Opinion
No. 05-03-01045-CV
Opinion Filed October 28, 2004.
On Appeal from the 162nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 98-05897-I.
Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
In this lawsuit involving a residential lease-purchase agreement, James M. and Patricia A. Murphy appeal the trial court's judgment in favor of appellees Michael F. McDaniel and Frank and Barbara Tanzy. In thirty-six issues, the Murphys complain about jury findings against them on liability and attorney's fee questions, charge error, the trial court's award of damages on McDaniel's counterclaim, and the trial court's failure to file findings of fact on "court-decided" issues. Because the facts of this case and its procedural history are well-known to the parties, we do not recite them in detail. All dispositive issues being clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm the trial court's judgment. The Murphys began leasing a house from McDaniel in December 1982 and were to purchase it outright in sixteen months. The parties signed a lease-purchase agreement that provided that 75 percent of the Murphys' rent payments was to be applied to reduce the $240,000 purchase price. Frank and Barbara Tanzy represented McDaniel's interests.
At the end of the sixteen months, the Murphys could not close the sale and instead executed an addendum that (1) extended the closing date for another thirteen months, (2) increased the rent to $1300 monthly, and (3) required them to pay additional earnest money. The addendum also specifically discontinued the 75 percent rent credit.
Again, the Murphys could not close the sale and obtained another extension. Over the next twelve years, this same pattern continued: the Murphys could not close the sale and were given extensions by McDaniel. But in 1998, McDaniel did not extend the lease, which then expired on February 28. Three months later, the Murphys, who continued to live in the house, wrote McDaniel seeking a conference to discuss his "intentions" with respect to "our contractual agreements." McDaniel, through Tanzy, responded in writing two weeks later, reiterating that the lease-purchase agreement had expired and offering to sell the house for $240,000 cash in "as is" condition. McDaniel also informed the Murphys if they had not purchased the property by month's end, they needed to vacate by the end of the following month.
The Murphys responded with a letter acknowledging that the lease-purchase agreement had expired but demanding specific performance of the agreement with respect to the sale of the house and in particular the 75 percent credit rent provision. According to the Murphys, they were entitled to 75 percent credit for the entire sixteen years, which amounted to $175,024.94, and consequently offered to buy the house for $65,975.06. McDaniel rejected the offer, and the Murphys subsequently sued McDaniel for breach of contract and fraud and obtained a temporary injunction enjoining McDaniel from disposing of the property or attempting to dispossess them from the property during the pendency of the suit. McDaniel counterclaimed for unpaid rent, among other things.
The Court has seen two appeals involving this case during its pendency: one addressing the dissolution of the temporary injunction and a second challenging the trial court's summary judgment on the Murphys' claims in McDaniel's favor. See Murphy v. McDaniel, No. 05-99-01882-CV (Tex.App.-Dallas June 21, 2000, no pet.) (not designation for publication) (temporary injunction); Murphy v. McDaniel, No. 05-01-00516-CV (Tex.App.-Dallas May 14, 2002, pet. denied) (not designated for publication) (summary judgment). In the second appeal, this Court affirmed the summary judgment on the Murphys' breach of contract claims, concluding that the parties' agreement included the addendum, which discontinued the 75% rent credit. See Murphy, No. 05-01-00516-CV, slip op. at 5-7. In other words, the Murphys were not entitled to the rent credit after the addendum was signed, which was in March 1984. The Court, however, remanded the Murphys' fraud claims against McDaniel. Id. at 7. After the case returned to the trial court, the Murphys amended their petition to include the Tanzys as defendants and added additional breach of contract claims against McDaniel.
The jury heard evidence for two days. At the conclusion of the trial, the jury answered "no" to questions as to whether (1) the Murphys mistakenly believed that "75% of all rent payments made hereunder shall apply to reduce the purchase price stated herein;" (2) McDaniel or the Tanzys committed fraud against the Murphys, and (3) McDaniel and the Tanzys were part of a conspiracy that damaged the Murphys. In addition, the jury found that the Murphys' reasonable and necessary attorney's fees were zero while McDaniel's were $33,468.77.
The trial court rendered judgment in accordance with the jury's verdict and also awarded $31,200 in damages (for back rent) to McDaniel and dissolved the injunction. The Murphys challenged the judgment in several post-trial motions, none of which the trial court granted. This appeal ensued.
