Opinion
No. 06-17-00052-CV
12-01-2017
MARY MCCURRY, Appellant v. DONALD FARMER AND SHERRY FARMER, Appellees
On Appeal from the 62nd District Court Lamar County, Texas
Trial Court No. 83071 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Donald (Don) Farmer and Terry McCurry, who were best friends for many years, married sisters, Sherry and Mary. In 1995, the couples purchased an approximately eighty-acre tract of land, the title of which was placed in the names of Terry and Mary. Within three months, a forty-acre tract (the 40-Acre Tract) was sold to a third party for sufficient funds to fully pay the mortgage on the eighty-acre tract.
Several years after Terry's death, Mary claimed sole ownership of the remaining 40-Acre Tract. Don and Sherry filed a declaratory judgment action alleging an oral agreement between the couples that the 40-Acre Tract would be co-owned by the couples and asking the trial court to determine that the property was owned one-half by Mary and one-half by Don and Sherry. They also asked the trial court to impose a constructive trust on the property. After a bench trial, the trial court granted the relief requested by Don and Sherry.
On appeal, Mary contends that the trial court erred (1) by implicitly finding that the statute of frauds did not bar the enforcement of the oral agreement, (2) by implicitly finding that a partnership existed and that the 40-Acre Tract was partnership property, and (3) by overruling her hearsay objections to the statements made by Terry during his lifetime. We affirm the trial court's judgment because we find (1) that Mary has waived any complaint regarding the statute of frauds, (2) that sufficient evidence supports the trial court's judgment, and (3) that the trial court did not err in overruling Mary's objections.
I. Mary's Statute of Frauds Complaint Was Waived
In her first issue, Mary complains that the trial court erred by implicitly finding that the statute of frauds did not bar the enforcement of the oral agreement regarding the ownership of the 40-Acre Tract. She argues that a contract for the sale of real estate is required to be in writing and signed by the person charged with the agreement, citing Section 26.01, subsections (a) and (b), of the Texas Business and Commerce Code. TEX. BUS. & COM. CODE ANN. § 26.01(a), (b)(4) (West 2015). Nevertheless, the statute of frauds is an affirmative defense that must be specifically pled, or it is waived. First Nat'l Bank in Dallas v. Zimmerman, 442 S.W.2d 674, 676 (Tex. 1969); see Kinnear v. Tex. Comm'n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000) (per curiam); see also TEX. R. CIV. P. 94. Since Mary did not assert the statute of frauds in her pleadings in the trial court, any complaint regarding it has been waived. See Kanan v. Plantation Homeowner's Ass'n Inc., 407 S.W.3d 320, 333 (Tex. App.—Corpus Christi 2013, no pet.) (citing TEX. R. APP. P. 33.1). We overrule Mary's first issue.
II. Sufficient Evidence Supports the Trial Court's Judgment
In her second issue, Mary contends that the trial court erred in making implied findings that the McCurrys and the Farmers were in a partnership and that the 40-Acre Tract was partnership property. Mary argues that there is no evidence that the property was acquired with partnership assets and that, since it was acquired only in the names of Terry and Mary with no indication that they were acquiring it for the partnership, the 40-Acre Tract is presumed to be the property of Terry and Mary. See TEX. BUS. ORG. CODE ANN. § 152.102(c) (West 2012).
In this case, no party requested, and the trial court did not enter, findings of fact and conclusions of law. "When neither party requests findings of fact and conclusions of law, it is implied that the trial court made all fact-findings necessary to support its judgment." Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)). In determining whether there was some evidence to support the trial court's judgment and implied fact-findings, we "consider only that evidence most favorable to the issue and . . . disregard entirely that which is opposed to it or contradictory in its nature." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) (quoting Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 613 (Tex. 1950)); Lack's Stores, Inc. v. Gregg Cty. Appraisal Dist., No. 06-10-00125-CV, 2011 WL 3963013, at *5 (Tex. App.—Texarkana Sept. 9, 2011, no pet.) (mem. op.). We will affirm the judgment if it can be upheld on any legal theory supported by the evidence. Worford, 801 S.W.2d at 109; Lack's Stores, Inc., 2011 WL 3963013, at *5.
