the Cash

Warranty Deed, Dexter had the right to receive the rents, revenues, and profits from the property

for and during his natural life on the condition he pay one-half of all ad valorem taxes during the

term of his life estate.

        Dexter and the Stricklands also executed an Option to Purchase Real Estate that gave

Dexter an option to purchase the property from the Stricklands under the following conditions:

               The Option may be exercised by written notice to [the Stricklands] of the
        Remainder Interests by [Dexter] at any time prior to the end of the [one-year
        option] period and the Payment of the sum of [$23,375.11] prior to the end of the
        option period.
               After receipt of the cash consideration, the [Stricklands] shall deliver a
        Cash Warranty Deed to [Dexter].

        Within the year, Dexter gave the Stricklands written notice of his intent to purchase the

property. In his written notice, Dexter stated

                . . . I have on hand a cashier’s check to Reisel Strickland for the full and
        final payment of [$23,375.11] and a receipt for payment of the current year taxes
        in the amount of [$1,411.57].
                After receipt of the cash consideration, you Reisel Strickland . . . shall
        deliver the cash warranty deed to [Dexter].

        Dexter did not include the cashier’s check with the written notice, and the Stricklands did

not convey the warranty deed to Dexter. About two years later, Dexter filed suit against the

Stricklands for breach of contract and failure to perform under the Cash Warranty Deed and the

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Option to Purchase Real Estate. The Stricklands filed a no-evidence motion for summary

judgment on the grounds that there was no evidence Dexter paid the sum of $23,375.11 to the

Stricklands prior to the end of the option period. The Stricklands argued that Dexter’s partial

performance of the Option to Purchase Real Estate—giving notice he had a check—did not give

rise to any duty on their part to perform their obligation under the agreement. The trial court

granted the Stricklands’ motion and Dexter now appeals.

                              GROUNDS FOR SUMMARY JUDGMENT

       Language in a summary judgment that expressly disposes of all claims and parties is a

final and appealable order “even though the record does not provide an adequate basis for

rendition of judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). “[I]f a

defendant moves for summary judgment on only one of [multiple] claims asserted by the

plaintiff, but the trial court renders judgment that the plaintiff take nothing on all claims asserted,

the judgment is final—erroneous, but final.”        Id.   Here, the Stricklands did not move for

summary judgment on Dexter’s claim that they breached the Cash Warranty Deed by failing to

pay him rents and their share of the taxes. Nevertheless, the trial court rendered a summary

judgment in favor of the Stricklands in which the trial court dismissed Dexter’s “original,

supplemental, and amended petitions” and adjudged that Dexter take nothing on his claims.

Accordingly, the trial court’s judgment was a final judgment encompassing all of Dexter’s

claims; but because Dexter’s claim that the Stricklands breached the Cash Warranty Deed was

not addressed in the Strickland’s motion, summary judgment on that claim was erroneous. Id.

       When a trial court grants more relief than requested and, as a consequence, makes an

otherwise partial summary judgment final, that judgment, although erroneous, is final and

appealable. Lehmann, 39 S.W.3d at 202, 205-06. In that situation, a court of appeals must



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consider all matters raised on appeal and reverse only those portions of the judgment that were

rendered in error. Page v. Geller, 941 S.W.2d 101, 102 (Tex. 1997). Accordingly, we reverse

the trial court’s judgment in favor of the Stricklands on Dexter’s claim that the Stricklands

breached the Cash Warranty Deed and remand that claim to the trial court for further

proceedings. We next consider the merits of the remaining claim.

                         OPTION TO PURCHASE REAL ESTATE

       In response to the Strickland’s no-evidence motion on the Option to Purchase Real

Estate, Dexter filed an affidavit in which he attested to various complaints regarding failure to

pay taxes, failure to pay rents, and damage to the property allegedly caused by the Stricklands.

His affidavit did not address his failure to pay the sum of $23,375.11 to the Stricklands prior to

the end of the option period. Dexter later filed a second response to the motion for summary

judgment; however, at the summary judgment hearing, the Stricklands objected to the response

as untimely. The trial court sustained the objection on the record and stated it would only

consider Dexter’s affidavit as his summary judgment response. On appeal, Dexter does not

challenge this ruling.

       A no-evidence summary judgment motion is properly granted when the non-movant fails

to bring forth more than a scintilla of probative evidence that raises a genuine issue of material

fact. Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App.—San Antonio 1999,

no pet.); TEX. R. CIV. P. 166a(i). More than a scintilla of evidence exists if the evidence would

allow reasonable and fair-minded people to differ in their conclusions. Forbes, Inc. v. Granada

Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence exists if

the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id.

Because Dexter did not present more than a scintilla of evidence as to the elements of his breach



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of the Option to Purchase Real Estate, the trial court did not err in rendering a take-nothing

summary judgment in favor of the Stricklands on this claim.

                                           CONCLUSION

       We reverse the trial court’s summary judgment in favor of the Stricklands on Dexter’s

claim that the Stricklands breached the Cash Warranty Deed and remand that claim to the trial

court for further proceedings. The summary judgment is affirmed in all other respects.



                                                Sandee Bryan Marion, Justice




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