

                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                                        Opinion
 
FCLT Loans, L.P. 
Appellant
Vs.                   No.
11-00-00315-CV B Appeal from Dallas County
United Commerce Center,
Inc.
Appellee
 
FCLT
Loans, L.P. (FCLT) sued United Commerce Center, Inc. (United) to recover a
$7,381.79 credit against the price that United agreed to pay for real estate in
Dallas County.  The money was credited
toward the purchase price based on prorated ad valorem taxes based on previous
years taxes.  The credited amount was
more than the taxes, and FCLT sued United for the over credit.  After one day of trial, both parties filed
traditional motions for summary judgment. 
The trial court granted United=s traditional motion for summary judgment and dismissed FCLT=s case against United with prejudice.  The trial court also awarded attorney fees
to United.  We affirm.
In two
issues, FCLT urges that the trial court erred in granting United=s summary judgment because the closing
statements modified the purchase agreement. 
We will apply  the
well-recognized standard of review for a summary judgment.  The movant has the burden of showing that
there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law.  American Tobacco
Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997).  In deciding whether there is a disputed
material fact issue, we take all evidence favorable to the non-movant as true
and indulge every reasonable inference in favor of the non-movant. American
Tobacco Company, Inc. v. Grinnell, supra at 425.  When the movant has shown that he is entitled to summary
judgment, the non-movant must come forward with evidence or law that precludes
the summary judgment.  Star-Telegram, Inc.
d/b/a Fort Worth Star-Telegram v. Doe, 915 S.W.2d 471, 474 (Tex.1995); City of
Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979).




On May 12,
1993, United d/b/a Peter Tsai entered into an agreement to purchase real estate
in Richardson from the Federal Deposit Insurance Corporation (FDIC).  The FDIC acquired the property when it
became a receiver for First City Bancorporation of Texas.  The FDIC later transferred rights of the
receivership, including those arising under contracts such as the agreement, to
FCLT. 
The sales
contract, titled AOffer
to Purchase Real Estate Agreement,@ was signed by United d/b/a Tsai and by Gary Holloway on behalf of the
FDIC.  Paragraph No. 14 of the sales
contract provides:
On transactions with a purchase price
exceeding $5,000.00, all current ad valorem taxes assessed against the Property
shall be prorated between Seller and Buyer as of the Closing Date.
 
Both
parties admit that they agreed to the proration of the ad valorem taxes in the
sales contract.  Both the purchaser=s
closing statement and the seller=s closing statement reflects that
the ad valorem tax proration was $12,010.07. 
 In addition, Paragraph No. 21 of the sales
contract provides:
This Contract shall supercede any
and all prior discussions, communications and agreements between the Seller and
the Buyer, if any, with respect to the purchase of the Property and other
matters contained herein, and this Contract contains the sole and entire
understanding between the parties hereto with respect to the transactions
contemplated herein.  This Contract
shall not be modified or amended except in writing executed by the Buyer and
Seller.
 
FCLT
argues that the following statement contained in both the purchaser=s and
seller=s
closing statements modifies the sales contract and requires the purchaser and
seller to make adjustments if the proration of taxes proves to be inaccurate:
Purchaser
understands that tax and insurance prorations and reserves were based on
figures for the preceeding year or supplied by others or estimates for current
year, and in the event of any change for current year, all necessary
adjustments must be made between Purchaser and Seller direct. 
 




A
closing statement is a release of the title company for distribution of funds;
a closing statement is not an amendment of the contract of sale.  The language in the closing statement is not
intended to benefit the seller or the purchaser.  Rather, the language is to limit the liability of the title
company.  Because they are not
agreements between the parties in this suit, the closing statements cannot be
modifications to the sales contract. 
Moreover, the modification of an existing contract must be based upon
sufficient new consideration.  Fubar,
Inc. v. Turner, 944 S.W.2d 64, 67 (Tex.App. B Texarkana 1997, no writ), citing
to Pittman & Harrison Co. v. Knowlan Machine & Supply Co., 216 S.W. 678
(Tex.Civ.App. - San Antonio 1919, no writ).  
Here, there is no indication of any new consideration between the two
parties in connection with either of the closing statements.
The
summary judgment evidence does not raise a material fact question.  We overrule both of FCLT=s
issues.
The
judgment of the trial court is affirmed.
 
W. G. ARNOT, III
CHIEF JUSTICE
 
February 14,
2002
Publish.  See TEX.R.APP.P. 47.3(b).
Panel consists of:  Arnot, C.J., and
Wright, J., and McCall, J.

