In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00159-CV ______________________________
BONNIE BRYAN MAYOR, Appellant
V.
VIDAL GARCIA, Appellee
On Appeal from the 61st Judicial District Court Harris County, Texas Trial Court No. 2001-36465
Before Morriss, C.J., Ross and Carter, JJ. Opinion by Justice Ross
O P I N I O N
This case involves a dispute over a land sales contract. Bonnie Bryan Mayor, the seller, appeals a jury verdict and final judgment granting specific performance in favor of Vidal Garcia, the buyer. Mayor presents four points of error: (1) whether the property description in the land sales contract was insufficient under the statute of frauds as a matter of law; (2) whether the trial court erred by not submitting a question on fraud to the jury; (3) whether Garcia had "unclean hands" and was therefore not entitled to the equitable remedy of specific performance; and (4) whether Mayor is entitled to attorney's fees.
Mayor became the sole owner of the disputed property on Fruge Road in 1985. After becoming sole owner, Mayor never visited the property, but paid the taxes on it to the Harris County Appraisal District (HCAD).
In May 2001, Garcia sought to purchase some property on or around Fruge Road to build a home. On May 30, 2001, after a series of negotiations, and without the assistance of counsel, Garcia and Mayor entered into a land sales contract (Mayor-Garcia contract). The contract contained a property description taken from an HCAD report. Both parties signed the contract and scheduled closing for June 22, 2001. At closing, Garcia tendered final payment on the property. Mayor, however, did not attend.
Garcia sued for specific performance on the contract. A jury found in Garcia's favor, and the trial court granted him specific performance and attorney's fees. Mayor filed a motion for judgment notwithstanding the verdict, which the trial court denied. This appeal followed.
In her first point of error, Mayor contends she was entitled to a judgment notwithstanding the verdict because the property description in the Mayor-Garcia contract was insufficient as a matter of law.
Texas Rule of Civil Procedure 301 provides that a trial court may render judgment non obstante veredicto (JNOV) if a directed verdict would have been proper. See Tex. R. Civ. P. 301. A directed verdict is proper when the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law. See Kline v. O'Quinn, 874 S.W.2d 776, 785 (Tex. App.-Houston [14th Dist.] 1994, writ denied). Under the same rationale, a motion for JNOV should be granted when the evidence is conclusive and one party is entitled to judgment as a matter of law. See Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227-28 (Tex. 1990); Taco Cabana, Inc. v. Exxon Corp., 5 S.W.3d 773, 777 (Tex. App.-San Antonio 1999, pet. denied).
The adequacy of a property description in a land sales contract is a question of law within the purview of the statute of frauds. See Morrow v. Shotwell, 477 S.W.2d 538, 540 (Tex. 1972). We review questions of law de novo. See Gill v. Boyd Distribution Ctr., 64 S.W.3d 601, 603 (Tex. App.-Texarkana 2001, pet. denied).
The statute of frauds requires that all conveyances of real property be in writing and signed by the party to be charged. See Tex. Bus. & Com. Code Ann. § 26.01(b)(4) (Vernon 2002). For a land sales contract to meet the requirements of the statute of frauds, it must furnish within itself or by reference to another existing writing the means or data to identify the particular land with reasonable certainty. See Jones v. Kelley, 614 S.W.2d 95, 99 (Tex. 1981) (citing Morrow, 477 S.W.2d at 539; Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945)). A description's validity under the statute of frauds is not affected by the knowledge or intent of the parties. See Morrow, 477 S.W.2d at 540. Further, a plat made from extrinsic evidence cannot give validity to the description. See id.
Our task is to analyze the property description in the Mayor-Garcia contract to see if it furnishes within itself the means or data to identify the tract with reasonable certainty. This is a two-step process: (1) to look at the data in the contract itself and, if that fails, (2) to determine whether the contract adequately references another document supplying the missing terms.
The Mayor-Garcia contract contained the following property description:
1. PARTIES: Bonnie Bryan Mayor (Seller) agrees to sell and convey to Vidal Garcia (Buyer) and Buyer agrees to buy from Seller the property described below.
