*1 professional partner- association and the required buy-out appellant’s interest community ship. Considering only valuable asset. these items he is monthly left with a minimum income of property, Under this division of appellant $7,000. Appellee over was awarded numer- is left with a home to maintain and the estate, pieces ous of real some of it income child, responsibility caring for a minor producing. appellee fulfilling While was made re- but with no means of the financial part obligations. sponsible large During those indebtedness at- twenty-four years marriage, appel of the property the real to some tached supported appellee earning lant his de him, awarded to the record indicates that grees developing practice; and his she pieces property always those been raised his children and cared for his home. professional carried on the books of the appellee Given the benefits during accrued association, payments and on the indebted- marriage the life of the and the marked ness have been made the association. disparity earning potential ap between Appellee also received full interest in a pellant appellee, and we cannot hold the furnishings. house and all its The house is property “just right” division was Hess, occupied by employee Nedda Tex.Family accordance with Code Ann. appellee, acknowledges with whom he he (Vernon Supp.1988). Haggard v. 3.63 § romantically has been num- involved for a Haggard, 550 S.W.2d (Tex.Civ. years. ber 1977, writ); McKnigkt App. v. no - Dallas (Tex.Civ. McKnight, 535 S.W.2d Appellant, who was awarded custo App. 1976), rev’d on other Paso - El dy child, unemployed. of the one minor is grounds (Tex.1976). Ap S.W.2d 863 experience She has had little work outside pellant’s point second of error is sustained. during years, of the home the last fourteen disposition points Because of our possesses few marketable skills. She two, unnecessary error one and it is homestead, was awarded the its furnish appellant’s point address third of error. ings, clothing, jewelry, a car and the portions judgment of the trial personal possession. Appel effects her awarding support dividing court child lant was also awarded her IRA and the community estate are reversed and re- policies covering insurance her life. She opin- manded for action consistent with was awarded a fourteen acre tract of rural court; judgment ion of this all estate, accompanying real with its five- things other affirmed. sixty thousand dollar indebtedness. The percent professional association’s pension plan awarded to
appellant provide ready do not her with a liquid only liquid
source of assets. $10,000 appellant
assets awarded to income, in cash. Since she has no source of AMES, al., Appellant, Roger et Michael expended one-half that will have to be v. $5,000 retire the debt on the rural real to her. estate awarded and R.G. et R.E. AMES al., Appellees. valuable asset The most available No. 09-87-125 CV. appellee’s professional as- distribution was sociation, Appellee his clinic. established Texas, Appeals of Court of and built it into a lucrative practice Beaumont. during marriage. We are un- business Aug. 1988. appellee’s argument persuaded by Rehearing Sept. Overruled divided, assets could because these not be problems. to do so would result tax assertion, accepting appellee’s we see
Even appellee should not have been
no reason *2 nothing against
and R.G. Ames take Heights Appellants, State Bank. The below, plaintiffs timely properly perfected appeal their from the take noth- ing judgment entered on their claims Peden, Koury, David D. Jr. and Read herein- Houston, Greenberg, P.C., ap- Richie & *3 after “State Bank”. pellant. appeal involving The Bank is State based Weber, Almquist, Mehaffy, Arthur R. error, points being on two the first Gonsoulin, Peacock, Keith & J. Hoke Or- Ap- denying the district court erred in Beaumont, Tucker, gain, appel- Bell for & pellants’ Judgment Motion for Notwith- lees. standing the as to the Bank Verdict State because the evidence herein as established OPINION a matter of law that the funds in the cer- BROOKSHIRE, Justice. deposit profit tain certificate of were the In the trial court R.E. Ames and R.G. actually belonged sharing trust funds that plaintiffs Heights Ames were and the State R.G. Ames. to R.E. Ames and Bank, now known as the NBC Hous- argues point The second of error that the ton-N.A., litigation defendant. The was a denying Appel- district court erred in R.E. Ames and involved the claims of R.G. Trial lants’ Motion for New because Ames, participants in the Thread- who jury’s negative question answer to a where- Company employees ed Steel Products jury failed to find that the funds on plan”. profit sharing plan, hereafter “the profit deposit in certificate No. 28793 were brought by the litigation The was also sharing belonging trust funds to the two “Mike” plaintiffs against