Thornton v. D.F.W. Christian Television, Inc.

• Decision Date: 30 June 1995
• Docket Number: No. 05-93-00131-CV,05-93-00131-CV
• Citation: 925 S.W.2d 17
• Parties: Opal THORNTON, Appellant, v. D.F.W. CHRISTIAN TELEVISION, INC. and Robert R. D'Andrea, Appellees.
• Court: Texas Court of Appeals

Page 17

925 S.W.2d 17

Opal THORNTON, Appellant, v. D.F.W. CHRISTIAN TELEVISION, INC. and Robert R. D'Andrea, Appellees.

No. 05-93-00131-CV.

Court of Appeals of Texas Dallas.

June 30, 1995.

Crole A. Faulkner, Bedford, Joseph E. Burns, Ferguson & Burns, P.C., Dallas, Joe B. Abbey, Law Offices of Joe B. Abbey, Dallas, for Appellant.

Stuart B. Lumpkins, Jr., William L. Latham, McDonald Sanders, P.C., Fort Worth, for Appellees.

Before LAGARDE, CHAPMAN and MORRIS, JJ.

OPINION ON REHEARING

MORRIS, Justice.

By order issued October 27, 1994, this Court granted in part and denied in part appellees' motion for rehearing and vacated the Court's June 7, 1994 judgment in this case. Accordingly, we withdraw our June 7, 1994 opinion in this case. This is now the Court's opinion.

Opal Thornton appeals the trial court's judgment in favor of D.F.W. Christian Television, Inc. (DFW) in this breach of contract and fraud action. Appellant asserts twenty points of error. She attacks the trial court's findings of facts and conclusions of law. She contends there was no evidence or insufficient evidence to support the trial court's findings. She argues the trial court erred as a matter of law in concluding that (1) the agreement between the parties obligated her to obtain a building site for the purpose of constructing a television station, (2) the agreement allowed DFW to recover $600,000 it paid in escrow if she breached that obligation, (3) she defrauded DFW and Robert R. D'Andrea (D'Andrea) in connection with the agreement, and (4) DFW suffered damage in the form of loss of the $600,000 it paid into escrow as a result of her breach of the agreement. She also contends the trial court erred in refusing to enter her proposed findings of fact and conclusions of law on her breach of contract and fraud claims against DFW and D'Andrea. Because we hold the trial court incorrectly construed the contract between the parties, we reverse and render in part, reverse and remand in part, and affirm in part.

FACTS

Appellant was attempting to obtain a construction permit from the Federal Communications Commission (FCC) for a new television station to be broadcast on channel 55 at Lake Dallas, Texas. D'Andrea desired to purchase from appellant an interest in the construction permit. On October 6, 1987, appellant as seller, DFW as buyer, and D'Andrea as guarantor of DFW's performance, entered into a purchase agreement. Pursuant to that agreement, appellant agreed to (1) form a corporation, (2) obtain consent from the FCC to assign the construction permit to the corporation, and (3) sell to DFW forty-nine percent of the newly formed corporation's stock. DFW agreed to pay into escrow $600,000 pending appellant's performance of these obligations under the agreement. The agreement provided the $600,000 would be released from escrow to appellant upon delivery of forty-nine percent of the corporation's stock to the escrow agent. If appellant failed to deliver the stock within ninety days of the agreement, the agreement provided the escrow agent was to return the $600,000 to DFW.

With respect to the forty-nine percent of the stock in the newly formed corporation to be issued to DFW, the agreement provided:

The said stock certificates shall be issued in the name of [DFW] and will be held in escrow pending performance under the Lease/Purchase Agreement set forth hereinbelow. [DFW] will have its full 49 percent voting and equity rights in the Corporation during the period of time when the stock remains in escrow, except that it will be unable to transfer the stock, put the stock up as collateral for a loan, or otherwise encumber the stock without the express consent of [appellant]. To demonstrate its good faith, [appellant] shall likewise deliver its shares equalling 51 percent of the Corporation to the escrow. [Appellant's] stock shall be released in the event [DFW] fails to perform under this Agreement.

In addition to paying $600,000 into escrow, the agreement imposed the following obligations on DFW:

... [DFW] agrees to construct the physical facilities required to place the station in operation in accordance with the attached outline of equipment or equivalent, but [DFW's] obligation under this provision shall fully be satisfied when it has supplied the equipment costing the aggregate amount shown on the said attachment. [DFW] shall lease the facilities to the Corporation under a Lease/Purchase Agreement....