Fruge RD 77025
2. PROPERTY: Lot _______, Block TR 14A Allison Richey Addition, City of 4.9500 AC Gulf Coast Homes Sec P . County, Texas, known as (C-3 Red, Vacant) ABST 626 0 Pitts (Address/Zip Code), or as described on attached exhibit, (the Property).
* Italicized words indicate the terms filled in by the parties.
According to Garcia, he obtained the "shorthand" description of the property from an
HCAD tax report. On its face, the Mayor-Garcia property description is insufficient to identify
the property with reasonable certainty. First, the description provides no county or city for the
property. Even though the zip code 77025 is listed in the description, presumably providing
the data necessary to identify the city and county of the property, at trial, Mayor testified that
her property lies within 77047 not the 77025 zip code. Without resorting to parol, there is no
way to determine the city or county of the property. While we have found no case explicitly
holding that failure to list the county and city in the description is, by itself, fatal, several cases
have relied on such failure as strong evidence of an insufficient description. See, e.g., Pick
v. Bartel, 659 S.W.2d 636, 638 (Tex. 1983). (1)
Failure to list a county and state of the property is only one of a series of shortcomings
with the Mayor-Garcia property description. In addition to providing no county or state, the
description does not show the total acreage to be sold, nor does it provide the data necessary
to arrive at this determination. From parol, we know Mayor owned 5.082 total acres on Fruge
Road. But nowhere in the description is 5.082 acres specified. Although "4.9500 AC" is
stated in the description, it is not clear this refers to acreage. Even if we construe the "4.9500
AC" as a reference to acreage, it is inconsistent with Mayor's total acreage on Fruge Road.
In addition, despite Garcia's assertion, the Mayor-Garcia contract does not indicate that
Mayor intended to sell her "entire tract" on Fruge Road. On the issue of the quantity of land contracted for, Garcia directs us to Tex. Pac. Coal
& Oil Co. v. Masterson, 160 Tex. 548, 334 S.W.2d 436 (1960). Masterson held that minor
differences between contracted acreage and actual acreage in the deed are not fatal to the
description. We agree with Masterson so long as there is another means to determine the
amount of property to be sold. Masterson is illustrative on this point. In Masterson, the
property description contained the following language: "All the unsold portion containing 186.4
acres out of the 640 acres . . . ." Id. at 438. But the unsold portion contained more than 186.4
acres. The question facing the court was whether the term "186.4 acres" or "All the unsold
portion" controlled. Applying contractual rules of construction, the court gave effect to the
phrase "All the unsold portion," concluding that "[t]he call for acreage . . . is the least reliable
. . . in a deed." Id. at 439. But Masterson is distinguishable from the present case. As stated above, nothing in
the Mayor-Garcia contract, including the property description itself, indicated the parties
intended to sell "all" of Mayor's property on Fruge Road. Unlike the description in Masterson,
the Mayor-Garcia description provided no mechanism to determine the quantity of property to
be sold. Without resorting to inferences or parol evidence, we cannot know with reasonable
certainty the quantity of property contracted to be sold. In Texas, the use of parol evidence to aid the determination of a property description
is limited. The Texas Supreme Court in Pick, 659 S.W.2d at 637 (quoting Wilson, 188 S.W.2d
at 152), reiterated this limitation: The certainty of the contract may be aided by parol only with certain
limitations. The essential elements may never be supplied by parol. The
details which merely explain or clarify the essential terms appearing in the
instrument may ordinarily be shown by parol. But the parol must not
constitute the framework or skeleton of the agreement. That must be
contained in the writing. Thus, resort to extrinsic evidence, where proper at
all, is not for the purpose of supplying the location or description of the land,
but only for the purpose of identifying it with reasonable certainty from the
data in the memorandum. Here, the quantity of property contracted to be sold is left to baseless inferences or to
be supplied by parol evidence. Next, Garcia cites Garner v. Redeaux, 678 S.W.2d 124 (Tex. App.-Houston [14th Dist.]