The evidence at trial showed that Don and Terry had been best friends for many years and that they had married sisters, Sherry and Mary. The couples bought parcels of land and built their homes next to each other. Over the years, the two couples jointly purchased and shared a Winnebago motor home, a school bus that they converted into a camper, a boat, and a tractor. Don testified that they never evidenced their co-ownership in writing because "when you got a friend, . . . it's supposed to be for life, and you got to trust them." He further indicated that there had never been a problem. Don also testified that, in 1995, Terry found out that an approximately eighty-acre tract next to their land was for sale and that Terry asked him if he wanted to go in on the purchase of it, which Don agreed to do. That night, Don and Terry negotiated the purchase of the tract from the seller for $31,500.00, and Don gave Terry $7,000.00 to $8,000.00 in cash for the down payment.
The deed to the property showed Terry and Mary as the grantees, and they secured a loan for the balance of the purchase price. Within three months, they sold forty acres of the eighty-acre tract to Deward Garrett for sufficient consideration to pay the balance of the loan. Thereafter, the couples used the land for four-wheeler riding and a garden. Don testified that he and Terry paid two people $1,500.00 and $850.00 for clearing part of the land. He also testified that, for most of the time they owned the property, Terry and Mary paid the real estate taxes, and Don and Sherry paid for a dumpster that they shared, so that the cost to each couple was about equal. According to Don, there was no dispute that both couples jointly owned the 40-Acre Tract until 2011, about six years after Terry passed away.
The following witnesses testified that, before Terry passed away, both he and Mary had indicated to them that Don and Sherry were co-owners of the 40-Acre Tract.
Initially, the trial court sustained a hearsay objection to any testimony regarding statements made by Terry. However, it subsequently allowed this testimony, granted Mary a running hearsay objection, and told the parties that it would reserve its ruling on the admissibility of the testimony until after it received briefing on the issue from the parties. In its final order, the trial court ruled that the testimony was admissible as statements against interest and overruled the hearsay objections. As we explain in our discussion of Mary's third issue, see infra Part III, we agree with the trial court.
• Deward Garrett testified that, when he contacted Terry to inquire about purchasing forty acres of the original eighty acres, Terry told him that he did not want to sell the land, but that it was Sherry's idea to sell.
• Brad Drake testified that he approached Terry and Don about digging for sand on the 40-Acre Tract. He said that all discussions occurred with both Terry and Don and that Terry said that we, meaning Terry and Don, would have to go with him.
• B.J. McCoy testified that he was a good friend of Terry's and that he is Don's cousin. He testified that, around 2000 or 2002, he was visiting with Terry and Don and talking about the 40-Acre Tract, when Terry told him that he and Don went in together and bought the property.
• Rick Syring testified that he was driving on the 40-Acre Tract with Terry when Terry told him that he and Don were partners on the property and that they had sold the south side of it to Garrett.
• Laura Brooks testified that she has been friends with Mary since high school. She testified that Mary had told her that she and Terry had purchased the 40-Acre Tract with her sister and brother-in-law. She also heard Terry say the same thing.
• Jeff Ingram testified that he approached Terry about deer hunting on the 40-Acre Tract around 2000 and that Terry told him he could, but that he had to clear it with Don also because Don was part owner of the property.
• Don's brother, Woody Farmer, testified that he owns property contiguous to the 40-Acre Tract. He said that he asked Terry if he could purchase some of the property and that Terry said he would have to talk with Don because Don was a half-owner. He also testified that, on another occasion, he and Terry were building bridges for four-wheelers on the property and that Terry told him they could get wooden pallets from Don's place since Don owned half of it.
• Frank Cooper testified that he had done work clearing trees and underbrush on the 40-Acre Tract, for which Don paid him $1,500.00. He also testified that Terry told him that he and Don bought the property together.
