                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ______________________
                              NO. 09-12-00376-CV
                            ______________________

   GUSTAVO TOMAS DORTA AND ANA MIRIAM DORTA, Appellants
                                         V.
                CARLOS RAVE AND LIGIA RAVE, Appellees
_______________________________________________________             ______________
                On Appeal from the County Court at Law No. 2
                        Montgomery County, Texas
                       Trial Cause No. 12-26257-CV
________________________________________________________              _____________

                          MEMORANDUM OPINION

      In this forcible detainer action, Gustavo Tomas Dorta and Ana Miriam Dorta

appeal the trial court’s judgment rejecting their claim that alleges they are entitled

to immediately possess a residence in Porter, Texas. Because the evidence before

the trial court established that the Dortas have a superior right to immediately

possess the premises at issue, we conclude the County Court at Law should have

granted the Dortas’ petition. We hold the Dortas are entitled to immediate




                                          1
possession of the premises at issue; therefore, we reverse and render judgment in

the Dortas’ favor.

                                     Background

      In 2002, the Dortas leased a house to Carlos and Ligia Rave. The house is

located at 22873 Cumbre Drive in Porter, Texas, and was subject to a two-year

lease. Under the lease, the Raves were obligated to pay one dollar per month in

rent. The lease also had a holdover provision, which allowed the Dortas to

terminate the lease on thirty days’ written notice, and an option term that gave the

Raves a right to purchase the property, if exercised. The lease’s option provision,

the term at issue in the parties’ dispute, contains the following language:

      Lessee has the right of “first refusal” on purchase of this house. At the
      end of the first year of this lease, Lessee can exercise their option to
      purchase house at the accepted price. [I]f they don’t want to exercise
      option[,] then lease will continue until termination. Lessor will
      finance purchase price less a 10% down payment at Lessee’s option.
      Terms of mortgage will be for a 20 year pay-out, payable in monthly
      installments.

      On the date the parties signed the lease, they executed a second document

titled “General Agreement.” The General Agreement, when construed with the

option in the lease, further defines the option’s terms, providing:

      [The Dortas] [a]gree to sell a house located at 22873-Cumbre Dr.,
      Porter, Texas, 77365 to [the Raves]. The terms of the sale are as
      follows: the sale will not take place before November 21, 2003. The
      purchase price will be calculated by adding all expenses incurred by
                                         2
      [the Dortas] in regard to the house and adding 7 1/2% to the purchase
      price[,] [c]alculated annually. If not purchased in November, 2003-
      another 7 1/2% fee will accumulate in the purchase price. Part of
      expenses incurred by [the Dortas] will be a sum lent to [the Raves] at
      time of signing this agreement. The amount being twenty-two
      thousand dollars ($22,000.00) as witnessed by a promissory note[.]
      [I]f house is not purchased by [the Raves] by end of November 19,
      2004, then house will be appraised and sold as soon as possible. The
      net gain on sale of house will be divided evenly between [the Dortas]
      and [the Raves].

The General Agreement also provides that “[t]ime is of the essence on all

undertakings[,]” and that “[t]his is the entire agreement.”

      In February 2012, the Dortas notified the Raves to vacate the premises;

when the Raves did not comply with the Dortas demand, the Dortas sent a letter

that threatened eviction. When the Raves refused to leave, the Dortas sued them in

the Justice of Peace Court in a forcible detainer action. Subsequently, the Justice of

the Peace awarded the Dortas possession; the Raves perfected an appeal in the

County Court at Law.

      During the bench trial before the County Court at Law, two witnesses

testified, Gustavo Dorta and Carlos Rave. Gustavo established that the Dortas

bought the premises from Opal Handy in November 2002. On that same day, the

Raves leased the premises from the Dortas. According to Gustavo, the Raves never

exercised the option to purchase the property, he never signed a deed conveying

the property to the Raves, and the Raves never arranged to finance their alleged
                                       3
purchase with him. Gustavo testified that he terminated the Raves’ lease as of

March 2012, but the Raves continued to live on the property after they received his

demand that they vacate the property.

