Pickett v. Keene , 47 S.W.3d 67 ( 2001 )

47 S.W.3d 67 (2001)

Vera D. PICKETT, Individually, as the Independent Executrix of the Estate of Sevil Lafette Pickett, and as Co-Trustee of the Sevil Lafette Pickett Residuary Trust, Albert McWatters, Co-Trustee of the Sevil Lafette Pickett Residuary Trust, and the Sevil Lafette Pickett Residuary Trust, Appellants,
v.
Ralph Gerald KEENE, Appellee.

No. 13-99-220-CV.

Court of Appeals of Texas, Corpus Christi.

April 12, 2001. Rehearing Overruled June 28, 2001.

Thomas F. Nye, Linda C. Breck, Brin & Brin, Corpus Christi, for Appellants.

James V. Sylvester, Ford, Fritz, Byrne & Head, Austin, C.M. Henkel, III, Fritz, Byrne & Head, Corpus Chrisit, for Appellee.

Before Justices HINOJOSA, RODRIGUEZ, and CHAVEZ.^[1]

OPINION

Opinion by Justice HINOJOSA.

A jury found that appellee, Ralph Gerald Keene, owned an undivided one-half interest in the Spanish Village Cottages Motel (the "motel") in Port Aransas and awarded him attorney's fees. Appellants, Vera D. Pickett, individually, as the independent executrix of the estate of Sevil Lafette Pickett, and as co-trustee of the Sevil Lafette Pickett Residuary Trust, Albert McWatters, co-trustee of the Sevil Lafette Pickett Residuary Trust, and the Sevil Lafette Pickett Residuary Trust, contend the trial court erred: (1) in failing to disregard the jury's finding that Sevil and Vera Pickett orally agreed to convey a one-half interest in the motel to appellee because his claims are barred by the statute of frauds; (2) in failing to disregard the jury's finding that an exception existed that took the agreement out of the statute of frauds because the evidence is legally and factually insufficient to support the finding; (3) in failing to submit appellants' defense of limitations to the jury because appellee's claim is barred by limitations; (4) in awarding attorney's fees; and (5) in awarding appellee an undivided one-half interest in a laundromat located on motel property. We modify the judgment and, as modified, affirm.

A. BACKGROUND

Because appellants assert the evidence is factually and legally insufficient to support the jury's finding that an exception to the statute of frauds exists, we will examine the evidence in detail. It is undisputed that property records list the Picketts as the owners of the motel since 1966, and that the Picketts paid all taxes due on the property and maintained insurance on the property at all relevant times. The following are summaries of the testimony presented at trial.

1. Testimony of Ralph Gerald Keene

Appellee testified that in February 1966, he was a twelve-year veteran of the National Guard, and that he was stationed in San Antonio. He was married to Janet Pickett Keene, daughter of Sevil and Vera Pickett. His salary was about $8500 per year, plus benefits that included medical and life insurance, 30 days of paid vacation and 30 days of paid sick leave per year, uniforms and commissary privileges. Janet earned approximately $3500 per year, working part-time for a physician. They owned their own home and made mortgage payments of about $80 per month. Mr. Pickett was a high school coach and Mrs. Pickett was a teacher in Marlow, Oklahoma.

According to appellee, in February 1966, he and Janet entered into an oral agreement with the Picketts. The four were to be joint owners of the Spanish Village Cottages Motel, which was for sale for $120,000. The Keenes were to contribute what they could toward the $20,000 down payment. Appellee borrowed against his own life insurance policy and a life insurance policy he held on his mother. He raised almost $2,000 and sent the money to the Picketts at their home in Marlow, Oklahoma via registered mail.^[2] The Picketts borrowed money for the rest of the down payment. The Keenes and Picketts further agreed that the deed would be in the Picketts' name. They also agreed that the Keenes would quit their jobs in San Antonio, sell their home, move into the manager's unit at the motel, and run the motel for a salary of $400 per month with no benefits, except one week of vacation per year. They also agreed that when the loans taken out to procure the down payment had been paid off, the Picketts would deed a one-third interest in the motel to the Keenes. When the loan for the remaining $100,000 of the purchase price was paid off from motel profits, the Picketts would deed the Keenes a one-half interest in the motel, and when the Picketts decided they no longer wanted to be involved with the motel, they would either deed the rest of their interest to the Keenes or devise their interest in the motel to the Keenes in their wills.

