Frank Reyes v. Ruby Booth--Appeal from 32nd District Court of Nolan County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

Frank Reyes

Appellant

Vs. No. 11-00-00391-CV B Appeal from Nolan County

Ruby Booth

Appellee

In a nonjury case, the trial court rendered judgment in favor of Ruby Booth against Frank Reyes for $9,000 plus attorney=s fees. Reyes appeals. We affirm in part and reverse and render in part.

In its findings of fact, the trial court found that Booth agreed to purchase the property located at 211 East New Mexico in Sweetwater from Reyes. The consideration agreed to by the parties was the sum of $20,000. Booth paid $9,000 in cash and conveyed a home located at 106 Patterson in Sweetwater to Reyes. Reyes executed a general warranty deed purporting to convey all of Lot No. 12, Block No. 22. The deed contained a scrivener=s error; the deed from Reyes should have described the property as Block 23 instead of Block 22. The intent of the parties was that Reyes was to convey the property located at 211 East New Mexico to Booth. Reyes only owned an undivided one-half interest in the property. The other undivided one-half interest was held in a testamentary trust created by Michael Eugene Schulze.

Reyes challenges the jurisdiction of Judge Weldon Kirk to sign the final judgment in this case. Judge Kirk, the elected judge of the 32nd Judicial District, heard the evidence in the case on May 5, 2000. Judge Kirk retired in June of 2000 without having signed the final judgment in this case. On August 7, 2000, Judge Dean Rucker, Presiding Judge of the Seventh Administrative Judicial Region, pursuant to TEX. GOV=T CODE ANN. ' 74.056 (Vernon 1998), assigned Judge Kirk to serve as Presiding Judge of the 32nd District Court. The order provides in part:

I assign the Honorable Weldon Kirk, Presiding Judge of the 32nd District Court, to the 32nd District Court of Fisher, Mitchell and Nolan Counties, Texas.

This assignment is for the purpose of presiding in all matters that may come for hearing. This assignment is for a period beginning on August 7, 2000 and ending on December 31, 2000, and shall continue thereafter so long as may be necessary for the assigned judge to complete trial of any cause begun during such period, and to pass on motions for new trial and all other matters growing out of any cause heard by the assigned judge during such period.

On August 7, 2000, Judge Kirk signed the final judgement in this case. The assignment of Judge Kirk stated that the Aassignment is for the purpose of presiding in all matters that may come for hearing.@ The entry of the judgment in this case was a proper matter that came for Ahearing@ before Judge Kirk on August 7, 2000. Reyes=s challenge is overruled.

Reyes also argues that he had no opportunity to exercise his right to object to the assignment of Judge Kirk pursuant to TEX. GOV=T CODE ANN. '74.053(b) (Vernon 1998). Judge Kirk was assigned on August 7, 2000; and Judge Kirk signed the judgment in this case on August 7, 2000. Reyes filed his objection to Judge Kirk=s assignment on October 12, 2000. The objection was not timely. See Tivoli Corporation v. Jewelers Mutual Insurance Company, 932 S.W.2d 704 (Tex.App. - San Antonio 1996, writ den=d); Morris v. State, 913 S.W.2d 694 (Tex.App. - Eastland 1995, writ dism=d w.o.j.). The contention is overruled.

The trial court found in its conclusions of law that Reyes breached the covenant of seisin. Booth does not rely upon a breach of the expressed general warranty in the deed because there has been no actual or constructive eviction of Booth by paramount title. See Schneider v. Lipscomb County Nat. Farm Loan Ass=n, 202 S.W.2d 832, 834 (Tex.1947).

In Childress v. Siler, 272 S.W.2d 417, 420, (Tex.Civ.App. - Waco 1954, writ ref=d n.r.e.), the court held that the covenant of seisin, in the absence of any qualifying expression, is read into every conveyance of land or an interest in land, except in quitclaim deeds. The covenant of seisin operates in the present and is breached by the grantor at the time the instrument is made if he does not own the estate he undertakes to convey.

Reyes argues that the trial court erred in awarding more than nominal damages for breach of the covenant of seisin, since only nominal damages are recoverable when the grantee retains possession of the property. The court in Sun Exploration and Production Company v. Benton, 728 S.W.2d 35, 37 (Tex.1987), held that the proper measure of damages for breach of the covenant of seisin is the consideration paid. See Johns v. Karam Development, Inc., 381 S.W.2d 933, 936 (Tex.Civ.App. - El Paso 1964, writ ref=d n.r.e.). The rule urged by Reyes and the case cited appears to be a minority rule as observed in 4 HERBERT THORNDIKE TIFFANY, THE LAW OF REAL PROPERTY ' 1016 (1939), where it is stated:

In an action for breach of the covenant for seisin, the measure of damages is ordinarily the amount of the consideration paid by the grantee, usually with interest, such consideration being presumably the value of the land at the time of the sale, with a view to which the covenant was made. Adopting this measure of damages in case the breach is as to part of the premises only, the recovery is a part of the consideration, proportioned to the value of such part. And if the estate which passes is less than that purported to be conveyed, the amount recoverable is the consideration paid less the value of the estate which actually passes.

