Josephine Aldridge v. Jerry R. Avara--Appeal from Co Civil Ct at Law No 4 of Harris County

Affirmed and Memorandum Opinion filed August 21, 2007

Affirmed and Memorandum Opinion filed August 21, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01283-CV

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JOSEPHINE ALDRIDGE, Appellant

V.

JERRY R. AVARA, Appellee

On Appeal from the County Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 802,022

M E M O R A N D U M O P I N I O N

In three issues, appellant Josephine Aldridge appeals from the trial court=s judgment in favor of appellee Jerry R. Avara for breach of contract regarding the sale of a motor home. We affirm.

I. Factual and Procedural Background

This appeal arises from a dispute over the alleged sale of a motor home by Aldridge to her son, Avara. Aldridge purchased the motor home for about $32,000 as a place to live after Tropical Storm Allison rendered her house temporarily uninhabitable. According to Aldridge, when she repaired her house, she sought to sell the motor home, placing a Afor sale@ sign in its window. In August 2002, Aldridge testified that Avara approached her about purchasing the motor home, and she agreed to sell it to him for $31,000 in cash. Although she maintained he agreed to pay the entire amount up front, she initially accepted a $5000 personal check from him and allowed him to take possession of the motor home with the understanding he would pay the remaining amount in the next few days after he Amov[ed] some funds around.@ The check is signed by Avara and its Afor@ line reads Adown on Motor home.@ The check also contains a handwritten notation in the corner reading ADutchman motor home@ and a handwritten notation of a calculation reading A3100.00 [minus] 500.00 [equals] 2600.00 Balance.@ Aldridge claims Avara wrote the Adown on Motor home@ notation and that, after receiving the check from Avara but while still in his presence, she wrote the calculation, mistakenly writing A3100.00@ instead of A$31,000.00@ as the beginning balance. The check reflects, and Aldridge conceded on cross examination, that Avara=s initials do not appear next to the calculation.

Thereafter, on September 11, 2002, rather than paying Aldridge the balance, Avara gave her a $1000 check containing a notation reading AMotor Home bal 25000.00.@ Avara subsequently made nine similar $1000 payments in personal and cashier=s checks to Aldridge on roughly a monthly basis, each containing a notation reflecting the current balance as adjusted after each payment, leaving a final balance of $17,000. The record does not establish who wrote these notations. On January 15, 2003, after Avara had paid $9000, Aldridge transferred free and clear title to the motor home to Avara, claiming she did so without payment of the full balance so Avara could Atake the title to the bank, and get the money on the motor home [to pay her].@ Aldridge received the last $1000 payment from Avara in June 2003, and she claimed he lived in the motor home for six months thereafter.

Avara disputed Aldridge=s characterization of the transaction and her version of the events. He contended that Aldridge approached him seeking money to help pay her house mortgage until she received payment of an insurance claim. She also told him she needed to remove the motor home from her property upon orders from her homeowner=s association. He denied agreeing to purchase the motor home for $31,000. He testified, rather, that the $5000 Adown payment@ was a loan made to his mother on the condition that he could sell the motor home and split the profits with her. Avara also denied writing Adown on Motor home@ on the $5000 check and explained he loaned Aldridge the subsequent $1000 payments on her requests for more money. As to the transfer of title, Avara maintained he agreed to purchase insurance on the motor homeCwhich would soon lapse and which Aldridge could not affordCand needed title to do so.

Additionally, Avara testified that, shortly after taking possession of the motor home, he took it on a 100-mile round trip to Nacogdoches to visit his terminally-ill father. He also initially admitted taking a trip in the motor home to League City, Texas but later testified he took only one trip. On the trip back from Nacogdoches, Avara claimed he discovered several major defects with the motor home and called Aldridge immediately to express his dissatisfaction. Avara alleged he spent approximately $4000 to repair these defects and explained in discovery responses that he did so to make the motor home Afit for sale.@[1]

In September 2003, after Avara stopped making payments, Aldridge sued Avara for breach of contract. Avara generally denied and responded that the statute of frauds barred enforcement of any alleged oral agreement for purchase of a motor home valued over $500. Avara also brought counterclaims for Amoney had and received@ and breach of the alleged oral loan agreement, seeking $19,000 in damages, which is the total amount he allegedly loaned Aldridge and spent to repair the motor home.[2]

After a bench trial, the trial court denied all parties= claims for relief and ordered that Avara retain title and ownership to the motor home. The court entered the following relevant findings of fact: (1) Avara agreed to keep the motor home for Aldridge to solve her problem with the homeowner=s association, (2) no written agreement or other contemporaneous memorialization existed between Aldridge and Avara regarding the sale or ownership of the motor home, and (3) Avara paid Aldridge a total of $14,000 between August 2002 and May, 2003. The court entered the following conclusions of law: (1) Aldridge failed to prove by a preponderance of the credible evidence that Avara had agreed to buy the motor home for $31,000 and (2) Aldridge failed to prove by a preponderance of the credible evidence that there was any agreement between the parties with regard to the sale or ownership of the motor home.