1984, writ ref'd n.r.e), as the "single most similar case" to the instant case. In Garner, the
property description in question was written on the back of an earnest money check and was
missing both the county and state of the property. The court found that the description was
sufficient. In reaching its conclusion, the court inferred the county and state by liberally
construing the other terms of the agreement and resorting to parol evidence. See id. at 127-28. While recognizing the limitations of parol evidence, the court allowed its use based on a
conclusion that the property description on the back of the cashier's check was only a partially
integrated document not intended to be a complete embodiment of the parties' agreement.
Id. at 128. We believe these facts, along with the property description in Garner, stand in stark
contrast to the instant case. It is instructive to review Garner's property description side by
side with the Mayor-Garcia property description. The Garner property description contained
the following terms: 9-6-78 From Mr. & Mrs. Garner Lot tract land tract 66-Block 3 Highland Home Addition Id. at 125. The Mayor-Garcia property description contained the following terms: Fruge RD 77025 TR 14A Allison Richey 4.9500AC Gulf Coast Homes Sec P (C-3 Red, Vacant) ABST 626 0 Pitts Both descriptions are missing the county and state of the properties. This, however,
is where their similarities end. The Garner description refers to a platted subdivision
("Highland Home Addition"), the entirety of a specific tract ("tract 66"), and a block ("Block 3")
therein. Conversely, the Mayor-Garcia description, while referring to a subdivision (Allison
Richey), does not provide a tract, block, or lot number consistent with the property Mayor
owned. Although the term "TR 14A" may refer to a tract number, such is not entirely clear.
Mayor's deed indicates she owned Lot 14. This raises the question: Assuming "TR 14A" does
refer to Lot 14, does the "A" mean that only a certain portion of the property was contracted
to be sold? Is there also a TR 14B? Any inference becomes even more tenuous when
reading the term in context with an HCAD tax report. In that context, "TR 14A" refers to a tax
tract used for tax appraisal purposes. While we can be reasonably certain from the description that Mayor and Garcia
intended to sell some property within the "Allison Richey" subdivision, we cannot conclude with
exact certainty what property, or how much property, within the Allison Richey subdivision
Mayor contracted to sell. Without speculation, tenuous inferences, or parol evidence, we
cannot know with reasonable certainty the parameters of the contracted-for property. Garcia also asks us to apply the "nucleus of description" theory. This theory, outlined
in Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248-49 (1955), provides that, if enough
information appears in the description so that a party familiar with the locality can identify the
property with reasonable certainty, then the property description will be sufficient. To support the proposition that the Mayor-Garcia property description contained a
"nucleus of description," Garcia points to Stewart Title's ease in locating the property with only
the information contained in the property description. (2) The "nucleus of description" theory applied in Gates, however, is distinguishable from
the present case. In Gates, the court of appeals concluded the property description failed
because it contained a reference to a nonexisting survey-"Denver Resurvey No. 2." See id.
at 249. The Texas Supreme Court, however, read all the terms of the Gates property
description together and determined that "Denver Resurvey No. 2" actually referred to an
existing survey-"Denver Resurvey" and the No. 2 referred to a block number within the
"Denver Resurvey." The court merely construed existing terms within the description liberally
to provide meaning to all the terms of the description. See id. In our case, however, no terms
within the description provide a "nucleus of description" for either the quantity of acreage to
be sold or Mayor's intention to sell all of her property, or the county and city of the property.
We conclude, therefore, that the Mayor-Garcia contract does not contain a sufficient "nucleus
of description." In addition, Garcia contends the reference to "Fruge Road" in the description was
enough to describe the land with reasonable certainty because Mayor only owned one tract
of land on Fruge Road. In support of his contention, Garcia points to the Texas Supreme
Court's holding in Kmiec v. Reagan, 556 S.W.2d 567, 569 (Tex. 1977). In Kmiec, the court
held, "When the grantor is stated to be the owner of the property to be conveyed and it is
proved that the grantor owns only a single tract answering the description, the land is identified
with reasonable certainty." Id. But Kmiec is also distinguishable from the instant case. Kmiec involved an option
contract to buy three separate tracts of land-150 acres of tract #1 and two tracts of 168.25
acres each. The defect in the Kmiec-Reagan option was an uncertainty about the shape of
two of the tracts, not the quantity of the property. Reagan, the seller, only owned the three
tracts of land specified in the option. Id. In addition, the property description within the option
contract contained a specific reference to the acreage to be sold-one tract containing 150
acres and two tracts containing 168.25 acres each. Id. The court found that, because Reagan
only owned these tracts, the tracts were sufficiently described. In the Mayor-Garcia contract,
however, there was no quantity, or at minimum an inconsistent quantity of property described.