Occasionally the view has been asserted that the covenantee can recover only nominal damages on account of a breach of the covenant for seisin, if he has in no way been disturbed in his possession of the land. In the great majority of cases, however, the fact that the grantee is or is not still in possession is not referred to in connection with the question of the amount of damages recoverable, and in a few cases the view referred to is clearly repudiated.

Here, Booth only received an undivided one-half interest. There was evidence that owning only an undivided one-half interest in the property would make it Aimpossible@ to sell. The consideration was $20,000. The trial court did not err in awarding Booth damages of $9,000. Reyes=s issue is overruled.

Reyes contends that the trial court=s finding of fact that Reyes only owned a one-half interest in the property conveyed was against the great weight and preponderance of the evidence. In considering Reyes=s factually insufficient evidence complaint, we review and consider all of the evidence and reverse the finding only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Company, 715 S.W.2d 629 (Tex.1986); Cain v. Bain, 709 S.W.2d 175 (Tex.1986). Rod Wetsel, an attorney who had practiced law in Sweetwater for 22 years, who was a member of the Joint Editorial Board for the Title Standards which are published in the Texas Property Code, and who was Board Certified by the Texas Board of Legal Specialization in oil and gas and mineral law, testified that Booth only received an undivided one-half interest in the property that was conveyed by the deed from Reyes to Booth. Wetsel testified that he had examined thousands of land titles during his law practice. He described how he examined the appropriate documents from a run sheet to the property that he got from Beall Abstract and Title Company. Wetsel stated that the run sheet did not have a certificate stating that it included all of the instruments on file affecting Lot No. 12, Block No. 22, Bradford Addition; but Wetsel also stated that, for 22 years, he had relied upon run sheets prepared by Beall Abstract and that he had never found a substantial mistake. We also note that Reyes testified that he had attempted to purchase the outstanding interest in the property in order to clear the title. We hold that the evidence was factually sufficient.

Reyes also asserts that the finding by the court that the consideration was $20,000 was against the great weight and preponderance of the evidence. Ruby Booth testified that, during the negotiations, Reyes put a price of $20,000 on the property located at 211 East New Mexico. Booth stated that she gave Reyes her house at 106 Patterson Street plus $9,000 for Reyes=s house. Reyes testified that he thought the house on Patterson Street was worth maybe five or six thousand dollars. On cross-examination, Reyes was asked if the agreed price for the house at 211 East New Mexico was $20,000. Reyes answered: AI don=t recall, to tell you the truth.@ After considering all of the evidence, we hold that the finding by the trial court was not against the great weight and preponderance of the evidence. Pool v. Ford Motor Company, supra; Cain v. Bain, supra.

Reyes also urges that the trial court erred in not excluding as hearsay the title run sheet, a gift deed, and will because the documents were improperly authenticated. The court overruled Reyes=s objection, stating that the objection was not timely. Wetsel had identified and discussed these instruments during his testimony. The objection was made when Booth offered the documents into evidence. Even if we assume that the objection had not been waived, we hold that the introduction into evidence of the documents probably did not cause the rendition of an improper judgment. TEX.R.APP.P. 44.1(a)(1). Wetsel=s expert opinion was based upon his review of many instruments in his title search.

On the day before trial, Booth filed an amended original petition and for the first time sought attorney=s fees. The trial court awarded Booth both trial and appellate attorney=s fees. Reyes contends that the trial court erred in awarding attorney=s fees because Booth failed to prove that Booth=s claim was presented to Reyes as required by TEX. CIV. PRAC. & REM. CODE ANN. ' 38.002(2) (Vernon 1997). We agree. Booth directs us to certain testimony by Reyes wherein Reyes states that he had attempted to clear up the title problem by offering some money to the owners of the outstanding one-half undivided interest in the property. This evidence does not show a proper presentment. Presentment of a claim under Section 38.002(2) is required to allow the person against whom it is asserted an opportunity to pay it before incurring an obligation for attorney=s fees. See Panizo v. Young Men=s Christian Association of the Greater Houston Area, 938 S.W.2d 163 (Tex.App. - Houston [1st Dist.] 1996, no writ). We overrule the trial court=s award of trial and appellate attorney=s fees.

Reyes did not prevail and was not awarded any damages. The trial court properly refused to award attorney=s fees to Reyes. We overrule Reyes=s contention that the court erred in not awarding him attorney=s fees. Green International, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997).

We have not discussed Reyes=s remaining issues because they are not necessary to a final disposition of this appeal. TEX.R.APP.P. 47.1.

The award of $9,000 to Booth is affirmed. The award of attorney=s fees to Booth is reversed, and we render judgment that Reyes is not liable for attorney=s fees.

AUSTIN McCLOUD

SENIOR JUSTICE

July 17, 2003

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Arnot, C.J., and

McCall, J., and McCloud, S.J.[1]

[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.