Howell v. Homecraft Land Development, Inc.

• Decision Date: 13 October 1987
• Docket Number: No. 05-86-01164-CV,05-86-01164-CV
• Citation: 749 S.W.2d 103
• Parties: Charles Ben HOWELL, Appellant, v. HOMECRAFT LAND DEVELOPMENT, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 103

749 S.W.2d 103

Charles Ben HOWELL, Appellant, v. HOMECRAFT LAND DEVELOPMENT, INC., et al., Appellees.

No. 05-86-01164-CV.

Court of Appeals of Texas Dallas.

Oct. 13, 1987.

Rehearing Denied Nov. 23, 1987.

Howard D. Pattison, Athens, Ted M. Akins, Dallas, for appellant.

Edmund R. Wood, Ralph Ross, Robert T. Mowry, Jennifer t. Altabef, Dallas, for appellant.

Before STEPHEN F. PRESLAR, ¹ EARL W. SMITH, ² and ASHWORTH ³, JJ.

PER CURIAM.

Appellant Charles Ben Howell appeals a judgment denying him recovery for damages from appellees Homecraft Land Development, Inc., U.S. Home Corporation (collectively "Homecraft"), and Stewart Title Company ("Stewart"). Howell also complains that the trial court erred in awarding Homecraft attorneys' fees for Howell's bad-faith filing of a claim under the Deceptive Trade Practices Act (the "DTPA") and for Homecraft's counterclaim under the Declaratory Judgments Act (the "DJA"). For the reasons given below, we modify the judgment of the trial court to delete the award of attorneys' fees for Homecraft's counterclaim and, as modified, affirm the trial court's judgment.

At the outset, we must address certain preliminary matters. Howell's brief was originally due on March 23, 1987. After some extensions, the brief was due, and filed, on June 23. Subsequently, after the cause was set for submission, Howell requested leave to file an amended brief. We granted that request "only to the extent that leave is granted to file a supplemental brief limited solely to providing authorities for the points of error previously asserted" in the original brief. On September 9, two days before oral argument, Howell filed a "supplemental" brief and a second brief containing "additional points of error." Those additional points of error were also incorporated into the "supplemental" brief.

Homecraft filed a motion to strike both the "supplemental" brief and the additional points of error. Howell filed a motion to reconsider our order denying him leave to file a brief containing additional points of error. Both motions are now before the Court, and we address them now. The "supplemental" brief exceeds two-hundred-fifty pages, over twice the length of the original brief. We have considered the "supplemental" brief to the extent that it actually supplements the original brief, but we will not address the additional points of error. Howell's motion to reconsider is denied. To the extent that Homecraft's motion requests us to strike the "supplemental" brief, it is denied, but to the extent that the motion requests us to strike Howell's "additional points of error," Homecraft's motion is granted. Howell's "additional points of error" are stricken, both as independently filed and as incorporated into the "supplemental" brief.

We now turn to the merits of this cause. Howell owned certain realty (the "Property"). In late 1980, two affiliated corporations, Homecraft Land Development, Inc., and U.S. Home Corporation, indicated interest in purchasing the Property. The relationship between the two corporations is not altogether clear, but, for our purposes, they may be treated as a single entity, "Homecraft."

In December, 1980, Homecraft wrote a letter of intent to purchase to Howell. Howell replied, expressing an interest in selling the Property, but with certain qualifications. On December 22, Homecraft prepared an earnest money contract and submitted it to Howell. Howell made certain handwritten changes, the most important of which, for our purposes, was that the purchaser, Homecraft, rather than the seller, Howell, should provide a survey of the Property.

On January 16, 1981, Homecraft executed a revised earnest money contract, newly typewritten, incorporating the changes that Howell had made. The contract provided that Homecraft would obtain a survey of the Property to be prepared by "Owen Ayres." On January 23, Howell (actually acting through a close corporation under his control that was then the record owner of the Property) executed the earnest money contract and returned it.

In late March, Homecraft notified Howell that it wished to close the conveyance of the Property on April 6, 1981. At some point in early April, Howell was shown the survey that a certain John B. Fincher prepared (the "Fincher Survey"). At the time, Fincher was employed by Owen Ayres and Associates. Howell indicated that he believed that the Fincher Survey was inaccurate. Howell claimed that the Property that he was about to convey contained more square footage than that shown in the Fincher Survey. Since Howell and Homecraft had agreed that the purchase price of the Property was to be $6.00 a square foot, the amount of square footage would determine the amount of the purchase price.

