Dunham & Ross Co. v. Stevens, 5536

• Court: Texas Civil Court of Appeals
• Writing for the Court: JAMES
• Citation: Dunham & Ross Co. v. Stevens, 538 S.W.2d 212 (Tex. Ct. App. 1976)
• Decision Date: 03 June 1976
• Docket Number: No. 5536,5536
• Parties: DUNHAM AND ROSS COMPANY, Appellant, v. William O. STEVENS, Appellee.

Page 212

538 S.W.2d 212

DUNHAM AND ROSS COMPANY, Appellant, v. William O. STEVENS, Appellee.

No. 5536.

Court of Civil Appeals of Texas Waco.

June 3, 1976.

Rehearing Denied June 24, 1976.

Johnson, Bromberg, Leeds & Riggs (Richard L. Jackson), Dallas, for appellant.

John L. Shook, Dallas, for appellee.

OPINION

JAMES, Justice.

This is an instructed verdict case. Dunham and Ross Co., Plaintiff-Appellant, filed this suit against Defendant-Appellee William O. Stevens, alleging a cause of action based upon a written contract of sale wherein Plaintiff was purchaser and Defendant was seller. Plaintiff sued for the return of $10,000 earnest money placed in escrow in connection with said contract. Defendant Stevens filed a cross-action for the $10,000 earnest money. Trial was had to a jury at the conclusion of which each side filed a motion for instructed verdict. The trial court overruled Plaintiff's motion, granted Defendant's motion, entered judgment that Plaintiff take nothing, and awarded Defendant Stevens the $10,000.00 earnest money. From this judgment Plaintiff Dunham and Ross Co., appeals on six points of error. We overrule Plaintiff-Appellant's points and affirm the trial court's judgment.

Appellant's first point is as follows: 'The trial court erred in granting the Motion of the Defendant William O. Stevens for Instructed Verdict.' Plaintiff-Appellant presents no point or points asserting that the granting of the motion cannot be justified upon any of the grounds set out in Defendant's motion. Defendant-Appellee Stevens's motion for instructed verdict contained sixteen paragraphs setting out several grounds in support of the motion. The trial court's judgment sustaining Defendant's motion did not specify any particular point or points upon which the motion was granted, but in effect merely recited that Defendant's motion was 'well taken and should be sustained.' To reverse the judgment of the trial court under these circumstances, it was necessary for Plaintiff-Appellant to assume the appellate burden of establishing that the peremptory instruction cannot be supported on any of the grounds set out in Defendant-Appellee's motion. McKelvy v. Barber (Tex.1964) 381 S.W.2d 59; Whatley v. K--Mart Discount Stores (Tex.Civ.App. Houston, 1970) 451 S.W.2d 568, NRE; Carrico v. Stop-N-Go Markets of Texas (Tex.Civ.App. San Antonio, 1973) 492 S.W.2d 383, no writ; Gabriel v. Mendez (Tex.Civ.App. San Antonio 1974) 517 S.W.2d 447, NRE. Since the Appellant did not assume its appellate burden of establishing that Appellee's motion cannot be supported on any of the grounds set out therein, we overrule Appellant's first point of error.

Be that as it may, this is an appeal from the granting of an instructed verdict, and we must accept as true the evidence in the record supporting Plaintiff-Appellant's cause of action, disregarding all conflicts and indulging every intendment reasonably deducible from the evidence in favor of Plaintiff-Appellant. Constant v. Howe (Tex.1968) 436 S.W.2d 115; Jones v. Nafco (Tex.1964) 380 S.W.2d. 570. We believe that by examining the record in this light, as we have, that there are no fact issues to be decided by the jury, and that Defendant-Appellee was entitled to judgment as a matter of law, as will be more particularly hereinafter discussed.

Appellant's second point of error is worded as follows: 'The trial court erred in refusing to grant the Motion of Plaintiff Dunham and Ross Co. for Instructed Verdict.' We overrule this point, in view of our holding that Defendant-Appellee is entitled to judgment as a matter of law, for the reasons above stated as well as those hereinafter stated.

On or about November 20, 1972, a contract of sale was entered into by and between Defendant-Appellee Stevens as seller and Plaintiff-Appellant Dunham and Ross Co., Trustee, as purchaser, wherein Stevens agreed to convey 234.122 acres of land in Collin County, Texas to Dunham and Ross, Trustee, for a total consideration of $269,240.30, payable $65,000.00 in cash, the purchaser's assumption of a $76,000.00 first lien note executed by one C. D. Wyche and wife payable to Fidelity Union Life Insurance Co. (hereinafter called the 'Wyche Note'), and the balance of purchase price to be paid by the execution by Plaintiff-Purchaser of a second lien note in the amount of $128,240.30. The contract provided that Purchaser Dunham and Ross, Trustee, should put up $10,000.00 earnest money in escrow with Don L. Ratliff, which purchaser did. It is this $10,000.00 earnest money that is in controversy herein. Without quoting the entire contract, suffice it to say that the following are some of the pertinent provisions of the contract which have a bearing upon this suit, to wit:

'Seller agrees to furnish owner's title policy through Plano Title Company to said property, which shall be conveyed free and clear of any and all encumbrances except those named herein, ----------.'

