Salinas v. Beaudrie

• Decision Date: 11 December 1997
• Docket Number: No. 13-96-473-CV,13-96-473-CV
• Parties: Gumaro De La Cruz SALINAS and Anna Elva Salinas, Appellants, v. Joan Rebecca BEAUDRIE, Appellee.
• Court: Texas Court of Appeals

Page 314

960 S.W.2d 314

Gumaro De La Cruz SALINAS and Anna Elva Salinas, Appellants, v. Joan Rebecca BEAUDRIE, Appellee.

No. 13-96-473-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 11, 1997.

Richard Alamia, Edinburg, for appellants.

Sidney R. Meadows, McAllen, for appellee.

Before SEERDEN, C.J., and CHAVEZ and RODRIGUEZ, JJ.

OPINION

CHAVEZ, Justice.

Appellants seek the reversal of a judgment entered against them on their claims against appellee. We affirm.

Factual background

Appellee is the developer of the Ranchito La Homa ("La Homa") subdivision, located in Hidalgo County, Texas. The record reflects that La Homa also lies within the extraterritorial jurisdiction of the City of Mission, Texas. On May 3, 1993, appellants, who are married, contracted with appellee to purchase five acres of unimproved land, consisting of Lot 5 of La Homa (a one-acre tract), and four adjacent acres which had not been subdivided according to local regulations. ¹ The record also indicates that appellants are not entirely fluent in the English language.

Two separate contracts for deed were executed by appellants and appellee--one contract embracing Lot 5 and the other embracing the four-acre tract. The payment-related terms of the contracts for deed are as follows:

                                                Four-acre tract
                Date of contract for deed:       May 3, 1993
                Sale price:                      $16,000
                Down payment:                    $ 4,850
                Deferred principal:              $11,150
                Interest on deferred principal:  0%
                Payment terms:                   "The entire Deferred Principal Amount is due
                                                   on or before May 3, 1994."
                                                     Lot 5
                Date of contract for deed:       May 3, 1993
                Sale price:                      $12,500
                Down payment:                    "$2,000 cash, plus $3,000 for transfer of 1984
                                                   Mercury automobile" 2
                Deferred principal:              $ 7,500
                Interest on deferred principal:  10% annually
                Payment terms:                   monthly installments of $150
                

The record indicates that two separate contracts were executed to accommodate appellants' desire for differing payment terms as between Lot 5 and the four-acre tract.

The contract on the four-acre tract provides as follows: "Buyer acknowledges that the subject property has not been subdivided. Buyer agrees to be responsible for complying with applicable subdivision regulations of the government entity having jurisdiction over the property." Both contracts also contain, inter alia, the following terms: (1) upon default by the buyers (appellants), the seller (appellee) may recover its costs of collection; (2) upon default by the buyers, the seller may "cancel this contract, declare all of Buyer[s'] interest ... forfeited, and retain as liquidated damages all money paid by Buyer[s] to Seller under this contract ..."; (3) that "Buyer[s] ha[ve] examined the property to Buyer[s'] complete satisfaction and know[ ] its condition"; and (4) that "[n]o delay by Seller in enforcing any part of this contract shall be deemed a waiver of any of Seller's rights or remedies." Although testimony received at trial was conflicting as to precisely who orally translated the contracts into Spanish for appellants, the record does indicate that some one--either appellee's attorney's legal assistant, or Anna Salinas's nephew--translated the documents for appellants. ³

Appellants proceeded to construct improvements on Lot 5. However, the record indicates that they were denied a building permit for the four-acre tract by the City of Mission, because it was not subdivided acreage. In any event, appellants were considered by appellee to be in default as to the payment terms of both contracts for deed by July 27, 1994.

On July 27, 1994, appellee's attorney sent notices of default to appellants. The notice regarding Lot 5 provided that appellants owed, as of the date of the letter, $300, stating that "unless you make the payments by October 27, 1994, the seller has the right to take possession of your home and to keep all payments you have made to date." The notice regarding the four-acre tract provided that appellants owed, as of the date of the letter, $5,000, stating that "unless you make the payments by August 8, 1994, the seller has the right to take possession of your home and to keep all payments you have made to date."

Nothing in the record indicates that appellants disputed the amount of the debt, although they were advised of their right to dispute in the notices of default. Further, nothing indicates that appellants proceeded to tender payment to appellee. However, Anna Salinas testified at trial that she and her husband were unable to locate appellee at the contractually-designated place of repayment. On August 26, 1994, appellee's attorney forwarded notices of cancellation to appellants, canceling the contract for deed as to the four-acre tract.

