George Wood v. Matthew D. Wiggins, Jr. ( 2021 )

Opinion issued November 16, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00630-CV
———————————
GEORGE WOOD, Appellant
V.
MATTHEW D. WIGGINS, JR., Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 11-CV-0336
OPINION
Appellant George Wood appeals from a judgment entered after a bench trial
on Wood’s and appellee Matthew D. Wiggins, Jr.’s competing claims arising out of
their oral agreements to buy, fix, and sell distressed properties acquired at
foreclosure or tax sales. In twelve issues on appeal, Wood argues: (1) there is no
final, appealable judgment; (2) there is no basis for a partition; (3) the statute of
limitations does not bar his claims; (4) the statute of frauds does not apply; (5) the
trial court erred in applying laches; (6) the trial court erred in ordering a contingent
remedy; (7) the doctrine of unclean hands does not bar his equitable claims; (8) the
trial court erred by finding against him on his breach of contract claim; (9) the trial
court erred in failing to find damages or in the amount of damages awarded; (10)
there is insufficient evidence to support the trial court’s finding that he had no
interest in the Hidden Lake property; (11) he was entitled to attorney’s fees based
on Wiggins’s breach of contract; and (12) the trial court abused its discretion in
admitting a hearsay document related to the settlement of accounts as to six
properties.
Because we hold that the trial court’s judgment did not properly reimburse
Wood for the $259,208.76 which the trial court found, and the parties agreed, was
owed to Wood for various expenses on a number of jointly owned properties, we
modify the judgment to provide that after the net proceeds from the sale of the five
properties are equally divided between Wood and Wiggins, the sum of $259,208.76
should be subtracted from Wiggins’s share and awarded to Wood.
We affirm the judgment as modified.
2
Background
Wood and Wiggins are experienced real estate investors who met in 2004
during a foreclosure sale. Beginning in May 2006, Wood and Wiggins agreed to
jointly purchase properties together, and sometimes included others in the purchases,
with the intent of repairing and selling the properties “within a reasonable time.” The
properties were purchased at tax or foreclosure sales. Profits and losses on each
property would be split according to the proportionate share of ownership. The
parties had no written agreement or established policies about how to handle the
property acquisition, management, rental, or sale of the jointly owned properties.
On some occasions, Wood would purchase the property to be co-owned by
Wiggins (and sometimes other co-owners). On other occasions, Wiggins would
purchase the property to be co-owned by Wood (and sometimes other co-owners).
At some point and by some method (either repayment or offset from another
property) the non-purchasing co-owner would reimburse the purchasing party for his
portion of the property, which would be equally owned by all parties. Deeds would
be issued to each owner to file with the respective county. There was never a
particular or consistent deadline or method for repayment. Repayment could occur
days, weeks, months or even years later without complaint by any owner.
Between 2006 and 2008, Wood and Wiggins bought, sometimes jointly and
sometimes with other co-owners, the following properties:
3
Property Bought Sold
303 22nd Avenue North, Texas
City, TX 77590
November 6, 2006 STILL OWNED
(“22nd Avenue”)
4401 24th Street East;
Dickinson, TX 77539
August 2006 May 2007
(“24th Street”)
4426 Waverly Canyon, League
City, TX 77573
April 2007 REDEEMED – July 2009
(“4426 Waverly Canyon”)
4430 Waverly Canyon, League
City, TX 77573
April 2007 REDEEMED – July 2009
(“4430 Waverly Canyon”)
2410 East Bayshore Drive, San
Leon, TX 77539
February 6, 2007 STILL OWNED
(“Bayshore Drive”)
611 Biscayne Bend, League
City, TX 77573
April 2007 REDEEMED – July 2009
(“Biscayne Bend”)
4427 Champions Court, League
City, TX 77573
December 5, 2006 February 15, 2007
(“Champions Court”)1
923 Dogwood Road, Kemah,
TX 77565
October 2006 February 2008
(“Dogwood Road”)
2002 Fairfield Court South,
League City, TX 77573
October 6, 2006 STILL OWNED
(“Fairfield Court”)
1
The parties dispute ownership of Champions Court. Wood contends he alone
purchased the property.
4
Property Bought Sold
121 Hidden Lake Drive, League
City, TX 77573
February 5, 2008 February 7, 2012
(“Hidden Lake”)2
605 Jennings Street, Texas City,
TX 77590
February 6, 2007 STILL OWNED
(“Jennings Street”)
16607 John Silver Road,
Jamaica Beach, TX 77554
May 2, 2006 February 12, 2007
(“John Silver Road”)
1321 Lone Oak Drive, League
City, TX 77573
August 2007 May 2, 2008
(“Loan Oak Drive”)
401 Oaklawn Street, League
City, TX 77573
February 6, 2007 STILL OWNED
(“Oaklawn Street”)
730 Oklahoma, Bacliff, TX
77518
October 4, 2007 June 2, 2009
(“Oklahoma”)
2634 Pueblo Court, League
City, TX 77573
May 1, 2007 June 23, 2008
(“Pueblo Court”)
2802 Sealy Avenue, Galveston,
TX 77550
January 2, 2007 STILL OWNED
(“Sealy Avenue”)
211 Sharnoll Circle, League
City, TX 77573
December 5, 2006 May 20, 2008
(“Sharnoll Circle”)
2
The parties dispute ownership of Hidden Lake. Wiggins contends he alone
purchased Hidden Lake with funds borrowed from Wood, and that he repaid Wood
for the entire purchase price a few days later.
5
Property Bought Sold
2205 Southern Hills Drive,
League City, TX 77573
January 2, 2007 July 29, 2009
(“Southern Hills Drive”)
1101 Tremont Street, Galveston,
TX 77550
September 4, 2007 STILL OWNED
(“Tremont Street”)
639 Warsaw Drive, Hitchcock,
TX 77563
May 1, 2007 August 29, 2008
(“Warsaw Drive”)
Many of the parties’ joint properties were damaged by Hurricane Ike in
September 2008. Wiggins wanted to sell all the jointly owned properties, many at a
loss, but Wood wanted to keep the properties indefinitely. After Hurricane Ike,
Wood and Wiggins did not jointly acquire any additional property.
In March or April 2007, Wiggins purchased three properties at a tax sale:
(1) 4430 Waverly Canyon, (2) 611 Biscayne Bend, and (3) 4426 Waverly Canyon
(collectively, the “Waverly Canyon Properties”). On April 4, 2007, Wood paid
Wiggins $135,000—his 50 percent share of the $270,000 purchase price for the
Waverly Canyon Properties. That same month, Wiggins signed deeds to Wood for a
one-half interest in the Waverly Canyon Properties. Wood testified he was not able
to record the deeds because they had no property descriptions. Wood did not record
the deeds to the Waverly Canyon Properties until September 27, 2010.
6
For properties bought at a tax sale, the original owner or person who owed the
back taxes has a certain amount of time—two years for homestead properties and
six months or 180 days for non-homestead properties—in which to seek a
redemption of the property by paying the purchase price plus a penalty. JPMorgan
Chase Bank, N.A. (“Chase”) held first lien mortgages on the Waverly Canyon
Properties and, as a non-homesteader, had six months in which to enforce its right
to redemption of these properties.
Chase sued Wiggins in April 2008 to enforce its right to redemption. In May
2009, the trial court entered summary judgment in the redemption lawsuit in favor
of Chase’s successor, the Bank of New York Mellon (“BNYM”), finding that the
Waverly Canyon Properties were redeemed. As a result, BNYM tendered the
$348,714.17 redemption premium to Wiggins, who was the sole title holder. As
Wood was not a record-title holder to the Waverly Canyon Properties, he was not
made a party to the redemption lawsuit. Wiggins admitted he did not inform Wood
in writing of the redemption lawsuit, or otherwise involve him in the proceedings,
though he testified that Wood was aware of the lawsuit.
After receiving the redemption premium, Wiggins executed redemption deeds
to the original owners. Thereafter, BNYM foreclosed its liens against the Waverly
Canyon Properties, became the owners, and conveyed the properties to third parties,
warranting that it was conveying a 100 percent fee-simple interest. It was not until
7
September 27, 2010, that Wood recorded his deeds to the Waverly Canyon
Properties. BNYM filed the underlying lawsuit against Wood and Wiggins, seeking
a declaratory judgment as to the validity and effect of the redemption deeds and
Wood’s late-recorded deeds. The trial court granted BNYM summary judgment, and
the case proceeded on Wood’s and Wiggins’s crossclaims against each other.
Wood filed his original crossclaim against Wiggins on May 11, 2011, alleging
breaches of contract and fiduciary duty related to the Waverly Canyon Properties
(which he referred to in his crossclaim petition as the “Subject Properties”). Wood
also included breach of contract and breach of fiduciary duty claims related to what
he termed “Additional Properties,” which he alleged “were acquired on the same
basis as described above, i.e., a contract whereby Wood and Wiggins each paid or
contributed fifty percent of the purchase price of the property, with an understanding
that Wood would receive fifty percent of any price, gain, profit, revenue or rentals
derived from such property.” Wood did not specifically identify or describe any
piece of real property that he contended fell within the category of “Additional
Properties.”
In response, Wiggins filed special exceptions on March 19, 2012, challenging
the vague allegations related to the “Additional Properties” and requesting that the
trial court order Wood to replead. On April 16, 2015, Wood filed his First Amended
Cross Action and again referred only to “Additional Properties” without further
8
description. Wiggins again filed special exceptions on February 11, 2016, which
were granted by the trial court on March 30, 2016. After almost five years of
litigation, Wood identified the “Additional Properties” for the first time when he
filed his second amended crossclaim on March 31, 2016. In his second amended
crossclaim, Wood included the above-listed properties (other than the Waverly
Canyon Properties) as “Additional Properties.” Wiggins filed a counterclaim against
Wood seeking equitable partition of seven of the properties that were still jointly
owned by the parties.
