*1 7, contracts with -October 1988: FINA
Tеnneeo, purchase Lynn COLLINS, Appellant, all the Inc. to shares Dana Subsidiary for million. As of that $605 time, Subsidiary apparently as- has no COLLINS, III, Appellee. sets. Glenn Samuel 3, -November 1988: defendant Tenneeo No. 01-91-00782-CV. conveys by deed thousands of acres of real Texas, Appeals Court of Subsidiary. Subsidiary estate to the (1st Dist.). Houston assets. now has substantial acquired -November 1988: FINA all of June 1995. Subsidiary. the stock of the July Rehearing Overruled 1995 and -May 1989: Title to the thousands Aug. Subsidiary from the
acres was transferred
to FINA. “right agreement spe- of first refusal”
cifically “In provided that: the event Tenne-
eo ... to sell ... the 14.91669 acre elects ... offer the tract
tract Tenneeo shall first purchase_” [plaintiff]
... Defen- prove, the burden to as a matter of
dants had
law, was no “election to sell the that there compo- Tenneeo. A critical
real estate” part
nent of the transaction was the October Tenneeo,
7, 1988, Inc. contract between
FINA; part of the sum- that contract is
mary judgment The nonmovant record.
plaintiff that an election to sell oc- asserts
curred; question there is a of fact about shows such an elec-
whether this document 7, 1988, agree-
tion. Without the October determine,
ment, way is no as a there law, or not Tenneeo had
matter of whether
elected to sell the real estate at
time. Defendants failed to meet their sum-
mary judgment burden.
Accordingly, plaintiffs points of we sustain two and three.
error judgment and remand this
We reverse the
case to the trial court. *4 Houston, Bresenhan, Jr., ap- for
Maurice pellant. Black, Nunley, San Anto- Ken Thomas
J. nio, appellee. MOTION
EN BANC OPINION ON FOR REHEARING O’CONNOR, Justice. requesting this
Appellee filed a motion this case en banc. On rehear- Court to hear sitting grants banc his ing, the Court en motion, opinion, and is- panel withdraws and re- in its stead. We reverse sues this custody, mand for a new trial on the issues property, the assessment the division of statutory damages for violations of the feder- statutes, wiretap and al and state granting of the divorce affirm the fees. We $15,000. judgment of and the tort Summary fees, equitable parties’ Fact division of the estate, order, community possession appeal This is an from a final decree of owelty award. Lynn appellant, divorce between Dana Col- (wife), appellee, lins Samuel Col- Glenn (husband). 19-year marriage
lins The entire A. couple spousal of this was characterized abuse, parties, separations, affairs both Wiretap Violation of Statutes1 couple and reconciliations. The married 3(B)-(F), of error the wife con- years when the wife was 16 old. She worked statutory damages tends she is entitled to college acquiring while her husband attended illegal wiretaps. because of the degrees. college, masters and doctoral After very developed a successful thе husband tape The wife contends that certain record- They granted business. were a divorce on ings were obtained the husband in viola- December (“the §§ tion of 18 U.S.C. 2510-2521 federal questions, jury In answer to 11 recom- statute”) wiretap & Rem. Tex.Civ.PRAC. appointment mended of the husband as sole (“the wiretap §§ 123.001-123.004 state Code child; managing conservator of the minor statute”). spouses The husband *5 $2,189,482.90, group valued a of businesses at exempt wiretap prohibitions are from the in community one-half of marital which was the right both statutes. He he had a asset; major in estate’s found for the wife a conversations, tape right the and he had the against tort of cause action husband tapes proceeding. to use the in the divorce illegal wiretap telephone; based on an of her “intercepted” found the husband had wiretap prohibits statute federal communications; telephonic wife’s and deter- interception illegally intercept and use of attorney mined the amount of the wife’s fees. §§ ed communications. 18 2510-2521. U.S.C. judgment, In the the trial court: 2520(a), any person whose Under section disclosed, (1) intercepted, communication manag- is appointed the husband as sole statute, child; ing intentionally in violation of the conservator of the minor used is in a civil action. entitled recover (2) appointed possessory the wife as sole child; the minor conservator of wiretap prohibits The state statute (3) $15,000 judgment a awarded the wife illegally intercepted communi the use of the abuse; spousal on her tort claim for of the Civil Practice cation. Section 123.004 (4) wife, community awarded the for her party and Remedies states that a Code businesses, group in a of owel- interest intercepted may ob whose communication is $342,000, ty per- in the sum of at six injunction “divulgenee prohibiting tain an interest, paid monthly in cent be by information obtained an inter or use of $4,000, installments of secured one- сeption.” illegal interception of a con half of the husband’s shares CIC a versation and the use of the conversation is businesses; Inc., Agency, one of degree felony. second TexPenal Code 16.02(f). § (5) pay ordered each his or her attorney court respective fees and appeals of held that Two Texas courts have costs. interception telephone of a conversation State, Kent v. spouse illegal. is 809 jury’s appeals The wife valuation of the 664, 1991, (Tex.App. 668 S.W.2d custody community property, the determina- — Amarillo 'd) (defendant pet. ref violated former TexPe- child, couple’s minor the admis- tion of the § placing wiretap nal Code 16.02 on the tapes illegal from the sion into evidence of Corp., Turner v. PV Int’l telephone); wife’s statutory damages wiretapping, the denial of 455, (Tex.App. illegal wiretapping, the denial of 469-71 for — Dallas part opinion. of the without 1. Justice Mirabal dissents from this
797
(E.D.Pa.1979);
1988),
curiam,
463, 467-72
Cоm-
per
F.Supp.
