Stewart v. Chovanec

738 S.W.2d 776
CourtCourt of Appeals of Texas
DecidedOctober 15, 1987
DocketNo. 2-86-264-CV
StatusPublished
Cited by4 cases

This text of 738 S.W.2d 776 (Stewart v. Chovanec) 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
Stewart v. Chovanec, 738 S.W.2d 776 (Tex. Ct. App. 1987).

Opinion

OPINION

FENDER, Chief Justice.

This is an appeal by Donald R. Stewart and Gemcraft Homes, Inc., defendants in the trial court, from a judgment in a nonju-ry trial awarding plaintiffs, Philip M. Cho-vanec and Trayce Chovanec, $20,153.91 for a breach of contract by appellants.

We modify and as modified, affirm.

On November 14, 1983, appellants entered into a contract with appellees to build appellees a home on Lot 31, Block 42, Westpoint Addition, Fort Worth, Tarrant County, Texas, for the price of $82,450.00. The contract provided a financing package including a 3-2-1 buydown provision which obligated appellants to place $4,469.40 into an escrow account with the appellees for their benefit. The appellees gave the appellants $500.00 as earnest money. Construction of the home was to be substantially completed 120 days after the appel-lees received loan approval from their lender, and the commitment was to be closed and funded by February 1, 1984.

[778]*778The house was not closed by the February 1, 1984 contracted date. A second contract was executed identical to the first except that the commitment now would be closed and funded by March 1, 1984. On March 10, 1984, a third contract was executed identical to the first two except the purchase price was lowered to $80,950.00 and the closed and funded date was changed to July 31, 1984.

During the term of the third contract appellants offered appellees a fourth contract with the same identical package and terms as the third but on a different lot with a quicker availability date. Appellees refused to enter into a fourth contract and demanded performance under the third contract; non-performance by appellants subsequently gave rise to this suit for damages.

Appellants assert in their first point of error that the trial court erred by applying the wrong measure of damages in an action for a breach of contract to sell real estate. We have previously held the correct measure of damages for breach of a contract to sell real estate is the difference between the contract price and the market value of the property at the time of the breach. See Ryan Mortgage Investors v. Fleming—Wood, 650 S.W.2d 928, 935 (Tex.App.—Fort Worth 1983, writ ref’d n.r.e.). In the case at bar, however, the contract not only included a provision for the sale of real estate, but it also provided for a certain type of financing package with regard to the sale. Hence, appellants did not only breach the contract for the sale of real estate, but also breached the contract to offer the particular financing package. Accordingly, the measure of damages for breach of contract is the amount necessary to place plaintiffs in a financial position equal to that which they would have had if the contract had been performed by both parties. See Community v. Replacement Parts Mfg., 679 S.W.2d 721, 725 (Tex.App.—Houston [1st Dist.] 1984, no writ). To put the appellees in a financial position equal to that which they would have had if appellants had not breached the contract, the trial court correctly took into account the loss of the financing package caused by appellants’ breach of contract. Appellants’ first point of error is overruled.

Appellants’ second and third points of error challenge the trial court’s finding of personal liability against Stewart as being supported by no evidence and as being against the great weight and preponderance of the evidence. Stewart’s asserted defense is that he signed the contract not as an individual, but as a representative of Gemcraft Homes, Inc. We need not address whether or not appellants signed as a representative, because appellant’s defense is one of avoidance. See Seale v. Nichols, 505 S.W.2d 251, 254 (Tex.1974). Defenses in avoidance are expressly made affirmative defenses by TEX.R.CIV.P. 94 (Vernon 1979). Appellants have failed to file any affirmative defensive pleadings, and an affirmative defense cannot be raised for the first time on appeal. Forest Lane Porsche Audi v. G & K Services, 717 S.W.2d 470, 474 (Tex.App.—Fort Worth 1986, no writ). Copeland Well Service Inc. v. Shell Oil Company, 528 S.W.2d 317 321 (Tex.Civ.App.—Tyler 1975, writ dism’d). Appellants’ points of error two and three are overruled.

In their fourth point of error appellants complain of the trial court’s finding that the appellees suffered damages for additional interest in the amount of $4,225.31. The trial court found that appellees would be required to pay $11,254.54 additional interest over a thirty-year period and awarded appellees the present (discounted) value of $4,225.31. As the appellees concede, the evidence shows the amount of additional interest was $5,600.00, rather than $11,254.54, which should have been discounted to present value. Although no set formula was given by the trial court, both parties agree the present value of $5,600.00 over a thirty-year period at eight percent discount rate is $2,105.91 not $4,225.31.

We modify the trial court’s judgment so as to reflect the discounted value of $2,105.91.

Appellants contend in their fifth point of error that there is no evidence to support [779]*779the finding that the difference between the contract price and market value of the property in issue was $7,000.00. Appellants alternatively argue in point of error six that the same finding is against the great weight and preponderance of the evidence.

Findings of fact entered in a case tried to the court are of the same force and dignity as a jury’s verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref d n.r. e.). The trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them, First Nat. Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 146 (Tex.Civ.App.—Tyler 1979, writ ref’d n.r.e.), by the same standards as are applied in reviewing the legal or factual sufficiency of the evidence supporting a jury’s answer to a special issue. Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.—Dallas 1981, writ ref’d n.r.e.).

In determining a “no evidence” point of error, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary. See Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985); International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951).

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Bluebook (online)
738 S.W.2d 776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-chovanec-texapp-1987.