Merrill Pierre v. Keith Ollivierre, Marilyn Ollivierre and Susan Ollivierre--Appeal from 113th District Court of Harris County (Memorandum Opinion )

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Laws-info.com » Cases » Texas » 14th District Court of Appeals » 2011 » Merrill Pierre v. Keith Ollivierre, Marilyn Ollivierre and Susan Ollivierre--Appeal from 113th District Court of Harris County (Memorandum Opinion )

State: Texas

Court: Texas Northern District Court

Docket No: 14-10-00585-CV

Case Date: 12/15/2011

Plaintiff: Merrill Pierre

Defendant: Keith Ollivierre, Marilyn Ollivierre and Susan Ollivierre--Appeal from 113th District Court of Harr

Preview:Affirmed, in Part, and Reversed and Rendered, in Part, and Memorandum Opinion filed December 15, 2011.

In The

Fourteenth Court of Appeals
NO. 14-10-00585-CV MERRILL PIERRE, Appellant V. KEITH OLLIVIERRE, MARILYN OLLIVIERRE, AND SUSAN OLLIVIERRE, Appellees On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 2007-33188

MEMORANDUM OPINION
Appellant Merrill Pierre appeals the trial court`s judgment entered in favor of appellees Keith Ollivierre, Marilyn Ollivierre, and Susan Ollivierre on Pierre`s breach of contract claim for the sale of property and the Ollivierres` counterclaims and attorney`s fees. We affirm, in part, and reverse and render, in part. BACKGROUND Keith Ollivierre and Marilyn Ollivierre owned a house located at 8606 Honeysuckle, Highlands, Texas. On March 28, 1994, Keith and Marilyn gave Keith`s

sister Susan Ollivierre power of attorney regarding the house.1 In 1998, Merrill Pierre, the nephew of Keith and Marilyn, moved into the house. Merrill claims that he had an agreement with Keith and Marilyn that in exchange for making the remaining mortgage payments on the house, they would give him the house once the mortgage was paid off. In 2002, Merrill attempted to refinance the house even though he did not own it. Merrill acknowledged at trial that he did not own the house in 2002. However, Merrill claimed that he did not go through with the refinancing in 2002 because it would have required another thirty-year mortgage, not because he did not own the house. Merrill originally made payments directly to the mortgage company. However, beginning in 2003, mortgage payments were drafted directly from Keith and Marilyn`s bank account because Merrill`s payments to the mortgage company were not timely. Merrill then made payments directly to Keith and Marilyn. In 2006, Merrill again tried to refinance the house. In July 2006, Merrill claims he wrote Keith and Marilyn requesting that they send him a sales contract with the payoff amount and the deed when the pay-off is done. Merrill never received the pay-off information, sales contract, or deed. Merrill never obtained the loan. He claimed it was because he did not follow through on his part regarding the loan, not because he did not receive the requested information or documents. In January 2007, Susan`s daughter died, and leaving Susan with the care of her three young grandchildren, ages five months, six years, and seven years. In March 2007, Susan, under the power of attorney, purchased the house for $8,459.27--the amount remaining on the mortgage--even though the house was valued at $80,000 to $90,000.