S.W.2d
writ denied
778
865,
(Tex.1989).2
ment, Interspousal
Surveillance
Electronic
866
185, 185-212
Immunity, 7 U. of Tol.L.Rev.
state
Neither
nor the federal
(1975).
wiretap
any exception
contain
for
statutes
Kent,
may
legislative
wiretaps
spouses.
809
A court
consider the
between
See
(Texas statute);
making a
Kempf
finding
statute without
history
S.W.2d at 668
of a
(8th Cir.1989) (fed
970,
Kempf,
ambiguous.
F.2d
973
statute is
868
Tex.Gov’t
statute).
Giordano,
history
legislative
§
of
eral
United States v.
311.023.
Code
505, 514,
wiretap
indicates that
S.Ct.
the federal
statute
U.S.
(1974),
Congress anticipated
L.Ed.2d 341
said:
it would restrict
use
Court
wiretap
of
evidence
divorce cases. Sena
legislation
purpose of the
U.S.C.
[T]he
[18
Ad
Long, chair of the subcommittee on
tor
effectively
§
... all
prohibit
was
2510]
Practice and Procedure
ministrative
interceptions of oral and
communica-
wire
Judiciary Committee,
stated
Senate
tions, except
specifically provided
those
major
private
electron
areas which
“three
in the Act....
(1) in
widespread
werе
ic surveillance
added.)
(Emphasis
(3)
(2)
dustrial,
cases,
polities.”
divorce
long recognized
courts have
Texas
Hruska,
Kempf, 868 F.2d
Senator
right
and a
both a common law
constitutional
bill, commenting
co-sponsor of the
on the
privacy.
Employees
Dep’t
State
Union
statute,
scope
“[a]
noted that
broad
Health,
Mental
S.W.2d
prohibition
imposed
elec
private
is
use of
1987) (the right
privacy
in the
implicit
surveillance,
particularly
domestic
tronic
Constitution);
Atkinson,
Texas
Billings v.
espionage
relations and industrial
situations.”
(Tex.1973)(a
homeowner
S.W.2d
Sess.,
Cong.,
90th
2d
re
S.Rep. No.
illegal wiretap
has a
of action for
cause
*6
printed
Cong.
in 1968
& Ad
U.S.Code
right
on the
of
residence based
common-law
2274;
2112,
Kempf,
F.2d
min.News
868
Nothing in
privacy).
the Texas Constitution
973.
suggests
right
or our common law
that the
of
majority
sitting
A
of the full court
en
privacy is limited to
individuals.
unmarried
spouses,
any
per
banc holds that
other
Only
courts
appeals
two federal
of
have
sons,
rights
privacy
of
wire
have
under bоth
wiretap
exempts
held the federal
statute
3(B)-
error
tap
point
We sustain
statutes.
spouses
prohibitions. Anonymous
from its
(F).
(2d
677,
Anonymous,
v.
558 F.2d
679
Cir.
1977);
803,
Simpson,
Simpson v.
490 F.2d
B.
(5th Cir.1974).
opinions
809
have
Those
See,
widely
e.g.,
been
criticized.
v.
Platt
Wiretap
at Trial
Evidence
Platt,
(8th
159,
Cir.1989); Heg
951 F.2d
160
2(A),
error
wife contends
point
In
the
(10th
gy
1537,
v.
F.2d
Heggy, 944
1539
Cir.
grant
refusing
her
the court erred
1991);
972-73;
F.2d at
Kempf, 868
Pritchard
illegally
in limine made to exclude the
motion
Pritchard,
(4th
372,
v.
732 F.2d
Cir.
374
tape recordings.
In
of error
obtained
1984);
Jones,
661,
States v.
542 F.2d
United
2(B),
court erred in
the wife contends the
(6th Cir.1976);
Carter,
667
v.
820
Walker
custody
making
based
the
determination
1095,
1097 (C.D.Ill.1993);
v.
F.Supp.
Nations
wiretap
illegally obtained
evidence.
Nations,
F.Supp.
1434-35
670
wiretap re-
(W.D.Ark.1987);
separate
Flynn
Flynn,
Three
instances of
v.