Roger Michael being plaintiffs, failing to so find Ames, the trustee of the preponder- against the plan, based on his failure to distribute ance of the evidence. owing plaintiffs un- money sums of to the wrongful conver- plan, der the and for his Background The General money to his own sion of those sums of uses. “Eddy” R.E. Ames and R.G. Ames were employees of Threaded Steel Products both brought against the proceeding Eddy working started Company. Ames Heights Bank to recover certain began company in 1948. He as a labor- plan deposited funds of the that had been family was a owned er. Threaded Steel a certain certifi- the bank evidenced Later, Eddy joined the Air company. deposit placed cate of bank. he re- years. Afterwards Force for four deposit originat- in the certificate of funds Steel and remained turned to Threaded profit sharing plan which be- ed in the employee serving as an there until wrongful- longed plaintiffs to the but were Execu- thirty years. He rose to Chief Mike Ames as trustee as ly pledged by Board. Officer and Chairman tive for commercial loans made collateral ownership possessed an “Eddy” Ames R.E. Company. Products Threaded Steel owning approxi- company, interest court juried proceeding In the district and R.G. the stock. R.E. mately 20% judgment against signed and rendered a were, members of the employees, as of the sums Mike Ames for conversions sharing Threaded Steel. plan at profit $212,161.40 sum of plaintiffs in the due $94,- in 1983 to terminate Steps were taken separate sum of Ames and a to R.E. sharing plan. The profit up wind judgment Ames. The 501.00 to R.G. profit up such a $10,000.00 made to set puni- first efforts awarded an additional R.E. began sharing plan around damages conversion com- for tortious tive his share withdraw However, “Eddy” Ames did not court Ames. mitted Mike sixty years not he was plan because R.E. Ames of the judgment that below entered checking It was distributed to account. time he left Threaded Steel. old at employees. he told plan After terminated trustee, put plan that Mike prior events Background narrative R.G. belonging to R.E. Ames and the funds November, 1982 Ames in a certificate at Heights State Bank Houston. prior to the above-de- In the fall of 1982 transaction, Mike Ames contacted scribed trustee, never dis- the sole Sheffield, acting E. then James who was sharing tributed or delivered vice-president commercial a senior R.E. Ames to either benefits under department. loan though he was asked Ames even or R.G. application September of 1982 a loan funds on several occasions. for these by Mike Ames behalf of was made important It is to note that Mike Ames Company Products Threaded Steel opened trustee an account with the $180,000.00. The loan was de- amount of *4 Mike Ames Bank in of 1982. November approved. The clined never thereafter directly, who told Mr. James E. Sheffield approval poor was finan- of due lack the vice-president of State was a senior Steel Products. cial condition Threaded admitted, he, bank, that which Sheffield mind, interpret in as should be borne we It Ames, Mike was the sole trustee of 1, Threaded Defendant’s Exhibit No. that (also sharing plan to referred as the Products, according to its Financial Steel pension plan) for Threaded Products Steel Analysis, a loss in 1977. This loss employees. Company’s $87,000; 1978, in was about before taxes At time check from Southwestern a $259,000; approximately the loss was Company Life in the amount of Insurance 1980, $441,- $70,000; in about about $424,000 deliv- and some-odd dollars was $228,000. and, Appar- 000; about Heights negotiated to ered and State profit during a ently, Steel had Threaded cheek Mike Ames Bank. This was the 1979 but not last first six months of open used to the initial account showing months. These financial facts six 1982. After State Bank November of clearly heavy prove that funds losses deposited these funds were with the Bank by Threaded Steel Products collat- used $254,000.00 approximately amount necessarily came for commercial loans eral deposited checking styled was a account profit-sharing plan, inasmuch as from the R.E., R.G., Ames, and R.L. with Mike only months Products five Threaded Steel $254,000.00 signatory. as the sole This poor, its a loan due to was denied before $424,000.00 part of from was South- The State financial condition. distressed Company. Life Insurance Out western horrendous losses. these Bank knew about $156,500.00 purchase $1,085,000.00. this sum was used These losses They totalled Then, deposit in the name very certificate through up to date are Company employ- ’82, Steel Products Threaded Thread- shortly, in late summer account. application ees made its Steel Products ed —distribution $13,741.00 deposited into $180,000.00 An was additional with the loan the amount checking in the of Thread- account