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In Kidwill, Werner, the owner of real property, was negotiating separately with Kidwill and Mast for the sale of the property.
Summary of this case from Tauch v. AngelOpinion
No. 10-05-00274-CV.
Filed December 13, 2006.
Appeal from the 352nd District Court Tarrant County, Texas Trial Court No. 352-188572-01.
Before Chief Justice GRAY, JUSTICE VANCE, AND JUSTICE REYNA.
MEMORANDUM OPINION.
Kidwill appeals a judgment in favor of Werner on Kidwill's cause of action for breach of contract for the sale of real property and in favor of Mast on Kidwill's cause of action for tortious interference with contract. We affirm.
In this opinion, "Werner" signifies, as appropriate, either the late Doris Werner, owner of the real property in interest, or Doris Werner's successor in interest, Keith Werner, the administrator of Doris Werner's estate.
Werner, the owner of real property, was negotiating separately with Kidwill and Mast for the sale of the property. Kidwill made an offer to Werner. Werner made a counter-offer to Kidwill. While Werner's counter-offer was pending, Werner concluded a contract with Mast. Thereafter, Kidwill attempted to accept. Kidwill's issues turn on whether he validly accepted. Kidwill contends that he did so; Werner argues that the counter-offer had been revoked before Kidwill attempted to accept it.
"[T]he requisites for a valid contract" include "'(1) an offer, (2) an acceptance in strict compliance with the terms of the offer, [and] (3) a meeting of the minds.'" Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 245 (Tex.App.-Waco 2003, no pet.) (quoting New Caney Indep. Sch. Dist. v. Burnham AutoCountry, Inc., 30 S.W.3d 534, 537 (Tex.App.-Texarkana 2000, pet. denied)), Choctaw Props. disapproved of on other grounds, Thomas v. Long, 49 Tex. Sup. Ct. J. 532, 2006 Tex. LEXIS 280 (Tex. Apr. 21, 2006).
An offeror may revoke an offer, however, "at any time up to time of acceptance." Peacock v. Harrison, 189 S.W.2d 500, 503 (Tex.Civ.App.-Austin 1945, writ dism'd w.o.j.); see Bowles v. Fickas, 167 S.W.2d 741, 743 (Tex. 1943). An offeror may either revoke an offer expressly and directly, or an offer is impliedly revoked and "[a]n offeree's power of acceptance terminates when the offeree receives from the offeror a manifestation of intention not to enter into a contract." Valencia v. Garza, 765 S.W.2d 893, 896 (Tex.App.-San Antonio 1989, no writ) (citing RESTATEMENT (SECOND) OF CONTRACTS § 42 (1981)); accord Antwine v. Reed, 199 S.W.2d 482, 485 (Tex. 1947); e.g., Thurmond v. Wieser, 699 S.W.2d 680 (Tex.App.-Waco 1985, no writ). That manifestation of intent may be by "[t]he offeree['s] acquir[ing] indirect reliable information inconsistent with an offer." Valencia at 896; accord Antwine at 485.
"Meeting of the minds" signifies the "assent of both parties." Ambox, Inc. v. Stewart Stevenson Servs., Inc., 518 S.W.2d 428, 434 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.); accord Walker v. Estate of Guerrero, No. 13-03-055-CV, 2004 Tex. App. LEXIS 7704, at *5 (Tex.App.-Corpus Christi Aug. 26, 2004, no pet.) (mem. op.).
Breach of Contract. Kidwill's first four issues concern his cause of action against Werner.
Among "[t]he essential elements in a suit for breach of contract" is "the existence of a valid contract." Runge v. Raytheon E-Systems, Inc., 57 S.W.3d 562, 565 (Tex.App.-Waco 2001, no pet.).
In Kidwill's first issue, he contends that there was no evidence or factually insufficient evidence that Werner revoked her counter-offer.
