Tracy Hicks v. State ( 2002 )

Tracy Hicks v. State

WITHDRAWN

4/3/2002

IN THE

TENTH COURT OF APPEALS

No. 10-01-369-CR

     TRACY HICKS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 18th District Court

Johnson County, Texas

Trial Court # 29450

                                                                                                               Â

MEMORANDUM OPINION

                                                                                                               Â

      In August 1993, Tracy Hicks pleaded guilty to sexual assault enhanced by a prior felony conviction. Pursuant to a plea recommendation, the court sentenced Hicks to forty years’ imprisonment on the same day. Hicks filed a “Motion for New Trial Based upon Newly Discovered Evidence” with the trial court on July 30, 2001, nearly eight years after imposition of sentence. Hicks filed an “Original Notice of Appeal from the Trial Court’s Denial of Motion for New Trial Based Upon Newly Discovered Evidence” on October 15, 2001.

      Former Rule of Appellate Procedure 31, in effect at the time of Hicks’s conviction, required that a motion for new trial be “filed within 30 days after date sentence is imposed or suspended in open court.” Tex. R. App. P. 31(a)(1), 707-708 S.W.2d (Tex. Cases) xlix (Tex. Crim. App. 1986, amended 1997). The current rule provides the same deadline. See Tex. R. App. P. 21.4(a). Therefore, Hicks’s July 2001 motion for new trial is untimely. Moreover, the trial court’s plenary power to grant or deny any motion for new trial expired seventy-five days after imposition of sentence. See Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998).

      Hicks’s motion for new trial and his corresponding notice of appeal are untimely. See Tex. R. App. P. 26.2(a); State v. Riewe, 13 S.W.3d 408, 410 (Tex. Crim. App. 2000); Fowler v. State, 16 S.W.3d 426, 428 (Tex. App.—Waco 2000, pet. ref’d). Because Hicks did not timely file his notice of appeal, we lack jurisdiction over the appeal. Id. Accordingly, we dismiss the appeal for want of jurisdiction.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed March 27, 2002

Do not publish

[CRPM]

erty did not appraise for $185,000 and (b) the price was not renegotiated. It is undisputed that, after paragraph 11(1) had been drafted, all of the parties agreed to change paragraph 5’s designation of the $5,000 payment from an earnest money deposit to a non-refundable deposit.[4] When there is a conflict between two provisions, the specific provision controls over the general provision.  Ostrowski v. Ivanhoe Property Owners Improvement Ass’n, 38 S.W.3d 248, 254 (Tex. App.—Texarkana 2001, pet. denied).  More importantly, to the extent that added provisions conflict with a form’s provisions, the added provisions must be given effect over the form’s provisions. McCreary v. Bay Area Bank & Trust, 68 S.W.3d 727, 732 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d).  The rationale for this rule is that the added provisions are the immediate language and terms selected by the parties themselves as setting forth their intentions, while the form is intended for general use without reference to particular objects and aims.[5] Id.  We overrule the first issue.

In their second issue, the LaBradas argue that the evidence is legally and factually insufficient to support the trial court’s finding that Hickman’s appraisal satisfied the special provision that would allow the Griffiths to keep the $5,000 if the property appraised for the full purchase price.[6] It is not disputed that the LaBradas agreed with having a second appraisal done, that one (Hickman’s) was done, and that the LaBradas were happy with it—Fabio testified he thought it was legitimate.  Rollins, the first appraiser, testified that the Hickman appraisal was legitimate but that he disagreed with it because its comparables were not close enough in square footage.  He also criticized it because an appraisal apprentice, rather than Hickman, had done significant work on the appraisal, but Hickman had signed it, and because he thought the acreage value was too high.  Hickman’s $187,000 appraisal was in evidence, as was evidence of the Griffiths’ subsequent sale of the same property to other purchasers for $185,000 (with minor improvements that Rollins said increased the value less than $10,000, but without road exclusivity, which Rollins conceded was of some value).  Rollins agreed that this subsequent sale could serve as a comparable. The evidence is legally and factually sufficient to support the trial court’s implied finding that the Hickman appraisal satisfied the contract’s special provision. The LaBradas’ second issue is overruled.