Aldridge now appeals, complaining that the evidence is legally and factually insufficient to support the finding that no contract for sale of the motor home existed and that the trial court erred in excluding on hearsay grounds a letter written by Avara=s wife offered to substantiate the existence of the contract.

II. Analysis

A. Legal Sufficiency

In issue one, Aldridge claims the evidence is legally insufficient to support the trial court=s findings that no contract for sale of the motor home existed either as a written contract satisfying the statute of frauds or as an oral contract under the partial performance exception to the statute of frauds. We review a trial court=s findings for legal and factual sufficiency under the same standards applied in reviewing evidence supporting a jury=s answer. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In a legal sufficiency or no-evidence review, we determine whether the evidence would enable reasonable and fair minded people to reach the finding under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We must consider the evidence in the light most favorable to the judgment, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. See id. at 807. When a party attacks the legal sufficiency of an adverse finding on an issue on which it has the burden of proof, the party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing a Amatter of law@ challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. The issue should be sustained only if the contrary proposition is conclusively established. See id. at 241B42. Evidence is conclusive only if reasonable people could not differ in their conclusions. See Wilson, 168 S.W.3d at 816. Evidence is no more than a scintilla when it is so weak as to do no more than create a mere surmise or suspicion of its existence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See Wilson, 168 S.W.3d at 819.

Because Aldridge had the burden to establish a breach of contract, we first examine the record for evidence supporting the trial court=s adverse finding that no contract for sale of the motor home existed. To this end, Aldridge contends we must disregard Avara=s testimony and discovery responses denying the agreement to purchase the motor home and his testimony asserting he agreed only to loan Aldridge money because this evidence shows his subjective intent, and we must focus only on objective standards of what the parties said and did to determine whether the parties consented to the terms of an agreement. Therefore, Aldridge concludes, since we cannot consider this evidence, no evidence supports the trial court=s finding that no contract for the sale of the motor home existed.

We agree that in generally determining whether parties mutually assented to an agreement, we must focus on their communications and surrounding acts and disregard unexpressed subjective intent. See Angelou v. African Overseas Union, 33 S.W.3d 269, 278 (Tex. App.CHouston [14th Dist.] 2000, no pet.). However, we disagree with Aldridge=s characterization of Avara=s statements as simply describing his subjective state of mind. At trial, Avara testified about his discussions with Aldridge in August 2002 concerning their agreement regarding the motor home. In explaining Aldridge=s concern that her homeowner=s association was requiring her to move the motor home off her property, he testified that he Asaid [he] could take [the motor home]@ to his property. Avara also repeatedly testified as to what Aldridge said to him during their meeting, including how much she paid for the motor home, that it was in terrific shape, and that Avara would have no trouble selling it. Therefore, Avara=s testimony was not simply about his subjective impressions or intent but rather about his communications with Aldridge during their meeting. Compare Fuqua v. Fuqua, 750 S.W.2d 238, 245 (Tex. App.CDallas 1988, writ denied) (holding that appellant=s uncommunicated, subjective intention not to pay his brother rent did not preclude finding of valid oral contract where appellant admitted telling his brother he would pay rent but testified he said so only to stop his brother=s badgering). As such, we disagree with Aldridge=s suggestion that we should disregard the evidence regarding Avara=s meeting with Aldridge about the motor home.

