                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-232-CV


LINDON M. STEW ART                                                     APPELLANT

                                            V.

JOSEPH S. LANGDON AND                                                  APPELLEES
KAREN LANGDON

                                        ------------

             FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

      Appellant Lindon M. Stewart appeals from the summary judgment granted in

favor of Appellees Joseph S. Langdon and Karen Langdon. In four issues, Appellant

argues that the trial court erred by granting Appellees’ cross-motion for summary

judgment, by denying his motion for summary judgment, and by not awarding him

attorney’s fees. Because we hold that the trial court did not err by granting summary

judgment for Appellees, we affirm.


      1
           See Tex. R. App. P. 47.4.
                                    Background

      In 1994, Appellees purchased property from their neighbors, Mark and Lillie

Stewart (Appellant’s uncle and aunt) and then sold the property to Laurel McGilvery;

the property’s purchase was partially financed with a vendor’s note retained by

Appellees. The parties also executed an “Option to Purchase Real Estate,” in which

McGilvery granted Appellees “an exclusive right of first refusal and option to

purchase” the property if she wanted to sell it in the future. The instrument stated

that it would expire in October 2005.

      In 2003, McGilvery sold back to Appellees fifty-two acres of the property and

obtained a release of lien on the remaining ninety-one acres that she retained. On

November 30, 2007, McGilvery and Appellees executed another “Option to Purchase

Real Estate” (“ROFR”), replacing the previous, now expired, instrument. The new

instrument applied to the ninety-one acres that McGilvery still owned (“the Property”).

The ROFR again granted Appellees “an exclusive right of first refusal and option to

purchase” and stated that “[t]he purchase price for the . . . [P]roperty shall be on

such terms and conditions as the parties agree.” In the document, McGilvery agreed

“to make available to [Appellees] any contract to purchase the [P]roperty given to

[McGilvery] for the purpose of purchasing the [P]roperty prior to [Appellees]

exercising their option to purchase the [P]roperty.” The ROFR, which contained an

expiration date of November 30, 2022, was recorded in the county property records.




                                           2
      On March 23, 2009, McGilvery executed a contract for sale of the Property

(“sales contract”) to Appellant. The sales contract listed the sale price as $450,000.

Attached to the contract as Exhibit A was a document, drafted by Appellant, that

acknowledged that the Property “[was] subject to an option agreement . . . giving

[Appellees the] option to purchase the Property on the same terms as stated in this

Contract if they exercise their election to purchase within five days in the manner

stated in their Option Agreement.” Exhibit A then stated that if Appellees elected to

exercise their option, Appellant had the right to increase the amount of the offer by

delivering an amended contract to McGilvery. This new amended offer would be

presented to Appellees, and if they still wished to exercise their option, Appellant

would again have the opportunity to increase the amount of his offer until either

Appellees declined to purchase the Property or Appellant declined to increase his

offer. In other words, Exhibit A attempted to set up an auction for the property

between Appellant and Appellees. If Appellees did not exercise the option as to the

amended contract offered by Appellant, then Appellant and McGilvery would proceed

to closing on the amended contract.

      A copy of the sales contract with Appellant’s information redacted was

forwarded to Appellees with notice that they had five days to elect to purchase the

Property on the same terms. Appellees elected to purchase the Property. In doing

so, they advised McGilvery that they did not consider Exhibit A to be binding on them

and that, if she refused to sell the property to them, they would sue her for specific


                                          3
performance. McGilvery sold the Property to Appellees for the same price that had

been offered by Appellant in the sales contract—$450,000.

      After McGilvery sold the Property to Appellees, Appellant sued Appellees,

seeking a judgment ordering Appellees to convey the Property to him or,

alternatively, a judgment for “loss of bargain damages.” He filed a motion for partial

summary judgment, asking the court to compel Appellees to convey the Property to

him under the terms of the sales contract. He asserted that the “purported option

agreement” between Appellees and McGilvery was unenforceable because it

contained neither a definite purchase price nor a method of ascertaining the

purchase price and was only an unenforceable agreement to negotiate.

