                                 MEMORANDUM OPINION
                                        No. 04-10-00520-CV

                                            Albert JASIK,
                                              Appellant

                                                   v.

                            Arthur MAURICIO and Beatrice R. Mauricio,
                                          Appellees

                    From the 218th Judicial District Court, Atascosa County, Texas
                                  Trial Court No. 08-03-0198-CVA
                              Honorable Fred Shannon, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: August 31, 2011

AFFIRMED

           Appellant Albert Jasik appeals the trial court’s judgment that (1) declared there was no

contract for sale of land between Jasik and Appellees Arthur and Beatrice Mauricio, (2) quieted

title in the Mauricios, (3) awarded costs, attorney’s fees, and interest to the Mauricios, and (4)

evicted Jasik from the property on which he was living. We affirm the trial court’s judgment.
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                                           BACKGROUND

        In 2000 or early 2001, Jasik and Arthur Mauricio discussed Jasik’s potential purchase of

a 4.77-acre tract from Mauricio, but the parties never executed a written agreement. Not later

than April 2001, Jasik paid Mauricio $4,000.00, moved a mobile home onto the property, and

began living there. In April 2001 Jasik began making monthly payments to Mauricio of $129.92,

the amount of Mauricio’s monthly mortgage payment. Mauricio admitted that Jasik made fifty-

nine of eighty-one monthly payments for the period April 2001 through December 2007. In

December 2007, Mauricio wrote Jasik and told him to move off the property. In response to

Mauricio’s eviction letter, Jasik asked for the deed and the mortgage balance payoff amount for

the property. Mauricio refused Jasik’s request and filed suit to evict him. Jasik counterclaimed

for title to the property.

        In an April 2010 bench trial, the parties agreed they wanted to enter into a contract for the

sale of the property but they disagreed over the basic terms such as price and financing. The

court concluded no oral or written contract for sale was formed, and Jasik failed to establish the

requirements of a partial performance exception to the statute of frauds. The court declared that

the Mauricios retained legal title to the property and ordered Jasik evicted. Asserting fifteen

points of error, Jasik appeals the trial court’s judgment.

                               AGREEMENT FOR THE SALE OF LAND

        The trial court found that the parties never reached an oral or written agreement for the

sale of the land and concluded that Jasik failed to prove the existence of any contract. In

multiple issues (i.e., 2, 4, 10, 12, 15) Jasik asserts the evidence was legally and factually

insufficient to support the findings or the judgment. We disagree.




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A. Standards of Review

       “[A] trial court’s findings of fact are reviewable for legal (and factual) sufficiency of the

evidence by the same standards as applied in reviewing the legal (and factual) sufficiency of the

evidence supporting a jury’s finding.” Anderson v. City of Seven Points, 806 S.W.2d 791, 794

(Tex. 1991). “When a party attacks the legal sufficiency of an adverse finding on an issue on

which she has the burden of proof, she must demonstrate on appeal that the evidence establishes,

as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d

237, 241 (Tex. 2001). We examine the record for evidence that a reasonable fact-finder would

credit as supporting the judgment while ignoring contrary evidence, unless a reasonable fact-

finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If no evidence

supports the finding, we “examine the entire record to determine if the contrary proposition is

established as a matter of law.” Dow Chem. Co., 46 S.W.3d at 241. We will sustain a point of

error “only if the contrary proposition is conclusively established.” Id.

       “When a party attacks the factual sufficiency of an adverse finding on an issue which she

has the burden of proof, she must demonstrate . . . that the adverse finding is against the great

weight and preponderance of the evidence.” Id. at 242; accord Ruiz v. Guerra, 293 S.W.3d 706,

718 (Tex. App.—San Antonio 2009, no pet.). After weighing all the evidence, we “set aside a

verdict only if the evidence is so weak or if the finding is so against the great weight and

preponderance of the evidence that it is clearly wrong and unjust.” Dow Chem. Co., 46 S.W.3d

at 242; accord Ruiz, 293 S.W.3d at 718.