After considering this and other evidence in the record, we conclude there is legally sufficient evidence to support the trial court=s finding that no written or oral contract for sale of the motor home existed. Enforceable contracts require a meeting of the minds, and where such is contested, determination of the existence of a contract is a question of fact. See Angelou, 33 S.W.3d at 278. In his testimony and discovery responses, Avara denied agreeing to purchase the motor home. Avara also explained he gave Aldridge the $5000 Adown payment@ as a loan, and the motor home and/or proceeds from the sale of the motor home were to serve as collateral. He further explained that the subsequent $1000 payments to Aldridge constituted additional loans she requested while awaiting an insurance payment. Although Aldridge testified differently regarding the nature of the agreement and the payments Avara made, the trial court was free evaluate the witnesses= credibility and assign weight to their testimony. See generally Wilson, 168 S.W.3d at 819 (noting that if parties to oral contract testify to conflicting terms, reviewing court must presume terms were those asserted by winner). Viewing the evidence in the light most favorable to the judgment, we find there is legally sufficient evidence indicating the parties failed to mutually assent to a contract for sale and thus supporting the trial court=s finding that no contract for the sale of the motor home existed. Accordingly, we need not address contrary evidence under Aldridge=s legal sufficiency point. See Dow Chem. Co., 46 S.W.3d at 241; see, e.g., Watts v. BHP Billiton Petroleum (Americas), Inc., No. 14 05 00480 CV, 2006 WL 2669350, at *3 (Tex. App.CHouston [14th Dist.] Sept. 19, 2006, pet. denied) (mem. op.).

We overrule issue one.

B. Factual Sufficiency

In issue two, Aldridge claims the evidence is factually insufficient to support the trial court=s finding that no contract for sale of the motor home existed. In a factual sufficiency review, we consider all the evidence supporting and contradicting the finding. Plas Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d 237 at 242. We set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. In doing so, the court of appeals must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence in support of the judgment. Id. The factfinder is the sole judge of the weight and credibility of the witnesses= testimony, and we may not substitute our judgment for that of the factfinder=s, even if we would have reached a different result on the evidence. See Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 753 (Tex. App.CHouston [14th Dist.] 2005, no pet.); In re G.A.T., 16 S.W.3d 818, 829 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).

Aldridge first contends the evidence that no contract for sale existed is greatly outweighed by evidence that a written contract for sale existed satisfying the statute of frauds. Under the UCC, a contract for the sale of goods for the price of $500 or more is not enforceable absent some writing evidencing such a contract that is signed by the party against whom enforcement is sought and that specifies a quantity. See Tex. Bus. & Com. Code Ann. ' 2.201(a) & cmt. 1 (Vernon 1994); Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 570 (Tex. 1996). As evidence of a sufficient writing, Aldridge points to Avara=s $5000 personal check, which contains his signature, the notation Adown on Motor home@on the Afor@ line, the notation ADutchman motor home,@ and a calculation showing the $5000 payment subtracted from a figure of A3100.00@ (which, according to Aldridge=s testimony, should have been A$31,000@), leaving a balance of A2600.00@ (which Aldridge similarly noted should have been A$26,000@). Aldridge also cites the nine $1000 personal and cashier=s checks bearing the declining balance calculations (on which the balance begins at $25,000) and the title to the motor home bearing Avara=s name. These documents, Alrdidge argues, satisfy the statute of frauds= writing requirement, as they demonstrate a quantity of one motor home, contain Avara=s signature, show a price of $31,000, and otherwise evidence a contract for sale.

At trial, the parties testified to greatly varying circumstances surrounding the documents= creation and transferal, and, thus, whether the writing sufficiently Aafford[s] a basis for believing that the offered oral testimony rests on a real transaction@ turns largely on the credibility of the parties= testimony. See Tex. Bus. & Com. Code Ann. ' 2.201 cmt. 1. Avara maintained he gave the $5000 check to Aldridge as a loan and denied Aldridge=s claim that he wrote Adown on Motor home@ on the check=s Afor@ line. Moreover, Aldridge admitted writing the calculation showing the declining balance on the check after Avara had signed and given it to her, and, although she maintained she did so in his presence, she also admitted Avara did not initial the notation. Further, Avara explained the $1000 checks constituted subsequent loans that Aldridge requested, and the record does not establish who wrote the calculations showing the declining balances on these checks. Cf. Mel Tex Valve, Inc. v. Rio Supply Co., 710 S.W.2d 184, 186 (Tex. App.CHouston [1st Dist.] 1986, no writ) (finding purchase order for alleged oral contract for sale of goods failed to satisfy statute of frauds because buyer, in addition to not signing order, generated order internally and failed to transmit order to seller). Additionally, although Aldridge claimed she transferred title to Avara so he could secure funds from the bank, Avara explained he needed title to purchase insurance. The trial court was free to assess the credibility of the parties= respective accounts, and we cannot substitute our judgment for that of the trial court. See Manon, 162 S.W.3d at 753. Reviewing the documents in light of Avara=s explanations surrounding their creation and transferal, we cannot say the evidence that a written contract for sale of goods satisfying the statute of frauds existed greatly outweighs the evidence that no such contract existed. See Martco, Inc. v. Doran Chevrolet, Inc., 632 S.W.2d 927, 928 (Tex. App.CDallas 1982, no writ) (relying in part on buyer=s testimony and surrounding circumstances indicating that memo did not confirm existing sales contract but constituted only offer for future agreement in holding that memo failed to satisfy statute of frauds).[3]