Alternatively, he argued that Appellees did not properly exercise the option because

they did not comply with Exhibit A and therefore failed to accept all the terms and

conditions of the sales contract. Appellant’s motion also asked for a trial on some

other issues that he later nonsuited. All of Appellant’s claims that survived the

nonsuit were addressed by his motion for summary judgment.

      Appellees filed a cross-motion for summary judgment. They argued that the

evidence established that they had a valid right of first refusal that they had properly

exercised; that Appellant’s contract with McGilvery was subject to the right of first

refusal; that because Appellant was not a party to the agreement between them and

McGilvery, he had no standing to assert it was invalid; that he was not entitled to

equitable relief; and that they had established as a matter of law the affirmative


                                           4
defenses of estoppel and unclean hands. The trial court granted their motion and

denied Appellant’s motion without specifying the grounds it relied on.

                                 Standard of Review

      W e review a summary judgment de novo. 2           W e consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence favorable

to the nonmovant if reasonable jurors could, and disregarding evidence contrary to

the nonmovant unless reasonable jurors could not. 3 W e indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. 4 A defendant who

conclusively negates at least one essential element of a cause of action is entitled

to summary judgment on that claim.5 A defendant is entitled to summary judgment

on an affirmative defense if the defendant conclusively proves all the elements of the

affirmative defense. 6   To accomplish this, the defendant-movant must present

summary judgment evidence that establishes each element of the affirmative

defense as a matter of law. 7

      2
       Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W .3d 844,
848 (Tex. 2009).
      3
           Id.
      4
           20801, Inc. v. Parker, 249 S.W .3d 392, 399 (Tex. 2008).
      5
        IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W .3d
794, 798 (Tex. 2004); see Tex. R. Civ. P. 166a(b), (c).
      6
       Chau v. Riddle, 254 S.W .3d 453, 455 (Tex. 2008); see Tex. R. Civ. P.
166a(b), (c).
      7
           Ryland Group, Inc. v. Hood, 924 S.W .2d 120, 121 (Tex. 1996).

                                          5
      W hen both parties move for summary judgment and the trial court grants one

motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented. 8 The reviewing

court should render the judgment that the trial court should have rendered. 9




      8
           Mann Frankfort, 289 S.W .3d at 848.
      9
           Id.

                                         6
                                     Analysis

      Appellant’s first two issues address whether the trial court erred by granting

Appellees’ motion for summary judgment. In his first issue, Appellant argues that the

trial court erred by granting Appellees’ cross-motion for summary judgment because

the summary judgment evidence did not establish that Appellees had a valid

preemptive right 10 to purchase the Property.

      In the trial court, Appellant argued that McGilvery was required to sell the

Property to him under the sales contract unless Appellees had a valid, enforceable

ROFR and that the instrument purporting to be a ROFR was not an enforceable

contract because it had no price term. On appeal, he likewise argues that only the

existence of a valid preemptive right could excuse McGilvery’s failure to convey the

Property to him and that the ROFR was not an enforceable agreement because it

contained no price term.

      Appellees argued in their summary judgment motion that the ROFR, taken as

a whole, provided that Appellees could exercise their right to purchase the Property

on the terms in the sales contract and that Appellant was estopped from arguing that

the ROFR did not so provide because in the sales contract, he affirmatively stated

that the Property was subject to a ROFR that allowed Appellees to purchase the

Property in accordance with the sales contract’s terms. On appeal, Appellant must

      10
         A right of first refusal is also referred to as a preemptive right or a
preferential right. FWT, Inc. v. Haskin Wallace Mason Prop. Mgmt., L.L.P., 301
S.W .3d 787, 793 (Tex. App.—Fort W orth 2009, pet. denied).

