Terry T. Blevins v. Vincent Ali, A/K/A James Vincent Houston and Martha Houston

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ACCEPTED 07-15-00358-CV SEVENTH COURT OF APPEALS AMARILLO, TEXAS 12/22/2015 2:31:03 PM Vivian Long, Clerk CASE NO. 07-15-00358- CV IN THE SEVENTH COURT OF APPEALS AMARILLO, TEXAS FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS TERRY T. BLEVINS 12/22/2015 2:31:03 PM Appellant VIVIAN LONG CLERK vs. VINCENT ALI, A/K/A JAMES VINCENT HOUSTON AND MARTHA HOUSTON Appellees Appealed from the 12th Judicial Court of Walker County, Texas APPELLANT TERRY T. BLEVINS’ BRIEF Mynde S. Eisen State Bar No. 06503950 Law Office of Mynde S. Eisen, P.C. P. O. Box 630749 Houston, Texas 77263 (713) 266-2955 (281) 343-1089 wyndeeisen@sbcglobal.net Michael Boltz State Bar No. 05280300 Boltz Law 1400 Woodloch Forest Drive, Suite 540 The Woodlands, Texas 77380 (832) 381-3079 (832) 218-2400 (fax) email: boltz@boltzlaw.com ATTORNEYS FOR APPELLANT TERRY BLEVINS APPELLANT REQUESTS ORAL ARGUMENT CASE NO. 10-15-00358- CV IN THE SEVENTH COURT OF APPEALS AMARILLO, TEXAS TERRY T. BLEVINS Appellant vs. VINCENT ALI, A/K/A JAMES VINCENT HOUSTON AND MARTHA HOUSTON Appellees IDENTITY OF PARTIES & COUNSEL Appellant: Terry T. Blevins Appellant’s Counsel: Mynde S. Eisen State Bar No. 06503950 Law Office of Mynde S. Eisen P.O. Box 630749 Houston, Texas 77263 (713) 266-2955 (281) 343-1089 (fax) email: wyndeeisen@sbcglobal.net Michael Boltz State Bar No. 05280300 Boltz Law 1400 Woodloch Forest Drive, Suite 540 The Woodlands, Texas 77380 (832) 381-3079 (832) 218-2400 (fax) email: boltz@boltzlaw.com -ii- Appellees: Vincent Ali a/k/a James Vincent Houston Martha Houston Appellee’s Counsel: Jacob Paschal State Bar No. 24065878 Haney Moorman Paschal, P.C. 1300 11th Street, Suite 405 Huntsville, Texas 77340 (936) 295-3712 (936) 295-3714 (fax) email: jpaschal@hmp-attorneys.com -iii- TABLE OF CONTENTS IDENTITY OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii STATEMENT OF CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT ON ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 I. The Trial Court Erred in Finding That No Contract Existed Between Blevins and Appellees (Issue No. 1 Restated) . . . . . . . . . . 10 The Trial Court Erred in Finding That Appellees Were the Legal Owners of the Property and Were Entitled to Possession (Issue No. 2 Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 The Trial Court Erred in Not Finding Blevins Is Entitled to Specific Performance and Not Awarding Damages for Breach of the Contract and Erred in Awarding Appellees Reasonable Rent (Issue No. 3 Restated) . . . . . . . . . . . . . . . . . . . . . . 10 A. Appellees and Blevins Had an Oral Contract for the Purchase of the Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. Contract Falls Within the Equitable Exception to the Statute of Frauds . . . . . . . . . . . . . . . . 12 -iv- 2. The Trial Court’s Finding That There Was No Contract Was Against the Great weight and Preponderance of the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 B. Appellees Were Not Entitled to Possession of the Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 C. Blevins Is Entitled to Damages . . . . . . . . . . . . . . . . . . . . . . . 19 1. Blevins Is Entitled to a Finding That There Is a Breach of Contract . . . . . . . . . . . . . . . . . . . . 19 2. Blevins Is Entitled to Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 3. Blevins Is Entitled to Contract Damages for Breach of Contract . . . . . . . . . . . . . . . . . 22 4. The Trial Court’s Finding That Appellees Were Entitled to Reasonable Rent Was Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 II. The Trial Court’s Findings That Appellees Made No Negligent And/or Fraudulent Misrepresentations, and/or Did Not Commit Fraud and/or Did Not Violate the Texas Deceptive Trade Practice Act Were Against the Great Weight and Preponderance of the Evidence (Issue No. 4 Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 The Trial Court’s Findings of Fact Were Against the Great Weight and Preponderance of the Evidence (Issue No. 5 Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 A. The Trial Court’s Findings of Facts Were Against the Great weight and Preponderance of the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 -v- 1. The Trial Court’s Findings of Fact Regarding the Contract Issues Are Against the Great Weight and Preponderance of the Evidence . . . . . . . . . . . . . . . . . . 27 2. The Trial Court’s Finding that the Appellees Made No Negligent Misrepresentations Was Error . . . . . . . . . . . . . . . . . . . 28 a. Blevins Is Entitled to Damages for Negligent Misrepresentations . . . . . . . . . . . . . . . . . . . . . . . 31 3. The Trial Court’s Finding That There Was No Fraud Was Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 a. Blevins Is Entitled to Recover His Damages for Fraud . . . . . . . . . . . . . . . . . . . 36 4. The Trial Court Erred in Not Finding That Appellees Engaged in Violations under the DTPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 a. Blevins Is Entitled to Recover Actual Damages and Treble Damages under Tex. Bus. & Com. Code §17.46(a) . . . . . . . . . . . . . . . . . . . . . 39 CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 -vi- INDEX OF AUTHORITIES CASES Allied Towing Service v. Mitchell 833 S.W.2d 577 (Tex. App.-Dallas 1992, no writ) . . . . . . . . . . . . . . . . . . . 38 Apex Fin. Corp. v. Garza 155 S.W. 3d 230 (Tex. App-Dallas 2004, pet. denied) . . . . . . . . . . . . . . . . 22 Baylor University v. Sonnichsen 221 S.W.3d 632 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37 Blankenship v. Brown 399 S.W.3d 303 (Tex. App-Dallas 2013, pet. denied) . . . . . . . . . . . . . . . . 32 Bradford v. Vento 48 S.W.3d 749 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Bryant v. Clark 163 Tex. 596, 358 S.W.2d 614 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Burleson State Bank v. Plunkett 27 S.W.3d 605 (Tex. App-Waco-2000, pet. denied) . . . . . . . . . . . . . . . . . 33 Camden Mach. & Tool, Inc. v. Cascade Co. 870 S.W.2d 304 (Tex. App.-Forth Worth 1993, no writ.) . . . . . . . . . . . . . 38 Chambers County v. TSP Development, LTD 63 S.W.3d 835 (Tex. App.-Houston [14th Dist.] 2002, no pet.) . . . . . . . . . 16 Continental Oil Company v. Doornbos 402 S.W.2d 879 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Davis v. Campbell 524 S.W.2d 790 (Tex. App.-Dallas 1975) rev’d on other grounds 572 S.W.2d 660 (Tex. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 -vii- Dittman v. Cerone, 2013 WL 5970356 (Tex. App.-Corpus Christi 2013, no pet.). . . . . . . . 11, 22 Dow Chemical v. Francis 46 S.W.3d 237 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 DSA, Inc. v. Hillsboro Indep. Sch. Dist. 973 S.W.2d 552, (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Elizondo v. Gomez 957 S.W.2d 862 (Tex. App-San Antonio 1997, pet. denied) . . . . . . . . . . . 13 Esty v. Beal Bank, S.S.B. 298 S.W.3d 280 (Tex. App.-Dallas 2009, no pet.) . . . . . . . . . . . . . . . . . . . 31 Fed. Land Bank Ass’n of Tyler v. Sloane 825 S.W.2d 439 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Fender v. Farr 362 S.W.2d 539 (Tex. App-Texarkana 1953, no writ) . . . . . . . . . . . . . 35-36 Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc. 960 S.W. 2d 41 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 36 Four Bros. Boat Works v. Tesoro Petroleum Cos., Inc. 217 S.W.3d 653 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) . . . . . 32 Frady v. May 23 S.W.3d 558, (Tex. App.–Fort Worth 2000, pet. denied) . . . . . . . . . . . . 16 Gates v. Asher 154 Tex. 538, 280 S.W.2d 247 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Hamon v. Allen 457 S.W.2d 384 (Tex. Civ. App-Corpus Christi 1970, no writ) . . . . . . . . . 24 -viii- Hooks v. Bridgewater 111 Tex. 122, 229 S.W. 1114 (Tex. 1921) . . . . . . . . . . . . . . . . . . . . . . 12, 13 House v. Glazer 62 S.W.3d 795 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Johnson v. Brewer & Pritchasrd, P.C. 73 S.W.3d 193 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss 202 S.W.3d 427 (Tex. App-Texarkana 2006, no pet.) . . . . . . . . . . . . . . . . 14 Larsen v. Langford & Assocs., Inc. 41 S.W.3d 245 (Tex. App.-Waco 2001, pet. denied) . . . . . . . . . . . . . . . . . 34 Life Ins. of VA. v. Murray Inv. Co. 646 F.2d 224 (5th cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Lykken v. Kindsvator 2014 WL5771832 (Tex. App- Fort Worth 2014, no pet.) . . . . . . . . . . . . . 35 Mar. Overseas Corp. v. Ellis 971 S.W. 2d 402 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Marketic v. U.S. Bank Nat’l Ass’n 436 F. Supp.2d 842 (N.D. Tex 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Moore v. Mohon 514 S.W.2d 508 (Tex. Civ. App-Waco 1974, no writ) . . . . . . . . . . . . . . . . 