Further, there was no indication that Mayor intended to sell all of her property on Fruge Road.
This was not enough to describe the property with reasonable certainty. In the Mayor-Garcia property description, the essential elements of location and
quantity of property to be sold are either left to inference or to be supplied by parol. Thus, in
looking at the property description, we conclude that the description itself it is insufficient as
a matter of law. But this does not end our inquiry. The next step is to determine whether the contract
sufficiently references another writing supplying the missing terms. If it does, the referenced
writing must have been in existence at the time the parties signed the contract. See Jones,
614 S.W.2d at 99. As noted above, Garcia testified he obtained the "shorthand" description of the property
from an HCAD report. But the description in the Mayor-Garcia contract provides no reference
to the HCAD report. Moreover, even if the contract specifically referenced the HCAD report,
the report itself fails to provide a sufficient description. (3) Therefore, under step two of our
inquiry, there is no referenced document providing the missing essential terms. Even if Garcia and Mayor knew and understood what property was intended to be
conveyed, it would not be enough to validate a defective property description. Moreover, as
Garcia points out, Stewart Title by a search of abstract records and by using the information
in the Mayor-Garcia property description, was able to locate the property and make a plat. But
as the Supreme Court aptly stated in Morrow v. Shotwell, 477 S.W.2d 538, 540 (Tex. 1972),
"knowledge and intent of the parties will not give validity to the contract, neither will a plat
made from extrinsic evidence. The essential elements of a property description may never be
supplied by parol." Id. at 541. In the Mayor-Garcia contract, the essential elements of the
description are either left to inference or to be supplied by parol. Such a description is
palpably insufficient to support a suit either for specific performance or for damages. See
Wilson, 188 S.W.2d at 154. Mayor's first point of error is sustained. Having found the Mayor-Garcia description invalid, we must now determine the proper
disposition of this case. Garcia requests that if we reverse, we remand for reformation rather
than reverse and render the judgment in favor of Mayor. However, Garcia raises reformation
for the first time in a motion for new trial filed with this Court. He never pled reformation at
trial, nor did he ask for reformation in his initial appeal. If an argument is not raised in the trial
court or briefed on appeal, the argument should not be created by the court of appeals.
Garcia v. Robinson, 817 S.W.2d 59 (Tex. 1991); see also Guadalupe-Blanco River Auth. v.
Pitonyak, 84 S.W.3d 326, 337 (Tex. App.-Corpus Christi 2002, no pet.) (stating that, although
appellees sought specific type of relief based on particular allegations, such claim not raised
in trial court pleadings and therefore waived). Garcia, therefore, has waived this remedy. (4) Because Mayor's appeal is reversed and rendered on her first point of error, voiding
the Mayor-Garcia contract under the statute of frauds, we need not address the issues of fraud
and "unclean hands." The only outstanding issue on appeal, therefore, is whether Mayor is
entitled to attorney's fees. Consistent with the Mayor-Garcia contract and a jury's finding on
this issue, we conclude Mayor is entitled to attorney's fees. The Mayor-Garcia contract contained the following provision: ATTORNEY'S FEES: The prevailing party in any legal proceeding brought
under or with respect to the transaction described in this contract is entitled to
recover from the non-prevailing party all costs of such proceeding and
reasonable attorney's fees. The jury found that a reasonable attorney's fee for Mayor is $12,000.00, and for appeal,
$5,000.00. Because we render judgment in favor of Mayor, she is entitled to $17,000.00 in
attorney's fees. For the reasons stated, the judgment granting specific performance and attorney's fees
in favor of Garcia and against Mayor is reversed and rendered, and judgment is hereby
granted in favor of Mayor against Garcia for attorney's fees in the total amount of $17,000.00. Donald R. Ross Justice Date Submitted: February 21, 2003 Date Decided: April 16, 2003
1. 2.
