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Ponce v. Diaz

Court of Appeals of Texas, Second District, Fort Worth

July 13, 2017

MIGUEL PONCE AND CHRYSTAL PONCE APPELLANTS
v.
JAMES DIAZ JR. AND MARY DIAZ APPELLEES

         FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY TRIAL COURT NO. 2014-001825-2

          PANEL WALKER, MEIER, and SUDDERTH, JJ.

          MEMORANDUM OPINION [1]

          BONNIE SUDDERTH JUSTICE.

         I. Introduction

         In one legal sufficiency issue and five factual sufficiency issues, Appellants Miguel Ponce and Chrystal Ponce appeal the trial court's judgment for Appellees James Diaz Jr. and Mary Diaz. We affirm.

         II. Factual and Procedural Background

         A. Undisputed Facts

         At trial, the parties agreed to these facts:

         Miguel is a roofer. James and Mary, his wife of over forty years, had a leaky roof over the porch of their residence on Wilson Road. When James and Mary spotted some leftover roofing material in the back of Miguel's truck, which was parked at his house, they stopped to ask him about purchasing the materials. Miguel was not home at the time, but his wife Chrystal took down James's name and phone number and handed Miguel's business card to James.

         At some point, Miguel went to the Diazes' home and examined their roof. He reported that the roof needed a lot of work, and he offered to repair it. James told him that he could not afford to repair the whole roof because he owned another house (hereinafter, "the McCart house")[2] that he was trying to sell, but if he could sell the McCart house, then he would probably call Miguel for the roofing job on their Wilson Road home.

         Thereafter, James and Miguel went to the McCart house and looked at it, inside and outside. By everyone's account, the house was in bad condition at that point. After seeing the McCart house, Miguel offered to buy it, and on November 15, 2012, all four parties met at the Ponces' house to discuss the terms of the sale. During that meeting, Chrystal wrote out an agreement, which all of the parties signed.

         In it, the parties agreed that Miguel would purchase the McCart house for $30, 000, which would be paid "in two years from the current date of November 15, 2012, " and that Miguel would receive a $10, 500 credit against the purchase price for "doing the roof and siding" on the Wilson Road home. The agreement also provided that James would receive an unspecified amount "at the closing of the property" and that James would get "the remainder of his property" within two years:

         (Image Omitted)

         Because James did not read well, Mary read the agreement to him after they returned home that evening.

         Additionally, James told Miguel that he would give him the key to the McCart house once he removed his personal property from inside of it. In December 2012, after James removed his personal property from inside the McCart house and after Miguel gave the Diazes $3, 000, James handed over the key to the McCart house to Miguel.

         Subsequent notes written and typed on the face of the parties' written agreement, indicated the following payments were made by Miguel during the first year:

• On November 27, 2012, Miguel paid $2, 000, leaving an outstanding cash balance due of $17, 500.

• On December 13, 2012, Miguel paid $3, 000, leaving an outstanding cash balance due of $14, 500.

• On June 27, 2013, Miguel paid $1, 000, leaving an outstanding cash balance due of $12, 500.

• On October 29, 2013, Miguel paid $1, 000, leaving an outstanding cash balance due of $11, 500.
• On November 15, 2013, Miguel paid $1, 000, leaving an outstanding cash balance due of $10, 500.

And a notation near the entry reflecting Miguel's November 15, 2013 payment recited that the total amount of cash that the Diazes had received to date was $9, 000.

         In August 2013, Miguel entered into an agreement to lease the McCart house to Benny Lara, and he began collecting rent of $650 per month from Lara in September. A copy of this lease agreement was admitted into evidence.

         Miguel paid all of the property taxes on the McCart house for 2013. For 2014, Miguel paid half of the property taxes and James paid half, although the record is unclear as to whether this was by agreement, design, or happenstance.

         The parties agreed that a breach occurred in February 2014, but they disagreed as to which of them committed a breach and in what order. The parties do not dispute that Miguel never put the roof on the Diazes' house and that although Miguel installed some siding on the Diazes' house during the first year of the agreement, he failed to paint it, as he had agreed to do. Nor do the parties dispute that the Diazes did not receive the full $30, 000 by November 15, 2014, and that the Ponces still owed money on the house on that date. The precise meaning of the contract and many other events that transpired after its execution were contested at trial.

         B. Disputed Testimony

         1. Miguel's Testimony

         Miguel testified that his understanding of the agreement was that he was buying the McCart house for $30, 000, that he was going to put $10, 500 of work into the Wilson Road house, and that he was going to pay the balance "on the closing in two years." While he admitted that he did not pay the outstanding balance by November 15, 2014, two years later, he explained that he did not do so because litigation had already commenced by then. And while Miguel did not characterize the interim payments he made to James as down payment installments, he did confirm that he made periodic payments to James totaling $9, 000 over a period of time subsequent to the signing of the agreement.