11 Morrow v. Shotwell 477 S.W.2d 538 (Tex. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Myre v. Meletio 307 S.W.3d 839 (Tex. App-Dallas, 2010, pet. denied) . . . . . . . . . . . . 32, 33 -ix- Robbins v. Capozzi 100 S.W.3d 18 (Tex. App.-Tyler 2003, no pet.) . . . . . . . . . . . . . . . . . . . . . 34 Rus-Ann-Dev. Inc. v. ECGC, Inc. 222 S.W.3d 921 (Tex. App-Tyler 2007, no pet.) . . . . . . . . . . . . . . . . . . . . 21 Schlumberger Tech. Corp. v. Swanson 959 S.W.2d 171 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Scott v. Sebree 986 S.W.2d 365 (Tex. App-Austin 1999, pet. denied) . . . . . . . . . . . . . . . . 37 Smith v. Nat’l Resort Communities 585 S.W. 2d 655 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Sun Oil v. Bennett 125 Tex. 540, 84 S. W. 447 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Texacally Joint Venture v. King 719 S.W.2d 652(Tex. App.-Austin, 1986, writ ref’d n.r.e.) . . . . . . . . . . . . 21 Tex. Builders v. Keller 928 S.W.2d 479, 481 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Tukua Investments, LLC v. Spenst 413 S.W.3d 786, 796 (Tex. App-El Paso, 2013, pet. denied) . . . . . . . . . 33 Van Marcontell v. Jacoby 260 S.W.3d 686, 691 (Tex. App.-Dallas 2008, no pet.) . . . . . . . . . . . . 29, 32 W. O. Bankston Nissan, Inc. v. Walters 754 S.W. 2d 127 (Tex. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Wal-mart Stores, Inc. v. Bertrand 37 S.W.3d 1 (Tex. App-Tyler 2000, pet. denied) . . . . . . . . . . . . . . . . . . . . 14 -x- Ward v. Ladner 322 S.W.3d 692, (Tex. Ct. App.-Tyler 2010, no pet.) . . . . . . . . . . . . . 14, 21 Weitzel v. Barnes 691 S.W. 2d 598 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Westrope v. Chambers’ Estate 51 Tex. 178 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Wilson v. Fisher 144 Tex. 53, 188 S.W.2d 150 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Statutes Tex. Bus. & Com. Code § 17.46 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 40 Tex. Bus. & Com. Code §17.46(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . vi, 37, 38, 39 Tex. Bus. & Com. Code §17.46 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Tex. Bus. & Com. Code §17.46(b)(24) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Tex. Bus. & Com. Code §17.50(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Tex. Bus. & Com. Code §27.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33, 37, 40 Tex. Bus. & Com. Code §27.01(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Tex. Bus. & Com. Code §322 et seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Rules Tex. R. App. 39.1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 -xi- STATEMENT OF THE CASE Appellant Terry Blevins (“Blevins” or “Appellant”) brought suit against Appellees Vincent Ali, a/k/a James Vincent Houston (“Appellee Ali”) and Martha Houston (collectively “Appellees”) for statutory fraud in the sale of real estate, negligent and intentional misrepresentation, common law fraud, breach of contract, unjust enrichment, promissory estoppel and claims under the Texas Deceptive Trade Practices Act. Blevins sued for specific performance and damages arising out of the breach of contract, negligent misrepresentations and fraud. Blevins also sought treble damages under the Texas Deceptive Trade Practices Act (the “DTPA”). On May 6, 2015 the case was tried to the Trial Court on the merits. On May 21, 2015, the Trial Court issued its verdict finding for Appellees and against Blevins. The verdict was reduced to judgment on June 12, 2015. In the Judgment, the Trial Court made findings that were against the great weight and preponderance of the evidence and were beyond the findings that the Trial Court found it its verdict. The Court, upon Blevins’ request, entered its Findings of Fact and Conclusions of Law on August 8, 2015. After Blevins Motion for New Trial was denied by the Trial Court, Blevins filed its appeal of the Final Judgment. References to the Clerk’s Record are cited as CR _____. References to the Reporter’s Record are cited as RR_____. -1- STATEMENT OF ORAL ARGUMENT The Court should grant oral argument for the following reasons: a. Oral argument would give the Court a more complete understanding of the facts presented in this appeal. Tex. R. App. 39.1(c). b. Oral argument would allow the Court to better analyze the complicated legal issues presented in this appeal. Tex. R. App. 39.1(c). c. Oral argument would significantly aid the Court in deciding this case. -2- ISSUES PRESENTED ISSUE NO. 1: THE TRIAL COURT ERRED IN FINDING THAT NO CONTRACT EXISTED BETWEEN BLEVINS AND APPELLEES ISSUE NO. 2: THE TRIAL COURT ERRED IN FINDING THAT APPELLEES WERE THE LEGAL OWNERS OF THE PROPERTY AND WERE ENTITLED TO POSSESSION. ISSUE NO. 3: THE TRIAL COURT ERRED IN NOT FINDING BLEVINS IS ENTITLED TO SPECIFIC PERFORMANCE AND NOT AWARDING DAMAGES FOR BREACH OF THE CONTRACT AND ALSO ERRED IN AWARDING APPELLEES REASONABLE RENT ISSUE NO. 4 THE TRIAL COURT FINDINGS THAT APPELLEES MADE NO NEGLIGENT AND/OR FRAUDULENT REPRESENTATIONS AND/OR DID NOT COMMIT FRAUD AND/OR DID NOT VIOLATE THE TEXAS DECEPTIVE TRADE PRACTICE ACT WERE AGAINST THE GREAT WEIGHT AND PREPONDERANCE OF THE EVIDENCE ISSUE NO. 5 THE TRIAL COURT’S FINDINGS OF FACT WERE AGAINST THE Great weight AND PREPONDERANCE OF THE EVIDENCE -3- STATEMENT OF FACTS In August 2013, Appellees wanted to sell two tracts of land in Walker County, Texas, more particularly described as Tracts 4 and 5 located on 558 Hawthorne Rd, New Waverly, Texas 77358 ( the “Property”). RR 22. Blevins was interested in purchasing the two tracts of land. Based upon representations by Appellee Ali that Appellees owned the Property free and clear and could deliver title to the Property, Blevins decided to purchase the Property. Subsequently, Blevins and Appellees reached an agreement that Blevins would purchase the Property for $160,000.00.RR 23, 227-28. Blevins agreed to make an initial down-payment of $30,000.00 to be paid over a period of six months at $1,250.00 per week beginning September 2013 and continuing through February 2014.RR 23-24. After the initial down-payment, Blevins’ payments would be reduced to $750.00 a week and a real estate closing to officially transfer title would take place at Walker County Title on March 1, 2015. RR 24. RR 13, 24-25, 32. The agreement between Blevins and Appellee was further memorialized in a videotaped recording1, in tax statements pertaining to the Property and through warranty deeds filed by Appellees. RR 31, 38, 43, Ex. 13,14, 15, 21, 22, 23, 28. These 1 Appellee Ali and Blevins walked the property and Blevins videotaped the representations being made by Appellee Ali. RR 28, 31. On the video, Appellee Ali makes the specific representation that the Property was all his to transfer and would belong to Blevins. RR 31, Ex. 28. -4- representations were relied upon by Blevins to his detriment. RR 32, 42-48. Blevins paid the complete down-payment of $30,000. RR 33. Based on the electronically recorded reaffirmation of the verbal agreement, Blevins immediately began making the $750.00 weekly payments per the agreement between the parties. RR 32. In addition, an un-executed Deed of Trust, Warranty Deed and Promissory Note for the closing on the Property was forwarded to the title company by Appellees’ attorneys Penrice. RR 49. When the closing did not occur as scheduled on March 1, 2014, Blevins inquired about the status of the closing to Appellee Ali. Appellee Ali represented that the lawyers were holding up the closing and he could not get the lawyers to go faster. RR 35. Thereafter, on June 9, 2014, after Blevins continued to inquire about the status of closing and transfer of the title, Appellees tendered to Blevins three recorded warranty deeds (the “Warranty Deeds”) which Appellee Ali represented, conveyed the Property to Blevins. RR Ex. 21, 22, 23. Although the Warranty Deeds lacked a traditional legal identification, they contained Property ID numbers that Appellant Ali represented identified the Properties and which correlated to the Walker County Appraisal District’s (“WCAD”) identification numbers for Tract 4 and Tract 5. RR 37-38. Appellee Ali represented to Blevins that he filed the Warranty Deeds to change the owners name from Appellees to Blevins. RR 37-39. -5- Blevins also independently researched the WCAD records and discovered that tax statements had been changed into his name because of the filing of the Warranty Deeds. RR 38. Therefore, he believed that he was the proper owner of the Property. RR 38, Ex. 14, 15. Blevins, relying on the