11th Court of Appeals
Eastland, Texas
Opinion
William Lambard and Barbara Lambard
Appellants
Vs. No. 11-01-00316-CV B Appeal from Taylor County
Woodridge Properties, LLP
Appellee
This case arises out of a real estate transaction. William Lambard and Barbara Lambard, appelalnts, filed the lawsuit to obtain specific performance of a contract for deed. After a trial to a jury, the trial court entered a judgment denying specific performance and denying appellants= request for damages and attorney=s fees. We affirm.
Charles Lambard, William Lambard=s father, entered into a contract for deed regarding his purchase of real property described in the contract. Woodridge Properties, LLP, appellee, was the owner of the property. The parties entered into the contract in October 1993. The contract called for a total price of $11,500.00 to be paid out at a certain rate each month plus an additional amount for a tax and insurance escrow account. After Charles died, appellants continued to live on the property and they entered into a new contract with appellee. This new contract was signed on April 1, 1994. This contract stated the price to be $11,281.66.
Appellants became delinquent in their payments under the April contract. On September 9, 1998, appellee sent appellants an Aeviction notice.@ Later, after appellants had settled an unrelated lawsuit in which they made certain claims in connection with the death of William=s mother, there was another contract between the parties. On December 4, 1998, appellants took $5,000.00 from the settlement and paid it to appellee, and the new contract was entered. The new contract provided for a purchase price of $6,000.00. On August 23, 2000, appellants were again delinquent, and it became necessary for appellees to send another notice letter to appellants. The letter contained details of the default and gave appellants the opportunity to cure the delinquencies. The deadline for compliance was October 25, 2000. On October 6, 2000, appellants responded by filing this lawsuit. Appellants first sought specific performance, alleging that the purchase price in the last contract was $6,000.00, that they had paid the $5,000.00 payment, leaving a balance of $1,000.00, and that they had overpaid by making more monthly payments than required. In its answer, appellee specifically pleaded that appellants had not complied with all conditions precedent under the contract. Appellee also filed a counterclaim, seeking cancellation of the contract, damages for past due payments, and attorney=s fees. Appellants later amended their petition by adding claims for damages for deceptive trade practices and for breach of fiduciary duty, and they also sought an accounting.
The trial court refused to submit appellants= requested issues in connection with the new claims raised in the amended petition. The case was submitted to the jury upon three separate jury questions. In the first question, the trial court basically asked the jury whether appellants had performed all of their obligations under the contract and whether all conditions precedent had either been met or excused. The jury found that appellants had not performed their obligations. In the two other issues, the jury first found that no damages were due to appellee and also awarded A0@ to appellee for attorney=s fees.
Appellants bring two issues on appeal. First, they claim that the trial court erred in canceling the contract because appellee did not comply with AProperty Code Section 5.061.@ The complaint is made that the notice which appellants received was in A12 point type@ rather than in A14 point bold face type@ or uppercase letters.
Former TEX. PROP. CODE '5.061 (Vernon 1984) has been amended and is now located at TEX. PROP. CODE ANN. ' 5.063 (Vernon Supp. 2002). The statute prescribes the method of notice to be given to one who is in default under certain executory contracts for deed. Former Section 5.063, now TEX. PROP. CODE ANN. ' 5.064 (Vernon Supp. 2002), required a seller under certain executory contracts for deed to give the notice prescribed by former Section 5.061. Former Section 5.061, now Section 5.063, was amended in 1993, 1995, and 2001. At the time that appellants= cause of action accrued, former Section 5.061 required that a certain part of the notice be given in 10 point boldfaced type or uppercase typewritten letters. The current Section 5.063 requires that the specified part of the notice be conspicuous and printed 14 point boldface type or 14 point uppercase typewritten letters. The notice given by appellee complied with the statute in effect at the time that it was given.