B. Applicable Law

       A contract requires the following elements: (1) an offer, (2) an acceptance of the offer,

(3) a meeting of the minds, (4) consent to the terms by both parties, and (5) execution of the



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contract with the intent to be bound by its terms. Oakrock Exploration Co. v. Killam, 87 S.W.3d

685, 689 (Tex. App.—San Antonio 2002, pet. denied); see Plotkin v. Joekel, 304 S.W.3d 455,

476 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). An oral contract must be definite and

clear as to all essential terms or the contract may not be enforced. See T.O. Stanley Boot Co.,

Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Oakrock, 87 S.W.3d at 690;

Arredondo v. Mora, 340 S.W.2d 322, 324 (Tex. Civ. App.—El Paso 1960, writ ref’d n.r.e.) (per

curiam).   When an essential term is left to future negotiation, there is nothing but “an

unenforceable agreement to agree.”      Oakrock, 87 S.W.3d at 690.        Although courts favor

upholding contracts, they may not create a contract where one does not exist.             Id.; see

Arredondo, 340 S.W.2d at 324.

C. Analysis

       The evidence at trial regarding whether the discussions between Jasik and Mauricio

created an enforceable contract for the sale of the property centered on witness testimony. Jasik

and Mauricio both testified that they had agreed that Mauricio would sell Jasik the 4.77-acre

tract. However, their testimony gave conflicting accounts of the terms of the agreement for sale.

Their testimony also differed on whether the initial agreement to purchase the land failed and

became an agreement to rent the land.

       1. Jasik’s Evidence

       Jasik admitted there was no written agreement for the sale of the tract but testified he and

Mauricio entered into an oral contract. He said the contract terms required him to make a

$4,000.00 down payment, pay the property taxes, and make monthly payments to cover

Mauricio’s mortgage note until it was paid off. Once the mortgage was paid off, Jasik would

own the land outright. Jasik testified he did not know the property’s remaining mortgage balance



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or how long he would have to make monthly payments before he owned it. One of Jasik’s

friends testified that she wrote “rent” on Jasik’s checks to Mauricio because she understood the

agreement to be a lease-purchase agreement.

        2. The Mauricios’ Evidence

        Mauricio testified that he initially agreed to sell the tract to Jasik, but his understanding of

the terms of the agreement differed significantly from Jasik’s. Mauricio said their agreement

was that he would sell Jasik the land for $35,000.00 with a $5,000.00 down payment if Jasik

secured his own financing to pay the balance of the purchase price. Because they were friends,

Mauricio accepted Jasik’s reduced down payment of $4,000.00. Mauricio testified that he

repeatedly asked Jasik to obtain his own financing and pay him the balance, but Jasik failed to do

so. In about September 2003, 1 Mauricio told Jasik he would give him credit for the $4,000.00 if

he obtained his own financing, but because Jasik had failed to do so, Mauricio then proposed that

Jasik rent the land, and Jasik agreed. When the court asked if he was willing to return the

$4,000.00, Mauricio said no because he considered it money owed for rental payments Jasik

failed to pay. Mauricio testified that Jasik gave him checks that were marked “rent” as monthly

payments. The court admitted into evidence six of Jasik’s monthly payment checks dated in

2007 that were each marked “rent.” Mauricio’s wife also testified that she gave Jasik receipts for

his payments, and she checked the box marked “For Rent” on each receipt.

        3. Legal Sufficiency

        Having reviewed the record, crediting and ignoring evidence as required, we hold that the

evidence is legally sufficient to support the findings that the parties did not reach an oral

agreement for sale of the tract, but instead performed under an oral month-to-month tenancy


1
 While testifying, Mauricio did not remember the date he spoke with Jasik about renting. Mauricio’s responses to
discovery requests show he believed the parties changed to a rental agreement in September 2003.

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agreement. See City of Keller, 168 S.W.3d at 827; Dow Chem. Co., 46 S.W.3d at 241. Mauricio

testified that the sale price was $35,000.00 and Jasik was to arrange for his own financing.

