Opinion
NO. 12-11-00182-CV
02-29-2012
FLORENTINO "JOHNNIE" TORREZ, APPELLANT v. TERILYNN THORNTON, APPELLEE
APPEAL FROM THE THIRD
JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Florentino "Johnnie" Torrez appeals the trial court's judgment quieting title to a twenty acre tract of land in his ex-wife, Teri Lynn Thornton. On appeal, Torrez raises four issues. We affirm.
BACKGROUND
In 1994, while still husband and wife, Torrez and Thornton began purchasing a twenty acre tract of land in Anderson County, Texas, pursuant to a contract for deed with Textron Business Services, Inc. In 1997, the parties divorced, and Thornton was awarded the twenty acre tract of land. In 2009, Thornton filed a petition for declaratory judgment against Textron, the seller of the twenty acre tract of land, requesting, in part, that Textron be required to convey fee title to the real property to Thornton for the balance of the contract for deed note. Torrez intervened in the suit, alleging that he and Thornton orally agreed that he would purchase the twenty acre tract of land from her by assuming the payments under the contract for deed. At trial, Thornton testified that in 2001, she allowed Torrez to move into the six hundred square foot house located on the twenty acre tract of land as long as he made the monthly installment payments. At the conclusion of the trial, the trial court found that title to the twenty acre tract of land should be quieted in Thornton, and that Torrez owned no interest in and to that tract of land. This appeal followed.
Textron and the parties settled before trial, and Textron is not a party to this appeal.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In his first issue, Torrez contends that the trial court's failure to file additional findings of fact and amended conclusions of law was reversible error. Upon Torrez's request, the trial court filed the following pertinent findings of fact and conclusions of law:
Findings of Fact
5. From 2000 to the date of trial, [Thornton] rented the 20 acres to [Torrez]. The rental amount to be paid was the payment amount on the contract for deed and the payment of any ad valorem taxes.
6. At the time of trial, more than $9,000.00 in delinquent property taxes were due and owing on the 20 acres.
....
9. There is no written agreement between [Thornton] and [Torrez] as to the purchase or sale of the 20 acres.
10. [Torrez] did not make valuable and permanent improvements upon the 20 acres with the consent of [Thornton].
11. No consideration was paid by [Torrez] to [Thornton] for the 20 acres other than rent.
12. There was no sufficient evidence presented by [Torrez] that showed [Thornton] had committed fraud against [Torrez].
Conclusions of Law
1. [Torrez]'s possession of the 20 acres was under an ongoing rental agreement between [Thornton] and [Torrez].
....
6. [Torrez] owns no interest in the 20 acre tract of land, and title to the 20 acre tract of land is quieted in [Thornton] as against [Torrez].
Following the trial court's entry of these findings of fact and conclusions of law, Torrez requested the following additional findings of fact and amended conclusions of law.
Requested Additional Findings of FactHowever, the trial court did not file the additional findings of fact and amended conclusions of law requested by Torrez. Applicable Law
1a. The Court finds that [Torrez] and [Thornton] did not enter into an oral agreement for the conveyance of the property the subject of this suit from [Thornton] to [Torrez].
1b. The Court finds that [Torrez] did not pay consideration for the purchase of the property the subject of this suit.
1c. The Court finds that [Torrez] took possession of the subject property in October 2000 and has remained in possession of the property through the date of the court's judgment.
1d. The Court finds that facts do not exist so as to make the transaction between [Torrez] and [Thornton] a fraud if the property is not conveyed to [Torrez].
Requested Amended Conclusions of Law
2a. Despite [Torrez]'s possession of the premises from October 2000 through the current date, [Torrez]'s possession of the 20 acres was under an ongoing rental agreement between [Thornton] and [Torrez].
Upon a party's timely request, the trial court "shall file any additional or amended findings and conclusions that are appropriate." TEX. R. CIV. P. 298. Additional findings are not required if the original findings and conclusions properly and succinctly relate the ultimate findings of fact and law necessary to apprise the party of adequate information for the preparation of the party's appeal. Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 412 (Tex. App.-Fort Worth 2006, pet. denied). An ultimate fact is one that would have a direct effect on the judgment. Id. If the refusal to file additional findings and conclusions does not prevent a party from adequately presenting an argument on appeal, there is no reversible error. Flanary v. Mills, 150 S.W.3d 785, 792 (Tex. App.-Austin 2004, pet. denied). Furthermore, if the requested findings and conclusions will not result in a different judgment, they need not be made. Id.Analysis
Here, all of the requested additional findings of fact and amended conclusions of law are already explicitly stated or implied in the existing findings of fact and conclusions of law. Torrez's requested finding of fact la is subsumed by findings of fact 5 and 9, and his requested finding of fact 1c is subsumed by finding of fact 5. Further, Torrez's requested finding of fact 1b is the same as finding 11, requested finding of fact 1d is the same as finding of fact 12, and requested conclusion of law 2a is the same as conclusion of law 1. Because the trial court's refusal to file additional findings or amended conclusions of law did not prevent Torrez from presenting an argument on appeal, there is no reversible error. See Flanary, 150 S.W.3d at 792. Further, none of the additional findings of fact or amended conclusions of law would have resulted in a different judgment and, thus, need not have been made. Id. Accordingly, Torrez's first issue is overruled.