During the bench trial, the parties settled their claims as to several properties.
The case proceeded on the remainder of the parties’ respective claims. The trial court
rejected a number of Wood’s claims as to various properties but concluded that
Wood was entitled to reimbursement in the amount of $259,208.76. The trial court
also concluded that five of the properties still jointly owned by the parties could not
be fairly partitioned and ordered a receiver to be appointed to effectuate a sale of
those properties.
The trial court included findings of fact and conclusions of law in its final
judgment, to which Wood objected. Wood requested that the trial court issue
separate findings of fact and conclusions of law and moved that the trial court modify
its judgment and for a new trial. The trial court issued separate findings of fact and
9
conclusions of law but did not modify the judgment. Wood’s motion for new trial
was overruled by operation of law.
General Standards of Review
In a bench trial, the trial court determines the credibility of the witnesses and
the weight to be given their testimony. Miranda v. Byles, 390 S.W.3d 543, 553 (Tex.
App.—Houston [1st Dist.] 2012, pet. denied). In resolving factual disputes, the
factfinder may believe one witness and disbelieve others, and it may resolve any
inconsistencies in any witness’s testimony. Id. (citing McGalliard v. Kuhlmann, 722
S.W.2d 694, 697 (Tex. 1986)). In making credibility determinations, the factfinder
“cannot ignore undisputed testimony that is clear, positive, direct, otherwise
credible, free from contradictions and inconsistencies, and could have been readily
controverted.” City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005). Even
uncontroverted expert testimony is not binding on a factfinder if the subject of the
testimony is not one for experts alone. Id. But the factfinder is not “free to believe
testimony that is conclusively negated by undisputed facts.” Id.A trial court’s factual findings, express and implied, are not conclusive and
may be challenged for legal and factual sufficiency of the evidence. Miranda, 390
S.W.3d at 553. We review the sufficiency of the evidence supporting a trial court’s
challenged fact findings by applying the same standards we use in reviewing the
10
sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881
S.W.2d 295, 297 (Tex. 1994).
We will sustain a legal-sufficiency, or “no-evidence,” challenge if the record
shows one of the following: (1) a complete absence of evidence of a vital fact,
(2) rules of law or evidence bar the court 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 scintilla, or (4) the evidence establishes conclusively the opposite of the vital
fact. City of Keller, 168 S.W.3d at 810. The test for legal sufficiency is “whether the
evidence at trial would enable reasonable and fair-minded people to reach the verdict
under review.” Id. at 827. In making this determination, we credit favorable evidence
if a reasonable factfinder could, and disregard contrary evidence unless a reasonable
factfinder could not. Id. If the evidence falls within the zone of reasonable
disagreement, we may not substitute our judgment for that of the factfinder. Id. at
822. If there is more than a scintilla of evidence to support the challenged finding,
we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors,
Inc., 960 S.W.2d 41, 48 (Tex. 1998). But “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 no more than a scintilla and, in legal effect, is no
evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)
11
In reviewing factual sufficiency, we consider and weigh all the evidence
supporting and contradicting the challenged finding and will set aside the finding
only if the evidence is so weak as to make the finding clearly wrong and manifestly
unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Miranda, 390 S.W.3d at
553. We may review the legal conclusions drawn from the facts to determine their
correctness. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.
2002).
We apply a de novo standard to review a trial court’s conclusions of law in a
bench trial and will uphold them if the judgment can be sustained on any legal theory
supported by the evidence. City of Keller, 168 S.W.3d at 822; In re Moers, 104
S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.). If we determine a
conclusion of law is erroneous, but the trial court nevertheless rendered the proper
judgment, the error does not require reversal. BMC Software, 83 S.W.3d at 794.
We will not set aside a judgment because of conflicting findings of fact if the
conflict can be reconciled. Bowman v. Stephens, 569 S.W.3d 210, 224 (Tex. App.—
Houston [1st Dist.] 2018, no pet.). And we must reconcile apparent conflicts if there
is any reasonable basis to do so. Id.Finality of Judgment
In his first issue, Wood argues that the trial court’s “willful violation” of Texas
Rule of Civil Procedure 299a—by including findings of fact and conclusions of law
12
in the judgment—resulted in a “mess” that prevents him from “discern[ing] the basis
or effect of the trial court’s ‘judgment.’” See TEX. R. CIV. P. 299a.3 Relying on this
Court’s decisions in Frommer v. Frommer, 981 S.W.2d 811 (Tex. App.—Houston
[1st Dist.] 1998, pet. dism’d), and Guridi v. Waller, 98 S.W.3d 315 (Tex. App.—
Houston [1st Dist.] 2003, no pet.), Wood contends the findings and conclusions in
the judgment may not be considered on appeal. According to Wood, if those
impermissible findings and conclusions are “ignore[d],” the judgment is left with
only three sentences which do not contain sufficient, if any, decretal language to
create a final judgment. Without a final judgment, Wood argues this Court lacks
jurisdiction to consider this appeal. Because the finality of a judgment implicates
appellate jurisdiction, we review this issue de novo. See Jack M. Sanders Family
Ltd. P’ship v. Roger T. Fridholm Revocable Living Tr., 434 S.W.3d 236, 240 (Tex.
App.—Houston [1st Dist.] 2014, no pet.) (“A final judgment or other appealable
interlocutory order is a prerequisite of this court’s jurisdiction, and the question
whether appellate jurisdiction exists cannot be waived or settled by agreement of the
parties.”); see also Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–
45 (Tex. 1993) (subject matter jurisdiction cannot be waived and may be raised for
the first time on appeal).
3
Although Wood argues that Rule 299a prohibits findings of fact and conclusions of
law from being included in a judgment, Rule 299a only states that it applies to
findings of fact; conclusions of law are not mentioned. See TEX. R. CIV. P. 299a.
13
Texas Rule of Civil Procedure 299a provides:
Findings of fact shall not be recited in a judgment. If there is a conflict
between findings of fact recited in a judgment in violation of this rule
and findings of fact made pursuant to Rules 297 and 298, the latter
findings will control for appellate purposes. Findings of fact shall be
filed with the clerk of the court as a document or documents separate
and apart from the judgment.
TEX. R. CIV. P. 299a.
Interpreting Rule 299a in Frommer, this Court held that “[f]indings of fact
and conclusions of law shall not be recited in a judgment. If they are, they cannot
form the basis of a claim on appeal.” 981 S.W.2d at 814. Later, in Guridi, this Court
reaffirmed the rule in Frommer that “findings of fact and conclusions of law shall
not be recited in a judgment,” and held that because the judgment there “improperly
recited the fraud findings . . . [t]he separately-filed findings of fact control.” Guridi,
98 S.W.3d at 317.
In more recent cases, this Court has noted that although a trial court errs in
including findings of fact in its judgment, findings of fact in a judgment are accorded
probative value “so long as they are not in conflict with findings recited in a separate
document.” Gonzalez v. Razi, 338 S.W.3d 167, 175 (Tex. App.—Houston [1st Dist.]
2011, pet. denied) (internal quotation omitted); see also James J. Flanagan Shipping
Corp. v. Del Monte Fresh Produce N.A., Inc., 403 S.W.3d 360, 364 (Tex. App.—
Houston [1st Dist.] 2013, no pet.) (holding that although “trial court erred by reciting
its findings of fact in the judgment,” record contained no other findings of fact with
14
which the trial court’s findings could conflict and, therefore, trial court’s findings
were accorded probative value).
Here, Wood makes no argument that the trial court’s judgment conflicts with
the later-filed findings of fact. Instead, Wood attempts to use the above-cited cases
discussing which findings are reviewable on appeal to support his argument that the
trial court’s judgment lacks finality. But none of the above cases address the finality
of a judgment that impermissibly contains findings of fact. Nor have we found a case
addressing that issue. Moreover, even if we were required to “ignore” the findings
of fact contained in the final judgment, as Wood urges, the rules related to
inconsistent findings do not apply to conclusions of law because all conclusions of
law are reviewed de novo as legal questions. Ring & Ring v. Sharpstown Mall Tex.,
LLC, No. 01-16-00341-CV, 2017 WL 3140121, at *6–7 (Tex. App.—Houston [1st
Dist.] July 25, 2017, no pet.) (mem. op.) (citing BMC Software, 83 S.W.3d at 794).
Regardless of whether the findings contained in the judgment must be ignored
on appeal, the final judgment entered by the trial court contained clear and
unequivocal language as to its finality, and we see no basis for holding that it is not
a final, appealable judgment.
Generally, “an appeal may be taken only from a final judgment.” Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judicial decree is final when it
disposes of all issues and all parties. Id. Because a judgment or order need not be in
15
any particular form or contain any particular language, whether a judicial decree is
a final judgment must be determined from its language and the record in the case. In
re R.R.K., 590 S.W.3d 535, 540 (Tex. 2019). “Neither [t]echnical formality nor
particular phraseology are required for finality so long as the judgment is expressed
in language which is significant in common understanding and parlance.” In re
Guardianship of Jones, No. 20-0439, 2021 WL 4228048, at *3 (Tex. Sept. 17, 2021)
(internal citation and quotations omitted). “When an order finally disposes of all
claims and all parties in clear and unequivocal language, it is a final order. In re
R.R.K., 590 S.W.3d at 540 (internal quotations omitted). If, however, an order’s
finality is not “clear and unequivocal,” then a reviewing court must examine the
record to determine whether the trial court intended the order to be final. Lehmann,
39 S.W.3d at 205–06.
The Texas Supreme Court has long recognized a presumption of finality for
judgments that follow a conventional trial on the merits. Vaughn v. Drennon, 324
S.W.3d 560, 562 (Tex. 2010); see also Lehmann, 39 S.W.3d at 205 (“[W]e have
tried to ensure that the right to appeal is not lost by an overly technical application
of the law . . . . Simplicity and certainty in appellate procedure are nowhere more
important than in determining the time for perfecting appeal.”); N. E. Indep. Sch.
