Ratsavong v. Menevilay, No. 08-05-00044-CV (TX 10/27/2005), 08-05-00044-CV.

CourtSupreme Court of Texas
Writing for the CourtRichard Barajas
Docket NumberNo. 08-05-00044-CV.,08-05-00044-CV.
Decision Date27 October 2005

Page 1

No. 08-05-00044-CV.
Court of Appeals of Texas, Eighth District, El Paso.
October 27, 2005.

Appeal from the 68th District Court of Dallas County, Texas, (TC# DV-0209543-C).

Before BARAJAS, C.J., McCLURE, and GUADERRAMA, JJ., GUADERRAMA, J., sitting by assignment



This is an appeal from a breach of an alleged oral contract to sell real property. Appellants, Von Ratsavong and Fong Souphankhaysy, appeal a judgment awarding title to property located at 610 Neomi Street, Dallas, Texas to Appellees, Bounpone Menevilay and Sypanome Menevilay. On appeal, Appellants raise fifteen issues for review.


On October 8, 2002, Appellees filed a lawsuit against Appellants in which they alleged that on or about April of 1994, they entered into an agreement with the Appellants for the purchase of the property located at 611 Neomi Street in Dallas, Texas. At the time, the Appellees did not have the credit to purchase the house, but the agreement entered into allowed Appellees to borrow Appellants' credit to purchase the home. According to the Appellees, terms of the agreement were as follows: Appellees were to pay the note in the principal amount of $12,500 executed by the Appellants for payment of the house and premises. Upon payment of the total amount, the understanding was that Appellants would execute a general warranty deed conveying the title to the property to the Appellees. As agreed upon, the Appellees paid a $2,000 down payment. At the time the agreement was entered into, the property was in poor condition and had been purchased "as is" with the understanding that the Appellees would complete the necessary repairs. Appellees moved into the property and began making repairs and improvements to the property. By the time the lawsuit was initiated, the Appellees had paid in full the debt and had made repairs in the home of an estimated cost of $28,000. The Appellants filed their original answer asserting a general denial to the allegations and asserting the following affirmative defenses: estoppel, waiver, lack of consideration, failure of consideration, lack of clean hands by plaintiffs, fraud, the statute of frauds, applicable statute of limitations, latches, and illegality.

On December 14 and 15, 2004, the trial court held a hearing. At the hearing, Bounpone Menevilay testified that he had known the Appellants for over thirty years and that they had been good friends, dating back to when they lived in Laos. He testified that in July of 1993, while he was living in California, Ratsavong visited their home; during his visit, he indicated that there was a house next to his in Texas, and that if Menevilay was interested in buying, Ratsavong would allow him to use his credit to do so. At the time, Menevilay did not have the necessary credit to purchase a house, but it is customary in the Laotian culture for friends to lend each other their credit for the purchase of homes and vehicles; it was customary to not sign written contracts for such agreements. Ratsavong indicated to Menevilay that the house was being sold for $14,500 and that Menevilay would need to give him $2,000 down payment and that he would take care of everything else. According to Menevilay, Ratsavong entered into a contract for the purchase of the home, but the understanding was that Menevilay would make the payments and that the house was really his.

Menevilay testified that the house was not in good condition and that it needed many repairs. When he bought the house, he indicated the bathroom was not in a usable condition. Menevilay testified that he repaired the bathroom, painted the exterior and interior of the house, he constructed a garage, improved the sidewalk and added a concrete driveway to the garage, he replaced a door and windows, and he added a utility room for the washer and dryer. He paid for all the repairs and completed most of the work himself with the help of his wife. After a repair was completed, Ratsavong would often come over to see the improvement and stay for dinner to celebrate the accomplishment. Menevilay testified that he would talk to Ratsavong about some of the repairs because they were friends, and that he did not get a building permit for any of the improvements.