When the down payment loans were paid off in 1971, the Keenes and Picketts agreed to wait until the mortgage was paid off before preparing a deed showing the Keenes' ownership interest. When the mortgage was paid off in 1985, Sevil Pickett told the Keenes that if the official transfer was made at that time, it would cost approximately $70,000 in taxes. The Keenes then decided to wait and receive all of the motel by either devise or deed, as agreed in 1966. A laundry was later built on part of the property. Appellee managed both the motel and the laundry.

The Keenes made almost $5,000 in profit from the 1966 sale of their San Antonio home. They used part of this money to improve the manager's quarters at the motel. They remodeled extensively, and added a bedroom, a bathroom, a dressing room, a carport, a patio and two privacy fences. The Keenes also maintained insurance on their private quarters. After Hurricane Celia badly damaged the motel, the Picketts obtained a disaster-relief loan. Although appellee was listed as the contractor for the repairs, he was not paid for his work. In the 1980's, the Picketts informed the Keenes that the H.E.B. grocery store chain wanted to buy the property for one million dollars, which the Picketts said they would split with the Keenes. After discussing the offer, the Picketts and Keenes decided to reject the offer.

Mr. Pickett's physical and mental health began to fail. In February, 1994, while appellee was on an overnight trip to Laredo, Norma Coyle,^[3] got into a "mishap" with employees and customers of the laundry. Coyle "accused a winter [resident] of using one of her machines so she proceeded to take all the soapy clothes out and throw them at the employees as well as the customers in the laundromat." Norma then fired all the employees and had the laundry's utilities cut off. She told appellee that if he "did not go along with her side of the story, that she would shut the whole place down, the cottages as well." Mrs. Pickett told appellee that only the gas to the laundry should be shut off so that repairs to the gas line could be made. Mrs. Pickett also told him that if the motel utilities were cut off, that he should use motel proceeds to have them turned back on. However, the utilities were never turned back on because once the electricity was cut off, the entire motel had to be brought up to the current code.

The next day, Coyle delivered a handwritten, notarized letter from Mrs. Pickett to appellee, dated February 28, 1994, which stated:

Mr. Ralph G. Keene

We are unable to carry on our businesses-Spanish Village Motel at 134 N. Alister, Country Clean Washateria @ 210 N. Alister, because of our illnesses.

We have appointed Norma D. Coyle to represent us.

We shall no longer need a manager.

Please relinquish our keys, re[c]ords, money, and other possessions belonging to us as owners.

As soon as we receive these, we shall pay you your March, 1994 salary and ask that you vacate the premises by March 31, 1994.

The letter was signed by Vera D. Pickett, "for Sevil L. Pickett, Owners." When appellee asked Mrs. Pickett about the letter, she said that the only part of the business that she had shut down was the laundry because it needed gas line repairs. She told appellee that the laundry would reopen when the repairs were complete.

Appellee did not vacate the premises, and still lives at the motel. He later learned that he had been taken out of the Picketts' wills, and that he would no longer receive the motel under their wills.

2. Testimony of Mary Ann Pickett

Mary Ann Pickett testified that she is Janet Keene and Norma Coyle's sister. In 1966, she lived with the Keenes in San Antonio while she attended Trinity University. Mary Ann was present when the Picketts and the Keenes agreed to purchase the motel. Mr. Pickett insisted that Mary Ann listen to the agreement "because it was going to be a family business and [Mary Ann] was part of the family." The Keenes were to pay part of the down payment and manage the property in return for part ownership. The Keenes would be deeded a one-third interest in the property when the loans for the down payment were paid off, and a one-half interest when the mortgage was paid off. Mr. Pickett "was in favor of that because he thought ownership made you work harder." Mary Ann does not remember any discussion at that time as to what would happen to the other half of the property when the Picketts died or stopped working. She does remember seeing a cashier's check for a large amount of money in the Keene's home in 1966. Janet told her it was for part of the down payment on the motel property.

