Frank Reyes v. Ruby Booth ( 2003 )

11th Court of Appeals

Eastland, Texas

            Opinion

Frank Reyes

Appellant

Vs.       No. 11-00-00391-CV B Appeal from Nolan County

Ruby Booth

Appellee

This case involves the breach of the covenant of seisin. In a nonjury case, the trial court rendered judgment in favor of Ruby Booth against Frank Reyes for $9,000 plus attorney=s fees. Reyes appeals.  We affirm in part and reverse and render in part.

In its findings of fact, the trial court found that Booth agreed to purchase the property located at 211 East New Mexico in Sweetwater from Reyes.  The consideration agreed to by the parties was the sum of $20,000.  Booth paid $9,000 in cash and conveyed a home located at 106 Patterson in Sweetwater to Reyes.  Reyes executed a general warranty deed purporting to convey all of Lot No. 12, Block No. 22.  Because of a scrivener=s error, the deed from Reyes should have described the property as Block 23 instead of Block 22.  The intent of the parties was that Reyes was to convey the property located at 211 East New Mexico to Booth.  Reyes only owned an undivided one-half interest in the property.  The other undivided one-half interest was held in a testamentary trust created by Michael Eugene Schulze.

Booth does not rely upon a breach of the expressed general warranty in the deed because there has been no actual or constructive eviction of Booth by paramount title.  See Schneider v. Lipscomb County Nat. Farm Loan Ass=n, 202 S.W.2d 832, 834 (Tex.1947).

In Childress v. Siler, 272 S.W.2d 417, 420, (Tex.Civ.App. - Waco 1954, writ ref=d n.r.e.), the court held that the covenant of seisin, in the absence of any qualifying expression, is read into  every conveyance of land or an interest in land, except in quitclaim deeds.  The covenant of seisin  operates in the present and is breached by the grantor at the time the instrument is made if he does not own the estate he undertakes to convey.

Reyes argues that the trial court erred in awarding more than nominal damages for breach of the covenant of seisin, since only nominal damages are recoverable when the grantee retains possession of the property. The court in Sun Exploration and Production Company v. Benton, 728 S.W.2d 35, 37 (Tex.1987), held that the proper measure of damages for breach of the covenant of seisin is the consideration paid.  See Johns v. Karam Development, Inc., 381 S.W.2d 933, 936 (Tex.Civ.App. - El Paso 1964, writ ref=d n.r.e.).  The rule urged by Reyes and the case cited appears to be a minority rule as observed in 4 HERBERT THORNDIKE TIFFANY, THE LAW OF REAL PROPERTY ' 1016 (1939), where it is stated:

In an action for breach of the covenant for seisin, the measure of damages is ordinarily the amount of the consideration paid by the grantee, usually with interest, such consideration being presumably the value of the land at the time of the sale, with a view to which the covenant was made.  Adopting this measure of damages in case the breach is as to part of the premises only, the recovery is a part of the consideration, proportioned to the value of such part.  And if the estate which passes is less than that purported to be conveyed, the amount recoverable is the consideration paid less the value of the estate which actually passes.

Occasionally the view has been asserted that the covenantee can recover only nominal damages on account of a breach of the covenant for seisin, if he has in no way been disturbed in his possession of the land. In the great majority of cases, however, the fact that the grantee is or is not still in possession is not referred to in connection with the question of the amount of damages recoverable, and in a few cases the view referred to is clearly repudiated.

Here, Booth only received an undivided one-half interest.  The consideration was $20,000. The trial court did not err in awarding Booth damages of $9,000.  Reyes=s issue is overruled.

The trial court also found that there was a failure of consideration.  Reyes maintains that Booth cannot rely upon failure of consideration because Booth=s petition was not verified. Reyes failed to except to the non-verification of the pleading and, thus, waived the objection. TEX.R.CIV.P. 90; Echols v. Bloom, 485 S.W.2d 798, 800-01 (Tex.Civ.App. - Houston [14th Dist.] 1972, writ ref=d n.r.e).  This issue is overruled.

Reyes challenges the jurisdiction of Judge Weldon Kirk to sign the final judgment in this case.  Judge Kirk, the elected judge of the 32nd Judicial District, heard the evidence in the case on May 5, 2000.  Judge Kirk retired in June of 2000 without having signed the final judgment in this case.  On August 7, 2000, Judge Dean Rucker, Presiding Judge of the Seventh Administrative Judicial Region, pursuant to TEX. GOV=T CODE ANN. ' 74.056 (Vernon 1998), assigned Judge Kirk to serve as Presiding Judge of the 32nd District Court.  The order provides in part:

I assign the Honorable Weldon Kirk, Presiding Judge of the 32nd District Court, to the 32nd District Court of Fisher, Mitchell and Nolan Counties, Texas.

This assignment is for the purpose of presiding in all matters that may come for hearing.  This assignment is for a period beginning on August 7, 2000 and ending on December 31, 2000, and shall continue thereafter so long as may be necessary for the assigned judge to complete trial of any cause begun during such period, and to pass on motions for new trial and all other matters growing out of any cause heard by the assigned judge during such period.

On August 7, 2000, Judge Kirk signed the final judgement in this case.  The assignment of Judge Kirk stated that the Aassignment is for the purpose of presiding in all matters that may come for hearing.@  The entry of the judgment in this case was a proper matter that came for Ahearing@ before Judge Kirk on August 7, 2000.  Reyes=s challenge is overruled. 

Reyes also argues that he had no opportunity to exercise his right to object to the assignment of Judge Kirk pursuant to TEX. GOV=T CODE ANN. ' 74.053(b) (Vernon 1998).  Judge Kirk was assigned on August 7, 2000; and Judge Kirk signed the judgment in this case on August 7, 2000. Reyes filed his objection to Judge Kirk=s assignment on October 12, 2000.  The objection was not timely.  See Tivoli Corporation v. Jewelers Mutual Insurance Company, 932 S.W.2d 704 (Tex.App. - San Antonio 1996, writ den=d); Morris v. State, 913 S.W.2d 694 (Tex.App. - Eastland 1995, writ dism=d w.o.j.).  The complaint is overruled.

On the day before trial, Booth filed an amended original petition and for the first time sought attorney=s fees. The trial court awarded Booth both trial and appellate attorney=s fees. Reyes contends that the trial court erred in awarding attorney=s fees because Booth failed to prove that Booth=s claim was presented to Reyes as required by TEX. CIV. PRAC. & REM. CODE ANN. ' 38.002(2) (Vernon 1997).  We agree.  Booth directs us to certain testimony by Reyes wherein Reyes states that he had attempted to clear up the title problem by offering some money to the owners of the outstanding one-half undivided interest in the property. This evidence does not show a proper presentment.  Presentment of a claim under Section 38.002(2) is required to allow the person against whom it is asserted an opportunity to pay it before incurring an obligation for attorney=s fees. See Panizo v. Young Men=s Christian Association of the Greater Houston Area, 938 S.W.2d 163 (Tex.App. - Houston [1st Dist.] 1996, no writ).  We overrule the trial court=s award of trial and appellate attorney=s fees. 

Reyes did not prevail and was not awarded any damages. The trial court properly refused to award attorney=s fees to Reyes.  We overrule Reyes=s contention that the court erred in not awarding him attorney=s fees. Green International, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997).

The award of $9,000 to Booth is affirmed.  The award of attorney=s fees to Booth is reversed, and we render judgment that Reyes is not liable for attorney=s fees.

AUSTIN McCLOUD

SENIOR JUSTICE

March 27, 2003

Panel consists of: Arnot, C.J., and

McCall, J., and McCloud, S.J.^[1]

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^[1]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.