Appellees’ representations that he owned the Property, continued to make the weekly payments as agreed. RR 38-39. Blevins was still waiting for the closing to occur. On June 20, 2014, still concerned about the lack of an official closing, Blevins contacted the title company to see why the closing had not yet occurred. RR 43. The title company informed Blevins that the title company could not insure title because Appellees had numerous deeds that had transferred the Property into and out of Appellees’ name which clouded title. RR 46, 126-128, Ex. 33. Further, Blevins discovered that the title company had notified Appellee Ali’s attorney of these issues as early as March 24, 2014. RR 136, Ex. 7. Despite learning about the title issues in March 2014, Appellees never informed Blevins of any title problems. To the contrary, Appellees insisted they had good title on the property, and continued to accept Blevins’ payment. RR 47. Having learned that he could not obtain good title to the Property, Blevins ceased making payments and initiated the lawsuit against Appellees. RR 46. Blevins had already paid $42,750.00 toward the purchase Property. RR 43. -6- Additionally, Blevins had paid Appellees $5,000 to make repairs to the Property which Appellees never completed. RR 43. Further, Blevins made repairs to the septic system at his cost and made other valuable improvements to the Property based upon Appellees’ representations that Blevins owned the Property. RR 58, 94-95, 224. The case was tried to the Trial Court on May 6, 2015. On May 21, 2015, the Court rendered its verdict finding in favor of the Appellees. CR 162. The verdict contained findings of fact. The Court, upon Blevins ‘ request, entered its Findings of Fact and Conclusions of law (the “FOF”) on August 6, 2015. CR 165. The Trial Court FOF made findings beyond those issues listed in the Court’s May 12, 2015 verdict. CR 162, 165. Prior to any hearing on entry of a judgment, and over Blevins’ objection to the form of the Final Judgment being proposed, the Court signed the Final Judgment. CR 163-164. The Final Judgment included rulings that were beyond the scope of the Trial Court’s verdict. CR 162. These findings in the Final Judgment were against the great weight and preponderance of the evidence. CR 163- 164. Blevins timely filed a Motion for New Trial which was denied by the Trial Court. CR 167. Blevins then timely filed his Notice of Appeal. CR 234. -7- SUMMARY OF ARGUMENT The Trial Court’s findings that there was no contract between the parties was against the great weight and preponderance of the evidence. The undisputed evidence at the trial showed that both parties believed that they had an agreement for the purchase of the Property. The terms were specific and were not disputed. The sole issue arose because of the failure of Appellees to perform under the Contract and deliver good title of the Property to Blevins. Contrary to the findings of the Trial Court, this issue does not negate the fact that there was a contract. In fact, Appellees testified that they had every intention of honoring the contract, thereby admitting that the contract existed. Despite this overwhelming evidence, the Trial Court erroneously concluded that no contract existed. Further, the Trial Court’s ruling that the Appellees are the legal owners of the Property and that Appellees are entitled to the use and enjoyment of the land was error. This ruling contradicted the overwhelming evidence of the contract which existed and was being performed and Appellees ultimate breach of the agreement because of the cloud on the title of the Property. Appellee Ali admitted he did not own all of Tract 4, and that it was his intention to transfer all of his interest in the Property to Blevins. RR 31, 245. Based on its erroneous ruling, and despite no evidence that this was ever a rental transaction, the Trial Court found that Appellees -8- were entitled to reasonable rent. The court wrongfully and arbitrarily ruled that “monies expended by Plaintiff Terry T. Blevins should be applied as reasonable rental for the use of the property”. CR 186. Finally, the Findings of Fact and Conclusions of Law entered by the Court exceeded the scope of the findings articulated in the Court’s original May 21, 2015 verdict, and were against the great weight and preponderance of the evidence. The Trial Court’s verdict only identified four particular findings. CR 162. The Findings of Fact and Conclusions of Law entered on August 6, 2015 identified 36 findings of fact 26 conclusions of law. CR 183-187. Certain findings, pertaining to property ownership, DTPA, fraudulent misrepresentation and related claims were not even referenced in the original verdict and were not adequately addressed since the court concluded there was no contract or agreement. However, the evidence clearly showed that Appellees made negligent and/or fraudulent misrepresentations that were designed to induce Blevins into purchasing the Property. The Court ignored this evidence, and against the great weight and preponderance of the evidence entered findings that no fraudulent or negligent misrepresentations were made, no fraud was committed and that there were no violations of the Tex. Bus. & Com. Code §17.46 et seq. This was simply error by the Trial Court. -9- ARGUMENT AND AUTHORITIES I. THE TRIAL COURT ERRED IN FINDING THAT NO CONTRACT EXISTED BETWEEN BLEVINS AND APPELLEES (Issue No. 1 Restated) THE TRIAL COURT ERRED IN FINDING THAT APPELLEES WERE THE LEGAL OWNERS OF THE PROPERTY AND WERE ENTITLED TO POSSESSION (Issue No. 2 Restated) THE TRIAL COURT ERRED IN NOT FINDING BLEVINS IS ENTITLED TO SPECIFIC PERFORMANCE AND NOT AWARDING DAMAGES FOR BREACH OF THE CONTRACT AND ALSO ERRED IN AWARDING APPELLEES REASONABLE RENT (Issue No. 3 Restated) A. Appellees and Blevins Had an Oral Contract for the Purchase of the Property Blevins plead and sought actions for breach of contract damages, specific performance and a declaratory judgment to determine that the contract between the parties was in existence and that it had been performed by Blevins to justify awarding him damages and/or specific performance. See CR 6. Although there was overwhelming evidence in the record, the Trial Court held that no contract existed because there was no “meeting of the minds”. CR 162, 183-187. This was simply error on the part of the Trial Court. A contract for the sale of land must contain essential terms of a contract, expressed with certainty and clarity so that it is understood to show the intention of the parties. Bryant v. Clark, 163 Tex. 596, 358 S.W.2d 614 (1962); Wilson v. Fisher, -10- 144 Tex. 53, 188 S.W.2d 150 (1945); Moore v. Mohon, 514 S.W.2d 508, 511 (Tex. Civ. App-Waco 1974, no writ). If the essential elements of a contract are present, then the contract is enforceable. See Dittman v. Cerone, 2013 WL 5970356 *4-5 (Tex. App-Corpus Christi 2013, no pet.). See also Tex. Bus. & Com. Code §322 et seq. In the case at bar, Appellees and Blevins entered into an oral contract for the purchase of the Property. They agreed to a specific price of $160,000.00, a down payment of $30,000, and payments of $750 weekly for the remainder of the purchase price. RR 13, 23-25, 32. 226-228. The oral contract was consummated by Blevins’ payment in full of the down payment under the agreed terms and Blevins’ continued weekly payments which were accepted by Appellees. RR 23-25, 32. The agreement was also supported by the fact that Blevins took possession and moved his family in to the mobile home and continuously occupied the Property until he was forced to move out after the judgment was entered in this case. The contract was further memorialized by the video recording. RR 31, Ex. 28 and by Appellees tendering Blevins the three Warranty Deeds. RR 37, 38, Ex. 21, 22, 23. Additionally, Ali’s own attorney sent over the promissory note and deed of trust with instructions to the title company to open title. RR113. 1. Contract falls within the Equitable Exception to the Statute of Frauds -11- Although real estate contracts normally need to be in writing, an equitable exception exists in this case. An oral contract which has been partly performed may be enforced in equity if “denial of enforcement would amount to a ‘virtual fraud’ in the sense that the party acting in reliance of the contract has suffered a substantial detriment for which he has no adequate remedy and the other party, if permitted to plead the statute would, reap an unearned benefit.” Davis v. Campbell, 524 S.W.2d 790, 793 (Tex. App.