name Bank. employees Company ed Products Steel funds $254,646.02 profit-sharing profit-sharing distribution account. Bank in InterFirst transferred were Later, $157,895.02 was trans- $13,741.00 subsequently distrib- Beaumont. The was A State Bank. by back to the wire group employees entitled to ferred uted to a R.M. bought name of $156,500.00 was subse- CD the same. The CD was Trustee. “Mike” account quently deposited into same $254,000.00. rep- sum This amount $13,741.00. in effect for total The CD was additional, $157,895.02 plus an It renewed one resented thirty days. about $100,000.00, was bor- approximate sixty days another so. time for $3,000 bank, less about from the $156,500.00 put into rowed was “rolled over” deposited checking to a account. The CD trust funds. The record shows that these $254,000.00 wrongful- in the amount of were, fact, funds plaintiffs’ prof two ly pledged as collateral for the commercial it-sharing trust funds and R.E. and R.G. loans to Threaded Steel. Ames have identity established the and the tracing funds, think, of these we virtually large Later the Bank off-set this CD to as a matter of law. We decide that under pay a commercial loan owed to the Bank. proper standards and criteria of review deposition In his Sheffield testified that he jury’s concerning verdict these was aware that large the funds from the funds is so Southwestern Life Insurance Company preponderance of the evidence as to initially deposited check large were into the manifestly wrong unjust. King’s In re CD which were then wired to InterFirst Estate, 150 Tex. Bank in Beaumont and S.W.2d 660 the funds were (1951); merely Garner, rewired back from Potter v. InterFirst S.W.2d 537 through (Tex.Civ.App. Tyler, State Bank another Houston Bank. writ ref’d n.r. - e.); Co., Pool v. Ford Motor 715 S.W.2d Ames, trustee, was served with cer- (Tex.1986). Requests tain for Admissions. These Re- quests challenged with the asserted In summary, proves the evidence privilege afforded to Mike Ames profit-sharing plaintiffs funds of the Fifth Amendment to the Constitution of the were taken Mike Ames as trustee and United States. Mike a Motion in placed at the State Bank. Then Limine, clearly set forth that he declined to these same funds were transferred to In- questions may answer which answers tend terFirst Bank in Beaumont and the funds *5 person to incriminate the answering the were forthwith returned from InterFirst questions; namely, Mike Ames. Bank to State Bank. These same monies placed were then in a new certificate of
Upon reviewing analyzing the Ames, Trustee, record, deposit in the name of Mike we conclude the district court fell $254,000.00, in the amount of denying plaintiffs-appel- into error in the same the Judgment lants’ Motion previously for amount that was transferred to Notwithstand- ing the Verdict as to The State Bank. InterFirst Bank. finding
reason for error is that the evi- dence, conclude, we proves establishes and Crucial Facts in the Record deposit that the funds in the certificate of In opened November Mike Ames a bank actually profit-sharing No. 28793 were Heights by account Bank and did so belonged plaintiffs funds that to the check from Life Insurance Southwestern the State Bank knew it. The record estab- $424,888.35. Company in the amount of lishes that the State Bank added to the $424,888.35 profit-sharing The entire was funds that had been “re-remitted” to it money. trust Bank State had notice of this from the InterFirst Bank sufficient time, fact. At that Mike Ames told Shef- amounts to raise the total in the certificate he, Ames, was the sole Trustee field deposit $254,000.00, original of to the 'profit plan, the sharing the trust of fund amount profit-sharing CD. pension plans, Threaded Steel Prod- equal The amount of this CD was to the $424,888.35 $254,000.00 of the ucts. previously opened account that had been checking account directly deposited into a directly with funds from the Southwestern R.E., R.G., Mike styled and R.L. Ames with Company Life Insurance the names of Ames, Trustee, $156,- signer. as the Then plaintiffs, R.E. Ames and R.G. Ames. $424,888.35 pur- was used to 500.00 of pay The State Bank converted this CD to deposit in the chase the of certificate off the loans and a letter of credit made Compa- Products Threaded Steel name of . Threaded Steel. Profit-Sharing Distribu- ny Employees’ $13,741.00 deposited tion
