Payne v. Snyder

• Decision Date: 27 April 1983
• Docket Number: No. 9384,9384
• Citation: 661 S.W.2d 134
• Parties: Lester PAYNE, Appellant, v. Ben SNYDER, et al., Appellees.
• Court: Texas Court of Appeals

Page 134

661 S.W.2d 134

Lester PAYNE, Appellant, v. Ben SNYDER, et al., Appellees.

No. 9384.

Court of Appeals of Texas Amarillo.

April 27, 1983.

Rehearing Denied May 19, 1983.

Donald M. Hunt, Carr, Evans, Fouts & Hunt, Lubbock, for appellant.

Cecil Kuhne, Crenshaw, Dupree & Milam, John C. Ross, Jr., City Atty., Lubbock, for appellees.

Before REYNOLDS, C.J., and COUNTISS and BOYD, JJ.

ON MOTION FOR CORRECTION AND MOTION FOR REHEARING

REYNOLDS, Chief Justice.

The 28 February 1983 opinion underlying our judgment modifying and affirming the trial court's judgment is withdrawn and this opinion is substituted therefor. This opinion, which sets forth the rationale for rendition of the same judgment, is issued contemporaneously with the granting of Ben Snyder's motion to correct a statement in our former opinion, and with the overruling of Lester Payne's motion for rehearing, which caused us to write further on one point of error.

Ben Snyder sued to recover from Lester Payne the unpaid balance of the sale price for, and to foreclose a deed of trust lien on, apartment property Snyder sold to Payne, together with attorney's fees specified in Payne's note and other damages. Payne interposed an affirmative defense and counterclaimed for monetary damages. The City of Lubbock and others intervened, the City seeking recovery of unpaid ad valorem taxes on, and unpaid utilities furnished to, the apartment property.

Following a jury trial and acceptance of the jury's verdict, the court, disregarding some of the jury's answers, rendered judgment. By its judgment, the court decreed a monetary recovery for Snyder from Payne and foreclosure of the deed of trust lien, the City's recovery from Snyder and Payne jointly and severally for the unpaid utility charges, a recovery by Snyder from Payne for attorney's fees in the event of appeals, and denied all other relief sought by the litigants.

Payne alone has appealed. Utilizing six points of error, he seeks reversal of the judgment rendered and the rendition of judgment in his favor or, alternatively, the remand of the cause. Snyder and the City have responded, advocating an affirmance of the judgment. Under the rationale to be expressed, we reform the judgment and affirm.

Snyder and Payne contracted for the sale and purchase of a portion of the Sunnyside Apartments in Lubbock. The contract, completed on a printed form, has an insertion, hand printed at the end of the typed provision for the unpaid balance of the sale price to be represented by Payne's note, stating that personal liability shall be $100,000. Printed paragraphs contain these provisions: if an abstract is furnished, within ten days from its receipt Payne agrees to accept title as shown or to return it with written objections, which are to be cured within a reasonable time by Snyder to show good and marketable title; if a title policy is furnished, Payne agrees to consummate the sale within ten days after the title company approves the title; and in the event of failure to furnish good and marketable title, Payne can either cancel the contract or enforce specific performance.

At the closing on 10 April 1978, Snyder executed a general warranty deed and Payne executed a real estate lien note, for which his personal liability was limited to $100,000 "on this note," and a deed of trust. The instruments were left with J. Collier Adams, an attorney at the abstract and title company where the transaction was closed, for the insertion of the exact legal description of the property in, and the recording of, the appropriate instruments. Payne took possession of the property and paid the first installment due under the note, but did not pay any other payments.

After some unsuccessful negotiations, Snyder filed the suit underlying this appeal, and requested the appointment of a receiver. Following a hearing, the court appointed Juanita Klise as receiver. She filed a bond, took the oath of office, and served as receiver from 8 February 1979 until July of 1979, when she ceased to act as receiver for reasons unconnected with the receivership.

On 11 July 1979, Snyder, acting by and through Adams under a power of attorney and without posting an applicant's bond, filed an application for a temporary receiver, requesting the appointment of Bobby Wilson. The court appointed Wilson as temporary receiver until a permanent receiver could be appointed, set a hearing date, and commanded Payne to appear and show cause why a receiver should not be appointed. The hearing ordered was not held. Wilson did not file a bond or take the oath of office; but, as temporary receiver, he took and remained in possession of the apartment property until late October, 1979.

