Mark Dodge, Diane Welch, Donna Sakkinen, Debra Song, Wayne McDonough, Sheri McDonough, Phillis McDonough, and Randy McDonough v. Warren Dodge, Jr. ( 2010 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MARK DODGE, DIANE WELCH, §
DONNA SAKKINEN, DEBRA SONG, No. 08-08-00122-CV
WAYNE MCDONOUGH, SHERI §
MCDONOUGH, PHILLIS Appeal from the
MCDONOUGH, AND RANDY §
MCDONOUGH, 68th District Court
§
Appellants, of Dallas County, Texas
§
v. (TC# DC-04-00898)
§
WARREN DODGE, JR.,
§
Appellee.
§
OPINION
Appellants, Mark Dodge, Diane Welch, Donna Sakkinen, Debra Song, Wayne McDonough,
Sherri McDonough, Phillis McDonough, and Randy McDonough, appeal the trial court’s judgment
entered in favor of Appellee, Warren Dodge, Jr. We affirm.
BACKGROUND
Florence Wagner died leaving a house located on Barstow Boulevard in Dallas, Texas, to her
nine grandchildren, presumably in equal shares.1 In 1992, Appellee and his five children, having
been evicted from Diane Welch’s residence, moved into the house on Barstow Boulevard. The
family’s expectation was that Appellee could live in the residence for free if he paid the taxes on the
property. Twelve years later, he filed suit seeking sole ownership of the property on grounds of
1
A contested handwritten document executed by W agner in 1978, was found, and the document appeared
to devise her property to her daughter, who is now deceased, and then to seven of her grandchildren. W ayne and
Sherri McDonough’s names were omitted. However, this appeal does not concern whether the document was a
holographic will or to whom the property passed. Thus, we assume, as the parties did below, that all nine
grandchildren own the property in equal shares.
adverse possession. The trial court ordered the parties to mediation, and on June 30, 2005, the
parties signed a settlement agreement.
Pursuant to the terms of the agreement, the parties were to execute an agreed order, prepared
by Appellee, dismissing all claims with prejudice. The agreement did not specify when the agreed
order was to be prepared; however, the agreement did state that Appellee was to deliver drafts of any
further documents to be executed in connection with the settlement agreement to Appellants within
ten days from June 30, 2005, the date the agreement was signed. The agreement also provided that
Appellee would purchase the Barstow property by paying Appellants the sum of $24,277.77 on or
before October 31, 2005, and if he did not, he would move from the residence by January 31, 2006,
and the property would be listed for sale on February 1, 2006. If Appellee purchased the Barstow
property, Appellants agreed to sign all documents necessary to close on the property.
On April 11, 2007, Appellants filed a motion to dismiss Appellee’s claims with prejudice,
alleging that he failed to perform under the terms of the settlement agreement. Specifically, they
claimed he failed to prepare an agreed order, dismissing all claims with prejudice. Appellee
responded that the dismissal was predicated upon Appellants performing their obligations under the
settlement agreement, that is, that they sign all necessary documents for him to close on the property.
Appellee’s position was that every contract for the sale of real property contains an implied
obligation for the seller to convey marketable title, and that the settlement agreement thus impliedly
obligated Appellants to convey marketable title. When Appellants failed to do so, Appellee alleged
his performance under the agreement, i.e., to purchase the property and to prepare an agreed order
for dismissal with prejudice, was impossible. Thus, Appellee moved for specific performance of the
settlement agreement by asking the court to require Appellants to convey good and marketable title
2
to the Barstow property. Appellants responded that Appellee’s preparation of the agreed order
dismissing all claims with prejudice was a condition precedent to them signing all necessary
documents to close on the property, and that the documents Appellee prepared, an agreed judgment
for adverse possession and plaintiff’s motion for non-suit, were not those contemplated by the
parties.
The case proceeded to a bench trial. There, Appellee testified that his understanding of the
settlement agreement was that Appellants would convey a marketable title to him so that he may
obtain a mortgage. Appellee related that he wanted to buy the property and that he was qualified for
a loan; however, without a good title, Appellee was unable to obtain funding, i.e., the mortgage.
After the settlement agreement was executed, Appellee learned from the title companies that to
obtain a good title, he needed an agreed judgment against Appellants, giving him sole ownership of
the property. Heirship affidavits were not sufficient. Appellee claimed he would dismiss the suit
with prejudice when good title to the property was bestowed.
Diane Welch testified that in exchange for what Appellee wanted, that is, marketable title to
the property, she and Appellants wanted to be released from the lawsuit and to not have it come back
in any way. However, Welch never saw an agreed order prepared by Appellee that spoke to
dismissing all claims with prejudice, nor has Appellee ever mentioned that he prepared one. She
only saw a motion and order for non-suit that proposed to dismiss the claims against all Appellants
but her, and without prejudice.
Appellants were willing to provide a marketable title and to sign all necessary documents to
close on the property, including going through an heirship proceeding in a probate court on the will.
They understood that in order for Appellee to obtain a mortgage, they had to convey a good title to
3
the property. Appellants, however, were not willing to sign off on a judgment against them for
adverse possession. Nor were they willing to sign a mutual release referencing a judgment against
them but in favor of Appellee.
