Lubel v. J.H. Uptmore & Associates & J.H.

— 519 — OPINION ESQUIVEL, Justice. This is an appeal from the granting of a directed verdict at the close of plaintiff’s case in a suit for reformation and specific performance of a contract for the sale of land. We affirm. The facts of the case are as follows. In May of 1977, Dick Lubel (Lubel), the appellant herein, entered into an earnest money contract with J.H. Uptmore & Associates (Uptmore), the appellees herein, for the purchase of a tract of land owned by Upt-more in the San Pedro North subdivision on the east frontage road of U.S. Highway 281. The tract under consideration was located in an unplatted section of County Block 4991, immediately adjacent to an un-platted L-shaped tract known as Lot 13, Subdivision 5 of the San Pedro North subdivision. A plat of the area had been prepared; however, Uptmore had delayed its recordation pending the addition to the plat the property subject of this lawsuit. The property, roughly the shape of a rectangle, was adjacent to the L-shaped tract that Uptmore planned to use for the construction of mini warehouses. The parties, upon executing the contract, also initialled a map of the area with the proposed property outlined in red, said map being attached to the earnest money contract and constituting the sole description of the property.1 Approximately two and one-half years later, the only impediment to the consumation of the sale was a city-imposed requirement that a drainage pond be created. It was at this point that Uptmore raised the insufficiency of the description of the tract to excuse himself from performance under the contract. This lawsuit was filed by Lubel seeking reformation so as to include a proper legal description of the tract, and specific performance thereunder. Uptmore moved for and received a directed verdict at the close of Lubel’s case. Lubel presents four points of error. Our disposition of the first point obviates the need to address points two, three and four. In reviewing an assignment that alleges error in the granting of a directed verdict, this court must consider only the evidence and inferences most favorable to the one against whom the directed verdict was granted; in this case Lubel. See Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865 (Tex.1982). If there is any evidence of probative force to raise a fact issue on Lubel’s theories of recovery, then we must remand the case for a new trial. Id. In point of error one, Lubel alleges that he raised sufficient evidence under each element of his cause of action to require the submission of his case to the jury, such that it was error for the trial court to grant the Uptmore’s motion for directed verdict. Lubel’s primary support for his contention is the opinion of the Eastland Court of Civil Appeals in Shotwell v. Morrow, 498 S.W.2d 432 (Tex.Civ.App.—Eastland 1973, writ ref’d n.r.e.). Lubel attempts to put himself squarely within the rule laid down by that opinion. In Shotwell v. Morrow, 461 S.W.2d 527 (Tex.Civ.App.—Eastland 1970), rev’d, 477 S.W.2d 538 (Tex.1972), the appellee agreed to sell to appellant two tracts of land. When Shotwell refused to convey, Morrow sued for specific performance. The description of the first tract was found to be sufficient at both the trial and appellate levels. As to the second tract, the court held the description to be insufficient to meet the requirements of the Statute of Fraudsj TEX.BUS. & COM.CODE ANN. § 26.01, and reversed and rendered as to that tract so that Morrow take nothing. Id. 461 S.W.2d at 528. An application for writ of error was granted by the Texas Supreme Court. In its opinion, the court agreed with the court of civil appeals’ opinion that the second tract was insufficiently described. Morrow — 520 — v. Shotwell, 477 S.W.2d 538, 541 (Tex.1972). The court, however, reversed the case and remanded it to the trial court “in the interest of justice” so as to enable Morrow to replead an action for reformation.2 The supreme court’s opinion, Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972), established a "two part exception to the general rule of the Statute of Frauds. Where a description is otherwise insufficient, but the record contains both: (1) strong evidence that the parties intended to describe a particular and identified tract in their contract, and (2) that the parties were mutually mistaken in their belief that the description used was legally sufficient for that purpose, then reformation and specific performance are proper remedies. In the instant case, it is undisputed that the property description is insufficient and fails under the Statute of Frauds. In fact, only by admitting this may the Lubel attempt to invoke Morrow in his favor. As to the requirement of strong evidence of an intent to convey a specific tract of land, the court of civil appeals in the second Shot-well appeal, 498 S.W.2d at 435, noted that: (1) at the time the contract was signed, Morrow paid Shotwell $7,900.00; (2) Morrow went into immediate possession of the tract and remained so during the pendancy of the trial and appeal; and (3) Morrow had farmed the first tract as Shotwell’s tenant for several years. The record in our case contains no such “strong evidence.” After the contract was signed, Lubel did not take possession of the property, nor had he and Uptmore had a business or other relationship in the past with regard to the tract in question so as to warrant a conclusion that the parties knew exactly which property was the subject of • their agreement. Significantly, the exhibit constituting the description of the property was prepared from a drawing provided to Lubel by Upt-more. The drawing was not introduced into evidence at trial because Lubel could not find it. Upon examination of the drawing attached to the contract, it is evident that the proposed mini warehouse site’s frontage on U.S. Highway 281 does not have a distance. It is obvious that one could, for instance, locate either the Dairy Queen or Pizza Hut site by going in a southerly direction either 100 or 200 feet from the southern boundary of the private road. Since there is no frontage distance for the mini warehouse site, however, a precise beginning point for the subject tract agreed on by the parties is non-existent. Lubel himself testified, on cross-examination, that there was no iron stake or other mark on the property at the time of the execution of the contract. He further testified that before the tract was staked, he could not find the starting point of the subject property. When asked how he “knew” that the mini warehouse site was to have 100 feet of frontage, Lubel replied “[t]hat site was agreed on because there were also some other drawings that were looked at that showed the mini warehouse sites on this tract, which is not even here in evidence.” There are no “other drawings” in the record and no reference on the contract exhibit to another source whereby the frontage for the mini warehouse site could be determined. Although the record contains evidence that the subject tract was 175 feet of frontage on U.S. Highway 281 and 200 feet deep and included an easement for ingress and egress, the record contains no evidence of probative force, strong or otherwise, that the parties intended to describe a particular and identified tract in their contract. We need go no further. The rule of Morrow v. Shotwell will apply only where there is a misdescription, not a failure of identification. Morrow, All S.W.2d at 541. Viewing only the evidence and inferences most favorable to Lubel we conclude that there is a failure of identification and accordingly — 521 — Lubel is not entitled to reformation and specific performance. Accordingly, the trial court did not err in granting the directed verdict in Uptmore’s favor at the close of Lubel’s case. For that reason, a determination of Lubel’s remaining points of error would be fruitless. We, therefore, will not address them. The judgment of the trial court is affirmed. — 522 — — 523 — Footnotes [1] This drawing refers to no other drawing or description. The contract and drawing are reproduced at the end of this opinion. [2] On remand, Morrow pled an action for reformation and specific performance. The jury found in his favor and on appeal to the Eastland court, the judgment was affirmed. The application for writ was refused, no reversible error.