Court of Appeals of Texas, Sixth District, Texarkana
Submitted: November 27, 2017
Appeal from the 62nd District Court Lamar County, Texas Trial
Court No. 83071.
Morriss, C.J., Moseley and Burgess, JJ.
K. Burgess Justice
(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.
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.
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.
Mary's Statute of Frauds Complaint Was Waived
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.
Sufficient Evidence Supports the Trial Court's
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).
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.
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.
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 ...