The State Bank’s officer knew or account should account under the name checking have known the funds on de into a posit profit-sharing Company in the Products CD were Threaded Steel of corporate They board of directors. Employees’ Profit-Sharing Distribution $13,741.00 subsequent- corporate giving adopted Account. The resolution Mike group employees ly distributed to a as au- individually Ames [not trustee] of profit sharing plan who were thority corporation only from the of —not January had notice. which Bank sign from the beneficiaries of the —“to Mike from the of ’83 Ames wired funds drafts, checks, any and all orders to Bank InterFirst Bank-Beaumont State any standing any funds at time in the cred- Bank, Houston, in through City the First bank, Heights said it Threaded Steel and time, $157,895.02. the amount of At against my account State and/or purchased Mike CD Heights an account shall be es- with $254,000.00 in his name as amount of corporation in the name of this tablished had it was Trustee. Bank notice that Bank. That said with State Mike Trust- in the name of Ames as issued any hereby to honor Bank authorized lending The Bank its senior officer ee. signed including those and all checks so had notice that Mike Ames was Sheffield order such offi- drawn to individual sole Trustee for the The CD was inquiry regard or cer without further $254,000.00 total amount of which such authority of the said officer use $157,895.02 represented plus an addi- turn proceeds or the thereof or remain checks $100,000.00 tional trust- singly authorized to borrow on behalf ee, from the bank less about obtained said corporation from Bank and $3,000placed checking These in a account. repayment any sums execute ... to Mr. Sheffield. facts were testified borrowed, pledge and to ... as so ... ’83, spring Then the Bank convert- security property_” These resolu- ... loans. pay ed this CD off the commercial corporation dealing tions funds that the monies that banker admitted distinguished Trustee were from funds certificate been on the submitted drawn forms trustee; fiduciary issued to but these consistently Bank. The resolutions actually pay used to off com- monies were that be- speak property funds A mercial loans. letter credit favor corporation. Mr. Sheffield longed to *6 paid. Products Threaded Steel was also required such a reso- testified that bank Hence, clearly the the record demonstrates completed such lution and a form profit-sharing utilized trust Bank known corporation placed its signed before belonging employees retire funds to to an with the Bank. money into account The commercial loans to Threaded Steel. vice-president though of Even the senior that banker further admitted neither R.G. that he no deal- Bank testified State given any type R.E. had ever of nor Ames ings Mike Ames between November permission pension to use their trust fund 20, 1983; January neverthe- 1982 and as for loans. benefits collateral commercial less, pro- in the record a form there exists Ames, Trustee, Mike wrote a draft lend- by the Bank and the commercial vided $254,646.02 of on amount account number thereof, corpo- ing department which was a payable 80-17565 to the order of the Inter- resolution did not rate resolution. This Bank of Beaumont. for First The reason Profit-Sharing the Plan pertain to face, check, on its to the said stated was any manner. R.E., purchase a certificate of for R.G., portion Ames’ of the R.M. and R.L. Summary A profit-sharing Products Threaded Steel plan. The Bank had of this as State notice sum, Mike is clear that In the record proved clearly by Plaintiffs’ Exhibit dealings with to have attempted Ames first September of con- Bank in later, the State two on December
About
weeks
Mr. Shef-
tacting Mr.
E. Sheffield.
James
together
Mike
with an attor-
vice-president of
field was a senior
ney
secretary and counsel for Threaded
as
lending. A
charge
commercial
Steel,
of Bank
of
vice-president
and R.L.
and delivered
application
made
Steel,
Steel
loan
was
Threaded
met as the Threaded
February 7,
$54,000
by
’82 Mike Ames
behalf
an additional
September of
was
Company for
Shortly
Products
wired.
thereafter
was
Threaded Steel
there
an
of
request
$180,000.00. That loan
of
sum
additional letter
credit drawn in favor
the
of
refusal
for
was
The reason
was refused.
firm
as
Metal
known
Alcan
Goods or
poor,
inwas
dis-
Steel
that Threaded
forty-
amount
Alcan Aluminum the
Threaded Steel
tressed financial condition.
plus
By July
thousand
of ’83
two
dollars.
consecu-
accounting
three
reflected
records
fully
pay
the Bank had
converted the CD
years
losses. Then
heavy
financial
tive
loans and debts of Thread-
commercial
16, 1982,
opened
Ames
November
Mike
unequivocally
Bank
ed Steel. The
acknowl-
par-
it is
account with
Bank and
through its
edged
chief commercial loan
ticularly
the ac-
salient and crucial that
that
relevant CD was
officer
issued
opened
with a check
count
from
Ames
trustee.
Sheffield was
Mike
Company
Insurance
Southwestern Life
aware that some of the
asked: “You are
represented
then
assets
that
total
Life
from Southwestern
check
funds
profit-shar-
the Threaded
Products
Steel
initially
deposited over
here were
This
ing
The Bank knew this.
and funds were wired
to InterFirst
wired
$424,888.35.
check was in
the amount
answer
Sheffield’s
back from InterFirst?”