-Dallas 1975) rev’d on other grounds 572 S.W.2d 660 (Tex. 1978). The Texas Supreme Court has held that in order for a real estate contract to fall outside the statute of frauds, three elements are necessary: (1) payment of consideration, whether it be in money or services; (2) possession by the person seeking to purchase the property, and (3) the making of valuable and permanent improvements upon the land. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (Tex. 1921); Davis, 524 S.W.2d at 793. There is no doubt that these three elements existed in this case. Blevins paid consideration and began performance of the oral contract by paying the $30,000 down payment and the weekly payments of $750 per week. RR 13, 23-25, 32. Blevins took possession of the Property2 and retained possession until after the Trial 2 Additionally, Appellees tendered three Warranty Deeds to transfer the Property to Blevins because the closing had not yet occurred. RR 37-38, Ex. 21, 22, 23. -12- Court entered its Final Judgment.3 Additionally Blevins made substantial improvements to the Property. RR 58, 94-95. To not acknowledge the contract in this case would create a virtual fraud. See Davis, 524 S.W.2d at 790. Blevins, acting in reliance on the contract, suffered substantial detriment by having to move his family off the Property after having paid substantial money towards the purchase of the property while Appellees reaped the unearned benefit of sums far beyond reasonable rent for the property. Essentially, the Trial Court allowed Appellees to benefit from their own fraud and misrepresentations. See Davis, 524 S.W. 2d 790. Additionally, Appellee Ali admitted the existence of the agreement by tendering the three Warranty Deeds to Blevins. This admission by Appellees should have removed any statute of frauds questions. See Elizondo v. Gomez, 957 S.W.2d 862, 864-865 (Tex. App-San Antonio 1997, pet denied); Hooks 229 S.W. at 1116 (Tex. 1921) 3 Blevins was forced to vacate the Property after the Final Judgment because the amount of supersedeas bond and the cash required to obtain the same was beyond his reach. The Final Judgment erroneously provided that he give possession to Appellees. -13- 2. The Trial Court’s Finding That There Was No Contract was Against the Great weight and Preponderance of the Evidence An appellate court tests the factual sufficiency of the evidence by examining the entire record to determine whether a finding is clearly wrong and unjust. Ward v. Ladner, 322 S.W.3d 692, 702 (Tex. Civ. App-Tyler 2010, no pet.); Kinder Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 437 (Tex. App-Texarkana 2006, no pet.). The court must consider and weigh all of the evidence, not just the evidence which supports the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998). See also Dow Chemical v. Francis, 46 S.W.3d 237 (Tex. 2001) (court can set aside a verdict if the evidence if the findings is so against the weight and preponderance of the evidence that it is clearly wrong and unjust). When circumstances are equally consistent with either of two facts and nothing shows that one is more probable than the other, neither fact can be inferred a no evidence challenge must be sustained. See Ward, 322 S. W. 2d at 702; Wal-mart Stores, Inc. v. Bertrand, 37 S.W.3d 1, 12 (Tex. App-Tyler 2000, pet. denied). No evidence was ever presented by the Appellees that Blevins was merely “renting the property.” The overwhelming evidence was that it was both parties intention to consummate a sale of the property, the only question became was as to whether or not Appellees could transfer all of the land that they were selling. RR 224- 225, 224-225. There was no dispute that the monies tendered by Blevins and accepted -14- by Appellees were for the purchase of the Property. RR 226. There was also no question or testimony by either side that the Property was not to be sold, but merely rented by Blevins. Both parties intended that a sale take place under the terms of the oral agreement. RR 13, 24-25, 245, Ex. 32. It was only when Blevins discovered that Appellees could not deliver marketable title, that he stopped paying the agreed purchase price and initiated the lawsuit. RR 46. Appellee Ali specifically testified that he did not dispute that the parties had an agreement for the purchase of the property. RR 224-225, 245. At trial he stated “I am still holding fast to the original agreement”. He also admitted it wouldn’t be wrong of Mr. Blevins to rely on his representations. RR 225. Further, it was undisputed that as of June 20, 2014, Blevins paid $42,750.00 towards the purchase of property. RR 243, 244-245. Additional evidence of the “meeting of the minds” was the fact that Appellees specifically provided and recorded the three Warranty Deeds which he represented conveyed the Property to Blevins. See RR, 37-38, Ex. 21, 22, 23. The recording of the three Warranty Deeds caused the WCAD to recognize Blevins as the owner of the Property.4 RR 38. Additionally, Blevins walked the Property with Appellee Ali and Appellee Ali at each property 4 Although Appellee Ali testified that the WCAD’s records were wrong this testimony was merely his opinion and offered no expert testimony or testimony from WCAD to support this testimony. He admitted it was just his opinion. RR 206, 211. This testimony is contradicted by his own actions of preparing and filing the Warranty Deeds. -15- marker identified each tract by name and stated “This is all yours” to Blevins. RR Ex. 28. Blevins relied on these representations that he owned the Property because he continued to make the weekly payments. RR 38, 42. Additionally, the video recording showed that Appellees intended to transfer and sell the Property to Blevins. RR 28, 31, Ex. 28. Appellee’s attorney Penrice also testified that there was an agreement to purchase the property. RR 49, Ex. 2, 3, 4. The above referenced evidence shows not only was there a contract, but there had been performance under the contract and that the parties had always intended that the transaction to be a sale of the Property. Therefore, the Trial Court’s finding that there was no “meeting of the minds” was against the great weight and preponderance of the evidence. B. Appellees were Not Entitled to Possession of the Property Under a contract for sale of real estate, equitable title passes to the buyer. Chambers County v. TSP Development, LTD, 63 S.W.3d 835 (Tex. App.-Houston [14th Dist.] 2002, pet denied). See Frady v. May, 23 S.W.3d 558, 565 (Tex. App.–Fort Worth 2000, pet. denied). Therefore, in the case at bar, equitable title passed to Blevins when he made the down payment and paid the weekly payments. Yet, despite all of the evidence to the contrary, the Trial Court erroneously found that Appellees were the owners of the Property. This finding indicated that -16- Appellees had good title to the property; therefore, the Trial Court granted Appellees possession of the property. Since equitable title passed upon the formation of the contract between Blevins and Appellees, this finding by the Trial Court was error. The erroneous finding in the verdict was manifested by the Trial Court’s erroneous finding that there was no agreement. When the Trial Court found that there was no agreement, it basically disregarded the other issues at the trial. However, as shown above, the overwhelming evidence at trial, warranted a finding that an agreement existed for the purchase of the Property. Since there was an agreement and Blevins was performing under the agreement until the time of the breach, equitable title had passed to Blevins and Appellees were not entitled to possession of the property. Despite Appellee Ali’s representations to Blevins that he owned all of the Property, the evidence at trial showed that Appellees did not own all of the interest that they sold to Blevins. Martin, the title company’s representative testified that he could not insure either Tract 4 or Tract 5 because of the title issues resulting from constant transfers of the Property over the years in and out of Appellees’ name. RR 136, 137. Martin further testified that Appellees were aware or should have been aware of the title problems since 2012. RR 136-137. Martin did testify, that after Appellees’ attorney, Penrice, insisted that the title policy should be issue, he prepared -17- an affidavit of adverse use and possession as to Tract 5 and upon the signing of the same would insure Tract 5, but he still could not insure Tract 4. RR 140 Appellees never signed or recorded the adverse possession affidavit. RR 140. Martin, further testified that Appellees did not have marketable title for either Tract 4 or Tract 5. RR 137-140, and in his opinion Appellees had committed fraud. RR 140-142. Appellee Ali testified that he knew he did not have title to all of Tract 4, but that he had only a 75% interest in Tract 4. RR 224-225. This testimony directly contradicted his representations prior to trial that he owned all of the Property. See RR Ex. 28. This evidence at trial showed that Appellees knew that they did not own all of Tract 4, but clearly made negligent or fraudulent misrepresentations to induce Blevins to purchase the Property. However, rather than using this finding to determine the negligent and/or fraudulent misrepresentation claims, the Court erroneously interpreted this testimony to find that there was no “meeting of the minds” and wrongfully awarded possession to Appellees despite Blevins equitable title in the property. Additionally, the Trial Court completely ignored the fact that Appellees had transferred the Property to Blevins by the three Warranty Deeds. See Ex. 21, 22, 23. This transfer by Appellees further supported the fact that Blevins held title to the Property. Therefore, the Trial Court’s awarding Appellees possession was error. -18- C. Blevins is Entitled to Damages Since the Trial Court failed to recognize the existence of the oral contract, it never addressed the issue of the breach of contract and the contractual damages for such breach of contract. As shown above, since a contract existed and it was breached by Appellees, Blevins is entitled to recover damages for the breach. 