The Picketts told Mary Ann about the one million dollar offer for the property. They told her that if they sold the property, the proceeds would be split between the Picketts and the Keenes. Mary Ann used to work for a certified public account ("CPA"). The CPA did some research and found that $70,000 in taxes would have to be paid if the Picketts deeded one-half of the property to the Keenes. However, the taxes could be avoided if the property was left to the Keenes in the Picketts' wills. Mary Ann "believe[d] at that time it was decided that [the Picketts] would convey it in the will."

There were ongoing discussions about the ownership of the property. Once, Mary Ann overheard one of the Keenes ask Mr. Pickett

for something in writing ... [a]bout the Spanish Village, to protect them, and he sort of got upset and he said, "You know, my word is good. You know, my word is good. I told you I would do this and I will do it."

The Picketts never complained about appellee, and their relationship with him "seemed like a very positive one." Appellee helped the Picketts when they needed to go to the doctor or pick up medicine. When Mr. Picket became ill, he would get disoriented and demand to be taken home when he was already at home. Mrs. Pickett would call appellee, who would come over and take Mr. Pickett for a short drive, then return him home. Mr. Pickett would be fine after that.

The Keenes divorced in 1992, but this had no effect on the agreement regarding the property. The Keenes were still to receive a one-half interest. During Christmas, 1993, Mrs. Pickett told Mary Ann that she was leaving the motel to the Keenes, the laundry to Norma and Mary Ann, and "that each one of us was getting a house." Mrs. Pickett also said that "at that time she was ready to go ahead and deed the motel over to them and just let [the Keenes] sort of fight it out."

In 1994, several family members called Mary Ann and told her that Norma had shut down the laundry and motel. They asked her if she could go to Port Aransas to find out what was happening. When Mary Ann arrived, Mrs. Pickett told her that the laundry was closed for several weeks while Mr. Pickett was in the hospital, that no one had been fired, and that she was going to reopen the laundry. Then Norma intervened and began yelling. The elder Picketts got very upset and agitated.

As far as Mary Ann ever heard, the Picketts considered appellee to be a part owner of the property, not just an employee. Her mother recently told her that if her testimony in this case could be interpreted as contesting her father's will, Mary Ann would be disinherited. Norma prevented Mary Ann from seeing her father, Mr. Pickett, after the lawsuit was filed. Mr. Pickett died in 1995.

3. Testimony of Vera Pickett

Vera Pickett testified that the Keenes did not pay any portion of the down payment, and that appellee was just a motel employee. Mrs. Pickett and her husband never considered the Keenes to be part owners of the motel, and they always intended to leave their property equally to their three daughters, not to appellee. Mrs. Pickett denied that H.E.B. had ever made an offer for the property, and said that if it had, she and Mr. Pickett planned to split the proceeds between their three daughters.

4. Documentary Evidence

Seven different wills of Sevil and Vera Pickett were introduced into evidence. The Picketts' 1990 and 1992 wills provide that the property would be left to the Keenes. However, the March 1994 wills and Vera's 1996 will do not contain this devise.

B. STANDARD OF REVIEW

When we review the legal sufficiency of the evidence, we must consider all of the record evidence in a light most favorable to the party in whose favor the verdict has been rendered, and indulge in that party's favor every reasonable inference deducible from the evidence. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex.App.-Corpus Christi 2000, no pet.). A legal sufficiency point must and may only be sustained when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence established conclusively the opposite of the vital fact. Juliette Fowler Homes, Inc. v. Welch Assoc., 793 S.W.2d 660, 666 n. 9 (Tex.1990). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Formosa Plastics, 960 S.W.2d at 48; Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). The test for the application of this no evidence/scintilla rule is: if reasonable minds cannot differ from the conclusion, then the evidence offered to support the existence of a vital fact lacks probative force, and it will be held to be the legal equivalent of no evidence. Id.