In addition to making these repairs, he testified that he made the mortgage payments, paid the insurance on the home, and the property taxes for the entire time he was living at the house, up to the point where litigation over the title was considered. Once he finished paying the mortgage on the house, Ratsavong refused to transfer the deed to the Appellees. Rather, on September 27, 2002, he received a Notice to Vacate and Notice of Termination of Tenancy at Will from Ratsavong's attorney. At no point in time did Appellees believe they were renting the home. Menevilay indicated that if that were the case, he would not have done any improvements to the house. He indicated that in the previous properties he had rented, he had never made any improvements.

During cross-examination, Menevilay indicated that in the past, he had signed a purchase contract for a mobile home, and rental leases for several properties he had rented. When asked if he found it strange that no contract was signed for the purchase of the home on 610 Neomi Street, he indicated that he did not think that Ratsavong would take the house away from him because they were good friends.

Mrs. Menevilay's testimony reiterated much of what Menevilay indicated in his testimony. She indicated that Ratsavong had approached them about buying the house using his credit in July of 1993. She indicated that Ratsavong had mentioned that he did not want to be driving long distances to visit them in California, and that this house was just next door to his home. She testified that Ratsavong asked for a $2,000 down payment; however, she never saw her husband actually give Ratsavong the money. She also indicated that much of the improvements on the home were done by her and her husband and that these occurred as soon as they move in because the house was "ugly."

Ratsavong testified at trial as well. He indicated that he purchased the home in question for his children. The deed to the home is under his name and his wife's name, Fong Souphankhaysy. He indicated that he never told the Appellees anything about lending them his credit to purchase the house. He further denied having any conversation regarding the home in July of 1993 with the Appellees. He had gone to California to visit family and the only reason he visited with the Appellees was because his car broke down. He pointed out that he purchased the house on April 25, 1994, after the 1993 visit. In explaining how Appellees came to live in his home, Ratsavong testified that one day, he saw Menevilay parked outside the house on 610 Neomi Street. He did not know where the Appellees were living at the time or how they got to his house. At that point, Ratsavong testified that he asked Menevilay if he wanted to rent the house and indicated to him that it was in poor condition and that he would be responsible for any improvements and repairs. The rent was set at $258, plus taxes and insurance. His understanding of this agreement was that it was a rental contract. He never told Menevilay that after the mortgage was paid off, he would transfer the deed to the Appellees.

Ratsavong further indicated that Menevilay had completed improvements on the house and that only sometimes would Menevilay ask for his permission to make the improvements. He denied having received $2,000 from the Appellees as a down payment on the home. He testified that he and his wife paid that money by selling some of her jewelry. Mrs. Souphankhaysy also testified that the money for the down payment came from selling her jewelry. She also denied having any discussions in July of 1993 with the Appellees about allowing them to use their credit to buy the home at issue in this case.

After considering all the evidence, the trial court indicated that having only the credibility of the parties, it found the Appellees to be more credible and awarded title to the Appellees and reimbursement to the Appellants for the monies they paid in taxes and insurance after Appellees stopped paying those expenses. The trial court signed a judgment on December 22, 2004, in which it found that:

Bounpone Menevilay and Sypanome Menevilay are entitled to recover of and from Von Ratsavong and Fong Souphankhaysy the title to those premises located at 610 Neomi Street, Dallas, Dallas County, Texas 75217 . . . .

Appellants timely filed this notice of appeal.


Initially, we note that Appellants have asserted fifteen points of error in their appellate brief. After careful review of their brief and reply brief, we find that the Appellants have failed to properly brief Issue Nos. Four through Seven, Issue No. Ten, Issue No. Eleven, Issue No. Thirteen and Issue No. Fourteen. In Issue No. Four, Appellants argue that even if there was an oral contract, the Appellees admitted that they did not comply with the purported oral contract. Specifically, Appellants assert that Appellees failed to make the $2,000 down payment, pay the insurance and property taxes on the home. In Issue No. Five, Appellants contend there was a lack of consideration, thus error was committed in the trial court's decision to enforce the oral agreement. Appellants do not cite to any relevant case law in their discussion of this issue. Rather, in a two paragraph argument, they assert that lack of consideration was asserted as an affirmative defense and that Appellees indicated that Appellants wanted $20,000 for the home, which Appellees refused to pay. Appellants then reach the conclusion that this was lack of consideration. In Issue No. Six,...

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