











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00161-CV
______________________________


GREENVILLE SURGICAL ASSOCIATES, P.A., Appellant
Â 
V.
Â 
ROBERT CARLSON, M.D., Appellee


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court No. 62,591


Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 



Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter


MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Â Â On April 22, 2004, this Court entered an order in this case permanently abating the case on
suggestion of bankruptcy.  See 11 U.S.C.A. Â§ 362 (West Supp. 2004â2005).  More than a year has
now passed, and the parties have not requested reinstatement of the case.
Â Â Â Â Â Â Â Â Â Â Â Â Accordingly, for administrative purposes, we issue our opinion this date formally abating the
case.  Henceforth, this case will be treated as closed.  Any party may reinstate by promptly filing a
motion with an attached certified copy of the order showing that the automatic bankruptcy stay has
been lifted or terminated and specifying what further action, if any, is required from this Court.  See
Tex. R. App. P. 8.3.  In the event of reinstatement, any period that began to run and had not expired
at the time of suspension will begin anew when the proceeding is reinstated.  See id.
Â 

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Jack Carter
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Date Submitted:Â Â Â Â Â Â Â Â Â Â October 25, 2005
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â October 26, 2005

 They also asserted that the statute of limitations barred suit arising from the original
contract and that the statute of frauds prevented any alleged oral contract from being enforceable. 
Summary judgment was denied.  
 After a bench trial, the trial court granted specific performance in favor of Woods, provided
that he pay the purchase price for property B, and also awarded him $22,000.00 in actual damages,
$20,000.00 in punitive damages for the Cates' trespass into property B, $20,000.00 in attorney's fees,
and costs.  The following conclusions of law, derived from the trial court's findings of fact, are
material to disposition of this appeal:
	1.	The parties entered a valid and binding agreement dated May 21, 2002, on the
entire acreage . . . .
	2. 	The deadline dates in the above-referenced contract were modified by the
actions and inactions of the parties upon which the Plaintiff reasonably relied
to his detriment. 
	3. 	Plaintiff tendered all conditions precedent to the contract and tendered to the
Defendants the agreed upon consideration.
		. . . .
	5. 	Defendants gave Plaintiff permission to occupy, use, control, maintain,
manage and possess [property B] on or about July 2004. 
	6. 	Defendants falsely represented that they would convey all of their right, title
and interests in [property B] to Plaintiff.
		. . . .
	8. 	The Defendants [sic] conduct . . . constituted false and material
misrepresentations of material facts. 
		. . . .
	12.	Plaintiff reasonably and detrimentally relied upon Defendants [sic]
representations and misrepresentations.  
 