On April 10, the parties met for the closing. Stewart was the title company involved. Howell testified that, at the closing, he still objected to the Fincher Survey and complained that the Property contained more square footage than Homecraft was prepared to pay for. Mike Richards, on behalf of Stewart, told him that Fincher was a partner of Ayres's, and that Fincher's work was reliable. Howell further testified that he was intimidated, because some six people were agitated by the prospect that the closing might not go through, and because Homecraft and Stewart told him that, if the closing did not go through, they would sue Howell for damages.

At any rate, the dispute over the actual amount of square footage in the Property remained. To effectuate the closing, the parties executed a hastily drawn agreement (the "Escrow Agreement"). Its terms provided that Howell "wishe[d] to have another survey prepared in order to verify the square footage" of the Property. Accordingly, Homecraft provided Stewart with the amount of $10,146 to be held in escrow; when Howell provided another survey substantiating his claim of the extra square footage in the Property, he would be paid six dollars for each extra square foot from the escrowed funds. The Escrow Agreement also provided that Stewart would not release the escrowed funds "until in receipt of written verification from both parties [Homecraft and Howell] ha[d] been received [sic], acknowledging their respective approvals of the outcome of [Howell's survey]." Finally, Homecraft agreed to indemnify Stewart if Stewart released the escrowed funds, provided that Stewart acted with due diligence. The Escrow Agreement had one omission that turned out to be significant: it did not contain a time by which Howell was to provide a new survey.

Once the closing papers, including the Escrow Agreement, had been executed, Homecraft paid Howell $293,820, in two checks. Howell promptly negotiated the checks.

On June 30, nearly three months after the closing, Howell still had not provided another survey establishing his claim that he had conveyed more square footage than he was paid for. Homecraft wrote both Stewart and Howell, stating that the Property had been resurveyed and that Fincher's original results were confirmed. Homecraft added that the City of Dallas Engineering Department concurred with the results of the Fincher Survey and filed the plat of record, certifying the correct area of the Property. (Howell ultimately contended that these contentions by Homecraft were misrepresentations.) Homecraft concluded its letter by stating that, if Howell did not provide a survey in accordance with the Escrow Agreement by August 1, Homecraft wanted Stewart to release the escrowed funds back to Homecraft.

On July 13, 1981, Howell replied to Homecraft's letter. He stated that he did not consider the dispute concerning the exact square footage of the Property to be resolved. He had been very busy because of his workload, he stated, but he would give the matter his "early attention." Finally, he said that he would hold Stewart liable for any improper disbursement of the account funds without his authorization.

At some point after Howell's letter, Stewart in fact released the escrowed funds back to Homecraft. Exactly when it did so is disputed, and the record is not clear. Howell testified that he telephoned Stewart in late July to inquire about the matter, and was told then that the funds had already been released. One of Homecraft's officers testified that he could not remember when Homecraft obtained the funds, but, under repeated questioning, that it was "less than a month" after Homecraft's letter. Stewart provided an internal escrow receipt memorandum (that Stewart claimed reflected the disbursement of the funds) dated December 11, 1981. Stewart also claimed that all other documentation concerning the funds had been lost by the fall of 1985 (when Howell began discovery in earnest, after he had filed suit). At any rate, it is clear that the escrowed funds remained in escrow for at least three, and possibly eight, months after the closing.

On April 8, 1983, without any further communication to Homecraft and Stewart, and without having provided another survey to substantiate his claim on the exact square footage contained in the Property, Howell sued both Homecraft and Stewart. He originally brought suit in trespass to try title, claiming that the extra square footage for which he had never been paid was still his property. On February 3, 1984, Howard D. Pattison, Howell's trial attorney, wrote the trial court informing it of pending settlement negotiations. Pattison said that Howell would provide Homecraft with a survey to substantiate his claims by May 1, 1984.

Howell did not provide a new survey by that date. On September 14, four and a half months after the date that Pattison had promised, Howell provided Homecraft with a document executed by Barry Rhodes, a surveyor. The document showed a survey dating from 1960 (the "Brewer Survey") overlaid on the Fincher Survey. Rhodes did not certify this document. Howell claimed that the Brewer Survey accurately reflected the square footage in the Property and...