First Capital Interest, L.L.C. v. Gonzalez, Felipe and Maria and All Occupants--Appeal from Co Civil Ct at Law No 2 of Harris County

Affirmed and Opinion filed December 31, 2002

Affirmed and Opinion filed December 31, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-00120-CV

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FIRST CAPITAL INTEREST, L.L.C., Appellant

V.

FELIPE AND MARIA GONZALEZ and ALL OCCUPANTS, Appellees

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 745,634

O P I N I O N

Appellant First Capital Interest, L.L.C. challenges a judgment in favor of the purchasers of real property under a contract for deed. First Capital challenges the legal and factual sufficiency of the trial court=s finding that the purchasers/appellees timely tendered disputed payment. We conclude that the evidence was legally and factually sufficient to support appellees= recovery in this regard and affirm the trial court=s judgment.

I. Factual and Procedural Background

In 1989, First Capital Interest, L.L.C. agreed to sell Felipe and Maria Gonzalez certain real property located in Houston, Texas. The parties signed a contract-for-deed agreement under which the Gonzalezes were to pay a sales price of $17,400. Under the parties= agreement, the Gonzalezes were to make a $1,400 down payment and pay the remaining $16,000 principal amount with interest of 12% per year, by making monthly payments of $260 until the balance was paid. Payments were due on the first of each month, and the contract provided for a late fee of $25 plus, $2 for each day payment was late. Provided the Gonzalezes complied with the contract and paid the balance, First Capital was to execute a deed giving the Gonzalezes title to the property in June of 2001.

In October of 2001, First Capital filed a forcible entry and detainer action in the Justice Court of Harris County, alleging that the Gonzalezes had failed to make a payment under the contract and were therefore in breach. First Capital also alleged that it had delivered a notice to vacate the Gonzalezes and sought possession of the property and reasonable attorney=s fees. The justice court found for First Capital and issued an eviction judgment which the Gonzalezes appealed to Harris County Civil Court at Law Number Two.

The Gonzalezes claimed to have timely tendered the payment to First Capital. They deposited the remaining outstanding balance in the registry of the county court and filed an answer and counterclaim. In this pleading the Gonzalezes asserted they had fully complied with the terms of the contract and that First Capital had fraudulently denied receipt of payment and had given defective notice of delinquent payment under the terms of the contract. The Gonzalezes also asserted that First Capital=s denial of receipt of the payment check and refusal to accept the Gonzalezes= attempted payment of the alleged arrearage amounted to fraud and breach of contract.

At the bench trial in the county court, Felipe Gonzalez=s niece, Myrna Gonzalez, testified that in May of 2000, she sent First Capital three post-dated checks to cover payment under the contract for June, July, and August of 2000. She had engaged in the same practice the two previous years so that she could vacation in Mexico without having to worry about sending the payments. In October of 2000, Myrna Gonzalez learned from her bank that First Capital had cashed only the June check. Meanwhile, First Capital had sent notice of termination of the contract for failure to make the August payment. This notice was sent to an address in Los Fresnos, Texas.[1] The Gonzalezes had not lived at or received mail at this address for more than nine years. Moreover, under the contract, First Capital was to send notice to the Gonzalezes at their Houston address, which was the address of the property that was the subject of the contract for deed. The Gonzalezes testified that they did not receive notice of termination of the contract until they were served with First Capital=s forcible entry and detainer action in the justice court.

The county court found for the Gonzalezes and ordered First Capital to execute a warranty deed conveying the property to them. In its judgment, the trial court made the following findings of fact:

(1) Felipe and Maria Gonzalez complied with the terms of the contract;

(2) the amount in the registry of the court pays all outstanding amounts owed by the Gonzalezes under the contract;

(3) the contract has been completed in all its terms; and

(4) the contract was written so as to perpetrate a fraud and take advantage of the Gonzalezes= inability to understand English.[2]

Accordingly, the county court awarded First Capital the amounts deposited in the registry of the court and ordered First Capital to execute a warranty deed conveying title to the property to the Gonzalezes.

II. Issues Presented

First Capital presents four issues for review by this court:

(1) Did the trial court erroneously grant the Gonzalezes judgment on a theory of fraud they did not plead?

(2) Did the trial court erroneously grant the Gonzalezes judgment for fraud by finding that First Capital=s contract was designed to perpetrate a fraud and to take advantage of the Gonzalezes= inability to effectively communicate in English?

(3) Is the evidence legally and factually sufficient to sustain the trial court=s finding that the Gonzalezes timely tendered the disputed payment under the terms of the contract?

(4) Did the trial court err by granting judgment for the Gonzalezes and ordering First Capital to execute a warranty deed conveying the property to appellees?

III. Standard of Review

 Because findings of fact in a bench trial have the same force and dignity as a jury verdict, we review them for legal and factual sufficiency of the evidence under the same standards we apply in reviewing a jury=s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In conducting a no-evidence analysis, we review the evidence in a light that tends to support the disputed findings and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). If more than a scintilla of evidence exists, it is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact=s existence. Id. at 782B83.

When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). Because we are not the fact finder, we may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pascouet, 61 S.W.3d at 616.

IV. Analysis and Discussion

 A. Is the evidence legally and factually sufficient to sustain the trial court=s finding that the Gonzalezes timely tendered the disputed payment under the terms of the contract?