At that time Mike Ames told Mr. Sheffield
“yes”.
unequivocal
was an
that Mike Ames was
sole
trustee of
corpo-
acknowledged that
Sheffield
Threaded
profit-sharing
Steel
were
rate resolutions
benefit of
for
was also a type
pension plan
corpo-
corporation.
that the
It
clear
Threaded
employees.
Steel
Approximate-
supplied
on the forms
resolutions
rate
$175,000.00
ly
other
was disbursed to
eli-
empower
corpo-
did not
Bank
the State
gible
participant
individuals
sharing
to use
or the Bank
ration
profit sharing plan. knew of
Bank
as an
or to be used
funds as collateral
trust
these facts.
commercial loans
for defaulted
offset
September
appli-
first
’82
Steel Products.
Threaded
cation for
made,
a loan was
banker
recalled
simply
provisions
no
apparently
are
company
There
heavily engaged
(which
un-
litigation.
The banker
resolutions
corporate
unequivocally acknowledged
Mr.
Mike
equivocally
Sheffield
affirmed
Ames told him when the
examination)
Life
Southwestern
during cross
conferred
Company
Insurance
deposited
check was
power at all
authority
Heights State Bank that
Ames was
M&e
trust
to use
acting as the sole trustee
profit-shar-
to se-
corporation
on behalf
funds
ing p\in of Threaded Steel
Products.
had no-
Bank
loans. The
cure commercial
only significant history that
Bank
the State
Questions
find this:
this. We
tice
*7
had witt Mike Ames was
as a trustee
Almquist:
Mr.
that he
profit
sole trustee
Sheffield, turning back
“Q. Mr.
sharing plan.
totality
Under the
to
Resolution,
you
can
refer
Corporate
circumstances oí the record it appears irre-
Corporate
in that
any place
us
us—show
futable that
the hank had
to realize
au-
discuss what
they
where
Resolution
nature of the trusteeship of Mike Ames
with
has
R.M.
thority Mr.
[Mike]
was as sole trustee for the profit-sharing
sharing
or
pension
respect to
benefits?
The profit-sharing plan and its trust mo-
none whatsoever.
There’s
“A.
nies were flagrantly violated. For exam-
all?
None at
“Q.
ple, on
February
1983, $50,000 was ad-
Resolution.
Corporate
Not in
“A.
vanced to Threaded Steel which was wired
Products,
Steel
Threaded
That
refers
InterFirst Bank of
Beaumont
entity.
corporate
$50,000was wired directly to the account
Res-
Corporate
respect to the
Threaded
With
“Q.
Products,
Steel
corpora-
say that
tion,
olution,
it
does
at
where
the InterFirst
Bank.
Then on
up
Ames can set
an account
Thus
chronology
because of
Ames, Trustee,
names
R.M.
or con-
events,
similarity
because of the
Ames,
duct activities in the name R.M.
figures, because of the fact
that Mike
Trustee?
Trustee,
Ames acted as
because of the fact
I have no documentation
only
“A.
to that
capacity
trustee
which Mike
effect, at least
in this
Ames told
capacity
the bank was his
file.
pension
trustee for the
plan, because of the shortness of the dura-
(2)
“Q.
fact,
points
there are two
”
tion of the times involved in the chronolo-
says
Singly,
there that it
“R.M.
gy, we hold
jury
that the verdict
is
doesn’t it?
against
preponder-
“A. No.
ance of the evidence.
Corporate
On the
“Q.
Resolution
they’ve typed
where
landmark,
his name.
A
definitive case on the issue
duty
of the Bank’s
to the beneficiary of a
what,
R.M. Ames. R.M.
“A.
trust in connection
misbehavior of
Sr.?
the fiduciary trustee is United States Fi
“Q. Singly.
delity & Guaranty Company v. Adoue &
Oh, singly.
“A.
Lobit,
104 Tex.
137 S.W.
aff'd
“Q. S-i-n-g-l-y.
reh.,
(1911).
104 Tex.
S.W.
Yes,
“A.
sorry.
I’m
follows,
The Court
wrote as
relevant
way
typed
That’s the
“Q.
it’s
in on two
part:
(2)
there;
places
right?
is that
knowledge
“But if the bank has notice or
“A. Yeah."
being
that a
breach
trust
committed
The banker stated that it was common to
funds,
improper
an
withdrawal
or
proper
dealing
documentation when
participates
profits
if it
fruits
with trusts or with trustees.
also find
We
fraud,
undoubtedly
then it will be
this:
liable.”
