Appeal from the 400th District Court Fort Bend County, Texas
Trial Court Case No. 13-DCV-209467
consists of Justices Keyes, Higley, and Lloyd.
V. Keyes Justice
their attempt to purchase a home was unsuccessful, appellees
Daniel A. Haile and Wongelawit K. Alemu sued appellants
Tamuno Ifiesimama ("Mr. Ifiesimama") and
Tamunnoibuomi Ifiesimama ("Mrs. Ifiesimama"), for
specific performance and breach of contract. The trial court
held a bench trial and ultimately ruled in favor of Haile and
Alemu, ordering that they recover costs, their earnest money
deposit, and attorney's fees from both Ifiesimamas,
although only Mr. Ifiesimama signed the sales contract. The
court ordered specific performance, requiring conveyance of
the subject property to Haile and Alemu.
seven issues, the Ifiesimamas argue that: (1) the trial court
erred by finding that Mr. Ifiesimama made a misrepresentation
to Haile and Alemu; (2) the trial court erred in rendering
judgment against Mrs. Ifiesimama despite finding on the
record that she was not a party to the contract to sell the
property; (3) the trial court incorrectly awarded judgment
against the Ifiesimamas jointly and severally because
Haile's and Alemu's pleadings did not request this
relief; (4) factually insufficient evidence supports the
trial court's finding that both Ifiesimamas agreed to
sell the property for $179, 000; (5) the agreement between
the parties violated the statute of frauds; (6) factually
insufficient evidence supports the trial court's findings
that the Ifiesimamas breached the contract and that Haile and
Alemu tendered performance; and (7) the trial court erred in
granting specific performance and in awarding earnest money
and attorney's fees to Haile and Alemu.
modify the judgment of the trial court and affirm as
2013, the Ifiesimamas, who are husband and wife, decided to
sell their home in Stafford, Texas. However, nothing in the
record shows that Mrs. Ifiesimama had an interest in the
property. Rather, the evidence shows that all documents
relating to the property were in Mr. Ifiesimama's name
and that Mrs. Ifiesimama waived any right she may have had to
the property via a community property interest by signing
such a waiver in the deed of trust when the Ifiesimamas
mortgaged the property.
29, 2013, Haile and Alemu made an offer to purchase the
property for $193, 000. Mr. Ifiesimama signed the sales
contract on June 5, 2013, and the contract set the closing
date for July 19, 2013. The sales contract included the
following default provision: "If Seller fails to comply
with this contract, Seller will be in default and Buyer may
(a) enforce specific performance, seek such other relief as
may be provided by law, or both, or (b) terminate this
contract and receive the earnest money, thereby releasing
both parties from this contract."
parties also executed an "Intermediary Relationship
Notice, " which identified both Tamuno and
Tamuinnoibuomi Ifiesimama as the sellers and Haile and Alemu
as the "prospect, " or prospective buyers. In this
document, the parties agreed that agent Adnew
"Eddie" Tadesse with the firm Realty Associates
would represent both parties during the transaction. Both
Haile and Alemu signed this agreement, as did Mr. Ifiesimama.
Mrs. Ifiesimama did not sign this agreement, nor did she sign
the sales contract. The "Intermediary Relationship
Notice" is the only document in the record that
indicates that Mrs. Ifiesimama had any interest in the
9, 2013, after an appraiser valued the property at $179, 000,
$14, 000 below the original purchase price, Haile and Alemu
sought to amend the sales contract to change the purchase
price to $179, 000 and to move the closing date to July 30,
2013. Both Haile and Alemu signed a document amending the
contract, and a signature appeared above the printed name of
Tamuno Ifiesimama. Mr. Ifiesimama later argued, during the
course of this litigation, that he never signed this document
and that this signature was a forgery. Mrs. Ifiesimama's
name was not listed on the amendment, and she did not sign
Alemu, and Mr. Ifiesimama all attended the closing and signed
numerous documents to finalize the transaction. Mr.
Ifiesimama signed the documents both in his own name and as
"attorney in fact" for his wife. However, he later
revealed at the closing that he did not actually have power
of attorney for his wife, and as a result, the title company
refused to close the sale. Haile and Alemu therefore did not
receive title to the property.
