Opinion
No. 01-02-00429-CV.
Opinion issued October 9, 2003.
Appeal from the 333rd District Court, Harris County, Texas, Trial Court Cause No. 2000-43491.
For Appellant: Mary Farances Masterson, 11811 North Freeway, Suite 500, Houston, TX 77060.
For Appellee: Mary Heafner, 11767 Katy Freeway, Suite 740, Houston, TX 77079.
Panel consists of Chief Justices HEDGES, NUCHIA, and HIGLEY.
MEMORANDUM OPINION
Appellant, Fred Wayne Heafner, appeals a judgment awarding his one-half undivided interest in real property to his co-tenant, appellee Mary Heafner, as damages for her claims against Fred and ordering that Fred take nothing by his counterclaims. We reverse the judgment and remand the cause.
BACKGROUND
On August 28, 1996, Gertrude Heafner died, leaving each of her two children, Fred and Mary, an undivided one-half interest in her estate. The estate included some personal property and a house and lot on Kipling Street (the Kipling property) in Houston. Fred, who had lived with his mother before her death, continued to live in the house. Mary did not live in the house.
In August 2000, Mary sued Fred, alleging that, after their mother's death, Mary and Fred had orally agreed that Mary would be reimbursed, from the proceeds of the sale of the Kipling property, for one-half of the funeral and burial expenses for their mother and for one-half of the expenses Mary had incurred in connection with probating their mother's will. Mary further alleged that they agreed that Fred could occupy the Kipling property until January 5, 1997 and that he would be responsible for maintaining and paying taxes on the property. Mary alleged that, after January 5, 1997, Fred refused to cooperate with her, refused to allow her to have personal property belonging to her that had been left in the house, and refused to allow her to have her portion of the personal property that she had inherited from their mother. Mary also alleged that Fred disposed of and destroyed personal property that belonged to her and that she had inherited. Mary alleged that, when she went to the property by invitation or court order, Fred would call the police and file charges against her for theft and trespass. Mary asserted causes of action for conversion of personal property, abuse of process and malicious prosecution, partition and reimbursement, and breach of oral agreements. She asked that she be compensated out of Fred's interest in the property for the value of the converted property, the funeral expenses paid by her, taxes paid on the property (including penalty and interest), and her costs to maintain the property.
In an amended petition, Mary abandoned her causes of action for abuse of process, malicious prosecution, and partition. She asserted that the conversion constituted fraud and added a cause of action for intentional infliction of emotional distress. She requested that Fred's one-half interest in the Kipling property be awarded to her as a credit against any sums awarded to her and that a deficiency judgment against Fred be awarded for any amounts recovered by her over the value of Fred's one-half interest in the Kipling property. She also asked to be awarded one-half the fair rental value for the Kipling property from January 1, 1997 through the date that Fred vacated the premises, as well as costs and attorney's fees. Mary also asserted causes of action against Kate Miller, a prospective purchaser of the Kipling property. Mary nonsuited Miller on February 22, 2002, but no order of nonsuit or dismissal was ever signed by the trial court.
On June 4, 2001, Mary served interrogatories, request for production, and request for admissions on Fred by certified mail, return receipt requested. The certified mail was returned unclaimed to Mary's attorney, with notice of three attempts to deliver. On June 28, Fred telephoned Mary's attorney's office and requested that a copy of the discovery be faxed to him. Although the discovery was faxed that same day, Fred did not respond timely to these discovery requests.
The certificate of service states that this discovery was sent to Fred on June 1, 2002; however, the postal service date stamp on the certified mail receipt is dated June 4, 2001.
On July 13, 2001, Mary filed a motion for partial summary judgment on all of her causes of action asserted in her amended petition (which was not filed until more that two weeks after the motion for partial summary judgment). As summary judgment proof to support her motion, Mary relied on the deemed admissions.
Sometime before September 7, 2001, Fred retained counsel, who, on September 7, filed a response to the motion for partial summary judgment, a counter-petition, a response to the request for admissions, and a motion to strike deemed admissions. After a hearing, the trial court, by written order, denied the motion to strike deemed admissions. The trial court granted Mary's motion for partial summary judgment and, on September 27, signed a "First Amended Judgment Granting Partial Summary Judgment Against Defendant Fred Wayne Heafner."
