Opinion
No. 01-03-00302-CV
Opinion issued on June 17, 2004.
On Appeal from the 212th District Court, Galveston County, Texas, Trial Court Cause No. 02CV0067.
Gerson D. Bloom and Thomas W. McQuage, Galveston, TX, for appellant.
Kent J. Lisenby, Lisenby Rhodes, P.C., Conroe, TX, for appellee.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
MEMORANDUM OPINION
Catherine P. Schade filed suit against her daughter, Catherine Angelina Rhodes, to establish Schade's ownership of certain improved real estate and to remove a cloud on her title to a parcel of real property located in Galveston County. In a bench trial, the trial court found that the recorded instruments established Rhodes's disaffirmance of the reconveyance to Schade, rendered judgment quieting title to the property in Rhodes, and awarded Rhodes $4,400 in attorney's fees. In three issues, Schade contends that the trial court erred in (1) refusing to allow her to introduce any evidence, (2) finding an effective disaffirmance of a conveyance by a minor, and (3) awarding attorney's fees to Rhodes. We reverse and remand
Background
After hearing opening arguments, the trial court considered the "stipulated instruments" but did not allow Schade, the plaintiff, to introduce any testimony in support of her case. The "stipulated" instruments were never formally admitted at trial. The trial court did, however, allow Rhodes's attorney to testify in support of the award of attorney's fees. The trial court then closed the record. The trial court made the following findings of fact and conclusions of law:
Findings of Fact
1. In or around 1989 Catherine Schade, Plaintiff and Counter-Defendant, (hereinafter "Schade") purchased a certain tract or parcel of land in Galveston County, Texas . . . (hereinafter "the property").
2. On June 25, 1992, Schade conveyed title to the property to her minor daughter, Catherine A. Rhodes, Defendant Counter-Plaintiff (hereinafter "Rhodes"), by virtue of a Quit Claim deed. It is undisputed that Catherine Angelina Rhodes was born on August 24, 1977, and was a minor at the time of this conveyance.
3. Another Quit Claim deed to the property was executed by Rhodes, still a minor, on November 7, 1993. This second Quit Claim deed purported to transfer the property from the minor daughter back to Schade. It is undisputed that on the date that Rhodes conveyed the property to her mother, November 7, 1993 Ms. Rhodes was 16 years old.
4. On January 29, 1996, while Rhodes was 18 years old, she disaffirmed the execution of the November 7, 1993 Quit Claim deed. Rhodes filed a Notice of Disaffirmance of Execution of Deed in the real property records of Galveston County setting out, among other things, that the deed was executed while Rhodes was a minor and that it was being disaffirmed.
5. The quit claim deed conveying the property from Schade to Rhodes is unambiguous, and Schade did not allege any fraud or ambiguity in the conveyances [that] made the basis of this lawsuit.
6. This Court must interpret the deeds at issue as a matter of law, and finds that the conveyances can be given a definite legal meaning. The court further finds that the deeds at issue are not reasonably susceptible to more than one meaning.
7. [$4,400] are reasonable and necessary attorneys fees incurred by Rhodes in this matter.
The Conclusions of Law
1. The Court concludes that Schade conveyed the property to her minor child, Rhodes, and that this original conveyance of the property from Schade to Rhodes on June 25, 1992 by quit claim deed was valid and enforceable.
2. Regardless of why Ms. Schade conveyed the property to her minor daughter, she is not now entitled to claim her original conveyance to her daughter was without effect.
3. The November 7, 1993 Quit Claim deed, with Rhodes as Grantor, was voidable by Ms. Rhodes at her election or instance because Rhodes was 16 years old at the time of this conveyance.
4. The November 7, 1993 Quit Claim deed conveyance of the property from Rhodes to Schade was voided when Rhodes filed her Notice of Disaffirmance on January 29, 1996.
5. The Quit Claim deed dated November 7, 1993 signed by Catherine Angelina Rhodes as grantor . . . is invalid and of no force and effect.
