Fluellen v. Young, 13-83-189-CV
| Decision Date | 29 December 1983 |
| Docket Number | No. 13-83-189-CV,13-83-189-CV |
| Citation | 664 S.W.2d 776 |
| Parties | Onetia and Napoleon FLUELLEN, Appellants, v. Ivy YOUNG and Barbara Gomez, Appellees. |
| Court | Texas Court of Appeals |
John H. Wright, Jr., North Central Texas Legal Services Foundation, Inc., Dallas, for appellants.
John R. Norris, III, Turner, Rodgers, Sailers, Jordan & Calloway, Lana Johnson, Dallas, for appellees.
Before BISSETT, UTTER and GONZALEZ, JJ.
This is an appeal by Onetia Fluellen and Napoleon Fluellen, plaintiffs in the trial court, from the granting of a summary judgment against them in favor of Ivy Young, a defendant in the trial court, and from a take nothing judgment which was rendered against them and in favor of Barbara Gomez, also a defendant in the trial court. Henceforth, the plaintiffs will be referred to either by name or the "Fluellens," and the defendants will be referred to by name.
This case involves the attempted sale and subsequent sale of real property located in the City of Dallas, Dallas County, Texas, and various causes of action allegedly arising therefrom. Onetia Fluellen and Napoleon Fluellen instituted an action against Barbara Gomez and Ivy Young, wherein they sued to recover damages for breach of an alleged contract of sale of real property; to quiet title to the property involved; and to recover damages for alleged violations of the Texas Deceptive Trade Practices Act.
The trial court rendered an interlocutory summary judgment in favor of Ivy Young and against the Fluellens insofar as the Fluellens' action against him is concerned. Subsequently, a jury trial was held as to the Deceptive Trade Practices claim of the Fluellens, against Barbara Gomez, and the jury reached a verdict in favor of them and against Barbara Gomez. The court, on Barbara Gomez' motion for "judgment non obstante veredicto and alternative motion to disregard the special issue jury findings," rendered a take nothing judgment against the Fluellens. The interlocutory summary judgment in favor of Ivy Young was made final in the final judgment.
Apparently, the Fluellens' fourth amended original petition constituted their trial petition. They alleged therein: 1) that on May 20, 1978, Barbara Gomez orally agreed to sell the house and lot located at 2206 Harrell, Dallas, Texas, to Onetia Fluellen; 2) that on May 24, 1978, Onetia Fluellen and Barbara Gomez agreed on a purchase price of $9,200, to be paid $500.00 in cash and monthly payments of $80.00 each, "until other arrangements could be made to pay the balance"; and that a "purchase agreement" to that effect was signed; 3) that they took possession of the property, expended $4,600.00 thereon by way of improvements to the house, and paid Barbara Gomez $500.00 in cash when the agreement was signed; 4) that they paid Barbara Gomez $80.00 per month for each of the months July, 1978 through August, 1980, and $90.00 for the month of September, 1980; 5) that on or about October 7, 1980, following a visit by Ivy Young and Julio Gomez (husband of Barbara Gomez), Ivy Young informed Onetia Fluellen that "he was contemplating" the purchase of the property in question; whereupon, Onetia Fluellen told him that she "had an existing contract for the purchase of the property"; 6) that on or about October 21, 1980, Barbara Gomez conveyed the property to Ivy Young, which was in violation of the "prior agreement"; and 7) that on or about December 3, 1980, Onetia Fluellen received a letter from Ivy Young which informed her that he was the "real title owner" of the property.
Barbara Gomez filed a general denial, and by way of affirmative defenses, among other defenses which are not necessary to discuss herein, pled that the contract of sale of the subject property upon which the Fluellens rely is unenforceable under the statute of frauds.
Ivy Young, in the suit brought against him by the Fluellens, filed a general denial, and by way of affirmative defenses, pled that the alleged contract of sale of the involved property is void under the statute of frauds, and that he is a bona fide purchaser for value, and at the time of his purchase of the property in question, "had no notice of plaintiffs' purported contract of sale." He also filed a cross-action against the Fluellens wherein he sought a recovery of back rents and an order directing them to "surrender the property which is the subject matter of this suit" to him. He further filed a cross-action against Barbara Gomez for breach of warranty.
Ivy Young filed a motion for summary judgment on February 24, 1982. He sought summary judgment against both the Fluellens and Barbara Gomez. The allegations contained in the motion were substantially the same as those contained in his answer.
