Wyatt v. McGregor

• Decision Date: 25 February 1993
• Docket Number: No. 13-91-526-CV,13-91-526-CV
• Citation: 855 S.W.2d 5
• Parties: O.S. WYATT, Jr., Appellant, v. John S. McGREGOR, et al., Appellees.
• Court: Texas Court of Appeals

Page 5

855 S.W.2d 5

O.S. WYATT, Jr., Appellant, v. John S. McGREGOR, et al., Appellees.

No. 13-91-526-CV.

Court of Appeals of Texas,

Corpus Christi.

Feb. 25, 1993.

Opinion on Rehearing April 22, 1993.

Rehearing Overruled May 27, 1993.

Tracy N. Dubose, Montgomery, John Miller, Jr., Sinton, Russell McMains, and Kimberly Hall Seger, Seger & Allison, Corpus Christi, for appellant.

Thomas F. Nye, Brin & Brin, Corpus Christi, George Brin, Brin & Brin, San Antonio, James Whitten, Sinton, for appellees.

Before KENNEDY, SEERDEN, and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

KENNEDY, Justice.

Appellant O.S. Wyatt, Jr. sued a variety of persons for relief from and/or damages resulting from a real estate deal gone awry. After a jury trial, the court entered a take-nothing judgment against Wyatt. Wyatt appeals by forty-one points of error. We affirm in part and reverse and remand in part.

BACKGROUND

Wyatt and the other parties agree on much of the mechanics of the underlying transactions, but diverge when they place these events into context. Wyatt paints himself as the victim of deceptive sellers (A.A. and the late Fanny S. McGregor), their agents (John S. McGregor; J. Patrick McGloin; and Kleberg, Dyer, Redford & Weil), his partner (Gerald Q. Ashbrook), Lowell Michael Archer, and transaction facilitators (Ruth and William G. Walston, Sr.). This appeal focuses on the McGregors. The McGregors portray themselves as innocent sellers who attempted to meet the desires of their buyers.

In late 1983, Ashbrook learned that the State of Texas was interested in acquiring wetlands for the State School Land Board. Ashbrook began looking into acquiring wetlands to resell to the state. Ashbrook heard about a ranch owned by A.A. and Fanny McGregor that might suit Ashbrook's needs. Ashbrook asked Johnnie B. Rogers, Sr., to help incorporate Sunbelt Cattle & Land Co. (Sunbelt). Ashbrook, Rogers, and Anthony Skarlis formed Sunbelt (sharing the stock ownership--34, 33, and 33 shares respectively) for the purpose of purchasing the McGregor ranch for resale to the state. Rogers contracted to sell the ranch to the state for $1,500 per acre. Rogers requested financing from Texas Commerce Bank-Austin (TCB) to purchase the ranch from the McGregors. TCB required Sunbelt to find a financially healthy person. Rogers called Wyatt.

Wyatt agreed to participate. In April 1984, he joined Rogers, Ashbrook, and Skarlis as a guarantor on Sunbelt's $3.6 million note from TCB. In return, Wyatt received 35% of Sunbelt's common stock. Wyatt also gained the right to vote an additional 16% of the stock, which Rogers owned.

Ashbrook received a limited corporate authorization to bind Sunbelt to a land-purchase agreement with the McGregors. Ashbrook, for Sunbelt, and the McGregors signed two earnest money contracts, one dated February 3, 1984, and the other dated February 4, 1984. The contracts were identical except that the second deleted the obligation of the seller to furnish a survey of the land. The second contract detailed different prices on the individual tracts that combined for an average price of $900 per acre. Attached to each contract was the identical Exhibit A describing the land. The total of the acreage in Exhibit A was less than the amount set forth in the main body of either of the contracts.

The McGregor-Sunbelt transaction closed on April 20, 1984. The warranty deed to Sunbelt carved 60 acres out of the acreage promised to Sunbelt in the earnest money contracts. Ashbrook received a general warranty deed for the 60 acres. The next day, Ashbrook conveyed the 60 acres to Lowell M. Archer.

The state then refused to buy the land from Sunbelt. Sunbelt could not find another buyer and defaulted on the note. Wyatt purchased the note and deed of trust when the other guarantors defaulted on their obligation to pay their shares of the note. He took control of the company, taking all the shares for himself and installing new leadership. He hired an independent appraiser who estimated that the property was worth only $400 to $500 per acre.