(N.D.Ohio
first,
1983);
trial. The
Hey
cordings were considered at
F.Supp.
924-25
tape,”
Brocklin
in-
Heyman,
F.Supp.
man
1045-47 referred to as
“Van
v.
Wilier,
(N.D.Ill.1982);
the wife and
F.Supp.
one conversation between
Gill
volved
(W.D.N.Y.1980);
Kratz,
Brocklin,
paramour. The evidence
her
Kratz v.
Van
Court,
tape
admissibility
record-
recognize
Supreme
appeals
on the
of the
the Texas
We
writ,
Corp.
telephone
PV Int’l
denying
to he
ed
Turner,
conversations.
noted that
denial was not
(Tex.1989).
approving
holding
of the court
construed as
Tapes
tape-
shows that
the husband installed a
2.Waiver —Post-Order
recording
device
the Collins’home Octo-
post-
When the husband offered the
telephone
ber of 1987 to record the wife’s
(the
tapes
order
wife’s conversations with her
conversations.
son)
wife,
impeach
into evidence to
instance,
The second
referred to as the
objected.
wife’s
court
over
“post-order tapes,” involved a conversation
objections
permitted
jury
ruled the
22, 1990,
taped after March
when the hus-
Later,
transcript
tapes.
to hear a
appointed
temporary manag-
band was
sole
Hughes began
when Dr.
about the
ing
conservator of their minor child.
tapes,
attorney again objected,
the wife’s
ar
“post-order” taрes,
the husband recorded
guing
taped
that the
evidence could not be
telephone conversations between the wife
any purpose.
again
considered for
The court
and the minor child. The
used
husband
objection.
overruled the
We hold the wife
recordings
dining
impeach
these
the wife
objection
preserved her
to the admission of
custody.
trial on the
issue
The hus-
tapes.
post-order
Hughes,
gave
tapes
band also
to Dr.
expert
appeal,
for the ad litem who testified that the
On
the husband
get custody
husband
suspected might tape
should
of their child. because the wife
he
her
child,
conversations
their
with
she waived her
allegation
The third instance involved an
objections.
disagree.
wiretap
We
The state
by the wife that the husband listened to her
illegal
tape
it
statute makes
conversation
telephone
lawyers.
calls with her
She decid-
person being
“without
the consent”
ed he had
listened
conversations with her
recorded.
Tex.Civ.Prac.
& Rem.Code
lawyer
preempted
because the husband
her
123.001(2).
wife,
§
right
who had the
trial,
filing of
At
the divorce.
the husband
child,
talk with their
did not consent to be
attempted
explain
how he knew she was
taped
speaking with the child over the
talking
lawyer
to a
he
the tele-
saw
—that
only
telephone.3
option
Her
was not to talk
phone
lawyer
bill. The calls to the
were
telephone.
with their child over the
This
local, however,
calls,
long-distance
objec
Hobson’s choice was not a waiver of
telephone
only long-distance
bills showed
recording.
tions or a consent to
In a case
numbers.
this,
similar to
a husband sued his former
recording
wife for
his conversations with
Tape
1.Waiver —Van Brocklin
*7
Platt,
child.
S.W.2d Sims 502, (Tex.App [1st S.W.2d Tapes Custody 3.Post-Order . —Houston denied). 1991, Dist.] writ tapes though post-order Even were regarding We hold the wife waived error illegally obtained under the state and federal testimony the husband’s about Van statutes, wiretap still determine if we must tape. Brocklin they at trial on issue of were admissible 2(A). custody. point overrule of error
We post-order tapes, he answered it was not. 3. On one of the the wife asked recorded; being the son if the conversation was admissibility under rule of presumption has been Illegally obtained evidence illegally obtained tapes were e.g., Because the in See civil lawsuits. held admissible statutes, the trial 541, and state the federal Taylor, under State n.r.e.). them into 1986, have admitted In Alli not writ ref 'd court should App. Tyler— Co., 829, custody. of on the issue American Sur. 248 S.W. evidence son v. 1923, writ), we stat no
(Tex.App . —Galveston not were tape-recorded conversations ed: deal- the criminal statute because admissible with do not concern themselves The courts intercepted communi- ing the use of with suit by party to a civil the method which dissemination, and criminalizes their cations material to pertinent and secures evidence prevent provides a method to statute the civil evidence ... and hence the issues involved permit such evidence To dissemination. may not otherwise admissible be which is illegal to when it is at trial be introduced illegally and because it has bеen excluded part- make the court it would disseminate wrongfully obtained. the statute seeks illegal conduct ner to the Co., Gelbard, 51, 92 408 U.S. at S.Ct. proscribe. & Chem. Sims v. Cosden Oil See also Turner, 2362-63; at 470. (Tex.App S.W.2d . —Eastland n.r.e.). writ ref'd illegally tapes were obtained We hold illegal admissibility of evidence should not have been not admissible and forming ly tempered given expert obtained is for her use to the Tex.R.Civ.Evid. part, custody. rele provides, “[a]ll which on the issue her admissible, except as other vant evidence is 2(B), error and reverse point sustain We Consequent provided ... statute.” wise custody for retrial. the issue and remand inad ly, tapes can be held to be before the missible, the wife must show their exclusion C. the federal or required was under either state statute. Testimony4 of Valuation Exclusion 2511(1) 1(A)-(B), the federal the wife
Section
of error
permitting
wiretap
prohibits the use or disclo
erred
statute
that the trial court
Hickson,
except
by any person
partner, Dаvid
sure of communications
and his
husband
experts
statute.
