1464-EIGHT, Ltd. v. Joppich

154 S.W.3d 101 (2004)


P entered into an earnest money contract with D under which P agreed to buy, and D agreed to convey, an undeveloped residential lot located in a subdivision being developed by D. The purchase price was $65,000. An addendum attached to the earnest money contract provided: All Lots being sold in Shiloh Lake Estates Subdivision are being sold pursuant to an Option Agreement to be executed by Buyer and Seller at closing that shall survive closing and provide Seller with an option to purchase the Property from the Buyer at a price equal to 90% of the sale price herein if Buyer fails to commence construction of a private residence on the Property within 18 months from the date of closing. D executed a special warranty deed conveying the lot to P. In addition, the parties executed a separate four-page document entitled 'Option Agreement.' The document granted an option to D for $10 which was recited as paid for the repurchase of the land. In October 1999, P filed suit against D, seeking a declaratory judgment that the Option Agreement was unenforceable. P contends that despite the recital, the $10 sum was never paid. D eventually filed a counterclaim seeking specific performance, damages, and attorney's fees. At the closing, P acknowledged the receipt of ten dollars by signing the Option Agreement. She did not mention to anyone before or after signing the agreement that she had not actually received the ten dollars. The trial court denied P's motion for final summary judgment and granted D's motion for partial summary judgment. In the court of appeals, both sides characterized the consideration recited in the Option Agreement as 'nominal.' The court of appeals reversed and remanded, concluding that 'summary judgment for D was improper.' D appealed.