When we review the factual sufficiency of the evidence, we consider, weigh and examine all of the evidence which supports or undermines the finding of the trier of fact. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We review the evidence, keeping in mind that it is the fact finder's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Corpus Christi Teachers Credit Union v. Hernandez, 814 S.W.2d 195, 197 (Tex.App.-San Antonio 1991, no writ). We then overturn findings only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).

C. THE STATUTE OF FRAUDS

In their first issue, appellants contend the trial court erred "in failing to disregard the jury's answer to Question No. 1 because an oral agreement to transfer land by will or devise cannot support the judgment in this case, and without a written agreement, recovery is barred by the Statute of Frauds." Appellants specifically assert that the agreement to pass the property by devise occurred in 1985, when the property was paid off, not in 1966, and is thus governed by section 59A(a) of the probate code, which states:

A contract to make a will or devise, or not to revoke a will or devise, if executed or entered into after September 1, 1979, can be established only by provisions of a will stating that a contract does exist and stating the material provisions of the contract.

TEX.PROB.CODE ANN. § 59A(a) (Vernon 1980).

This suit was filed in 1994, shortly after the Picketts informed appellee that they were no longer able to operate the motel and laundry. Mr. Pickett died in 1995, leaving a March 1994 will that devised his interest in the property to a residuary trust, the income of which benefits Mrs. Pickett for her life, and upon her death is to be distributed equally among his three daughters.

Question No. 1 asked the jury:

Do you find that Sevil and Vera Pickett orally agreed to convey one-half of the Spanish Village Cottages located at North Alister St., Port Aransas, Texas to Gerald Keene?

The jury answered "Yes."

According to appellee, the parties agreed in 1966 that the Picketts would give the entire property to the Keenes either: (1) by deed when they no longer wanted to be involved in the motel business, or (2) by devise. Because the jury found the Picketts had agreed to convey one-half of the property to appellee, it is clear the jury determined the Picketts did not intend to leave the property to the Keenes by devise.

Because Mrs. Pickett is still alive, only Mr. Pickett's one-half interest in the property could have passed by devise. Thus, if the jury believed that the Picketts had intended to leave the property to the Keenes by devise, it would have found that appellee was entitled only to a one-fourth interest in the property.^[4] Because the jury found that appellee was entitled to a one-half interest in the property, it must have determined that the Picketts intended to convey the property to Gerald and Janet Keene when they no longer wanted to be involved in the motel business.

Accordingly, we hold that section 59A(a) of the probate code does not apply and that the evidence is sufficient to support the jury's finding. Appellants' first issue is overruled.

In their second issue, appellants contend the trial court erred in:

failing to disregard the jury's answers to Questions 2, 3 and 4, because there was no evidence to support their submission. Appellee failed, as a matter of law, to establish the exceptions required to relieve him of the requirements of the Statute of Frauds. Alternatively, there was factually insufficient evidence to support the jury's answers to Questions 2, 3 and 4.

The jury was asked and answered the following questions:

Question No. 2: Did Gerald Keene take possession in 1966 as a part owner of the Spanish Village Cottages as a result of the agreement, if any, referred to in Question No. 1?

Answer: Yes

Question No. 3: Did Gerald Keene pay part of the consideration for the purchase of the Spanish Village Cottages?

Answer: Yes

Question No. 4: Did Gerald Keene provide permanent and valuable improvements to the Spanish Village Cottages out of his own funds or funds from which he had a partial entitlement?

Answer: Yes

Generally, a contract for the sale of real estate must be in writing and signed by the party charged with the promise. TEX.BUS. & COMM.CODE ANN. § 26.01 (Vernon 1987). However, an exception exists when the purchaser of real estate under an oral contract: (1) pays consideration, (2) takes possession of the property, and (3) makes permanent and valuable improvements on the property with the consent of the seller, or, without such improvements, other facts are shown that would make the transaction a fraud on the purchaser if the oral contract was not enforced. Boyert v. Tauber, 834 S.W.2d 60, 63 (Tex.1992); Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (Tex. 1921). These steps are seen as sufficient evidence of the agreement because they provide affirmative corroboration of the agreement by both parties to the agreement. Boyert, 834 S.W.2d at 63; Francis v. Thomas, 129 Tex. 579, 106 S.W.2d 257, 260 (Tex.1937); Hooks, 229 S.W. at 1117.