We find no original summary judgment in the record.
Fred's counterpetition asserted breach of contract, breach of warranty, and fraudulent misrepresentation and sought partition by sale of the Kipling property. On November 9, Fred filed an amended counterclaim which abandoned his claims except for partition, and, on November 16, he filed an amended answer asserting a homestead defense. On March 14, 2002, Mary filed her fourth motion for summary judgment, a no-evidence motion to defeat Fred's counterclaims. Fred did not file a response to this motion. On April 5, the trial court granted the motion in a written order providing that Fred take nothing in the lawsuit and ordering him to vacate the premises of the Kipling property by 5:00 p.m. on May 6, 2002. On April 23, the trial court signed a "First Amended Final Judgment" that included the language of the April 5, 2002 order and the September 27, 2001 interlocutory summary judgment order, a finding that Mary had nonsuited defendant Miller, and some additional language, such as providing the basis for calculating the amount of rent to be recovered by Mary. Fred filed a notice of appeal and a motion for new trial. At the hearing on the motion for new trial, Fred made objections to several of the deemed admissions, arguing that the statements were conclusory and were not proper subjects for admissions. The trial court sustained the objections to admissions 9, 36, and 41. The trial court then overruled the motion for new trial by written order.
Fred's suit for partition also included a request for an independent appraisal and appointment of a receiver, and a claim for contribution and waste.
DISCUSSION I. Mary's Motion to Dismiss
Mary has filed a motion to dismiss this appeal and has repeated the same motion in her brief. She argues that this court is without jurisdiction because Fred did not file his notice of appeal within 30 days of the date on which the judgment became final and appealable. Mary contends that the sequence of events is as follows:
9/27/01 First amended judgment granting partial summary judgment, but including Mother Hubbard clause, leaving the claim against Miller and Fred's counterclaims against Mary;
11/9/01 Fred's first amended counterclaim abandoning all counterclaims except for partition;
2/22/02 Nonsuit of Miller, which made the 9/27/01 judgment final and appealable;
4/23/02 Notice of appeal filed, 60 days after the judgment became final.
Mary argues that the 9/27/01 judgment became final when she nonsuited Miller on February 22, 2002 and, therefore, the April 23, 2002 notice of appeal was untimely.
"Appellate timetables do not run from the date a nonsuit is filed, but from the date the trial court signs an order of dismissal." In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997). The trial court did not sign an order dismissing Miller, but on April 5, 2002, the court signed an order granting Mary's fourth motion for summary judgment. That order incorporated the September 27, 2001 judgment by reference, disposed of all remaining issues, and included a Mother Hubbard clause, but did not make any reference to the nonsuit of Miller. On April 23, the trial court signed an amended final judgment that disposed of all claims and parties. Thus, the notice of appeal, also filed on April 23, was timely filed.
We deny Mary's motion to dismiss this appeal.
II. Fred's Issues A. Ruling on Motion to Strike Deemed Admissions
In his first issue, Fred contends that the trial court abused its discretion in overruling his motion to strike deemed admissions. Fred argues that he has shown good cause to strike the deemed admissions by his affidavit, in which he testified that he did not receive the discovery requests by certified mail and did not receive any notices from the U.S. Postal Service. However, Fred does not dispute that he received the request for admissions by fax on June 28, 2001. He asserts that the fact that he called the attorney's office to request a copy of the request for admissions established that he did not intentionally disregard the discovery requests or act with conscious indifference. He contends that the reason that he did not file responses to the request for admissions after having received them by fax was that he was informed by someone in the attorney's office that it was too late to respond.
A trial court has broad discretion to permit or to deny the withdrawal of deemed admissions. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996). A party attempting to withdraw deemed admissions has the burden to meet three requirements: (1) the party must show that there is good cause for the withdrawal, (2) the court must find that the parties relying upon the deemed admissions will not be unduly prejudiced, and (3) the court must find that the presentation of the merits of the action will be subserved by the withdrawal. Morgan v. Timmers Chevrolet, Inc., 1 S.W.3d 803, 806-07 ((Tex.App.-Houston [1st Dist.] 1999, pet. denied).
