Jones v. Perry
| Decision Date | 04 April 2013 |
| Docket Number | No. 11-11-00116-CV,11-11-00116-CV |
| Parties | J.W. JONES, Appellant v. DANNY PERRY AND CONNIE PERRY, Appellees |
| Court | Texas Court of Appeals |
Appellant, J.W. Jones, appeals the trial court's judgment, entered after a jury verdict, enforcing an oral contract for the sale of real property located at 3617 Clinton Street in Abilene to Appellees, Danny and Connie Perry, and awarding Appellees title to the property.1 We affirm.
Appellees filed suit against Appellant and his brother, Carl Jones, and alleged that Appellees entered into an oral agreement with Carl for the purchase of the Clinton Streetproperty. After a prior trial that resulted in a mistrial and the reopening of Carl's bankruptcy, the case proceeded to trial. Carl testified that he rented the property to Appellees. Appellant and Carl originally inherited the property and owned it as tenants in common, but Appellant purchased Carl's interest from the bankruptcy estate.
The trial court submitted the case to the jury on nine jury questions that were answered in favor of Appellees. The jury found that there was an oral contract for the sale of real property that was exempted from the statute of frauds under the "partial performance" exception. Specifically, the jury found Appellees (1) paid consideration for the property, (2) were in possession of the property, and (3) made valuable and substantial improvements to the property. The jury also found that Carl acted as Appellant's agent. The trial court entered judgment accordingly and awarded title to Appellees.
Appellant brings two issues on appeal. In his first issue, he argues that "[t]he Court erred in denying Appellant's Motion for Instructed Verdict at the close of Evidence because the evidence was legally insufficient to take the case out of the Statute of Frauds." In his second issue, Appellant maintains that "[t]he Court erred in denying Appellant's Motion for Instructed Verdict at the close of Evidence because the evidence was factually insufficient to take the case out of the Statute of Frauds."
A direct or instructed verdict is appropriate when a specifically indicated defect in the opponent's pleadings makes it insufficient to support a judgment, when the evidence conclusively proves a fact that establishes a party's right to a judgment as a matter of law, or when the evidence offered on a cause of action is insufficient to raise an issue of fact. City of Alamo v. Casas, 960 S.W.2d 240, 248 (Tex. App.—Corpus Christi 1997, pet. denied). It is the third of these grounds to which we turn our attention in this appeal.
A defendant is entitled to a directed verdict when the plaintiff does not present evidence that raises a fact issue essential to the plaintiff's right of recovery or when the plaintiff admits or the evidence establishes conclusively a defense to the plaintiff's cause of action. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). The test for legal sufficiency is the same as that for a directed verdict. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We may sustain a legal sufficiency challenge only when (1) the recorddiscloses a complete absence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810. The jury is the only judge of the credibility of the witnesses and the weight to be given to their testimony. Id. at 819. We are to consider all of the evidence in the light most favorable to the plaintiff's case, and we will disregard all contrary evidence and inferences unless a reasonable jury could not. Id. at 823-27; Lasater v. ConVest Energy Corp., 615 S.W.2d 340, 343 (Tex. Civ. App.—Eastland 1981, writ ref'd n.r.e.).
We are to decide whether there is any evidence of probative value that raises fact issues on the questions presented. Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex. 2004). If the evidence, thus reviewed, rises to a level that will allow reasonable and fair-minded people to differ in their conclusions, there is more than a scintilla of evidence, and it would be improper for a trial court to grant a directed verdict. Coastal Trans. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex. 2004). Our review here, then, is one of "no evidence."
In reviewing a factual sufficiency challenge, we consider all the evidence and uphold the finding unless the evidence is too weak to support it or the finding is so against the overwhelming weight of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Appropriate deference must be given to the jury's determination, especially concerning its judgment on the weight and credibility of witness testimony because the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Nat'l Freight, Inc. v. Snyder, 191 S.W.3d 416, 425 (Tex. App.—Eastland 2006, no pet.).
Appellant takes the position that, because the alleged conveyance is not in writing, it violates the statute of frauds. The statute of frauds generally precludes an oral conveyance of real property. TEX. BUS. & COM. CODE ANN. § 26.01 (West 2009). However, there are certain circumstances under which oral conveyances of real property are removed from the operation of the statute of frauds, and in those circumstances, an oral contract to convey real property is "enforceable in equity notwithstanding the statute." Hooks v. Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921).
Under the doctrine of partial performance, as applied to the statute of frauds, an oral contract for the purchase of real property is enforceable if the purchaser pays consideration, takes possession of the property, and makes permanent and valuable improvements on the property with the consent of the purported seller. Hooks, 229 S.W. at 1116; Fandey v. Lee, 880 S.W.2d 164, 169-70 (Tex. App.—El Paso 1994, writ denied) (citing Sharp v. Stacy, 535 S.W.2d 345, 347 (Tex. 1976)); Rittgers v. Rittgers, 802 S.W.2d 109, 113 (Tex. App.—Corpus Christi 1990, writ denied). It is the first and third elements to which Appellant directs his argument in this appeal, and again, he maintains in both issues that the trial court erred when it denied his motion for instructed verdict.
We will complete the directed verdict/legal sufficiency and the factual sufficiency analyses in turn, but within each, we address the third element of "permanent and valuable improvements" first and then address the "payment of consideration" element.
Appellant contends the trial court erred by denying his motion for instructed verdict because the only evidence consisted of conflicting testimony from interested witnesses. However, the testimony of an interested witness, as a party, raises fact issues that a jury must decide, and a trial court is generally precluded from entering a directed verdict. Trevino v. Kent Cnty., 936 S.W.2d 488 (Tex. App.—Amarillo 1996, writ denied).
Because material fact questions existed regarding the elements of partial performance, the case was properly submitted to the jury. Koenning v. Manco Corp., 521 S.W.2d 691, 699 (Tex. Civ. App.—Corpus Christi), writ ref'd n.r.e., 531 S.W.2d 805 (Tex. 1975) (); see also Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549 (Tex. 1976); Jordan v. Jordan, 938 S.W.2d 177 (Tex. App.— Houston [1st Dist.] 1997, no writ) ( instructed verdict is improper and the case must be submitted to the jury if there is any conflicting evidence of probative value).
Appellees alleged that in May 1996 they entered into an oral contract to purchase the Clinton Street property from Appellant and his brother, Carl. Carl testified that Appellees rented the property for $150 per month and that they paid for six months. Carl said that there was nooffer of sale until Appellees approached him after the six months were up. Although Carl's testimony would indicate that there had been no sale of the property, in a subsequent bankruptcy, Carl did not list the property as an asset, and he had no rental records.
According to Danny's testimony, after he moved onto the property and through 2007, he made many improvements to the property. Although Danny contradicted himself about times and amounts of money, he testified that he cleared and leveled the yard, repaired the roof, renovated the kitchen by installing new cabinets and countertops, renovated the bathroom, and painted the interior of the house.
Danny paid for all of the repairs, but only produced two receipts for repairs. He told Carl about some of the repairs, but not about all of them. Carl was aware of the sewer line that Danny repaired after Danny received a letter from the city. And, he had seen Carl in the driveway of a neighbor's house close to the fence after it had been repaired. Danny had also started construction on a carport but became too ill to finish it. Danny testified that he had spent at least $35,000 on improvements to the property.
Appellant does not dispute that Appellees performed work on the property. However, Appellant contends that there was no evidence that Appellees did any work with either his or his brother's consent and that there was also no evidence that the work resulted in a valuable improvement.
Before improvements are...
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