“Q.
(1)
Let me look at one
other items
476
(Mike)
Appeal
Bolin,
R.M.
(3rd Ed.1967).
See Smith v.
153
Ames,
Trastee
(1954).
Tex.
Employees belong Profit Disbursement Appellants because deposit Account and that certificate of there had an been earlier certificate of 30, 1983, maturity date March and the amount, deposit in appar- the same which deposit affirmatively certificate of showed ently belong profit-sharing did to a Ames, R.M. Employees as Trustee for the plan....” Sharing Profit Disbursement Account. altogether We think such an “inference” is $159,914.06 This was disbursed to the em- syllogistic. is, indeed, inescapable. It We ployees of Threaded Steel. decide these facts are more than an infer- testifying When the banker was about ence. $157,000, very language The Jurisdictional Issue questions very wording and the of his an- talking swers makes it clear that he was We further hold that the federal $157,000 about the same that was transfer- governs specifically pen statute red to InterFirst Bank of Beaumont and profit-sharing plans, being sion and then retransferred to the Bank. State (1985 seq., Supp. U.S.C. Secs. et & passing upon 1988), the issue of especially provides participant whether that a verdict was and plan bring has the election to his evidence, preponderance of the under this action in the state court to recover his record, examine, necessary it is for us to benefits due to him under the terms of his wording questions the actual used (1985). plan. 1132(a)(1)(B) 29 U.S.C. Sec. and answers of the banker and the other 1132(e) (1985) specifically 29 U.S.C. Sec. glaringly witnesses. It is clear that the provides: $157,895.02 definitely initial fund was competent jurisdiction “State courts of pension portion of the and and district courts of the United States record, plan. Under this it can be definite- jurisdiction shall have concurrent of ac- $157,895.02 part ly deduced that the was (a)(1)(B) tions under subsections of this the amount that was taken out of the section.” sharing plan Heights Bank in State 1132(a)(1)(B)provides And that a civil Sec. Houston, and wired to the InterFirst Bank may brought participant action and, time, Beaumont, within a short this beneficiary under the to recover benefits money amount of was wire retrans- rights plan, of his to enforce his terms Heights This ferred to the State Bank. clarify plan, under the terms of the or to deposit in money put in a certificate of was rights to future under the benefits Ames, of R.M. “Mike” Trustee. the name Hence, specifically federal man- law that, Heights Bank had to know dates that state courts “shall have concur- $157,895.02, sacred trust at least language clear jurisdiction”. rent This It in mind that the funds. must be borne unambiguous. sanguinely over- We that, $424,- admitted out of the banker point rule the contention and of error $156,500 888.35, used to a sum of court did not Mike Ames that the state purchase original deposit certificate of try this liti- competent jurisdiction to Employees in the name of the Profit Shar- gation. ing Certainly Account. Distribution appeal in the brief The sole basis of the language wording questions Trustee, is based of R.M. “Mike” answers, agreed indicate that the banker state district contention that $157,895.02 money and knew that the jurisdiction either before court did not have back and had its ori- that was transferred evidence, trial, or after receipt of $254,000 after the gin certificate plead- Under the was returned. definitely identified verdict which was marked Indeed, Sharing ings R.E. Ames and R.G. part of the Profit Plan. record, participants and unequivocal these State Bank makes under the statement, certainly try- in its brief: beneficiaries of the under ing due to them to recover benefits Appellants
“The
somehow want
to enforce
plan as well as
the terms of the
infer
the funds
C.D.
Court to
*11
begin
TEX.R.APP.P. will
rights
plan.
of
to
to run
their
under the terms
the
ant
84
1132(a)(1)(B)
(1985).
29 U.S.C. Sec.
Opinion
the
this
and there-
from
date of
paid.
after until
Generally,
preempts
the ERISA
directly
attempts to
any state law which
disposition
a
Query:
should
What
op
or
contents or
regulate
moderate the
Appeals order under
Court
However, if
plan.
erations
the
a cause
of
of
record?
this
brought
in
court to en
of action is
state
the
and to enforce and recover
force
terms
constrained,
indeed,
and,
feel
we are
We
prof
plan
retirement
or a
the benefits of a
constrained,
very
to follow the
recent case
it-sharing plan,
not
such an action shall
be
Caterpillar
Compa-
Cropper v.