Dist. v. Aldridge, 400 S.W.2d 893, 897–98 (Tex. 1966) (“When a judgment, not
intrinsically interlocutory in character, is rendered and entered in a case regularly set
16
for a conventional trial on the merits . . . it will be presumed for appeal purposes that
the Court intended to, and did, dispose of all parties legally before it and of all issues
made by the pleadings between such parties.”). A Mother Hubbard clause—“a
recitation that all relief not expressly granted is denied”—can indicate finality after
a trial on the merits. Lehmann, 39 S.W.3d at 203–04. Only if there is doubt as to the
finality of a judgment rendered after a conventional trial may the appellate court
review the record to resolve the issue. See In re R.K.K., 590 S.W.3d at 541.
Here, the final judgment, rendered after a conventional trial on the merits,
unequivocally recites that “[a]ny relief not granted herein is denied” and that it is a
“final, appealable judgment that resolves all matters between all parties.” This
language follows the trial court’s numerous legal conclusions expressly stating that
Wood shall “take[ ] nothing” as to his claims on various properties; awarding
reimbursement on others; concluding that five properties “cannot be fairly
partitioned”; and appointing a receiver to conduct a public sale of those properties,
and then distribute the proceeds to “Wood in the amount of $259,208.76,” with “the
remainder to Wood and Wiggins, equally.” Wood focuses on the fact that the
judgment does not use specific language such as “ordered,” “decreed,” or
“adjudged.” But no magic language is required for finality, and as stated above, the
final judgment expressly states that it disposes of the parties’ claims and is intended
to be a final, appealable judgment. See In re Guardianship of Jones, 2021 WL
174228048, at *3 (holding that probate order was final and appealable even though it
did not contain any decretal language, such as “ordered, adjudicated, and decreed,”
because it granted the motions to dismiss and expressly stated it was “final order”
that constituted “the dismissal of the Bill of Review filed in th[at] case”).
The trial court’s intent to render a final, appealable judgment that resolved all
matters between the parties is clear. See Bella Palma, LLC v. Young, 601 S.W.3d
799, 801 (Tex. 2020) (“Although no ‘magic language’ is required, a trial court may
express its intent to render a final judgment by describing its action as (1) final, (2) a
disposition of all claims and parties, and (3) appealable.”); Lehmann, 39 S.W.3d at
206 (“A statement like, ‘This judgment finally disposes of all parties and all claims
and is appealable’, would leave no doubt about the court’s intention.”). There is no
equivocation or doubt in the language used sufficient to overcome the presumption
of finality or to require us to look to the record to determine whether the judgment
is indeed final. See Bella Palma, 601 S.W.3d 799 at 801–02; Vaughn, 324 S.W.3d
at 562–63. Irrespective of the trial court’s inclusion of findings of fact in the final
judgment, the judgment was “final and appealable because there was no question the
trial court intended it to be so.” Bella Palma, 601 S.W.3d at 802; see also Lehmann,
39 S.W.3d at 206 (“An express adjudication of all parties and claims in a case is not
interlocutory merely because the record does not afford a legal basis for the
adjudication. In those circumstances, the order must be appealed and reversed.”).
18
Therefore, based on its unambiguous language, we hold that the trial court’s
final judgment is final and appealable. As such, we overrule Wood’s first issue.
Partition
In his second issue, Wood argues that the trial erred in both (1) ordering the
partition by sale of five of the properties jointly owned by Wood and Wiggins and
(2) appointing a receiver to effectuate such a sale because Wiggins gave up his right
to partition. Wood notes that although the right to partition is absolute, parties may
expressly or implicitly agree to limit or modify the right to partition. According to
Wood, Wiggins did exactly that, as evidenced by the trial court’s finding that Wood
and Wiggins each agreed that whoever “took control of the [respective] property at
the outset decided what to do with the property – rent, sell, hold, etc.”
A. Standard of Review
The rules of equity govern the trial court’s partition of property. Williams v.
Mai, No. 01-11-00611-CV, 2012 WL 6644704, at *4 (Tex. App.—Houston [1st
Dist.] Dec. 20, 2012, no pet.) (mem. op.). “A trial court exercises broad discretion
in balancing the equities involved in a case seeking equitable relief.: Bowman v.
Stephens, 569 S.W.3d 210, 223 (Tex. App.—Houston [1st Dist.] 2018, no pet.). An
appellate court will not disturb a trial court’s ruling on a claim seeking equitable
relief unless it is arbitrary, unreasonable, or without regard to guiding legal
principles. Id. When facts are disputed, a trial court does not abuse its discretion if
19
some of the conflicting evidence supports its decision. City of Keller v. Wilson, 168
S.W.3d 802, 820 (Tex. 2005).
B. Analysis
In his counterclaim, Wiggins sought the “equitable remedy of partition by
sale” of the properties still jointly owned with Wood: (1) Fairfield Court, (2) Sealy
Avenue, (3) Oaklawn Street, (4) Tremont Street, and (5) 22nd Avenue.4 Texas law
will not force a reluctant joint owner of real property to maintain joint ownership.
Bowman, 569 S.W.3d at 220. Instead, a joint owner of real property “may compel a
partition of the interest or the property among the joint owners . . . under [Chapter
23 of the Property Code] and the Texas Rules of Civil Procedure.” TEX. PROP. CODE
§ 23.001. This right to partition is considered absolute. Moseley v. Hearrell, 171
S.W.2d 337, 338 (Tex. 1943); Bowman, 569 S.W.3d at 223.
Rule 770 of the Texas Rules of Civil Procedure governs the judicially ordered
sale of land held by cotenants. TEX. R. CIV. P. 770. Regarding when real property
should be partitioned in kind or partitioned by sale, Rule 770 provides:
Should the court be of the opinion that a fair and equitable division of
the real estate, or any part thereof, cannot be made, it shall order a sale
of so much as is incapable of partition, which sale shall be for cash, or
4
In his counterclaim, Wiggins initially sought the equitable partition of two
additional properties: (1) Jennings Street and (2) Bayshore Drive. At trial, however,
Wiggins agreed to no longer seek partition of these properties because they were
owned by Wood and Wiggins together with two other co-owners. Wiggins agreed
to seek partition of only the remaining five properties that were jointly owned by
Wood and Wiggins alone.
20
upon such other terms as the court may direct, and shall be made as
under execution or by private or public sale through a receiver, if the
court so order, and the proceeds thereof shall be returned into court and
be partitioned among the persons entitled thereto, according to their
respective interests.
Id. Whether a property can fairly be partitioned in kind is a question of fact for the
factfinder to decide. Cecola v. Ruley, 12 S.W.3d 848, 853 (Tex. App.—Texarkana
2000, no pet.). Texas law favors partition in kind over partition by sale, and the
burden is on the party seeking a sale to justify it. Id.Although owners of land generally have the right to partition their realty, they
can waive that right through expressed or implied agreement. Lichtenstein v.
Lichtenstein Building Corp., 442 S.W.2d 765, 769 (Tex. App.—Corpus Christi
1969, no writ). If they so agreed, the party who sought a partition will be estopped
from asserting such a right. Benson v. Fox, 589 S.W.2d 823, 825–26 (Tex. App.—
Tyler 1979, no writ); Odstrcil v. McGlaun, 230 S.W.2d 353, 354–55 (Tex. App.—
Eastland 1950, no writ). Consequently, the relinquishment of the right to partition
has been characterized as an estoppel or waiver. Sherbet v. Bender, No.
05-14-01047-CV, 2015 WL 7179659, at *2 (Tex. App.—Dallas Nov. 16, 2015, no
pet.) (mem. op.); Williams v. Moody Land & Cattle, L.P., No. 07-02-0362-CV, 2005
WL 700975, at *1 (Tex. App.—Amarillo Mar. 28, 2005, no pet.) (mem. op.); see
also Davis v. Davis, 44 S.W.2d 447, 450 (Tex. App.—Texarkana 1931, no writ)
21
(holding that the “agreement [not to partition] act[s] as an estoppel against the right
to partition or as a waiver of such right”).
Here, Wood’s argument is that Wiggins waived the right to seek, or is
estopped from seeking, partition of these five properties because he agreed that
Wood was “in charge of whatever goes on with them.” According to Wood, this
waiver or estoppel should have precluded the trial court from ordering the partition
of these properties and appointing a receiver. But the defenses of waiver and estoppel
are affirmative in nature and must be pleaded and proved. TEX. R. CIV. P. 94 (“[A]
party shall set forth affirmatively . . . estoppel, . . . waiver, and any other matter
constituting an avoidance or affirmative defense.”); Rice Food Markets, Inc. v.
Williams, 47 S.W.3d 734, 736 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)
(“Waiver and estoppel are affirmative defenses that must be pleaded and proved.”).
Where an affirmative defense such as estoppel or waiver is not pleaded or tried by
consent, it is waived. See In re S.A.P., 156 S.W.3d 574, 576 (Tex. 2005).
Given this, it was incumbent upon Wood to affirmatively plead that Wiggins
was estopped from partitioning these properties or had waived his right to do so.
