Gregorio Sanchez and Wife, Maria O. Sanchez v. Francisco Mejia and Jesus Lopez, Jr.--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION

No. 04-04-00270-CV

Gregorio SANCHEZ and Maria O. Sanchez,

Appellants

v.

Francisco MEJIA and Jesus Lopez, Jr.,

Appellees

From the 229th Judicial District Court, Duval County, Texas

Trial Court No. DC-03-286

Honorable Alex W. Gabert, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis Speedlin, Justice

Delivered and Filed: December 15, 2004

AFFIRMED

Appellants, Gregorio Sanchez and Maria O. Sanchez, appeal the trial court's judgment in favor of appellees, Francisco Mejia and Jesus Lopez, Jr. In three issues on appeal, appellants contend the trial court erred by (1) failing to prepare and file findings of fact and conclusions of law, (2) finding the parties had entered into a contract that was breached by the appellants, and (3) awarding attorney's fees to the appellees. Finding no error, we affirm.

BACKGROUND

On November 1, 1993, the appellees signed a contract for deed for the purchase of undeveloped real property in Duval County. The contract provided that upon payment of the full purchase price, the appellants were to convey title to the property to the appellees by warranty deed. The contract was notarized and filed with the Duval County clerk on December 13, 2003. After completing payments over the term of the contract, the appellees sent a letter to appellants enclosing a copy of their payment history and requesting a conveyance of the property. Appellants acknowledged receipt of the notice, but requested proof of any advance payments that would indicate the contract had been paid in full and ahead of schedule. Appellants also informed appellees that because they failed to make any further payments, the note was past due. Appellants subsequently filed an affidavit with the county stating that appellees were in default and, thus, the contract for deed was cancelled. Appellees then filed this action seeking a declaratory judgment declaring they had complied with the terms of the contract and are the title holders of the real property at issue. Appellees also requested damages for breach of contract and recovery of attorney's fees. After a bench trial, the court declared appellees fee simple owners of the property and awarded appellees attorney's fees in the amount of $5000.00.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In their first issue on appeal, appellants argue the trial court erred in failing to prepare findings of fact and conclusions of law. In their brief, appellants assert they made a request for findings of fact and conclusions of law on March 1, 2003. A party must file its request for findings and conclusions with the clerk of the court. Tex. R. Civ. P. 296. Here, the record does not show that any request in writing was ever filed. Therefore, appellants cannot complain of any failure to file such findings of fact and conclusions of law. Prince v. Sanders, 298 S.W.2d 650, 651(Tex. Civ. App.--Beaumont 1957, writ dism'd). Assuming appellants did file a request and the trial court failed to respond, the record also fails to show that appellants filed a notice of past due findings of fact and conclusions of law. See Tex. R. Civ. P 297. When a party does not file a notice of past due findings of fact and conclusions of law, it is as if no initial request was made and the complaint about the trial court's failure to file findings and conclusions is waived. In re A.I.G., 135 S.W.3d 687, 694 (Tex. App.--San Antonio 2003, no pet.).

BREACH OF CONTRACT

In their second issue, appellants assert the evidence presented at trial was legally and factually insufficient to support the trial court's finding that a contract had been entered into by the parties and breached by the appellants. (1) In a non-jury trial, if no findings of fact and conclusions of law are filed, it is implied that the trial court made all the necessary findings to support its judgment. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). When, as in this case, a reporter's record is part of the appellate record, the appellant may challenge the legal and factual sufficiency of the implied findings the same as jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). When the evidence supports the implied findings of fact, we must uphold the judgment on any legal theory applicable to the case. Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987). In making this determination, we consider only the evidence most favorable to the implied fact findings and disregard all opposing or contradictory evidence. Castano v. Wells Fargo Bank, N.A., 82 S.W.3d 40, 43 (Tex. App.--San Antonio 2002, no pet.).

At trial, appellees submitted a copy of the contract for deed, which indicates the parties entered into a contract for the purchase of land for $24,000.00. The contract reflects appellees made a $4000.00 down payment and the remaining balance of $20,000.00 was to be made in monthly installments of $250.00 over a ten-year term. To support appellees' position that they had fulfilled their obligation under the contract, appellee Francisco Mejia testified to, and offered into evidence, a loan amortization schedule and copies of receipts and cancelled checks reflecting payment on the contract for the land. Mejia also testified that he initially made advance payments by cash and check that were applied to the principal on the contract, but he discontinued this practice at the request of appellants. Mejia further testified that his daughter made a final payment of $174.02, which was accepted by the appellees. It was at this time that appellant Maria Sanchez informed Mejia's daughter that she would not accept any further payments because Sanchez was cancelling the contract. Mejia testified that because he believed the evidence presented reflected payment in full, appellees should be awarded the property because they had successfully completed the terms and conditions of the contract. One of the appellants, who were pro se, testified that they were still owed $1175.59. However, when the trial judge asked if they could prove it, appellants failed to offer any further evidence. We believe the evidence is sufficient to support the court's implied finding that appellees made all payments due under the contract for deed and appellants breached the contract by failing to convey title to the appellees.

ATTORNEY'S FEES

In their final issue, appellants contend the trial court erred by awarding $5000.00 in attorney's fees to the appellees because the award was excessive and unreasonable. In a declaratory judgment proceeding, the trial "court may award ... reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem. Code Ann. 37.009 (Vernon 1997). If the trial court awards fees in a declaratory judgment proceeding, we review the award under an abuse of discretion standard, "subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law." Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). However, whether the attorney's fees are reasonable and necessary is subject to a sufficiency review. Id.

Here, appellees' attorney testified that he had nineteen years' experience as an attorney and that he had spent twenty-five hours working on the case at a rate of $200 per hour. The attorney also testified that in his opinion a reasonable and necessary attorney's fee for representing appellees in this trial was $5000.00. The appellants failed to offer any controverting evidence. The evidence is sufficient to support a finding that the award of $5000.00 in attorney's fees was reasonable, and we find nothing to indicate the fees were inequitable and unjust. We therefore decline to hold the trial court abused its discretion. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881-82 (Tex. 1990) (clear, direct, and uncontroverted evidence of attorney's fees is taken as true as a matter of law, especially when the opposing party does not rebut the evidence).

CONCLUSION

We overrule appellants' issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

1. In their reply brief, appellants raise two additional issues asserting the trial court should not have entered the declaratory judgment (1) "because of insufficient evidence point" and (2) because the bank records introduced into evidence "are inadmissible due to their incompetence." Under the Texas Rules of Appellate Procedure, an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Because appellants have inadequately briefed these issues, nothing is presented for our review. Id.; See Fredonia State Bank v. General Am. Life Ins., 881 S.W.2d 279, 284-85 (Tex. 1994) (appellate court has discretion to hold points of error waived due to inadequate briefing).