6. Rhodes is vested with fee simple interest in the property.
7. Therefore, the title to the following described real property is quieted in Catherine Angelina Rhodes: That certain tract or parcel of land in Galveston County, Texas described as Lots of Twenty-Three (23) and Twenty-Four (24) in the special subdivision of the northeast block of outlot 159, according to the map thereof recorded in volume 178, page 415, in the office of the county clerk of Galveston County, Texas and being the same property conveyed by a Quit Claim deed dated June 25, 1992 and recorded at film code 008-26-1328 of the deed records of Galveston County, Texas.
8. Schade is indebted to Rhodes for the sum of [$4,400], with postjudment interest thereon at the rate of 10% per annum from the March 19, 2003 until paid as attorney's fees.
Parol Evidence
In her first issue, Schade contends that, because of its misapplication of the parol evidence rule, the trial court erred in refusing to allow her to introduce any evidence.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex. 1983). Parol evidence is not admissible to vary the terms of an unambiguous document. Massey v. Massey, 807 S.W.2d 391, 405 (Tex. App.-Houston [1st Dist.] 1991, writ denied). It is for the court to construe an unambiguous document as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). The courts will give effect to the intention of the parties as is apparent in an unambiguous writing. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968); Massey, 807 S.W.2d at 405. When a writing is intended as a completed memorial of a legal transaction, the parol evidence rule excludes other evidence of any prior or contemporaneous expressions of the parties relating to that transaction. Muhm v. Davis, 580 S.W.2d 98, 101 (Tex.Civ.App. — Houston [1st Dist.] 1979, writ ref'd n.r.e.). The rule applies only to operative legal transactions and not recitals of fact, such as past consideration received. Miller v. Kendall, 804 S.W.2d 933, 940 (Tex. App.-Houston [1st Dist.] 1990, no writ). Parol evidence is always competent to show the nonexistence of a contract or the conditions upon which the contract may become effective. Muhm, 580 S.W.2d at 101.
Further, fundamental fairness dictates that a party not be arbitrarily deprived of the right to offer any evidence. Striedel v. Striedel, 15 S.W.3d 163, 166 (Tex. App.-Corpus Christi 2000, no pet.). Such action by the trial court will amount to an abuse of discretion warranting reversal. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Schade argues that an inquiry regarding the effectiveness of Rhodes's notice of disaffirmance did not invoke the application of the parol evidence rule because that inquiry did not involve varying the terms of a writing, but rather, it addressed whether Rhodes's disaffirmance was legally effective. Rhodes responds that no parol evidence is needed to decide whether a deed to a minor was void as a matter of law, and Schade did not plead any fatal flaw or fallacy that nullified the original quitclaim deed.
Although Schade concedes that she erroneously alleged that her original quitclaim deed to Rhodes was a void conveyance to her minor daughter, she also alleged in her pleadings that Rhodes's notice of disaffirmance placed a cloud on Schade's title.
Evidence of an agreement's effectiveness is admissible parol evidence; therefore, parol evidence regarding Rhodes's notice of disaffirmance was admissible. See Muhm, 580 S.W.2d at 101. Although the trial court allowed opening arguments, it did not allow the admission of any evidence beyond the recorded instruments.
The trial court noted that "the stipulations are evidence." We do not, however, have record support for the "stipulated" instruments, and, during the bench trial, the instruments were not admitted into evidence. The instruments were attached to the pleadings, but pleadings, even if sworn, are not evidence. See Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Further, an attorney's opening argument is not evidence. Weslaco Federation of Teachers v. Texas Educ. Agency, 27 S.W.3d 258, 263 (Tex. App.-Austin 2000, no pet.).
The trial court erred in refusing to allow Schade to introduce evidence regarding the legal effectiveness of Rhodes's disaffirmance.
If we interpret the trial court's actions as a directed verdict, it was error for the trial court to direct a verdict before Schade rested. See Tana Oil Gas Corp. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003). The trial court may properly direct a verdict if no evidence is presented to support the cause of action. Tex. R. Civ. P. 268; Nassar v. Hughes, 882 S.W.2d 36, 38 (Tex. App.-Houston [1st Dist.] 1994, writ denied). However, directing a verdict is reversible error if done before the plaintiff has presented all of his evidence. McCall, 104 S.W.3d at 82; Nassar, 882 S.W.2d at 38.
We sustain Schade's first issue. Accordingly, we do not reach Schade's second and third issues.
Conclusion
We reverse the trial court's judgment and remand the cause for further proceedings.