v. United
about the value
provided
as
Gelbard
as
States,
41, 51-52,
designat-
408 U.S.
92 S.Ct.
were
corporation because
(witness
(1972)
could
of their
experts
about value
the wife ob-
identity
experts
jected
party’s
sure of the
of a
trial
ground
on
neither the hus-
testimony.
and the substance of their
Alu
designated
band nor Hickson had been
Co.,
4.
minum
870 S.W.2d at When
re
expert
interrogato-
witnesses in answers to
ries,
discovery
misleading,
produce any
sponse to
even
and the husband did not
correct,
though
initially
it
information about the substance of their tes-
rule
166b(6)(a)(2)7
timony
objected
requires
party
supple-
on value. The wife also
166b(6)
part:
During
deposition,
provides
5.
the husband’s
he was asked
7.Rule
planning
expressing
if he was
an
Duty
Supplement.
A
who
has
lawyer
trial about CIC stock. He said "no.” His
request
responded
discovery
to a
that was
following:
volunteered the
"Let me answer that.
complete
correct and
when made is under no
anticipate
expressing
opinion.
don’t
him
an
I
duty
supplement
response
his
to include infor-
analysis. I
asked
to do
He has done nо
have
him
acquired, except
following
mation thereafter
*9
analysis.
no
He has not talked to all of the
supplemented
thirty days
shall be
not less than
people
changes
any
I have talked to.
If that
in
prior
beginning
court
to the
of trial unless the
way
notify you
ample
I will
in
time to re-ask him.
good
permitting
finds that a
cause exists for
or
But,
anticipate asking
at this
I do not
him
requiring
supplementation.
later
that."
reasonably sup-
party
duty
a. A
is under a
to
plement
response
his
if he obtains information
trial,
position
upon
6. The husband’s
at
that he was not
the basis of which:
expert
testify
notifying
an
and could
without
the
trial,
(2)
though
lawyer’s
response
correct
wife before
is at odds with his
he knows that the
during
reproduced
complete
longer
deposition,
true and
statement
above.
when made is no
at 304.
mony.
Corp., 868 S.W.2d
days
Exxon
before
responses at least 30
ment its
purpose of the rule
that the
court noted
expert changes his or her The
an
trial. When
of the
being
of the substance
requiring disclosure
a material
issue after
opinion about
166b(6)(b)8
give
opposing
the
party
testimony is to
requires
expert’s
the
deposed, rule
ex-
discovery
about the
response to
information
supplement
party
its
sufficient
to
change.
party
prepare
to
permit
the
the
party
pert’s opinion
other
about
to
inform the
4;
Co.,
expert
pre-
at
Exxon
of the
870 S.W.2d
Aluminum
for cross-examination
minute,
ex-
at 304. A last
from their own
Corp.,
pare
868 S.W.2d
evidence
rebuttal
testimony
expert’s
in
alteration
pert.
material
Id.
complete failure to
just
damaging
as
as the
Here,
Hickson tes
the husband and
Corp.,
at
expert. Exxon
868 S.W.2d
list an
that
depositions
oath at their
tified under
of the
opinion
the value
had an
about
neither
plaintiffs ex
Company,
Aluminum
opin
an
would offer
corporations and neither
deposition
Alcoa was
pert
testified
attorney assured
trial.9 The husband’s
ion at
employee’s
consciously indifferent tо its
not
notify him
attorney that he would
the wife’s
trial,
expert testified
safety. At
the same
changed their
Hickson
if
husband and
grossly negligent. Alumi
that Alcoa was
notify
attor
They
not
the wife’s
mind.
did
Co.,
expert said
at 3. The
num
870 S.W.2d
attorney had
ney
any change. The wife’s
reviewing
conclusion after
she reached this
for the cross-ex
opportunity
prepare
to
no
deposition.
following her
additional material
on the
and Hickson
amination of the husband
plaintiff
Supreme
Texas
Court held
valuation,
prepare rebuttal
or to
issue of
166b(2)(e),
to
duty, imposed
rule
had a
testimony
expert.
from the wife’s
discovery when
supplement
responses
her
to
a
permitted
have
Although some courts
expert changed
her
about Alcoa’s
her
party was
testify
though the
party to
even
Serv.,
4;
negligence.