Wyatt hired Julius "Bubba" Petrus to survey the property pursuant to the description in the warranty deed. Petrus testified that he had difficulty surveying the property because some of the descriptions lacked metes and bounds descriptions, referred to concealed or nonexistent markers, referred to unlocated maps, and failed to close mathematically or geometrically.

Wyatt purchased the property at foreclosure sale for $1,373,384.20, or $340 per acre. He credited the amount to the note, took possession of the property, and began running cattle on the property. He then learned that some of the tracts were not contiguous and that the easements did not provide access to much of the acreage.

Wyatt took assignment of Sunbelt's cause of action against the McGregors and sued them for rescission and cancellation of the deed and restitution. He charged that the McGregors failed to convey all of the property listed in the earnest money contracts, failed to provide promised access to the property, and represented wrongly that the descriptions of the property in the earnest money contracts and the warranty deed would allow the property to be located with reasonable certainty. He also sued for deceptive trade practices (DTPA), breach of contract, common law and statutory fraud, conspiracy, and breach of warranty. The court granted a summary judgment as to the DTPA claims based on statute of limitations bar. The parties brought in a variety of third parties, including Ashbrook; J. Patrick McGloin, the McGregors' lawyer; Kleberg, Dyer, Redford & Weil, McGloin's former law firm; Lowell M. Archer, the title holder to the 60 acres; and William Walston, Sr. and Ruth Walston, the title company owners.

The court submitted 31 questions, some with subparts, to the jury. Based on their findings, the court entered a take-nothing judgment against Wyatt on all claims. Wyatt appeals, launching a variety of attacks against the judgment. He contends that the evidence does not support some of the jury's findings, that some findings conflict with each other, and that the evidence supports conclusions opposite from some findings. These points deal with the judgment for the McGregors only and do not address the other parties.

DISCUSSION

The parties grouped the 41 points of error two different ways to facilitate discussion under argument and counterpoints. We group them yet a third way.

Wyatt raises three points of error challenging the evidentiary basis of the jury's answer to Question 20. That question asked, "Do you find from a preponderance of the evidence that the Subject Property can not be identified with reasonable certainty from the written description in the Warranty Deed or by reference to some other existing writing contained in the deed?" The jury responded, "We do not." Point of error five contends that the court erred in failing to disregard this answer because the uncontroverted evidence establishes as a matter of law that the deed description is insufficient. Point of error six contends that the court erred in failing to disregard the finding because there is no evidence to support the jury's finding. Point of error seven contends that the answer is so against the great weight and preponderance of the evidence as to be manifestly unjust.

The standards of review for such challenges fall into a two-part test with alternative second steps. In step one, the "no evidence" point (point of error six), we consider only evidence and inferences that tend to support the finding (or in this case, the failure to find), and ignore all contrary evidence and inferences. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); see also Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex.1989); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). If there is evidence of probative force to support the failure to find, we must overrule the point of error. Sterner, 767 S.W.2d at 690-91; Responsive Terminal, 774 S.W.2d at 668; Stafford, 726 S.W.2d at 16. If there is no evidence to support the jury's failure to find a fact, we then examine the record to see if the contrary proposition is established as a matter of law (point of error five). Sterner, 767 S.W.2d at 690. In this case, if there is instead some evidence to support the failure to find, we examine the entire record to see whether the jury's failure to find is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust (point of error seven). Reviea v. Marine Drilling Co., 800 S.W.2d 252, 254 (Tex.App.--Corpus Christi 1990, writ denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973)).

The law setting out the requirements of deed language specificity, against which we measure the adequacy of the factual support for the jury findings, is not itself particularly specific. The Supreme Court of Texas held that the description in the writing memorializing the transfer of ownership "must furnish within itself, or by reference to some other existing writing, the means or data by which that particular land may be identified with reasonable certainty." Kmiec v. Reagan, 556 S.W.2d 567, 569 (Tex.1977) (citing Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945) (citations omitted)); see Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex.1992). The Dallas Court of Appeals held that the purpose of the deed description is to furnish the means of identification of the land, not to identify the land. American Spiritualist Ass'n v. City of Dallas, 366 S.W.2d 97, 102 (Tex.Civ.App.--Dallas 1963, no writ). Though the essential elements of the contract may never be supplied by parol, details which explain or clarify those terms may be shown by parol. Resort to extrinsic evidence, while not proper for supplying the location...