Juan Ramon Lopez v. Vicente Melendez and Wife, Julissa Melendez--Appeal from County Court At Law No 1 of Webb County

MEMORANDUM OPINION
No. 04-03-00476-CV
Juan Ramon LOPEZ,
Appellant
v.
Vicente MELENDEZ and wife, Julissa Melendez,
Appellees
From the County Court at Law No. 1, Webb County, Texas
Trial Court No. 2000-CVF-001918-C1
Honorable Alvino Morales, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 24, 2004

AFFIRMED

This appeal arises from a breach of contract and fraud case. In two issues, appellant Juan Ramon Lopez argues the trial court erred in excluding evidence regarding failure of consideration and mistake. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the judgment in this memorandum opinion. See Tex. R. App. P. 47.4.

Issue One
In his first issue, Lopez argues the trial court erred in excluding testimony that the parties entered into an extraneous oral agreement to pay the $30,000.00 down payment with certain personal and real property. The contract states, "Buyer is paying seller the down payment concurrently with entering this contract" and the contract is the "entire and only agreement between Buyer and Seller." The trial court correctly allowed Lopez to testify, over the Melendezes' objection, that he was not in fact paid the $30,000.00 down payment at the time of the execution of the contract. See Cochelle v. Cawthon, 110 S.W.2d 636, 638 (Tex. Civ. App.-Amarillo 1937, writ dismissed). However, because the parol evidence rule prevents enforcement of prior or contemporaneous agreements, the trial court did not err by excluding testimony in regard to the alleged oral agreement. See Weinacht v. Phillips Coal Co., 673 S.W.2d 677, 679 (Tex. App.-Dallas 1984, no writ). This issue is overruled.Issue Two

In his second issue, Lopez claims the trial court erred in excluding the testimony of his attorney that the property description in the contract does not reflect the intent of the parties. To preserve error with regard to an excluded statement, the substance of the excluded testimony must be made known to the court through an offer of proof or otherwise be apparent from the context of questioning. See Tex. R. Evid. 103(a)(2); Luensmann v. Zimmer-Zampese & Assoc., Inc., 103 S.W.3d 594, 597 (Tex. App.-San Antonio 2003, no pet.). Failure to make an offer of proof containing a summary of the intended testimony waives any complaint on appeal about the exclusion of evidence. See Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.-San Antonio 2000, pet. denied). Lopez did not make an offer of proof establishing the intended attorney's statement, and the substance of the evidence is not apparent from the record. See id.; Tex. R. Evid. 103(a)(2). This issue is not preserved for our review. Accordingly, we overrule Lopez's second issue.

We overrule all of Lopez's issues and affirm the judgment of the trial court. (1) Costs of the appeal are taxed against appellant, Juan Ramon Lopez.

Paul W. Green, Justice

1. Because of our disposition in this appeal, we will not address appellees' cross-point of error.