In their third issue, the LaBradas complain of the trial court’s award of attorney’s fees and $1,000 in additional damages to the Griffiths.  A prevailing party cannot recover attorney’s fees from an opposing party unless permitted by statute or a contract between the parties.  Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999).  The contract provided for the recovery of reasonable attorney’s fees to the “prevailing party in any legal proceeding brought under or with respect to the transaction. . . .”  Whether in defense to the LaBradas’ claim for the $5,000 or on their counterclaim to keep it, the Griffiths prevailed.  The trial court properly awarded them attorney’s fees of $5,000, and the Griffiths are entitled to an additional $3,500 in appellate attorney’s fees.

The general rule for measuring damages for breach of contract is “just compensation for the loss or damage actually sustained.”  Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 486 (1952).  A claimant generally is entitled to all actual damages necessary to put it in the same economic position that it would have been in had the contract not been breached.  Abraxas Pet. Corp. v. Hornburg, 20 S.W.3d 741, 761 (Tex. App.—El Paso 2000, no pet.).  The contract called for the LaBradas to pay for the appraisal.  It is undisputed that the LaBradas wanted a second appraisal, that Hickman did an appraisal, and that the Griffiths—not the LaBradas—paid the $400 appraisal fee.[7] But the $600 “listing fee” that the Griffiths paid before they ever met the LaBradas cannot have resulted from the contract breach, and the Griffiths’ position is that the $5,000 non-refundable deposit was to compensate them for taking the property off the market.  We overrule in part and sustain in part the LaBradas’ third issue.

We modify the trial court’s judgment to award actual damages to the Griffiths of $400.  Because the Griffiths have been successful in this appeal, they are entitled to recover an additional attorney’s fee of $3,500 from the LaBradas.  As modified, the judgment is affirmed.

 

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurs in the judgment only with a note.  “Based on the issues as briefed and argued on appeal, I concur in the judgment.”)

Affirmed as modified

Opinion delivered and filed April 26, 2006

[CV06]

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    [1]           At the same time, the LaBradas leased the property for a year from the Griffiths for $1,500 a month.  The Griffiths had built the house for the sole purpose of reselling it with acreage. 

 

    [2]           Because the Griffiths were taking the property off the market during the LaBradas’ lease in contemplation of the LaBradas’ purchase, the purpose of the deposit was to compensate the Griffiths if the sale did not close.  Kathy discussed this purpose with Fabio and the LaBradas’ agent.  Fabio paid the $5,000 deposit to the Griffiths and authorized them to cash it.  Fabio and Kathy both signed a receipt for the $5,000 deposit with the notation “non-refundable.”  Because the LaBradas expected the deal to go through, they also expected to receive the $5,000 deposit as a credit at closing.

 

    [3]           In a letter ruling, the trial court found that Hickman’s appraisal satisfied the contract’s condition that made the $5,000 deposit non-refundable, that the $5,000 payment was a non-refundable deposit, rather than earnest money, and that if other money had been tendered as earnest money, the contract’s other provisions on the return of earnest money would have applied.

    [4]           The change to paragraph 5 made clearer the parties’ intent that the payment be a nonrefundable deposit controlled by paragraph 11(1), rather than handled as traditional earnest money.  This construction also comports with the circumstances surrounding the contract:  the Griffiths took the property off the market; Fabio signed a receipt describing the $5,000 payment as non-refundable and told the Griffiths they could cash it, which they did; and the $5,000 was not tendered to a traditional escrow agent, such as a title company, and held in escrow pending the closing.

 

    [5]           Because the parties subsequently clarified that the $5,000 payment was a non-refundable deposit, the result is that no earnest money was paid and paragraph 11(1) controlled whether the deposit would be returned.  We therefore reject the LaBradas’ reliance on the form’s numerous references to earnest money and their contention that the form’s earnest money provisions conflict with the parties’ added paragraphs.

 

    [6]       In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the verdict, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not.  City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).  There is legally insufficient evidence or “no evidence” of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact.  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”  Havner, 953 S.W.2d at 711 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).

 

When the party without the burden of proof at trial complains of the factual sufficiency of the evidence to support an adverse express or implied finding, we must consider and weigh all of the evidence, not just the evidence that supports the verdict.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied). We will set aside the finding only if it is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust.  Ellis, 971 S.W.2d at 407.  Reversal can occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof.  Checker Bag, 27 S.W.3d at 633.

 

    [7]           Other than a specific claim for the $5,000 deposit in their counterclaim, the Griffiths only generally prayed for “all further relief” to which they were entitled.  The Griffiths’ additional damages, to the extent legally recoverable, were thus tried by consent.  See National Convenience Stores, Inc. v. Erevia, 73 S.W.3d 518, 522 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).