Von Ratsavong and Fong Souphankhaysy v. Bounpone Menevilay and Sypanome Menevilay--Appeal from 68th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

VON RATSAVONG AND FONG SOUPHANKHAYSY,

Appellants,

v.

BOUNPONE MENEVILAY AND SYPANOME MENEVILAY,

Appellees.

No. 08-05-00044-CV

Appeal from the

68th District Court

of Dallas County, Texas

(TC# DV-0209543-C)

O P I N I O N

This is an appeal from a breach of an alleged oral contract to sell real property. Appellants, Von Ratsavong and Fong Souphankhaysy, appeal a judgment awarding title to property located at 610 Neomi Street, Dallas, Texas to Appellees, Bounpone Menevilay and Sypanome Menevilay. On appeal, Appellants raise fifteen issues for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 8, 2002, Appellees filed a lawsuit against Appellants in which they alleged that on or about April of 1994, they entered into an agreement with the Appellants for the purchase of the property located at 611 Neomi Street in Dallas, Texas. At the time, the Appellees did not have the credit to purchase the house, but the agreement entered into allowed Appellees to borrow Appellants credit to purchase the home. According to the Appellees, terms of the agreement were as follows: Appellees were to pay the note in the principal amount of $12,500 executed by the Appellants for payment of the house and premises. Upon payment of the total amount, the understanding was that Appellants would execute a general warranty deed conveying the title to the property to the Appellees. As agreed upon, the Appellees paid a $2,000 down payment. At the time the agreement was entered into, the property was in poor condition and had been purchased as is with the understanding that the Appellees would complete the necessary repairs. Appellees moved into the property and began making repairs and improvements to the property. By the time the lawsuit was initiated, the Appellees had paid in full the debt and had made repairs in the home of an estimated cost of $28,000. The Appellants filed their original answer asserting a general denial to the allegations and asserting the following affirmative defenses: estoppel, waiver, lack of consideration, failure of consideration, lack of clean hands by plaintiffs, fraud, the statute of frauds, applicable statute of limitations, latches, and illegality.

On December 14 and 15, 2004, the trial court held a hearing. At the hearing, Bounpone Menevilay testified that he had known the Appellants for over thirty years and that they had been good friends, dating back to when they lived in Laos. He testified that in July of 1993, while he was living in California, Ratsavong visited their home; during his visit, he indicated that there was a house next to his in Texas, and that if Menevilay was interested in buying, Ratsavong would allow him to use his credit to do so. At the time, Menevilay did not have the necessary credit to purchase a house, but it is customary in the Laotian culture for friends to lend each other their credit for the purchase of homes and vehicles; it was customary to not sign written contracts for such agreements. Ratsavong indicated to Menevilay that the house was being sold for $14,500 and that Menevilay would need to give him $2,000 down payment and that he would take care of everything else. According to Menevilay, Ratsavong entered into a contract for the purchase of the home, but the understanding was that Menevilay would make the payments and that the house was really his.

Menevilay testified that the house was not in good condition and that it needed many repairs. When he bought the house, he indicated the bathroom was not in a usable condition. Menevilay testified that he repaired the bathroom, painted the exterior and interior of the house, he constructed a garage, improved the sidewalk and added a concrete driveway to the garage, he replaced a door and windows, and he added a utility room for the washer and dryer. He paid for all the repairs and completed most of the work himself with the help of his wife. After a repair was completed, Ratsavong would often come over to see the improvement and stay for dinner to celebrate the accomplishment. Menevilay testified that he would talk to Ratsavong about some of the repairs because they were friends, and that he did not get a building permit for any of the improvements.

In addition to making these repairs, he testified that he made the mortgage payments, paid the insurance on the home, and the property taxes for the entire time he was living at the house, up to the point where litigation over the title was considered. Once he finished paying the mortgage on the house, Ratsavong refused to transfer the deed to the Appellees. Rather, on September 27, 2002, he received a Notice to Vacate and Notice of Termination of Tenancy at Will from Ratsavong s attorney. At no point in time did Appellees believe they were renting the home. Menevilay indicated that if that were the case, he would not have done any improvements to the house. He indicated that in the previous properties he had rented, he had never made any improvements.

During cross-examination, Menevilay indicated that in the past, he had signed a purchase contract for a mobile home, and rental leases for several properties he had rented. When asked if he found it strange that no contract was signed for the purchase of the home on 610 Neomi Street, he indicated that he did not think that Ratsavong would take the house away from him because they were good friends.

