Versailles, Inc. v. Quadrant, Inc.
| Decision Date | 31 July 1986 |
| Docket Number | No. B14-85-511-CV,B14-85-511-CV |
| Citation | 715 S.W.2d 161 |
| Parties | VERSAILLES, INC., Appellant, v. QUADRANT, INC., Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Kris Thomas, Barry Snowden, Houston, for appellant.
William K. Andrews, David S. Lynch, Houston, for appellee.
Before PAUL PRESSLER, SEARS and CANNON, JJ.
Versailles, Inc. appeals a judgment rendered on a unanimous jury verdict awarding $50,000 earnest money to Quadrant, Inc. We affirm the judgment of the trial court.
On May 10, 1983, Versailles and Quadrant entered into an earnest money contract whereby Versailles agreed to buy a 35.5 acre tract of land owned by Quadrant. The contract contained eight conditions precedent. It is undisputed that Quadrant satisfied seven of the conditions. The one remaining condition, which required Quadrant to obtain an agreement with Harris County for the construction of an asphalt road on Richmond Avenue, is the subject of this appeal. Versailles contends that five weeks prior to closing, Quadrant's agent notified Versailles that Quadrant would be unable to fulfill the condition at issue. Versailles then requested a mutual termination of the contract, which was refused. Quadrant maintains, however, that it had obtained a satisfactory agreement with the county and was prepared to close on August 2, 1985, as scheduled. Versailles did not attend the closing and subsequently asked that Quadrant release the escrowed earnest money. Quadrant refused to terminate the contract, sued to obtain the funds and Versailles counterclaimed. The case was tried to a jury on one special issue in which the jury found that Quadrant had complied with the disputed condition precedent.
On appeal Versailles argues that there was no evidence or, alternatively, insufficient evidence to support the jury's finding. In addition, Versailles contends that the trial court erred in refusing its proposed special issues and in overruling its objection to Special Issue No. 1.
The condition precedent at issue reads as follows:
8. Conditions Precedent: As conditions precedent to this Contract, SELLER agrees prior to closing as follows: ...
(f) To furnish an assignable agreement between the SELLER and Harris County, acceptable to PURCHASER, with respect to cost estimates and time for completion, outlining the construction of a two-lane temporary asphalt road upon Richmond Ave., and which agreement shall state the schedule of construction and the maximum amount of asphalt in dollars and quantity, which PURCHASER shall be obligated to supply. At closing the same shall be assigned to PURCHASER, and PURCHASER agrees to perform said agreement.
Richmond Avenue fronts the Quadrant tract Versailles planned to purchase. In May of 1983, when the parties signed the earnest money contract, Richmond had not yet been paved completely through to Highway 6. Versailles had already obtained a smaller, five-acre tract adjacent to the Quadrant property for a multiple-family development and intended to develop the larger tract into single-family homes. Richmond also fronts the five-acre tract and that segment of the street was paved, while the Quadrant segment was not. Soon after obtaining the property, Quadrant realized that access to it needed to be improved and discussed with Harris County officials the completion of Richmond from Synott Road on the east to Highway 6 on the west. By letter of May 9, 1983, a county engineer advised Norman Ganslen, Quadrant's broker, that the county was willing to participate in the cost of constructing a bridge on Richmond over a flood control ditch. This participation was subject to the property owners' building Richmond from the bridge to the eastern boundary of the Quadrant tract and providing all materials, necessary pipeline adjustments and any other costs to extend an asphalt road from that eastern boundary across a piece of property referred to as the Frost Tract. The county also agreed to participate in the labor to construct the latter extension.
Following the signing of the earnest money contract, Quadrant continued its discussions with both the county and Bill Palmer, president of Versailles, in an effort to satisfy condition 8(f). On July 20, 1983, the county engineer sent a letter (initially drafted by Mr. Ganslen) finalizing the terms of the Richmond construction and requesting a signed acceptance of the agreement. In the letter the county agreed to complete the paving of Richmond across the Frost Tract within 90 days of the paving of the other section and the finalizing of an agreement between the county and the benefiting landowners for construction of the bridge. The county estimated ("with a reasonable degree of accuracy") the maximum cost of the asphalt paving and pipeline adjustments at $45,000, based upon the county's providing the labor. Quadrant's attempts to communicate this agreement to Mr. Palmer, however, were unsuccessful. Based on a June 22nd letter from Norm Ganslen, reiterating Quadrant's efforts to satisfy condition 8(f), Versailles decided the results were unacceptable and on July 15 requested mutual termination of the contract. Quadrant advised Versailles the day prior to closing that any costs of roads or bridges not anticipated by the earnest money contract would be paid by Quadrant. Quadrant further advised Versailles the closing would take place as scheduled and that condition 8(f) would be complied with at closing. Versailles, however, refused to attend the closing and thereby breached its part of the contract.
Versailles' first argument on appeal (points of error one through four) is that there was no evidence or, alternatively, insufficient evidence to support the jury's finding that Quadrant complied with the condition precedent. When reviewing a "no evidence" challenge, the appellate court must consider only that evidence, and reasonable inferences therefrom, which viewed in its most favorable light supports the jury finding, and it must disregard all evidence or reasonable inferences to the contrary. Glover v. Texas General Indemnity Co., 619 S.W.2d 400, 401 (Tex.1981). Bormaster v. Henderson, 624 S.W.2d 655, 659-60 (Tex.App.--Houston [14th Dist.] 1981, no writ). When reviewing a factual insufficiency challenge, however, the court must consider all of the evidence and only sustain the point of error if the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming as to be against the great weight and preponderance of the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
Versailles' argument as to the lack of or insufficiency of the evidence is premised on its contention that a condition in a contract must be fulfilled exactly as expressed. Berman v. Rife, 644 S.W.2d 574, 576 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.). Versailles maintains that all it wanted was county assistance in paving Richmond adjacent to the Quadrant Tract and, to that end, drafted condition 8(f). The agreement proffered to satisfy that condition instead required Versailles not only to pave that strip, but also to participate in paving another strip and building a bridge. Quadrant, on the other hand, argues that under a strict compliance standard the record contains sufficient probative evidence to support the jury's finding that Quadrant complied with condition 8(f).
We must agree with Quadrant. Condition 8(f) required Quadrant to obtain an acceptable agreement from the county for the construction of a two-lane temporary asphalt road upon Richmond Avenue with a schedule of...
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