We conclude the evidence in the record is sufficient to satisfy the first and third requirements. Appellee testified that he and his wife paid a portion of the down payment on the motel. Mary Ann Pickett also remembered seeing the cashier's check that the Keene's gave the Picketts for the down payment. Appellee also testified that he made valuable and permanent improvements to the property, financed by the profit he made from the sale of his San Antonio home.

As to the second requirement of possession, appellee testified he moved into private quarters at the motel in 1966, and lived there and ran the motel for over twenty-two years at a low salary, with no health insurance, retirement plan, or other benefits. He also maintained insurance on his private quarters and performed major repair work on the motel after a hurricane, without recompense.

"[T]he possession required to relieve a parol transfer from the statute of frauds must evidence a ``right of control which pertains to the status of owner' or be ``possession which in itself attests the fact that such possession is intended as a delivery under the parol gift.'" Sharp v. Stacy, 535 S.W.2d 345, 350 (Tex.1976) (citing Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191, 194 (Tex.1951)). However, exclusive physical possession is not an absolute requirement in order to relieve a parol transfer of land from the statute of frauds; "[s]uch a requirement would create arbitrary results in difficult cases and frustrate the equitable rule of Hooks v. Bridgewater where ``nonenforcement of the contract—or the enforcement of the statute—would, itself, plainly amount to a fraud.'" Sharp, 535 S.W.2d at 350 (citing Hooks, 229 S.W. at 1116).

We conclude the evidence is sufficient to support the jury's finding of possession. Appellants' second issue is overruled.

D. STATUTE OF LIMITATIONS

In their third issue, appellants contend appellee's claim is barred by limitations, and, "[a]lternatively, appellants are entitled to a new trial because the trial court erred in failing to submit appellants' statute of limitations defense because it was pleaded and evidence was introduced to support its submission." Appellants assert the 1966 agreement was breached in 1971, when the down payment loans were repaid and the Picketts did not deed a one-third interest to the Keenes, and the applicable statute of limitations ran four years later.^[5]

Generally, a cause of action accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.1998); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990). However, the statute of limitations on a claim for breach of contract begins to run only when the injured party elects to treat the contract as terminated. F.D. Stella Prods. Co. v. Scott, 875 S.W.2d 462, 464-65 (Tex.App.-Austin 1994, no writ). In the instant case, the injury of which appellee complains, and for which he sought a judicial remedy, was the retirement from the motel business of the Picketts, as evidenced by their February 28, 1994 letter, without deeding him the one-half interest promised to him. Appellee has never complained of the first breach of the agreement. In fact, appellee testified the parties agreed in 1971 to modify the original agreement, thus waiving the requirement that the Picketts deed the Keenes a one-third interest upon repayment of the down payment loans. Similarly, in 1985 when the remaining loans were paid off, the parties agreed not to transfer title at that time. However, the Picketts clearly repudiated the original agreement by retiring from the motel business without deeding a one-half interest to appellee. Their letter of February 28, 1994, terminating appellee's employment and ordering him off the premises made clear their intent never to comply with the agreement. Appellee filed this suit a few weeks later, well within the statute of limitations. Appellants' third issue is overruled.

E. THE LAUNDROMAT

In their sixth issue, appellants claim the trial court awarded appellee an undivided one-half interest in the laundromat adjacent to the motel, as well as a one-half interest in the motel. The final judgment states:

It is therefore ORDERED, ADJUDGED AND DECREED that Plaintiff recover an undivided one-half interest in the Spanish Village Cottages located at North Alister Street, Port Aransas, Nueces County, Texas, legally described as follows:

The Spanish Village Addition to the Town of Port Aransas, Nueces County, Texas, being a Resubdivision of a portion of Survey No. 1 and all of Survey Nos. 2 and 3 in Block 74 of the State Land Surveys on Mustang Island.

