Colatex Land Company, Acting by its Managing Partner R. E. Chalmers, & R. E. Chalmers, Individually v. Robert L. Boyd--Appeal from 299th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-197-CV
COLATEX LAND COMPANY, ACTING BY ITS MANAGING PARTNER
R. E. CHALMERS, AND R. E. CHALMERS, INDIVIDUALLY

APPELLANTS

 
vs.
ROBERT L. BOYD,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 459,130, HONORABLE PAUL R. DAVIS, JR., JUDGE PRESIDING

The original obligor on a note sued the parties who assumed his debt to recover a payment the obligor made to the lender after the assuming parties defaulted. The trial court rendered judgment for the obligor. The assuming parties assert the trial court erred because the obligor did not establish the amount of the payment. We will affirm the trial court's judgment.

 
BACKGROUND

Robert L. Boyd owned a lot in Hays County that was improved with a fourplex. In 1983, Boyd traded the property to the Colatex Land Company and R. E. Chalmers ("Colatex") for land Colatex owned in Colorado. As part of this transaction, Colatex assumed Boyd's indebtedness of approximately $154,000 to First Federal Savings and Loan of New Braunfels, which was secured by the fourplex. First Federal accepted the assumption, but expressly refused to release Boyd from liability on the note.

About five years later, Colatex defaulted on its payments, so First Federal accelerated the note and posted the property for foreclosure. First Federal purchased the fourplex at the foreclosure for $117,500 based on a "drive-by" appraisal. Two months later, in December 1988, First Federal obtained a detailed appraisal of the property. Noting that the property was run down, the appraiser valued it at $94,000. First Federal then listed the property for sale at $95,000.

Boyd learned of Colatex's default and the consequent foreclosure. He contacted First Federal, apparently to ascertain whether he would be liable for a deficiency. First Federal asserted entitlement to $54,266.26, representing the deficiency on the note, penalties, interest, and attorney's fees. After negotiations, First Federal agreed to accept $39,000 from Boyd in return for releasing him from liability on the note.

To finance this settlement, Boyd devised a transaction whereby First Federal would loan him $140,000, $39,000 of which Boyd would use to pay the deficiency. Boyd would use $95,000 to repurchase his former fourplex, and the remaining $6,000 for repairs. Boyd expected to lease the fourplex for an amount sufficient to cover the loan payments. First Federal accepted Boyd's proposal.

In March 1989, after this deal closed, Boyd sued Colatex for the $39,000 he had paid First Federal. Boyd alleged three theories: breach of contract, subrogation, and indemnity. The trial court rendered partial summary judgment in favor of Boyd on the issue of liability, expressly reserving for trial the issue of damages. After a bench trial, the court rendered judgment for Boyd for $39,000, plus attorney's fees and interest. The parties did not request and the trial court did not file findings of fact and conclusions of law.

Colatex asserts four points of error, alleging that the evidence was legally and factually insufficient to establish that Boyd suffered $39,000 in damages. Specifically, Colatex contends that Boyd did not establish that the fair market value of the fourplex was $95,000 when he repurchased it, so that $39,000 of the note was available to pay the deficiency, or that a $39,000 deficiency resulted from the foreclosure.

Boyd argues in support of his judgment that Colatex waived error because it has not appealed the indemnity action, and that the evidence is sufficient to support the award of $39,000 in damages. We agree with both arguments.

 
DISCUSSION AND HOLDINGS

A. The Indemnity Action

Boyd asserts that Colatex waived any error as to his indemnity cause of action and so we must affirm the judgment. We agree. If a judgment may rest upon more than one ground, the party aggrieved by the judgment must assign error to each ground or the appellate court will affirm the judgment on the ground to which the party did not assign error. State Farm Mutual Automobile Ins. Co. v. Cowley, 468 S.W.2d 353, 354 (Tex. 1971); Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex. App. 1982, no writ).

In this case, Boyd asserted three independent causes of action: breach of contract, subrogation, and indemnity. Colatex's points of error relate only to breach of contract and subrogation. Because the judgment may rest on the independent ground of indemnity, we must affirm the judgment.