Id. at
see also Farm
witness,
those
in none of
designated
not
as a
Gonzales,
756 S.W.2d
Inc.
party
give
permit
court
cases did the
denied) (wit
App. Corpus Christi
writ
—
Henry
example, in
S.
testimоny. For
expert
changed opinion
deposition
after
ness who
Miller,
at
the trial court
excluded).
should have been
designated as
Bynum,
was not
permitted
who
Corporation,
Supreme
In Exxon
Court
witness,
but not
testify as a fact witness
a
sub-
party
held that a
who has disclosed the
expert.10
an
as
testimony
expert’s
of its
is not re-
stance
give
claims he did
discovery
The husband
supplement
to dis-
quired
lay
testimony,
only gave
he
expert
but that
expert’s testi-
close a minor refinement of the
166b(6)(b)
testimony.
states that
Rule
complete
and their
and the circumstances are such
duty
supplement informa
party
is in
mis-
is under
failure to amend the answer
leading;
substance
response
previously
to an
disclosed
tion not
expert
appropriate
party expects
inquiry.”
wit-
"appropriate
b.
If the
to call an
It was
identity
subject
quiz
or the
matter of
Hick-
ness when the
the husband and
wife’s
pre-
expert
testimony has not been
they
such
witness’
offer ex
deposition
would
whether
son
response
appropriate
viously
Cunningham,
disclosed in
to an
pert opinions
See Foster v.
at trial.
matters,
directly
inquiry
addressed to these
such
(Tex.App.
Worth
— Fort
supplemented
response must be
to include
(a
denied)
may
appro
an
make
writ
name,
telephone
the ex-
address and
number of
deposition
inquiry during
for information
priate
testimony
pert
and the substance of
witness
witnesses).
about
expected
concerning
expert
which the
witness is
testify,
practical,
event
soon as is
but
no
as
the husband and
insists that
10.The dissent
(30)
beginning
days prior
thirty
to the
less than
properly
testify,
though
even
partner could
except on leave of court.
of trial
witnesses,
the owners
were
because
listed
added.)
(Emphasis
corporation.
dissent confuses
governs
law that
substantive
7, above.
8. See footnote
(who
ability
ex-
as an
experts
has the
procedural
controls the
pert)
law that
with the
interrogatories re
the husband
9. The wife sent
(who
properly
as a
procedure
identified
trial
witness).
experts. Additional
questing
about
information
any
logic,
dissent’s
If we followed
depositions
and Hick-
ly,
of the husband
at the
proper-
ownership
person
interest
son,
who had an
"appropri
attorney made another
the wife's
*10
generally
property,
testify
ty
about value of
supplementation
could
inquiry” regarding
ate
desig-
though
expert,
not
to an
even
regarding possible expert
a matter left
witnesses
information
testimony
compa-
about the value of his own
The husband and Hickson testified
ny.
corporations
The wife’s
asked the husband
that
the value of the
was 2.2
any
deposition
planned
provide
dollars;
experts
his
if he
to
million
the wife’s
testified
value,
regarding
personal
million;
evidence
either
the value was between
and
$17
$18
opinion
expert opinion.
$2,189,482.90.
jury
He said he did
found the value was
good
not. The husband did not show
cause
find the
We
husband and Hickson testified
materiаl,
failing
to inform the wife before trial that
disputed allegation,
about a
and the
testify
he and Hickson would
about value of
merely
evidence
was
cumulative.12
corporations.11
majority
sitting
A
of the court
en bane
point
sustains
wife’s
of error one and
testimony
If the trial court
admits
reverses and remands the case to the trial
undesignated
showing
an
witness without a
court for a
trial on
new
the value of the
cause,
reversal,
good
party
to obtain
property
community
and the division of the
objecting to the evidence must show harm.
Alvarado,
estate.
