                                  NO. 07-03-0357-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                 SEPTEMBER 2, 2004

                        ______________________________


                 NAVIN PATEL AND SEJAL PATEL, APPELLANTS

                                           V.

                  BIPIN PATEL AND MINAXI PATEL, APPELLEES


                      _________________________________

           FROM THE 159TH DISTRICT COURT OF ANGELINA COUNTY;

              NO. 33,177-00-5; HONORABLE PAUL E. WHITE, JUDGE

                        _______________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                              MEMORANDUM OPINION


      Following a non-jury trial, Navin Patel and Sejal Patel, appellants, seek a reversal

of the judgment that Bipin Patel and Minaxi Patel, appellees, recover $53,493.98 as
damages and attorney’s fees in the amount of $17,613.00.1 Presenting five issues,

appellants contend (1) the trial court erred in failing to make findings of fact and

conclusions of law; (2) there is no evidence that appellants breached the contract; (3) there

is no evidence of a fiduciary relationship; (4) there is no evidence of fraud; and (5) there

is insufficient evidence of loss of business damages. We reverse and remand.


       By their pleadings, appellees alleged four causes of action, to-wit: (1) breach of

contract, (2) breach of fiduciary duty, (3) fraud, and (4) sought declaratory relief and

requested that the court declare the written contract void. Their request that the contract

be declared void is consistent with their answer to appellants’ counterclaim seeking

damages for breach of contract. Because appellees expressly announce that the issues

of breach of fiduciary duty and fraud are moot for purposes of our review, and on appeal

contend that there was sufficient evidence to support the trial court’s finding that appellants

breached the agreement, we will limit our analysis to issues one, two, and five.


       Appellees owned and operated the MB Food Store in Lufkin, including the real

estate where the business was located. On November 22, 1999, appellees, as sellers,

signed a nine-page writing, prepared by a non-lawyer financial firm entitled Contract of

Sale of the store and property to appellants as buyers.2 According to the writing, the sale


       1
       Because of the similarity of the parties’ names, we will refer to Navin Patel and
Sejal Patel as appellants and Bipin Patel and Minaxi Patel as appellees.
       2
       The 38-paragraph writing contained provisions which, among other things, required
appellees to provide a title insurance policy, contained a provision prorating various closing

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price was $892,000, which included the buyers’ down payment of $150,000, buyers’

assumption for payment of balance of a promissory note in the original principal sum of

$600,000, and sellers’ financing of $160,000 payable in monthly installments over five

years. Among other things, we note that paragraph 9 of the contract entitled closing date

is ambiguous and uncertain, the contract does not contain a provision for possession

before closing, does not describe the real estate, and because the closing date of the

contract and date the contract was signed, November 22, 1999, are the same, the contract

did not afford sufficient time after execution for completion of the terms incident to the sale

and transfer of the property and business. When appellants paid the $150,000 they

immediately took possession of the store and commenced operations. In April 2000, after

appellees learned that the loan company would not allow appellants to assume the

$600,000 loan, instead of concluding the sale, appellees proposed that appellants lease

the property for 20 years with an option to purchase the property upon expiration of the

lease; however, appellants declined to proceed on a lease/option basis. Appellees filed

the underlying suit in May 2000.


                                    Standard of Review


       Because the trial court did not make any findings of fact, the judgment of the trial

court implies all necessary findings to support it. IKB Industries v. Pro-Line Corp., 938




costs, required sellers to provide an itemized inventory, and a conveyance by general
warranty deed.

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S.W.2d 440, 445 (Tex. 1997). However, where, as here, a reporter’s record is a part of the

record, the legal and factual sufficiency of the implied findings may be challenged on

appeal the same as jury findings or a trial court’s findings of fact. Roberson v. Robinson,

768 S.W.2d 280, 281 (Tex. 1989). The applicable standard of review is the same as that

applied in the review of jury findings or a trial court’s findings of fact. Id. When implied

findings by the trial court are supported by the evidence, the appellate court must uphold

the judgment on any theory of law applicable to the case. Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990).


       By their second issue, appellants contend there is no evidence they breached the

contract of sale. We agree. In considering this issue, we must first determine whether the

minds of the parties met and the terms of the alleged contract. A contract for sale of real

estate must be (1) in writing and (2) signed by the parties. See Tex. Bus. & Com. Code

Ann. § 26.01(a) & (b)(4). The statute also requires that the memorandum of the agreement

be complete within itself in every material detail and contain all essential elements of the

agreement so that the contract can be ascertained from the writings without resort to oral

testimony. Crowder v. Tri-C Resources, Inc., 821 S.W.2d 393, 396 (Tex.App.--Houston

[1st Dist.] 1991, no writ). The legal description must be furnished with the original writing

itself or by reference to some other existing writing. Boddy v. Gray, 497 S.W.2d 600, 603

(Tex.Civ.App.--Amarillo 1973, writ ref’d n.r.e.). Moreover, in order to be enforceable, the

contract must be sufficiently certain to enable the trial court to determine the legal

obligations of the parties. Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex. 1966). Further,

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there can be no breach of contract in the absence of an enforceable contract. Lynx

Exploration and Production Co., Inc. v. 4-Sight Operating Co., 891 S.W.2d 785, 788

(Tex.App.--Texarkana 1995, writ denied).


       As noted above, the contract does not contain a legal description of the property.

By their second amended petition, appellees alleged that the contract “did not correctly

reflect the agreement of the parties,” and by their fourth cause of action for declaratory

judgment, appellees requested that the court declare the written contract to be void.

Finally, by their verified third amended answer to appellants’ counterclaim appellees

alleged the contract was ambiguous, incorrect, incomplete, and “void for lack of adequate

consideration.” Because these assertions of fact in the live pleadings were not presented

in the alternative, they are regarded as formal judicial admissions, and as such, are

conclusively established without the necessity of other evidence. See Kent v. Citizens

State Bank, 99 S.W.3d 870, 872 (Tex.App.--Beaumont 2003, pet. denied).


       To support the award of damages for breach of contract, appellees had the burden

to prove: (1) a contract existed between the parties; (2) the contract created duties; (3)

appellants breached the contract; and (4) appellees sustained damages.             Bayway

Services, Inc. v. Ameri-Build Const., L.C., 106 S.W.3d 156, 160 (Tex.App.--Houston [1st

Dist.] 2003, no pet.). Considering the legal inadequacies of the written instrument prepared

without the assistance of counsel and appellees’ judicial admissions, appellees presented

no evidence that the minds of the parties did effectively meet and that appellants breached


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a material duty under the contract. Appellants’ second issue is sustained. Our disposition

of appellants’ second issue pretermits consideration of issues one and five.


       Because appellees announce on appeal that the claims of fraud and breach of

fiduciary duty are moot and appellants having prevailed on their no evidence of contract

issue, appellants would ordinarily be entitled to the rendition of judgment in their favor.

However, following Bayway, id. at 161, it appearing that there is a probability that the case

was not fully developed, exercising our discretion, rather than render judgment, we remand

the case for further proceedings.


                                          Don H. Reavis
                                            Justice




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