Mrs. Menevilay s testimony reiterated much of what Menevilay indicated in his testimony. She indicated that Ratsavong had approached them about buying the house using his credit in July of 1993. She indicated that Ratsavong had mentioned that he did not want to be driving long distances to visit them in California, and that this house was just next door to his home. She testified that Ratsavong asked for a $2,000 down payment; however, she never saw her husband actually give Ratsavong the money. She also indicated that much of the improvements on the home were done by her and her husband and that these occurred as soon as they move in because the house was ugly.

Ratsavong testified at trial as well. He indicated that he purchased the home in question for his children. The deed to the home is under his name and his wife s name, Fong Souphankhaysy. He indicated that he never told the Appellees anything about lending them his credit to purchase the house. He further denied having any conversation regarding the home in July of 1993 with the Appellees. He had gone to California to visit family and the only reason he visited with the Appellees was because his car broke down. He pointed out that he purchased the house on April 25, 1994, after the 1993 visit. In explaining how Appellees came to live in his home, Ratsavong testified that one day, he saw Menevilay parked outside the house on 610 Neomi Street. He did not know where the Appellees were living at the time or how they got to his house. At that point, Ratsavong testified that he asked Menevilay if he wanted to rent the house and indicated to him that it was in poor condition and that he would be responsible for any improvements and repairs. The rent was set at $258, plus taxes and insurance. His understanding of this agreement was that it was a rental contract. He never told Menevilay that after the mortgage was paid off, he would transfer the deed to the Appellees.

Ratsavong further indicated that Menevilay had completed improvements on the house and that only sometimes would Menevilay ask for his permission to make the improvements. He denied having received $2,000 from the Appellees as a down payment on the home. He testified that he and his wife paid that money by selling some of her jewelry. Mrs. Souphankhaysy also testified that the money for the down payment came from selling her jewelry. She also denied having any discussions in July of 1993 with the Appellees about allowing them to use their credit to buy the home at issue in this case.

After considering all the evidence, the trial court indicated that having only the credibility of the parties, it found the Appellees to be more credible and awarded title to the Appellees and reimbursement to the Appellants for the monies they paid in taxes and insurance after Appellees stopped paying those expenses. The trial court signed a judgment on December 22, 2004, in which it found that:

Bounpone Menevilay and Sypanome Menevilay are entitled to recover of and from Von Ratsavong and Fong Souphankhaysy the title to those premises located at 610 Neomi Street, Dallas, Dallas County, Texas 75217 . . . .

Appellants timely filed this notice of appeal.

II. DISCUSSION

Initially, we note that Appellants have asserted fifteen points of error in their appellate brief. After careful review of their brief and reply brief, we find that the Appellants have failed to properly brief Issue Nos. Four through Seven, Issue No. Ten, Issue No. Eleven, Issue No. Thirteen and Issue No. Fourteen. In Issue No. Four, Appellants argue that even if there was an oral contract, the Appellees admitted that they did not comply with the purported oral contract. Specifically, Appellants assert that Appellees failed to make the $2,000 down payment, pay the insurance and property taxes on the home. In Issue No. Five, Appellants contend there was a lack of consideration, thus error was committed in the trial court s decision to enforce the oral agreement. Appellants do not cite to any relevant case law in their discussion of this issue. Rather, in a two paragraph argument, they assert that lack of consideration was asserted as an affirmative defense and that Appellees indicated that Appellants wanted $20,000 for the home, which Appellees refused to pay. Appellants then reach the conclusion that this was lack of consideration. In Issue No. Six, Appellants assert that there was a failure of consideration on the Appellees part, making the enforcement of the oral contract by the trial court error. In Issue No. Seven, Appellants contend that the trial court committed error by only using the credibility of the parties to make its decision when it was clear that Appellants did not speak English and the translator was not able to properly translate their testimony. // In Issue No. Ten, Appellants contend that error was committed in enforcing the oral contract because Appellees were unjustly enriched. In Issue No. Eleven, Appellants contend that error was committed in enforcing the oral contract because the Appellees lacked clean hands and could not obtain equitable relief. In Issue No. Thirteen, Appellants allege that the enforcement of the oral contract is not supported by evidence. In Issue No. Fourteen, Appellants assert that enforcement of the oral contract is against the overwhelming weight of the evidence.