In reviewing a no-evidence legal-sufficiency issue, the reviewing "court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it." City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). "[L]egal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. at 827. We "consider ' all of the evidence' in the light favorable to the verdict," id. at 809; or "'consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary,'" id. at 808 (quoting City of Keller v. Wilson, 86 S.W.3d 693, 700 (Tex.App.-Fort Worth 2002), rev'd on other grounds, City of Keller, 168 S.W.3d 802); see City of Keller, 168 S.W.3d at 821-22. "The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 168 S.W.3d at 827.
Kidwill argues that the only evidence of revocation was testimony by Werner's attorney that he instructed Werner's real-estate agent to revoke the counter-offer. Kidwill does not give sufficient heed to the doctrine of implied revocation.
Werner points to, and Kidwill acknowledges, testimony from Werner's agent concerning a valid implied revocation of the counter-offer. Kidwill contends that such evidence constitutes parol evidence. The evidence concerning which Kidwill complains, however, does not constitute parol evidence.
Kidwill does not point to, and we do not find, an objection to parol evidence in the record. Kidwill cites Texas Co. v. Lee for the proposition, "Any such evidence is denied probative force, regardless of whether it was objected to, because such incompetent evidence can never form the basis of a finding of fact or of the judgment of a court." (Br. at 32 (citing Texas Co. v. Lee, 138 Tex. 167, [171-72,] 157 S.W.2d 628, 631 (1941))); see also Hubacek v. Ennis State Bank, 159 Tex. 166, 169, 317 S.W.2d 30, 31 (1958) ("The parol evidence rule is not a rule of evidence at all, but a rule of substantive law.") Texas Co. concerns not parol evidence, but hearsay evidence of recitals in deeds. Texas Co., 138 Tex. at 171, 157 S.W.2d at 631. An objection to parol evidence must be preserved. See TEX. R. APP. P. 33.1(a); e.g., MacFarlane v. Rickard, No. 03-01-00507-CV, 2002 Tex. App. LEXIS 5421, at *17 n. 6, *22 (Tex.App.-Austin July 26, 2002, no pet.) (not designated for publication); Ward v. Marino, No. 13-00-00784-CV, 2002 Tex. App. LEXIS 1428, at *4 (Tex.App.-Corpus Christi Feb. 21, 2002, no pet.) (not designated for publication); Thompson v. Fausto, No. 04-96-00048-CV, 1997 Tex. App. LEXIS 2261, at *8 (Tex.App.-San Antonio Apr. 30, 1997, no writ) (not designated for publication); Ins. Co. v. Morris, 928 S.W.2d 133, 156 (Tex.App.-Houston [14th Dist.] 1996), aff'd in part rev'd in part on other grounds, 981 S.W.2d 667 (Tex. 1998); Dallas Bldg. Repair v. Butler, 589 S.W.2d 794, 796 (Tex.Civ.App.-Dallas 1979, writ dism'd w.o.j.); but see State Nat'l Bank v. Academia, Inc., 802 S.W.2d 282, 291 (Tex.App.-Corpus Christi 1990, writ denied); Tuttle v. Simpson, 735 S.W.2d 539, 541 (Tex.App.-Texarkana 1987, no writ). We assume without deciding that Kidwill preserves a complaint for review.
The rule that parol evidence is inadmissible to contradict or vary the terms of a written contract applies only to a written contract in force as a binding obligation. Parol evidence is always competent to show the nonexistence of a contract or the conditions upon which it may become effective.Baker v. Baker, 183 S.W.2d 724, 728 (Tex. 1944) (op. on 1st mot. reh'g). The testimony of Werner's agents does not tend to contradict the terms of a contract, but to show that no contract existed between Kidwill and Werner. We consider the evidence of Werner's agents.