      Carlos Rave disputed Gustavo’s testimony that the Raves failed to exercise

their option to purchase the property. According to Carlos, he signed the General

Agreement and the lease on the same day. Carlos explained that he and Gustavo

were partners in a business that built custom homes. Under their business

arrangement, Carlos explained that he received advances on the profits for the

houses he worked on, and when a house sold, he and Gustavo split the profit. With

respect to the option, Carlos testified that in August 2004, he told Gustavo he

wanted to put $5,000 down on the house as a down payment, that Gustavo “agreed

to it[,]” and that they went “forward.” Carlos produced a receipt from Dorta

Interests, L.P.; the receipt shows a credit in the amount of $5,000 for “down

payment on house[.]” Beside those words, Carlos wrote “22873 Cumbre Dr[.]”

Additionally, Carlos testified that Dorta had deducted payments, property owner

association dues, and taxes on the house from their business’s profits; however,

there were no documents admitted in evidence documenting any mortgage

payments, there is no testimony in the record identifying the amount of any of the

Raves’ mortgage payments, or documents evidencing the Raves’ debt to the Dortas

                                        4
for the purchase of the property at issue. According to Carlos, he asked Gustavo

for a deed to the premises many times, but he never got one. Carlos testified that he

never signed a deed of trust or a note for the balance on the property at issue.

      Following the bench trial, the County Court at Law signed a judgment that

denied the Dortas any relief on their claim for possession. Several months later, the

trial court issued findings of fact and conclusions of law. In its findings, the trial

court found that the Raves had exercised their option to purchase the premises,

transforming their relationship with the Dortas “from a lease-purchase agreement

to an executory contract for the purchase of the property.” The Dortas timely filed

their appeal. See Tex. R. App. P. 26.1(a)(4). The findings indicate that the trial

court intended to dismiss the case for lack of jurisdiction, but the trial court’s

judgment appears to be a judgment on the merits of the Dortas’ claim for

possession.

                                        Issues

      In three issues, the Dortas argue the trial court erred in entering a judgment

in favor of the Raves. In issue one, the Dortas assert the trial court erred by

considering and deciding which of the parties had a superior right to receive title.

In issue two, the Dortas challenge the legal and factual sufficiency of a cluster of

the trial court’s findings and conclusions that relate to the trial court’s

                                          5
determination the Raves had exercised their purchase option on the property. In

issue three, the Dortas argue the trial court erred in viewing their agreement with

the Raves as an executory contract. Premised on their claim that the option was

never exercised, the Dortas contend in their third issue that the notice of default

provision in section 5.063 of the Texas Property Code—which applies to executory

contracts conveying a residence—does not apply to their claim for forcible

detainer. See Tex. Prop. Code Ann. § 5.063 (West Supp. 2013).

                                      Analysis

      We first address issue two, as it is dispositive of the appeal. In issue two, the

Dortas contend that the trial court’s findings and its conclusion that the Raves

exercised the option to purchase the property are supported by legally insufficient

evidence. A forcible detainer action is a special proceeding governed by particular

statutes and rules that were “created to provide a speedy, simple, and inexpensive

means for resolving the question of the right to possession of premises.” Rice v.

Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.); see Tex. Prop.

Code Ann. §§ 24.001-24.011 (West 2000 & Supp. 2013); Tex. R. Civ. P. 738-755.

Generally, the “sole issue” in the forcible detainer action is “who has the right to

immediate possession of the premises.” Rice, 51 S.W.3d at 709; see Tex. R. Civ. P.

746. “To prevail in a forcible detainer action, a plaintiff is not required to prove

                                          6
title, but is only required to show sufficient evidence of ownership to demonstrate

a superior right to immediate possession.” Rice, 51 S.W.3d at 709.

      The Dortas’ petition asserts that the Raves occupied the premises under an

agreement the Dortas terminated; in this case, the Dortas never alleged that the

Raves forcibly acquired possession of the premise at issue. Compare Tex. Prop.