Aldridge further contends the evidence that no contract for sale existed is greatly outweighed by evidence that the parties formed a valid oral contract under the partial performance exception to the statute of frauds. The UCC provides that a Acontract which does not satisfy the [writing] requirements of [section 2.201(a)] but which is valid in other respects is enforceable . . . with respect to goods for which payment has been made and accepted or which have been received and accepted (Section 2.606).@ See Tex. Bus. & Com. Code Ann. ' 2.201(c)(3) & cmt. 2. Thus, to establish an enforceable contract in this context, a party must prove (1) a valid oral contract existed and (2) acceptance under section 2.201(c)(3). See Wilson v. Remmel Cattle Co., 542 S.W.2d 938, 941 (Tex. Civ. App.CAmarillo 1976, writ ref=d n.r.e.); see also RM Engineered Prods., Inc. v. UOP, Inc., 793 F. Supp. 1373, 1384 (W.D. La. 1991) (applying Texas law). A contract for sale of goods may be established by both parties= conduct recognizing the existence of such contract. See Tex. Bus. & Com. Code Ann. ' 2.204 (Vernon 1994). Whether a contract is implied from the facts and circumstances is a question for the factfinder. See Preston Farm & Ranch Supply, Inc. v. Bio Zyme Enters., 625 S.W.2d 295, 295 (Tex. 1981); Fraud Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 385B86 (Tex. App.CFort Worth 2003, pet. denied). AAcceptance of the goods occurs when the buyer . . . does any act inconsistent with the seller=s ownership. . . .@ Tex. Bus. & Com. Code Ann. ' 2.606(a)(3) (Vernon 1994). For example, physical possession and exercise of dominion over the goods may support a finding of acceptance of goods. See Ho v. Wolfe, 688 S.W.2d 693, 696 (Tex. App.CAmarillo 1985, no writ).

Aldridge contends her and Avara=s conduct, along with the checks and the parties= Rule 11 agreement demonstrate a valid oral contract for the sale of the motor home. Aldridge also argues the following actions by Avara were inconsistent with Aldridge=s ownership of the motor home and thus demonstrate acceptance pursuant to the oral contract: (1) taking possession, (2) driving to Nacogdoches to visit his terminally-ill father, (3) making payments totaling $14,000 with instruments showing declining balances on the alleged $31,000 price, and (4) obtaining title in January 2003 while continuing to make payments.

We must review this undisputed evidence in light of all other evidence supporting and contradicting the judgment, namely, the parties= opposing explanations for such conduct, offered through testimony, discovery responses, and their attorneys= correspondence. Avara explained he took possession of the vehicle both to help Aldridge resolve her problem with the homeowner=s association and so he could sell the vehicle pursuant to their loan agreement. Also, as noted above, Avara testified the payments he made constituted loans and that he needed title to the motor home to buy insurance. Moreover, Avara admitted he spent at least $1000 to repair the motor home after taking possession, but he explained in discovery responses he did so to make the vehicle fit for sale. Avara=s testimony was not substantially impeached at trial, and he stated that he did not assent or take such action pursuant to a contract for sale of the motor home. See Angelou, 33 S.W.3d at 278. On the other hand, Aldridge maintained that Avara took the above actions pursuant to a contract for sale. She further offered Avara=s brother=s testimony that Avara admitted purchasing the motor home from Aldridge; however, on cross-examination, Avara=s brother was impeached by admitting he does not speak to his brother or Acare for him as a human being.@ She also emphasized Avara=s trip to Nacogdoches, and Avara did not explain how the trip related to a contract for sale of the motor home.

As with the analysis of whether a written contract existed, whether the evidence established that an oral contract for sale existed and whether acceptance occurred largely turns on a resolution of Aldridge=s or Avara=s contrary explanations for the parties= conduct. The trial court was free to resolve such conflicts in the evidence, and we will not substitute the trial court=s judgment with our own. As such, based on the entire record, we do not find the evidence that an oral contract for sale existed under the partial performance exception to the statute of frauds greatly outweighs the evidence that no contract for the sale of the motor home existed.