                                         7
argue and show that Appellees failed to establish their entitlement to summary

judgment on these grounds. In response to Appellees’ estoppel claim, Appellant

argues that he is not bound by his assertion on that point in the sales contract.

      “Estoppel by contract,” a form of quasi-estoppel, is simply a provision in the

law that “a party is bound by the terms of his own contract until it is set aside or

annulled for fraud, accident, or mistake.” 11 W ith the application of estoppel by

contract, “a party to a contract will not be permitted to take a position inconsistent

with its provisions, to the prejudice of another.” 12

      Exhibit A to the sales contract stated that “[t]he parties acknowledge that the

Property is subject to an option agreement . . . giving [Appellees the] option to

purchase the Property on the same terms as stated in this Contract if they exercise

their election to purchase within five days in the manner stated in their Option

Agreement.” The exhibit then set up the auction provision relied on by Appellant,

allowing Appellees to make an offer to buy on the same terms as Appellant but

giving Appellant the right to make a counteroffer. Thus, Appellant stated in his sales

contract, in a provision added by him, that the ROFR gave Appellees the option to


      11
         Swanson v. Am. Mfg. Co., 511 S.W .2d 561, 565 (Tex. Civ. App.—Fort
W orth 1974, writ ref’d n.r.e.) (holding, in a suit for wrongful termination, that because
employee signed an employment application providing that he could be dismissed
if he made false statements on the application and that he would hold his employer
blameless if he were dismissed because of that false statement, and because the
employee admitted he had lied on the application, the employee was estopped from
taking the position that his dismissal was actionable).
      12
            Id.

                                            8
purchase the Property on the terms set out in the sales contract. He should not be

allowed to take a different position to the prejudice of Appellees while attempting to

enforce the same sales contract against them. 13

      Appellant states in his brief that “Exhibit A of the Contract . . . mischaracterizes

the ROFR and is simply incorrect. This mistaken description of the option does not

create an option for Appellees to meet the terms and conditions of Appellant’s offer.”

But Appellees did not argue that the sales contract created anything. Instead, they

argued that because in the sales contract, Appellant agreed that the ROFR allowed

them to purchase the Property on the terms offered in the sales contract, he cannot

now argue to their detriment that the ROFR did not contain such a term. W e agree.

Appellant wants to enforce the sales contract, which he contends is a valid and

enforceable agreement, against Appellees.         He argues that Appellees did not

properly exercise the ROFR because they did not comply with Exhibit A of the sales

contract, which attempted to force an auction for the Property. But he wants to avoid

application of another provision of Exhibit A, in which he acknowledged that the

ROFR gave Appellees the right to buy the Property at the terms of the sales

contract. This he cannot do. 14 Appellant makes no argument supported by authority


      13
            See id.
      14
         See id.; see also In re FirstMerit Bank, N.A., 52 S.W .3d 749, 755 (Tex.
2001) (“[A] litigant who sues based on a contract subjects him or herself to the
contract’s terms.”); LDF Const., Inc. v. Bryan, Nos. 10-08-00315-CV,
10-08-00348-CV, 10-08-00407-CV, 2010 WL 1052863, at *6 (Tex. App.—W aco Mar.
10, 2010, no pet.) (“A plaintiff cannot sue for the benefits on the contract, in essence

                                           9
as to why estoppel by contract should not apply, and he makes no argument

supported by legal authority other than the lack of a specified purchase price as to

why the ROFR is not valid and enforceable. 15 W e hold that the trial court did not err

by granting summary judgment on Appellees’ claim that Appellant is estopped from

making such an argument. W e overrule Appellant’s first issue.

      In Appellant’s second issue, he argues that even if the ROFR was valid, the

trial court nevertheless erred by granting summary judgment because Appellees did

not properly exercise the ROFR. Appellees had argued in their summary judgment

motion that they were free to disregard the auction provisions in Exhibit A because

those terms were imposed in order to defeat their ROFR.