Appellants arguments in these issues contain no more than a recitation of the evidence presented at trial and a sentence, unsupported by any case law, stating that the standard of review is either de novo or abuse of discretion. Their arguments are not clear and do not present any legal principles supporting their contentions. Appellants also failed to cite to any legal authority to support the issues above. The brief must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. Tex. R. App. P. 38.1(g). Rule 38 requires Appellants to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.--Houston [1st Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex. App.--Amarillo 1998, no pet.). This is not done by merely uttering brief conclusory statements, unsupported by legal citations. Tesoro Petroleum Corp., 106 S.W.3d at 128. By presenting such attenuated, unsupported arguments, we find that Appellants have waived such complaints. We find Issue Nos. Four, Five, Six, Seven, Ten, Eleven, Thirteen, and Fourteen are inadequately briefed and are, therefore, waived. For the reasons stated, we overrule Appellants Issue Nos. Four, Five, Six, Seven, Ten, Eleven, Thirteen, and Fourteen.

In Issue No. One, Appellants contend that the trial court should have granted their motion for directed verdict because the Statute of Frauds prohibits the enforcement of the alleged oral agreement because it contained indefinite terms. // Texas law is well settled that a defendant who moves for a directed verdict after the plaintiff rests, but thereafter elects not to stand on its motion for instructed verdict, and proceeds with her own case, waives her motion for directed verdict unless the motion is reurged at the close of her case. See Horton v. Horton, 965 S.W.2d 78, 86 (Tex. App.--Fort Worth 1998, no pet.) (citing Jacobini v. Hall, 719 S.W.2d 396, 398 (Tex. App.--Fort Worth 1986, writ ref d n.r.e.); Wenk v. City Nat l Bank, 613 S.W.2d 345, 348 (Tex. Civ. App.--Tyler 1981, no writ)); 1986 Dodge v. State, 129 S.W.3d 180, 183 (Tex. App.--Texarkana 2004, no pet.) (citing Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex. App.--Houston [1st Dist.] 1996, no writ); McMeens v. Pease, 878 S.W.2d 185, 190 (Tex. App.--Corpus Christi 1994, writ denied)); Wenk v. City Nat l Bank, 613 S.W.2d 345, 348 (Tex. Civ. App.--Tyler 1981, no writ) (applying this line of argument to nonjury trials). In this case, Appellants moved for a directed verdict after Appellees rested. After the trial court overruled the motion, Appellants proceeded with their own witnesses. At the conclusion of the evidence, Appellants did not reurge their motion for a directed verdict. Under these circumstances, any error under the denial of the motion for directed verdict is waived. Issue No. One, therefore, is overruled.

We continue our discussion of Appellants points of error by grouping Issue Nos. Two, Three, and Nine and discussing them together, as we believe each is raising a legal sufficiency argument. In Issue No. Two, Appellants argue that the trial court committed error by enforcing the oral agreement because the Statute of Frauds should have prohibited the enforcement of an alleged indefinite oral agreement for the sale of property. In their discussion of Issue No. Two, Appellants rely on the argument made in Issue No. One. In Issue No. Three, Appellants argue that the exception to the Statute of Frauds was not met by the Appellees, making the enforcement of the oral agreement by the trial court an error. Appellants contend that the Appellees did not pay consideration for the oral contract, failing to meet the first requirement of the exception. Appellants further contend that there is also no evidence that permanent and valuable improvements were made to the property with their consent. In Issue No. Nine, Appellants assert that the trial court committed error in enforcing the oral contract against Mrs. Souphankhaysy because there was no evidence that Mrs. Souphankhaysy made any oral statements or oral agreement for the sale of the property in question.Standard of Review

In reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding, disregarding all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). The evidence is legally sufficient if more than a scintilla of evidence supports the finding. Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). Whether particular facts are sufficient to establish a taking presents a question of law that we review de novo, but we rely on the fact finder to resolve disputed facts underlying that determination. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). When a party appeals from a nonjury trial, it must complain of specific findings and conclusions of the trial court, because a general complaint against the trial court s judgment does not present a justiciable question. Fiduciary Mortgage Co. v. City Nat l Bank, 762 S.W.2d 196, 204 (Tex. App.--Dallas 1988, writ denied). When an appellant does not request or file findings and conclusions by the trial court, as in this case, the appellate court presumes the trial court found all fact questions in support of its judgment, and the reviewing court must affirm that judgment on any legal theory finding support in the pleadings and evidence. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987).

