Cameron D. Henderson v. Blackwell Joint Venture, et al--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-92-200-CV

CAMERON D. HENDERSON,

Appellant

v.

BLACKWELL JOINT VENTURE, ET AL.,

Appellees

From the 13th District Court

Navarro County, Texas

Trial Court # 92-00-01568-CV

O P I N I O N

On October 18, 1985, Cameron Henderson executed a promissory note for $198,000 to MBank, Corsicana, N.A. The note was secured by a deed of trust on property located in Navarro County. After several assignments, the note and deed of trust were assigned to Blackwell Joint Venture. Henderson subsequently defaulted on the note. On February 26, 1991, Henderson, Blackwell, and John Murphey entered a written purchase agreement whereby Murphey agreed to purchase either the property from Henderson or the note and deed of trust from Blackwell for $157,500 less any future payments made by Henderson on the note. The purchase agreement required a closing on or before May 1 or no later than twenty days after the publication of a notice of foreclosure sale. In consideration for the mutual covenants set forth in the contract, Blackwell agreed to forgive Henderson for any amount due under the note in excess of the agreed purchase price. A notice of foreclosure sale was published on August 13. Murphey, however, did not purchase either the property or the note and deed of trust pursuant to the terms of the purchase agreement. The property was subsequently sold at a foreclosure sale for $180,000.

Henderson alleges that he and Robert Holmes, President of Blackwell Joint Venture, had entered a verbal agreement prior to the foreclosure sale. According to Henderson, he agreed not to contest the foreclosure of the property in consideration for (1) Holmes' agreement to purchase and pay the taxes and insurance on two of Henderson's adjoining lots (for $32,500); and (2) Holmes' agreement to allow Henderson to remain on the property without liability until August 1992.

In November 1991 Blackwell asked Henderson to vacate the property, and Henderson refused. Blackwell then filed a forcible entry and detainer suit in a Justice of the Peace Court of Navarro County, contesting the verbal agreement. The justice court granted the forcible entry and detainer, and Henderson appealed to the Navarro County Court. Blackwell prevailed again, and Henderson was evicted.

Henderson filed this suit in district court, alleging that Blackwell and Holmes (1) violated the Deceptive Trade Practices Act (DTPA) by failing to disclose that Blackwell and Holmes would not honor their obligations under the verbal agreement, and (2) breached the written purchase agreement by failing to notify Murphey of the foreclosure sale. Henderson sought damages under the DTPA for: (1) costs of defending the forcible entry and detainer suit; (2) loss of use of the property after the eviction; and (3) attorney's fees. He sought damages under the breach of contract claim for (1) recovery of "his equity in the amount of $32,500, representing proceeds of sale over and above the agreed upon price for the indebtedness"; and (2) attorney's fees. Blackwell and Holmes filed a motion for summary judgment, which the district court granted without specifying any grounds.

When a summary judgment order does not state the specific grounds upon which it is granted, a party appealing the order must show that each of the independent arguments alleged in the motion is insufficient to support the order. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex. App. Houston [1st Dist.] 1988, writ denied); Sipes v. Petry and Stewart, 812 S.W.2d 428, 430 (Tex. App. San Antonio 1991, no writ). We will examine each argument in the motion for summary judgment to determine whether any argument is sufficient to support the order.

First, Blackwell's motion for summary judgment asserted that enforcement of the verbal agreement was precluded by the statute of frauds. Henderson argues that the claim for breach of the verbal agreement was brought under the DTPA and therefore does not fall within the statute of frauds. Once Blackwell raised the statute of frauds, however, Henderson had the burden to produce evidence that the verbal agreement was not within the statute of frauds. See Cent. Tex. Decorating Ctr. v. Mut. Sav. Inst., 607 S.W.2d 314, 316 (Tex. App. Austin 1990, no writ).

As a general rule, contracts for the sale of real estate must be in writing and signed by the person to be charged with the agreement or one authorized to sign for him to be enforceable. Tex. Bus. & Com. Code Ann. 26.01 (Vernon 1987). The statue of frauds precludes DTPA actions for failure to sell land. Keriotis v. Lombardo Rental Trust, 607 S.W.2d 44, 46 (Tex. Civ. App. Beaumont 1980, writ ref'd n.r.e.). The application of this rule can be seen in a case similar to the one at bar. In Wade v. State Nat'l Bank, 379 S.W.2d 717, 720 (Tex. Civ. App. El Paso 1964, writ ref'd n.r.e.), the plaintiff relied upon the oral promise of the deceased to leave her estate, including real property, to the plaintiff in exchange for the plaintiff's forbearance from investigating the circumstances of her father's death. In the instant case, Holmes promised to purchase certain properties and to allow Henderson to live on the property without liability, in exchange for Henderson's forbearance from contesting the foreclosure. In both Wade and the instant case, the plaintiff is seeking damages for failure to perform an oral promise governed by the statute of frauds. "We fail to see how there could be any recovery [for] the breach of an unenforceable contract. To hold otherwise would be to create an anomaly, and allow one to do indirectly what he could not by law do directly." Id. The district court correctly dismissed the DTPA claim because DTPA actions to enforce oral contracts for the purchase of real estate are barred by the statute of frauds as a matter of law.

Second, the motion for summary judgment asserted that neither the written purchase agreement nor section 51.002(b) of the Texas Property Code required Blackwell and Holmes to notify Murphey of the foreclosure proceeding. Henderson claims that a fact issue exists as to Murphey's right to notice. An instrument which can be given a definite legal interpretation is not ambiguous, and the court will construe the contract as a matter of law. R & P Enter. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518-19 (Tex. 1980). The purpose of the court is to give effect to the intention of the parties. Id. at 519.

The written purchase agreement called for mutual covenants, under which Blackwell agreed to forgive Henderson for any amount owed under the note in excess of the purchase price, and Murphey agreed to purchase either the property or the note and deed of trust. The contract also called for any notice required therein to be "in writing . . . and hand-delivered . . . or mailed" to the parties' addresses listed. The contract did not contain any provision requiring Blackwell to give Murphey notice of foreclosure. The trial court correctly determined as a matter of law that the unambiguous contract did not require Blackwell to notify Murphey of the foreclosure. Because Murphey did not fulfill the written agreement, Henderson's debt under the note was not forgiven by Blackwell. Blackwell could not breach a duty he did not owe. As a result, the court correctly granted summary judgment.

The judgment of the trial court is affirmed.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings and

Justice Vance

(Chief Justice Thomas not participating)

Affirmed

Opinion delivered and filed December 16, 1992

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