Gnerer v. Johnson

• Decision Date: 05 June 2007
• Docket Number: No. 06-06-00099-CV.,06-06-00099-CV.
• Citation: 227 S.W.3d 385
• Parties: Rodney M. GNERER and Dawn Gnerer, Appellants, v. Kaye JOHNSON and Arvey R. Johnson, Appellees.
• Court: Texas Court of Appeals

227 S.W.3d 385

Rodney M. GNERER and Dawn Gnerer, Appellants, v. Kaye JOHNSON and Arvey R. Johnson, Appellees.

No. 06-06-00099-CV.

Court of Appeals of Texas, Texarkana.

Submitted June 1, 2007.

Decided June 5, 2007.

Rodney M. Gnerer and Dawn Gnerer, Silver Bay, MN, pro se.

James R. Rodgers, The Moore Law Firm, LLP, Paris, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

This is a suit regarding an agreement between Rodney M. Gnerer and Dawn Gnerer as sellers and Arvey R. Johnson and Kaye Johnson as buyers of real estate in Lamar County. A contract for deed was entered into between the parties in 1996; the Gnerers maintained that the Johnsons had defaulted under the contract, that all payments after the default were paid as rentals, and that the Johnsons had no existing right to purchase under the contract. The Johnsons sued for declaratory judgment under Chapter 37 of the Texas Civil Practice and Remedies Code, seeking to affirmatively establish their right to purchase, among other things. After a trial before the court, the Johnsons were awarded the real estate and the Gnerers have appealed from that order.

FACTS OF THE CASE

By a contract for deed dated September 6, 1996, the Gnerers as sellers and the Johnsons as buyers entered into an agreement for the sale and purchase of two tracts of land comprising 19.75 acres of land in Lamar County, Texas, upon which was a dwelling. The contract amount was $35,000.00, of which $2,000.00 was paid at the time the contract was entered, with the balance of $33,000.00 bearing interest at ten percent per annum, payable in twenty-three equal monthly installments of $354.64 each, with a final installment (a "balloon" installment) equal to the then-remaining principal and interest due on the obligation.¹ When the "balloon" installment under the written contract became due in October 1998, the Johnsons were unable pay the entire sum and continued to pay monthly installments through July 2005. The Gnerers contended that the failure of the Johnsons to pay the remaining balance of $30,849.31 due on the twenty-fourth installment constituted a default and that the Johnsons were thereafter in possession only as tenants at will; the Gnerers maintained, further, that all payments paid by the Johnsons after the timely twenty-third installment were only rent.

In their original petition, filed in March 2005, the Johnsons pleaded that there had been a novation of the original contract by an oral agreement between them with the Gnerers to simply continue the monthly installments which had previously been made until full satisfaction of the debt, that they had made valuable improvements to the realty and maintained possession of the property, that the Gnerers had failed to provide them an annual accounting as required by Section 5.077 of the Texas Property Code,² that the Gnerers had been guilty of violating the Deceptive Trade Practices Act (TEX. BUS. & COM.CODE ANN. §§ 17.41-.63 (Vernon 2002 & Supp.2006)), and that they had been victims of real estate fraud as defined by TEX. BUS. & COM.CODE ANN. § 27.01 (Vernon 2002). The Gnerers responded by alleging that a breach of the contract for deed had terminated the right to purchase, that all of the funds paid by the Johnsons after that date had been rentals only, that the statute of frauds (TEX. BUS. & COM.CODE ANN. § 26.01 (Vernon Supp.2006)) prevented recovery under any oral agreement for the purchase and sale of real estate, and that the Johnsons' action was barred by limitations pursuant to TEX. BUS. & COM.CODE ANN. § 2.725 (Vernon 1994).

In a trial to the court, the Johnsons were represented by counsel and Dawn appeared pro se (from the record, it appears that Rodney was likewise present, but he made no formal announcement). Kaye testified that, when the time for satisfaction of the balloon installment drew near, it became apparent that she and Arvey were going to be unable to obtain financing from other sources to satisfy the remainder of the obligation because the value of the property would not support such a loan. According to Kaye, in telephone conversations between the two women, Dawn had indicated that the Johnsons should continue to make monthly installments and that Dawn would have an attorney draft an addendum to the agreement to evidence the change. It was uncontroverted that, although the Johnsons had been informed by Dawn that an addendum had, indeed, been drafted and awaited the Johnsons' signatures at the Gnerers' attorney's office, the Johnsons had refused to go to the Gnerers' attorney's office to sign it or get it. Kaye indicated to Dawn that such an addendum should be mailed to her so she could take it to an attorney for review; the precise content of that proposed addendum was not revealed at trial. Even without the addendum having been signed, the Johnsons continued to send monthly installments of approximately the same amount as set out in the contract for deed, with adjustments for late payments, increased taxes, and increased hazard insurance, and the Gnerers continued to accept the payments. During the Johnsons' stay on the property, they made valuable improvements to the property, some of which were made after the maturity date of the written contract and after the date which Dawn had directed Kaye to continue the monthly installments. Although Dawn said that the Gnerers considered those monthly installments to have been simply rental installments, the Gnerers' income tax returns reflected that the installments were reported as being an installment sale of real estate, not rental income. The monthly installments continued to be paid by the Johnsons and accepted by the Gnerers until after the suit was filed. A certified public accountant testified that, if the payments had been made in the manner which Kaye had indicated, the remaining balance after March 2005 (when the payments apparently ceased), if one assumed the same interest rate for the entire term, would have been $3,352.63.

As a result of the hearing, the trial court entered an order which included findings that there was a written contract entered into between the Johnsons and the Gnerers for the purchase and sale of the land in controversy, that there had been substantial compliance with the contract by the Johnsons, that there was an agreement between the parties to extend the time for performance under the original contract, that there was $5,000.00 still due and owing from the Johnsons to the Gnerers under the contract, that this sum had already been deposited into the registry of the court by the Johnsons and, thus, that the Johnsons had fully complied with their obligation under the agreements for the purchase of the real estate. The judgment then divested the Gnerers of the title to the real estate and vested the full fee simple title to the real estate in the Johnsons.

The Gnerers have appealed from that order. In their pro se brief, there were six points of error raised, five of which complained of a sufficiency of the evidence (without specification whether the complaint regards legal insufficiency or whether it regards factual insufficiency) and a sixth which generally complains of the award of the title to the real estate to the Johnsons.

STANDARD OF REVIEW

Simultaneously with the filing of a notice of appeal, the Gnerers also filed a request for findings of fact and conclusions of law. However, no such findings or conclusions were entered and no reminder or notice of their lack was filed. After a party makes a request for findings of fact and conclusions of law pursuant to Rule 296 of the Texas Rules of Civil Procedure and none are timely filed, it is the duty of the person requesting those findings of fact and conclusions of law to file a "Notice of Past Due Findings of Fact and Conclusions of Law" under Rule 297. TEX.R. CIV. P. 296, 297. Without this timely reminder, the Gnerers waived any complaint for the failure to file findings and conclusions and, in fact, did not raise any such objection on appeal. In any event, the failure of the trial court to prepare and file findings of fact or conclusions of law under Rule 296 does not require a reversal of the trial court's judgment if the record before the appellate court affirmatively shows that the complaining party suffered no injury. Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex.1984).

In this circumstance, it is implied that the trial court made all fact findings necessary to support its judgment. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex.2003); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).

In considering a legal insufficiency point, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge must fail. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987).

In considering a factual sufficiency point, we may not substitute our judgment for that of the trier of fact, but must assess all the evidence and reverse for a new trial only if the challenged finding shocks the conscience, clearly...