Before turning to the merits of the Murphys' complaints, we first address the briefing in this case. In the "Issues Presented" portion of the brief, the Murphys list thirty-six issues. In the body of the brief, however, the Murphys never identify by number which issue they are addressing. At times, it was a challenge for this Court to ascertain exactly which issue was being addressed. Some issues are simply never mentioned other than in the list of issues. Accordingly, we have made a concerted effort to address all issues raised by the arguments presented in the brief. See Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 841 n. 1 (Tex.App.-Fort Worth 2003, pet. denied). We begin with the Murphys' issues that would require rendition of judgment, if sustained.
In their thirtieth issue, the Murphys complain the trial court erred in not granting their motion for judgment notwithstanding the verdict on their breach of contract, fraud, and conspiracy claims. In particular, they argue that, contrary to the jury's answers, they conclusively proved (1) they had a mistaken belief that 75% of all rent payments would apply to reduce the purchase price of the house; (2) McDaniel and the Tanzys committed fraud against them; (3) McDaniel and the Tanzys were part of a conspiracy that damaged appellants; (4) the Murphys were entitled to their attorney's fees. Also under their JNOV complaint, the Murphys argue the jury's answers to these questions was "against the great weight and preponderance of the evidence."
Within this issue, the Murphys challenge the jury's failure to find on each of their causes of action. However, the only law cited by the Murphys is the standard of review on the denial of a motion for JNOV. They do not cite any law on or attempt to analyze how the elements of their causes of action fit with the evidence they rely on for reversal. Thus, we question whether this issue is even adequately briefed. See Tex.R.App.P. 38.1(h). Regardless, we have reviewed the evidence cited to us by the Murphys and conclude there was no error in not granting the motion for JNOV. When an appellant challenges the denial of its motion for JNOV, we review the record to determine if it contains more than a scintilla of evidence to support the jury's verdict. Brush v. Reata Oil Gas. Corp., 984 S.W.2d 720, 724 (Tex.App.-Waco 1998, pet. denied). A party with the burden of proof at trial is entitled to JNOV on a particular issue only if the evidence establishes that issue as a matter of law. Id. In determining whether an issue has been established as a matter of law, we consider only the evidence and inferences supporting the jury's verdict and disregard all evidence and inferences to the contrary. Id. If the record contains any competent evidence supporting the issue, JNOV is inappropriate. Id.
As evidence, the Murphys rely almost entirely on the contract documents to establish that they were reasonably mistaken about the rental credit, that the Tanzys and McDaniel committed fraud, and that the Tanzys and McDaniel committed conspiracy. This Court has previously concluded the documents did not continue the 75 percent rental credit over the sixteen years that the Murphys rented the house.
Moreover, the evidence showed McDaniel had only limited contact with the Murphys, and he testified there was "nothing to indicate" that the Murphys believed they should continue to get the 75 percent rent reduction. Frank Tanzy testified he never misrepresented anything, never failed to answer any of their questions, never avoided any questions they had, and never had any conversations with the Murphys regarding the discontinuance of 75% rent credit. Further, the Murphys never communicated to him, before the lawsuit, that they believed they were continuing to get the rent credit. During the time they leased the house, Patricia Murphy communicated most often with Barbara Tanzy, who died before trial. Mrs. Murphy testified she never communicated to Mrs. Tanzy that she believed she and her husband were building "equity" in the home. In addition to this evidence, there was also evidence that the Murphys filed for bankruptcy numerous times between 1986 and 1994, but never listed any equity in the property on the bankruptcy schedules. We conclude this is more than a scintilla of evidence to support the jury's liability answers. Because the Murphys did not prevail on their breach of contract claim, they are not entitled to attorney's fees. See Tex. Civ. Prac. Rem. Code Ann. § 38.001 (Vernon 1997). Issue thirty is without merit.
In issues twenty through twenty-seven, the Murphys argue the evidence is factually insufficient to support the jury's negative answers and the jury's answers are "against the great weight and preponderance of the evidence." In the body of the brief, the Murphys addressed these issues under their complaint that the trial court erred in not granting their motion for JNOV. However, a party is not entitled to JNOV if the verdict has some evidentiary support, even though the verdict is contrary to the great weight and preponderance of the evidence. Brush v. Reata Oil Gas Corp., 984 S.W.2d at 725 . Thus, the trial court in this case could not have erred by failing to grant the Murphys' motion for JNOV on grounds that the jury's answers are against the great weight and preponderance.