This, Wood did not do. The only affirmative defense raised in Wood’s answer to
Wiggins’s counterclaim for partition was unclean hands. At trial, counsel for Wood
stated that he did not “really agree to [partition of these five properties] for a variety
of reasons,” but did not argue that Wiggins had expressly or implied contracted away
22
his right to partition.5 Though Wood raised Wiggins’s alleged agreement not to
partition and estoppel argument in his motion for new trial, “[a]n affirmative defense
that is not pleaded or proved and on which findings are not obtained is waived and
cannot be preserved by raising the affirmative defense for the first time in a motion
for new trial.” Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268
(Tex. App.—Houston [1st Dist.] 2005, pet. denied).
Having failed to plead the affirmative defenses of estoppel or waiver, Wood
has waived his right to challenge the partition and appointment of a receiver on these
bases. See Williams, 2005 WL 700975, at *1 (holding appellant’s objections to
introduction of evidence of agreement not to partition were waived because
appellant failed to affirmatively plead estoppel or waiver). Accordingly, we overrule
Wood’s second issue.
Statute of Frauds
In his fourth issue, Wood contends the trial court erred in applying the statute
of frauds.6 Wood argues that because his oral partnership agreements with Wiggins
5
Wood’s counsel also stated that “at some point, all real estate has to be sold,” and
although he did not have the authority to commit to anything, he would “discuss
with . . . Wood the possibility of entering into a receivership or some other
agreement or agreed order from the Court to market the properties.”
6
Wood challenges the sufficiency of the evidence related to the trial court’s findings
that the statute of frauds bars his claims as to the following specific properties:
(1) Champions Court; (2) Fairfield Court; (3) Hidden Lake; (4) John Silver Road;
(5) Loan Oak Drive; (6) Sealy Avenue; (7) Southern Hills Drive; and (8) Warsaw
Drive. In his eighth issue, Wood also argues that the trial court erred in failing to
23
did not involve the conveyance of real property and each oral agreement was capable
of being performed within one year, the statute of frauds was inapplicable. In
response, Wiggins argues that Wood’s argument should be rejected because he fails
to demonstrate that the oral agreements to “buy, fix, and sell” could have been
performed within a year, there was evidence to the contrary on specific transactions,
and the court also found that the parties had oral agreements involving real estate.7
A. Standard of Review and Applicable Law
The statute of frauds concerns problems of proof and exists to prevent fraud
and perjury in certain types of transactions by requiring agreements to be in writing
and signed by the party to be charged. Haase v. Glazner, 62 S.W.3d 795, 799 (Tex.
find for him on his breach of contract claims as to the Waverly Canyon Properties.
Because we find Wood failed to challenge all independent grounds for denying
recovery as to Champions Court, we must affirm the trial court’s judgment as to this
property and do not address the statute of frauds issue as it relates to Champions
Court. Likewise, because we find Wood did not prove his claims as to Hidden Lake
by a preponderance of the evidence, we do not address the statute of frauds issue as
it relates to Hidden Lake.
7
Wiggins also argues that he satisfied his initial burden to show that the agreement
fell within the statute of frauds simply because the evidence was undisputed that
any agreement he had with Wood was oral. We disagree. Not all oral agreements
will fall within the statute of frauds. Only agreements specifically identified in
Section 26.01(b) of the Texas Business and Commerce Code are required to be in
writing. See TEX. BUS. & COM. CODE § 26.01(a). Thus, it was Wiggins’s burden to
demonstrate that the agreement between himself and Wood was both oral and was
one of the types of agreements specified by Section 26.01(b). See TEX. BUS. & COM.
CODE § 26.01(a), (b)(2); TEX. R. CIV. P. 94; Dynegy, Inc. v. Yates, 422 S.W.3d 638,
642 (Tex. 2013). Thereafter, the burden would shift to Wood to demonstrate an
exception taking the oral agreements out of the statute of frauds. Dynegy, 422
S.W.3d at 642–43.
24
2001); see also TEX. BUS. & COM. CODE 26.01(a). The statute of frauds is an
affirmative defense and renders a contract that falls within its purview
unenforceable. TEX. BUS. & COM. CODE 26.01(a); TEX. R. CIV. P. 94. Here, Wiggins
pleaded the statute of frauds as an affirmative defense and thus had the initial burden
to establish that the alleged promise fell within the statute of frauds. See TEX. BUS.
& COM. CODE § 26.01(a), (b)(2); TEX. R. CIV. P. 94. Whether a contract comes within
the statute of frauds is a question of law, which we review de novo. Dynegy, Inc. v.
Yates, 422 S.W.3d 638, 642 (Tex. 2013).
Section 26.01 of the Texas Business and Commerce Code provides that “a
contract for the sale of real estate” or “an agreement which is not to be performed
within one year from the date of making the agreement” is not enforceable unless it
“is (1) in writing; and (2) signed by the person to be charged with the promise or
agreement or by someone lawfully authorized to sign for him.” TEX. BUS. & COM.
CODE § 26.01(a)(1), (2), (b)(4), (6).
B. Analysis
With respect to the Waverly Canyon Properties, in April 2007, the parties
entered an oral agreement that (1) they would purchase these properties, which were
being sold at a tax foreclosure sale; (2) each would pay 50 percent of the purchase
price, receive a 50 percent interest in the property, and receive 50 percent of the
rents, if any, and profits or losses following a sale; and (3) Wiggins would be in
25
charge of the management, upkeep, and maintenance of these properties. On April
4, 2007, Wood paid Wiggins $135,000, which was half of the purchase price of
$270,000 for all three Waverly Canyon Properties. Because only one name can be
included on the original deed following a tax sale, only Wiggins’s name was
included on the deeds for the Waverly Canyon Properties. Per their agreement,
Wiggins signed deeds to Wood for his one-half interest in the Waverly Canyon
Properties a few days after he purchased the properties. Wiggins testified that rent
was collected on one of the three properties almost immediately after the sale and
that the other two properties were rented out about two months later. Each was rented
until July 2009 until the redemption occurred.
The same, or similar acts, occurred when Wood and Wiggins purchased the
other properties (Fairfield Court; John Silver Road; Loan Oak Drive; Sealy Avenue;
Southern Hills Drive; and Warsaw Drive). For instance, Wiggins testified that it was
generally the practice between he and Wood for whoever bought a property at a tax
sale to get the initial deed in his name and then “handle the ownership documentation
later,” by sending a deed conveying a one-half (or other applicable interest) to the
other party or parties. This occurred for a number of properties, including Sealy
Avenue, Warsaw Drive, and Fairfield Court. On the others—John Silver Road, Loan
Oak Drive, and Southern Hills Drive—the deed to the property was taken in the
name of both Wood and Wiggins (and others). Each of these properties was either a
26
“50/50 deal” between Wood and Wiggins, or they took equal interests in the property
along with other co-owners.
We first consider Wood’s argument that the agreements were not for the sale
of real estate because they were oral partnership agreements “for joint investment
and sharing of expenses, losses and profits.” We disagree. In support of his
argument, Wood cites to Sewing v. Bowman, where this Court held that a partnership
agreement contemplating dealings in real estate “simply does not involve” transfer
or interest in real estate within meaning of the statute of frauds. 371 S.W.3d 321,
330 (Tex. App.—Houston [1st Dist.] 2012, pet denied). This Court concluded that
the plaintiff’s “claim for redemption of his partnership interest may include an
interest in the proceeds from the sale of the two properties without resulting in a
transfer of interest in the two properties.” Id. “Merely because a partnership
agreement contemplates transactions in real estate does not transform the partnership
itself into a transaction for the sale of real estate, bringing it under the statute of
frauds.” Id.Sewing relied on an earlier case from this Court. See id. (citing Berne v. Keith,
361 S.W.3d 592 (Tex. App.—Houston [1st Dist.] 1962, writ ref’d n.r.e.)). In Berne,
the parties agreed that Keith would invest some of his personal funds in a
development project and would receive a portion of the profits of the project as
compensation for his work performed on the project. 361 S.W.3d at 594–95. This
27
Court considered whether Keith’s claims were “to an interest in land, or to a right in
land or the proceeds thereof, which cannot be established or enforced upon an oral
agreement.” Id. at 595. The Court recited the majority rule that a “parol partnership
agreement or joint enterprise entered into by two or more persons, for the purpose
of purchasing and selling real estate or interests therein for speculation, the profits
to be divided among the parties, is not within the statute of frauds relating to the sale
of lands or an interest therein, and that such an agreement may become effectual and
suit maintained thereon, though not in writing.” Id. at 597. In concluding that the
claims asserted by Keith were not to an interest in land, and thus not barred by the
statute of frauds, this Court considered it persuasive that the “oral agreement d[id]
not expressly or by necessary implication give appellee an interest in the land or in
the proceeds from the sale of lands or any part thereof,” and “Keith could not require
appellants to sell the land or any part thereof, nor could he interfere with appellants’
sale of the land for any price or under any conditions.” Id. at 596–97.
We find the facts of Sewing and Berne distinguishable. In Sewing, the plaintiff
alleged that he and Sewing “entered into [a]n agreement in or around 2003 wherein
Bowman provided in excess of $260,000 to [Sewing] between 2003 and 2005 as
capital for the purpose of acquiring and rehabilitating real property.” Id. at 324. The
agreement provided that the plaintiff and Sewing “were to each own 50 percent of
the two properties, which were held in the name of Sewing and his wife, Patricia
28
Sewing, and the money sent from [the plaintiff] was deposited into the Sewings’
checking account.” Id. (emphasis added). The plaintiff asserted that the goal “was to
create a partnership and combine their resources and make a profit on the
appreciation in the value of the properties and share in rental income until the
properties were later sold.” Id.
