Lisa Beard and Casey Beard v. Sherry Anderson ( 2015 )


Menu:
  • AFFIRM and Opinion Filed June 19, 2015.
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-14-00396-CV
    LISA BEARD AND CASEY BEARD, Appellants
    V.
    SHERRY ANDERSON, Appellee
    On Appeal from the County Court At Law No. 1
    Kaufman County, Texas
    Trial Court Cause No. 86969CC
    MEMORANDUM OPINION
    Before Justices Evans, Brown, and Stoddart
    Opinion by Justice Evans
    Lisa Beard and Casey Beard (collectively the “Beards”) appeal from a trial court
    judgment assessing actual damages for violation of the Statutory Fraud Act in favor of Sherry
    Anderson. The Beards raise two issues on appeal: (1) the legal and factual sufficiency of the
    evidence to support the trial court’s finding that the parties entered into an enforceable contract
    for the sale of real estate, and (2) the trial court’s conclusion that appellants committed fraud on
    contract is based on the erroneous finding of an enforceable contract. For the reasons stated
    below, we affirm the trial court’s judgment.
    The trial court awarded damages to Anderson after finding the Beards committed
    statutory fraud. See TEX. BUS. & COM. CODE ANN. § 27.01 (West 2009). Fraud may be found in
    a real estate transaction when a false promise to do an act is (1) material, (2) made with the
    intention of not fulfilling it, (3) made to induce that person to enter into a contract, and (4) relied
    on by that person in entering into that contract. 
    Id. Both issues
    raised by the Beards in this
    appeal rely on the trial court’s finding the parties entered into a valid oral contract for the sale of
    real estate. The Beards argue the oral contract is barred by the statute of frauds. Our resolution
    of these issues is based on the doctrine of partial performance. Because all dispositive issues
    regarding the law of the partial performance exception to the application of the statute of frauds
    are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4; see also
    Bank of Texas, N.A. v. Gaubert, 
    286 S.W.3d 546
    , 554 (Tex. App.—Dallas 2009, pet. dism’d
    w.o.j.).
    Lisa and Casey Beard are Anderson’s niece and nephew-in-law. When visiting family in
    the North Texas area, Anderson would visit the Beards at their home. After seeing a For Sale
    sign posted in front of a structure on the Beard’s 2.89 acres, Anderson approached the Beards
    about purchasing a portion of the property, including the structure. According to Anderson, the
    parties came to an agreement but never signed any documents memorializing the transaction. In
    May 2010, Anderson wrote a check to the Beards for $10,000 and began living in her RV, which
    was parked behind the structure on the property. Anderson immediately began spending money
    on the property, including replacing the septic system for the entire 2.89 acres and making
    various improvements to the structure to renovate it into an apartment. Between 2011 and 2012,
    Anderson and the Beards attempted to negotiate an agreement in writing, but the parties were not
    able to agree on the terms. Due to the death of a family member and family disagreements, all
    communication between Anderson and the Beards ceased in the fall of 2012. In January 2013,
    the Beards served Anderson with a notice to vacate the premises, and this suit ensued.
    Anderson sued the Beards seeking specific performance or damages in the alternative.
    After a trial before the court, the court entered judgment for Anderson awarding damages of
    –2–
    $69,923.19, attorney’s fees, and imposing a constructive trust against the Beards’ property. The
    Beards now appeal.
    We will sustain a challenge to the legal sufficiency of the evidence if the record shows a
    complete absence of a vital fact, rules of law or evidence bar the court from giving weight to the
    only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more
    than a scintilla, or the evidence establishes conclusively the opposite of the vital fact. City of
    Keller v. Wilson, 
    168 S.W.3d 802
    , 810 (Tex. 2005). We consider the evidence in the light most
    favorable to the judgment, crediting favorable evidence if a reasonable fact finder could, and
    disregarding contrary evidence unless a reasonable fact finder could not. 
    Id. at 827.
    We do not
    substitute our judgment for that of the trier of fact, so long as the evidence falls within a zone of
    reasonable disagreement. 
    Id. at 822.
    Thus, “where circumstantial evidence is not equally
    consistent with either of two facts, and the inference drawn by the jury is within the ‘zone of
    reasonable disagreement,’ a reviewing court cannot substitute its judgment for that of the trier-
    of-fact.” Ford Motor Co. v. Castillo, 
    444 S.W.3d 616
    , 621 (Tex. 2014) (per curiam). In
    reviewing a factual-sufficiency challenge, we weigh all of the evidence in the record. Ortiz v.
    Jones, 
    917 S.W.2d 770
    , 772 (Tex. 1996). We will overturn the finding only if it is so contrary to
    the overwhelming weight and preponderance of the evidence as to be clearly wrong and
    manifestly unjust. 
    Id. Findings of
    fact in a case tried to the court have the same force and effect
    as a jury’s verdict. Catalina v. Blasdel, 
    881 S.W.2d 295
    , 297 (Tex. 1994); May v. Buck, 
    375 S.W.3d 568
    , 573 (Tex. App–Dallas 2012, no pet.). Where, as here, a complete reporter’s record
    is filed, the trial court’s fact findings may be reviewed for legal and factual sufficiency under the
    same standards as jury verdicts. 