Code Ann. § 24.002(a) (West 2000), with id. § 24.001(a) (West Supp. 2013).

Although the Raves did not file an answer prior to the trial, whether the Raves

exercised their option to purchase the premises was an issue tried by consent, as

the Dortas never objected during trial when the Raves introduced testimony and

evidence that addressed the purchase option. See Tex. R. Civ. P. 67 (“When issues

not raised by the pleadings are tried by express or implied consent of the parties,

they shall be treated in all respects as if they had been raised in the pleadings.”);

Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991).

      Under the terms of the parties’ lease and General Agreement, the Raves had

an option which, if exercised, gave them the right to compel the Dortas to sell the

premises to them. “An option is a privilege or right which the owner of property

gives another to buy certain property at a fixed price within a certain time.”

Faucette v. Chantos, 322 S.W.3d 901, 907 (Tex. App. —Houston [14th Dist.]

2010, no pet.). “Generally, acceptance of an option must be unqualified,

                                         7
unambiguous, and strictly in accordance with the terms of the agreement.” Id. at

908. As the optionees, the Raves are held to the strict terms of the option. See

Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265, 271-72 (1939) (explaining that,

absent fault by the optionor, the optionee is held to the strict terms of the option

agreement); Davis v. Norris, 352 S.W.3d 715, 721 (Tex. App.—Texarkana 2011,

pet. denied) (“‘It is a well-settled principle that strict compliance with the

provisions of an option contract is required.’”).While in some circumstances

modifications can be made to an option, there was no evidence the parties ever

modified the terms of the written option contained in the parties’ written

agreements. See Faucette, 322 S.W.3d at 908. (noting that options are capable of

being modified). Additionally, the Raves have not argued on appeal or in the trial

court that the written agreements they made with the Dortas were modified after

they were signed.

      At trial, the Raves attempted to show that they exercised the purchase option

by paying ten percent of the agreed purchase price for the premises at issue.

However, the amount that constitutes the agreed price is not able to be determined

by examining the documents that constitute the parties’ written agreement. While

the General Agreement provides a formula that is to be used in deriving the agreed

price, the formula provided by the General Agreement does not contain the

                                         8
essential information required to derive the agreed price. Given the option’s terms,

additional evidence, such as the Dortas’ purchase price of the property, is needed

to derive the agreed price. The Dortas argue that the evidence from the trial is

legally insufficient to prove that the Raves exercised the purchase option; the

Dortas attack a cluster of the trial court’s findings 1 and conclusions,2 which

together address whether the Raves proved to the trial court that they had complied

with the terms of the option.

      We consider a claim that a party exercised their purchase option as a defense

to the Dortas’ forcible detainer action. Although for the purposes of this trial, the

Raves established that they paid $5,000 to exercise the option, they were required

to show that they complied with each of the obligations imposed on them by the

option. See id. Under the purchase option, the Raves were obliged to pay ten

percent of the purchase price to exercise the option. But, the Raves produced no

evidence regarding the agreed price of the premises at issue.

      While a provision in the General Agreement states that the writing

represents the entire agreement, the option agreement is not a fully integrated term

because additional information, outside the corners of the agreement, is needed to

      1
          Findings of Fact 2, 3, 7, 8, 9, and 15.
      2
          Conclusions of Law 3-7.
                                             9
determine whether the Raves strictly complied with the purchase-by-down-

payment provision of the option. Under Texas law, the existence of an integration

provision does not always prohibit the introduction of testimony to show the terms

of the agreement where the contract, on its face, shows that it is not fully

integrated. See Bob Robertson, Inc. v. Webster, 679 S.W.2d 683, 688-89 (Tex.

App.—Houston [1st Dist.] 1984, no writ). In evaluating a contract, a court may

conclude that the contract is integrated in some of its terms, but is not fully

integrated as to others. See Magnolia Warehouse & Storage Co. v. Davis &

Blackwell, 108 Tex. 422, 195 S.W. 184, 185 (1917).