The agreement in Sewing thus did not involve any transfer of interest in real
property between the plaintiff and Sewing—the properties remained titled in the
names of Sewing and his wife. And the plaintiff argued that the agreement did not
involve any conveying of title to the property but merely established a venture to
profit from its sale. Likewise, in Berne, nothing in the parties’ agreement gave Keith
an interest in the land, and he was “not seeking a transfer of any interest in” the
defendant’s real estate. 361 S.W.2d at 597. Instead, he sought “an accounting of a
share in the profits as compensation for services rendered in a project involving
speculation in real property which he asserts became due him upon completion of
the project.” Id. (emphasis added).
Unlike in Sewing and Berne, the agreements between Wiggins and Wood
contemplated, and in fact required, a transfer of an interest in real property. The
evidence shows the parties agreed to purchase the Waverly Canyon Properties and
that each would receive a 50 percent interest in those properties. After Wiggins
purchased the Waverly Canyon Properties at the tax sale, having received 50 percent
29
of the purchase price from Wood, Wiggins deeded a fifty percent interest to Wood
in each of the three properties. The same is true for the other properties—each
involved an agreement to purchase the property in which the property was either
deeded to one party, who then deeded the agreed-upon interest to the other party, or
to both parties upon purchase. And although Wood claims he is not seeking to
enforce an oral agreement to convey real property, he is seeking damages and
reimbursement for expenses, purchase price, and profits from the sale of these
properties based on his interest in those properties. We do not see a way around
concluding that these agreements involved the transfer of an interest in land.
The distinguishing factor between property-related agreements that are barred
by the statute of frauds and those that are not is whether the agreement provides for
the transfer of an interest in land from one party to another. Those agreements that
provide for, contemplate, or require a transfer of an interest in land from one party
to another are barred by the statute of frauds. See Bakke Dev. Corp. v. Albin, No.
04-15-00008-CV, 2016 WL 6088980, at *3 (Tex. App.—San Antonio Oct. 19, 2016,
no pet.) (mem. op., op. on reh’g) (rejecting appellant’s argument that partnership
was formed for purpose of jointly developing real property and did not require
conveyance of land, such that statute of frauds would not apply to oral partnership
agreement, where testimony and pleadings showed “contribution” of respective
properties would take place through a formal conveyance to partnership); Carpenter
30
v. Phelps, 391 S.W.3d 143, 153 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(explaining that partnership agreement requiring transfer of real estate to partnership
violates statute of frauds because “an interest in real estate cannot become a
partnership asset unless the agreement concerning the property is in writing the same
as any other contract concerning the sale of land”); Mangum v. Turner, 255 S.W.3d
223, 227 (Tex. App.—Waco 2008, pet. denied) (“Generally, the statute of frauds
applies to an oral agreement when the performance promised requires an act that
will transfer property in land.” (internal quotation omitted)).
Because Wood and Wiggins’s oral agreements regarding the Waverly Canyon
Properties, as well as the Fairfield Court, John Silver Road, Loan Oak Drive, Sealy
Avenue, Southern Hills Drive, and Warsaw Drive properties, contemplated the
transfer of an interest of land, Wiggins met his burden to show that the oral
agreements fell within the statute of frauds.8 The burden then shifted to Wood to
establish an exception that would take the oral agreements out of the statute of
frauds. See Dynegy, 422 S.W.3d at 642.
Wood argues that his partial performance of the oral agreements with Wiggins
operates to exempt the oral agreements from the statute of frauds, even if they
8
Having concluded that the oral agreements contemplating the transfer of property
rights fell within the statute of frauds, we need not address Wiggin’s alternative
claim that the agreements are barred by the statute of frauds because they could not
be performed within one year.
31
involved the sale of real property. But in order to rely on this exception to the
applicability of the statute of frauds, Wood was required to plead, prove, and obtain
a finding on this exception. See id. (holding plaintiff relying on main purpose
doctrine as exception to statute of frauds, had burden to plead and establish facts to
take verbal contract out of statute of frauds and, where plaintiff failed to secure
findings on exception, issue was waived); Parks v. Landfill Mktg. Consultants, Inc.,
No. 14-02-01243-CV, 2004 WL 1351545, at *5 (Tex. App.—Houston [14th Dist.]
June 17, 2004, pet. denied) (mem. op.) (holding because appellees did not plead or
try partial performance exception to statute of frauds by consent, it was waived).
Wood did not raise the partial performance exception in any iteration of his
crossclaim. Nor do we see evidence in the record that the exception was tried by
consent. See Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.—Houston [14th
Dist.] 2003, no pet.) (explaining unpleaded issue may be deemed tried by consent
when evidence is developed under circumstances indicating both parties understood
issue was in case). During opening statements, Wood’s counsel addressed the statute
of frauds by arguing that he was not suing for “the conveyance of real property,
which is what the [s]tatute of [f]rauds speaks to,” but rather “the division of the
proceeds of the property.” He further argued that there was no dispute as to title,
only a dispute as to “what was done with the money.” He did not raise the issue he
raises now, i.e., that even if the agreements involved the sale of real estate (or could
32
not be performed in one year), that partial performance should take the agreements
out of the statute of frauds. See Aguirre v. Pompa, No. 11-14-00168-CV, 2016 WL
2974817, at *2 (Tex. App.—Eastland May 19, 2016, no pet.) (mem. op.) (holding
partial performance exception to statute of frauds was tried by consent, in part,
because plaintiff’s counsel argued at end of trial that “case law established that
‘partial compliance with a verbal agreement is good enough to establish [the
existence of] the agreement’ and further argued that the record was replete with
testimony regarding Appellee’s performance of the agreement”). The only reference
we can find in the record to the partial performance exception is in Wood’s proposed
findings of fact and conclusions of law, which were filed after trial.
Further, the trial court did not make any finding as to the partial performance
exception, and Wood did not file a request for additional or amended findings.
Because “it is presumed that all fact findings needed to support the judgment were
made by the trial court,” a party’s failure “to request additional amended findings or
conclusions waives the party’s right to complain on appeal about the presumed
finding.” Smith v. Smith, 22 S.W.3d 140, 149 (Tex. App.—Houston [14th Dist.]
2000, no pet.).
Under these circumstances, we conclude that Wood did not plead the partial
performance exception or try it by consent. Neither did he secure a finding of fact or
conclusion of law from the trial court as to the exception. Therefore, he has waived
33
it. Dynegy, 422 S.W.3d at 642; Parks, 2004 WL 1351545, at *4–5. We hold that the
oral agreements as to the Waverly Canyon Properties, as well as the Fairfield Court,
John Silver Road, Loan Oak Drive, Sealy Avenue, Southern Hills Drive, and
Warsaw Drive properties, fall within the statute of frauds, and Wood’s claims as to
those properties are barred. Accordingly, we overrule Wood’s fourth issue.9
Laches
In his fifth issue, Wood argues that the trial court erred in applying the
doctrine of laches to bar his claims as to the following six properties: (1) Champions
Court; (2) Hidden Lake; (3) John Silver Road; (4) Loan Oak Drive; (5) Southern
Hills Drive; and (6) Warsaw Drive. He also challenges the trial court’s conclusion
of law that his “equitable claims against Wiggins, including breach of fiduciary duty,
are barred by . . . laches.” According to Wood, Wiggins failed to present evidence
of either unreasonable delay or prejudice by changing his position, both of which are
elements of the laches defense. See In re Mabray, 355 S.W.3d 16, 22–23 (Tex.
App.—Houston [1st Dist.] 2010, orig. proceeding) (laches is affirmative defense
requiring proof of (1) unreasonable delay in asserting legal or equitable rights, and
9
Because of our disposition of Wood’s fourth issue relating to the statute of frauds,
we do not address Wood’s third issue that the trial court erred in applying the statute
of limitations to his claims as to the John Silver Road, Loan Oak Drive, Southern
Hills Drive, and Warsaw Drive properties. See TEX. R. APP. P. 47.1. Additionally,
in his eighth issue, Wood argues that the trial court erred by failing to find in his
favor on his breach of contract claim as to the Waverly Canyon Properties. Because
we hold that the statute of frauds bars Wood’s claims as to these properties, we do
not address Wood’s eighth issue. See id.
34(2) good faith change of position by another to his detriment because of
unreasonable delay).
Because we hold that Wood’s claims as to John Silver Road, Loan Oak Drive,
Southern Hills Drive, and Warsaw Drive are barred by the statute of frauds, and that
Wood failed to prove by a preponderance of the evidence his claims as to Hidden
Lake, we do not address Wood’s alternative argument based on laches as to these
five properties, leaving only Champions Court. In addition to concluding that laches
applied to this property, the trial court also concluded that Wood should take nothing
because (1) he “failed to provide adequate notice of his claim as to Champions
C[ourt] in his pleadings and in his responses to requests for disclosure” and (2) the
statute of frauds barred the claim. Though Wood challenges the trial court’s
application of the statute of frauds to Champions Court, he does not attack the trial
court’s conclusion that he failed to provide adequate notice of his claim to this
property. Because he fails to challenge one of the trial court’s independent grounds
for denying recovery as to Champions Court, we must affirm the trial court’s
judgment as to this property. See Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d
676, 681 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“[A]n appellant must
attack all independent bases or grounds that fully support a complained-of ruling or
judgment. If an appellant does not, then we must affirm the ruling or judgment.”)
35
Finally, because we conclude below that unclean hands bars Wood’s equitable
claims, we do not address Wood’s alternative argument related to the trial court’s
application of laches to his equitable claims.