Mauricio said Jasik failed to secure separate financing and so the parties agreed that Jasik would

remain on the property and pay rent to Mauricio. Mauricio showed Jasik’s checks marked as

rent payments with corresponding receipts also marked “For Rent.” Thus, creditable evidence

supports the findings. See City of Keller, 168 S.W.3d at 827.

       4. Factual Sufficiency

       Having considered and weighed all the admissible evidence, we hold that the findings are

not against the great weight and preponderance of the evidence. Ruiz, 293 S.W.3d at 718–19.

The trial court heard conflicting testimony as to the terms of the agreement including the sale

price, the period of the payments, and the financing arrangements. The fact-finder could have

believed Mauricio’s testimony that Jasik agreed to a rental agreement when Jasik was unable to

fund the purchase and disbelieved Jasik’s testimony to the contrary. See Dow Chem. Co., 46

S.W.3d at 242; Ruiz, 293 S.W.3d at 718–19. Similarly, the fact-finder could have reasonably

believed that the checks and receipts indicated a rental agreement rather than a sale agreement.

Therefore, the trial court’s findings are not so against the great weight and preponderance of the

evidence that they are clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 242; Ruiz, 293

S.W.3d at 718–19.

D. Conclusion

       The evidence is legally and factually sufficient to support the trial court’s findings that

there was no agreement for the sale of the tract and that the parties were performing under a

landlord-tenant agreement. Further, the trial court did not err by concluding there was no oral or




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written contract for the sale of the tract. Jasik’s issues challenging the sufficiency of the

evidence and his issues asserting the existence of an oral contract are overruled.

                                   INADMISSIBLE TESTIMONY

       In his sixth issue, Jasik argues that the court committed reversible error by permitting

Gary West, Mauricio’s friend and a former police officer, to testify over Jasik’s hearsay and

impermissible character evidence objections. Jasik maintains that the improper admission of

West’s testimony probably caused the rendition of an improper judgment.

A. Standard of Review

       A trial court has discretion to admit or exclude proffered evidence. State v. Bristol Hotel

Asset Co., 65 S.W.3d 638, 647 (Tex. 2001); see Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d

394, 396 (Tex. 1989); McEwen v. Wal-Mart Stores, Inc., 975 S.W.2d 25, 27 (Tex. App.—San

Antonio 1998, pet. denied). We review the trial court’s exercise of such discretion under an

abuse of discretion standard. McEwen, 975 S.W.2d at 27. We are not to “reverse a judgment for

erroneous rulings on admissibility of evidence when the evidence in question is cumulative and

not controlling on a material issue dispositive to the case.” Tex. Dep’t of Transp. v. Able, 35

S.W.3d 608, 617 (Tex. 2000); accord Gee, 765 S.W.2d at 396.

B. Applicable Law

       Hearsay is an out-of-court statement “offered in evidence to prove the truth of the matter

asserted.” TEX. R. EVID. 801(d); Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex.

2004). Hearsay statements may not be admitted as evidence unless they qualify for an exception

provided by rule or statute. TEX. R. EVID. 802; e.g., Members Mut. Ins. Co. v. Clancy, 455

S.W.2d 447, 447 (Tex. Civ. App.—San Antonio 1970, no writ).




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C. Analysis

       During the trial, West, Mauricio’s friend, testified about Mauricio’s conversations with

Jasik. Mauricio sought to bolster his case through West’s recounting of Mauricio’s description

of conversations with Jasik.    Over Jasik’s repeated hearsay objections, West described his

understanding of the details of the agreement between Mauricio and Jasik, which understanding

West acknowledged was based entirely on what Mauricio told him. The trial court stated that

West’s testimony might be hearsay but he wanted to hear it anyway—subject to further

objections. The portions of West’s testimony recounting Jasik’s statements to Mauricio were

inadmissible hearsay. See TEX. R. EVID. 802; Clancy, 455 S.W.2d at 447.