1. Blevins Is Entitled to a Finding That There Is a Breach of Contract As shown above, Appellees did not have proper title to convey the Property to Blevins, despite Appellees’ representations to the contrary. Appellees knew or should have known that they did not have good title prior to selling it to Blevins, yet they offered it for sale, entered into an agreement for the purchase, accepted both the down payment and the weekly payments toward the purchase price and surrendered possession to Blevins. Since, as shown above, a contract existed, Appellees breached the contract by not being able to deliver marketable title, or if he had marketable title he breached the contract by not delivering title. Blevins did not discovery the breach until the title company refused to insure title because of the cloud on the title caused by Appellees. See RR 46, 126-128. Since, Appellees could not and cannot deliver all of Tract 4, and did not deliver marketable title to any of the Property, Appellees breached the contract. Due to the fact that Appellees could only deliver 75% of Tract 4, Blevins was also entitled to reformation of the contract. -19- The basic remedy of reformation of the contract is that the true agreement between the parties be shown. Continental Oil Company v. Doornbos, 402 S.W.2d 879, 883 (Tex. 1996); Sun Oil v. Bennett, 125 Tex. 540, 84 S. W. 447 (1935). Once the agreement is established, equity may reform the contract so as to conform it to the agreement that can be enforced. Doornbos, 402 S.W.2d at 883. In the present case, there was no dispute that the agreement existed. RR 24, 32, 33, 99, 168, 170, 205, 226, 228, 250. In fact, Appellant Ali admitted he would stick to the “original agreement” to convey all of his interests in both Tracts. RR 224-225, 245. Appellant Ali transferred all of his interests by recording and tendering to Blevins the three Warranty Deeds. RR 37-39,, Ex.21, 22, 23. However, the evidence showed that Appellee Ali, despite previous representations, only owned an undivided 3/4 interest in Tract 4. RR 46-47, Ex. 28, 33. The Trial Court should have reformed the contract to be able to enforce specific performance of the contract that existed. See Doornbos, 402 S.W.879. Therefore, the Trial Court erred in not reforming the Contract and finding that a breach occurred. -20- 2. Blevins is Entitled to Specific Performance A party seeking specific performance of a real estate contract must prove that he has diligently and timely performed or tendered performance of all obligations set forth in the contract. Ward, 322 S.W.3d at 698; Texacally Joint Venture v. King, 719 S.W.2d 652, 653 (Tex. App.-Austin, 1986, writ ref’d n.r.e.). Price is an important factor required for the sale of property. Ward, 322 S.W.3d at 698. See Rus-Ann-Dev. Inc. v. ECGC, Inc., 222 S.W.3d 921 (Tex. App-Tyler 2007, no pet.) To be entitled to specific performance, Blevins needed to prove that he paid or was paying the purchase price agreed upon by the parties. Ward, 322 S.W.3d at 698. See King, 719 S.W.2d at 653. Price was not an issue in the case at bar as both parties had agreed to the purchase price of $160,000. The existence of the contract, as shown above was confirmed by the representations on the video recording (Ex. 28) and the transfer of possession of the Property to Blevins. Appellees further confirmed the existence of the contract by tendering and recording the three Warranty Deeds., and the letter from his attorney transmitting closing documents to the title company. RR 37-39, 113, Ex. 2, 3, 4, 5, 6, 21, 22, 23. The Warranty Deeds, despite lacking metes and bounds, were sufficient to transfer title because they contained identification numbers utilized by WCAD for the Property. These identification numbers allowed a person to obtain the legal -21- descriptions listed with WCAD for the Property. Ex. 21, 22, 23. A deed does not have to contain the metes and bounds of the property to be enforceable. The deed must only furnish enough data to identify the property with reasonable certainty. Tex. Builders v. Keller, 928 S.W.2d 479, 481 (Tex. 1986) (citing Morrow v. Shotwell, 741 S.W.2d 538, 539 (Tex. 1972). Further “[i]f enough appears in the description so that a person familiar with the area can locate the premises with reasonable certainty, it is sufficient to satisfy the statute of frauds” Apex Fin. Corp. v. Garza, 155 S.W. 3d 230, 237 (Tex. App-Dallas 2004, pet. denied) (citing Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248 (1955). A description validity is not affected by knowledge or intent. Dittman, 2013 WL *6 . Since Appellees’ intent was to sell the Property to Blevins, and Appellees breached the contract, Blevins is entitled to specific performance. Therefore, the Trial Court erred in not awarding Blevins specific performance. 3. Blevins is Entitled to Contract Damages for Breach of Contract Alternatively, should be able to recover his contractual damages. Blevins paid $42,750 towards the purchase of the Property. RR 43. He also had paid taxes on the Property of $1,0311.11 and insurance of $856.00. RR 56, 58. Blevins also paid Appellees $5000.00 for repairs to the Property that were never made. Blevins further incurred $11,177.56 for repairs to the septic system. RR 57-58, Ex. 31. Absent -22- recovery for specific performance, Blevin is entitled to his contractual damages of $89,900. RR 66. Whether he is entitled to specific performance or contractual damages as shown above, Blevins is also entitled to recover his reasonable and necessary attorneys fees of $35,166.88, $7,500.00 for appeals to the Court of Appeals and $7,000 for a writ to the Supreme court and $7,500 if the writ is accepted by the Supreme Court. RR 298. The Trial Court erred in not awarding any damages to Blevins. This case should be remanded for the determination of the damages, either specific performance and Blevins attorney’s fees or his contractual damages, including attorney’s fees. 4. The Trial Court’s Finding that Appellees were Entitled To Reasonable Rent Was Error When the Trial Court found that no contract existed and wrongfully awarded possession to the Appellees, it also found that Appellees were entitled to the $42,750 paid by Blevins as reasonable rent. This was error on the part of the Trial Court. No evidence was presented at trial that either of the parties had intended for the transaction to be one of a “rental transaction.” As shown above, there was a valid and binding contract between the parties. Appellees breached the contract by not being able to deliver marketable title. Upon formation of the contract, i.e. when Blevins paid the down payment to Appellees and took possession, equitable title passed to Blevins. See Hamon v. Allen, 457 S.W.2d 384 (Tex. Civ. App-Corpus Christi 1970, -23- no writ). Further, Appellee Ali admitted that he received payments from Blevins towards the purchase or property totaling $42,750.00 and he provided the three Warranty Deeds out of “respect” and to acknowledge that Blevins was paying him for the purchase of property. RR 224. Appellee Ali never testified that the payments from Blevins were considered to be rent or applied as rent in any manner. There was no pleading for rent and this issue was not tried by consent as no evidence that this was ever to be any type of rental transaction was presented. There Despite this overwhelming evidence, the Trial Court arbitrarily held that Blevins’ payments were for rent for use of the