      In this case, the Dortas’ legal sufficiency challenge requires us to review the

evidence admitted during the trial to determine if legally sufficient evidence was

introduced to create a fact issue on the amount the Raves agreed to pay to purchase

the property. In an appeal from a bench trial, we review legal and factual

sufficiency issues under the same standards that are applied to the review of a

jury’s verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).

When reviewing a finding for legal sufficiency, we credit the favorable evidence if

a reasonable factfinder could and disregard the contrary evidence unless a

reasonable factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 807,

827 (Tex. 2005). A reviewing court will sustain a no-evidence point when “(1) the

                                        10
record discloses a complete absence of evidence of a vital fact[,] (2) the court is

barred by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact[,] (3) the evidence offered to prove a vital fact is no

more than a mere scintilla[,] or (4) the evidence establishes conclusively the

opposite of the vital fact.” Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.

2003); see also City of Keller, 168 S.W.3d at 807.

      During the trial, neither Carlos nor Gustavo testified regarding the agreed

purchase price of the property. Additionally, no evidence or testimony was

introduced during the trial to address any of the expenses incurred by the Dortas on

the premises, such as the amount the Dortas paid to purchase the property from

Opal Handy or the amount the Dortas paid on taxes and insurance during the

option period. Also, there was no evidence admitted during the trial that showed

the Raves were prevented from proving what the formula in the written contracts

required them to pay to exercise their option to purchase the property. The Raves’

claim that they complied with and exercised the option remains an issue that can be

decided in a separate suit in district court. See Tex. R. Civ. P. 746 (providing that

in forcible detainer actions, “the only issue shall be as to the right to actual

possession; and the merits of the title shall not be adjudicated”); Rice, 51 S.W.3d at

709 (“Because a forcible detainer action is not exclusive, but cumulative, of any

                                         11
other remedy that a party may have in the courts of this state, the displaced party is

entitled to bring a separate suit in the district court to determine the question of

title.”).

        Because the evidence the trial court admitted during the trial was legally

insufficient to show that title was at issue, the trial court was required to view the

case as a forcible detainer proceeding. See Rice, 51 S.W.3d at 709. With respect to

the Dortas’ forcible detainer action, the Dortas established they were entitled to

possession of the premises as a matter of law, primarily through the following

documents that were admitted into evidence without objection: (1) a certified copy

of their deed from Opal Handy, (2) a copy of their residential lease with the Raves,

(3) a copy of a letter sent by certified mail from the Dortas’ attorney to the Raves

terminating the lease, and (4) a copy of a letter sent by certified mail from the

Dortas’ attorney to the Raves demanding that they vacate the premises. The notice

to vacate proved that the Dortas gave the Raves proper notice to vacate the

premises. See Tex. Prop. Code Ann. § 24.005 (West Supp. 2013). The testimony of

Gustavo established that the Raves possessed the property at the time of trial and

that the Raves had refused to vacate. The fact that the Raves continued to occupy

the premises in June 2012, the date of the trial in the County Court at Law, was

never disputed.

                                         12
      We conclude that the evidence admitted during the trial was sufficient to

establish the Dortas had a superior right to immediate possession of the premises.

See Morris v. Am. Home Mortg. Servicing, Inc., 360 S.W.3d 32, 35 (Tex. App.—

Houston [1st Dist.] 2011, no pet.). We further conclude that the Raves produced

legally insufficient evidence on their claim that they exercised an option to

purchase the property. Because the trial court could have resolved the right to

possession without resolving the ultimate title dispute, it was required to do so and

to award possession of the property to the Dortas. Under Rule 43.3, we are

required to render the judgment the trial court should have rendered. Tex. R. App.

P. 43.3. Accordingly, we reverse the trial court’s judgment, and render judgment

that the Dortas are entitled to possession of 22873 Cumbre Drive in Porter, Texas.

      REVERSED AND RENDERED.



                                              ____________________________
                                                      HOLLIS HORTON
                                                           Justice


Submitted on November 7, 2013
Opinion Delivered January 9, 2014

Before McKeithen, C.J, Kreger and Horton, JJ.



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