Keith and Marilyn had given the power of attorney to Keith and Susan`s sister Rosanne Mitchell in 1986. Keith gave Susan the power of attorney in 1994 because Rosanne no longer wanted the property. On November 26, 1994, Keith and Marilyn gave a power of attorney to Veronica Pierre because Susan was moving to Trinidad. Keith and Marilyn did not revoke Susan`s power of attorney. Neither power of attorney gave exclusive power to Veronica or to Susan to handle transactions concerning the house. Veronica passed away in July 2000.
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Keith and Marilyn then conveyed the property to Susan by a general warranty deed dated March 25, 2007. After Merrill refused to vacate the house, Susan sought to evict him. On May 31, 2007, Merrill filed an original petition and application for a temporary and permanent injunction. Seeking specific performance, Merrill alleged that Keith and Marilyn breached their oral agreement to give him the house once he had paid off the mortgage, and that Susan tortiously interfered with his agreement with Keith and Marilyn. Merrill also alleged, in the alternative, a fraud claim against Keith and Marilyn, claiming that they had no intention of selling the property to him at the time that they agreed to sell, and a conspiracy claim against appellees.2 Merrill also sought temporary and permanent injunctions against Susan to prohibit her from evicting him from the house. On July 9, 2007, the trial court signed the temporary injunction awarding Merrill possession of the house as long as he continues to make monthly payments as hereinafter described. The trial court ordered Merrill to deposit the sum of [$]613.00 per month until the trial of this case into the Court registry . . . Appellees filed a counterclaim for damages to the house and yard caused by Merrill and for attorney`s fees. Merrill stopped making the $613.00 payments into the registry of the court in July 2009, because at that point, according to Merrill, the mortgage had been paid off, and his agreement was to pay off the mortgage in exchange for the house. Therefore, Merrill made no more payments into the registry of the court after July 2009.

Merrill also sought (1) to have the deed to Susan set aside and Keith and Marilyn ordered to transfer title to Merrill conditioned upon Merrill fulfilling his remaining obligations, or that Susan be ordered to transfer the property to Merrill; (2) a declaratory judgment as to which defendant should be entitled to the remaining payments on the balance of Merrill`s obligation; and (3) attorney`s fees on his breach of contract claim and under the Declaratory Judgment Act.

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After a bench trial, the trial court awarded Susan $12,0003 for damages to the house and property, $23,907 for unpaid rent, and $13,200 for attorney`s fees. In its findings of fact, the trial court found the following: 1. That Merrill Pierre never had a written or oral agreement with Defendant property owners Keith Olivierre [sic] and/or Susan Olivierre [sic] to perform improvements to the real property in exchange for an interest in the property. 2. That Merrill Pierre never had a written or oral agreement with Defendant property owners Keith Olivierre [sic] and/or Susan Olivierre to purchase the subject property. 3. That Merrill Pierre performed no improvements to the subject property. 4. That Merrill Pierre caused significant damage to the interior structure of the house located on the subject property. 5. That Merrill Pierre cause significant damage to the exterior yard and fence located on the subject property. 6. That Merrill Pierre has failed to make eleven (11) of the Court ordered payments to the registry of the Court: an amount totaling $6,743.00. 7. That Merrill Pierre brought this lawsuit in bad faith.

8. That Defendants have incurred reasonable legal fees in the amount of $13,200.00 defending this lawsuit and prosecuting the underlying Justice of the Peace lawsuit. 9. That the remedy Merrill Pierre seeks is an equitable remedy.

10. That there is no corroborating evidence to support Merrill Pierre`s claim. 11. That Merrill Pierre sought to re-mortgage the house in issue in 2002.
The amount of damages was calculated by subtracting the value of improvements made by Merrill from Susan`s costs to repair damage to the property.
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12. Merrill Pierre sought to re-mortgage the house in issue again in 2005 [sic].4 13. That neither Keith Olivierre [sic] nor Susan Olivierre [sic] gave Plaintiff permission to refinance the house. 14. The three letters introduced into evidence by Plaintiff do not corroborate Plaintiff`s contentions as to the terms, the price, the time, the interest rate, the property description or closing date in any of the three letters Plaintiff produced for trial [sic]. The trial court made the following conclusions of law: 1. That the Statute of Frauds requires real estate transactions to be in writing. 2. Merrill Pierre has sought the equitable relief of partial performance to avoid the requirement of a writing. 3. That Merrill Pierre has unclean hands as the term was defined in El Paso National Bank v. Southwest Numismatic Investment Group, Ltd., 548 S.W.2d 942, 949 (Tex. [Civ] App.--El Paso 1997, no writ) citing 31 C.J.S. Estoppel

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