At the close of evidence, both parties moved for specific performance. Appellee wanted
good title to the property before dismissing the suit, and Appellants wanted the suit dismissed before
they bestowed good title. The trial court found Appellants in breach and ordered that they complete
the necessary documents to convey a marketable title and then, that Appellee dismiss the case with
prejudice. The trial court also awarded Appellee attorney’s fees.
DISCUSSION
On appeal, Appellants bring eight issues. Their first two issues contend that the trial court
erred in finding that they, rather than Appellee, breached the settlement agreement, their third issue
alleges that the trial court erred in finding that the settlement agreement was an enforceable contract
to sell real property, their fourth and fifth issues assert that the trial court erred in finding that they
were to provide marketable title to Appellee, their sixth issue argues that the trial court erred in
finding that they will net less than the agreed upon $24,277.77, and their seventh and eighth issues
challenge the trial court’s award of attorney’s fees to Appellee rather than to them. Finding all issues
inadequately briefed, we determine nothing is presented for review and thus affirm the trial court’s
judgment.
We note that the language in Appellants’ brief for each issue appears to raise no-evidence
and factual-sufficiency challenges to support the trial court’s implicit findings, following the bench
trial. See Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996) (where no findings of fact
or conclusions of law are filed after a bench trial, the trial court’s judgment implies all findings of
4
fact necessary to support it); see also BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795
(Tex. 2002) (if a reporter’s record is filed, the implied findings are not conclusive, and the appealing
party may challenge them on legal and factual sufficiency grounds). Moreover, Appellants’ issues
also appear to invoke the abuse-of-discretion standard for each finding of fact and award of
attorney’s fees. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990)
(generally, an attorney’s fees award rests within the sound discretion of the trial court, and will not
be disturbed absent an abuse of that discretion). However, Appellants have not provided us with any
citations to the standards of review, and their arguments for each issue contain no more than a mere
recitation of the evidence presented in the pleadings and at trial followed by a few conclusory
statements. There is, in essence, no legal argument presented, and Appellants do not cite to any case
law addressing the points of error identical to those uttered at bar.2
Under the Rules of Appellate Procedure, Appellants are required to provide us with a legal
argument and authorities that support that argument to maintain the point at issue. See TEX . R. APP .
P. 38.1; Ratsavong v. Menevilay, 176 S.W.3d 661, 666 (Tex. App.–El Paso 2005, pet. denied), cert.
denied, 549 U.S. 886, 127 S. Ct. 253, 166 L. Ed. 2d 149 (2006). This is not done by merely uttering
the facts and brief conclusory statements, unsupported by a standard of review and analogous legal
authority. Ratsavong, 176 S.W.3d at 666. By presenting such attenuated, unsupported arguments,
2
W e recognize that Appellants, in their 47-page brief, cite generally to two cases and a few provisions of
the Texas Civil Practice and Remedies Code, and the Property Code. The case cites merely reference the general
proposition that the interpretation of a contract should not render any provisions therein meaningless, and that there
is no ambiguity when a settlement agreement is clear, concise, and complete on its face. Similarly, the code cites
merely concern the general propositions on marketable title, and that a settlement agreement is contractual in nature
and breach of the same provides a cause of action. Appellants do not provide us with any case law or applicable
code sections that are analagous to the claims they are raising, nor do they attempt to argue that this is a case of first
impression. See Kupchynsky v. Nardiello, 230 S.W .3d 685, 692 (Tex. App.–Dallas 2007, pet. denied) (issue
inadequately briefed when party gave general cite to case stating elements of cause of action).
5
we find Appellants waived their complaints. See TEX . R. APP . P. 38.1; Johnson v. Oliver, 250
S.W.3d 182, 187 (Tex. App.–Dallas 2008, no pet.) (issue inadequately briefed when party presented
no authority to support their contention or argument); Ratsavong, 176 S.W.3d at 666 (issues
inadequately briefed when party recited the evidence at trial followed by conclusory statements
without any supporting case law and only stating that the standard of review was abuse of
discretion); Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.–Houston [1st Dist.] 2002,
no pet.) (issue inadequately briefed when party did little more than summarily state his point of error,
without citations to legal authority or substantive analysis). Accordingly, we overrule each of
Appellants’ issues.3
CONCLUSION
The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
March 31, 2010
Before Chew, C.J., McClure, and Rivera, JJ.
3
W e further note that we may overrule Appellants’ third, fourth, fifth, seventh, and eighth issues on other
grounds. Indeed, we may not address issues that Appellants failed to present to the trial court. See T EX . R. A PP . P.
33.1 (to preserve a complaint for appellate review, the complaint must be made to and ruled upon by the trial court
first). Here, Appellants contend on appeal that they did not intend to grant a marketable title to Appellee (Issues
Three, Four, and Five), nor should they pay Appellee’s attorney’s fees for various reasons gleaned from the firm’s
billing statement admitted at trial (Issues Seven and Eight). However, at trial, Appellants contended that their
intention under the settlement agreement was to grant Appellee marketable title, and their complaints concerning
Appellee’s billing statements were never raised. See Bollner v. Plastics Solutions of Texas, Inc., 270 S.W .3d 157,
168 (Tex. App.–El Paso 2008, no pet.) (appellants cannot raise on appeal that which was not raised in the trial
court); El Paso Refining, Inc. v. Scurlock Permian Corp., 77 S.W .3d 374, 383 (Tex. App.–El Paso 2002, pet.
denied) (complaint on appeal must comport with the complaint made at trial or error, if any, is waived).
6