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McCurry v. Farmer

Court of Appeals of Texas, Sixth District, Texarkana

December 1, 2017

MARY MCCURRY, Appellant
v.
DONALD FARMER AND SHERRY FARMER, Appellees

          Submitted: November 27, 2017

         On Appeal from the 62nd District Court Lamar County, Texas Trial Court No. 83071.

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Ralph K. Burgess Justice

         Donald (Don) Farmer and Terry McCurry, who were best friends for many years, married sisters, Sherry and Mary. In 1995, the couples purchased an approximately eighty-acre tract of land, the title of which was placed in the names of Terry and Mary. Within three months, a forty-acre tract (the 40-Acre Tract) was sold to a third party for sufficient funds to fully pay the mortgage on the eighty-acre tract.

         Several years after Terry's death, Mary claimed sole ownership of the remaining 40-Acre Tract. Don and Sherry filed a declaratory judgment action alleging an oral agreement between the couples that the 40-Acre Tract would be co-owned by the couples and asking the trial court to determine that the property was owned one-half by Mary and one-half by Don and Sherry. They also asked the trial court to impose a constructive trust on the property. After a bench trial, the trial court granted the relief requested by Don and Sherry.

         On appeal, Mary contends that the trial court erred (1) by implicitly finding that the statute of frauds did not bar the enforcement of the oral agreement, (2) by implicitly finding that a partnership existed and that the 40-Acre Tract was partnership property, and (3) by overruling her hearsay objections to the statements made by Terry during his lifetime. We affirm the trial court's judgment because we find (1) that Mary has waived any complaint regarding the statute of frauds, (2) that sufficient evidence supports the trial court's judgment, and (3) that the trial court did not err in overruling Mary's objections.

         I. Mary's Statute of Frauds Complaint Was Waived

         In her first issue, Mary complains that the trial court erred by implicitly finding that the statute of frauds did not bar the enforcement of the oral agreement regarding the ownership of the 40-Acre Tract. She argues that a contract for the sale of real estate is required to be in writing and signed by the person charged with the agreement, citing Section 26.01, subsections (a) and (b), of the Texas Business and Commerce Code. Tex. Bus. & Com. Code Ann. § 26.01(a), (b)(4) (West 2015). Nevertheless, the statute of frauds is an affirmative defense that must be specifically pled, or it is waived. First Nat'l Bank in Dallas v. Zimmerman, 442 S.W.2d 674, 676 (Tex. 1969); see Kinnear v. Tex. Comm'n on Human Rights ex rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000) (per curiam); see also Tex. R. Civ. P. 94. Since Mary did not assert the statute of frauds in her pleadings in the trial court, any complaint regarding it has been waived. See Kanan v. Plantation Homeowner's Ass'n Inc., 407 S.W.3d 320, 333 (Tex. App.-Corpus Christi 2013, no pet.) (citing Tex.R.App.P. 33.1). We overrule Mary's first issue.

         II. Sufficient Evidence Supports the Trial Court's Judgment

         In her second issue, Mary contends that the trial court erred in making implied findings that the McCurrys and the Farmers were in a partnership and that the 40-Acre Tract was partnership property. Mary argues that there is no evidence that the property was acquired with partnership assets and that, since it was acquired only in the names of Terry and Mary with no indication that they were acquiring it for the partnership, the 40-Acre Tract is presumed to be the property of Terry and Mary. See Tex. Bus. Org. Code Ann. § 152.102(c) (West 2012).

         In this case, no party requested, and the trial court did not enter, findings of fact and conclusions of law. "When neither party requests findings of fact and conclusions of law, it is implied that the trial court made all fact-findings necessary to support its judgment." Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003) (citing BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)). In determining whether there was some evidence to support the trial court's judgment and implied fact-findings, we "consider only that evidence most favorable to the issue and . . . disregard entirely that which is opposed to it or contradictory in its nature." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) (quoting Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 613 (Tex. 1950)); Lack's Stores, Inc. v. Gregg Cty. Appraisal Dist., No. 06-10-00125-CV, 2011 WL 3963013, at *5 (Tex. App.-Texarkana Sept. 9, 2011, no pet.) (mem. op.). We will affirm the judgment if it can be upheld on any legal theory supported by the evidence. Worford, 801 S.W.2d at 109; Lack's Stores, Inc., 2011 WL 3963013, at *5.

         The evidence at trial showed that Don and Terry had been best friends for many years and that they had married sisters, Sherry and Mary. The couples bought parcels of land and built their homes next to each other. Over the years, the two couples jointly purchased and shared a Winnebago motor home, a school bus that they converted into a camper, a boat, and a tractor. Don testified that they never evidenced their co-ownership in writing because "when you got a friend, . . . it's supposed to be for life, and you got to trust them." He further indicated that there had never been a problem. Don also testified that, in 1995, Terry found out that an approximately eighty-acre tract next to their land was for sale and that Terry asked him if he wanted to go in on the purchase of it, which Don agreed to do. That night, Don and Terry negotiated the purchase of the tract from the seller for $31, 500.00, and Don gave Terry $7, 000.00 to $8, 000.00 in cash for the down payment.

         The deed to the property showed Terry and Mary as the grantees, and they secured a loan for the balance of the purchase price. Within three months, they sold forty acres of the eighty-acre tract to Deward Garrett for sufficient consideration to pay the balance of the loan. Thereafter, the couples used the land for four-wheeler riding and a garden. Don testified that he and Terry paid two people $1, 500.00 and $850.00 for clearing part of the land. He also testified that, for most of the time they owned the property, Terry and Mary paid the real estate taxes, and Don and Sherry paid for a dumpster that they shared, so that the cost to ...


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