         With regard to the siding work Miguel had agreed to install, Miguel's testimony was inconsistent as to when he began that work, although he conceded he never finished it. First, he testified that he began in the summer of 2013, that he paid five workers to do the work, that they finished the work in five days, and that James supervised the work. Miguel said that the siding he used was new but because it was leftover material from other jobs, the siding was "all different colors, " and he had planned to paint it. Later, he testified that he did not recall when he began the work, other than he knew that it was not in the winter and that-except for painting-he had finished the work. In subsequent testimony, he said that the reason he did not paint the siding was because he had to wait until the summer to paint it, but by that time James had said the contract was no good and would not let him.

         Miguel also admitted that one or two pieces of siding were damaged and needed replacement and that he needed to trim a piece or two that had shifted out of place. Again, he testified that he needed to wait until summer to make the adjustments "because it was in February when that happened, and [he] couldn't cut it because the vinyl would break because it was below 32." At trial, Miguel valued the siding he installed at $3, 000 and estimated that the paint job would have cost him another $800.

         With regard to the roof repairs on the Diazes' home, Miguel testified that they had originally agreed to install regular shingles for the roof. That agreement changed when Miguel told James that he could get tin roofing for almost the same price, even though a tin roof is typically much more expensive. James told Miguel that he would prefer a metal roof, so Miguel agreed to install a metal roof instead "because [he] thought [they] were doing good on the business deal." The tin shingles Miguel planned to use were materials left from another, bigger job; they were scratched and in assorted colors but were otherwise new, and, as with the siding, "all [they had] to do [was] just paint them." But Miguel admitted that he never put the roof on James's house, again because James told him the contract was no good and would not allow Miguel to do the work. Miguel estimated that the labor for the roofing installation would have cost around $800.

         According to Miguel, he was in the process of leaving the roofing materials at James's house in February 2014 when James told him that he wanted more money. Miguel replied that he could not give James any more money because they needed to reserve some money for the closing. Miguel testified that he then offered to James, "[L]et me finish the roof and paint the house, and then we'll discuss that." When James insisted that he needed the money, Miguel said that he proposed going to closing right then. Miguel claimed that it would have taken $10, 000 to close and that he had $10, 000 ready.

         When asked why he did not pay James at least a part of the $10, 000 he claimed to have had on hand, Miguel testified: "I didn't want to give him the money. I said, let's go close, because I've already given you too much money. I said, let's go to close. He says, no, I want you to finish the project here first. I said, okay."

         When James pressed him about finishing the work, Miguel said that he told James,

I said, the siding needs to be painted in the summertime. That's when I want to do the roof, I said, first, and then we'll come back and paint the siding. And there were, like, one or two pieces that were out of place. Siding, during the wintertime and the summertime, it moves, so I just needed to cut it a little bit, like a length, in order - - it's, like, two pieces that I saw that were damaged that I needed to cut. So I said I couldn't cut it, because it was in February when that happened, and I couldn't cut it because the vinyl would break because it was below 32. I said, in the summertime, I'll come and fix that. Meanwhile, I said, I got all the material here for the roof. I just need to do the roof first, and then we'll do all the painting later, so that's when he said that the contract is no good.

Miguel said that James reiterated his insistence that the contract was no good in a later phone conversation when Miguel requested that they go to closing. Miguel also claimed that he twice offered to pay James all of the money before the November 2014 deadline if James would give him the deed and that he even offered James more money to close because he had not completed the agreed-upon work.

         With regard to the McCart house, Miguel said that his original plan had been to demolish the McCart house, but after receiving the key from James in December 2012 he saw that it could be remodeled, so he decided to convert it into a rent house instead. He testified that he had replaced the wiring and sheetrock and reinstalled the plumbing because the copper pipes had been stolen. According to Miguel, he hired four workers to clean up the McCart house, taking "at least four trailers of trash to the dump." Miguel's workers lived in the house for a month or two while painting and cleaning it. Miguel estimated that he put approximately $10, 000 worth of materials and labor into the McCart house.

         Miguel testified that at one point, the wind had caused a tree to fall on the shed, that he had notified James and Mary, and after they came over and took everything they wanted, he then cut up the shed and cleaned up the debris. According to Miguel, at the time he demolished the shed, none of James's personal property remained inside. Yet in March 2014, Miguel filed a small claims action and a sworn complaint for eviction seeking an order to compel James to remove his property from the garage of the McCart house.[3] ...


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