On 2 November 1979, Snyder, still acting through Adams and without posting an applicant's bond, again applied for the appointment of a temporary receiver, requesting that Jessie Cavazos be appointed. The court appointed Cavazos as temporary receiver until a permanent receiver could be appointed, set a hearing date, and ordered Payne to appear and show cause why a receiver should not be appointed. The hearing was not held. Without filing a bond or taking the oath of office, Cavazos took possession of the apartment property.

In May of 1980, the City gave written notice that utility service to the apartments would be terminated due to nonpayment. Snyder, reciting the likelihood that funds may be removed and unaccounted for, moved the court to require an accounting from Cavazos and, if the accounting reveals a deficiency, to remove Cavazos as receiver. The court ordered, and Cavazos rendered, an accounting.

Thereafter, the live pleadings positioned the issues for trial determination. Snyder sought from Payne the monetary amounts for the principal balance of the unpaid sale price, together with accrued interest and ten-percent attorney's fees provided for in the note, the unpaid ad valorem taxes, the value of fixtures and equipment removed from the premises, unaccounted for rent, waste of the property, and judgment foreclosing his deed of trust lien. A trial amendment allowed Snyder to charge Payne with breach of contract and liability for damages flowing therefrom.

In turn, Payne sought judgment that Snyder (1) take nothing because of breach of the warranty of title or, alternatively, because of a total or partial failure of consideration in that Snyder wrongfully dispossessed him from the premises, and (2) is monetarily liable (a) for fraud inducing Payne to enter into the contract, and (b) for deceptive trade practices committed in the transaction. Alternatively, Payne pleaded and sought a judgment decreeing that Snyder either was liable monetarily for wrongful receivership in the appointment of Wilson and Cavazos, or that the transaction should be rescinded with a restoration of the status quo. Furthermore, Payne pleaded a right to and judgment for title and possession of the premises, together with damages for the rental value and waste. During trial, Payne was permitted a trial amendment to plead that if his action for wrongful receivership was not applicable, Snyder was liable in damages, both actual and exemplary, for intentional trespass.

The City intervened to ask for judgment against Snyder and Payne as parties, and against Klise, Wilson and Cavazos as receivers, for the unpaid amounts of the accrued ad valorem taxes and the unpaid utility charges while the property was in the hands of the receivers. The receivers were alleged to be liable under the contracts they had signed for utilities and as agents of Snyder and Payne. All litigants, except Wilson, stipulated in writing that the total amount owing the City for utility services was $14,062.48.

Klise and Cavazos each intervened to claim compensation due as a receiver. Two apartment tenants intervened, asking the court to order utility services to be restored to the property. Each party litigant, except Wilson and the apartment tenants, filed responses to pleadings directed to them.

As material to the appeal, the jury in answering the special issues submitted, correspondingly found, by our paraphrasing, that

(8) Payne waived any right to claim that Wilson and Cavazos were not lawfully in possession of the property;

(9) Payne's limitation of personal liability provided for in the contract was intended by the parties to apply to the unpaid balance on the note;

(10) Payne removed approximately 35 porches from buildings on the premises, (11) which damaged the property (12) by reducing its fair market value by $15,000; and

(13) Payne removed 102 evaporative air conditioners from the property (14) of the reasonable value of $4,000 at the time of removal.

The jury, in answering other special issues submitted, correspondingly failed to find, by our paraphrasing, that

(15) Snyder, Adams or Jim Lewis, acting by and through Wilson and Cavazos, voluntarily took possession of the property and excluded Payne from possession;

(32) before Payne discontinued payments, Snyder failed to deliver to Payne a good and sufficient warranty deed conveying good and marketable title to the property;

(34) Snyder and Payne intended under the contract that Payne's personal liability to Snyder be in the maximum amount of the first $100,000 on the total contract price, or (35) on the promissory note to be executed under the contract (48) when Wilson requested and contracted for utility services for the property, he was acting as the agent of Snyder;

(49) when Wilson requested and contracted for utility services for the property, he was acting as the agent for Payne;

(50) when Cavazos requested and contracted for utility services for the property, he was acting as the agent for Snyder;

(51) when Cavazos requested and contracted for utility services for the property, he was acting as the agent for Payne;

(52) when Klise requested and contracted for utility services for the property, she was acting as the agent for Snyder; and

(5...