undesig-
If
puted allegation, appellate court will re Hausler, verse. Boothe v. 766 S.W.2d D. (Tex.1989). undesignated If the witness merely testified about matters that were cu Jury instruction evidence, appellate mulative of other affirm, 1(C), holding argues court will the error was of error the wife that language in harmless. Id. the italicized the instruction be- trial, mind, response question asking they changed they nated in to a for the and if their would Foster, experts going testify. names of who were to let the wife know. See also 825 S.W.2d at partner (party dissent insists that the husband request and could make for witness list valuation, testify lay Serv., Inc., could during deposition); as witnesses about Farm though they directly they (witness, even going were asked if were changed opinion S.W.2d at 750 who (even give opinion any to about value deposition, after should have been excluded at one), personal they and said no. trial). professes authority 11. The dissent to know of no remedy 12. The dissent that the wife’s require supplement that would the husband to impeach to cross-examine and to the husband deposition testimony that he and Hickson Contrary argu and Hickson. to the dissent’s gave during depositions their that misled the ment, ability possibly to cross-examine 166b(6)(b) authority. pro- wife. Rule is the It impeach the witness who was not identified is party duty supplement vides that has а to “good permitting the witness to cause” for given response appropriate information "in to an testify. holding This is the of E.F. Hutton & Co. inquiry directly addressed to these matters.” In (Tex.1987). Youngblood, case, husband, Hickson, deposition, this on purpose requiring disclosure of the ex stated, lawyer response and the husband's to pert’s give oppos testimony to before trial is "appropriate inquiry,” they an would not ing party sufficient information about the ex testify about value at trial. prepare pert’s opinion permit party to expert prepare rebuttal cross-examine the position, The dissent's that a is not re- expert. Corp., evidence from another Exxon quired supplement deposition testimony, purpose the rule would be S.W.2d at 304. The give would cause havoc at trial —a witness could only remedy for a violation was subverted if the opinion deposition, change one on his or her attempt impeach to cross-exаmine or without trial, mind before at trial to the re- preparation present the benefit of and to the case Supreme verse. The Texas Court has addressed recognize We that in without rebuttal evidence. very Company, this said, issue in Aluminum where it Stores, Inc., Ramsey Lucky dicta in deposed expert] opinion [the "When Laux's (Tex.App. [1st Dist.] 630 n. 9 concerning negligence changed Alcoa’s due to - Houston denied), facts, writ we said a witness who testi the review of additional the Bullocks then differently subject impeachment. at trial is fies duty supplement discovery had a their re- suggest impeachment We did not mean to sponses change.” the material disclose witness, remedy was a for failure to exclude a S.W.2d at 4. When the husband and Hickson value, suggested by opinion the dissent. That would be con they testified at trial had an on it trary Supreme holding change in E.F. to the Court's was a material from their Hutton, early involving deposition opin- the fail when said did not have an оne of the cases value, identify a at 364. ion on would not offer such an ure to witness. 741 S.W.2d *11 in Brazos kind of business any similar non- destroyed of the three the value low (50) three, fifty question competition agreements. a distance County or within and Waran- inquiring as to the value CIC thereof. miles of the boundaries tek, jury was instructed: the hus- signed both agreement was The asset is its “present value” of an agreement, the By this and Hickson. band val- unless it has no market market value all their Hickson transferred husband and ue. newly to the assets and debt partnership price the asset will value” is the “Market they the assets corporation. One of one formed bring it is offered for sale when sell, obligated to compete but is to promise who desires their transferred was bought by one who desires sell and is agreement form- corporation. The with the buying. obligation of buy, is under no but The value corporate asset. ing CIC was value, its no market If an asset has they other assets agreement, as all this ownership its present value is the value of corporation, newly formed to the transferred from the evidence. as determined By agreement their attached to CIC. present value You are to determine agreed husband and Hickson incorporate, the ownership interest the business of the corporation. compete not to with party participating in it will no as if the longer free to do so and will be continue non-competition agreement The second directly compete with it. “Non-Competition and was an unexecuted added.) tak- (Emphasis This instruction was corporate in the Confidentiality Agreement” Charges, en from 5 Tex.Pattern PJC JuRY state that CIC’s minutes minutes of CIC. (1989). reviewed, agreement the form of non-competi- the three The wife contends signed by all but two approved and was to be and the agreements were assets of CIC tion agreement and producers. The unexecuted The first husband were not. that both the husband minutes сonfirm agreement in the non-competition is found required to execute Hickson were Partnership,” ex- “Agreement Incorporate agreement. non-competition the husband and Hickson ecuted when agreement are formed CIC. Parts of that non-competition agreement was The third reproduced below: Agreement” be- Producer the “Exclusive parties caused the cor- hereto have underwriter, AIG, which CIC and its tween poration formed. to be (1989-1994), rela- five-year exclusive up set This tionship the two entities. between incorporation, Immediately upon employees to and its agreement bound CIC hereto, sell and parties copartners, shall agreement exclusively with AIG. This deal corporation all assets and transfer to the husband, except as an em- did not limit the Concepts, Insurance business of Creative relationship to AIG. in its ployee of CIC assets, including partnership, [list their jury to the agreement was not relevant This join including and shall interest] leasehold issue. legal appropriate docu- in execution accomplish the sale and transfer. ments to an enforceable CIC had
