Valencia v. Garza

• Decision Date: 22 February 1989
• Docket Number: No. 04-88-00218-CV,04-88-00218-CV
• Parties: Jose Luis VALENCIA and Carolina Valencia, Appellants, v. Andriana Elisa GARZA and Juan Garza, Appellees.
• Court: Texas Court of Appeals

Page 893

765 S.W.2d 893

Jose Luis VALENCIA and Carolina Valencia, Appellants, v. Andriana Elisa GARZA and Juan Garza, Appellees.

No. 04-88-00218-CV.

Court of Appeals of Texas San Antonio.

Feb. 22, 1989.

Edel P. Ruiseco, Del Ruiseco, P.C., Harlingen, for appellants.

Rodolfo R. Munoz, San Antonio, for appellees.

Before BUTTS, REEVES and CARR, JJ.

OPINION

BUTTS, Justice.

The controversy in this case arose from a contract for sale of a house located in San Antonio. Appellee Andriana Elisa Garza purchased property and received a warranty deed from Ponciano Sauceda, Jr., and his wife. She employed Sauceda to build a house on her property. Appellants Jose Luis and Carolina Valencia (Valencia) moved into the house in June 1985. They paid Garza the sum of $5000 in July 1985. On August 6, 1985, the parties met in a lawyer's office to execute the contract for sale of the house. The price was $30,000 including the down payment of $5000. They discussed the terms; however, only Garza signed the contract of sale. The contract provided in part:

Third. When the entire purchase price, both principal and interest, as well as all other indebtedness owed hereunder, has been paid by Buyer(s) in accordance with the terms and provisions of this contract Seller will convey said property to Buyer(s) by warranty deed, on current form of the State Bar of Texas, conveying good and indefeasible title, with covenant of general warranty ...

This was an executory contract. The contract also provided for cancellation of the contract due to default by the buyers. In that event, the buyers would become tenants at will and the seller could institute forcible entry and detainer proceedings. In all respects this was a contract for sale and for conveyance of the title after the principal and interest had been paid in full and other contractual conditions met.

Valencia refused to sign the contract on August 6, 1985. At trial the explanation for the refusal was that they did not read and write English and wanted the terms explained. There was other testimony, however, that they wanted to obtain a deed and deed of trust at that time instead of a contract for sale. The contract remained unsigned.

Valencia continued to live in the house. Both Garza and Valencia agree the contractor failed to correct construction problems in the house or to make necessary repairs. On January 21, 1986, Garza retained a lawyer to make demand on the builder and to file suit. Garza filed a Deceptive Trade Practices Act suit against the contractor in March 1986. The contract for sale still did not contain Valencias' signatures.

On February 12, 1986, Valencia signed a copy of the contract after consulting with a lawyer. On February 14, Valencia signed the original. Garza's father was present. Garza did not sign it again. Valencia then intervened in the suit against the builder, also suing Garza. Thereafter, Valencia moved for severance of the present suit against Garza, which was granted. Shortly after that Valencia nonsuited the builder.

Valencia discontinued paying any monthly sum to Garza in July 1986. We point out that on appeal this court does not have before it for determination and does not decide those other matters included in the record, such as a forcible entry and detainer suit, motion for sanctions in the county court at law, the writ of attachment and habeas corpus involving Garza, motion for protective orders, nor any purported action originating in Hays County. Our subject is only the judgment on appeal.

Valencia sued Garza for rescission of the contract and damages for fraud and misrepresentation and, in the alternative, for specific performance and damages. The trial court found for Garza. Valencia brings twelve points of error.

The trial court entered findings of fact and conclusions of law. The findings are that Valencia refused Garza's offer to sell pursuant to a contract for sale/deed; that Garza retained counsel to prosecute suit against the builder on January 21, 1986; that Valencia intervened in Garza's suit and subsequently asserted "several causes of action" against Garza; that the trial court heard the severed cause (which is the present case). The trial court then concluded that Valencia rejected the offer and that Garza has sole and exclusive title to the property. The court also placed in this portion (conclusions of law) the finding that Valencia recover the sum of $4,800 from the initial "down payment." The court allowed Valencia an equitable lien on the property to insure payment. (Valencia was ordered to vacate the property in the judgment.)

The first two points of error challenge the legal and factual sufficiency of the evidence to support the finding of refusal to accept the offer. We will view the evidence as required by the appropriate standards on appeal.