In this case, the record shows that Fred did not accept certified mail on a number of occasions. In addition, after having received the request for admissions by fax, he did not attempt to respond to the request until some time after having retained an attorney. In addition, there is no evidence to show that Mary would not be unduly prejudiced by the withdrawal of the admissions or that the presentation of the merits would be subserved by their withdrawal. We hold that the trial court did not abuse its discretion in denying the motion to withdraw deemed admissions.
Accordingly, we overrule Fred's first issue.
B. Divestiture and Setoff
In his second issue, Fred contends that the trial court erred in divesting him of his interest in the Kipling property. In his eleventh issue, Fred contends that the trial court erred in offsetting any money damages awarded to Mary against Fred's interest in or share of the proceeds from the sale of the Kipling property. Fred first complains that, although the divestiture was made pursuant to chapter 29 of the Property Code, Mary did not show that the requirements of chapter 29 were fulfilled.
The judgment recited that the divestiture was made pursuant to "Chapter 29, et. seq. of the Actions and Remedies Code." Texas does not have an "Actions and Remedies Code," and the Texas Civil Practices and Remedies Code does not have a chapter 29. On August 6, 2002, Mary filed with the trial court (which no longer had jurisdiction over this case) notices of correction to plaintiff's first amended original petition and plaintiff's first motion for partial summary judgment, changing the references to chapter 29 of the Actions and Remedies Code to references to chapter 29 of the Texas Real [ sic] Property Code. For purposes of this appeal, we will deem the divestiture to have been made under the Texas Property Code.
Chapter 29 of the Texas Property Code provides in pertinent part as follows:
§ 29.001. Application of Chapter
This chapter applies only to real property that is not exempt from forced sale under the constitution or laws of this state and is:
(1) received by a person as a result of the death of another person:
(A) by inheritance;
(B) under a will;
. . . .
§ 29.002. Petition for Forced Sale
(a) A person . . . that owns an undivided interest in real property to which this chapter applies may file in the district court in a county in which the property is located a petition for a court order to require another owner of an undivided interest in that property to sell the other owner's interest in the property to the person if:
(1) the person has paid the other owner's share of ad valorem taxes imposed on the property for any three years in a five-year period . . . ; and
(2) the other owner has not reimbursed the person for more than half of the total amount paid by the person for the taxes on the owner's behalf.
(b) The petition must contain:
(1) a description of the property;
(2) the name of each known owner of the property;
(3) the interest held by each known owner of the property;
(4) the total amount paid by the petitioner for the defendant's share of ad valorem taxes imposed on the property; and
(5) if applicable, the amount paid by the defendant to the petitioner to reimburse the petitioner for paying the defendant's share of ad valorem taxes imposed on the property.
Tex. Prop. Code Ann. §§ 29.001, 29.002 (Vernon Supp. 2003).
That Fred and Mary received the Kipling property by inheriting it under their mother's will was not contested. Therefore, to prevail on her request that the trial court divest Fred of his share of the property and to "sell" it to Mary, Mary had to establish by clear and convincing evidence that she had paid Fred's share of the ad valorem taxes for any three years in a five-year period, that Fred had not reimbursed her for more than half of the total amount she had paid on his behalf, and that, before filing her petition, she had demanded payment for the amount of his share that she had paid.
Mary did not meet any of these three requirements. In her original petition, she alleged that she "had to pay for one half of the taxes, penalty and interest that the Defendant HEAFNER had agreed that he was to be financially responsible for. The Defendant HEAFNER has still not paid any portion of the taxes, penalty, or interest and the same remains outstanding. . . ." The pleading does not clarify whether she had paid Fred's half or only her own half, which she alleged that he had agreed to pay. The pleading does not specify the number of years that taxes were paid, the total amount paid, whether Fred made any reimbursement, or whether she had made a demand before filing her petition. Mary's first amended original petition alleged, "The only taxes paid on this real property were paid by the Plaintiff." She requested that the court "sell" to her Fred's undivided one-half interest in the property, give the remaining value in the property as a credit against any other sums to be awarded her by the court, and award her a deficiency judgment for any sums not covered by the value of the property. Again, she did not fulfill the pleading requirements of section 29.002, nor did she put on any evidence that met the three requirements. Accordingly, an award pursuant to chapter 29 was improper.