September 2013, Haile filed suit against both of the
Ifiesimamas, seeking specific performance of the sales
contract as well as injunctive relief prohibiting the
Ifiesimamas from selling the property to another buyer. Haile
also sought the recovery of attorney's fees. Alemu later
filed a petition in intervention, making identical
allegations and seeking identical relief.
Ifiesimamas filed a counterclaim against Haile. They alleged
that Haile filed suit against them "knowing fully well
that [the Ifiesimamas] never at anytime made
misrepresentation[s] or entered into the said agreement as
claimed by [Haile]." They also alleged that Haile
brought suit and filed a lien against the property
"knowing fully well that there was no basis in law or
fact for doing so."
and Alemu amended their respective petitions to allege that
when the subject property was purchased in 2005, the original
deed of trust listed Mr. Ifiesimama, the only named borrower,
as a married man. On one page of that document, Mrs.
Ifiesimama "executed an agreement waiving all rights and
interests in the property, including marital, homestead, and
joint-occupancy rights." Haile and Alemu alleged that,
with respect to their transaction with the Ifiesimamas,
"Defendant Tamuno signed the closing documents, but
refused to further close and sell the property."
day of trial, Haile and Alemu sought leave to supplement
their petitions to add an alternative cause of action for
breach of contract against Mr. Ifiesimama. Haile and Alemu
alleged that they entered into a valid contract with Mr.
Ifiesimama to purchase the subject property, that they
performed their obligations under the sales contract by
paying closing costs, and that Mr. Ifiesimama breached the
contract by failing to convey title to the property. Haile
and Alemu did not allege that Mrs. Ifiesimama breached a
contract with them. The trial court permitted Haile and Alemu
to supplement their petitions.
trial, Alemu testified that while the sale was pending, she
and Haile dealt solely with the agent, Eddie Tadesse, and
they did not personally speak with the Ifiesimamas. Alemu
identified the sales contract and testified that it was
signed by three people, Mr. Ifiesimama as the seller, Haile,
and herself. The amendment to the sales contract provided
that the sales price of the property was $179, 000, and Alemu
testified that this was the amount that Mr. Ifiesimama agreed
to accept from her and Haile. Alemu stated that she and Haile
paid the required earnest money deposit and that they paid
closing costs on the closing date. She testified that Mr.
Ifiesimama attended the closing, that he stated that he had
authority to sell the property on his wife's behalf, and
that he signed numerous documents, including a settlement
statement and a general warranty deed,  in his own name
and as "attorney in fact" on behalf of his wife.
She stated that despite this, she and Haile did not receive
title to the property and did not take possession of the
further testified that, at the time of closing, she and Haile
did not realize that Mr. Ifiesimama had no authority to sign
any documents on behalf of his wife. Mr. Ifiesimama told them
that he was going to bring a power of attorney to the title
company later that afternoon, but he did not bring it, and
then Alemu and Haile learned that he did not have power of
attorney for his wife. Alemu stated that she and Haile were
unable to purchase the property because of the title
company's insistence that Mr. Ifiesimama did not have
authority to sell the property on behalf of his wife.
cross-examination, Alemu testified that the sales contract
had an original purchase price of $193, 000, and that she and
Haile signed the contract on May 29, 2013. Mr. Ifiesimama was
out of the country at the time, and he did not sign the
contract until several days later. Alemu did not know that
Mrs. Ifiesimama's name or a place for her signature was
ever on the sales contract. She did not agree with the
Ifiesimamas' counsel that Mrs. Ifiesimama's name was
once on the sales contract but had been removed from the copy
of the contract that the trial court admitted into evidence.
Alemu stated that her understanding was that both Ifiesimamas
were going to come to the closing, but when only Mr.