We overrule Wood’s fifth issue.
Fashioning A Remedy
In his sixth issue, Wood contends the trial court erred by fashioning a remedy
that is contingent upon the sale of the following five properties: (1) Fairfield Court,
(2) Sealy Avenue, (3) Oaklawn Street, (4) Tremont Street, and (5) 22nd Avenue.
Wood first argues that because he prevailed on his reimbursement claim, he is
entitled to a full award that is not contingent upon or delayed until after the receiver
sells the properties. Wood also contends that the trial court’s reimbursement award
“short[s]” him on the full reimbursement to which he is entitled because the trial
court ordered that he be paid the $259,208.76 reimbursement amount first, and then
ordered that the remaining amount be split equally between Wood and Wiggins.
According to Wood, he should first receive 50 percent of the partition amount, and
then the court-ordered reimbursement amount should be taken from Wiggins’s 50
percent and added to his total.
We do not agree that the trial court abused its discretion by appointing a
receiver and ordering that Wood be reimbursed from the proceeds of the sale of the
36
five properties that could not be fairly partitioned. As this Court previously
observed:
Pursuant to [Texas Rule of Civil Procedure ] 770, . . . receivers have
been appointed in practically every partition case. Rule 770 provides
that a receiver may be appointed and property sold if the court “be of
the opinion that a fair and equitable division of the real estate, . . . cannot
be made . . .” The appointment of a receiver lies within the discretion
of the court and may be invoked whether specifically prayed for or not.
Green v. Doakes, 593 S.W.2d 762, 764 (Tex. App.—Houston [1st Dist.] 1979, no
writ) (internal citations omitted); see also O & G Carriers, Inc. v. Smith Energy
1986-A P’ship, 826 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1992, no writ)
(noting trial court’s appointment of receiver will not be disturbed on appeal unless
record reveals clear abuse of discretion).
Moreover, the trial court has both “statutory and inherent authority to enforce
[its] orders and decrees beyond their plenary power.” Fuentes v. Zaragoza, 534
S.W.3d 658, 665 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see also Arndt v.
Farris, 633 S.W.2d 497, 499 (Tex. 1982) (“The general rule is that every court
having jurisdiction to render a judgment has the inherent power to enforce its
judgments.”). Texas Rule of Civil Procedure 308 provides trial courts with
continuing jurisdiction to enforce judgments. See TEX. R. CIV. P. 308; see also TEX.
GOV’T CODE § 21.001(a) (“A court has all powers necessary for . . . the enforcement
of its lawful orders[.]”). We do not agree that Wood’s concerns regarding what
happens if the proceeds from the sale of the properties are not sufficient to cover his
37
reimbursement award warrant reversal considering the trial court’s power to enforce
its judgments.
We do, however, agree that the trial court abused its discretion in not awarding
Wood the correct reimbursement amount in the judgment. Under the trial court’s
final judgment, the $259,208.76 reimbursement amount was to be taken from the net
proceeds of the sale of the five properties before any distribution was made to the
parties. Such a procedure would result in Wood being reimbursed only in the sum of
$129,604.38, since the $259,208.76 payment to him was to be made out of the
undivided funds to which he was entitled to half. Meaning, he was already entitled
to one-half of the proceeds from the sale of the five properties subject to partition,
in addition to any reimbursement amount awarded by the trial court, because both
he and Wood owned an undivided one-half interest in these properties. Therefore,
the judgment should have provided that after the net proceeds from the sale of the
five properties were divided equally between Wood and Wiggins, $259,208.76
should be paid from the share of Wiggins to Wood.
We hold that the provisions of the judgment did not properly reimburse Wood
for the $259,208.76 found by the trial court, and agreed to by the parties, to be owing
to Wood for various expenses on a number of jointly owned properties. Therefore,
the judgment of the trial court is modified to provide that after the net proceeds from
the sale of the five properties are equally divided between Wood and Wiggins, the
38
sum of $259,208.76 should be subtracted from Wiggins’s share and awarded to
Wood. Cf. Collins v. Collins, 540 S.W.2d 497, 499 (Tex. App.—Tyler 1976, no writ)
(holding trial court failed to award correct amount of reimbursement in divorce
action because order provided for reimbursement to be taken out of sale of
community residence before any distribution was made to parties, resulting in
appellant being reimbursed only half of what was owed because payment was to be
made out of undivided community funds).
We sustain this portion of Wood’s sixth issue.
Unclean Hands
In his seventh issue, Wood contends the trial court erred in finding that he had
unclean hands. Wood argues that because unclean hands is an affirmative defense,
Wiggins had to prove “he has been seriously harmed and the wrong complained of
cannot be corrected without applying unclean hands,” and Wiggins “utterly failed”
to do so. Therefore, according to Wood, there is legally and factually insufficient
evidence to support the trial court’s unclean-hands findings.
A. Standard of Review
To recover in equity, Wood had to have clean hands. See Truly v. Austin, 744
S.W.2d 934, 938 (Tex. 1988). Whether to apply the doctrine of unclean hands is
committed to a trial court’s discretion. In re Jim Walter Homes, Inc., 207 S.W.3d
888, 899 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The doctrine will be
39
applied only to “one whose own conduct in connection with the same matter or
transaction has been unconscientious, unjust, or marked by a want of good faith, or
one who has violated the principles of equity and righteous dealing.” Id. In addition,
the complaining party must show an injury to himself arising from the conduct. In
re Noelle, 265 S.W.3d 487, 494 (Tex. App.—Houston [1st Dist.] 2008, orig.
proceeding). “The clean hands maxim should not be applied when the defendants
have not been seriously harmed and the wrong complained of can be corrected
without applying the doctrine.” In re Jim Walter Homes, 207 S.W.3d at 899.
However, an appellate court “will not disturb a trial court’s ruling on a claim
seeking equitable relief unless it is arbitrary, unreasonable, and unsupported by
guiding rules and principles.” Sister Initiative, LLC v. Broughton Maint. Ass’n, Inc.,
No. 02-19-00102-CV, 2020 WL 726785, at *29 (Tex. App.—Fort Worth Feb. 13,
2020, pet. denied) (mem. op.) (quoting Edwards v. Mid-Continent Office Distribs.,
L.P., 252 S.W.3d 833, 836 (Tex. App.—Dallas 2008, pet. denied)). The trial court
“exercises broad discretion in balancing the equities involved in a case seeking
equitable relief.” Id. (quoting Edwards, 252 S.W.3d at 836).
B. Analysis
The trial court found that because Wood breached his fiduciary duties to
Wiggins, he did not have clean hands and, therefore, Wood’s “equitable claims
against Wiggins, including breach of fiduciary duty, [were] barred by the doctrine
40
of unclean hands[.]” The trial court also made the following specific findings that
support this conclusion:
• Nothing in the record indicates that Wiggins or Wood consulted with
the other . . . on whether to rent or sell, what repairs or improvements
to make, or how much to spend in making such repairs or
improvements.
• One owner simply did what he chose to do and then expected the
other(s) to pay an equal portion of the costs.
• The evidence indicates that Wood charged Wiggins and other
co-owners various management fees and inflated actual expenses to
provide additional profit for himself. There is nothing to indicate that
any other owner did the same to Wood. There is also nothing to indicate
that any co-owner agreed to this arrangement.
• Documentation, if it existed, rarely indicated who paid for what on
which occasion. Further, there was no consistent documentation for any
given property, nor was there a particular deadline or form for
repayment.
• Wood had his own “system” of record keeping, but it was not a
consistent, well organized, or reliable system.
• The evidence also indicates that there were inconsistencies, inaccurate
entries, missing entries, duplicate or triplicate entries, and items being
charged to the wrong properties.
• In many instances, Wood billed Wiggins for expenses but failed to
provide any documentation to support those expenses.
• Wood charged management fees to the co-owners of shared properties
without their agreement.
• Wood made a profit on the carpet, furniture, fixtures, and supplies he
sold to his co-owners in order to repair and refurbish the properties.
Yet, he charged these as pass-through costs without informing his co-
owners that he was making a profit on these “expenses.”
41
• Both Wiggins and Wood collected rents on shared properties without
accounting to their co-owners for those rents received and without
segregating those monies, which was a breach of their fiduciary duties
to each other and to the other owners.
• Wiggins and Wood incurred significant expenses on various properties
without informing the other, which was a breach of fiduciary duty to
the other.
• Wiggins and Wood also allowed properties to be maintained without
making them rentable or otherwise attempting to rent them, thereby
incurring costs without income, which was another breach of fiduciary
duty to the other.
• Wood did not keep accurate accounts of expenses, passed on inflated
expenses to the co-owners without their permission or knowledge so
that he made additional profits and did not properly allocate expenses,
improperly charged additional fees to the co-owners, and may have
billed co-owners for expenses not actually incurred. These were
breaches of his fiduciary duties.
• Holding money or rents owed to another co-owner for months or even
years was very common between and among Wiggins, Wood, and the
other people with whom they shared properties. Withholding money
like this was a breach of fiduciary duty by each party.
• After September 2008, the parties ceased to treat each other as partners
or joint venturers, as they regarded themselves, and each breached one
or more fiduciary duties to the other so that neither has clean hands in
their respective dealings with each other on the subject properties.
