Roberts & Roberts, LLP - Killeen, TX Attorneys - Legal News
Breaking legal news, and summaries of interesting recent cases and statutes from the lawyers of Roberts & Roberts, LLP, a Killeen, Texas law firm focusing on real estate, business, probate and estate planning law.

• Unfinished Divorce Leaves New "Wife" in a World of Hurt
  Bailey-Mason v. Mason. Edward married Rae and subsequently filed for divorce, but the divorce was never finalized. After he separated from Rae, he bought a house. He later "married" Carlyn, with whom he had two children. Eventually Edward deeded the house to the children, and then he died. The probate court determined that Rae was the surviving spouse because she was never formally divorced from Edward. In a separate partition suit, the court ruled that Rae owned 1/2 of the house and each of the children owned 1/4. On appeal, Carlyn seeks reimbursement of $60,000 expended to improve the property. The court holds that she failed to prove that Rae joined in or consented to the improvements, or that the improvements were necessary to preserve the property. Accordingly, Carlyn gets nothing.
• Plaintiff's Proof Insufficient to Set Aside Deed
  Turner v. Hendon. While Turner's elderly mother was hospitalized in 1998 for a broken hip, she signed a deed conveying her property to Hendon. Turner did not learn of the deed until 2004, at which time her mother claimed to have no recollection of signing it. Shortly thereafter, Turner's mother died and Turner sued Hendon to establish that her mother lacked sufficient mental capacity to execute the deed, and was under the undue influence of Turner at the time of the deed's execution. On appeal, the Court holds that the law presumes that the grantor of a deed had sufficient mental capacity at the time of its execution to understand his legal rights, and for that reason the burden rests on the person seeking to set aside the deed to show lack of mental capacity of the grantor at the time the deed was made. All of the evidence at trial concerned the mother's mental state after she was released from the hospital; no evidence was offered relating to her mental capacity at or near the time that she executed the deed. In order to establish undue influence, a party has the burden to show: (1) the existence and exertion of influence; (2) the effective operation of an influence so as to subvert the will or overpower the mind of the grantor at the time of the execution of the deed; and (3) the execution of a deed the maker would not have executed, but for such influence. At best, the evidence at trial supports an inference that Turner had an opportunity to exert influence over the mother, but it does not prove that Turner subverted the mother's will or overpowered her mind. Accordingly, both claims fail.
• A Costly Mistake: Buyer Defrauded Out of Home and Years of Payments
  Casstevens v. Smith. Buyers failed to obtain title insurance upon purchasing their home from Sellers, and Sellers did not disclose that the property was subject to two existing liens. Although Buyers paid Sellers over a period of six years, Sellers failed to discharge the existing liens. The second lien went into foreclosure, and Investor purchased the property subject to the first lien. After Investor was unable to come to agreement with Buyers, Investor paid off the first lien and evicted Buyers. Buyers successfully sued Sellers for fraud, and then sued Investor for various claims, including equitable subrogation, unjust enrichment, and fraud. The Court observes that equitable subrogation applies when one party involuntarily pays a debt primarily owed by another. So, Buyers could have asserted such a claim against the Sellers (who owed the debt secured by the liens) but not against Investor (who was actually a creditor and did not owe any debt paid by Buyers.) Further, Investor purchased the property in the ordinary course of a foreclosure sale, so there was no implied contract between Investor and Buyers that would obligate Investor to reimburse money to Buyers. Consequently, unjust enrichment does not apply. Finally the Court finds that any statements Investor may have made to Buyers regarding a willingness to "work together" with Buyers were too vague to constitute fraud.
• Buyer Snatches Defeat from Jaws of Victory; Might Still Recover Earnest Money
  Digiuseppe v. Lawler. Buyer and Seller entered into an agreement concerning the sale of some land, contingent upon Buyer obtaining acceptable zoning. After a dispute arose between the parties regarding whether the zoning obtained by Buyer was acceptable, Seller attempted to terminate the contract and retain the earnest money. Buyer sued and won an order for specific performance against Seller. The Texas Supreme Court holds that an essential element in obtaining specific performance is that the party seeking such relief must plead and prove he was ready, willing, and able to timely perform his obligations under the contract. In this case, Buyer made the necessary allegations but offered "equivocal and conflicting" proof, and wholly failed to obtain the necessary finding from the jury. As a result, Buyer is not entitled to specific performance. However, the case is returned to the trial court to determine whether Buyer is entitled to a refund of its $200,000 earnest money deposit.
• Nobody Knows What's Going On; Case Sent Back for Trial
  Givens v. Ward. Givens agreed to sell land to Ward. The contract provided that "Seller reserves the following mineral, water, royalty, timber, or other interests," and referenced a copy of an oil, gas, and mineral lease attached to the contract. However, the warranty deed signed at closing contains no reservation of mineral interests. When Givens raised the issue after closing, Ward sued for a declaration that Ward owns the disputed interest. Givens countersued for reformation of the deed due to mistake. The Court observes that generally when a deed is delivered and accepted as performance of a contract to convey, the contract is merged in the deed and thereafter the deed alone determines the rights of the parties. However, the merger doctrine applies to deeds only in the absence of fraud, accident, or mistake. After reviewing the evidence, the Court concludes that neither party has clearly proven whether the deed varies from the parties' original agreement, and if so whether the variance was due to a mistake on the part of the Givenses of which the Wards had (or acquired) knowledge. As a result, the case is returned to the trial court for further proceedings.
• Neighbors Inherit the Wind: Wind Farm Not a Nuisance
  Rankin v. FPL Energy, LLC. Neighbors sued to obtain an injunction against a wind farm operator, alleging that the wind farm was a nuisance. A nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities. Trespass to real property occurs when a person enters another's land without consent. In this case, neither has occurred, and the wind farm is operating lawfully. The Court sympathizes with the the plaintiffs' loss of "unobstructed sunsets, panoramic landscapes, and starlit skies," but reiterates that "the law will not declare a thing a nuisance because it is unsightly or disfigured, because it is not in a proper or suitable condition, or because it is unpleasant to the eye and a violation of the rules of propriety and good taste." 
• No Commission for Broker with Unenforceable Agreement
  Duncan v. F-Star Management, LLC. Broker sued to recover unpaid commissions. The Real Estate Licensing Act requires that a commission agreement provide a description of the real estate that would satisfy the statute of frauds, meaning that it must identify the property with reasonable certainty. In this case, the properties were described as "Build-to-Suit for Thomson Consumer Electronics Facility in Socorro, Texas," and "Operation Campus View, Socorro, Texas," both of which the Court holds to be insufficient. Accordingly, the commission agreement was unenforceable. Further, Duncan's fraud claim fails because a real-estate broker may not allege fraud to recover a commission on an unenforceable agreement, even if he can prove the elements of fraud.
• Borrower Saves Lender Trouble of Foreclosing; Gets Sued Anyway
  Morrison v. Christie. Morrison borrowed money from Christie secured by a lien on prope