    May, 375 S.W.3d at 573
    .
    In their first issue, the Beards argue the evidence is not legally and factually sufficient to
    support the trial court’s finding that the parties entered into an enforceable contract for the sale of
    –3–
    real estate.   Anderson responds that the trial court’s finding of an enforceable contract is
    supported by the evidence of partial performance.
    The statute of frauds requires a contract for the sale of real estate to be in writing and
    signed by the person to be charged. TEX. BUS. & COM. CODE ANN. § 26.01 (West 2009); 
    May, 375 S.W.3d at 574
    .      However, under the equitable partial performance exception, an oral
    agreement that does not satisfy the traditional statute of frauds but that has been partially
    performed may be enforced if denying enforcement would itself amount to a fraud. 
    Gaubert, 286 S.W.3d at 554
    . Under this doctrine, 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 were not enforced. Boyert v. Tauber, 
    834 S.W.2d 60
    , 63 (Tex.
    1992). These steps provide sufficient evidence of an agreement because they provide affirmative
    corroboration by both parties to the agreement. 
    Id. The Beards
    raise three specific challenges to the sufficiency of the evidence to support
    the trial court’s finding of an oral contract: (1) no evidence establishes Anderson’s possession of
    the property, (2) no evidence establishes the fair market value of the property, and (3) no
    evidence establishes a legal property description.
    As for evidence of possession of the property, the Beards argue that because Anderson
    never paid taxes on the property and never lived in the structure itself, there was no evidence
    Anderson possessed the property. We disagree. The record provides evidence that Anderson
    paid to have a concrete pad installed and then moved her RV onto the pad, which is where she
    lived while making the improvements inside the structure. The Beards do not dispute that
    Anderson lived in her RV on the property in question. Further, Texas has not adopted a rule
    –4–
    requiring exclusive physical possession. See Sharp v. Stacy, 
    535 S.W.2d 345
    , 350 (Tex. 1976).
    As for taxes, the Beards have provided us with no authority for the proposition that payment of
    taxes is required to show possession.
    The Beards argue evidence regarding the fair market value of the property was required
    in order to prove “valuable” improvements were made to the property. We disagree. The
    making-valuable-improvements element of a claim of partial performance may be satisfied with
    evidence that the buyer made “a serious change of position in reliance upon the oral contract,”
    which requires something more than the mere payment of consideration such that the buyer “will
    suffer an additional and substantial out-of-pocket loss” if the seller is permitted to avoid the
    contract. Cowden v. Bell, 
    300 S.W.2d 286
    , 290 (Tex. 1957). Anderson testified she moved to
    North Texas in reliance on the oral contract. She provided detailed descriptions of expenses that
    total $51,938.19 including an initial payment to the Beards for $10,000, monthly payments of
    more than $400, replacement of the septic system for the entire property for $8,625, and other
    expenses for improvements made to the existing structure.
    Lastly, the Beards contend that if there was a contract, it was not complete because there
    is insufficient evidence of a legal property description. Again, we disagree. Both parties
    introduced evidence of a contract that they had been negotiating which contained a property
    description. Further, the Beards did not object to evidence of a drawing of the property, prepared
    by Casey Beard, that was also sufficiently specific as to the portion of the property to be
    conveyed.
    Reviewing the evidence of Anderson’s paid consideration, possession of the property,
    and permanent and valuable improvements made to the property, in the light most favorable to
    the court’s findings and indulging every reasonable inference in support thereof, we conclude
    that there was more than a scintilla of evidence supporting the trial court’s finding that the parties
    –5–
    entered into an enforceable contract for the sale of real estate. See 
    May, 375 S.W.3d at 573
    .
    Further, viewing the evidence in a neutral light, we do not find the trial court’s findings were so
    contrary to the evidence as to be clearly wrong or unjust. 
    Id. Accordingly, the
    Beards’ first
    issue is overruled.
    In their second issue, the Beards argue the evidence is not legally and factually sufficient
    to support the trial court’s finding that the Beards committed fraud because the trial court erred
    in its finding of an enforceable contract. Having determined the evidence was sufficient to
    support the trial court’s finding of an enforceable contract, we overrule the Beards’ second issue
    for the reasons stated in our discussion of their first issue.
    In conclusion, we affirm the trial court’s judgment.
    /David Evans/
    DAVID EVANS
    JUSTICE
    140396F.P05
    –6–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    LISA BEARD AND CASEY BEARD,                           On Appeal from the County Court At Law
    Appellants                                            No. 1, Kaufman County, Texas
    Trial Court Cause No. 86969CC.
    No. 05-14-00396-CV         V.                         Opinion delivered by Justice Evans. Justices
    Brown and Stoddart participating.
    SHERRY ANDERSON, Appellee
    In accordance with this Court’s opinion of this date, the judgment of the trial court is
    AFFIRMED.
    It is ORDERED that appellee SHERRY ANDERSON recover her costs of this appeal
    from appellants LISA BEARD AND CASEY BEARD.
    Judgment entered this 19th day of June, 2015.
    –7–