      If a seller imposes a term in an offer that is not commercially reasonable, is

imposed in bad faith, or is designed to defeat a preferential right, the holder of the

preferential right may reject that term in exercising the right. 16 But Appellant argues

that this court “should focus on the terms imposed by [McGilvery],” not the

prospective buyer (Appellant). In other words, we should look not to whether he

imposed terms in the offer that were designed to defeat Appellees’ ROFR, but

whether McGilvery was attempting to defeat that right. He then argues that the




sue for breach of cont[r]act, and sue on only part of the contract.”).
      15
            See Tex. R. App. P. 38.1(i).
      16
        FWT, Inc., 301 S.W .3d at 802; see also Tex. State Optical, Inc. v.
Wiggins, 882 S.W .2d 8, 11 (Tex. App.—Houston [1st Dist.] 1994, no writ).

                                            10
terms in Exhibit A secured the best possible price for McGilvery and that there is no

basis for an inference that she imposed the auction terms in bad faith to defeat

Appellees’ rights.

      W hile the case law addressing bad faith terms has so far considered the

actions of the selling property owner, we know of no reason why this law should not

be applied to a prospective buyer. W hichever party is responsible for the term’s

inclusion in the offer, that term is part of the offer that the right holder must accept

unequivocally in order to exercise the right. W e see no reason why the prospective

buyer should be able to impose terms that are specifically designed to defeat a

preferential right when the seller cannot. If the intent of the term’s inclusion is to

defeat the preferential right, the right holder is not bound to accept it.

      W e note that Appellant cites no authority in support of his contention that a

prospective buyer may insert terms in an offer to defeat a preferential right when a

seller may not. And he offers no explanation for his purpose in inserting the auction

provisions other than to avoid the ROFR. Instead of making a definite offer from

which Appellees could base their decision as to whether or not to exercise their

ROFR, Appellant attempted to create a situation in which, if Appellees wanted to

exercise their preemptive right, they would be forced to participate in an auction.

Under Exhibit A, Appellees could decline to buy the Property and allow the sale with

Appellant to go forward at a price of $450,000, but they themselves could not

purchase the Property at that price; instead, they could only agree to participate in


                                          11
an auction for the Property. Appellant could pay $450,000 and buy the Property (if

Appellees declined to buy the Property), but Appellees could not. Under Appellant’s

auction terms, there would never be a definite, final price term for Appellees to

accept or reject because Appellant would always have an opportunity to make a

higher bid. Thus, under Exhibit A, Appellees were not actually allowed to purchase

the Property at the same price for which Appellant could purchase and McGilvery

would sell the Property. W e can think of no other purpose—and Appellant has

argued none—for Appellant to insert this provision other than to give him the

opportunity to avoid the ROFR. Appellees could therefore reject that term and

exercise their right to purchase the Property at the same price at which, under the

sales contract, Appellant could purchase the Property if Appellees declined to

exercise the ROFR—$450,000. W e therefore overrule Appellant’s second issue and

hold that the trial court did not err by granting summary judgment for Appellees.

      In his third issue, Appellant argues that the trial court erred by denying his

motion for summary judgment because the summary judgment evidence established

that he is entitled to recover specific performance of the sales contract by Appellees.

Appellant concedes in his brief that a property owner is excused from consummating

a sale of real property when that property is subject to a prior, valid right of first

refusal. Appellant makes no argument regarding the invalidity of the ROFR other

than the arguments made under his first two issues. Accordingly, we overrule




                                          12
Appellant’s third issue and hold that the trial court did not err by denying his motion

for summary judgment.

      Because we have held that the trial court did not err by granting summary

judgment for Appellees and by denying Appellant’s motion for summary judgment,

we do not reach Appellant’s fourth issue arguing that the trial court erred by not

granting him attorney’s fees. 17

      Having overruled Appellant’s dispositve issues, we affirm the trial court’s

judgment.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: August 26, 2010




      17
            See Tex. R. App. P. 47.1.

                                          13