3. 4. While we recognize that, in certain circumstances, in the interest of justice we can remand
for reformation sua sponte, we do not believe this course of action is appropriate here.
See, e.g., Morrow v. Shotwell, 477 S.W.2d 538, 541-42 (Tex. 1972) (finding reformation
appropriate remedy in interest of justice). First, the evidence is not clear there was a
mutual mistake of the parties. Moreover, such an equitable remedy would require Garcia
to have "clean hands." At trial, Mayor made at least an allegation of fraud in the
inducement. Although the jury never addressed this issue and we do not reach this issue
on appeal, from the evidence in the record we cannot say with full confidence that Garcia
had "clean hands" and that "justice would require reformation."
whether the assertion of personal jurisdiction comports with fair play and substantial justice. Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 228. These factors include (1) the burden on the defendant, (2) the interests of the forum state in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Id. (quoting World-Wide Volkswagen Corp., 444 U.S. at 292; Rudzewiez, 471 U.S. at 477; PHC-Minden, L.P. v. Kimberly-Clark Corp., No. 12-04-00259-CV, 2005 WL 1979102, at *3 (Tex. App.—Tyler Aug. 17, 2005, pet. filed) (not designated for publication). In that portion of the inquiry, it is the defendant's job to present "a compelling case that the presence of some consideration would render jurisdiction unreasonable." Rudzewiez, 471 U.S. at 477; Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 231. Even if the nonresident defendant has purposefully established minimum contacts with the forum state, the exercise of jurisdiction may not be fair and reasonable under the facts in a particular case. Rudzewiez, 471 U.S. at 479; Guardian Royal Exch. Assurance, Ltd., 815 S.W.2d at 231.
Applying the named factors, we recognize there would be some burden on Schexnayder for having to defend himself in a lawsuit 150 miles away from his home, in another state. However, we also recognize that distance is not so important a factor now as it has been historically. Also, because Schexnayder is licensed in Arkansas, not in Texas, it would appear that, in connection with a medical malpractice claim, his state of residence would have more interest in the dispute than would Texas. However, because Journee was a Texas resident, this State has an inherent interest in protecting its citizens and providing them with a remedy for alleged tortious injuries inflicted on them within this State. Daniels also has an inherent interest in pursuing the lawsuit locally rather than being required to travel the 150 miles to pursue her interests—perhaps under a different set of laws than those of her resident state. The factor of efficiency does not appear to be an issue in any respect.
The final factor involves the shared interest of the states in furthering fundamental substantive social policies. That concept is implicated in this case. There is a fundamental notion that the citizens of each state should be able to access knowledge and specialized expertise and seek assistance across state lines without unnecessary hindrance. Competing against that is the notion that an injured party should be able to seek recompense—in the state of the party's residence where the event occurred—for damages allegedly caused by the negligent behavior of another.
In this case, except for geographic considerations, there is no suggested reason why the case should be brought in Arkansas rather than Texas. Based on evidence that Schexnayder was the one who approved Journee's transfer to ACH and was actively involved with the transport team in treating her as a patient in this State, we conclude the contacts involving Schexnayder were not so attenuated as to violate concepts of due process.
Although we recognize the bright-line attraction of looking solely to the place where the calls originated as determining whether jurisdiction lies in Texas, that simplistic formula is not persuasive. Compare Mason, 919 F. Supp. 235, with Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1171 (5th Cir. 1985), and Brown v. Flowers Indus., Inc., 688 F.2d 328, 333 (5th Cir. 1982). Other factors necessarily explain the nature of telephone conversations, and the question of whether the resident of one state first called another should not control in all situations.
We conclude that, under this evidence and under the application of the law to that evidence as set out above, Schexnayder's contacts with Texas were sufficient in this particular instance to meet the requirements of due process and allow the litigation to proceed in this State. We emphasize, however, that this ruling is limited to these facts, and should not automatically be expanded to dissimilar situations. It is critical to our analysis that the team in this case was from Schexnayder's own hospital and that it was working together on a person who had been accepted as a patient of that hospital.