The Murphys, however, did preserve a factual sufficiency complaint in their motion for new trial; thus, we will consider their complaints. In a factual sufficiency review, we consider and weigh all the evidence and will set aside a verdict only if the "failure to find" is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Honeycutt v. Billingsley, 992 S.W.2d 570, 578 (Tex.App.-Houston [1st Dist.] 1999, pet. denied. We cannot reverse merely because we conclude that a preponderance of the evidence supports an affirmative answer, nor can we substitute our opinion for that of the trier of fact and determine that we would reach a different conclusion. Id. The factfinder is the sole judge of the credibility of the witnesses and weight to be given their testimony and resolves any inconsistencies in the testimony. McGalliard v. Kuhlman, 722 S.W.2d 694, 697 (Tex. 1986); Leyva v. Pacheco, 162 Tex. 638, 358 S.W.2d 547, 549 (1962).
The Murphys did not separately brief this issue and simply rely on the same evidence as that presented in their legal sufficiency challenge. For the same reasons outlined previously, we question whether this issue is adequately briefed. Regardless we have reviewed the evidence under the appropriate standard and conclude the verdict is not so contrary to the great weight and preponderance of the evidence that it is clearly wrong and unjust. Issues twenty through twenty-seven are without merit.
In their first issue, the Murphys contend the trial court erred in refusing to grant their motion to correct, reform and modify judgment and render judgment as a matter of law in their favor on their breach of contract claim. In particular, the Murphys argue that even if their interpretation of the agreement was incorrect, they nevertheless had a contract with McDaniel that allowed them to purchase the house. They assert that when McDaniel offered in June 1998 to sell them the house for $240,000 "all cash" and in "as is" condition, he breached that contract. Assuming this issue is preserved, the Murphys would have to establish conclusively that McDaniel breached the contract to be entitled to judgment as a matter of law. However, the evidence showed the contract expired February 28, 1998; thus, there was no contract in effect in June that McDaniel could have breached. This issue is without merit.
In their second issue, the Murphys assert the trial court "improperly withheld" the breach of contract claim from the jury. In issues three through eleven, appellants complain the trial court failed to submit various questions, instructions, and definitions proposed by them.
Any complaint to a jury charge is waived unless specifically included in an objection. Tex. R. Civ. P. 274; Tex.R.App.P. 33.1(a)(1); In re B.R.D., 113 S.W.3d 340, 349 (Tex. 2003), cert. denied, Dossey v. Tex. Dep't of Protective Regulatory Servs., 124 S. Ct. 1674 (2004). A party must make the trial court aware of the complaint, timely and plainly, and obtain a ruling. In re B.R.D., 113 S.W.3d at 349; State Dep't of Highways Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). Here, the record does not show that appellants requested the trial court to submit any questions, instructions, or definitions or obtained any ruling. In fact, the record shows that when the trial judge asked whether the Murphys had any objections to the charge, they responded, "No sir." Consequently, these complaints are waived. We resolve issues two through eleven against appellants.
In issues twelve and thirteen, the Murphys contend the trial court erred in including in the judgment an award to McDaniel of $31,200 in damages on his counterclaim for breach of contract. They argue McDaniel waived his counterclaim by failing to request a jury question on the issue.
Only disputed issues must be submitted to the jury. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992). In T.O. Stanley Boot Co., the court of appeals rendered judgment in favor of the Bank on its affirmative claim for relief. On appeal to the Texas Supreme Court, T.O. Stanley Boot Co. argued any award to the Bank on its affirmative claims was improper because the Bank failed to obtain a jury question on its claims. Id.
The supreme court concluded the Bank conclusively established its affirmative claim; thus, it had not waived the claim by failing to obtain a jury question and was entitled to recover the undiputed balance and attorney's fees. See T.O. Stanley Boot Co., 847 S.W.2d at 222-23.
Here, McDaniel testified appellants continued to live in the house but stopped paying rent in June 1998 and, except for a brief period, did not pay rent until after December 2000. According to McDaniel, the total unpaid rent amounted to $31,200. Exhibit 26, which reflected the months that the Murphys did not pay, was admitted without objection. The exhibit showed that for a thirty-one-month period from June 1998 to December 2000, the Murphys paid rent only seven months.
The Murphys asked only a couple of questions on cross-examination to show (1) they put up a bond during the pendency of the lawsuit and (2) the payments accrued after they believed they exercised their option to buy. Appellants, however, did not controvert the fact that they lived in the house without paying rent for two years and owed $31,200. We conclude the evidence conclusively established that the Murphys owed back rent and the amount. Accordingly, the trial court did not err in awarding McDaniel his damages. We resolve issues twelve and thirteen against appellants.