Mary relies on the deemed admissions to support the judgment. However, the deemed admissions do not show that she paid Fred's share of the taxes. Rather, they show that, at the time Mary filed her summary judgment motion, Fred's taxes were still owed to the county and school district. The deemed admission on which Mary specifically relied to show that she had paid 100% of the taxes states, "That your sister MARY FRANCES HEAFNER had paid 100% of all of the real property taxes for her undivided one-half interest in the real property. . . ." (Emphasis added.) This was not an admission that Mary had paid Fred's share of the taxes.
Fred further complains that the judgment, in addition to awarding Mary reimbursement for taxes paid, improperly offset the remainder of his one-half interest against an award to Mary for "damages based on the actions [of Fred] in an amount that exceeds the value of [Fred's] interest in the `Kipling property.'" The judgment divested Fred of his interest in the property and ordered that it be conveyed in fee simple to Mary "in partial satisfaction for the damages caused by" Fred. Fred argues that the judgment was a self-executing judgment for which there was no basis in the rules or statutes. We agree.
Even if Mary had complied with chapter 29 by properly petitioning for a forced sale and had proved her allegations by clear and convincing evidence, the court-ordered sale would be governed by the procedures set out in section 29.004. There is no provision in section 29.004 for awarding additional damages as a way of further reducing a co-tenant's interest in the property at issue.
Generally, the rules for enforcing judgments are found in rules 621 through 656 or the Texas Rules of Civil Procedure. See Tex.R.Civ.P. 621-656.
We hold that the trial court erred in divesting Fred of his interest in the Kipling property. We further hold that the trial court erred in setting off the money judgment awarded to Mary against Fred's interest in the Kipling property.
Under this issue, Fred also argues that Mary did not request a partition of the property in her amended petition or in her motion for summary judgment and, therefore, the trial court was without authority to partition the property. The trial court did not partition the Kipling property. A partition is governed by chapter 23 of the Property Code. See Tex. Prop. Code Ann. §§ 23.001-.006 (Vernon 2000 Supp. 2003). The court, in effect, ordered a forced sale under chapter 29 of the Property Code. Tex. Prop. Code Ann. §§ 29.001-.004 (Vernon 2000 Supp. 2003).
We sustain Fred's second and eleventh issues.
C. Sufficiency of the Evidence
As a plaintiff moving for summary judgment, Mary was required to establish that there was no genuine issue as to any material fact and that she was entitled to judgment as a matter of law. See Tex.R.Civ.P. 166a(c). Mary relies primarily on the deemed admissions as evidence to support her recovery on her tort and contract claims. Fred challenges the legal sufficiency of that evidence in issues three through seven.
1. Intentional Infliction of Emotional Distress
In his third issue, Fred contends that the evidence does not establish as a matter of law a claim for intentional infliction of emotional distress. To prevail on a claim for intentional infliction of emotional distress, a claimant must show that (1) a person acted intentionally or recklessly, (2) the conduct was extreme and outrageous, (3) the actions caused emotional distress, and (4) the emotional distress suffered was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Conduct should be found to be extreme and outrageous only if it was so outrageous in character and so extreme in degree that it goes beyond all possible bounds of decency and is atrocious and completely intolerable in a civilized community. Id.
The evidence of intentional infliction of emotional distress offered by Mary was deemed admission 41, which admitted,
That you have done everything in your power to purposely, maliciously and intentionally cause emotional distress to your sister MARY FRANCES HEAFNER from 8-28-1996 through the present, which has cause[d] great harm and grief to your sister, for which you are responsible for damages to be paid to your sister MARY FRANCES HEAFNER.
This admission does not establish, as a matter of law, that Fred's conduct was extreme and outrageous or that the conduct caused Mary to suffer severe emotional distress. Furthermore, the trial court sustained Fred's objection to request for admission 41.
Mary also relied on deemed admissions 33, 34, and 37 as evidence of intentional infliction of emotional distress. In these admissions, Fred admits that he had done everything in his power to avoid service in two lawsuits; that he refused to follow orders of the probate court or to cooperate in the inventory and preservation of the estate property; and that he intentionally committed fraud with malice against Mary. These admissions do not establish as a matter of law that Mary suffered severe emotional distress.
We sustain Fred's third issue.