Wood does not challenge any of the above findings in connection with his
unclean-hands argument. Instead, he contends that Wiggins failed to show how he
was harmed by Wood’s alleged breaches of his fiduciary duties. But the findings set
forth above demonstrate harm. For example, the trial court found that Wood passed
on inflated expenses to Wiggins and the other co-owners; billed for expenses without
42
documentation; improperly charged fees to the co-owners; and may have billed the
co-owners for expenses not actually incurred. Though Wood argues that Wiggins
could not have been harmed because he has yet to pay for any expenses billed, it is
those expenses that Wood seeks to recover as damages in this lawsuit. Based on the
above-findings and evidence, we hold the trial did not abuse its discretion in
applying the doctrine of unclean hands to bar Wood’s equitable claims, including
his claims for breach of fiduciary duty. See Grant v. Laughlin Envtl., Inc., No. 01-
07-00227-CV, 2009 WL 793638, at *8 (Tex. App.—Houston [1st Dist.] Mar. 26,
2009, pet. denied) (mem. op.) (“By breaching his fiduciary duties and committing
fraud, [appellant] did not have “clean hands.”).
We overrule Wood’s seventh issue.
Preponderance of the Evidence
In his ninth issue, Wood challenges the legal and factual sufficiency of the
following findings of fact:
• Finding of Fact 8: “Wood had his own ‘system’ of record keeping, but
it was not a consistent, well organized, or reliable system. Each person
and the management company had his/her/its own system of filing
which was different from the others. Filing systems and computerized
systems changed and had to be reconciled. Data entry was often
backlogged for several months or longer.”
• Finding of Fact 9: “The evidence also indicates that there were
inconsistencies, inaccurate entries, missing, entries, duplicate or
triplicate entries, and items being charged to the wrong properties.
Many of the records were not clearly labeled for particular properties
and could have been for any of his approximately 200 properties.”
43
• Finding of Fact 24: “Wood’s testimony was based on wholly unreliable
records.”
• Finding of Fact 31: “Wood’s testimony and exhibits were generally
unreliable.”
He contends that he presented credible evidence of the right to reimbursement
and damages as to Tremont Street, Jennings Street, and Oaklawn Street in the
following amounts:
• Tremont Street: $62,112;
• Jennings Street: $12,211.73; and
• Oaklawn Street: $16,100.
In contrast, the trial court concluded that the following amounts as to each property
were owed between the parties:
• Tremont Street: $36,400 (Wiggins owed to Wood);
• Jennings Street: $4,288 (Wood owed to Wiggins); and
• Oaklawn Street: $9,230 (Wiggins owed to Wood).
Wood argues that the trial court erred in failing to award him an award of monetary
damages in the amounts he asserts were established by his credible evidence as to
these three properties.10
10
Wood also challenges the amount of the award as to the following seven properties:
(1) Hidden Lake, (2) Lone Oak Drive, (3) Warsaw Drive, (4) John Silver Road,
(5) Fairfield Court, (6) Sealy Avenue, and (7) Southern Hills Drive. Because of our
disposition of alternative arguments relating to these properties, we do not address
this argument as it applies to these seven properties. See TEX. R. APP. P. 47.1.
44
Wood argues that he presented two forms of evidence to support his claims
for reimbursement and damages: (1) Peachtree Accounting Records and (2) Support
Documents consisting of documents from third party vendors, taxing authorities,
utilities, and bank records.
He makes two arguments with respect to these documents. First, Wood argues
that the trial court failed to consider the Support Documents, which include
documents from the Galveston County Tax Office evidencing tax payments made
by Wood in the amount of $33,642.31 for Tremont Street and $4,770.26 for Jennings
Street (totaling $38,412.57), when it awarded the reimbursement amounts for the
Tremont and Jennings properties. Wood contends the trial court should have found
additional amounts owed to Wood on these properties in at least one-half of the total
tax payments made, or a total of $19,206.28, and ordered a monetary award in favor
of Wood. Second, Wood argues that the Peachtree Accounting Records were
admitted as “trustworthy” and “reliable” documents under Rule 803(6) of the Texas
Rules of Evidence, but then ignored by the trial court as “wholly unreliable.” In
doing so, Wood contends the trial court abused its discretion.
Nothing in the record suggests that the trial court refused to consider these
documents in their entirety. The trial court made no distinction in its findings
between these two categories of documents. The trial court did find that “Wood’s
testimony and exhibits were generally unreliable,” but that finding was made in
45
connection with the trial court’s finding that Wood failed to prove by a
preponderance of the credible evidence damages as to the John Silver Road, Fairfield
Court, Sealy Avenue, Lone Oak Drive, Southern Hills Drive, and Warsaw Drive
properties. The trial court further found that “Wood’s testimony and exhibits were
generally unreliable,” but that finding was not made with specific reference to either
category of documents or these three properties at issue. Rather, the trial court
included that finding after finding that “Wood failed to prove by a preponderance of
the credible evidence his claims of fraud and misapplication of funds by a fiduciary
and his claim for exemplary damages.”
Further, there was conflicting evidence as to the amount of money expended
on these three properties, in both taxes and expenses, the amount collected in rents,
and how much was owed from one party to another. As to Jennings Street, Wood’s
claim on appeal that he is entitled to half of the $4,770.26 (or $2,385.13) paid in
taxes contradicts his own trial testimony that Wiggins’s share of the taxes was
$1,902.73. Additionally, because Jennings Street was owned by two other
individuals in addition to Wood and Wiggins, Wood’s claim that he conclusively
demonstrated that he was entitled to half of the taxes paid is not supported by the
evidence. Further, Wood testified that he was owed $10,309 from Wiggins for
Jennings Street, which included one-quarter of the purchase price that Wiggins never
paid. However, Wiggins testified, and Wiggins Exhibit 8 reflected, that he repaid his
46
portion of the purchase price—$8,250.25—as part of the true up or settlement of
accounts that occurred in February 2007. And Wood admitted that if the trial court
accepted that the February 2007 reconciliation occurred as reflected in Wiggins
Exhibit 8, then Wiggins would owe $8,250.25 less than Wood claimed.
As to Tremont Street, Wood testified that he was entitled to $57,797.73 in
reimbursement from Wiggins, which included approximately $24,000 in property
taxes for the years 2007-2011. Wiggins, however, disagreed and testified that, after
having reviewed the tax records, the total property taxes for the years 2007 to 2011
were $33,935, making his half $16,967. He also testified that Wood settled a lawsuit
on the property, and Wiggins’s portion of that settlement was $7,334. Other than
those amounts, Wiggins testified that he paid the remainder of his portion of the
property taxes from 2011 to 2017. Therefore, according to Wiggins, the total amount
he owed Wood for property taxes was approximately $24,000. Wiggins also
disputed a portion of the expenses Wood claimed for the Tremont Street property,
including a $3,000 management fee and charges for warehouse materials used in
repairing the property.
Finally, as to Oaklawn Street, Wood testified that the only amount Wiggins
owed him on Oaklawn Street was for rent, which Wiggins oversaw collecting and
Wood estimated to be $32,200 total, or $16,100 for each of them. Wiggins testified
that the total amount of rent collected was $30,800, to which Wood was entitled to
47
half or $15,400. However, Wiggins also had incurred $12,338.13 in expenses, half
of which Wiggins contended should be offset against the $15,400 owed to Wood for
rent.
In a bench trial, the trial court determines the credibility of the witnesses and
the weight to be given their testimony. Miranda, 390 S.W.3d at 553. In resolving
factual disputes, the trial court may believe one witness and disbelieve others, and it
may resolve any inconsistencies in a witness’s testimony. Id. Thus, the trial court
could have believed Wiggins’s testimony over Wood’s testimony and exhibits. We
will not pass upon a witness’s credibility or substitute our judgment for that of the
factfinder, even if there is conflicting evidence that would support a different
conclusion. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will not
reevaluate the weight and credibility of the evidence and therefore defer to the trial
court’s role as the exclusive judge of the credibility of the witnesses who explained
their transactions. Olanipekun v. Omokaro, No. 01-13-00888-CV, 2014 WL
5410058, at *4 (Tex. App.—Houston [1st Dist.] Oct. 23, 2014, no pet.) (mem. op.).
We conclude there is sufficient evidence to support the trial court’s findings and
reimbursement amounts as to these three properties.
We overrule Wood’s ninth issue.
48
Hidden Lake
In his tenth issue, Wood challenges the legal and factual sufficiency of the
trial court’s Finding of Fact 16 related to Hidden Lake:
• On February 5, 2008, Wiggins purchased 121 Hidden Lake Drive,
League City, TX 77573 (hereinafter “Hidden Lake”) with funds
borrowed from Wood, which funds were reimbursed to Wood shortly
after the purchase. Wood admits he has no interest in Hidden Lake.
Wood contends there is no evidence of this finding.
As to the trial court’s finding that Wiggins purchased Hidden Lake with funds
borrowed from Wood, Wiggins testified that he bought Hidden Lake at a tax sale for
$40,000. Wiggins testified that he borrowed “40,000 from [Wood]; and then [he]
paid [Wood] back . . . [t]hat afternoon.” According to Wiggins, Wood never owned
an interest in Hidden Lake because Wiggins paid Wood back with either cash or
certified checks. Wiggins agreed that he had not produced a receipt or check stub
showing his repayment to Wood. Wiggins also agreed that he could not think of
another transaction in which Wood advanced Wiggins money for the purchase of a
property without being included as one of the buyers. Wiggins explained there were
times when Wood and Wiggins would buy properties on their own and times when
they would “joint venture,” and that this depended on “the group [of buyers]” and
the location of the property. For instance, there were certain geographical areas that
Wiggins bought in, such as League City, and Wood “stay[ed] away from,” and vice
versa.
49
In contrast, Wood testified that he gave Wiggins the entire $40,000 purchase
price for Hidden Lake. According to Wood, Wiggins never repaid any of the money
or sent Wood a deed to that property. He further testified that, because Hidden Lake
was a “very good buy” and worth about $140,000, it would not have been reasonable
to finance the purchase but let “Wiggins have the entire thing.”
