Boswell v. Farm & Home Sav. Ass'n

• Decision Date: 23 August 1994
• Docket Number: No. 2-93-074-CV,2-93-074-CV
• Citation: 894 S.W.2d 761
• Court: Texas Court of Appeals
• Parties: H.D. BOSWELL, Appellant, v. FARM & HOME SAVINGS ASSOCIATION, Appellee.

Page 761

894 S.W.2d 761

H.D. BOSWELL, Appellant, v. FARM & HOME SAVINGS ASSOCIATION, Appellee.

No. 2-93-074-CV.

Court of Appeals of Texas Fort Worth.

Aug. 23, 1994.

Rehearing Overruled Oct. 11, 1994.

Danny C. Williams, Decatur, for appellant.

Trent A. Gudgel, G. Roland Love, McCauley, MacDonald, Love & Devin, Dallas, for appellee.

Before WEAVER, HICKS and FARRAR, JJ.

OPINION

FARRAR, Justice.

Appellant, H.D. Boswell, appeals the trial court's partial summary judgment, and directed verdict on his cause of action alleging breach of contract, fraud and DTPA violation arising out of the sale of a tract of land and the dissolution of a joint venture agreement. In addition, appellant appeals the award of $50,000 in actual damages to appellee, Farm and Home Savings Association.

We affirm.

In 1984, Boswell and Farm and Home entered into a joint venture agreement to hold, develop and sell real estate. The terms of the agreement provided that Farm and Home would hold fee simple title to any acquired land, and Boswell would receive fees and an interest in the profits.

The joint venture was dissolved in 1988. Boswell and Farm and Home executed a Mutual Release Agreement. Boswell signed an Assignment of Joint Venture Interest and Quit Claim Deed, and Farm and Home executed a Deed for Percentage of Royalty. However, the Deed for Percentage of Royalty was recorded before the Quit Claim Deed, and it was necessary for the parties to execute a Reconveyance and Deed of Distribution in 1989.

The dispute giving rise to the instant case arose from the dissolution of the joint venture and the 1990 sale of two tracts of land, known as the Ponderosa Ranch, located in Denton County. Boswell refused to close the transaction, maintaining that Farm and Home could not deliver clear title.

In 1967, John Field, not a party to this suit, owned an undeveloped piece of land known as the Ponderosa Ranch. On December 1, 1967, he conveyed as a gift an 18/78 interest in the land to the John Field Children Present Interest Trust naming himself as trustee. The deed was not acknowledged and was not recorded. Although a copy of the deed is in the record, the original gift deed was never delivered to the successor trustee and has not been located.

In 1968, Field died. The residue of his estate, which included the Ponderosa Ranch, was poured into a Testamentary Trust benefitting Field's children. The will was probated and recorded, along with the Inventory, Appraisement and List of Claims, in Dallas County. Of these documents, only the Inventory mentioned the conveyance of the 18/78 interest to the John Field Children Present Interest Trust. In October 1973, the will and order probating the will, were recorded in Denton County. The Inventory, Appraisement and List of Claims was not recorded in Denton County. Neither the will nor the order reference the existence of the John Field Children Present Interest Trust nor do they describe any conveyance of any interest of any kind to the trust. In December 1973, the Ponderosa Ranch was conveyed by general warranty deeds without reservation of the 18/78 interest. The deeds were recorded in Denton County. The property was conveyed by general warranty deed numerous times during the subsequent period.

In February 1985, Farm and Home purchased the Ponderosa Ranch by warranty deed and without notice of the alleged defect in title. Farm and Home sold the property to the Denton Creek Ranch Partnership, May 20, 1985, conveying fee simple title by warranty deed. To secure the indebtedness, Farm and Home took a purchase money deed of trust on the property. Farm and Home took this deed of trust in good faith and without notice of the alleged title defect. When the partnership later defaulted on the purchase money deed of trust, Farm and Home purchased the property at a foreclosure sale. Farm and Home acquired title by substitute trustee's deed, without notice of the alleged defect, on February 2, 1988. In each of these transactions, the warranty deed, deed of trust and substitute trustee's deed, as applicable, were recorded in Denton County.

Sometime on or after February 2, 1988, Boswell learned of the prior conveyance of the 18/78 interest in the land and searched the title records in Dallas County. He found the Inventory which cited the conveyance and recorded it in Denton County in March 1988. In September 1988, a California buyer backed out of the purchase of the ranch due to a cloud on the title to the property.