Further, in the event DFW failed to build the technical facilities and lease them to appellant, the agreement provided in paragraph 8:

... [DFW] agrees that its 49 percent stock will be returned to [appellant]. The escrow agent is hereby authorized to return the stock to [appellant] upon adequate proof from [appellant] that [DFW] has not built the station as required. If said failure to construct is due to a breach by [DFW], [appellant] will not be required to return the escrow money previously paid hereunder.

DFW deposited $600,000 into escrow pursuant to the agreement. Appellant formed the corporation (TV-55) and deposited all stock into escrow pursuant to the agreement. The escrow agent delivered the $600,000 to appellant. The station was never constructed or put into operation. The escrow agent later delivered to appellant one hundred percent of the TV-55 stock. Appellant sued DFW and D'Andrea asserting claims for breach of contract and fraud. Appellant contended DFW's failure to construct the station constituted a breach of the agreement. DFW and D'Andrea filed a counterclaim for breach of contract and fraud. They contended appellant first breached the agreement because it was her obligation to obtain a site for the television station, which she never did. DFW and D'Andrea asserted appellant never had a valid construction permit because she never obtained a location for the station. Because appellant never obtained a valid construction permit, DFW and D'Andrea contended their obligation under the agreement to construct the station never arose.

The case was tried before the court. At the conclusion of the evidence, the trial court rendered judgment for DFW in the amount of $600,000 plus attorney's fees. The judgment provided: "IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant, D.F.W. Christian Television, Inc., recover on its Counterclaim from Opal Thornton, Plaintiff, actual damages in the sum of $600,000.00." The trial court's judgment did not specify whether this award was based on DFW's breach of contract or fraud claim. The trial court, however, made numerous findings of fact and conclusions of law. The trial court found appellant received the $600,000 from the escrow agent and was the one hundred percent shareholder of TV-55. The trial court concluded the agreement imposed the obligation on appellant to obtain a site for the television station. The trial court found appellant breached that obligation by failing to obtain a site and to secure a valid construction permit. The trial court concluded such breach excused DFW's obligation to construct the station. The trial court concluded paragraph 8 of the agreement provided that DFW would recover the $600,000 it paid into escrow on appellant's breach of the agreement by failing to obtain a valid construction permit. The trial court found DFW was entitled to recover the $600,000 paid to appellant out of escrow as a result of appellant's breach of the agreement by failing to obtain a valid construction permit. The trial court also made findings and conclusions in favor of DFW and D'Andrea on their fraud claim. The trial court, however, did not make a finding or conclusion on the amount of damages DFW and D'Andrea were entitled to because of the fraud the trial court found. The trial court awarded DFW its attorneys fees on the basis of its breach of contract claim.

Notwithstanding the findings and conclusions in favor of D'Andrea, in its judgment the trial court did not award D'Andrea any affirmative relief. Moreover, in its judgment the trial court specifically recited that all relief not granted was denied. Under the Aldridge presumption of finality and pursuant to the trial court's recitation that all relief not granted was denied, the trial court effectively ordered that D'Andrea take nothing on all his claims. See North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 896-98 (Tex.1966). D'Andrea did not file a cross-point of error complaining of the trial court's take nothing judgment against him. To the extent D'Andrea complained for the first time about the trial court's take nothing judgment against him in DFW's and his motion for rehearing, we hold that his complaint is untimely. See generally, Davis v. City of San Antonio, 752 S.W.2d 518, 520-22 (Tex.1988); Haynes v. McIntosh, 776 S.W.2d 784, 788 (Tex.App.--Corpus Christi 1989, writ denied); In re R.L.H., 771 S.W.2d 697, 702 (Tex.App.--Austin 1989, writ denied).

DISCUSSION

Appellant's Multifarious Brief

In addition to filing eighty-three designated findings of facts, the trial court filed fifty designated conclusions of law. In the front of appellant's brief, she enumerates twenty separate points of error. Under most of her points of error, appellant makes parenthetical references to the numbers used by the trial court to designate its findings of fact and conclusions of law. Appellant in some instances parenthetically refers to the numbers of her proposed findings and conclusions not filed by the trial court. In other instances, and also in parentheses under certain enumerated points of error, appellant makes narrative statements, which we take to be an attempt to amplify the point of error stated.

More specifically, appellant's points of error 1, 3, 5, 7, 8-10, 12, 14-16, and 19-20 attack certain findings of fact and conclusions of law made by the trial court. These points of error challenge a total of forty-one separate findings of fact and forty-one separate conclusions of law. None of these points...