Because corpo- agreement signed both parties non-competition shall cause the hereto of their Hickson, to assume all the liabilities jury ration should husband and partnership.... disregard it as instructed not have been court The trial
having no value to CIC. parties agrees that of the hereto Each jury question in its instructions erred (2) he years after period for a of two three. number or director ceases to be an officer 1(C). point of error sustain engage in the same We corporation he will not *12 ty judgment,
E. award because it is not a it is judgment, not enforceable as a and it does Statute of limitations13 proper not bear the rate of interest. 3(A), point In of error the wife contends point We now address of error statute, wiretap the state which does not 6(C), arguments regarding the wife’s the ow- limitations, governed contain a statute of is elty argues award. The wife the trial court provision the residual limitations in Tex. setting abused its discretion in an interest 16.051, § Cxv.PRAC. & RemlCode which is four percent payout period. rate of six for the years.14 argues She that under art. Tex.Rev.Civ.Stat. wiretap Because the state statute has no 2, 3, §§ 5069-1.05 the court must set an limitations, stated statute of we must look to percent per year. interest rate of at least 10 authority other to determine which to use. agree. In We the event the trial court sets a argues general The wife residual schedule, payout we direct the court to set an period limitations contained section 16.051 percent per interest rate of not less than 10 of the Civil Practice and Remedies Code year, compounded annually, required governs. provides “[e]very That section ac- 2, Universal, §§ article 5069-1.05 El See express tion for which there is no limitations Compania Periodistica Nacional Phoeni period, except recovery an action for the of (Tex. Inc., 799, Imports, cian S.W.2d property, brought real must be than later denied) App. Corpus (ap Christi writ — years day four after the the cause of action pellate judgment court reformed the to in accrues.” Tex.Civ.PRAC. & Rem.Code post-judgment clude interest accordance § 16.051. statute). with the disagree with the An ac We wife. argues payout pe that the The wife tion wiretap under the state statute sounds judgment years riod in the of almost is by two-year in tort and is controlled a statute Hanson, unjust. In Hanson v. of limitations. This Court has held that (Tex.App [14th Dist.] . —Houston privacy governed “[[Invasion of is also dism’d), writ the court held the trial two-year of limitations.” statute Stevenson by establishing court abused its discretion Koutzarov, payout years. Id. The hus schedule six denied). App. writ [1st Dist.] — Houston pay judgment band should be directed wiretap Violation of the state statutе is clear period within the in which he is shortest ly privacy. an invasion of deprived capable so that the wife is not of the majority sitting A of the court en banc right to control her full share the estate. 3(A). point overrules of error record, Id. there is no evidence to On this support 12-year pay-out need for
F. capacity paying in a short the husband’s assume, Judgment period of the er of time. after the Terms We case, sign retrial of this the court will 6(A)-(C), In of error the wife con- judgment appropriate provi that will make judgment trial court’s tends the is erroneous supported by sions that are the record. (A) judgment for three reasons: does not equitably parties’ community argues money judg- divide the es- The wife also that the (B) tate; possession judg- community property order ment for her share of Family only by corporate ment does not conform to the Texas secured stock of CIC. The and the trial court refused to file find- wife that if the husband defaults Code (C) law; award, ings payment of fact of her she will be forced and conclusions judgment properly lawsuit to collect her eommu- does not secure her owel- file another Hutson-Dunn, joined by Every express Justice action for which there is no 13. Justice Chief Oliver-Parrott, part period, except this dissents from limitations an action for opinion. recovery property, brought be of real must day years later than four after the the cause 16.051, action accrues. 14. Section "Residual Limitations Peri- added.) od,” provides: (Emphasis Hanson, E of the disagree because I with Section nity property. In the court said equal- opinion. money judgment that a can be used to partition ize an of the communi- award when four, the points three and wife error ty in no value to the wife. estate would result statute, wiretap contends that the state *13 case,
Hanson, In 672 S.W.2d 278. a statute of limita- which does not set out possible parti- the court noted it was not tions, governed by is the residual limitations practice tion medical or his the husband’s in & provision Rem.Code TEX.Civ.PRAa fund, couple’s and the home was retirement (Vernon 1986), years. § which is four 16.061 Here, heavily not mortgaged. Id. we do 16.051, Limitations Peri- Section “Residual granted if know court could have the wife the od,” provides: mortgage a on the house awarded to the if the court could have awarded husband or express Every there is no action for which community the of her share of wife some except an action for the period, limitations property from the husband’s retirement ac- recovery property, brought of must be real assume counts. On remand we those issues day years not later four after the the than fully developed. will be cause of accrues. action 6(C). point of error We overrule added.) (Emphasis any provision If no in of limitations G. cause of expressly applies statutes to a action wiretap, governed for cause of aсtion is Issues Other Khalaf, section 16.051. Williams (Tex.1990) (because this cause trial Because we remand to the S.W.2d there court, remaining to address the we decline fraud, provision governed by was a for it was statute). issues. four-year example, For when brings statutory that is a cause a suit action, analogized be of even if the suit could JJ., HEDGES, sitting on DUGGAN15 action, a common of because it is law cause panel submission. 