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Ifiesimama v. Haile

Court of Appeals of Texas, First District

March 30, 2017


         On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 13-DCV-209467

          Panel consists of Justices Keyes, Higley, and Lloyd.


          Evelyn V. Keyes Justice

         After 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.

         In 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.

         We modify the judgment of the trial court and affirm as modified.


         In 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.

         On May 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."

         The 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 property.

         On July 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 this document.

         Haile, 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.

         In 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.

         The 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."

         Haile 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."

         On the 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.

         At 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, [1] 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 property.

          Alemu 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.

         On 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 day."

         The 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.

         Mr. 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 evidence.

         Haile 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.

         On 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.

         Deyon 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. Ifiesimama.

         The 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.

         At the 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 judgment.
You said there was a contract and the contract was ...

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