MTrust Corp. N.A. v. LJH Corp.

• Decision Date: 11 August 1992
• Docket Number: No. 2-90-222-CV,2-90-222-CV
• Citation: 837 S.W.2d 250
• Parties: MTRUST CORP. N.A., Trustee Under the Will of Birdie Gowin Wright, Deceased, Appellant, v. LJH CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 250

837 S.W.2d 250

MTRUST CORP. N.A., Trustee Under the Will of Birdie Gowin

Wright, Deceased, Appellant, v. LJH CORPORATION, Appellee.

No. 2-90-222-CV.

Court of Appeals of Texas,

Fort Worth.

Aug. 11, 1992.

Rehearing Overruled Sept. 30, 1992.

Kenneth J. Kramer, Wicita Falls, Anne Gardner, Shannon, Gracey, Ratliff & Miller, Fort Worth, for appellant.

J.S. "Sandy" Freels, Freels & Johnston, Sherman, for appellee.

Before JOE SPURLOCK, II, LATTIMORE and DAY, JJ.

OPINION

JOE SPURLOCK, II Justice.

This is an appeal by MTrust Corp., N.A., Trustee ("MTrust") from the directed verdict and judgment in its suit against LJH Corporation ("LJH") for breach of contract to purchase real estate. Appellant brings fifteen points of error by which it challenges the court's findings that: the contract was not enforceable under the Statute of Frauds; no valid offer to purchase was made by LJH; an exhibit attached to the contract was not signed; there were controverted issues of fact; there was no valid acceptance of LJH's offer; LJH's claim of lack of capacity to convey was waived; and the pleadings and proof did not support the recovery by LJH of its deposit, pre-judgment interest and attorney's fees. We reverse and remand.

MTrust brought suit as trustee under the will of Birdie Gowin Wright for damages resulting from the alleged breach by LJH of a contract to purchase a parcel of ranching and farming land in Clay County, Texas, known as the "Joy" place. LJH counterclaimed for recovery of its initial deposit of earnest money, plus interest, damages for violation of the Texas Deceptive Trade Practices Act, and additional damages and attorney's fees. A trial was to a jury. After both parties had rested, the trial court granted an instructed verdict.

It is generally stated that the plaintiff is entitled to an instructed verdict when reasonable minds can draw only one conclusion from the evidence. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). The task of an appellate court in such cases is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Id. The court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, discarding all contrary evidence and inferences. Id.

In withdrawing the case from the jury the court stated that it believed LJH's "MOTION TO WITHDRAW CASE FROM JURY AND TO RENDER INSTRUCTED VERDICT IN FAVOR OF RESPONDENT/CROSS-PLAINTIFF" "is well taken and the Court is going to grant the motion for the reasons set out in the motion" and further, "[t]he Court will make findings that the Court believes that each of the subparts of the ... motion are correct and those will constitute the findings of the Court." We therefore examine each of the subparts of LJH's motion in the light of the record and authorities stated in the parties' briefs.

a. The description submitted by Plaintiff on its Invitation to Bid and its Contract for Sale of Realty was insufficient under the Statute of Frauds.

The caption of the invitation to bid is "WRIGHT RANCH " followed by "Clay and Jack Counties." Following the caption, the land is described as: "This ranch consists of approximately 2,647 acres located in Jack and Clay Counties, Texas.... This ranch will be offered for sale in six (6) separate tracts. (see attached Exhibit "A" and "B")." Next are described the improvements contained in each of six (6) separate tracts numbered 1 through 6. Exhibit A lists the six tracts and approximates the acreage in each, with the explanation that tracts 1 through 4 are located approximately two miles northwest of Antelope, Texas, and tracts 5 and 6 are located between Henrietta and Jacksboro on Texas FM 148. Exhibit B consists of four pages of maps. The first page was described by Dennis Yeager as a "Heydrick" map for the Antelope place, consisting of tracts 1 through 4. The second page was a similar Heydrick map for the Joy place, which consisted of tracts 5 and 6.

The Heydrick maps, commonly used in the oil and gas industry, showed abstract numbers, survey information, and block numbers for the area where the land was located. The six tracts were separately numbered to correspond with Exhibit A, with the boundaries heavily outlined in black. The third page was a tract division map showing county roads and highways in relation to both ranches. The fourth page was a highway road map with the location of both the Antelope place and the Joy place marked by arrows. Copies of the same four maps attached to the invitation to bid were also attached to each copy of the contract of sale form contained in the bid package as Exhibit B and expressly incorporated into the contract by reference.

To be sufficient, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.1972). A map attached as an exhibit to the contract was considered as other existing writing within the purview of the above rule in U.S. Enters., Inc. v. Dauley, 535 S.W.2d 623, 625-26 (Tex.1976). Lacy Harber, owner of LJH, who signed the contract as President, testified that: he had seen Heydrick maps before; he knew that they were generally used in the oil and gas business; he specifically acknowledged that he saw the two Heydrick maps which depicted the locations of the Joy and Antelope places; and that those documents, together with Exhibit A which also accompanied the invitation to bid, constituted the basis for his sending in the contracts. There was no testimony that the lands in question could not be located with reasonable certainty from the data contained in the exhibits attached to the bid and contract forms. We hold that the property description submitted by MTrust with its invitation to bid was sufficient.

b. The Court, in reviewing the exhibits attached to the Invitation to Bid and the Sales Contract with the disputed property outlined and designated as tracts one, two, three, four, five, and six constituted the only admissible description of the property, which description is insufficient under the Statute of Frauds, V.A.T.C.S. Bus. & Com. C., Section 26.01.

We are not certain of the meaning of this subpart, but we have held above that the property description submitted by MTrust with its invitation to bid was sufficient to describe the property being offered for sale.

c. The Contract as submitted by Respondent, L.J.H. Corporation, did not meet the requirements of the Statute of Frauds inasmuch as it contained no property description or Exhibit "B," and was a void contract. The Contract as modified and returned by Plaintiff by attaching a new legal description was never accepted by Respondent/Cross-Plaintiff, L.J.H. Corporation.

The claim in this subpart is based upon the following circumstances: MTrust had forwarded a bid package to Ed Bodolay, owner of a hunting lodge near the...