### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00146- CV

Don Rangel and Esther Rangel, Appellants

v. Connie Rivera Rangel, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0101 5, H ONO RAB LE MARGARET A. CO OP ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Don Rang el and Esther Rang el appea l from the trial court’s judgme nt in favor of appellee Connie Rivera Rang el on her claim of trespass to try title throug h common source . See Tex. P rop. Code § 22.001; Tex. R. Civ. P. 798. The case was tried to the court, and t h e t ri al co u rt conclude d that Connie was the fee simple owner of the subject proper ty and that Don and Esther did not ha ve any interest in the title to the proper ty

. I n two issues, Don and Esther challeng e the tria l 1 court’s judgme nt ba sed on the statute of fra uds, see Tex. B us. & Com. Code § 26.01, and an order from the probate court for no administration of the estate of Edwar d Rang el, who was Connie’s husband and Don and Esther’s fathe r. For the reas o n s t h at follow, we aff irm the trial court’s judg ment.

We refe r to the par

ties by their first name s for c larity

. 1BACK GR OUND I n 1985, Connie and Edwar d enter ed into a contra ct for deed to purcha se the subject proper ty from Mary Rose Rang el. The proper ty was Edwar d and Connie’s residenc e. The terms of the contra ct included the f ollowing pr ovision:

I n the event that Buy er shall defa ult in the prompt pay

ment of said indebtedness

. . . and such defa

ult

. . . shall continue for a period of ten (10) day s, then in a ny of such events, Seller may elec t, Buy er expressly waiving demand and notice,

. . . to decla re this contract c ance led and of no further forc e and eff

ect .

. . and . . . all monies that have been paid to or deposited with Seller here under shall be forf eited and belong to Seller as liquidated damag es to compensa te Seller for brea ch of this contra ct and for renta l and deter ioration of the proper ty , and immediately upon this cont ra ct being canc elled and of no further forc e and eff ect all the rig hts, claims and interest of Buy er in and to said proper

ty shall there upon terminate and be at an end and the proper ty shall unconditionally

belong to Seller.

E d w a r d a n d Co nnie made pay

ments under the terms of the contra ct until E d w a r d d ie d

. Edwar d died intestate, and the probate court of Travis County signe d an order for no administration of his estate in Fe bruar

y 1989. I n the order , the probate court found that the proper ty was Connie’s homestead a

nd, there fore , that she had the right to live there during her life and, at her dea th, “the one-ha lf community

proper ty interest of Edw ard Rang el may be cla imed by

his rightf ul heirs.” Connie failed to make pay ments for sever al months afte r Edwar d’s death b u t eventua lly beg an making pay ments to purcha se the proper ty

. Although it was d i s p u t ed at trial, Connie contende d that she defa ulted under the terms of the contra ct for deed afte r Edwar d’s death, that she there aft er en t er ed into a new contra ct for deed with Be atrice Castro, who was Edwar d’s niece and Mary Rose’s sister, to purcha se the proper ty , and that she fully perf

ormed under the terms

2of the ne w contra ct by making pay ments to B eatr ice. I n 1992, Mary Rose transfe rre d the prope rty to Connie by

g ener al war

ranty deed. Connie broug ht her claim for trespass to try title ag ainst Don and Esther in 2010. See Tex. Prop. Code § 22.001 (“A trespass to try title action is the method of deter mining title to lands, tenements, or other rea l proper ty .”); King Ranch, Inc. v. Chapman , 118 S.W .3d 742, 755 (Tex. 2003) (explaining that “tre spass to try title action [i s] a proce dure by which rival claims to title or rig ht of possession may be adjudicate d”). Connie soug ht to rec over on her claim b y proving title by a superior title out of a comm o n s o urce . See Tex. R. Civ. P. 798 (“I t shall not be nece ssary for the plaintiff to de raig n title bey ond a common source . Proof of a common source may be made by the plain t i ff b y cer

tified copies of the deeds showing a chain of t itle to the defendant emanating from and under such common source .”); Rogers v. Ricane Enters., Inc ., 884 S.W .2d 763, 768 (Tex. 1994) (“To rec over in a trespass to try title action, the plaintiff must re cover on the streng th of [her] own title.