The summary judgment evidence establishes conclusively that on May 24, 1978, Barbara Gomez, as seller, and Napoleon Fluellen, as purchaser, signed a document that was prepared by Barbara Gomez. It, in pertinent part, reads as follows:
"PURCHASERS STATEMENT
Contract Price $9,200
Sales price payable in Cash 500
--------------
$8,700
Purchaser's Expense to be determined
by Title Company
Monthly Payment $80.00 monthly
until other arrangements are made
concerning the balance
Interest will be charged on $8,700, if not
paid off by September, 1978."
Other undisputed facts are: 1) on May 24, 1978, the Fluellens paid $500.00 in cash to Barbara Gomez; 2) the Fluellens, shortly after May 24, 1978, went into possession of the property and made valuable improvements thereon; 3) the Fluellens made monthly payments of $80.00 each to Barbara Gomez for the period July, 1978 through August, 1980, and $90.00 in September, 1980; 4) on October 21, 1980, Barbara Gomez, joined by her husband, Julio Gomez, conveyed the property involved in this lawsuit to Ivy Young by general warranty deed; 5) the consideration for such sale was $12,000.00 cash; 6) shortly after October 21, 1980, Ivy Young notified the Fluellens that he was the owner of the property; and 7) Ivy Young's demand to the Fluellens that they pay rent, taxes and insurance premiums to him after he purchased the property were refused.
Onetia Fluellen, in her affidavit and deposition, in summary, testified: 1) on May 20, 1978, Barbara Gomez agreed to sell her the house located at 2206 Harrell, Dallas, Texas, for $9,100.00 "as is"; 2) the "purchasers agreement" was signed on May 24, 1978; 3) Onetia Fluellen, who was the real purchaser of the property, paid $500.00 down, and it was agreed that she would also pay $80.00 per month until the then existing lien on the house was paid off in September, 1978, when "we would go to the title company and change the deed and the lien over to me"; 4) Barbara Gomez told her that she would "finance the house" and after the existing lien was paid off that "the title company would work the interest and everything out"; 5) after the note, secured by the lien, had been paid off by Barbara Gomez, she was to execute a warranty deed conveying the property to Onetia Fluellen, and "would let the title company work out the interest and all to get a clear title to the house"; 6) after the lien had been discharged, the balance of the purchase price would be carried by Barbara Gomez, and Onetia Fluellen would continue to make the payments thereon; 8) she made certain improvements on the house "since June, 1978," which "Mrs. Gomez was fully aware of"; 9) on October 7, 1980, Ivy Young and Julio Gomez (husband of Barbara Gomez) visited Onetia Fluellen in "my home at 2206 Harrell," and she informed Ivy Young "that I had a contract on the house," and "pointed out the improvements I had made on the house"; 10) she made monthly payments of $80.00 from June, 1980 to August, 1980, and paid $90.00 in September, 1980; 11) Barbara Gomez refused to accept any payments after September, 1980; and 12) it was her understanding that insurance, taxes and interest were included in the monthly payments which she made to Barbara Gomez.
Barbara Gomez, in her deposition, in summary, testified: 1) Onetia Fluellen was interested in renting the house until September, 1978, but would put up $500.00 in escrow and would pay cash for the house "when she received the insurance money for the burning of her house at 2212 Harrell" 2) at the time the purchase agreement was signed, there was a lien against the house which was owned by "American General"; 3) on May 24, 1978, the balance due on the note secured by the lien was something over $2,000.00, and the payments thereon were $79.00 per month; 4) the note that was owned by American General was paid off when she sold the house to Ivy Young; 5) in early October, 1980, she told Onetia Fluellen that she "had given her more than ample time to buy," and that she was going to sell the house; 6) also, during the first part of October, 1983, she asked Onetia Fluellen "was she going to buy the house, and she said no"; and 7) she did not return the $500.00 cash payment to Onetia Fluellen although she, at one time, intended "to give Onetia Fluellen credit for putting up $500.00 in escrow."
Ivy Young, in his deposition, in summary, testified: 1) shortly before he purchased the involved property from Barbara Gomez, he went to the house and talked to Onetia Fluellen; 2) during the conversation, Onetia Fluellen told him that "she had a contract to buy the property"; 3) he had a title company check the title to the property and was told that "it was clear"; and 4) after he had purchased the property he sent a letter to Onetia Fluellen demanding "immediate possession of the property," which demand was refused.
The summary judgment was rendered on April 21, 1982. The trial court found that "there is no material issue of fact," and decreed:
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