The record reflects that appellee disclaimed any interest in the laundromat and presented no evidence concerning the ownership of the laundromat. The trial court did not submit any questions to the jury concerning the laundromat. In his brief, appellee admits he has no interest in the laundromat and claims the property description used in the judgment was taken from an appraisal report furnished by appellants which is not part of the record.

In a supplemental record, the parties stipulate that the legal description of the property on which the laundromat is located is:

That part of Lot One (1), Block Seventy Four (74), STATE LAND SURVEYS, MUSTANG ISLAND, not included in Spanish Village, SAVE AND EXCEPT that portion heretofore conveyed by E.W. Jamison, et al. to Nueces County, Texas, by deed dated April 16, 1957, recorded in Volume 773, Page 401, Deed Records of Nueces County, Texas.

The parties further stipulate that a more complete legal description of the property on which the motel is located is:

All of Spanish Village, an addition to the City of Port Aransas, Texas, consisting of Lots 1 A and One (1) through Eighteen (18), both inclusive, Block One (1) and Lots One (1) through Eight (8), both inclusive, Block Two (2), according to map or plat recorded in Volume 10, Page 56, Map Records of Nueces County, Texas.

We conclude the trial court's judgment should be modified to reflect that appellee has no interest in the property on which the laundromat is located. Appellants' sixth issue is sustained.

F. ATTORNEY'S FEES

In their fourth issue, appellants contend the trial court erred in awarding attorney's fees "because appellee's contract claim is invalid and unsuccessful."

We have overruled appellants' first, second, and third issues contesting the validity of the contract. Accordingly, we overrule appellants' fourth issue. See TEX.CIV PRAC. & REM.CODE ANN. § 38.001 (Vernon 1997) (attorney's fees are recoverable in suit for claim under an oral or written contract).

In their fifth issue, appellants contend the trial court erred by granting appellee an unconditional award of attorney's fees in the event of an appeal.

The trial court's judgment grants appellee $49,000.00 for attorney's fees incurred during trial. In addition, the trial court's judgment states:

"in the event of an appeal to the appropriate Court of Appeals an additional attorney's fee in the amount of $7,000.00; in the event the Court of Appeals upholds the verdict in the Plaintiff's favor and the Defendants apply for a Writ of Error to the Supreme Court of Texas an additional attorney's fee of $5,000.00; in the event the Writ of Error is granted by the Supreme Court of Texas an additional attorney's fee of $3,000.00 but with automatic remittitur in the event of no appeal or limited appeal...."

A trial court may not grant a party an unconditional award of appellate attorney's fees. Texas Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 400 (Tex.App.-Dallas 2000, pet. denied); Weynand v. Weynand, 990 S.W.2d 843, 847 (Tex.App.-Dallas 1999, pet. denied). To do so would penalize a party for pursuing a meritorious appeal. Cameron, 24 S.W.3d at 401; Weynand, 990 S.W.2d at 847. An appellee is not entitled to an award of appellate attorney's fees for that portion of fees attributable to an unsuccessful defense of the case. Goldman v. Alkek, 850 S.W.2d 568, 578 (Tex. App.-Corpus Christi 1993, no writ) (op. on mot. for reh'g); Southwestern Bell Tel. Co. v. Vollmer, 805 S.W.2d 825, 834 (Tex. App.-Corpus Christi 1991, writ denied), overruled on other grounds, Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668, 675 (Tex.1999).

1. Appeal to Court of Appeals

In this case, appellee has prevailed on all issues except one, which he conceded before the trial court and this Court—that he has no interest in the laundromat or the property on which the laundromat is located. Through no fault of appellee, the legal description in the trial court's judgment included the property on which the laundromat is located. We are modifying the trial court's judgment to correct this error, and affirming the judgment as modified.

