OPINION
This аppeal resulted from appellant’s suit raising causes of action under the Texas Deceptive Trade Practices Act, under the Real Estate Fraud Act, and for breach of contract. At trial, appellant sought damages and specific performance. Appellant sought to enforce an alleged oral agreement for the sale of real estate based on a “quasi-deed” and partial performance. The trial court found that the statute of frauds barred appellant’s claims and ordered appellee to reimburse appellant for the amount of a down payment paid by appellant. In seven points of error, appellant contends that the trial court erred in ruling that the statute of frauds bars appellant’s claims and that the trial court erred in failing to file findings of fact and conclusions of law. We reverse the judgment of the trial court, render in part and remand in part.
Facts
Appellee, Aida Gomez, holds the deed to property described as three adjacent lots with addresses of 1206 Crystal, 1105 Fern-dale, and 1105.5 Ferndale. This property consists of a non-business residence, a retail store, and an adjacent rear apartment, respectively. Appellant, Jesse Elizondo, contends that аppellee orally agreed to sell the property for seventy-nine thousand dollars with a five thousand dollar down payment. In support of the oral contract, apрellant offered a receipt for the alleged five thousand dollar down payment. The receipt, written on a restaurant “guest check” reads as follows:
I Jesse Elizondo have paid Mr. & Mrs. Leo Gomez $5000.00 fоr the Real Estate property located on 1105 Ferndale city of San Antonio, Tex.
The written note contained the alleged signature of Mrs. Leo Gomez.
Appellant never rеceived a deed for the property. At the subsequent trial for specific performance, appellant argued that the “guest cheek” receipt constitutes a quаsi-deed establishing his right to the property as a matter of law. The trial court found the oral contract unenforceable and denied appellant’s claims because thе oral agreement violates the statute of frauds. However, the trial court ordered appellee to refund the amount of the alleged down payment to appellant.
Statute of Frauds
In point of error one through six, appellant argues that the trial court erred in determining that the statute of frauds barred enforcement of appellant’s alleged orаl agreement for the sale of real estate. The statute of frauds reads in pertinent part that a contract for the sale of real estate “is not enforceable unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise or agreement or
Appellant argues that the “guest-cheek” receipt of an alleged fivе thousand dollar down payment satisfies the statute of frauds. We disagree. The property in question consists of three parcels of land. Even though the parcels are adjaсent to one another, each lot has a separate address; 1105 Ferndale; 1105.5 Ferndale; and 1206 Crystal. The “guest-check” merely identifies the “property located at 1105 Ferndale.” Even a most liberal interpretation of the writing, without more, falls short of properly identifying all three lots in question. Therefore, on this basis alone, the writing fails to satisfy the identification rеquirement of the statute of frauds. Furthermore, the writing fails to properly recite the purchase price of the property. Even if we give the writing full effect, it merely illustrates five thousand dollars of consideration as a down payment. The writing fails to state the full amount of consideration given for the property. Thus, we find the trial court properly found that the writing fails to satisfy the statute of frauds. However, the equitable doctrine of partial performance serves as an exception to the statute of frauds.
Leon Ltd. v. Albuquerque Commons Partnership,
In Texas, we may remove an oral contract for the sale of real estate from the statute of frauds when the promisee performs the contract to such a degree that applicatiоn of the statute would defeat its true purpose.
Penwell v. Barrett,
In the ease at bar, the record reveals that in December of 1994, both parties entered into an agreement for the sale of the land in question. The parties agreed to a purchase price of seventy-nine thousand dollars with а five thousand dollar down payment and monthly mortgage payments of seven hundred and ninety five dollars per month for fifteen years at ten percent interest. On December 24, 1994, apрellee delivered the keys to the property to appellant and appellant took possession of all three lots.
In accordance with the terms of the oral agreement, appellant made the agreed monthly payments for April, May, and June. Appellee accepted each payment and made multiple prоmises to transfer a proper deed. Appellant ceased making the mortgage payments only after appellee interfered with appellant’s enjoyment of thе property. Appel-lee misrepresented to the tenants of the property that appellant did not have legal right to the property.
When one party fully perfоrms a contract, the statute of frauds is unavailable to the other who knowingly accepts the benefits and partly performs.
Enochs v. Brown,
Findings of Fact
In the seventh point of error, appellant contends that the trial court erred by failing to file conclusions of law and findings of fact. Upon a request from either party, the trial judge must present and file written findings of fact and conclusions of law. See Tex.R. Civ. P. 297 (Vernon’s Supp.1997). Withоut deciding whether appellant timely requested the findings of fact, we find the trial court did not err in failing to file the findings of fact or conclusions of law.
When findings of fact are not filed, the test for harm depends on the circumstances of the case and whether an appellant would have to guess the reasons for the trial judge’s ruling.
Sheldon Pollack Corp. v. Pioneer Concrete of Texas, Inc.,
For the reasons recited herein, we reverse the judgment of the trial court, render judgment in favor of appellant, Jesse Elizondo, and remand the case for the determination of damages in accordance with this opinion.