Furthermore, the notice required by Section 5.064 and prescribed by former Section 5.063 is simply a prerequisite which a seller under certain executory contracts for deed must meet before the seller can enforce a claim for Arescission or forfeiture and acceleration.@ Section 5.064. Here, appellant initiated the lawsuit over the property. If appellee wanted to seek to have the contract canceled, it was required to file its claim when it did. TEX.R.CIV.P. 97 governs compulsory counterclaims. A counterclaim is compulsory if: it is within the jurisdiction of the court; it is not at the time of filing the answer the subject of a pending action; the claim is mature and owned by the defendant at the time of filing the answer; it arose out of the same transaction or occurrence that is the subject matter of the opposing party's claim; it is against an opposing party in the same capacity; and it does not require the presence of third parties over whom the court cannot acquire jurisdiction. A party asserting a claim which has all of these elements must assert the claim in the initial action, and the claim cannot be asserted in a later action. Ingersoll‑Rand Company v. Valero Energy Corporation, 997 S.W.2d 203, 207 (Tex.1999). Appellee=s claim was a compulsory counterclaim. Appellants also argue in their first issue that the trial court could not award relief to appellee because appellee failed to obtain any favorable jury findings. The jury found that appellants had not performed the agreement. That was a finding favorable to appellee and was a finding upon which the trial court=s judgment could be based. Furthermore, appellants have cited us to no authority in connection with this contention. Appellants= first issue on appeal is overruled.
In their second issue, appellants maintain that the trial court erred in failing to submit their damage issues. The damage issues stemmed from appellants= claims of deceptive trade practices and breach of fiduciary duty. Again, we have been cited to no authority in appellants= second issue. Nevertheless, we will discuss the issue.
Generally, failure to perform terms of a contract results in a breach of contract action, not a tort action. Crim Truck & Tractor Co. v. Navistar International Transportation Corporation, 823 S.W.2d 591, 596 (Tex.1992). While a contract may create duties that sound both in contract and in tort, if the claim arises solely from the contract and the damages sought are only economic damages, the action is one in contract, not in tort. Southwestern Bell Telephone Company v. DeLanney, 809 S.W.2d 493 (Tex.1991); Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508 (Tex.1947). Merely making a claim under TEX. BUS. & COM. CODE ANN. ' 17.001 et seq. (Vernon 2002) (DTPA) does not convert a contract action into a DTPA violation where it is merely a dispute relating to contract performance based on differing contract interpretations; traditional contract principles apply. See Quitta v. Fossati, 808 S.W.2d 636, 644 (Tex.App. - Corpus Christi 1991, writ den=d). The conduct must involve more than a mere breach of contract. Ashford Development, Inc. v. USLife Real Estate Services Corporation, 661 S.W.2d 933, 935 (Tex.1983). By itself, failure to perform a promise in an agreement does not constitute a misrepresentation nor does such failure constitute an unconscionable act as those terms are defined in the DTPA. Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14‑15 (Tex.1996); Chilton Insurance Company v. Pate & Pate Enterprises, Inc., 930 S.W.2d 877 (Tex.App. ‑ San Antonio 1996, writ den=d). The case before us is one which involves alleged damages which stem from the contract itself and which involve economic loss only. In their prayer for relief, appellants ask for recovery of their Aeconomic damages.@ The trial court did not err in failing to submit appellants= issues to the jury.
There is another reason why the trial court did not err in failing to submit appellants= issues to the jury. If the pleadings and the evidence support them, a trial court is required to submit requested questions to a jury. Elbaor v. Smith, 845 S.W.2d 240 (Tex.1992). In order to make that determination, an appellate court must examine the record for evidence which supports the submission and must ignore all evidence to the contrary. We have performed that examination and hold that there is no evidence in this record to support the submission of the issues. Appellants argue that they were never furnished an accounting for the escrow account, but it is undisputed that they never requested one. It is also undisputed that they never had an insurance claim which was not covered by insurance. The evidence shows that the essence of the dispute is the payment of the final sales price as stated in the last contract. The trial court did not err when it refused to submit the questions and instructions tendered by appellants. The second issue on appeal is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
August 15, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.