Magram v. Lewis

618 S.W.2d 420
CourtCourt of Appeals of Texas
DecidedJune 15, 1981
DocketNo. 9266
StatusPublished
Cited by4 cases

This text of 618 S.W.2d 420 (Magram v. Lewis) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Magram v. Lewis, 618 S.W.2d 420 (Tex. Ct. App. 1981).

Opinion

DODSON, Justice.

Mr. Samuel 0. Magram (the “Buyer”) appeals from the judgment of the trial court specifically enforcing a contract for the sale of certain real property, “together with all ... furniture and fixtures located therein,” executed by and between the Buyer and Royce C. Lewis, Jr. and Royce C. Lewis, III (the “Sellers”). Concluding that the trial court abused its discretion in granting specific performance because the Sellers failed to perform a material obligation under the contract, we reverse the judgment of the trial court and render judgment for the Buyer.

On 23 March 1979, the Sellers and the Buyer executed an earnest money contract whereby the Sellers agreed to sell, and the Buyer agreed to purchase, the following property:

All of Lots 1 and 2, Horde Buchanan Sub-division to the City of Lubbock, Lubbock County, Texas, bearing municipal street address of 2202 Memphis, Lubbock, Texas, and otherwise known as Southern Manor Apartments, together with all improvements thereon and all furniture and fixtures located therein, subject to all easements, restrictions, and zoning ordinances of record (emphasis added).

In consideration for the conveyance, the Buyer agreed to pay the Sellers a total amount of $315,000 to be paid as follows: (1) $5,000 cash as earnest money; (2) $25,-000 in cash; (3) a promissory note to the Sellers in the amount of $76,294.17, payable in 20 quarterly installments, bearing interest of 10% per annum, and secured by a mortgage; and (4) the express assumption of the original note executed by the Sellers, payable to State Savings & Loan of Lubbock, Texas, with an unpaid principal balance of $208,705.83, and “secured by a Deed of Trust of record in the Deed of Trust Records of Lubbock County, Texas.”

The Sellers agreed to provide the Buyer with “a General Warranty Deed ... conveying good and marketable title subject ... to any liens to be created or assumed under the contract.” Nevertheless, the contract provides: “Seller warrants that there are no liens on the items of personal property in the premises.” This provision was typographically inserted into the form contract, evidencing a clear, unambiguous and material agreement of the parties. The closing date for the conveyance was set forth in the contract as 1 May 1979. The place of closing was not specified in the contract. Time was of the essence.

The record shows that on the specified closing date, the Sellers tendered performance of their duties according to what they believed the terms of the contract were; [422]*422however, the undisputed evidence shows that the Sellers were unable to tender the furniture and fixtures located in the premises (and owned by them) free and clear of any liens as per their express warranty in the contract. Specifically, all presently owned or after-acquired furniture, fixtures, appliances and goods located in the premises are included in the recorded deed of trust, as collateral, securing the original note made by the Sellers to State Savings & Loan. The Buyer failed to attend the closing, accept tender of the Sellers’ performance, or tender performance of his duties under the agreement.

On 5 June 1979, the Sellers filed this action seeking retention of the $5,000 in escrow as liquidated damages or, alternatively, specific enforcement of the contract, and reasonable attorney’s fees. In his amended answer, the Buyer denied the Sellers’ right to specific performance, cross-claimed for the return of the $5,000, and sought reasonable attorney’s fees. After a hearing on the merits without the intervention of a jury, the trial court entered its judgment granting the specific performance. In its judgment, the trial court ordered the Buyer: (1) to pay the remaining cash due under the contract ($25,000); (2) to assume the unpaid balance of the original note between the Sellers and State Savings & Loan; and (3) to pay the reasonable attorney’s fees of $1,250 incurred by the Sellers in the prosecution of their lawsuit.1 Upon the payment of the cash balance and the assumption of the original note, the Sellers were required, by the terms of the judgment, to execute and deliver a general warranty deed to the Buyer pursuant to the requirements of the contract. The Buyer appeals from this judgment.

In his first point of error, the Buyer contends that the trial court erred in granting specific performance of the contract because the Sellers failed to perform all the obligations under the contract. In particular, the Buyer contends that the Sellers breached their warranty that there are no liens on the personal property located in the premises. No findings of fact or conclusions of law were filed by the trial court. We therefore must view the trial court’s judgment as impliedly finding all facts necessary to support its judgment, Buchanan v. Byrd, 519 S.W.2d 841, 842 (Tex.1975); and, we are required to affirm the judgment on any reasonable theory authorized by law and supported by the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977). The Buyer admits to this burden on appeal, but contends that the trial court committed reversible error by incorrectly applying the equitable rules related to the granting of specific performance to the undisputed facts. We agree.

Specific performance is purely an equitable remedy and is governed exclusively by principles of equity. Paxton v. Spencer, 503 S.W.2d 637, 642 (Tex.Civ.App.—Corpus Christi 1973, no writ). Specific performance of a contract for the sale of land is ordinarily granted where the action is based upon a valid contract, but the relief is not a matter of right. Kress v. Soules, 152 Tex. 595, 261 S.W.2d 703, 704 (1953). The granting of specific performance rests within the sound discretion of the trial court, Hendershot v. Amarillo Nat’l Bank, 476 S.W.2d 919, 920 (Tex.Civ.App.—Amarillo 1972, no writ), and its decision will not be reversed without a showing that it clearly abused its discretion; however, the trial court may not erroneously apply the law to the undisputed facts. Cf. Spring Valley v. Southwestern Bell Tel. Co., 484 S.W.2d 579, 581 (Tex.1972).

Specific performance will not be decreed “unless the contract can be completely enforced so as to secure substantially all that the parties contemplated at the time the contract was made.” Anderson v. Anderson, 563 S.W.2d 345, 346-47 (Tex.Civ.App.—Dallas 1978, no writ). Thus, it is incumbent upon the one who seeks complete, specific performance of a contract to show that he has diligently and timely performed, or tendered performance of, all ob[423]*423ligations under the contract. Johnson v. Karam, 466 S.W.2d 806, 810 (Tex.Civ.App.—El Paso 1971, writ ref’d n. r. e.); Hamon v. Allen, 457 S.W.2d 384, 390 (Tex.Civ.App.—Corpus Christi 1970, no writ); Walker v.

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