LEXSEE 1 S.W.3d 814 at 818
TRITON COMMERCIAL PROPERTIES, LTD., Appellant, v. NORWEST BANK
TEXAS, N.A., AS TRUSTEE OF THE MYRTLE GUNN YORK TRUST, Appellee.
COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS
1 S.W.3d 814;
1999 Tex. App. LEXIS 6510
August 26, 1999, Delivered
August 26, 1999, Filed
Petition for Review Denied December 9, 1999.
On appeal from the 267th District Court of Victoria
REVERSED and REMANDED.
FOR APPELLANT: Robert B. Gilbreath, Robert Edwin
Thackston, Jenkens & Gilchrist, Dallas, TX. Richard D.
FOR APPELLEE: James Stofer, Duane G. Crocker,
Anderson, Smith, Null, Stofer & Mruphree, Victoria, Tx.
Before Chief Justice Seerden and Justices Yanez and
Chavez. Opinion by Chief Justice Seerden.
ROBERT J. SEERDEN
Opinion by Chief Justice Seerden
The primary issue in this case is whether the date for
payment of an extension fee for an option to purchase
real property in a written earnest-money contract may be
further extended by an oral waiver and modification of
that agreement. Triton Commercial Properties, Ltd.
appeals from a summary judgment granted in favor of
Norwest Bank Texas, N.A., declaring that Triton's
contract to purchase property from Norwest terminated
before Triton exercised its option to extend by paying the
extension fee. We reverse and remand.
Norwest had a written contract to sell a tract of land
to Triton. The contract specified a closing date of
January 15, 1998, but provided that Triton could extend
the closing date by paying $ 500 to Norwest on or before
that date, as follows:
If this sales transaction is not closed or
consummated on or before January 15, 1998, this
contract shall terminate and the Earnest Money shall be
to Buyer, unless Buyer exercises
the following option to extend the Contract on or before
January 15, 1998.
Buyer may extend the closing date until February
15, 1998 by Buyer tending Seller a cash consideration of
$ 500.00 on or before January 15, 1998. .
The written contract further provided that "Time is of the
essence in this Agreement."
Norwest brought the present action for declaratory
judgment, claiming that, as Triton did not timely pay the
$ 500 extension fee, the contract terminated on January
15th. Norwest moved for summary judgment on this
ground and attached to its motion the affidavit of David
Hill, its vice-president and trust officer, who stated that
Norwest did not receive the extension payment from
Triton on or before January 15, 1998. An attempted