 

B. Legal and Factual Sufficiency

Even if Colatex preserved error, the evidence is sufficient to support the judgment. Colatex asserts that the evidence is legally and factually insufficient to support a finding that Boyd suffered $39,000 in damages. In this regard, Colatex makes a two-pronged attack. First, Colatex contends that the fair market value of the fourplex was greater than $95,000, so that a smaller portion of the balance of Boyd's second loan (less the $6,000 repair allowance) is attributable to the deficiency. Second, Colatex argues that Boyd did not prove the exact amount of the deficiency on the original loan.

In this case, the trial court made no findings of fact. Accordingly, we must conclusively presume that the trial court found all questions of fact in support of the judgment. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987). Thus, we must presume the trial court found that the value of the property was $95,000, so that the remainder of the loan (less the repair allowance) is attributable to the deficiency. We must also presume the trial court found that there was a deficiency of at least $39,000 remaining on the original note after the foreclosure.

 

1. No Evidence

We address the no evidence point first. In analyzing a no evidence point, we must consider only the evidence and inferences which tend to support the challenged finding and disregard anything to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).

We conclude that there is some evidence to support a finding that the fair market value of the property was $95,000. An expert real estate appraiser evaluated the property in December 1988 and concluded that its value was approximately $94,000. Based on this appraisal, First Federal listed the property for sale at $95,000. The property remained unsold at this price for three months. Boyd testified that he believed the property was worth $95,000 when he bought it. Because there is some evidence that the fair market value of the property was $95,000 when Boyd bought it, implicitly, there is evidence that $39,000 of Boyd's second loan is attributable to the deficiency.

We further conclude that there is some evidence of the amount of the deficiency for which Boyd was liable. Boyd introduced into evidence a letter from First Federal which specifies that the deficiency, plus interest, penalties, and attorney's fees, was $54,266.26. This supports the conclusion that Boyd was liable for at least $39,000 on the original loan.

 

2. Insufficient Evidence

As to Colatex's insufficient evidence challenge, we must determine if the finding as to damages 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).

To controvert the evidence reviewed above, Colatex argues that the $117,500 First Federal paid for the fourplex at foreclosure is conclusive as to the property's value at the time. We disagree. Colatex never attacked the validity of the foreclosure. Therefore, the amount First Federal paid at foreclosure is conclusive only as to the amount of the deficiency, not as to the value of the property. Moreover, the record reveals that the association based its bid on a drive-by appraisal. It was not until First Federal actually acquired the property that it discovered the property's deteriorated condition and changed its valuation of the fourplex to $95,000.

Colatex also points to deposition testimony by Boyd that $95,000 was a "ridiculous" amount for the property. Boyd explained at trial, however, that his comments assumed the property was in good condition, which it was not when he repurchased it.

To controvert the evidence regarding the amount of the deficiency, Colatex points to First Federal's bid at the foreclosure sale and a statement First Federal sent Colatex at the time of the foreclosure which reflects that the principal balance on the note, less escrow funds, was $149,552.92. From these documents, Colatex reasons that the deficiency was approximately $32,000 ($149,552.92 - $117,500.00). While Colatex recognizes that it was also liable for interest, penalties, and attorney's fees, it complains that Boyd never proved a total liability of exactly $54,266.26. Colatex's argument is without merit.

Boyd did not need to demonstrate that First Federal was entitled to exactly $54,266.26. Rather, Boyd needed to establish only his own damages. Thus, Boyd had the burden of proving the basis for the $39,000 he paid. The evidence establishes that there was a deficiency on the original note of at least $32,000 after the foreclosure. Adding interest alone to this figure yields a result in excess of $39,000.

Considering all of this evidence, we hold that the trial court's judgment is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

 
CONCLUSION

For the above reasons, we overrule all of the appellants' points of error and affirm the judgment of the trial court.

 

____________________________________

 

Jimmy Carroll, Chief Justice

 

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

 

Affirmed

 

Filed: August 14, 1991

 

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