2. Conversion
In his fourth issue, Fred contends that the evidence does not establish as a matter of law Mary's claim for conversion of personal property. To prevail on a claim for conversion, Mary had to show that (1) she owned, had legal possession of, or was entitled to possession of the property; (2) Fred assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with Mary's rights; and (3) Fred refused Mary's demand for the return of the property, unless Fred's acts manifested a clear repudiation of Mary's rights. See Schwartz v. Pinnacle Communications, 944 S.W.2d 427, 432 (Tex.App.-Houston [14th Dist.] 1997, no writ).
Mary relied on deemed admissions 28 and 32 to establish her claim for conversion. These admissions stated,
28. That you removed and converted to your own use personal property that belonged to MARY FRANCES HEARNER that was stored at her mother's house which had a value of $3,000.00.
. . . .
32. That $14,000.00 should be deducted from your share of the value of the property at 1621 Kipling and paid to your sister MARY HEAFNER for the value of her ½ interest in the personal property in her mother's estate that you secreted and destroyed which should and would have gone to MARY HEAFNER.
In admission 28, Fred admitted that he converted property with a value of $3,000 belonging to Mary. In admission 32, he admitted that he "secreted and destroyed" personal property in their mother's estate and that $14,000 should be deducted from his interest in the Kipling property as Mary's share of the destroyed property. Secreting and destroying the property manifested a clear repudiation of Mary's rights.
We overrule Fred's fourth issue.
3. Breach of Oral Agreement
Mary alleged that she and Fred had an oral agreement that Fred would reimburse Mary for taxes on the Kipling property and pay one-half of (1) their mother's burial and funeral expenses, including a monument for their mother's grave and the attorney's fees for probating their mother's will, and (2) new locks for the house on the Kipling property. In his fifth issue, Fred contends that the summary judgment evidence did not establish as a matter of law that Fred had breached any oral agreement.
a. Reimbursement for Taxes
Mary relied on deemed admissions 3, 16, and 20 to show that Fred agreed to reimburse her for taxes she paid. In admissions 3 and 16, Fred admitted that he never paid any taxes on the Kipling property. In admission 20, Fred admitted
That the amount of $10,359.61 should be deducted from your share of the value of the property known as 1621 Kipling for real property taxes, penalty and interest, accumulated and not paid on your undivided one-half interest in the property.
Contrary to Mary's claim, in none of these deemed admissions did Fred admit that he had agreed to reimburse Mary for taxes on the Kipling property.
b. Funeral-Related Expenses
Mary relied on deemed admissions 21 through 27, 38, and 39 as evidence of an agreement that Fred would pay one-half of the expenses related to the funeral and burial of their mother. Those admissions stated that Fred had paid nothing for the funeral expenses, which totaled $9,858.32 and was paid by Mary, and that the following sums, being one-half of the cost, were to come out of his share of the value of the Kipling property: $4,929.16 for the funeral, $1,925 for the funeral [ sic] plot, $350 for the flowers, $375 for opening and closing the grave, $69.48 for the funeral reception, $250 for the funeral gown, and $176 for attorney's fees to probate the will. In addition, in admission 39, Fred admitted that he was responsible for payment to Mary of 10% prejudgment interest on the total amount of $27,144.74, which included the breach-of-contract damages and the conversion damages.
Mary also contended that Fred had agreed to contribute toward their mother's grave marker in deemed admissions 43 and 44. In admission 43, Fred admitted that a reasonable contribution from him toward a monument for the grave would be $4,000, and, in admission 44, he admitted that $8,000 was a reasonable sum to pay for the monument.
Fred did not admit, in any of these admissions, that he had agreed to pay one-half of the expenses related to the funeral and burial. In deemed admissions 22 through 27, he admitted only that certain sums "should be deducted" from his one-half interest in the Kipling property. These admissions do not imply, as argued by Mary, that there was an agreement that Fred would pay the sums. Likewise, in deemed admission 43, by admitting that $4,000 was a reasonable contribution, Fred did not admit an agreement to pay.
c. New Locks
New locks for the house on the Kipling property were addressed only indirectly in deemed admission 39, in which one-half of the cost of new locks, $70.09, was a part of the total amount on which prejudgment interest was calculated. Mary has not shown an oral agreement to pay one-half of the cost of new locks.
We sustain Fred's fifth issue.