FACTUAL SUFFICIENCY
In his second, third, and fourth issues, Torrez claims that the evidence is factually insufficient to support the trial court's findings of fact 10, 11, and 12. Standard of Review
Findings of fact entered in a case tried to the court have the same force and dignity as a jury's verdict to questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury's answer. Main Place Custom Homes, Inc. v. Honaker, 192 S.W.3d 604, 614 (Tex. App.-Fort Worth 2006, pet. denied).
When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that is clearly wrong and unjust. Id. In doing so, the court of appeals must "detail the evidence relevant to the issue" and "state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Id. (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).
The fact finder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. May v. Barton's Pump Serv., Inc., 153 S.W.3d 469, 474 (Tex. App.-Amarillo 2004, no pet.). The trier of fact has several alternatives available when presented with conflicting evidence. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). It may believe one witness and disbelieve others, or it may resolve inconsistencies in the testimony of any witness. Id.Applicable Law
Under the doctrine of partial performance as applied to the statute of frauds, an oral contract for the purchase of real property is enforceable if the purchaser (1) pays the consideration; (2) takes possession of the property; and (3) makes permanent and valuable improvements on the property with the consent of the seller, or, without such improvements, other facts are shown that would make the transaction a fraud on the purchaser if the oral contract was not enforced. Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992) (citing Hooks v. Bridgewater, 111 Tex. 122, 126-127, 229 S.W. 1114, 1116 (1921)). "Each of these three elements is indispensable, and they must all exist." Hooks, 229 S.W. at 1116. Analysis
In his second issue, Torrez argues that finding of fact 10 is against the great weight and preponderance of the evidence. In finding of fact 10, the trial court found Torrez did not make valuable and permanent improvements on the twenty acres with the consent of Thornton. At trial, Thornton testified that when she rented the real property to Torrez, she told him to replace the fence he had torn down after the divorce. Torrez stated that he put the fence back up, using some of the same materials. He also testified that he poured a small cement slab in front of the house, painted the house, replaced the carpet and tile, improved the bathroom, and extended the pond. However, Thornton testified she had not consented to any of these improvements and, in fact, did not know about any of them. Following Thornton's testimony, Torrez conceded he had not obtained Thornton's permission for any of the improvements he placed on the property nor had he talked to her about the improvements. Torrez's admission shows that he failed to comply with the first element of the Hooks test. See Boyert v. Tauber, 834 S.W.2d at 63. Because Torrez failed to obtain Thornton's consent to make permanent and valuable improvements on the property, the trial court's finding of fact 10 was not against the great weight and preponderance of the evidence. Accordingly, Torrez's second issue is overruled.
In his third issue, Torrez contends that finding of fact 11 is against the great weight and preponderance of the evidence. In finding of fact 11, the trial court found that Torrez paid no consideration to Thornton for the twenty acres other than rent. At trial, Torrez testified that he made a $5,000.00 down payment to Thornton. As evidence, Torrez produced records of deposits he had made into Thornton's federal credit union account from September 2011 to May 2002. However, Thornton testified that she allowed Torrez to deposit monies into her account because his bank account had been frozen due to a suit against him. She stated that Torrez deposited money into her account so that she could pay his bills, including credit cards, and child support and past medical support for their son. The fact finder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See May, 153 S.W.3d at 474. Here, the trial court was entitled to believe Thornton's explanation of the reason Torrez made deposits into her federal credit union account between September 2001 and May 2002. See McGalliard, 722 S.W.2d at 697. Considering all the evidence, the trial court's finding that Torrez paid no consideration to Thornton for the twenty acres other than rent is not against the great weight and preponderance of the evidence. Accordingly, Torrez's third issue is overruled.
In his fourth issue, Torrez contends that the trial court erred in entering finding of fact 12 because it required him to prove that Thornton committed fraud against him. But we need not reach the third element of Hooks. See Cowden v. Bell, 157 Tex. 44, 50-51, 300 S.W.2d 286, 290 (1957) (stating that "the significance of the [third] requirement is in part that of a 'corroborative fact,' but also, and more importantly, that of a serious change of position in reliance upon the oral contract over and above the payment of the consideration."). As noted above, finding of fact 11 established that Torrez had paid no consideration to Thornton at the time the oral contract was agreed upon. More importantly, in finding of fact 5, the trial court determined that Thornton rented the twenty acres to Torrez. We are bound by any unchallenged finding of fact if there is evidence in the record to support it. See McGalliard, 722 S.W.2d at 696. At trial, Thornton testified that the oral transaction was to rent, not sell, the twenty acre tract of land to Torrez. Because we have already determined that no consideration was paid and we are bound by the finding that Thornton rented the property to Torrez, we need not consider Torrez's argument that the oral transaction was, in reality, a sale, and therefore, a fraud upon him. See Hooks, 229 S.W. at 1116. Accordingly, Torrez's fourth issue is overruled.
DISPOSITION
Having overruled all four of Torrez's issues; the judgment of the trial court is affirmed.
JAMES T. WORTHEN
Chief Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
JUDGMENT
FLORENTINO "JOHNNIE" TORREZ, Appellant
V.
TERI LYNN THORNTON, Appellees
Appeal from the 3rd Judicial District Court
of Anderson County, Texas. (Tr.Ct.No. 3-41111)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, all costs of this appeal are adjudged against the Appellant, FLORENTINO "JOHNNIE" TORREZ, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.