As we understand, in Issue No. Two, Appellants allege that there was no evidence offered of the definite terms of the contract. Particularly, Appellants complain that there was no evidence of what the actual price of the contract was. Reviewing the record in the light most favorable to such a finding, we find that the testimony provided by the Appellees in which they indicated that Ratsavong had represented that the home was worth $14,500 indicating this was the price of the contract. The agreement they entered into was for the purchase of the home, and the understanding was that upon completion of payment of the mortgage, the Appellants would transfer the deed to the Appellees. We find that the evidence is legally sufficient to support a finding that the oral contract contained a definite term as to the total price of the contract. We overrule Issue No. Two.

The Statute of Frauds exists to prevent fraud and perjury in certain kinds of transactions by requiring agreements to be set out in a writing signed by the parties. See Haase v. Glazner, 62 S.W.3d 795, 799 n.21 (Tex. 2001) (citing see Restatement (Second) of Contracts 131 cmt. c (1981); 9 Williston on Contracts 21:1 (4th ed. 1999); see also Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921)). In Hooks, 229 S.W. at 1116, the Texas Supreme Court held that to relieve a parol sale of land from the operation of the statute of frauds, three things were necessary: 1. Payment of the consideration, whether it be in money or services. 2. Possession by the vendee. And 3. The making by the vendee of valuable and permanent improvements upon the land with the consent of the vendor; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser if it were not enforced. Each of these three elements is indispensable, and they must all exist. Hooks, 229 S.W. at 1116.

In Issue No. Three, we understand Appellants to be making legal insufficiency claims for a finding of elements one and two of the Statute of Frauds exception described above. At trial, Appellees testified that they paid a $2,000 down payment as requested by the Appellants. As soon as they moved into the house, Appellees testified that they began making repairs, beginning with the bathroom. Other repairs included constructing a garage and a concrete driveway leading to it, adding a utility room to the house, replacing a kitchen door, improving the sidewalk, and painting the exterior and interior of the house. The estimated costs of making these improvements was $28,000. Although much of this testimony came from Appellees oral testimony, the trial court found that such oral testimony was sufficient and did not require actual documentation of receipts to be presented. The Appellants home was located across the street from the Appellees, allowing the trial court to infer that the Appellants could have been aware of the repairs being done to the home. The Appellees also testified that on several occasions, Ratsavong would come over and have dinner to celebrate the completion of an improvement. There was no testimony provided by the Appellants that they opposed any of the repairs being done. Rather, Appellants testified that Appellees would sometimes ask for permission to complete the improvements. After reviewing the record in the light most favorable to the implied findings and disregarding all evidence and inferences to the contrary, we find the evidence was legally sufficient to support a finding that the consideration paid by the Appellees was in the form of the $2,000 down payment and that Appellees made valuable and permanent improvements to the property with Appellants consent. We therefore overrule Issue No. Three.

In Issue No. Nine, Appellants contend that there is no evidence to support Mrs. Souphankhaysy of her ownership of the property. Specifically, Appellants argued that there was no evidence that Mrs. Souphankhaysy made any oral agreement to transfer title to the property. Appellants cite to Dalton v. Don J. Jackson, Inc., 691 S.W.2d 765, 767-68 (Tex. App.--Austin 1985, no writ), Vallone v. Miller, 663 S.W.2d 97, 98 (Tex. App.--Houston [14th Dist.] 1983, writ ref d n.r.e.), and Tex. Fam. Code Ann. 3.102 (Vernon 1998) to support their contention. In Dalton, the court held that one spouse may not convey to a third party, so as to effectuate a partition by creating a tenancy-in-common between the remaining spouse and the third party. See Dalton, 691 S.W.2d at 768. In Vallone, the court found that one spouse cannot alone convey or encumber joint management community property unless spouses have otherwise agreed. See Vallone, 663 S.W.2d at 99. The facts in this case differ from those in Dalton and Vallone.

