Jernigan v. Page

• Decision Date: 30 November 1983
• Docket Number: No. 13-82-239-CV,13-82-239-CV
• Citation: 662 S.W.2d 760
• Parties: Gerald B. JERNIGAN, et ux., et al., Appellants, v. Ed PAGE and Wife, Evelyn Page, Appellees.
• Court: Texas Court of Appeals

Page 760

662 S.W.2d 760

Gerald B. JERNIGAN, et ux., et al., Appellants, v. Ed PAGE and Wife, Evelyn Page, Appellees.

No. 13-82-239-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 30, 1983.

Rehearing Denied Dec. 22, 1983.

Thomas M. Schumacher, Corpus Christi, for appellants.

Dean Patton, Morrill & Patton, Beeville, for appellees.

Before UTTER, BISSETT and GONZALEZ, JJ.

OPINION

UTTER, Justice.

Appellees brought this action in trespass to try title and for lost rent and profits. Appellants then filed a counterclaim, alleging violations of the Texas Deceptive Trade Practices and Consumer Protection Act (DTPA), Chapter 17, TEX.BUS. & COM.CODE ANN. (Vernon Supp.1977). The trial court, after hearing the evidence, directed a verdict in favor of appellees on both the trespass to try title and DTPA claims. In answering special issues which were submitted to it, the jury determined that (1) appellees were not entitled to recover damages for lost rent and profits from appellants, and, (2) that the DTPA counterclaim was not brought in bad faith or for the purpose of harassment; therefore, the trial court held that appellees were not entitled to attorney's fees. Appellants appeal from the trial court's granting of the directed verdict; appellees appeal from the jury verdict.

In November of 1974, appellee, Ed Page, by "Contract for Deed," sold approximately 14.85 acres of land to Larry Wendel et ux, Beatrice Wendel, who thereafter divided the tract into separate lots. Some of these lots were sold to appellants, also, by "Contract for Deed", under which Mr. Wendel, as "Seller", agreed to deliver a "good and sufficient general warranty deed" upon payment of the balance due.

In January of 1976, appellees conveyed the tract to the Wendels, receiving in return from them a vendor's lien and a Deed of Trust to secure payment of a promissory note. The Wendels conveyed the lots to appellants in 1975 and 1976, and appellants moved onto the land. The Wendels eventually defaulted on their payments to appellees. In November of 1978, a Trustee's sale was held pursuant to the Deed of Trust; appellees repurchased the land they had conveyed to the Wendels for $15,552.96. Appellees then notified appellants that they could purchase the acreage from appellees for $33,720 in cash or $39,720, if financed. Appellants declined the offer, and appellees brought suit in trespass to try title. Appellants do not dispute the fact that appellees properly recorded their instruments of title but, instead, contend that record-notice is no defense to a DTPA action.

In their first point of error, appellants contend that the trial court erred by directing a verdict on appellants' DTPA counter-claim because one of the grounds relied upon was insufficiency of evidence.

"A directed verdict is properly granted only when there is no evidence to raise a fact issue on the material questions presented." Collora v. Navarro, 574 S.W.2d 65 (Tex.1978); U.S. Life Title Company of Dallas v. Amdreen, 644 S.W.2d 185 (Tex.App.--San Antonio 1982, writ ref'd n.r.e.). However, in their motion for directed verdict, appellees contended not only that there was insufficient evidence to warrant submission of the issues to the jury but also that there was no evidence to warrant the submission. Where a motion for instructed verdict is based on independent grounds, but the trial court grants the motion without indicating which ground he relied on, the judgment of the trial court will be affirmed if any ground is sound. McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964); Goldring v. Goldring, 523 S.W.2d 749 (Tex.Civ.App.--Ft. Worth 1975, writ ref'd n.r.e.). We have reviewed all of the evidence and find that the motion could properly have been granted on the "no evidence" contention. Appellant's first ground of error is overruled.

In their second, third, and fourth points of error, appellants contend that the trial court improperly granted appellees' motion for directed verdict on the DTPA counterclaim because (a) appellants were not estopped from claiming lack of knowledge of appellees' title to the land and (b) there was evidence that appellants engaged in unconscionable action and false, misleading, or deceptive acts or practices.

TEX.REV.CIV.STAT.ANN. art. 6646 (Vernon 1969) provides, generally, that a properly recorded grant, deed, or instrument shall be held as notice to all persons of its existence. Thus, a properly recorded deed charges a later purchaser with notice thereof. First Savings and Loan Association of El Paso v. Avila, 538 S.W.2d 846 (Tex.Civ.App.--El Paso 1976, writ ref'd n.r.e.); Robinson v. Humble Oil & Refining Company, 301 S.W.2d 938 (Tex.Civ.App.--Texarkana 1957, writ ref'd n.r.e.).

We have found no indication from the language of the DTPA or from the cases construing it which leads us to believe that it was the intention of the legislature to preclude the recording statute from being a defense to an action under the DTPA. Appellants could have avoided all problems by simply examining the recorded title.

Appellants claim that they negotiated with Larry Wendel and obtained from the Wendels a vendor's lien and deed of trust and that appellees foreclosed on the deed of trust and then offered to sell the land back to them for more than twice the foreclosure indebtedness. They allege that these actions by appellees constituted an unconscionable course of action against appellants. Similarly, they allege certain actions by appellees constituted false, misleading or deceptive acts, including "failing to give [appellants] the opportunity to purchase the tracts of land under the terms and conditions of the Contracts for Deed with Wendel"; "representing that the tracts of land had characteristics and ingredients [sic] (full ownership in Wendel) that they did not have"; and "representing that an agreement (their contracts for Deed with Wendel) included rights and remedies that it did not have." Appellants also argue that their presence on appellees' land was known by appellees all along and that the silence of appellees was a form of misrepresentation. Appellants were not "deceived" by appellees; their loss was caused by their own lack of diligence. Appellants' second, third and fourth points of error are overruled.

After both sides had rested and closed, and outside the presence of the jury, appellants sought to tender into the Court's registry the sum of $14,134.96, which was the unpaid balance owed by the Wendels to appellees at the time of default. The foreclosure sale was held in November, 1978; the tender was made in March, 1982. In his argument before the trial court, appellants' attorney conceded that the offer of tender was not included in the pleadings; he stated that the purpose of the tender was not to set aside the foreclosure sale but, rather, to defeat the trespass to try title...