The trial judge as the trier of fact may take into consideration all the facts and surrounding circumstances in connection with the testimony of each of the witnesses tendered, and to arrive at his conclusion as to the facts controlling this case. He may accept or reject all or any part of the testimony of the witness tendered. Electro-Hydraulics Corp. v. Special Equipment Engineers, Inc., 411 S.W.2d 382, 386-87 (Tex.Civ.App.--Waco 1967, writ ref'd n.r.e.).

Although there may have been conflicting evidence regarding what transpired in the lawyer's presence during the visit to his office and what each believed was the reason Valencia refused to sign the contract for sale on August 6, 1985, the evidence shows clearly that Valencia did refuse to sign on that date.

It is axiomatic that a contract for sale of land is executory where the deed of conveyance has not been delivered and accepted. Podolnick v. Hamilton, 349 S.W.2d 715, 716 (Tex.1961). Thus, the legal title remains in the seller until the purchase money is paid.

The trial court was required to determine whether Valencia refused Garza's offer of a contract for sale (a contract to convey upon payment of the purchase price). Did Valencia's signature in February, six months after the offer on August 6, 1985, effect a binding contract?

It is the established law in this state that where a case has been tried without a jury and there is ample evidence in the record to support the findings of the trial court, such findings have the same force and effect as a verdict of the jury on the facts found, and a reviewing court must affirm the trial court's judgment in the absence of other substantial error. Hilton v. Haden Associates, Inc., 458 S.W.2d 854, 858-59 (Tex.Civ.App.--Fort Worth 1970, no writ) (citations omitted). Under a "no evidence" challenge to the finding (legal insufficiency), the appellate court considers only the evidence tending to support the finding and disregards all evidence to the contrary. Ray v. Farmers' State Bank of Hart, 576 S.W.2d 607, 609 (Tex.1979). Where there is at least some evidence of probative force to support the finding, it is binding on the appellate court. Id. at 610.

When a factual insufficiency challenge is made, this Court must consider all the evidence. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Even though the finding may appear to be against the preponderance of the evidence, it will be upheld unless it is so against the overwhelming weight of the evidence as to be clearly and manifestly wrong. Houston National Gas Corp. v. Pearce, 311 S.W.2d 899, 903 (Tex.Civ.App.--Houston 1958, writ ref'd n.r.e.). Thus, unless there is no evidence to support the finding or unless the finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong, the appellate court may not set it aside. Corporate Personnel Consultants v. Wynn Oil Company, 543 S.W.2d 746, 748 (Tex.Civ.App.--Texarkana 1976, no writ).

The trial court considered evidence presented by Garza, who denied that she ever entered into a contract for sale with the Valencias because Valencia refused to agree to the terms of the contract, thereby refusing to agree to the sale under the contract she offered. An attorney consulted by Valencia testified that they wanted a deed and deed of trust. He telephoned Garza's lawyer to discuss drawing up those instruments for the parties. Garza was notified by letter that Valencia wanted a deed. This constituted a counteroffer by Valencia and non-acceptance of the contract for sale. Garza testified that she therefore considered the Valencias to be renters (tenants at will).

An offeree's power of acceptance terminates when the offeree receives from the offeror a manifestation of intention not to enter into a contract. RESTATEMENT (SECOND) OF CONTRACTS § 42 (1981). The offeree may acquire indirect reliable information inconsistent with an offer. Thus, the power of acceptance is terminated. Id. Even if the offer had remained viable, the acts of the owner (offeror) demonstrated her intention not to enter into the contract.

In this case Garza as title owner of the subject property retained legal counsel to move against the contractor on January 21, 1986. Notice, as required, was sent to the contractor. Thereafter Valencia consulted a lawyer and signed a copy of the sales contract. Valencia on February 14, 1986, signed the original contract. Garza did nothing at that time. While there was evidence that her father knew of the Valencia action, there is no evidence that Garza directed him in any regard. We hold that the "old" August 6, 1985, signature of Garza was not evidence, in and of itself, that the offer remained viable on February 15, 1986, and that the presence of her father at the time is not the required strict proof of agency.

It is basic contract law that there must be a common intention of the parties, with the offer by one and acceptance by the other of stated terms to effect a contract. We agree with the trial court's implied finding that these requisites did not occur at that time.

There is another basis for the judgment in ...