We overrule issue two.

C. Exclusion of Evidence

In issue three, Aldridge contends the trial court erred in excluding a letter purportedly from Avara=s wife=s to Aldridge, in which she references Amonthly payments@ for and the balance due on the motor home, under the statement-against-interest exception to the hearsay rule. See Tex. R. Evid. 803(24).

We initially address whether Aldridge has waived her evidentiary issue. To preserve error for our review, an appellant=s complaint on appeal must comport with its objection in the trial court. See Tex. R. App. P. 33.1(a); Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 621 & n.21 (Tex. App.CHouston [14th Dist.] 2004, pet. denied). At trial, in response to Avara=s hearsay objection to the letter, Aldridge explained that she Amay call [Avara=s wife] as a witness@ and that the letter Ais a [sic] prior inconsistent testimony from what I expect her to testify to.@ Aldridge did not respond to Avara=s hearsay objection on the ground the letter constituted a statement against interest under Rule of Evidence 803(24) but, rather, appeared to respond on the ground the letter constituted a prior inconsistent statement under Rule of Evidence 801(e)(1)(A). Compare Tex. R. Evid. 803(24) (AA statement which was at the time of its making so far contrary to the declarant=s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in declarant=s position would not have made the statement unless believing it to be true.@), with Tex. R. Evid. 801(e)(1)(A) (AA statement is not hearsay if: . . . the statement is . . . inconsistent with the declarant=s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding except a grand jury proceeding in a criminal case, or in a deposition . . . .@). Accordingly, because Aldridge=s complaint to this court differs from her complaint to the trial court, she has failed to preserve this error for our review. See, e.g., McKee v. McNeir, 151 S.W.3d 268, 270 (Tex. App.CAmarillo 2004, no pet.) (finding proponent of evidence waived complaint that trial court erred in excluding evidence because proponent=s stated grounds for admission at trial failed to comport with grounds raised on appeal).

To the extent Aldridge complains that the trial court erred in failing to admit the letter in rebuttal, we also find Aldridge waived this complaint because she failed to reoffer the letter for rebuttal purposes. AError is waived if the offering party fails to reoffer evidence for a limited purpose after it has been excluded pursuant to a general objection.@ Bean v. Baxter Healthcare Corp., 965 S.W.2d 656, 660 (Tex. App.CHouston [14th Dist.] 1998, no pet.). The record reveals that the trial court excluded the letter for purposes of direct testimony and told Aldridge she could seek to reintroduce the letter during rebuttal of Avara=s wife. Because Aldridge never called Avara=s wife or otherwise sought to reintroduce the letter for rebuttal purposes,[4] she waived this complaint on appeal.

We overrule issue three.

III. Conclusion

We conclude the evidence is legally and factually sufficient to support the trial court=s finding that no contract for sale of the motor home existed. We additionally conclude Aldridge waived her complaint regarding the trial court=s evidentiary exclusion. Accordingly, we affirm the trial court=s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed August 21, 2007.

Panel consists of Justices Yates, Edelman, and Frost.

[1] Avara=s discovery responses were admitted as evidence at trial.

[2] In an attempt to settle the lawsuit, the parties entered into a Rule 11 agreement on January 3, 2005. The agreement provided that the parties would sell the motor home and that Aldridge would receive 70% of the profits and Avara would receive 30%. The parties ultimately failed to perform under the agreement and thereafter continued to pursue this litigation.

[3] As additional evidence of a writing satisfying the statute of frauds, Aldridge cites the parties= Rule 11 Agreement, which states, AThe [motor home] shall remain intact with the equipment furnished as sold by Josephine Aldridge to Jerry Avara . . . . [T]he [motor home] will be turned over to Houston RV in the same or similar condition as when [Aldridge] sold the RV to [Avara].@ Aldridge claims this post-litigation agreement constitutes a Asubsequent memorialization@ of the contract for sale of the motor home. Assuming without deciding that this agreement may constitute a Awriting@under the UCC statute of frauds, we nonetheless do not find that this agreement, by virtue of its passing reference to a sale of the RV, or the other offered documents greatly outweigh the evidence that no written contract for sale of the motor home existed.

[4] Aldridge=s contention that the trial court Anever allowed for rebuttal [by] concluding the trial after [Avara] rested@ is unavailing because the record shows that, at the close of Avara=s evidence, the trial court asked both parties if there was Aanything else,@ to which Aldridge responded, ANo, judge.@