4. Attorney's Fees
In his sixth issue, Fred contends that the summary judgment evidence did not establish as a matter of law Mary's claim for attorney's fees. Fred argues that Mary did not established as a matter of law the elements necessary to prevail on a claim for recovery of attorney's fees: (1) a cause of action for which attorney's fees are recoverable, (2) representation by an attorney, (3) presentment of claims, and (4) non-payment for the just amount owed. See Tex. Civ. Prac. Rem. Code Ann. §§ 38.001, 38.002 (Vernon 1997).
Mary asserts that the attorney's fees were awarded under an exception to the general rule stated by Fred — attorney's fees incurred in the first suit (here, the probate of the will) are recoverable as actual damages in the second suit, citing Turner v. Turner, 385 S.W.2d 230, 234 (Tex. 1964). However, the judgment does not award attorney's fees incurred in a previous suit as damages. Rather, it awards an unspecified amount pursuant to an alleged oral agreement (resolved under Fred's fifth issue) and $25,000 in contingent, appellate attorney's fees.
Fred did not object in the trial court to the award of attorney's fees. Therefore, he has not preserved this complaint. See Tex.R.App.P. 33.1(a).
We overrule Fred's sixth issue.
5. Fraud
In his seventh issue, Fred contends that the summary judgment evidence did not establish as a matter of law a claim for fraud.
To prevail on a claim for fraud, Mary must show that (1) Fred made a material representation of fact, (2) the representation was false, (3) he knew that it was false when made or he made it recklessly without any knowledge of the truth, (4) he made it with the intent that it be acted upon by Mary, (5) Mary acted in reliance upon it, and (6) Mary suffered injury as a result. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992).
Deemed admission 36 stated,
That if the value of your one-half interest in the real property at 1621 Kipling is not enough to reimburse your sister MARY HEAFNER for everything that you owe her and all damages caused to her by your actions that you agree that this court shall issue a deficiency judgment against you for fraud.
Deemed admission 37 stated,
That you intentionally committed fraud against your sister and did it with malice.
Even if we assume that admission 37 proved the first four elements of Mary's cause of action for fraud, it did not establish that Mary relied on any misrepresentation by Fred or that Mary suffered any damages because of Fred's misrepresentation. Because the evidence did not support a recovery for fraud, there was no basis for a deficiency judgment as stated in admission 36.
We sustain Fred's seventh issue.
D. Specificity of Damages and Double Recovery
In his eighth issue, Fred contends that the trial court erred in not identifying the amount of damages awarded on each of Mary's claims. In his ninth issue, Fred complains that the trial court awarded double recovery on Mary's claims. Fred did not object in the court below to the judgment on these grounds. Therefore, these issues are not preserved for review. See Tex.R.App.P. 33.1(a).
We overrule Fred's eighth and ninth issues.
H. Fred's Counterclaims
In his tenth issue, Fred contends that the trial court erred in dismissing his claim for partition and his homestead "claim" on his share of the sales proceeds from the sale of the Kipling property.
Fred's homestead claim was an affirmative defense, not a counterclaim. When one co-tenant asserts a homestead claim on his undivided interest in real property, his homestead rights are subordinate to all the rights and remedies another co-tenant would have in the absence of the homestead claim. Sayers v. Pyland, 161 S.W.2d 769, 773 (Tex. 1942); see also Laster v. First Huntsville Prop. Co., 826 S.W.2d 125, 131 (Tex. 1991) (concluding that, after court-ordered right of ex-wife to use and occupancy of home ended, ex-wife's homestead rights in 73% undivided interest in home did not prevent forced sale and partition of proceeds). Fred implicitly recognized this principle in his amended counterclaim because he asked for partition by sale. Upon partition by sale of the property, Fred's undivided interest would have received the protection of his homestead rights, provided that he had proved his homestead claim. However, Fred did not complain, in his motion for new trial or his objection to the final judgment, that the trial court did not partition the property. Therefore, he has not preserved this issue for review. See Tex.R.App.P. 33.1(a).
We overrule Fred's tenth issue.
CONCLUSION
Having sustained Fred's issues two and eleven challenging the divestiture of his interest in the property and the offset of damages against his interest, and issues three, five, and seven challenging the sufficiency of the evidence to support awards for intentional infliction of emotional distress, breach of oral agreements, and fraud, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.