Property. Appellees were not entitled to rent during the period that Blevins occupied the title as they had transferred equitable title to Blevins. The only reason that the entire contract defaulted was because of Appellees’ default. The awarding of reasonable rent to Appellees was rewarding them for their own breach of contract and fraud. II.. THE TRIAL COURT’S FINDINGS THAT APPELLEE’S MADE NO NEGLIGENT AND/OR FRAUDULENT MISREPRESENTATIONS, AND/OR DID NOT COMMIT FRAUD AND/OR DID NOT VIOLATE THE TEXAS DECEPTIVE TRADE PRACTICE ACT WERE AGAINST THE Great weight AND PREPONDERANCE OF THE EVIDENCE (Issue No. 4 Restated) . THE TRIAL COURT’S FINDINGS OF FACT WERE AGAINST THE Great weight AND PREPONDERANCE OF THE EVIDENCE (Issue No. 5 Restated) -24- Along with breach of contract claims, Blevins brought claims for negligent misrepresentation, common law fraud, statutory fraud in the sale of the real estate, and violations of the Deceptive Trade Practice Act. It is apparent from the findings that the Trial Court entered that it based the entire findings on the fact on the basis that there was no contract between the parties. A. Trial Court’s Findings of Fact were Against the Great Weight and Preponderance of the Evidence The Trial Court specifically found that:5 “1. Vincent Ali (Defendant) offered to sell 4.3 acres of land referred to as Tract 5 or 558 Hawthorne Road, New Waverly, Texas 77358 to Terry Blevins (Plaintiff”); “2. Defendant also offered to sell 3 acres of a called 4.3 acres of land referred to as Tract 4 to Plaintiff. “3. Although Vincent Ali (Defendant) and Terry Blevins (Plaintiff) discussed the sale of the Tract 5 and Tract 4, there was not a meeting of the minds or mutual assent between the parties on the essential terms of the agreement; “4. There were no clear and definite terms regarding the sale of the property” “5. The parties did not come to an agreement on what property would be conveyed in the sale, the time when the conveyance would occur, the amount of property that would be conveyed, and the interest in the property that would be conveyed.” 5 There were 36 Findings of Facts in total. Blevins has only listed the most germaine ones to the arguments set forth herein. -25- “8. There was not any general warranty deed with vendor’s lien signed by Defendants related to the property at issue.” “11. Plaintiff did not have an interest in the property at issue.” “12. Defendants did not transfer or convey the property at issue to Plaintiff.” “13. Defendants have a superior right to possession of the property at issue”. “14. Plaintiff paid Defendant $42,500; Monies expended by Plaintiff were reasonable rental value for the property for the time that the Plaintiff occupied the property. “15. Defendants did not commit false, misleading, or deceptive acts, and/or omissions; “19. Defendants did not make false representations or false promises to Plaintiff; “20. Defendants did not conceal or fail to disclose facts that were not disclosed to Plaintiff; “22. Plaintiff did not justifiably rely on Defendants to his detriment; “23. Plaintiff did not sustain damages as a result of any acts or omissions of Defendants; “25. Plaintiff did not rely on promises made by Defendant to Plaintiff’s detriment” “27. Plaintiff did not suffer pecuniary loss that was proximately caused by Plaintiff’s justifiable reliance on information obtained by Defendants” “29. Defendants did not make material false representations to Plaintiff with the knowledge of their falsity or with reckless disregard of the truth with the intention that such representations be acted upon by Plaintiff” -26- “31. Defendants were not enriched by any transaction between Defendants and Plaintiff; “32. Plaintiff did not make any valuable and permanent improvements upon the land with the consent of Defendant” “33. Plaintiff did not pay consideration for the property at issue; .. . RR 183-187. Although the Trial Court listed the above as findings of fact, in fact, most of them are merely conclusory statements and the Trial Court did not list any testimony that supported his findings. The Court’s findings are against the great weight and preponderance of the evidence. Further, most of these findings were not part of the Trial Court’s initial findings in its original verdict. CR 162. Only after the Trial Court entered the Appellees form of Final Judgment over Blevins’ objections without any hearing, and after Blevins’ request for findings of fact, did he expand his findings to include the erroneous findings. CR 163, 165 1. The Trial Court’s Findings of Fact Regarding the Contract Issues Are Against the Great Weight and Preponderance of the Evidence As shown above, the Court’s findings that there was no meeting of the minds or mutual assent on the essential terms of the agreement, (FOF No. 3); there was no clear definite terms regarding the sale of the property at issue, (FOF No. 4); that there was no agreement as to what property would be conveyed, (FOF No.6); that there was -27- not any general warranty deed related to the property at issue, (FOF No. 8);6 were against the great weight and preponderance of the evidence and error on the part of the Trial Court. CR 183-184 As shown above, the parties clearly had agreed on terms of the contract and had begun performance of the contract. 2. The Trial Court’s Finding That the Appellees Made No Negligent Misrepresentations Was Error The Trial Court made specific findings of fact that “Defendants did not commit false, misleading or deceptive acts, practices and/or omissions, (FOF No. 15); that Defendants did not make false misrepresentations or false promises to Plaintiff, (FOF No. 19); that Defendants did not conceal or fail to disclose facts that were not disclosed to Plaintiff, (FOF 20); that Plaintiff did not justifiably rely on Defendants to his detriment, (FOF 22); that Plaintiff did not sustain damages as a result of any acts or omissions of Defendants, (FOF 23); that Plaintiff did not rely on promises made by Defendant to Plaintiff’s Detriment, (FOF 25); Plaintiff did not suffer pecuniary loss that was proximately caused by Plaintiff’s justifiable reliance on information obtained by Defendants, (FOF 27); that Defendants did not make material false representations to Plaintiff with knowledge of their falsity or with reckless disregard of the truth, 6 The Court’s statement that there was not a general warranty deed with a vendor’s lien is correct, but implies that you have to have a vendor’s lien to transfer the property. This is incorrect. The three Warranty Deeds that were part of the evidence in this case which transferred the property. See RR Ex. 21-23. There is no requirement that a general warranty deed contain a vendor’s lien in the sale of real estate. -28- (FOF 29); and that Defendants were not enriched by any transaction between Defendants and Plaintiff, (FOF 31). CR 184-185. These findings of fact are against the great weight and preponderance of the evidence and do not support the Trial Court’s finding of no negligent misrepresentations. The elements of negligent misrepresentation are: (l) the representation is made by a defendant in the course of his business, or in a transaction in which he has a pecuniary interest; (2) the defendant supplies “false information” for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) plaintiff suffers pecuniary loss by justifiably relying on representation. Fed. Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991); Van Marcontell v. Jacoby, 260 S.W.3d 686, 691 (Tex. App.-Dallas 2008, no pet). In the present case, all of the elements of negligent misrepresentation are met. Appellee Ali did not dispute that he did not have clear title to tract 4, but instead testified that he only intended to convey all of his interests in Tract 4. RR 224, 231- 232. Yet, he never once disclosed to Blevins that he did not own all of Tract 4, and failed to disclose the fact that it was not insurable. Instead, he made representations that the closing was merely delayed, but that he had every “intention of honoring everything that I said to him” RR 245. -29- All of Appellee Ali’s representations to Blevins were made in a transaction in which he had a pecuniary interest, i.e. he would be receiving and did receive all funds paid by Blevins. RR 43. Appellee Ali supplied “false information” in order to induce or guide Blevins into purchasing the property. RR 37-38, Ex. 21, 22, 23. Appellee Ali did not exercise reasonable care or competence in obtaining or communicating the information to Blevins. Appellee knew or should have known he did not own all of Tract 4 and that the Property was not insurable from a title company’s standpoint.7 RR 136-137, 140-142, 155. Blevins was justified on relying on Appellee Ali, who admitted this fact. RR 48, 49, 225. Blevins suffered pecuniary loss by justifiably relying on Appellees’ representations. RR 43, 55, 56, 57-58, 66. 