Tye v. Apperson

• Decision Date: 08 May 1985
• Docket Number: No. 2-84-228-CV,2-84-228-CV
• Citation: 689 S.W.2d 320
• Parties: Tony TYE and George W. Brock, Appellants, v. William E. APPERSON, Jr. and Wife, Sherry Apperson, Appellees.
• Court: Texas Court of Appeals

Page 320

689 S.W.2d 320

Tony TYE and George W. Brock, Appellants, v. William E. APPERSON, Jr. and Wife, Sherry Apperson, Appellees.

No. 2-84-228-CV.

Court of Appeals of Texas,

Fort Worth.

May 8, 1985.

Douglas & Elms, Inc. and Lee Elms and Glen D. Mangum, San Antonio, for appellants.

Hill, Heard, Oneal, Gilstrap & Goetz and Shane Goetz and Frank M. Gilstrap, Arlington, for appellees.

Before JORDAN, ASHWORTH and HOPKINS, JJ.

OPINION

JORDAN, Justice.

The Appersons, appellees, filed a declaratory judgment suit asking for a judgment declaring void an option granted appellants Tye and Brock in February of 1978 to purchase certain real estate in Fort Worth, Texas. Appellees also sued to recover the reasonable rental value of the property for the time it was occupied by appellants during the pendency of the lawsuit. Appellants Tye and Brock, by a counterclaim, contend that they had properly exercised their option and seek specific performance of the option to purchase.

In a trial to the court without a jury, the judgment was rendered for appellees, holding the option agreement unenforceable and denying appellants' specific performance. The judgment also awarded appellees reasonable attorney's fees, court costs, and the sum of $19,000.00 which had been deposited into the registry of the court by appellants.

We reverse and render.

In February of 1978, and at the time of trial of this case in October of 1983, the Appersons were the owners of Lots 2, 3, 4, and 5, Block 16, Wilkes Estates, a subdivision of a portion of the J.M. Daniels Survey, City of Fort Worth, Tarrant County, Texas, known also as 5733 Oakdale Drive, Fort Worth. Tye and Brock are the principal shareholders and officers of Hercules DFW Concrete Pumping Service, Inc. (Hercules), a corporation engaged in the concrete pumping business. Under date of February 6, 1978, the Appersons as lessors and Hercules and Tony Tye, individually and as president of Hercules, entered into a lease agreement of the Appersons' property for a period of five years, the lease expiring on or about February 5, 1983. On the same date, the Appersons and Tye and Brock individually entered into a separate agreement under which, on certain terms and conditions, Tye and Brock were granted an option to purchase the property covered by the lease.

The lease agreement provided that no improvements or alterations shall be made in or to the premises without the consent of the lessor in writing and also provided that the lessee should not make any alterations in the building, (except as therein provided), without the consent of the lessor in writing. The lessee also agreed to pay one-half of all real estate taxes and one-half of all the insurance on the demised premises during the terms of the lease as those items became due, upon notification to the lessee by the lessor.

The second paragraph of the option agreement of February 6, 1978, provided as follows:

Optionee shall have the right to purchase the above described real property any time during the five year period beginning on February 6, 1978, and ending on February 5, 1983. To exercise said option, Optionee must give written notification to Optionor of Optionee's election so to exercise said option. Said notification must be given no later than January 6, 1983. Otherwise, said option shall lapse and be null and void.

Paragraph six of the option agreement stipulated the following:

It is specifically understood and agreed that Optionees are presently the sole shareholders of HERCULES DFW CONCRETE PUMPING SERVICE, INC., a Texas corporation, and the Lessee under the terms and provisions of the Lease Agreement which is marked Exhibit B hereto. Accordingly, this Option Agreement is conditioned upon the true and full performance of all of the Lessee's obligations under the terms and conditions of that Lease Agreement. Should Hercules DFW Concrete Pumping Service, Inc., and/or Tony Tye and/or George W. Brock default or otherwise be in violation or breach of any of the terms and conditions of that Lease Agreement, then, at Optionor's election, this Option Agreement shall lapse and be null and void for all purposes.

At the conclusion of the bench trial, the court rendered judgment for appellees holding that the option agreement was unenforceable and denying appellants' counterclaim for specific performance. No findings of fact or conclusions of law were filed, although they were requested. On appeal, no complaint of this failure to file findings of fact and conclusions of law is urged and any error in such failure is waived.

Where there are no findings or fact or conclusions of law filed by the trial court, this court must affirm the judgment of the trial court if it can be upheld on any legal theory that finds support in the record. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977); Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962). By their first five points of error, appellants contend that: the trial court erred in finding that strict compliance with the lease agreement by Hercules was a condition precedent to appellants' exercise of the option; the court erred in holding that Hercules materially breached the lease agreement; appellees waived their right to insist upon strict compliance with the lease agreement by Hercules; and appellees were also equitably estopped from alleging breaches of the lease agreement. In their sixth and seventh points of error, appellants maintain they were entitled to specific performance of the option agreement and that the judgment must be reversed because of a lack of necessary parties.

We have carefully reviewed the parties' briefs, as well as the entire record in this case, and while we have also studiously reviewed all points of error, our decision to reverse and render judgment in this case is based on our sustaining of point of error six, and, accordingly, our discussion for the most part, will be confined to this point of error. With respect to the remaining six points of error asserted, it is our opinion that there is either no merit to those points or that, because of our disposition, discussion of such points is unnecessary. Accordingly, those points are all overruled.

By way of explanation, it should be pointed out that as previously mentioned, the lease agreement dated February 6, 1978, was between William E. Apperson, Jr. and wife, Sherry Apperson as lessors and Hercules DFW Concrete Pumping Service, Inc., as lessee. The lease agreement was signed by the Appersons and Tony Tye, individually and as president of Hercules. The option agreement, on the other hand, also signed on February 6, 1978, was between the Appersons, as owners and optionors, and Tony Tye and George W. Brock, individually, as optionees. The option agreement did refer to the lease agreement of the same date between the Appersons and Hercules and it did contain the provisions with respect to the exercising of the option and the termination of the option, above quoted as paragraphs two and six of the option agreement.

The trial court necessarily and impliedly found that certain provisions of the lease agreement between appellees and Hercules had been violated, and it also found that strict compliance with the lease agreement by Hercules was a condition precedent to appellants' exercise of their option.

We are bound by the trial court's findings under the evidence and agree there is ample evidence to show numerous violations of...