Billie McMahen v. Horace Hooper--Appeal from 74th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-95-103-CV

BILLIE McMAHEN,

Appellant

v.

HORACE HOOPER,

Appellee

From the 74th District Court

McLennan County, Texas

Trial Court # 92-2577-3

O P I N I O N

The appellee, Horace Hooper, sued the appellant, Billie McMahen in a suit to try title and for possession of a 17-acre parcel of property maintained as a mobile home park in Bellmead. Hooper alleged that McMahen had orally agreed to convey an undivided one-half interest in the parcel if Hooper would live on the parcel and maintain the rental property until such time as McMahen had paid the final note he owed on the parcel. After the last note had been paid and McMahen obtained an unencumbered fee simple ownership of the parcel, McMahen forced Hooper off the land. Hooper petitioned the court to render a judgment that Hooper had complied with the terms of his oral contract with McMahen and that he was entitled in equity to a one-half ownership interest in the parcel. Trial was before a jury, and judgment was rendered in favor of Hooper.

McMahen raises six points on appeal. In his first point he complains the trial court erred in denying his motion for summary judgment. In his second and third points he asserts the trial court erred in denying his objection to one of the jury charges and in failing to substitute one of his own. In point four McMahen argues the trial court erred in failing to charge the jury on the issue of consideration to support the contract. In point five he maintains the trial court erred in overruling his motion for new trial because he had proof that Hooper had testified falsely at a deposition. And in his sixth and final point McMahen complains that the trial court should have awarded him attorneys' fees because the jury's zero finding on the question of attorneys' fees was against the great weight and preponderance of the evidence. We affirm.

In his first point of error McMahen complains that the trial court erred in denying his motion for summary judgment. He notes that there are three elements to an equitable cause of action to enforce an oral agreement to convey real property: (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. Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex. 1992); Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921). He contends that in his summary judgment motion he complained that Hooper had failed to plead an essential element of his cause of action, namely, that Hooper's allegedly "valuable and permanent improvements" on the parcel were completed with his consent.

Whatever the merits of McMahen's argument may be, we have no jurisdiction to consider the point. The denial of a summary judgment motion is usually an interlocutory order that may not be appealed. See Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). Moreover, when a motion for summary judgment is denied, and the case then proceeds to a final judgment via a trial, dismissal, or some other form, the order denying the summary judgment order may not be appealed. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Orozco v. Orozko, 917 S.W.2d 70, 72 (Tex. App. San Antonio 1996, writ denied); Freedman v. Briarcroft Property Owners, Inc., 776 S.W.2d 212, 215 (Tex. App. Houston [14th Dist.] 1989, writ denied). Therefore, because we have no jurisdiction to consider McMahen's complaint, his first point is overruled.

In his second and third points McMahen complains about the following charge submitted to the jury:

QUESTION NO. 1:

Do you find from a preponderance of the evidence that Billie McMahen made an agreement with Horace Hooper that if he would stay on the 17 acres tract of land, more or less, and assume the care, control, and management of the entirety of said tract that at the completion of the payment of the purchase price Horace Hooper would own an undivided one-half of said tract?

McMahen contends that the above-quoted charge is ambiguous because there was evidence adduced at trial concerning two alleged agreements: (1) for McMahen to allow Hooper a reduced rent to stay in the mobile home park if Hooper would perform maintenance services at the park, and (2) for McMahen to eventually give one-half of his interest in the entire tract to Hooper if Hooper would perform maintenance services at the park.

The charge is not ambiguous. It clearly asked the jury to find whether there was an agreement whereby Hooper would eventually gain an ownership in the tract if he performed certain maintenance services. Any other agreement concerning the consideration owed Hooper in exchange for his maintenance services would have been ancillary to the jury's deliberations, but the jury was not asked to consider any other such agreement. Concluding that the complained-of charge was not ambiguous, we overrule McMahen's second and third points.

In his fourth point McMahen asserts that the trial court erred in failing to charge the jury on the element of consideration. We disagree. In addition to the charge quoted above, the trial court submitted a second charge for the jury to answer, assuming that it answered the first in the affirmative. The trial court asked the jury whether "Horace Hooper did stay on the 17 acre tract of land . . . and assume the care, control, and management of the entire tract until he was evicted from said property?"

Despite McMahen's arguments to the contrary, these two charges brought to the jury the question of consideration to support the contract. The jury was asked whether the parties agreed that Hooper would offer in return for a one-half interest in the tract the consideration of performing maintenance services on the tract. The jury answered that this, indeed, was the agreement and that Hooper performed his side of the bargain. We conclude that the jury was charged on the element of consideration; therefore, we overrule McMahen's fourth point.

In his fifth point of error McMahen argues the trial court erred in overruling his motion for new trial on the ground that Hooper testified falsely at a deposition. According to McMahen, Hooper was asked at a deposition whether he "had in his possession or subject to his control any writing of any kind that supported any of the allegations contained in his Original Petition." McMahen avers that Hooper answered in the negative.

At trial, Hooper then offered into evidence a number of receipts that apparently showed that he had been making payments to McMahen throughout the time he was present on the tract as part of their oral agreement.

McMahen's argument that Hooper testified falsely at the deposition should have been raised at the time the alleged error was made apparent to him, which was at trial when the receipts were entered into evidence. By waiting to raise the complaint until after the trial was completed, McMahen waited much too long and, therefore, waived his complaint. Tex. R. App. P. 52(a).

McMahen, in the same point of error, asserts that at the hearing on his motion for new trial he presented evidence to demonstrate that the receipts mentioned above were falsified. McMahen, however, does not with any specificity indicate which of the numerous receipts were falsified or in what manner. Without providing us with specific citations to the record, McMahen has presented us with nothing to review on his complaint. Tex. R. App. P. 74(f). Moreover, the complaint is multifarious. McMahen essentially tacked on this argument to the point about Hooper's alleged false deposition testimony. Tex. R. App. P. 74(d); Superior Packing, Inc. v. Worldwide Leasing & Fin., Inc., 880 S.W.2d 67, 69 (Tex. App. Houston [14th Dist.] 1994, writ denied). For all these reasons, we conclude that McMahen's fifth point is without merit, and we overrule it.

In his sixth and final point McMahen complains that the trial court erred in failing to award him attorneys' fees because the jury's finding of zero on the amount of attorneys' fees to which he was entitled is against the great weight and preponderance of the evidence. We disagree.

In a suit for declaratory judgment, either party may make a claim for attorneys' fees and costs as provided under Tex. Civ. Prac. & Rem. Code Ann. 37.009 (Vernon 1986). Knighton v. Int'l Business Mach. Corp., 856 S.W.2d 206, 215 (Tex. App. Houston [1st Dist.] 1993, writ denied). However, the trial court does not abuse its discretion in failing to award attorneys' fees to a defendant who is generally unsuccessful in his defense against the plaintiff's claims. See id.; Peacock v. Schroeder, 846 S.W.2d 905, 912 (Tex. App. San Antonio 1993, no writ). Because McMahen was generally unsuccessful in his defense against Hooper's claims, the trial court did not abuse its discretion in failing to award McMahen attorneys' fees. McMahen's sixth point is overruled.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed August 14, 1996

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