In this case, the deed to the house was under both Ratsavong s and Souphankhaysy s names. There was testimony that Ratsavong would attend these dinner celebrations after the completion of a repair. Given the proximity of Appellants home to the property in question, the trial court could have inferred that Souphankhaysy was also aware of the improvements being done to the home. She testified that she also saw the Appellees on the trip to California in July of 1993. Although she testified that her jewelry was sold to pay the down payment on the home and that she did not see the Appellees pay her husband $2,000, she also could not say with certainty that Appellees did not give him this money. The trial court, being the judge of the credibility of the witnesses, found the testimony of the Appellees more credible. In so doing, he could have inferred that Mrs. Souphankhaysy was also aware of the agreement made with the Appellees concerning the purchase of the home. A review of the record shows that the disputed fact over whether an agreement was made between the Appellants and the Appellees was resolved in favor of the Appellees. We therefore find that the evidence was legally sufficient to support a finding that Appellant Souphankhaysy was also a party to this oral agreement. Issue No. Nine, therefore, is overruled.

In Issue No. Eight, Appellants contend that the Appellees claims were barred by the four-year statute of limitations, making the trial court s enforcement of the oral contract error. According to the Appellants, the oral contract was entered into in 1994, but the lawsuit was not filed until October of 2002, not within the four-year statute of limitations for a breach of contract in Texas. See Tex. Civ. Prac. & Rem. Code Ann.

16.051 (Vernon 1997). In their reply brief, Appellants argue that the Appellees knew in May of 1994 that they did not receive a deed to the property, constituting a breach of the agreement. Therefore, the latest the lawsuit could be initiated was April of 1998. We disagree with Appellants assertions.

A general four-year statute of limitations for breach of contract applies. See Tex. Civ. Prac. & Rem. Code Ann. 16.051; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). A party asserting a breach of contract claim must sue not later than four years after the day the claim accrues. Id. It is well-settled law that a breach of contract claim accrues when the contract is breached or when the claimant has notice of facts sufficient to place him on notice of the breach. See Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997); see also Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 102 S.W. 908, 909 (1907); see also Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713, 717 (Tex. App.--Eastland 2002, no pet.).

Here, the earliest date on which Appellants could have breached the promise to transfer the deed was in 2001, the date when the mortgage was paid in full and the earliest Appellees testified Appellants refused to transfer the deed. Appellees sued Appellants in October of 2002, less than four years after this occurred. Applying the general four-year statute of limitations to Appellees claims, Appellees timely filed suit. See Tex. Civ. Prac. & Rem. Code Ann. 16.051. We therefore overrule Issue No. Eight.

In Issue No. Twelve, Appellants contend that Appellees failure to plead and prove the necessary elements of a trespass to try title action made the enforcement of the oral contract error. Specifically, Appellants point to the fact that Appellees original petition incorrectly identified the property by listing the address as 611 Neomi Street, instead of 610 Neomi Street. The address 611 Neomi Street is the location of the Appellants homestead and was the incorrect address. By failing to specifically and properly identify the property in their pleadings, Appellants assert that Appellees cannot prevail in a trespass to try title action.

Before reaching the merits of Appellants challenge, we note that they had cited only to one case in the body of their argument. After a careful review of Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004), we fail to see its relevance to Appellants assertion and Appellants do not provide such a link in their argument. Among other things, Tex. R. App. P. 38.1 requires Appellants to provide the Court with a discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue. See Tesoro Petroleum Corp., 106 S.W.3d at 128; Franklin, 961 S.W.2d at 711. Appellants minimal briefing of this issue fails to properly preserve the error for review by this Court.

Moreover, this argument is raised for the first time on appeal. The record does not reflect any objection to what appears to be a clerical mistake in the pleadings. // In order to preserve an issue for appellate review, a party must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling sought. Tex. R. App. P. 33.1(a). We find that Issue No. Twelve is not properly preserved and waived for inadequate briefing as well. Issue No. Twelve, therefore, is overruled.

In Issue No. Fifteen, Appellants assert that in enforcing the oral contract, the trial court deprived Appellants of their Texas and United States constitutional rights to due process and the right not to be deprived of their property without due process of law, and their rights to due course of law. Appellants have also waived any error regarding their due process claims. We find no indication in the record before us that Appellants voiced their complaint to the trial court, and therefore, we find that error has not been preserved in this regard. See Tex. R. App. P. 33.1(a); see also Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993); Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982). Issue No. Fifteen is overruled.

Having overruled each of Appellants issues on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

October 27, 2005

Before Barajas, C.J., McClure, and Guaderrama, JJ.

Guaderrama, J., sitting by assignment