Tractor
of
Lu
by
preempted
deemed to
ERISA.
be
(Tex.1988),
by
ny,
754
646
delivered
S.W.2d
Westinghouse
Corp.,
v.
kus
Elec.
276 Pa.
James P. Wallace.
Justice
(1980).
Super.
A.2d
419
431
Justice Wallace wrote:
trustee,
Mike
in his
Ames concedes
“...
decide whether a court of
[W]e
1132(a)(1)(B)encompass
that
brief
Section
authority
a
appeals has the
to remand
a
es actions for the violation of terms of
for
trial
it
cause
a new
concludes
v.
citing
Sams
profit-sharing
plan,
benefit
failure
find in favor of a
jury’s
that
Inc.,
Industries,
(Tex.
N.L.
S.W.2d 486
735
‘against
particular
on
issue
the
party
writ).
App.
no
[1st Dist.]
- Houston
the
preponderance
and
of
Appellants
Here the
and
Ames
R.E.
R.G.
ap-
hold that a court of
evidence.’ We
rights
asserting
plan.
their
under the
are
peals
authority
has
to review a ‘fail-
the
Co.,
Michigan
Odgen v.
Bell Tel.
See
595
same manner in
ure to find’ in the
(E.D.Mich.1984).
F.Supp.
Trustee
findings.
may
jury’s
TEX.
it
review
Mike Ames also concedes that actions un
CONST.,
V, Sec.
further hold
6. We
art.
(a)(1)(B) recognizes suits to
der Subsection
right
this
does
violate the
review
not
under a
recover benefits
TEX.CONST.,
I,
art.
by jury.
of trial
that,
It
should be borne mind
sec.
Petition,
the
Plaintiffs' Second Amended
live,
Ames
pleading,
trial
R.E.
and R.G.
issues favor-
jury
“The
answered all
that the
had been ter
pleaded
Ames
following
including the
ably
Cropper,
Plaintiffs,
the
minated and that
in their
Caterpillar’s
submitted at
defensive issue
Petition, pleaded
Second Amended
request:
their monies which had been converted
Negli-
ANTHONY CROPPER
“Was
“Mike"
B.M.
well as
gent
operation
of
Water
guilty
question?
Wagon
the occasion
and,
doing,
tort
conversion
in so
No.”
“ANSWER:
gross neg
Ames had acted with malice or
ligence. By pleading
further,
page
the tort of
at
648:
Quoting
conver
here,
sion,
perceive
as done
we
upon
confers
“The Texas Constitution
an additional cause of action or trial
jurisdic-
appeals ‘appellate
court of
allegation, giving the State trial court the
reg-
under such restrictions
tion ...
jurisdiction.
law,’
may
prescribed
be
ulations as
decision of
provides that ‘the
further
appeal
We determine that
taken
upon all
shall
conclusive
said courts
delay
Mike Ames was
without suf-
brought before them
questions of fact
ficient cause. We award R.E. Ames an
CONST,
V,
TEX.
art.
appeal
error.’
(5) percent
five
amount
additional
indepen-
have
6. These two clauses
sec.
jury
verdict
his favor. We award
quite
significance,
differ-
(5)
dent
percent
R.G.
an additional five
upon
consequences
the allocation
ent
jury
his favor.
the amount of
verdict
court and the
Furthermore,
jurisdiction between
five
we award
additional
appellate courts....
(5)
punitive damages. The
intermediate
percent
latter,
be referred
which will
pursu-
awards
interest on these additional
clause,’
conclusivity
‘factual
functions
same standard of
applied
review should be
grant
authority
non-finding.
not as a
to the courts
to a
appeals
upon
but as a limitation
Further,
Supreme
Court wrote that
judicial authority of this court. Choate
Appeal,
the Courts of
in their opinions,
Co.,
Ry.
v. San Antonio & A.P.
91 Tex.
regard
contrary
should state in what
(Tex.1898).”
S.W.
outweighs
greatly
evidence
evidence
further,
Quoting
page
at
648:
support of the verdict. We have followed
*12
“
Calvert,
this directive. See
‘No Evi-
“II.
dence’ and
Evidence’ Points
‘Insufficient
Error’’,
(1960).