Kidwill concedes that Werner's agent testified that the agent told Kidwill's agent that Werner had accepted Mast's offer, and Kidwill's agent so told Kidwill, before Kidwill's agent accepted. Werner also points to Kidwill's and Kidwill's agent's testimony to the same effect. The trial court also so found, and Kidwill does not complain of those findings. Accordingly, there was some evidence that Werner impliedly revoked her counter-offer to Kidwill by concluding a contract with Mast, with Kidwill's knowledge, before Kidwill attempted to accept.
In a factual-sufficiency review, a court of appeals must
consider and weigh all of the evidence in the case and . . . set aside the verdict . . ., if it thus concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. . . . The evidence supporting the verdict is to be weighed along with the other evidence in the case, including that which is contrary to the verdict.
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003) (quoting In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951)).
As to factual sufficiency, Kidwill points to evidence that Werner never spoke directly to Kidwill, Kidwill's agent, or Mast; and concludes that Werner did not expressly or intentionally revoke her counter-offer. Again, Kidwill does not give sufficient attention to implied revocation. The evidence that Werner impliedly revoked her counter-offer to Kidwill by accepting Mast's offer with Kidwill's knowledge before Kidwill attempted to accept is stated above. Accordingly, the trial court's finding that Werner impliedly revoked her counter-offer to Kidwill was supported by factually sufficient evidence.00
The evidence that Werner impliedly revoked her counter-offer to Kidwill being legally and factually sufficient, we overrule Kidwill's first issue.
In Kidwill's second issue, he contends that the evidence conclusively established that he accepted Werner's counter-offer. Although the trial court found that Kidwill accepted but for Werner's implied revocation, for the reasons stated above, Werner's revocation terminated Kidwill's power of acceptance prior to Kidwill's attempted exercise of that power. The evidence does not conclusively establish that Kidwill validly accepted Werner's counter-offer, and the trial court did not err in concluding that Kidwill did not validly accept the counter-offer. We overrule Kidwill's second issue.
In Kidwill's third and fourth issues, he complains of two of the trial court's conclusions of law. In Kidwill's third issue, he contends that the trial court erred in concluding that Kidwill did not validly accept Werner's counter-offer. In Kidwill's fourth issue, he contends that the trial court erred in concluding, on the basis that there was no meeting of the minds between Kidwill and Werner, that no contract was formed between them. For the reasons stated above, Werner's implied revocation of her counter-offer terminated the counter-offer before Kidwill could accept. Accordingly, the trial court did not err in concluding that Kidwill did not validly accept the counter-offer, or in concluding that Kidwill and Werner did not mutually assent to a contract. We overrule Kidwill's third and fourth issues. Tortious Interference with Contract. Kidwill's last two issues concern his cause of action against Mast. In Kidwill's sixth issue, he contends that the evidence conclusively established that Mast interfered with a contract between Kidwill and Werner. In Kidwill's fifth issue, he contends that the trial court erred in its conclusion of law that Mast did not interfere with a contract between Kidwill and Werner. "[T]he elements of tortious interference with an existing contract" include "an existing contract subject to interference." Prudential Ins. Co. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). For the reasons stated above, the evidence did not conclusively establish that Kidwill had an existing contract with Werner, and the trial court did not err in concluding that Mast did not interfere with any such existing contract. Accordingly, we overrule Kidwill's fifth and sixth issues.
Kidwill also argues that the trial court concluded that Kidwill could only accept Werner's counter-offer by a writing apart from the executed contract, and so erred. The trial court concluded, "There was no written unconditional acceptance by Kidwill of the terms of Werner's counteroffer, which complied with Section 23 of the counteroffer and the Texas Statute of Frauds, prior to Kidwill's notification of Werner's revocation of the counteroffer." (9 C.R. 1614); see TEX. BUS. COMM. CODE ANN. § 26.01 (Vernon Supp. 2006). Because we affirm on the basis of Werner's implied revocation, we do not reach the argument concerning whether Kidwill's means of acceptance would have been valid had Werner not revoked her counter-offer.
CONCLUSION. Having overruled Kidwill's issues, we affirm.