Okon v. Levy
| Decision Date | 30 January 1981 |
| Docket Number | No. 20478,20478 |
| Citation | 612 S.W.2d 938 |
| Parties | Benjamin B. OKON and Simon Okon, Appellants, v. Reuben LEVY and Ruth Levy, Appellees. |
| Court | Texas Court of Appeals |
Harold B. Berman, Douglas E. Yeager, Berman, Fichtner & Mitchell, Dallas, for appellants.
Barbara M. G. Lynn, Robert H. Mow, Jr., Carrington, Coleman, Sloman & Blumenthal, Dallas, for appellees.
Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
This is a suit for declaratory judgment and specific performance of a contract under which the Okons were to buy and the Levys were to sell an interest in real property. Trial before the court resulted in a judgment from which both the Okons and the Levys appeal. The Okons argue that the trial court erred in failing to allow them a greater offset against the purchase price of the property for improvements which they have made and the Levys argue that the trial court erred in allowing the Okons any offset against the purchase price of the property for improvements. The Okons also contend that the trial court erred in awarding post-judgment interest on the purchase price while the Levys argue that the trial court erred in failing to award them pre-judgment interest on the purchase price. Additionally, the Levys complain of the trial court's proration of taxes and of the failure to award them attorney fees. We reverse the judgment of the trial court and render judgment with respect to attorney fees, but affirm the judgment of the trial court in all other respects.
At the time of trial, the Okons owned an 84% undivided interest in the property, were in possession of the property, and had made certain improvements to the property. The Levys owned an undivided 16% interest in the property, and it is that interest which was sold under the contract which is the subject of the suit. The contract provides that upon sale of the property the Okons are to be reimbursed for the depreciated cost of improvements made upon the property as carried on the books of Okon's Iron & Metal Company.
The Levys argue that the Okons are entitled to no reimbursement for improvements because at the designated time and place for closing the contract the Okons were not prepared to claim and prove the depreciated cost of any improvements. The trial court found that the Okons had not calculated and did not present any claim for deductions for improvements. The trial court concluded, however, that the failure of the Okons to present their claim at closing did not prevent them from claiming such deductions in this action for specific performance. We agree.
The remedy of specific performance is equitable in nature and is subject to the principles of equity. It is a familiar rule of equity that "He who seeks equity must do equity." We are of the opinion that it would be fundamentally unfair to allow the Levys specific performance of this contract and not to allow the Okons an offset for the depreciated cost of improvements as contemplated by the contract. The trial court's findings of fact reveal that, in varying degrees, both the Levys and the Okons were responsible for the failure to close. Both the Levys and the Okons seek to proceed under the contract and both want specific performance of the contract. Since the contract provides for the offset, the trial court, in the exercise of its equitable jurisdiction, properly allowed an offset for improvements proved in the trial court.
As to the improvements the trial court found that there were "as of September 25, 1979, two improvements, having a total depreciated cost of $15,588.70." The two improvements found by the trial court were a railroad track and a building. No other improvements were found. The Okons argue that there is no evidence or factually insufficient evidence to support this finding of no other improvements by the Okons. We do not agree.
In reviewing the legal or factual sufficiency of the evidence supporting a trial court's findings of fact, we apply the same standard as is applied by a court reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a special issue. Hall v. Villarreal Development Corp., 522 S.W.2d 195 (Tex.1975). In considering a "no evidence" point we look only to the evidence favorable to the verdict to determine whether there is any evidence to support the finding. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In reviewing an "insufficiency" point we consider and weigh all of the evidence in the case and, if we find that the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, set aside the judgment and remand the case for a new trial. In re King's Estate, supra.
The Okons argue that the great weight and preponderance of the evidence shows that there were improvements other than the railroad track and the building. We cannot say that as a matter of law the Okons established that such other improvements existed. The parties defined the term improvements in their contract as "structures and other enhancements permanently affixed to the real property ...." Mr. Levy testified that "a week or so" before trial he saw certain structures that had not been on the property in 1961. The Okons introduced four photographs of certain structures and introduced lists of assets and each asset's depreciated cost. Several witnesses testified "that there was some concrete involved with a structure." Viewing the evidence in the light most favorable to the challenged finding, and disregarding inferences to the contrary, we cannot say that the Okons established conclusively the existence of any structure or other enhancement permanently affixed to the real property other than the railroad track and building, for which an offset was allowed. Neither can we say that the finding that these were the only improvements for which an offset was proper is so against the great weight and preponderance of the evidence as to be manifestly unjust.
The Levys argue that there is no evidence or insufficient evidence to support the trial court's finding of these two improvements. As indicated above, we have reviewed the record, and viewing the evidence in the light most favorable to the finding and disregarding the inferences to the contrary, we cannot say that there is no evidence to support the finding. Neither can we say that this finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.
The Levys next argue that, assuming there is evidence of the existence of improvements, there is no evidence or insufficient evidence of the cost of these improvements. The Okons introduced plaintiffs' exhibit 20, the Okon's Iron & Metal Company depreciation schedule for the year ending December 31, 1978, to prove the depreciation cost of the railroad track and the building as carried on the books and records of Okon's Iron & Metal Company. The trial court admitted the exhibit over the objection of the Levys that it was not admissible because it is a summary and the underlying records were not shown to be admissible. The underlying records are inadmissible, the Levys argue, because they are hearsay and the statutory predicate for admission of business records was not satisfied. We do not agree with the Levys' analysis of the admissibility of plaintiffs' exhibit 20.
The exhibit is not subject to the objection that as a summary it is not the best evidence of the underlying records. The rule of evidence dealing with admission of summaries applies to summaries that are secondary evidence. Black Lake Pipe Line Co. v. Union Construction Co., Inc., 538 S.W.2d 80 (Tex.1976). In this case the testimony shows that plaintiffs' exhibit 20 is an actual book or record and, as such, it is primary evidence of the depreciated cost of the improvements as carried on the books or records of Okon's Iron & Metal Company because the parties agreed that the value of the improvements should be determined by those records. Merely because a writing summarizes a number of transactions does not make the writing inadmissible if it is identified as the writing by which the parties have agreed to be bound. We conclude that the exhibit is sufficiently identified. Mr. Okon testified, and...
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