Because the evidence here was disputed, the trial court, as factfinder, was
tasked with determining the credibility of the witnesses and resolving the factual
disputes and inconsistencies in their testimony. Miranda, 390 S.W.3d at 553. As
evidenced by its finding, the trial court believed Wiggins’s testimony that he
borrowed $40,000 from Wood to purchase Hidden Lake and reimbursed Wood soon
thereafter, over Wood’s testimony to the contrary. We conclude there is more than
a scintilla of evidence, and thus legally sufficient evidence, to support the trial
court’s finding that Wiggins purchased Hidden Lake “with funds borrowed from
Wood, which funds were reimbursed to Wood shortly after the purchase.” See City
of Keller, 168 S.W.3d at 827. Likewise, applying deference to the trial court’s role
in evaluating the credibility of witnesses as factfinder, we conclude this finding is
not so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust and, therefore, there is factually sufficient evidence to support the finding.
See Cain, 709 S.W.2d at 176; Miranda, 390 S.W.3d at 553.
50
Wood also challenges the legal and factual sufficiency of the evidence to
support the trial court’s finding that Wood admitted he had no interest in Hidden
Lake. Wiggins does not directly contest this portion of Wood’s argument, but instead
argues that any error is harmless.
We have reviewed the record and have not found evidence of Wood’s
admission that he had no interest in Hidden Lake, and Wiggins has not directed us
in his briefing to any evidence to support that finding. Nevertheless, we do not agree
that this unsupported finding of fact requires reversal. The harmless error rule
applies to all errors. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011);
see also TEX. R. APP. P. 44.1. Under Rule of Appellate Procedure 44.1(a), as
applicable to this case, the trial court’s error is reversible only if it probably caused
the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1). It is the
complaining party’s burden to show harm on appeal. Ford Motor Co. v. Castillo,
279 S.W.3d 656, 667 (Tex. 2009).
“While an erroneous finding of fact on an ultimate fact issue is harmful error,
an immaterial finding of fact is harmless and not grounds for reversal.” New Process
Steel, L.P. v. Sharp Freight Sys., Inc., No. 01-04-00764-CV, 2006 WL 947764, at
*4 n.6 (Tex. App.—Houston [1st Dist.] Apr. 13, 2006, no pet.) (mem. op.) (citing
Cooke Cty. Tax Appraisal Dist. v. Teel, 129 S.W.3d 724, 731 (Tex. App.—Fort
Worth 2004, no pet.)). An ultimate fact issue is “one that is essential to the cause of
51
action and has a direct effect on the judgment.” Cooke Cty., 129 S.W.3d at 731. An
evidentiary issue is one the court may consider in deciding the controlling issue but
is not controlling in and of itself. Id.Wood makes no attempt to show that the erroneous finding that he admitted
he had no interest in Hidden Lakes was essential to his causes of action related to
that property or had a direct effect on the judgment. As noted above, the trial court
provided numerous reasons for concluding that Wood could not recover on his
claims as to Hidden Lake, including that they were barred by the statute of
limitations, statute of frauds, and laches, and that Wood failed to prove his claims
by a preponderance of the evidence. The trial court could have concluded that Wood
failed to prove his claims by a preponderance of the evidence based on its finding
that Wiggins borrowed the purchase money from Wood and reimbursed him for the
entire $40,000 soon thereafter, regardless of whether Wood admitted he had no
interest in Hidden Lake. Thus, considering the findings of fact and conclusions of
law in their entirety, this challenged finding is one the trial court might have
considered in deciding the controlling issue, but it was not controlling in and of itself.
Because Wood has not shown that the trial court’s error probably caused the
rendition of an improper judgment, the error is harmless and reversal is not
warranted. See, e.g., Saum v. Am. Express Nat’l Bank, No. 02-19-00415-CV, 2021
WL 1034146, at *5 (Tex. App.—Fort Worth Mar. 18, 2021, pet. denied) (mem. op.)
52
(whether cardmember agreement was mailed to defendant was not essential to
plaintiff’s breach of contract cause of action because cardmember agreement, which
was also referenced in challenged finding, was admitted into evidence and
established the contractual relationship).
We overrule Wood’s tenth issue.
Attorney’s Fees
In his eleventh issue, Wood argues that the trial court erred in failing to award
him attorney’s fees. He contends he is entitled to attorney’s fees pursuant to Section
38.001 of the Texas Civil Practice and Remedies Code based on Wiggins’s breach
of contract. See TEX. CIV. PRAC. & REM. CODE § 38.001(b)(8) (“A person may
recover reasonable attorney’s fees from an individual . . . in addition to the amount
of a valid claim and costs, if the claim is for . . . an oral or written contract.”). Because
we have concluded that Wood’s breach of contract claims are barred by the statute
of frauds, we hold that Wood has failed to demonstrate that he prevailed on a claim
that authorizes the recovery of attorney’s fees. See Green Int’l, Inc. v. Solis, 951
S.W.2d 384, 390 (Tex. 1997) (to recover attorney’s fees under statute providing for
such awards to prevailing party, party must prevail on cause of action for which
attorney’s fees are recoverable and recover damages).
We overrule Wood’s eleventh issue.
53
Settling of Accounts
In his twelfth issue, Wood contends that the trial court erred in admitting into
evidence Wiggins Exhibit 8 because the document was hearsay and had not been
adopted by Wood. Wiggins Exhibit 8 is a purported settlement of accounts, showing
that Wood owed Wiggins $122,976, as to the following six properties: (1) John
Silver Road; (2) Champions Court; (3) Sealy Avenue; (4) Southern Hills Drive; (5)
Jennings Street; and (6) Oaklawn Street.
Wood challenges the sufficiency of the evidence of the following findings of
fact:
• Finding of Fact 13: “On February 18, 2007, there was a settling
of accounts as between Wood and Wiggins where they accounted
to each other for their respective outstanding debts and credits as
to six (6) of those properties–John Silver, Champions Ct., Sealy,
Southern Hills, Jennings, and Oaklawn, which resulted in Wood
paying Wiggins $122,976.”
• Finding of Fact 14: “Wood’s claim for reimbursement of
$2,607.00 on John Silver was paid as part of the February 18,
2007 reconciliation of accounts.”
A. Standard of Review
We review complaints about the admission or exclusion of evidence for an
abuse of discretion. In the Interest of J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). To
obtain a reversal of a judgment based on the erroneous admission of evidence, an
appellant must show that (1) the trial court’s ruling was in error, and (2) the error
probably caused the rendition of an improper judgment. Interstate Northborough
54
P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); TEX. R. APP. P. 44.1(a)(1). To show
harm, the evidence must be controlling on a material issue and not cumulative of
other evidence. See Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
The erroneous admission of evidence that is merely cumulative of properly admitted
evidence is harmless error. Gee v. Liberty Mut. Fire Ins., Co., 765 S.W.2d 394, 396
(Tex. 1989).
B. Analysis
Although Wood discusses the purported error in his brief, apart from the
conclusory statement that the document was “clearly prejudicial,” he has failed to
provide any substantive analysis as to how he was harmed by the trial court’s alleged
erroneous admission of this evidence. See TEX. R. APP. P. 44.1(a); Richard D. Davis,
LLP v. Sky Lakes Flyers Found., No. 14-17-00372-CV, 2019 WL 1030156, at *9
(Tex. App.—Houston [14th Dist.] Mar. 5, 2019, pet. denied) (mem. op.). Harm must
be shown before we can reverse a judgment. See TEX. R. APP. P. 44.1(a) (no
judgment may be reversed on appeal on the basis that the trial court erred unless the
court of appeals concludes that the error complained of probably caused the rendition
of an improper judgment or probably prevented the appellant from properly
presenting the case).
As explained above, we have already determined that Wood’s causes of action
as to two of the properties complained about here—John Silver Road and Southern
55
Hills Drive—were barred by the applicable statute of frauds. Further, because Wood
failed to object to all of the trial court’s independent bases for denying his claims as
to another one of the properties complained about here, Champions Court, we must
affirm the trial court’s ruling as to that property. See Britton, 95 S.W.3d at 681 (“[A]n
appellant must attack all independent bases or grounds that fully support a
complained-of ruling or judgment. If an appellant does not, then we must affirm the
ruling or judgment.” (internal citations omitted)).
Finally, Wood has not shown that the complained-of evidence was not
cumulative of other evidence. In his trial testimony, Wood admitted that he and
Wiggins had a conversation on February 18, 2007, regarding settlement or “true-up”
related to “half-a-dozen-or-so properties.” After that conversation, Wood admitted
that he wrote a check for $122,976. Wood’s check for $122,976 was separately
admitted into evidence as Wood Exhibit 12.
Based on this evidence, we conclude that Wood has failed to show how he
was harmed by the allegedly erroneous admission of Wiggins Exhibit 8.
Accordingly, we overrule Wood’s twelfth issue.
Conclusion
We have found no reversible error in the trial court’s judgment. However,
because we hold that the judgment did not properly reimburse Wood for the
$259,208.76 found by the trial court, and agreed to by the parties, to be owed to
56
Wood for various expenses on a number of jointly owned properties, we modify the
judgment of the trial court to provide that after the net proceeds from the sale of the
22nd Avenue, Fairfield Court, Oaklawn Street, Sealy Avenue, and Tremont Street
properties are equally divided between Wood and Wiggins, the sum of $259,208.76
should be subtracted from Wiggins’s share and awarded to Wood.
We affirm the judgment as modified.
Amparo Guerra
Justice
Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.
57