General Jurisdiction
As previously set out, determining whether general jurisdiction exists requires a more stringent level of analysis than specific jurisdiction. General jurisdiction exists when the contacts are continuous and systematic so that the forum may exercise personal jurisdiction over the defendant even if the cause of action did not arise from or relate to activities conducted within the forum state. Marchand, 83 S.W.3d at 796; Coleman, 83 S.W.3d at 807.
In this case, there is no evidence that Schexnayder did business on a regular basis in Texas. Schexnayder has never advertised his services in Texas, but his services are advertised in the websites of ACH and the University of Arkansas for Medical Sciences, along with his job description as critical care section chief, certifications, background, and contact information. Daniels also points out that the hospitals advertise that they provide helicopter transport throughout Arkansas and the region for critically ill and injured infants and children to their specialized facility. There was also evidence that Schexnayder had received patients from Texas hospitals about seven times in the months around Journee's death and that he had assisted with the care of patients by telephone conference numerous times.
Daniels did not allege that jurisdiction exists because Schexnayder maintained an office, warehouse space, a mailing address, a telephone listing, subscribed to an answering service, or had or has any other direct business location in Texas. Cf. Michel v. Rocket Eng'r Corp., 45 S.W.3d 658, 666–72 (Tex. App.—Fort Worth 2001, no pet.) (first inquiry in general jurisdiction analysis is whether nonresident business has created "general business presence" in forum state).
We do not find the testimony that Schexnayder talked on the telephone with doctors in Texas, even assisting those doctors in treatment of their patients, establishes either a continuous or systematic presence in the State of such a nature as to justify treating him as a person who might be haled into court in Texas. Thus, general jurisdiction does not lie on these facts. The remaining question is whether that evidence, together with evidence about the ACH and University of Arkansas for Medical Sciences websites, might combine to show such a presence.
We review the evidence related to the websites to determine whether it is sufficient to support the implied findings of specific and general jurisdiction by the trial court. "Internet use is characterized as falling within three categories on a sliding scale for purposes of establishing personal jurisdiction." Michel, 45 S.W.3d at 677 (citing Jones v. Beech Aircraft Corp., 995 S.W.2d 767, 772 (Tex. App.—San Antonio 1999, pet. dism'd w.o.j.)). At one end of the scale are websites clearly used for transacting business over the internet, such as entering into contracts and knowing and repeated transmission of files of information, which may be sufficient to establish minimum contacts with a state. Michel, 45 S.W.3d at 677. On the other end of the spectrum are "passive" websites that are used only for advertising over the internet and are not sufficient to establish minimum contacts, even though they are accessible to residents of a particular state. Id. In the middle are "interactive" websites that allow the "exchange" of information between a potential customer and a host computer. Id. Jurisdiction in cases involving interactive websites is determined by the degree of interaction. Id.; I & JC Corp. v. Helen of Troy L.P., 164 S.W.3d 877, 889 (Tex. App.—El Paso 2005, pet. denied). Texas courts (including this one) have used this test in determining whether an internet site is sufficient to support the exercise of general jurisdiction over a defendant.
In this case, the evidence shows that Schexnayder's biography, credentials, and job description were all set out on the ACH website. The main thrust of the website is informational in nature—which would necessarily lead to the potential for use of ACH for its specialized purpose. The evidence shows that it was possible to interact via e-mail with the site, that physicians could register for continuing medical education on the site, and that individuals could apply online for jobs. The evidence does not indicate that doctors interacted on patient care online. Even if we ascribed all of the actions on the website to Schexnayder, this level of connectivity simply does not rise to the level or purpose of interaction that would justify finding that Schexnayder had submitted himself to the jurisdiction of Texas courts. The evidence does not reach the higher level necessary to justify a finding that the minimum contacts necessary to support a finding that the website, either alone or in combination with the other evidence subjected him to the general jurisdiction of the court.
Conclusion
Because we find the evidence of minimum contacts is sufficient to support a finding of specific jurisdiction, we affirm the judgment.
Donald R. Ross
Justice
Date Submitted: January 25, 2006
Date Decided: February 23, 2006