38 TEX.L.REV. 361
authority
appeal
“The
of the courts of
virtually
signifi-
We find
no
evidence
‘non-finding.’
a
review
probative
supports
cant
value that
the ver-
Co.,
“In Pool v. Ford Motor
715 S.W.
dict as to the Bank. It is correct that the
(Tex.1986),
recently
2d 629
inti
court
did,
stand,
loan officer
testify
some-
might
mated in dicta that there
be some
differently
testimony
what
from the
findings
distinction
between view
and
gave
deposition.
he
non-findings.
recognizing
While
that the
empowers
constitution
courts
Having
to ‘unfind’
part
appeal
severed
of this
as to
jury’s findings,
a
the court observed that
judgment
affirm the
we
why
it
‘more difficult to
rationalize’
favor of R.E. Ames and R.G. Ames
non-finding
a
(5)
should be reviewable under
adding
per-
R.M. “Mike”
the five
preponderance
and
stan
pursuant
cent as set out above
to TEX.R.
dard.
theory only which does not exist in but REMANDED, IN PART AND VERSED reality.’ Corp., Dyson v. 692 S.W. Olin part remanded for a with the Reversed new J., (Tex.1985) (Robertson, 2d trial. concurring). any If there is inference Pool that there is a distinction between BURGESS, Justice, concurring and findings review of and review of non- dissenting. findings, lay question to rest.” we I concur in the substantive result of the Hence, Cropper, supra; we follow Her case, respectfully imposi- but dissent to the Herbert, (Tex.1988), bert v. S.W.2d TEX.R, percent penalty under tion of five C-4986, being Kil opinion by No. Justice APP.P. 84. Co., garlin, supra. and Pool Ford Motor v. appeal majority finds that brought delay sufficient “for and without Thus, judgment in we reverse the jurisdictional I do not believe the cause.” against R.E. and R.G. favor of the bank fully by our question had been resolved and that cause of action for remand fact, courts, judge and in the trial Texas trial on the whole merits of the case. new opinion have been of that must also part We order that this reversal of he stated: below, remand, judgment and this Counsel, I don’t intend to appeal. THE COURT: severed from the remainder of this you going I’m to overrule the of the facts cut short. We concede that the recitation Defendant, In- Ames’ Motion for the narratives from the record in this regard to this Verdict. With opinion lengthy. We structed have been somewhat Motion, I to Dismiss in a written necessary because Motion maintain that this was cases, this gone and read these have not directives contained in Pool v. Ford you’ve cases that cited Co., multitude of supra. Supreme Court’s Motor record, But, thing. just for the this jury’s finding, but opinion speaks of a zero, absolutely I it’s think this is worth it clear that the Cropper, supra, makes question appears to ridiculous courts, unclear, even to federal so and cannot do. courts can to what state me,
And, may be a matter to and this problem, oversimplification of the
serious to state that they probably need
is that re- hear matter
state courts cannot Employee Retirement Income
garding cases, But, period. I don’t
Security Act jurisdiction I have or not. know whether Dallas, Brown, appellant. James E. I posterity. that for just I want to state Cochran, Dallas, appellee. Bruce D. going I’ll know. I’m don’t think ever it, the Motion to Dismiss overrule say they ENOCH, C.J., have to about
we’ll see what Before give KINKEADE, one them another this case. We’ll JJ. STEPHENS *13 on. to write penalized KINKEADE, not be
Appellant should now Justice. invited, in manner of the trial court nothing appeals a take Patricia A. Foster Therefore, I speaking, appellate review. Home in favor of the judgment rendered imposition of the respectfully dissent points of er- Indemnity Company. two penalty. ror, court the trial Foster contends summary since granting judgment
erred 1) to: whether an issue of fact as there was diligence used to secure service due 2) attorney’s amount of process; and point error one is hold that fees. We therefore, cause; we re- dispositive of this trial court and judgment verse FOSTER, Appellant, Patricia A. remand for a new trial. v. to mature an this suit Foster instituted Accident Board Industrial award INDEMNITY The HOME IAB (IAB) February 1984. The dated COMPANY, Appellee. appealed within ruling binding if not No. 05-88-00003-CV. Indemnity timely days. did twenty Home IAB and appeal file a notice of Texas, Appeals Court of On district court. instituted suit Dallas. 12,1984, dismissed that suit was December Aug. prosecution. want of 8307 Texas Revised of Article Section 5 part: Statutes states Civil ruling and any party If to such final Board, having given after decision fails within provided, notice as above (20) “prose- days to institute twenty aside, then set the same cute a suit to shall ruling and decision said final thereto; parties ... binding upon all added). (Emphasis the suit to requires Article § instituted and be both award set aside the period. twenty-day prosecuted within