On July 9, 1990, Sanders Campbell, Jr., as trustee, tendered $50,000 and entered into an earnest money contract to purchase the Ponderosa Ranch. Campbell assigned the contract to Boswell, August 22, 1990. The earnest money contract provided that Farm and Home would furnish a Special Warranty deed at closing. ¹ The title commitment referenced the Field trust claim and stated it would require a copy of the gift deed prior to closing and the acquisition of any outstanding interest. When the title company agreed to remove the exception regarding the trust, Boswell objected. Boswell claims to have "taken the initiative" to purchase the outstanding 18/78 interest to enable him to acquire clear title to the property. Farm and Home disputes this. Boswell has not cited us to a quit-claim deed or other instrument to establish he acquired title to this interest.

At closing, Farm and Home tendered a Special Warranty Deed. The exceptions forming a part of the deed do not reference any claim of the John Field Children Present Interest Trust. Boswell refused to close the transaction, claiming the Special Warranty Deed was not sufficient to award clear title as required by the earnest money contract.

Stewart Title Company commenced this action as an interpleader to determine the ownership of the $50,000 held in escrow. A settlement was reached, and Stewart Title was awarded $3,750 from the funds held in the registry of the court. Stewart Title was dismissed from the lawsuit, and the trial court realigned the parties.

Boswell claimed Farm and Home committed fraud in a real estate transaction, TEX.BUS. & COM.CODE ANN. § 27.01 (Vernon 1987), violated the DTPA, TEX.BUS. & COM.CODE ANN. § 17.46 (Vernon 1987 & Supp.1994) and breached the contract by being unable to convey fee simple title to the property. He later amended his petition to seek partition of the 18/78 interest and added claims for breach of fiduciary duty and fraud arising out of the dissolution of the joint venture. Farm and Home counterclaimed to quiet title and asserted Boswell had breached the earnest money contract by failing to close on the Ponderosa Ranch. Farm and Home moved for summary judgment on all claims. The trial court granted a partial summary judgment, finding that Farm and Home had neither actual nor constructive notice of an alleged conveyance to the John Field Children Present Interest Trust in an undivided 18/78 interest in the land prior to acquiring the land February 2, 1988 and held fee simple title to the property.

The remaining portion of the case proceeded to trial. At the conclusion of the evidence, the trial court entered a directed verdict in favor of Farm and Home, finding Boswell had failed to introduce any probative evidence of his claims arising out of the joint venture dissolution. The trial court further found that Boswell had breached the earnest money contract for the sale of the Ponderosa Ranch. The only issue submitted to the jury was whether Farm and Home was entitled to attorney's fees. The final judgment awarded Farm and Home $50,000 as actual damages and an award for attorney's fees.

In point of error one, Boswell complains the trial court erred in granting summary judgment finding Farm and Home had neither actual nor constructive notice of any conveyance to the John Field Children Present Interest Trust prior to February 2, 1988 and held fee simple title to the property. Boswell further complains the trial court erred because there is a genuine issue of fact regarding the ownership of the $50,000 earnest money held in escrow. This issue was not the subject of the trial court's summary judgment and is not properly included in point of error one. However, we construe appellant's brief liberally and consider whether the trial court erred in directing the verdict on the issue. TEX.R.APP.P. 74. In addition, Boswell contends the trial court erred in granting summary judgment because issues exist regarding whether Boswell was fraudulently induced to sign the Mutual Release Agreement and Reconveyance and Deed of Distribution, executed in connection with the partnership dissolution. Again, we note this point was not the subject of the trial court's summary judgment and is not properly included in point of error one. However, we construe appellant's brief liberally and consider whether the trial court erred in directing the verdict on this issue in our discussion of related issues in point of error two. TEX.R.APP.P. 74.

To be entitled to a summary judgment, the movant must prove he is entitled to summary judgment as a matter of law. Westland Oil Dev. Corp. v. Gulf Oil, 637 S.W.2d 903, 907 (Tex.1982). The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence in the light most favorable to the nonmovant. See id. In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984); Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972). Every reasonable inference from the evidence must be indulged in favor of the nonmovant and any doubts resolved in his favor. Montgomery, 669 S.W.2d at 311. Evidence...