An error in awarding unconditional attorney's fees is harmless if the appellant has been ultimately unsuccessful in its appeal. Cameron, 24 S.W.3d at 401; Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 226 (Tex.App.-Houston [14th Dist.] 1996, writ denied). Because appellants have been unsuccessful in their appeal to this Court, we conclude that any error in the trial court's award of attorney's fees in the event of an appeal to this Court is harmless. We, therefore, overrule that part of appellants' fifth issue relating to the unconditional award of attorney's fees in the amount of $7,000.00 in the event of an appeal to the court of appeals.

2. Appeal to Supreme Court

However, the trial court's award of attorney's fees to appellee of $5,000.00 if appellants file a "Writ of Error"^[6] with the supreme court, and an additional award of $3,000 if a "Writ of Error" is granted by the supreme court, "but with automatic remittitur in the event of no appeal or limited appeal," is not conditioned upon the success of an appeal to that court.

We conclude the trial court's judgment should be modified to reflect that appellee is entitled to such attorney's fees only if appellants' appeal is unsuccessful before the Supreme Court of Texas. See Cameron, 24 S.W.3d at 401. We, therefore, sustain that part of appellants' fifth issue relating to the unconditional award of attorney's fees in the event of an appeal to the Supreme Court of Texas.

G. MODIFICATION OF TRIAL COURT'S JUDGMENT

1. Laundromat Property

We modify the judgment of the trial court to reflect that Ralph Gerald Keene has no interest in the following described real property and the laundromat located on said property:

That part of Lot One (1), Block Seventy Four (74), STATE LAND SURVEYS, MUSTANG ISLAND, not included in Spanish Village, SAVE AND EXCEPT that portion heretofore conveyed by E.W. Jamison, et al. to Nueces County, Texas, by deed dated April 16, 1957, recorded in Volume 773, Page 401, Deed Records of Nueces County, Texas.

2. Motel Property

We modify the judgment of the trial court to reflect that Ralph Gerald Keene shall recover an undivided one-half interest in the Spanish Village Cottages located at North Alister Street, Port Aransas, Nueces County, Texas, more fully described as:

All of Spanish Village, an addition to the City of Port Aransas, Texas, consisting of Lots 1-A and One (1) through Eighteen (18), both inclusive, Block One (1) and Lots One (1) through Eight (8), both inclusive, Block Two (2), according to map or plat recorded in Volume 10, Page 56, Map Records of Nueces County, Texas.

3. Attorney's Fees—If Petition for Review is Denied

We modify the judgment of the trial court to reflect that in the event appellants file a petition for review with the Supreme Court of Texas, and the supreme court denies the petition, then Ralph Gerald Keene shall recover additional attorney's fees in the amount of $5,000.00.

4. Attorney's Fees—If Petition for Review is Granted

We modify the judgment of the trial court to reflect that in the event appellants file a petition for review with the Supreme Court of Texas and the court grants the petition, but the appeal is ultimately unsuccessful, then Ralph Gerald Keene shall recover additional attorney's fees in the amount of $8,000.00.^[7]

H. CONCLUSION

As modified, the trial court's judgment is affirmed.

NOTES

[1] Retired Justice Melchor Chavez, assigned to this Court by the Chief Justice of the Texas Supreme Court pursuant to TEX.GOV'T CODE ANN. § 74.003 (Vernon 1998).

[2] The envelope in which appellee mailed the certified check was entered into evidence. Appellee obtained it from his father-in-law. At one time, appellee had a receipt for the purchase of the cashier's check. Janet Keene gave the receipt to Mrs. Pickett, who said that it reflected the Keenes' "investment" in the motel.

[3] Norma Coyle is Janet Keene's sister, and also the Picketts' daughter.

[4] Janet Keene would be entitled to a one-fourth interest and Mrs. Pickett would have the remaining one-half interest.

[5] The statute of limitations for breach of contract is four years. TEX.CIV.PRAC. & REM.CODE ANN. § 16.004 (Vernon 1986).

[6] "The Supreme Court may review a court of appeals' final judgment on a petition for review addressed to the ``The Supreme Court of Texas'.... The petition for review procedure replaces the writ of error procedure." TEX. R.APP.P. 53.

[7] $5,000.00 + $3,000.00 = $8,000.00.