• Robert Taylor, Terry's and Mary's nephew, testified that Terry told him that Don, Sherry, Terry, and Mary had bought the property together.
This evidence shows that Terry and Don agreed to purchase the 40-Acre Tract together, that Don and Sherry paid valuable consideration, that the couples jointly made improvements to the property, that they jointly occupied and shared the costs and benefits of the property, and that both Terry and Mary affirmed the agreement even though record title remained solely in their names. Therefore, we find that this is some evidence supporting the trial court's implied findings that the couples had an oral agreement to purchase and jointly own the property and the trial court's judgment declaring that Mary owns a fifty percent undivided interest and that Don and Sherry own a fifty percent undivided interest in the property. We overrule Mary's second issue.
III. Terry's Statements Were Admissible As Statements Against Interest
In her third issue, Mary complains that the trial court erred in admitting the statements made by Terry to third parties. She argues that those statements were hearsay and that they do not come within the statement-against-interest exception to the hearsay rule. We disagree.
We review a trial court's ruling admitting or excluding evidence under an abuse of discretion standard. Jones v. Quiroga, No. 06-17-00016-CV, 2017 WL 3382452, at *4 (Tex. App.—Texarkana Aug. 3, 2017, no pet. h.) (mem. op.) (citing Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000)). A trial court abuses its discretion if it "acted without reference to any guiding rules or principles." Hydrogeo, LLC v. Quitman Indep. Sch. Dist., 483 S.W.3d 51, 56 (Tex. App.—Texarkana 2016, no pet.) (quoting Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985))). We will uphold the trial court's ruling if there is any legitimate basis for the ruling. Id. (citing Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)).
Generally, a statement not made by a person during the current trial and offered by a party to prove the truth of the matter asserted in the statement is hearsay and is not admissible, unless a statute or rule provides otherwise. TEX. R. EVID. 801(d), 802. Since the statements made by Terry to the various witnesses were offered to prove the truth of the matter asserted in the statements, i.e., that Terry and Don were equal owners of the 40-Acre Tract, the statements were hearsay. Accordingly, they are not admissible unless the statements fall within an exception to the hearsay rule.
Rule 803(24) provides that a statement against interest is not excluded by the hearsay rule. TEX. R. EVID. 803(24). As applicable in this case, a statement against interest is defined as "[a] statement that . . . a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest." TEX. R. EVID. 803(24)(A). In determining whether a statement is against the declarant's interest, we look at the circumstances at the time the statement was made. Conner v. Johnson, No. 2-03-316-CV, 2004 WL 2416425, at *5 (Tex. App.—Fort Worth Oct. 28, 2004, pet. denied) (mem. op.).
In this case, Terry made the statements indicating that Don and Sherry were owners of a one-half interest in the 40-Acre Tract during a time when the record title showed that he and Mary were sole owners of the property. Thus, his statements were contrary to his proprietary and pecuniary interests. We, as well as our sister courts, have previously held that similar statements were admissible as statements against interest. See id., at *5-6 (statement made by decedent that she was giving ten acres to niece at a time when decedent owned the property); Leigh v. Weiner, 679 S.W.2d 46, 49 (Tex. App.—Houston [14th Dist.] 1984, no pet.) (statement made by deceased second wife that she was leaving her estate to her husband's children by his first wife); Peterson v. Martin, 69 S.W.2d 484, 485 (Tex. Civ. App.—Texarkana 1934, writ dism'd) (statement made by decedent that she had consented and joined in oral gift of eighty acres made by her husband to their ward). Therefore, Terry's statements, which tended to confirm the couples' oral agreement, were admissible as statements against interest.
Accordingly, we find that the trial court did not abuse its discretion in admitting testimony regarding Terry's statements. We overrule Mary's third issue.
IV. Conclusion
For the reasons stated above, we affirm the judgment of the trial court.
Ralph K. Burgess
Justice Date Submitted: November 27, 2017
Date Decided: December 1, 2017