91, 298. All elements were met to show support Blevins cause of action for negligent misrepresentations. The Trial Court erred in not finding that Blevins was entitled to recover damages for negligent misrepresentations. 7 Testimony at trial showed that Appellee Ali was aware of the title problems as early as 2012 when he attempted to refinance the property. RR136-137. -30- a. Blevins Is Entitled to Damages for Negligent Misrepresentations The Texas Supreme Court had held that the proper measure of damages for negligent misrepresentations are damages necessary to compensate the plaintiff for pecuniary loss to him as a result of the misrepresentation. Fed. Bank Assoc., 825 S.W.2d at 442. This includes the pecuniary loss suffered otherwise as a consequence of the plaintiff’s reliance on the misrepresentation. Pecuniary loss has been described as out-of-pocket costs. See Esty v. Beal Bank, S.S.B., 298 S.W.3d 280, 302 (Tex. App.-Dallas 2009, no pet.) citing DSA, Inc. v. Hillsboro Indep. Sch. Dist. 973 S.W.2d 552, 663-64 (Tex. 1998). As shown in Section I(C)(3) above, Blevins suffered pecuniary loss of $89,900 and attorney’s fees of $35,166.88. Blevins is entitled to recover this pecuniary loss as a result of the Appellee’s negligent misrepresentations. The Court should remand this case for this determination. 3. The Trial Court’s Finding That There Was No Fraud Was Error Similarly, the Trial Court’s findings of fact set forth in Section II (A) (1) above are against the great weight and the preponderance of the evidence to support the Trial Court’s finding of no fraud. Again the evidence clearly showed undisputed evidence of the fraud which caused damages to Blevins. -31- The elements of common law fraud are: (1) a material misrepresentation was made; (2) the representation was false; (3) when the representation was made the speaker knew it was false or made the statement recklessly without any knowledge of the truth and as a positive assertion; (4) that the speaker made the representation with the intent that the other party should act on it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. Van Marcontell, 260 S.W.2 at 691. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 211 n.45 (Tex. 2002); Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W. 2d 41, 47 (Tex. 1998); See also Tex. Bus. & Com. Code §27.01. A subcategory of fraud is fraud by nondisclosure. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997); Blankenship v. Brown, 399 S.W.3d 303, 308 (Tex. App-Dallas 2013, pet. denied). Fraud by omission can be as misleading as a positive misrepresentation of fact where the party has a duty to disclose. Myre v. Meletio, 307 S.W.3d 839, 843 (Tex. App-Dallas, 2010, pet. denied); Four Bros. Boat Works v. Tesoro Petroleum Cos., Inc., 217 S.W.3d 653, 670 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). Silence can be equivalent to a false representation. See Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001). In a real estate transaction, a seller is under a duty to disclose material facts that would not be discoverable that a reasonable investigation and inquiry would not -32- uncover. Smith v. Nat’l Resort Communities, Inc., 585 S.W.2d 655, 658 (Tex. 1979); Myre, 307 S.W. 3d at 843. Tex. Bus. & Com. Code §27.01 creates a statutory cause of action for fraud in a real estate transaction when the following elements are present: (1) a person makes a false representation of a past or existing material fact in a real estate transaction to another person for the purpose of inducing the making of a contract; and (2) the false representation is relied on by the person entering into the contract. Tex. Com. Code §27.01(a); Tukua Investments, LLC v. Spenst, 413 S.W.3d 786, 796 (Tex. App.-El Paso 2013, pet. denied). Statutory fraud under Tex. Bus. & Com. Code §27.01 applies to false misrepresentations or promises to induce another to enter int a contract for the sale of property. Tukua Investments, 413 S.W.3d at 796; Marketic v. U.S. Bank Nat’l Ass’n, 436 F. Supp.2d 842, 856 (N.D. Tex 2006). Section 27.01 does not require an actual conveyance of the property, but merely a contract to convey the property which was induced by a false representation will be statutory fraud. See Tukua Investments, 413 S.W.3d at 796; Burleson State Bank v. Plunkett, 27 S.W.3d 605, 611 (Tex. App-Waco-2000, pet. denied). See also Life Ins. of VA. v. Murray Inv. Co., 646 F.2d 224, 227 n.2 (5th Cir. 1981)(Section 27.01 applies to transactions involving the actual or potential sale or purchase of real estate). Statutory fraud differs from common law fraud only in that it does not require proof that the -33- misrepresentations were made knowingly and/or recklessly. Robbins v. Capozzi, 100 S.W.3d 18 (Tex. App.-Tyler 2003, no pet.); Larsen v. Langford & Assocs., Inc., 41 S.W.3d 245, 249 (Tex. App.-Waco 2001, pet. denied). In the case at bar, the evidence showed that Blevins and Appellees agreed to enter into the contract to purchase Tract 4 and Tract 5, RR 22, 23, 24, 32, 33, 35, 81, 99, 113. There is no dispute that Appellee told Blevins that he was buying all of Tract 4 and Tract 5. RR 23, 25, Exs. 12, 22, 23 28. In fact, this conversation was memorialized on the video recording that was played into evidence and admitted into evidence. See Ex. 28. Appellee Ali told Penrice, his attorney, that he owned Tract 4, and told him to include Tract 4 in the Deed. RR 172. Ali admitted that he owned all of the land. RR 294. Throughout the entire time that Blevins paid him, Ali continued to represent to him that he had good title and owned all of the Property. RR 47. To further induce Blevins into continuing to pay, Appellee Ali gave Blevins the three Warranty Deeds conveying him the Property to him. RR 223, 234. Ex. 21, 22, 23. Additionally, Blevins requested getting a survey and Appellee Ali also told him it was not necessary as he had the survey. RR 104-105. Further, Appellee Ali knew or should have know that title issues existed as early as 2012 when he tried to refinance the property and could not get title insurance on the Property. RR 128, 137. His attorney, Penrice knew that the Property was not -34- insurable in 2012, and testified that it was his “practice” to tell his client, inferring that Appellees knew that the Property was not insurable. RR129, 131. Additionally, Appellee Ali knew in March 2014 that he could not deliver good title when Martin, the title company representative sent out his letter to Penrice. RR132, 132, 134. Yet, despite all of this knowledge, he continued to represent to Blevins that he was transferring the Property and would deliver title. He failed to disclose any of the problems he knew or should have known concerning the title issues. Further, he continued to deceive Blevins by giving him three Warranty Deeds which he represented transferred title to Blevins, despite knowing he did not own all of Tract 4 and that the title company was refusing to insure the Property. When Appellee Ali gave the three Warranty deeds to Blevins, he again misrepresented his ownership. If a grantor does not own the land that he attempts to convey, he breaches the covenant of seizen at the very moment that the deed is made. Lykken v. Kindsvator, 2014 WL5771832 *3 (Tex. App- Fort Worth 2014, no pet.). See Westrope v. Chambers’ Estate, 51 Tex. 178, 187 (1879). The covenant for right to convey is a present covenant and if it is broken the breach occurs at the moment of the creation. The delivery of the deed which contains such a covenant causes an instantaneous breach. Fender v. Farr, 362 S.W.2d 539, 542-43 (Tex. App-Texarkana -35- 953, no writ). The three Warranty Deeds contained representations of conveyance and title which Appellee Ali did not have, thus causing an instantaneous breach. Blevins relied upon the representations that he was buying both Tract 4 and Tract 5 as he continued to pay the purchase price until he independently discovered in late June through the title company, that good title could not be conveyed and that Appellees might not fully own Tract 4 and Tract 5. RR 135, 136, 155, 191, 222. All of these facts supported findings of fraud, which the Trial Court appeared to have ignored. Instead, the Trial Court erroneously decided that there was no meeting of the minds and based its verdict solely on the contractual issue. a. Blevins Is Entitled to Recover His Damages for Fraud Two measures of direct damages exist under Texas law for recovery when there is common law fraud: out of pocket damages and benefit of the bargain damages. Baylor