D. Conclusion

       Because portions of West’s testimony were inadmissible hearsay, we do not consider

those portions in our sufficiency reviews. See N. Dallas Diagnostic Ctr. v. Dewberry, 900

S.W.2d 90, 97 (Tex. App.—Dallas 1995, writ denied); Marshall v. Telecomms. Specialists, 806

S.W.2d 904, 907 (Tex. App.—Houston [1st Dist.] 1991, no writ). However, West’s testimony

was merely cumulative: it was nothing more than West’s recitation of Mauricio’s account of his

conversations with Jasik—and Mauricio had already testified to the same facts. Because the

inadmissible hearsay was merely cumulative of other properly admitted evidence, we will not

reverse the judgment despite the trial court’s erroneous evidentiary ruling. See Able, 35 S.W.3d

at 617; Gee, 765 S.W.2d at 396. Jasik’s sixth issue is overruled.

                                   OTHER POINTS OF ERROR

       Jasik asserts multiple points of error that partially or primarily pertain to the statute of

frauds (i.e., 1–5, 9–11, 13). He asserts, inter alia, (1) Mauricio failed to properly plead the

statute of frauds as an affirmative defense, (2) the court based its verdict on a statute of frauds



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defense, (3) the court failed to consider partial performance as an exception to the statute of

frauds, and (4) the court failed to properly consider evidence supporting a partial performance

exception to the statute of frauds. Jasik tried to show he met Hook’s partial performance

exception to the statute of frauds, see Hooks v. Bridgewater, 111 Tex. 122, 126–27, 29 S.W.

1114, 1116 (1921), but he failed to meet his burden to prove the existence of an oral contract for

sale of the tract. 2 Jasik’s points of error pertaining to the statute of frauds are overruled.

        Jasik asserts in issue seven that the trial court erred when it “presumably found” that

Mauricio had the right to repudiate the sales contract. The court concluded that there was no oral

or written contract, and the record does not show that the trial court found Mauricio had the right

to repudiate any contract. Issue seven is overruled.

        Finally, Jasik asserts in issues eight and fourteen that the court erred in determining there

was no oral contract for sale of the tract. For the reasons explained herein, we overrule issues

eight and fourteen.

                                                 CONCLUSION

        Jasik had to prove each of the elements of a contract including a meeting of the minds

and consent to the terms by both parties. See Oakrock, 87 S.W.3d at 689; see also T.O. Stanley

Boot Co., 847 S.W.2d at 221 (requiring clarity for essential terms). After crediting and ignoring

evidence as required by the standards of review, we conclude that the evidence was legally and


2
  See Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439–40 (Tex. App.—Dallas 2002, pet. denied) (“The acts of
performance relied upon to take a parol contract out of the statute of frauds must be such as could have been done
with no other design than to fulfill the particular agreement sought to be enforced; otherwise, they do not tend to
prove the existence of the parol agreement . . . .”); Welch v. Coca-Cola Enters., 36 S.W.3d 532, 539 (Tex. App.—
Tyler 2000, pet. withdrawn) (“[T]he part performance must itself constitute persuasive evidence of the existence and
terms of the oral contract.”); Arredondo v. Mora, 340 S.W.2d 322, 324 (Tex. Civ. App.—El Paso 1960, writ ref’d
n.r.e.) (“The parol sale or oral conveyance must also be proven, and its existence may not be inferred or presumed
solely from evidence of the existence of [the Hooks] requirements, particularly where it is the contention of the
opposing party that there had been no parol or oral conveyance of the land; but, on the contrary, a mere tenancy
agreement.”); see also Kottke v. Scott, No. 03-10-00071-CV, 2011 WL 1467194, at *4 (Tex. App.—Austin Apr. 14,
2011, no pet.) (mem. op.) (quoting Arredondo) (same).

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factually sufficient to support the findings, conclusions, and judgment. Accordingly, we overrule

each of Jasik’s issues and affirm the trial court’s judgment.

                                                   Rebecca Simmons, Justice




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