'If said Title Co. makes objections to the title to said property, Seller shall have 15 days time within which to cure such objections, and if Seller is unable to cure the objections, then the above mentioned ($10,000.00) deposit shall be returned to Purchaser, and this contract shall thereupon terminate, and all parties be released from liability hereunder ----------. In the event Purchaser is the defaulting party, Seller shall have the right to retain said cash deposit as full liquidated damages for the breach of this contract.' (emphasis supplied).

'Purchaser agrees, for purposes of this contract, that any restrictions or conditions imposed in any additions or subdivisions of which the herein described property is a part, Or easements for utility purposes, shall not be recited as objections to the title or considered as an encumbrance on said property.' (emphasis supplied).

'Purchaser shall have the right to assign this contract of sale and---------- in the event of such assignment, such assignee shall be substituted in all respects for Purchaser hereunder as though such assignee had originally been the Purchaser hereunder.'

'Closing shall take place at the offices of Plano Title Co., Plano, Texas, not later than January 5, 1973.' (emphasis supplied).

'All mineral rights owned by Seller are to be transferred to Purchaser.'

After the contract had been executed and the earnest money put up, an owner's title policy binder was issued by Plano Title Co. in connection with the property on December 15, 1972, setting out both printed and typewritten exceptions, more particularly hereinafter discussed. Plaintiff-Appellant offered in evidence a letter from Bill Kramer, vice president of Plano Title Co., to Mr. R. L. Ross, Dunham and Ross Co., dated December 17, 1972, enclosing the Owner's Title Policy Binder. However, neither the fact of the title binder nor its contents were brought to the attention of Defendant-Appellee Stevens until January 29, 1973, some 24 days after the agreed closing date.

On December 13, 1972, Plaintiff-Appellant Dunham and Ross, Trustee, assigned all their rights under the sale contract to 'The Carlton Companies,' which they had a right to do under said contract.

Most of the negotiations in behalf of Dunham and Ross was done by a Mr. Harold Giddens, and most of the negotiations in behalf of Defendant Stevens was done by a Mr. Don Ratliff. Dunham and Ross Co. was a real estate brokerage firm, and as it turned out in the undisputed evidence, 'Dunham and Ross, Trustee,' although it was the nominal purchaser, was in truth and in fact acting as an agent or broker for The Carlton Companies, a firm controlled by a Mr. I. C. ('Irv') Deal.

Don Ratliff, the agent of Stevens, was also a real estate broker, and in fact the sales contract in question provided that a 6% Real estate commission would be paid one-half to Dunham and Ross Co. and the other half to Don Ratliff.

As stated, the contract provided that 'closing shall take place at the offices of Plano Title Co., Plano, Texas, not later than January 5, 1973.' So about 10:00 A.M. on said date, a meeting was had in the office of Plano Title Co. Mr. Bill Kramer was present representing the title company. Mr. Giddens and Mr. Ross (of Dunham and Ross) appeared in behalf of the purchasers, and Mr. Ratliff and Mr. Stevens appeared in behalf of the seller. Before Ratliff and Stevens arrived at the meeting, Giddens (testified that he) delivered three letters (the contents of which we will discuss later in this opinion) to Kramer, the title man; however, none of these letters were shown to or brought to the attention of seller Stevens or Ratliff at that time. Neither was the title binder shown to Ratliff or Stevens. (The only exception to this was that Giddens showed Ratliff a letter from Dunham and Ross addressed to Ratliff demanding a return of the $10,000.00 earnest money).

The sum and substance of the January 5, 1973, meeting was that Giddens and Ross told Ratliff and Stevens that 'Irv Deal does not like the deal, and we are terminating' the contract. Stevens at that time had no knowledge that the purchasers Dunham and Ross had made an assignment of the contract to The Carlton Companies; in fact, he did not even know who Irv Deal was. Ratliff knew who Irv Deal was but did not at that time know that he (Deal) was involved in any way in this transaction. Seller Stevens and his broker, Ratliff, were entirely unaware of the contents of the title binder, or what part The Carlton Companies and Irv Deal played in the matter, or why the Plaintiff-Appellant Dunham and Ross were terminating the contract.

The mystery was cleared up for Stevens and Ratliff about three weeks later in this manner: Stevens testified that on January 29, 1973, he received some mail in an envelope showing it to be sent from Dunham and Ross, containing three letters. The letters and the envelope are in evidence, and the envelope is postmarked January 24, 1973.

The letter of...