. . . The plaintiff may rec over . . . by proving a superior title out of a common source .”). The

common source was a

1974 war ranty deed f rom Be atrice to Mary

Rose. The case was tried to the court, and Connie and Esther testified, as well as Be atrice

. Although Connie’s testimony was inconsist ent, s he testi fied that she di d not make pay ment s afte r Edwar d’s death for at least 90 day s, that she enter ed into a new contra ct with Be atrice , and that she fully satisfied that contra ct by making the require d pay ments to Be atrice

. She was unable, howeve r, to provid e a co p y o f t he new contra ct. Be atrice also testified about the new contra ct wit h Connie afte r Edwar d’s death. She testified that Connie did not pay and was in defa ult afte r Edwar d’s death, that she thought that she and Connie enter ed into a new ag ree ment, and that, afte r Connie made all

3the pay

ments, the “dee d was signe d.” As to her tra nsfer of the prope rty

to her sister Ma

ry Rose in 1974, she explained that she “only put the house under [her] sister’s name” beca use she was trave ling out of st ate and she answere d “Rig ht” when asked whether the tran s fe r t o h er sister was “just as a matter of convenie nce.” The evidenc e also included the 1974 deed from Be atrice to Mary Rose, the 198 5 co ntrac t for deed betwee n Edwar d, Connie, and Mary Rose, the 1992 g ener al

war ranty deed from Mary Rose to Connie, and the probate court’s order for no administration signe d in 1989. At the conclusion of the evidenc e, the trial court rende re d j u d gm ent in favor of Connie on her claim of trespass to try title and order ed that Connie was the fee simple owner of the proper ty

. Don and Esther filed a motion for new trial, which motion the trial court denied. The trial
court also made finding s of fac t and conclusions of law. Among the trial court’s finding s, the trial court found:

• The parties claimed a rig ht of owner ship t h ro u gh the same deed from Be atrice to Mary

Rose.

• Connie and Edwar d stopped making pay ments on the first contra ct for deed afte r Edwa

rd passe d awa

y in 1988.

• Connie “ente red into a new contra ct for deed with Be atrice ” and “made all pay ments nece ssary

to fully perf orm [the] second c ontrac t for dee d.”

• The probate court’s order “did not convey any leg al interest” in the proper ty to Don and Esther

.

• Don and Esther did not have “any leg al o r eq u itable interest in the title” to the prope rty

.

4• Connie “fully perf ormed on the second contra ct for deed” with Be atrice and “leg al title passed to her in her n am e o n l y as ref lected on the [1992] deed” from Mar y Rose to Connie.

• Connie “has be en the f ee simple leg al owner ” of the proper ty since 1992.

The trial c ourt’s conc lusion of law s tated that, under section 22.001 of t he P roper ty Code, Connie “holds a full undivided leg al title in the property subject of this suit.” This appea l followed.

ANALYSIS I n two issues, Don and Esther urg e that the trial court err ed by enfor cing the purported oral c ontrac t betwee n Connie and Beatr ice that transfer red the owner ship of rea l property beca use it contra vened the 1985 contra ct for deed, violated the statute of fra uds, and invalidated the probate court’s order vesting a leg al interest in the proper ty to them. Although they do not direc tly set forth particula r finding s of fac t or conclusions of law that they are challeng ing, their arg uments appea r to challeng e some of the trial court’ s findings of fac t and its conclusion of law. 2

Stand ard of Review

A trial court’s finding s of fac t have the same forc e and dignity as a jury ’s answe rs to jury questions. See Anderson v. City of Seve n Points , 806 S.W .2d 791, 794 (Tex. 1991). They are subject to revie w for leg al and fac tual sufficie ncy of the evidenc e by the same standards applied to

a jury verdic t. Ortiz v. Jones , 917 S.W .2d 770, 772 (Tex. 1996); s ee C i t y o f Keller v. W

ilson ,
Connie urg es that Don and Esther waived their issues beca use t heir “bare asser

tions and 2 g lobal alleg ations” fall below this Court’s briefing require ments. See Tex. R. App. P. 38.1 (brief ing require ments for appellant’s brief). Construing their brief liberally , as we must, we conclude that they did not waive their issues ba sed on inade quate br iefing

. See id . R. 38.9. 5168 S.W .3d 802, 822 (Tex. 2005) (desc ribing revie w of evidenc e under leg al and fac tual sufficie ncy

standards of revie w). We revie w a trial court’s conclusions of law d e n o v o an d wi ll uphold the conclusions if the judgme nt can be sustained on any leg al theory supported by the evidenc e. BMC Software Belg., N.V. v. Marchand , 83 S.W .3d 789, 794 (Tex. 2 0 0 2 ). Al t houg h a trial court’s conclusions of law may not be challeng ed for fac tual sufficie ncy , we may rev i ew t h e l egal conclusions dra

wn from the f

acts to dete rmine whe ther the c onclusions are corr ect. Id

.
P robate C ourt’s Order for No Adm inis trat ion

We beg in with appellants’ issue based on the probate court’s order for no administration. Don and Esther contend that the 1992 g en eral war ranty deed transfe rring title to Connie was in violation of the probate court’s order

