Remember last month’s article? Well, evidently the same Texas appellate court came to an opposite conclusion just a few weeks ago. As Ricky Ricardo would say, "let me ‘splain."
Moody National Kirby Houston S, LLP,
entered into a contract to sell a vacant lot in Houston to Capcor at KirbyMain,
LLC. Seller and Buyer used TREC Form 9-10 “Unimproved Property Contract” for
Capcor deposited $25k with Moody
National Title Company, LP. Note the similarity in names? Both Moody Title
Company and Moody Kirby were owned by Brett Moody.
On the day before closing Moody
Title escrow agent Kay Street told Capcor’s lawyer that Moody Title needed to
receive the purchase funds in the form of a wire transfer. Kay Street told
Capcor’s principal, Josh Aruh, the same requirement when he arrived at the
title agency offices the next morning to sign closing docs.
Capcor’s lender timely wired funds
to Moody Title. Regardless, sometime after 5p.m. on the day of closing Capcor
principal Avi Ron arrived at Moody Title with a cashier’s check.
Kay Street told Ron that she was
leaving for the day and could not accept the check. Ron left it with her
anyway. Capcor’s attorney offered to replace it the next day with a wire
transfer. Moody Kirby however, sent notice that it was terminating the
Capcor refused to sign a Release and
instead sued Moody Kirby and Moody Title. Moody Kirby counterclaimed, demanding
the earnest money and three times the amount of the earnest money, as provided
by Section 18.D. of TREC Form 9-10.
Starting to sound familiar? See last
month’s article if it doesn’t.
The jury found that Capcor had
breached the contract and that Moody Kirby had the right to terminate the deal
since Capcor had not timely performed its obligations. Paying for land with a
check on the day of closing was not allowed when, the jury held, Kay Street had
specifically told Capcor that Moody Title needed to receive all funds by wire.
The jury also found that Moody Title
did not breach any fiduciary duties owing to Capcor. So the trial court entered
judgment against Capcor, awarding Moody Kirby its attorney’s fees, escrowed
funds, and earnest money plus liquidated damages equal to three times the
amount of the earnest money.
The Appellate Court first analyzed
Moody Title’s obligations and whether or not they were properly discharged.
They were. Then, the Court turned its attention to Moody Kirby’s right to
terminate the deal because Capcor attempted to buy the land with a check when a
wire was required and Capcor had been advised of that requirement.
Moody Kirby evidently had the right
Strangely, there is nothing written
about liquidated damages, other than to uphold the jury’s verdict and the trial
court’s judgment. How interesting from the same Court that, barely eight months
ago, invalidated TREC’s concept of “liquidated damages are always equal to
three times the earnest money.”
The trial court’s Judgment was affirmed
for Moody Title and Moody Kirby. See Capcor
at KirbyMain, LLC v. Moody National Kirby Houston S, LLC; No. 01-13-00068-CV,
Texas Court of Appeals – First District, March 13, 2014.
July 2013 the same Appellate Court reached the opposite conclusion regarding
liquidated damages. Could it be that liquidated damages were not contested by
Capcor in this appeal?
the title agent well before closing, so you will know their unique requirements
and be prepared.
counsel my clients to avoid the situation where a party to a contract is also affiliated
with the title agency. Although it appears that Kay Street was impartial in
this case and should be commended for it, I am painfully aware of other
circumstances where those who are connected receive more favorable treatment.
Reprinted with the permission of North Texas Commercial Association of REALTORS®, Inc.