Appellants filed their original petition against appellee in the underlying cause on October 24, 1994, setting forth claims under Chapter 17, Subchapter E, of the Texas Business and Commerce Code. The record indicates that, on December 6, 1994, appellants tendered $300 to appellee; the payment was explicitly earmarked by appellants for Lot 5. The foregoing is the only post-default payment evidenced in the record. On June 19, 1995, appellee filed a counterclaim, seeking cancellation of the contracts for deed, attorney's fees, and the issuance of a writ of possession.

Appellee's attorney forwarded a cancellation notice regarding the contract for deed on Lot 5 to appellants on May 1, 1996. On May 2, 1996, appellants filed their first amended petition, which was the live petition at trial, raising the same material claims set forth in their original petition, and also seeking that appellants "be ordered to meet all Hidalgo County Subdivision Ordinance requirements." ⁴ The bench trial commenced on May 14, 1996.

The judgment was signed on May 29, 1996. The judgment contains sixteen findings. In addition, appellants were ordered to take nothing on their claims against appellee, and appellee was awarded cancellation of the contracts for deed, attorney's fees, costs, and possession of Lot 5 and the four-acre tract.

Appellants filed their requests for findings of fact and conclusions of law on June 4, 1996. The record does not contain the trial court's findings and conclusions, if any, nor does it contain a notice of past-due findings and conclusions. This appeal ensued in eleven points of error.

Findings and conclusions

The second, third, fourth, fifth and eleventh points of error complain of the trial court's findings which are contained in the body of the judgment. However, such findings do not belong in the judgment. TEX.R. CIV. P. 299a; see also Valley Mechanical Contractors, Inc. v. Gonzales, 894 S.W.2d 832, 834 (Tex.App.--Corpus Christi 1995, no writ) (stating that findings of fact are to be filed as a document or documents separate and apart from the judgment); R.S. v. B.J.J., 883 S.W.2d 711, 720 (Tex.App.--Dallas 1994, no writ) ("The parents appear to challenge 'findings' contained in the body of the judgment. Such findings are inappropriate and may not be considered on appeal."). Therefore, we cannot consider the trial court's findings that are contained within the body of the judgment. ⁵ The second, third, fourth, fifth and eleventh points of error are overruled.

In their ninth point of error, appellants contend that the trial court "erred in not findings [sic] that there was no meeting of the minds on the Contract for Deed.... [Emphasis added.]" Although appellants requested findings of fact and conclusions of law, no findings and conclusions--aside from the findings recited in the judgment--appear in the record; further, the record does not show that appellants have complied with Texas Rule of Civil Procedure 297 by filing and serving a "Notice of Past Due Findings of Fact and Conclusions of Law." See TEX.R. CIV. P. 297. Appellants' failure to file this reminder waived their right to complain on appeal of any error related to the trial court's failure to make a finding or conclusion. See Pierson v. GFH Financial Services Corp., 829 S.W.2d 311, 314 (Tex.App.--Austin 1992, no writ) (citing Las Vegas Pecan & Cattle Co., Inc. v. Zavala County, 682 S.W.2d 254, 255 (Tex.1984)). The ninth point of error is overruled.

Declaratory relief

The remaining points of error--points one, six, seven, eight and ten--relate to the trial court's failure to make various declarations. We note that appellant's "First Amended Original Petition" (the live petition at trial) does not seek relief pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code. This discrepancy, standing alone, would permit our refusal to consider the points of error. See TEX.R. CIV. P. 301 ("The judgment of the court shall conform to the pleadings[.]"). However, because appellants prayed for general relief, and in furtherance of justice, we consider the merits of these points of error.

Merger of contracts

The first point of error contends that the trial court "erred in failing to declare that there were two separate Contract [sic] of [sic] Deeds [sic] to sale [sic] two different parcels of land and that there was no merger of contracts." This point bears on appellants' subsequent arguments regarding the validity of the contractual clause related to the four-acre tract, wherein appellants agreed to be responsible for compliance with local subdivision regulations. Evidence in the record suggests that, were the underlying contracts to be deemed a singular conveyance of five acres, the complained-of provision would be valid, whereas, were the transaction to be regarded as two separate conveyances (one for Lot 5 and another for the four-acre tract), the provision may have been void ab initio as illegal, pursuant to local regulations and/or Texas statutes.

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