. They appea r to be challeng ing the trial court’s finding that the probate court’s order for no administration “did not convey any leg al interest in the subject proper

ty ” to them. The probate court’s order expressly gra n t ed Edwar d’s one-ha lf community interest in the proper ty to “his rig htful heirs,” and Connie does not dispute that Don and Esther a re his rig htful heirs. At the time of Edwar d’s death, howeve r, Connie and Edwar d did not have an owner ship inter est in the proper ty beca use Mary Rose—as the seller of the proper ty under

a contra ct for deed—r etained t i t l e t o the proper ty

. See Flores v. Millennium Interests, Ltd. , 185 S.W .3d 427, 429 (Tex. 2005) (“A contra ct for deed, unlike a mortg ag e, allows the seller to reta in title t o t h e p ro p er t y until the purcha ser has paid for the proper ty in full.”); Sluder v. Ogden , No. 03-10-00280-CV, 2011 Tex. App. L EXI S 267, at *10 (Tex. App.—Austin J an. 13, 2011, pet. denied) (mem. op.) (noting that “contr act for deed mere ly establishes conditions prec edent to a title’s

6transfe r” (citing Grave s v. Diehl , 958 S.W .2d 468, 470–71 (Tex. App.—Houston [14t h Dist.] 1997, no pet.)). The evidenc e established that Connie and Edwar d had not fully perf ormed under the
terms of the contra ct for deed at the time of Edwar d’s death. Under an executory contra ct to convey land, such as a contra ct for deed, the buy er does not acquir e title but an “equitable rig ht to make pay ments on the proper

ty and to rec eive a deed and leg al tit l e wh en [t he buy er] complete[s] the pay ments.” See Gaona v. Gonzales , 997 S.W .2d 784, 786–87 (Tex. App.—Aus tin 1999, no pet.) (citing Johnson v. W

o o d , 1 57 S.W .2d 146, 148 (Tex. 1941) and Texas Am. Bank/Leve lland v. Resende z , 706 S.W .2d 343, 345 (Tex. App.—Amar illo 1986, n o wr i t )) ; see also Southern Vanguard Ins. Co. v. Silberstein , No. 14-09-00472- CV, 2010 Tex. App. L EXI S 6202, at *9–12 (Tex. App.—Houston [14t h Dist.] Aug

. 3, 2010, no pet.) (mem. op.) (conc luding that purcha ser did not obtain equitable title when enter ed into contra ct for deed and e xp la in in g d if f e r e n ces betwee n contra ct for de ed and mor

tga g e). Don and Esther focus on lang uag e in the 1992 g ener al war ranty deed from Mary Rose
t o Connie that the consideration includes the “satisfa ction of that one cer tain Contract of S al e, executed by Mary Rose Rang el, Edwar d Rang el, and Connie Rang el, on November 26, 1985.” The deed, howeve r, also states that Connie “wa s the sole person who cure d the defa ult and provided new and sufficie nt considera

tion for the proper

ty , there by equitably obtaining all interest in the Contract for Sale.” Fur

ther, testimony at trial and the terms of the 1985 contra ct for deed supported the trial court’s findings that Connie and Edwa rd “stopped making pay

ments on the first contra ct for deed

. . . when Edwar d [ ] passed aw ay ” an d t h at Connie “ente red into a new contra ct for deed with

7Be atrice ” and “ made a ll necessa ry pay ments to fully

perf orm [the] second c ontrac t for dee d.” See City of Keller , 168 S.W .3d at 822 (“A revie wing court cannot substitut e its judgme nt for that of the trier- of-f act, so long as the evidence falls within this z one of r easona ble disag ree ment.”); see also McG alliard v. Kuh l ma n n , 722 S.W .2d 694, 696 (Tex. 1986) (noting that unchalleng ed finding “binding on an appellate court unless the contra ry is established as a matter of law, or if there is no evidenc e t o support the finding ”). Under the terms of the 1985 contra ct for deed, the seller was allowed to ca

ncel the c ontrac t based on a default of nonpay ment and, in t hat ca se, all monies paid

wer e forf eited and belong ed to the seller as liquidated d am age s . I t was undisputed that Connie defa ulted by failing to make require d pay ments for sever al months afte r Edwar d died. Ba sed on this evidenc e, the trial court could have found that any rig hts Connie and Edwar d had under the contra ct for de ed we re c ance lled afte r the de fault.

Thus, we conclude that the 1992 deed transfe rring title to Connie was not in violation of the probate court’s order and that the evidenc e supports the trial court’s finding that the probate court’ s o rd er d i d n ot convey a leg al interest in the proper ty to Don and Esther. See Ortiz , 917 S.W .2d at 772; see also Tex. Prop. Code § 5.001 (“A n estate in land that is convey ed or devised is a fee simple unle ss the estate is limit ed by express words or unless a lesser estate is c onvey ed or devised by

construction or ope ration of law .”).