In the fourteenth issue, the Murphys argue the trial court erred, as a matter of law, in awarding attorney's fees because McDaniel "neither pled nor proved any cause of action" that would support such an award.
A party must satisfy two requirements to obtain an award of attorney's fees: (1) he must prevail on a cause of action for which attorney's fees are recoverable and (2) he must recover damages. Rodgers v. RAB Investments, Ltd., 816 S.W.2d 543, 551 (Tex.App.-Dallas 1991, no writ). McDaniel meets both requirements. He prevailed on his breach of contract claim and recovered damages. See Tex. Civ. Prac. Rem. Code Ann. § 38.001(8) (Vernon 1997) (allowing recovery of attorney's fees on breach of oral or written contract). Appellants' fourteenth issue is without merit.
In issues fifteen through eighteen, twenty-eight, and twenty-nine, the Murphys challenge the legal and factual sufficiency of the evidence to support the award of attorney's fees. To determine the legal sufficiency of the evidence, we examine the record for probative evidence and consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). In reviewing the factual sufficiency of the evidence, we examine all of the evidence to determine whether the evidence supporting the finding is so weak or the contrary evidence is so overwhelming that the finding should be set aside and a new trial ordered. Id.
McDaniel's counsel, Patrick Frank, testified he had been a licensed attorney in Texas since 1984 and was familiar with the reasonable and ordinary costs of litigating cases such as this in Dallas County. Frank said he had been involved in this case "almost since the beginning" and had incurred $33,468.77 in attorney's fees. Frank testified that his fee was reasonable, ordinary, and necessary under the circumstances. Exhibit 28, a written summary of invoices and payments, was admitted into evidence without objection. On cross-examination, Frank acknowledged the exhibit does not contain a detailed summary of his work but said he would "be happy" to answer any questions. The Murphys asked no questions about Frank's work on the case. Having reviewed this evidence under the appropriate standards, we conclude it is legally and factually sufficient to support the jury's award.
The Murphys also complain the award was legally and factually insufficient because McDaniel failed to segregate work done on his claim from work done defending against the Murphys' claims. A failure to segregate attorney's fees in a case containing multiple causes of action, only some of which entitle the recovery of attorney's fees, can result in the recovery of zero attorney's fees. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997). However, if no one objects to the fact that the attorney's fees are not segregated as to specific claims, the objection is waived. Id. Here, the Murphys did not object at the time the evidence was offered nor did they object to the jury question on attorney's fees. We conclude this complaint is waived. We resolve issues fifteen through eighteen, twenty-eight, and twenty-nine against the Murphys.
In issue nineteen, the Murphys complain the trial court reversibly erred in failing to file requested findings of fact and conclusions of law on "court-decided" issues and request the case be remanded so that such findings can be made. In particular, the Murphys contend they are entitled to findings on the trial court's award of $31,200 in damages to McDaniel.
When properly requested, a trial court has a mandatory duty to file findings of fact. Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex.App.-Dallas 2003, pet. denied). A trial court's failure to respond to a timely request is error and is presumed harmful unless the record before the appellate court affirmatively shows that the complaining party has suffered no harm. Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989); Larry F. Smith, 110 S.W.3d at 614. The general rule is that an appellant has been harmed if, under the circumstances of the case, he has to guess at the reason the trial court ruled against him. Larry F. Smith, 100 S.W.3d at 114.
Although the Murphys assert in their brief that they are left to "guess" that these damages are for back rent, the record establishes without question that the damages were awarded for back rent. Early on in the litigation, the Murphys obtained a temporary injunction to prevent McDaniel from disposing of the house or attempting to dispossess them from the property. The evidence established that during the five years this case has been in litigation, the Murphys have lived in McDaniel's house and, most of the time, did not pay rent. McDaniel sued to recover the back rent. At trial, McDaniel presented evidence that the total unpaid rent was $31,200, and the Murphys did not challenge that amount. Under these circumstances, we cannot say that the Murphys were harmed by the trial court's failure to file findings of fact and conclusions of law on an issue that was conclusively proved at trial. We resolve issue nineteen against the Murphys.
Issues thirty-one through thirty-six have either been disposed of with another issue or have not been briefed in accordance with Texas Rule of Appellate Procedure 38.1. Accordingly, we resolve these issues against appellants. We affirm the trial court's judgment.