University v Sonnichsen, 221 S.W.3d 632, 637 (Tex. 2007); Formosa Plastics Corp., USA, 960 S.W.2d at 49-50; W. O. Bankston Nissan, Inc. v. Walters, 754 S.W. 2d 127, 128 (Tex. 1988). Out of pocket damages measure the value of that which was parted with and the value of which was received. Baylor University, 221 S.W.3d at 637.8 Although the Trial Court ruled that there was not contract, Blevins is not barred 8 Although the Supreme Court has held that the statute of frauds does not allow recovery for the benefit-of-the-bargain damages when the claim arises from a contract that has been held to be unenforceable, House v. Glazner, 62 S.W.3d 795, 800 (Tex. 2001), it does not bar out of pocket damages. Baylor University, 221 S.W.3d at 636. -36- from recovering his out of pocket damages as fraud damages. Baylor University, 221 S.W.2d at 636. Blevins presented evidence that his out of pocket damages were $89,900. RR at 43, 55, 56-58, 66. Additionally, Blevins presented evidence of his mental anguish, but the Court made no findings. RR 49-61, 59, 183, 187. The same damages available for common law fraud are available for statutory fraud under Section 27.01. Scott v. Sebree, 986 S.W.2d 365, 368 (Tex. App-Austin 1999, pet. denied). The defrauded party may also be awarded specific performance where the facts of the case require specific performance to ensure a just result. Scott, 986 S.W.2d at 368. The Trial Court made no findings as to any type of fraud damages because it improperly found that no fraud existed. This Court should remand the case for determination of the fraud damages. 4. The Trial Court Erred in Not Finding that Appellees Engaged in Violations Under the DTPA Similarly, as with the fraud causes of action, the Trial Court erred in finding that the Appellees were not engaged in deceptive acts that gave rise to claims under the Tex. Bus. & Com. Code §17.46 (a) and (b) (the “DTPA”). The overwhelming evidence showed Appellees actions were designed solely to induce Blevins to buy the Property for which they knew they could not deliver marketable title. -37- The DTPA provides for recovery for false, misleading or deceptive practices in the conduct of any trade or commerce. Tex. Bus. & Com. Code § 17.46 (a). This also includes failure to disclose information that was known at the time of the transaction, if the failure to disclose was intended to induce the consumer into the transaction into which the consumer would not have entered had the information been disclosed. Tex. Bus. & Com. Code §17.46(b)(24). Camden Mach. & Tool, Inc. v. Cascade Co., 870 S.W.2d 304, 311 (Tex. App.-Forth Worth 1993, no writ). The conduct must be the producing cause of the harm to the party. Weitzel v. Barnes, 691 S.W. 2d 598, 600 (Tex. 1985). Reliance and foreseeability are not required in order to recover. Allied Towing Service v. Mitchell, 833 S.W.2d 577, 585 (Tex. App.-Dallas 1992, no writ); Cascade, 870 S.W. 2d at 311. As shown in Section II(A)(3) above, the same evidence that supported the cause of fraud, also supported Blevins’ cause of action under Tex. Bus. & Com. Code §17.46(a). Appellees represented to Blevins that they owned all of Tract 4 and Tract 5 and they could deliver marketable title. Yet, the evidence at trial, which was not controverted showed that Appellees knew that the Property could not be insured by a title company because (1) there were issues as to how they had acquired the Property, RR 126-137; (2) Appellees at most only owned an undivided 3/4 interest in Tract 4; RR46, 136-137; and (3) they were unable to get title insurance on the -38- Property when they attempted to refinance the Property in 2012, RR 137. All of this evidence supported the causes of action pled by Blevins under Tex. Bus. & Com. Code §17.46(a). a. Blevins is Entitled to Recover Actual Damages and Treble Damages Under Tex. Bus. & Com. Code §17.46(a) Blevins is entitled to recover his economic damages under the Tex. Bus. & Com. Code §17.50(b)(1). As show in Section above, Blevins has incurred $89,900 in actual out-of-pocket damages. RR 66. Additionally, Blevins is entitled to recover for mental anguish for which he presented evidence. Tex. Bus. & Com. Code §17.50(b)(1). RR 67. Blevins is also entitled to treble damages under Tex. Bus. & Com. Code §17.50(b)(1). Since the Trial Court erroneously found that there were no deceptive acts on behalf of Appellees, it never reached the issue of damages. Therefore, this case should be remanded for the determination of these damages. CONCLUSION AND PRAYER The great weight and preponderance of the evidence at this Trial clearly shows that there was a contract between Appellees and Blevins for the purchase of two tracts of land and that Appellees breached the contract. The great weight and preponderance of the evidence also shows that Appellees made fraudulent and/or negligent misrepresentations to induce Blevins into the purchase of the Property and that Appellees failed to disclose material facts. This same overwhelming evidence is -39- sufficient to support findings for statutory fraud under Tex. Bus. & Com. Code §27.01, common law fraud and causes of action under Tex. Bus. & Com. Code §17.46 et seq. The evidence showed that Blevins relied on the misrepresentations made by Appellees to his detriment and he incurred damages. Therefore, this Court should reverse the Trial Court and enter judgment that Appellees breached the contract, made material negligent and/or fraudulent representations and violated Tex. Bus. & Comm. Code §17.46 et seq. This Court should reform the contract and award Blevins specific performance awarding him the property, or alternatively his contractual damages of $89,900; damages for statutory fraud, negligent and/or fraudulent misrepresentations and/or violations of the DTPA in the amount of $89,900, his attorneys fees of $35,166.78, $7,500 for an appeal to this Court, $7,500 if a petition is filed with the Supreme Court, and $7,500 if the petition is accepted by the Supreme Court; treble damages under the DTPA and mental anguish damages. Alternatively, or additionally, this Court should remand the case for determination of damages. Respectfully submitted, LAW OFFICE OF MYNDE S. EISEN, P.C. -40- By /s/ Mynde S. Eisen Mynde S. Eisen State Bar No. 06503950 P. O. Box 630749 Houston, Texas 77263 (713) 266-2955 (281) 343-1089 wyndeeisen@sbcglobal.net and Michael Boltz State Bar No. 05280300 Boltz Law 1400 Woodloch Forest Drive, Suite 540 The Woodlands, Texas 77380 (832) 381-3079 (832) 218-2400 (fax) email: boltz@boltzlaw.com ATTORNEYS FOR APPELLANT TERRY BLEVINS -41- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Appellant’s Brief has been served on all parties in interest as listed below by ecf transmission and/or by facsimile and/or by depositing the same in the U.S. mail, certified mail, return receipt requested on this ___ day of December, 2015. /s/ Mynde S. Eisen P. Jacob Paschal Haney, Moorman, Paschal, P.C. 1300 Eleventh Street, Suite 405 Huntsville, Texas 77340 -42- CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATIONS, TYPEFACE REQUIREMENTS AND TYPE STYLE REQUIREMENTS This brief complies with the type-volume limitation of Tex R. App. P 9.4 (i)(B) because this brief contain 8857 words excluding the parts of the brief exempted by Tex. R. App. P. 9.4(i)(1) The brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) and the type style requirements of Tex. R. App. P. 9.4(d) (because this brief has been prepared in a proportionally spaced typeface using Word Perfect X7 in 14 point, Times New Roman font. Mynde S. Eisen CASE NO. 07-15-00358- CV IN THE SEVENTH COURT OF APPEALS AMARILLO, TEXAS TERRY T. BLEVINS Appellant vs. VINCENT ALI, A/K/A JAMES VINCENT HOUSTON AND MARTHA HOUSTON Appellees Appealed from the 12th Judicial Court of Walker County, Texas APPELLANT TERRY T. BLEVINS’ APPENDIX Mynde S. Eisen State Bar No. 06503950 Law Office of Mynde S. Eisen, P.C. P. O. Box 630749 Houston, Texas 77263 (713) 266-2955 (281) 343-1089 wyndeeisen@sbcglobal.net Michael Boltz State Bar No. 05280300 Boltz Law 1400 Woodloch Forest Drive, Suite 540 The Woodlands, Texas 77380 (832) 381-3079 (832) 218-2400 (fax) email: boltz@boltzlaw.com ATTORNEYS FOR APPELLANT TERRY BLEVINS TABLE OF CONTENTS Tab No. Document Record Cite 1. Trial Court Judgment CR 163-164 2. Findings of Fact and Conclusions of Law CR 183-187 3. Trial Court’s Verdict CR 162 4. Tex. Bus. & Com. Code § 27.01 5. Tex. Bus. & Com. Code § 17.46 6. Tex. Bus. & Com. Code § 17.50 7. Plaintiff/Counter Defendant’s Request for Findings of Fact & Conclusions of Law CR 165-173 8. Plaintiff/Counter Defendant’s Objection To the Court’s Restated Findings and Request for Additional Findings of Fact & Conclusions of Law CR 196-214