Opinion
No. 04-05-00615-CV
Delivered and Filed: March 1, 2006.
Appeal from the 81st Judicial District Court, La Salle County, Texas, Trial Court No. 03-11-00113-Cvl, Honorable Donna S. Rayes, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Rodolfo G. Rodriguez and Charlotte A. Rodriguez appeal a judgment rendered in favor of Seferino Salazar and Francisca Salazar after a bench trial. The Rodriguezes contend that the evidence is legally and factually insufficient to support the trial court's finding that the Rodriguezes were not entitled to reimbursement. The Rodriguezes further contend that the trial court erred in placing the burden of proof on them. We affirm the trial court's judgment.
Background
The Salazars purchased a house from the Rodriguezes, executing a note and deed of trust in favor of the Rodriguezes. The Salazars subsequently sued the Rodriguezes seeking a declaratory judgment that the note had been paid in full and the lien had been released. The Rodriguezes filed a counterclaim asserting that they were entitled to reimbursement for repairs made to the property.
The trial court entered a judgment declaring that the note was paid in full but awarding the Rodriguezes a sum of money for the repayment of taxes. The trial court entered a take nothing judgment on the Rodriguezes' counterclaim. The trial court found that the Rodriguezes "failed to prove by a preponderance of the evidence that the work they performed on the property securing the deed of trust of which they are the beneficiaries was repairs rather than improvements."
Discussion
Because the Rodriguezes raised the issue of reimbursement in a counterclaim, they had the burden to prove their entitlement to reimbursement. See, e.g., Roach v. Dickenson, 50 S.W.3d 709, 711 (Tex.App.-Eastland 2001, no pet.); Edwards v. Pena, 38 S.W.3d 191, 198 (Tex.App.-Corpus Christi 2001, no pet.); Ryan v. Laurel, 809 S.W.2d 258, 260 (Tex.App.-San Antonio 1991, no writ). When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing a "matter of law" challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. The point of error should be sustained only if the contrary proposition is conclusively established. Id. When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Id. at 242. The court of appeals must consider and weigh all of the evidence, and can 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. Id.
The deed of trust provided that if the Salazars failed to keep the property in good condition or repair, the Rodriguezes could repair the property and be reimbursed by the Salazars. The Rodriguezes contend the evidence is legally and factually insufficient to establish that they were not entitled to reimbursement for the repairs they made to the property.
Mr. Rodriguez testified that when he sold the property to the Salazars in 1997 "the house had just been repainted and inside was in very good condition." Mr. Rodriguez further testified that "[t]here were no holes, doors were all operating, the plumbing was all good. The house was able to move in and live it. It was in good shape." Mr. Rodriguez stated that the windows were all operating, and he did not believe any windows were broken. Mr. Rodriguez did not remember whether a tenant was in the house at the time it was sold and did not believe he knew a man named Felipe Cortinas.
In January of 2003, Mr. Rodriguez went to the house and observed the doors were open, windows were broken, and the grass was about four feet tall. Mr. Rodriguez made a decision "to come back in a couple of weeks and remodel [the] home." Mr. Rodriguez stated that the house was not livable. The water heater was torn out, the windows were broken, the dry wall had holes in it, the bottom of the sink was torn out, the kitchen cabinets were broken, the tile on the outside was broken, and the doors were broken. Pictures of the house both before and after the improvements or repairs made to the house by Mr. Rodriguez were admitted into evidence. Mr. Rodriguez stated that he did not spend any more money than was necessary to make the house livable, and copies of the receipts from Mr. Rodriguez's purchases of materials and supplies were introduced into evidence.
Felipe Cortinas testified that he had rented the house in question from Mr. Rodriguez and continued to rent it after it was sold to Mr. Salazar. Mr. Cortinas testified that the house was in bad condition when he rented it from Mr. Rodriguez and was in bad shape when Mr. Salazar purchased the house. Mr. Cortinas testified that the plumbing and electricity were bad. The house did not have hot water. The walls were corroded. One of the windows was caved in. The floor was bumpy. The wall in the kitchen had a big hole. The floor was rotted around the sink. When it rained, the sewer would overflow into the house. Some of the windows would not open. Mr. Cortinas testified that he moved out of the house about two or three months after Mr. Salazar purchased the house.
Mr. Salazar testified that the house was in bad condition when he purchased it. The walls were cracked, and the windows would not open. After Mr. Cortinas left, Mr. Salazar put in a new restroom and floor. Mr. Salazar rented to two other people after Mr. Cortinas. Mr. Salazar stated that the house was in the same condition as when he purchased it from Mr. Rodriguez. Mrs. Salazar also testified that the house was in bad condition when they purchased it.
Elida Rivera lived across the street from the house in question. Rivera had never seen the inside of the house. Rivera testified that the yard was in bad condition, and there were periods of time that the house was vacant.
The trial judge verbally pronounced her verdict, stating in pertinent part:
With regard to the repairs and or improvements, the Court does believe that it would be reasonable to think that some of the work done by Mr. Rodriguez would be in the nature of a repair based upon the testimony of the periods of vacancy in the house. But the Court is unable to determine based upon the testimony what portion of that work was repairs versus what portion of the work were improvements. And it's the opinion of the Court that the vast majority of the work that was done was based upon improvements or were improvements based upon the testimony of Mr. Cortinas. Because the Court does not have sufficient evidence to segregate that into repairs and or — versus improvements, the Court is finding that the Salazars have complied with that provision of the Deed of Trust.
As the factfinder, the trial court evaluated the credibility of the witnesses and gave greater weight to the testimony of Mr. Cortinas, who stated that the house was in the same poor condition before Mr. Salazar purchased it. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (noting factfinder is sole judge of the credibility of witnesses and the weight to give their testimony). Based on the pictures presented, the trial court could have found that a portion of the work performed by Mr. Rodriguez constituted improvements, and since the evidence did not segregate the portion of the work that constituted repairs from the portion of the work that constituted improvements, the evidence supports the trial court's finding that the Rodriguezes did not meet their burden of proof. Accordingly, the evidence is legally and factually sufficient to support the trial court's finding that the Rodriguezes failed to prove that the work they performed was repairs rather than improvements.
Conclusion
The judgment of the trial court is affirmed.