Statute of F rauds

I n their other issue, Don and Esther contend that the trial court err ed by enfor cing the purported or al contra ct betwee n Connie and B eatr ice be cause it contrave ned the 1985 c ontrac t for

8deed and violated the statute of fra uds. See Tex. Bus. & Com. Code § 26.01 (statute of fra uds). As 3 part of this issue, they also appea r t o challeng e t h e s u ff

i ci ency of t he evidence to support the t rial court’s finding that a new contra ct was enter ed into betwee n Connie and B eatr ice. They focus on Connie’s failure to produce a copy of the new contra ct and evidenc e that, prior to the purported new contra ct, Be atrice had transfe rre d the proper ty by deed to Mary Rose. I t was undisputed that Be atrice transfe rre d the prope rty

to Mary Rose in 1974. As a preliminary matter, Connie urg es that Don and Esther failed to prese rve this issue beca

use they did not reur g e their motion for direc ted verdic t ba sed on the statute of fr auds at the close of the ca s e. See 1986 Dodge 150 Pickup v. State , 129 S.W .3d 180, 183 (Tex. App.—Texarkana 2004, no pet.) (“I f a party proce eds to prese nt evidenc e af t er that party has moved for a direc ted v er d i ct , s u ch party must reur g e the motion for direc ted verdic t at the close of the case , or any err or in its denial is waived.” ); Y a g n i k v. Hernande

z , No. 02-11-00510- CV, 2013 Tex. App. L EXI S 4891, at *12–13 (Tex. App.—For t Worth Apr. 18, 2013, pet. denied) (mem.

o p . ) (s ame) ; see also Tex. R. App. P. 33.1 (pre serving appellate complaints). Don and Esther,

Section 26.01(a) of the B usiness and Commerce Code states: 3 (a) A promise or ag ree ment descr ibed in Subse ct i on (b) of this section is not enfor cea ble unless the promise or

ag ree ment, or a me morandum of it, is (1) in writing; a

nd (2) signe d by the person to be char g ed with the promise or ag ree ment or by someone law fully

authorized to sign f

or him. Tex. Bus. & Com. Code § 26.01(a)

. “[A] contra ct for the sale of rea l estate” is subject to the statute of fr auds. See id . § 26.01(b)( 4). 9howeve r, addre ssed their defe nse of the statute of fra uds in their final arg uments to the court and in their motion for new trial in the context of a leg al sufficie ncy ch al l en ge. See Damian v. Bell Helicopter Textron, Inc ., 352 S.W .3d 124, 141 (Tex. App.—For t Worth 2011, pet. denied) (noting that a “no evidenc e or matter of law point for appea l” may be p re s er v ed fo r appellate revie w by raising the complaint throug h, among other mot ions, a motion for dire cted ve rdict or a motion for new tria l). Thus, we c onclude that Don a nd Esther pre serve d this iss ue and tur n to our ana ly sis. Under the statute of fra uds, a contra ct for the sale of rea l est ate is g ener ally

u n en fo rceable unless it is in writing and signe d by the person “to be char g ed with the prom i s e o r agr eement or by someone lawfully authorized to sign for him.” See Tex. Bus. & C o m . C o d e § 27.01(a) , (b). Connie was unable to produce a copy of the new contra ct for deed, and she testified inconsistently as to w hether she and Be atrice signe d a new contra ct. Be atrice also transfe rre d title of the prope rty

by deed to Ma

ry Rose in 1974. Don and Esther , howeve r, we re not pe rsons “to be char g ed with the promi se or ag ree ment,” but third parties to th e n ew co n trac t for deed. Thus, the defe nse of the sta tute of fr auds as to the ne w contra ct was not a vailable to them. See id.

F u r th e r , th e tr ia l court’s finding s included that Be atrice and Connie enter ed into a n e w contra ct for deed and that Connie made pay ment s t o Beatrice under the new contra ct until it was fully perf ormed. Ba sed on these finding s, the trial court could have conclude d t h at , even if the
statute of fra

uds would o t h er wi s e apply , it did not apply here beca use the new contra ct was fully perf ormed. See, e.g. , Boye rt v. Tauber , 834 S.W .2d 6 0 , 63 (Tex. 1992) (par tial perf ormanc e exception to sta t u te of fra uds); Bookout v. Bookout , 165 S.W .3d 904, 907–08 (Tex. App.—Texarkana 2005, no pet.) (same) ; Exx on Corp. v. Breeze vale, Ltd. , 82 S.W .3d 429, 439–40

10(Tex. App.—Dallas 2002, pet. denied) (same)

. Thus, we conclude that the trial court did not err by

enfor cing the new c ontrac t for dee d betwee n Connie and B eatr ice.

CONCLUSION For these rea sons, we conclude that the trial court did not err when it conclude d that Connie holds full undivided leg al title in the proper ty

. See Marchand , 83 S.W .3d at 794. We

overr ule appe llants’ issues and af firm the trial c ourt’s judg ment.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: Aug ust 26, 2014

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