	Among other points of error highlighted on appeal, the Cates argue the trial court erred in
granting specific performance on the May 2002 contract because it was terminated.  They also argue
that no oral contract was found to exist.  We agree. (2) 
III.	Standard of Review 
	"Findings of fact in a case tried to the court have the same force and dignity as the findings
made by a jury in its verdict."  Ayers v. Mitchell, 167 S.W.3d 924, 927 (Tex. App.--Texarkana 2005,
no pet.).  We are bound by them unless the contrary is established as a matter of law, or if no
evidence supports the finding.  McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). 
Because we defer to a trial court's resolution of factual issues, we do not substitute our findings of
fact as long as evidence in the record is sufficient to sustain the trial court's findings.  Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992); Ayers, 167 S.W.3d at 928.
	"On the other hand, since a trial court has no discretion in determining what the law is or
applying the law to the facts, a trial court's conclusions of law are reviewed de novo."  Duddlesten
v. Klemm, No. 06-08-00106-CV, 2009 WL 635153, at *3 (Tex. App.--Texarkana Mar. 13, 2009,
no pet.) (mem. op); Ayers, 167 S.W.3d at 928; see Walker, 827 S.W.2d at 841.
IV. 	Trial Court Erred in Granting Specific Performance Where No Contract Existed
 Specific performance is an equitable remedy that can be awarded upon showing a breach of
contract.  Stafford v. S. Vanity Magazine, Inc., 231 S.W.3d 530, 535 (Tex. App.--Dallas 2007, pet.
denied) (citing Kress v. Soules, 152 Tex. 595, 261 S.W.2d 703, 704 (1953)).  Thus, "[i]n pursuing
an action for specific performance, the first question is whether there is an enforceable contract to
be performed." Lynx Exploration & Prod. Co. v. 4-Sight Operating Co., 891 S.W.2d 785, 787 (Tex.
App.--Texarkana 1995, writ denied).  To be enforceable and comply with the statute of frauds, a
contract for the sale of real property must be in writing and signed by the person to be charged with
the agreement.  Tex. Bus. & Com. Code Ann. § 26.01 (Vernon 2009).  Before a court can order
specific performance of a contract for the sale of land, there must be a written agreement expressing
the essential terms of the contract with reasonable certainty.  Chambers v. Pruitt, 241 S.W.3d 679,
687 (Tex. App.--Dallas 2007, no pet.); Joplin v. Nystel, 212 S.W.2d 869 (Tex. Civ. App.--Amarillo
1948, no writ) ("A court will not decree specific performance of contract for sale of land nor
entertain suit to recover damages for breach thereof, unless a written agreement or a memorandum
required by the Statute of Frauds expresses the essential terms of the contract with such certainty and
clarity that it may be understood without recourse to parole [sic] evidence of the intentions of the
parties.").  Also, it is "a general rule of equity jurisprudence in Texas that a party must show that he
has complied with his obligations under the contract to be entitled to specific performance."
DiGiuseppe v. Lawler, 269 S.W.3d 588, 594 (Tex. 2008).  
	There was no separate written contract for the sale of property B.  In ordering specific
performance, the trial court relied on the 2002 contract for sale, which was clearly contingent upon
Woods obtaining third-party financing for the value of both properties A and B. (3)  A condition
precedent is one that must be performed before "a right can accrue to enforce an obligation."  Perl
v. Patrizi, 20 S.W.3d 76, 80 (Tex. App.--Texarkana 2000, pet. denied) (citing Centex Corp. v.
Dalton, 840 S.W.2d 952, 956 (Tex. 1992)).  The 2002 original contract stated, "If financing . . . or
assumption approval is not obtained within 65 days after the effective date hereof, this contract will
terminate . . . ."  "The use of the term 'if' connotes a condition precedent that conditions performance
rather than a covenant or promise."  Shin-Con Dev. Corp. v. I.P. Invs., Ltd., 270 S.W.3d 759, 766-67
(Tex. App.--Dallas 2008, pet. denied); Knox v. Townes, 470 S.W.2d 290, 291 (Tex. Civ.
App.--Waco 1971, no writ) (a contract contingent on financing contains a condition precedent). 	Since financing was not obtained by the closing date, the contract terminated by its own
terms.  See White v. Hughs, 867 S.W.2d 846, 851 (Tex. App.--Texarkana 1993, no writ) ("When
entering into a contract for the purchase of realty, the parties may provide for repossession of the
property or cancellation of the sale upon breach.").  This termination and abandonment of the
original contract was further evidenced by the parties'  execution of a separate written contract for
sale of propertyÂ A at a later date.  The trial court erred as a matter of law in finding Woods
completed all conditions precedent, and in finding the 2002 terminated contract valid after its
termination.   
	The trial court found that the written contract entered May 21, 2002, was a valid and binding
agreement for the sale of both tracts of land and "will be enforced to permit Plaintiff to complete the
purchase of [property B]."  Even though Woods pled alternatively that an oral contract was entered
into by the parties, at trial Woods asserted that he was entitled to specific performance based on a
written contract he prepared for the last 100 acres and sent to the Cates, but which was never