In its third issue, First Capital challenges the legal and factual sufficiency of the evidence to sustain the trial court=s finding that the Gonzalezes timely tendered the disputed contract payment.

We first review First Capital=s legal-sufficiency challenge. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (holding that when Ano evidence@ and Ainsufficient evidence@ challenges are both presented, the court of appeals should review the Ano evidence@ issue first). Viewing only the evidence that supports the trial court=s finding, the record contains legally sufficient evidence that the Gonzalezes fulfilled their obligations under the contract and timely tendered the disputed payment. The alleged breach was their purported failure to make timely payment to First Capital for August of 2000. Myrna Gonzalez testified that, in May of 2000, she mailed First Capital post-dated checks for June, July, and August of 2000, in a single envelope as she had done in the two preceding years. This testimony was sufficient to support the county court=s finding that the Gonzalezes timely tendered the August payment. See Sherman v. First Nat. Bank in Center, 760 S.W.2d 240, 242 (Tex. 1988) (per curiam) (holding that finding of fact must be upheld when it is supported by more than a scintilla of evidence and appellate court may not consider contradictory evidence contained in the record).

 Turning now to First Capital=s factual-sufficiency challenge, we note that during a bench trial, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Griffin Indus., Inc. v. The Honorable Thirteenth Court of Appeals, 934 S.W.2d 349, 355 (Tex. 1996). On appeal, we will not re-evaluate the trial court=s determination of the weight and credibility of the evidence. Id. The trial court=s finding in this case turned on its assessment of the witnesses= credibility and the weight to be given their testimony. Myrna Gonzalez=s testimony that she mailed the checks was supported by her further testimony that bank records showed First Capital cashed the June check, but not the July or August checks. Myrna Gonzalez=s testimony thus controverted the testimony of First Capital=s President, Danny Hilal, that First Capital never received the August check. In light of the entire record, the trial court=s finding on this issue was not contrary to the great weight and preponderance of evidence. Accordingly, we find the evidence is factually sufficient to sustain the trial court=s finding that the Gonzalezes timely tendered the disputed payment under the terms of the contract. We overrule First Capital=s third issue.

B. Did First Capital adequately brief its fourth issue?

 In its fourth issue, First Capital asserts the trial court erroneously granted judgment for the Gonzalezes and erroneously ordered First Capital to convey title to them, because First Capital had terminated the contract for nonpayment. In support of its fourth issue, First Capital provides this court with three sentences of conclusory argument that contain no citation to the appellate record. Moreover, First Capital provides no analysis and no legal authorities. It only summarizes the county court=s holding, states the relief it seeks on appeal, and refers to Athe above errors committed by the trial court.@ We find First Capital has waived review of this issue by its failure to adequately brief it. See Tex. R. App. P. 38.1(h); Baker v. Gregg County, 33 S.W.3d 72, 79B80 (Tex. App.CTexarkana 2000, pet. dism=d); Houghton v. Port Terminal R.R. Ass=n, 999 S.W.2d 39, 51 (Tex. App.CHouston [14th Dist.] 1999, no pet.). Accordingly, we overrule First Capital=s fourth issue.

 C. Should the trial court=s judgment be reversed due to alleged defects in the Gonzalezes= fraud claim?

In its first issue, First Capital asserts that the judgment does not conform to the theory of fraud the Gonzalezes pleaded. In its second issue, First Capital asserts the trial court erred by retroactively applying the requirements of section 5.068 of the Texas Property Code by finding the contract was written so as to perpetrate a fraud and take advantage of the Gonzalezes= inability to speak and understand English. See Tex. Prop. Code ' 5.068. Presuming, without deciding, that First Capital=s first and second issues are meritorious, they do not present reversible error because the trial court=s judgment is also based on a finding that the Gonzalezes complied with the contract and were therefore entitled to title to the real property in question. Because the trial court=s judgment is supported on an independent contract theory, under which we have overruled legal and factual sufficiency challenges, any error complained of in these issues is harmless. See Tex. R. App. P. 44.1(a); Battaglia v. Alexander, C S.W.3dC, 2002 WL730530, at *10 (Tex. App.CHouston [14th Dist.] Apr. 25, 2002, pet. filed). Accordingly, we overrule First Capital=s first and second issues. See id., see also In Re Hawk, 5 S.W.3d 874, 879 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

V. Conclusion

The evidence in the record is legally and factually sufficient to support the trial court=s finding that the Gonzalezes timely tendered the disputed payment under the terms of the contract. First Capital waived error, if any, on its fourth issue by failing to adequately brief this issue, and First Capital=s first and second issues do not present reversible error. Having overruled all issues presented, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Opinion filed December 31, 2002.

Panel consists of Justices Yates, Anderson, and Frost. (Anderson, J. concurs in the result only.)

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Although the record shows First Capital did not cash either the July or August checks, First Capital based its attempted termination of the contract solely on the Gonzalezes= alleged failure to tender the August payment.

[2] Texas Rule of Civil Procedure 299a provides that Afindings of fact shall not be recited in a judgment.@ However, in the county court and on appeal, no party complained of the presence of these findings in the judgment, so we do not address this issue.