Ifiesimama appeared on the day of the closing, he said that
he had his wife's power of attorney. When he was unable
to present a power of attorney, the title company refused to
close the sale. Alemu also testified that they amended the
contract to change the purchase price from $193, 000 to $179,
000 after the property appraised at $179, 000 and their
lender required them to offer a lower price. She testified
that Mr. Ifiesimama accepted the amended purchase price,
stating, "[t]hat's why he came for the closing
trial court admitted a copy of the deed of trust signed by
Mr. Ifiesimama when he purchased the property in 2005. This
document included a page signed by Mrs. Ifiesimama that
stated, "By signing below, the undersign[ed] encumbers,
subordinates, conveys, and/or waives any and all rights,
interests or claims in the property, including, but not
limited to, homestead, dower, marital or joint-occupancy
rights." Every page of the deed of trust, including the
above page, was initialed by both of the Ifiesimamas. The
trial court also admitted copies of Fort Bend County
Appraisal District records for the property that listed only
Mr. Ifiesimama as the owner of the property. These records
showed that Mr. Ifiesimama owned 100% of the property.
Neither party introduced a copy of the deed the Ifiesimamas
received when the property was purchased in 2005.
Ifiesimama agreed that he failed to close on the sales
contract, and when asked by Haile and Alemu's counsel why
that was, he stated that he told Tadesse, the parties'
agent, that his wife did not agree to sell the house, but
Tadesse promised him that that was not a problem and that he
could come to the closing and close the sale by himself. Mr.
Ifiesimama stated that his wife decided that she did not want
to sell the house after the appraiser valued the property at
$179, 000 and Haile and Alemu lowered their offer. He
testified that he did not tell anyone that he had a power of
attorney for his wife and that he did not have her power of
attorney. He acknowledged that he signed documents at closing
in his own name and as attorney in fact for his wife,
although he testified that Tadesse told him to sign for his
wife. Mr. Ifiesimama testified that Tadesse pushed him to go
through with the sale so Tadesse could collect his
commission. He also testified that his wife's name had
been removed from the contract that was entered into
and Alemu's counsel, Derek Deyon, testified concerning
attorney's fees. Deyon stated that the sales contract
allowed for the recovery of attorney's fees in case of a
breach. He also testified that he charged $250 per hour and
that he had worked sixty-five hours on the case, for a total
of $16, 250. He did not introduce any billing records.
cross-examination, Deyon acknowledged that Haile and Alemu
were not suing Mrs. Ifiesimama for monetary damages, only Mr.
Ifiesimama. He testified:
[The attorney's fees are] for prosecuting only against
Mr. Ifiesimama. Mrs. Ifiesimama is just specific performance
which is an equitable remedy. We couldn't get monetary
damages, and it's also defending against the sanctions
that you filed against my clients for filing-you said it was
a frivolous lawsuit and slander of title. You guys have
counterclaims. I have to defend against both clients. So
it's defense against both but prosecution against one.
estimated that approximately seventy-five percent of the
attorney's fees related to prosecuting Haile and
Alemu's affirmative claims and twenty-five percent
related to defending against the Ifiesimamas' claims.
Deyon testified that he was seeking $16, 250 in
attorney's fees, that he had already been paid $7, 500,
that seventy-five percent of the fees related to
plaintiffs' work, that twenty-five percent related to
defense work, and that he was not seeking the percentage of
fees relating to defending against the claim brought by Mrs.
Ifiesimamas called Adnew "Eddie" Tadesse as a
witness. He testified that he was supposed to receive
approximately $10, 000 as a commission if the sale closed. He
agreed that Mr. Ifiesimama did not sign the sales contract on
his wife's behalf and that he did not receive a power of
attorney from Mrs. Ifiesimama during the course of this
transaction. He testified that he did not alter the sales
contract to remove Mrs. Ifiesimama's name. He also agreed
that he told Haile and Alemu that Mr. Ifiesimama would close
the transaction without his wife "because of the power
of attorney." Tadesse testified that when he had worked
on real estate transactions with the Ifiesimamas in the past,
Mrs. Ifiesimama had signed a power of attorney, but she did
not in this instance.
close of the parties' cases-in-chief, the trial court
found in favor of Haile and Alemu and ruled that there was a
breach of contract. The trial reconvened the next day for the
court to hear evidence of damages. Before testimony began,
the Ifiesimamas' counsel had the following exchange with
the trial court:
[Counsel]: I don't know if you could clarify your
You said there was a contract and the contract was ...