returned.  Woods did not present evidence that the parties had entered a separate oral contract, and
the trial court made no finding that the parties entered an oral contract.  Here, the court entered
specific findings of fact and conclusions of law, so there is no implied finding of an oral agreement. 
If findings of fact and conclusions of law are not requested or filed, the appellate court presumes the
trial court found all fact questions in support of its judgment.  IKB Indus. v. Pro-Line Corp., 938
S.W.2d 440, 445 (Tex. 1997). 
 	Further, Woods' argument to this Court is premised on the trial court's findings of a "valid
and binding written contract" which was modified, as to deadlines, by the actions and inactions of
the parties.  Therefore, since there is no finding that an oral contract to sell property B existed, the
argument that an oral agreement may be enforced without compliance with the statute of frauds on
the doctrine of partial performance is inapplicable.   
	At most, the finding of the trial court was that the original written contract was to be enforced
because the parties by their "actions and inactions" modified the deadlines in the contract.  But there
is no finding that an entirely new oral contract was entered that could be enforced; neither did the
trial court find that the parties had orally agreed to change the original purchase price.  The purchase
price of the original contract for both tracts was $269,500.00, or approximately $1,300.00 per acre,
whereas the judgment enforces the contract at $1,000.00 per acre.  The only modification that the
trial court found pertained to "deadlines" in the original contract.  Even if the plaintiff could establish
all elements to specifically enforce an oral contract, that would be inapplicable here as the judgment 
attempted to enforce the original written contract, but on terms not found in that contract.   
V. 	The Trial Court Erred in Finding Fraud and Trespass
	Next, the trial court found that the Cates defrauded Woods by "falsely represent[ing] that they
would convey all of their right, title and interest in" property B.  The court concluded that Woods
reasonably acted upon the misrepresentations contained within his petitions.  When fraud claims
arise out of an alleged contract which is unenforceable under the statute of frauds, the statute of
frauds bars the fraud claims as well as the contract claims.  Weakly v. East, 900 S.W.2d 755, 758-59
(Tex. App.--Corpus Christi 1995, writ denied) (citing Nagle v. Nagle, 633 S.W.2d 796, 800-01
(Tex. 1982) (enforcing a promise to convey land despite the statute of frauds would render the statute
meaningless));Â Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001)) ("If in the face of the Statute of
Frauds, we permit [plaintiff's] fraud claim to the extent he seeks to recover the benefit of the
unenforceable bargain, we deprive the Statute of any effect.").  Because there was no enforceable
contract to convey land, the trial court erred as a matter of law in finding the Cates defrauded
Woods.Â 
	Next, there was a finding that Cates trespassed onto Woods' property when moving Woods'
cattle from property B to property A.  Trespass occurs when one enters another's land without
consent.  Cain v. Rust Indus. Cleaning Servs., 969 S.W.2d 464, 470 (Tex. App.--Texarkana 1998,
pet. denied).  Because Woods failed to establish ownership of property B, the trial court erred in
finding trespass.  
VI.	Woods Was Not Entitled to Recover Monetary Damages
	"It is well established in Texas that no recovery is allowed unless liability has been
established."  Fire Ins. Exchange v. Sullivan, 192 S.W.3d 99, 107 (Tex. App.--Houston [14th Dist.]
2006, pet. denied) (quoting Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 246 (Tex.
App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.)); see also Schindler v. Austwell Farmers Coop.,
841 S.W.2d 853, 854 (Tex. 1992).  Damage findings in the absence of liability findings are
immaterial.  Fire Ins. Exchange, 192 S.W.3d at 107; Basic Capital Mgmt. v. Dynex Commercial,
Inc., 254 S.W.3d 508, 513 (Tex. App.--Dallas 2008, no pet.). Because we find Woods was not
entitled to prevail on any of his alleged causes of action, he was not entitled to consequential or
punitive damages or attorney's fees. 
VII.	Conclusion 
 For these reasons, we reverse the trial court's judgment and render judgment that Woods take
nothing.

						Jack Carter
						Justice

Date Submitted:	August 31, 2009
Date Decided:		October 21, 2009
1. Woods created a separate proposed contract for the sale of property B providing for seller
financing.  It was not returned to him, and he did not see a signed copy of it until it was produced
during discovery.  Tom testified he made changes to the proposed contract, but never delivered this
contract due to conflicts with Woods.  The trial court did not find there was a separate written
contract for sale with regard to property B.  In any event, this unexecuted contract for sale was
contingent upon closing, at which time Woods was to pay $10,000.00.  The closing never occurred,
and the proposed contract terminated.  
2. Because our resolution of these two issues is dispositive of this appeal, we do not need to
address the Cates' remaining points of error.  
3. The trial court stated, "The May 21, 2002 contract as modified will be enforced to permit
Plaintiff to complete the purchase of [property B]." 