16.051, four-year § expressly not in listed HEDGES, J., joined by COHEN, J., filed applies. City v. First residual statute Wider concurring opinion a dissenting and from Dallas, 160, 162 Bank of submission, part opinion. panel C of the On 1990) (suit App. against bank for — Dallas DUGGAN, J., in position voted favor not a for refusal to honor checks was suit espoused in Justice HEDGES’ dissent. debt, UCC, it of the was suit for violation governed by the the limitations was residual HUTSON-DUNN, J., joined by OLIVER- statute). PARROTT, C.J., concurring opinion filed part opinion. from statute that ex- E of the There no limitations applies wiretap cause of pressly to a action. MIRABAL, J., against voted banc the en amending provision limitation the residual rehearing, consideration of dissents charged legislature in with (without part A opinion) opinion from of this knowledge holdings of the courts. statutes, relating wiretap to the and does Williams, at 657. Just participate in other issues considered changed period adoption of section 16.051 the court en banc. for fraud from two four limitations changed periods all other years, that section HUTSON-DUNN, Justice, concurring to express limitations is no for which there rehearing. for the en on motion banc wiretap period. Nothing limitations relating to limita- agree majority statute or the statutes Although I with the issues, period for provides a limitation this separately court I write tions on all other type of suit. on the the statute of limitations issue of case, position was submitted before Duggan, on of this which who retired December Justice assignment his retirement. to sit for the dis- continues points mony admissible, I would sustain the wife’s of error on valuation was expert testimony three and four and remand to trial court whether on valuation was damages the issue of for violations of the admissible?
wiretap statute. The husband the trial court in admitting was correct OLIVER-PARROTT, C.J., joins valuation because he and Hickson could HUTSON-DUNN, J., in concurring this properly testify lay on the issue as witnesses. opinion. absolutely right: anyone isHe an owner or personal knowledge with can assist the fact HEDGES, Justice, dissenting part by expressing lay opinion finder on the concurring part. personal property. value real or La See *14 I dissent from the decision to hear this 490, prade Laprade, v. 784 S.W.2d 492 join majority case en banc. I the in revers- denied) (value 1990, App. Worth writ — Fort ing judgment remanding the and the ease for Autohaus, corporation); of Bavarian Inc. v. However, a new trial. I note that there is Holland, (Tex.Civ. 110, 115 wrong much that is with Section C of the writ); App. [1st Dist.] no — Houston majority opinion, of entitled “Exclusion Valu- Tex.R.Civ.Evid. of The admissiоn such C, Testimony.” majority ation In Section the testimony appeal should not be disturbed on law, then, applies wrong first the and when unless the admission an of was abuse discre traversing ground the most difficult of its 492; Laprade, tion. 784 S.W.2d at Hoch analysis, majority errs once more. The heim Prairie Farm Mut. Ins. Ass’n v. Bur should have held that the husband and his nett, (Tex.App. S.W.2d — Fort Hickson, partner, corpora- as owners of the writ). holdings Worth no The in cases tion, testify lay could as witnesses to the Laprade like and Bavarian Autohaus show corporation. of value the that the trial court’s admission indis majority intensively The examines the sub- putably lay testimony permissible. was The jects witnesses, expert “good of disclosure of by majority authorities cited that define a failing designate expert cause” for to wit- party’s duty designating expert in an and nesses, supplementing discovery responses expert’s disclosing supplementing and an opinions expert that concern the wit- completеly inapplicable are for nesses, Absolutely etc. none of this discus- very expert opin reason that concern relevant, testimony ion, which, sion is because the ad- again, not at issue here.1 is expert mitted on valuation at trial was not majority goes The to state that because on testimony. The statement of facts shows attorney said at the husband and his that when the husband tried to introduce deposition husband’s that the husband would valuation, testimony on the wife’s provide any testimony regarding valua- not objected. hearing argument After from both tion, expert necessarily which includes attorneys admissibility, on the issue of lay testimony, sup- have the husband should trial court stated: discovery in- plemented response to his having The Court cases reviewed the cited trial that he intended formed the wife before arguments to the Court and heard the give to at trial after all. evidence on valuation going lay opinion counsel is to allow testi- majority tеstimony concludes that mony only by Collins and Hickson. the husband was inadmissible because failed added.) (Emphasis any good supplementing it more for not his Could be show cause lay response. clear that the issue here is whether testi- ed). case, hand, inapplicable authority does not
1. One such is Aluminum This on the other Bullock, (Tex. 1994), Co. S.W.2d 2 testimony, explicitly Am. expert concern as the record majority. relied on several areas anything demonstrates. Nor does this case have case, issue in that in the words of the court that cause; question good to do as is with the it, good decided was "whether cause under Rule below, did have to discussed the husband not 215(5) expert exists to allow the good supplementing show cause for not because previously designated by who were witnesses not required supplement. he was not party calling (emphasis them.” Id. at 3 add case, supplement, ap- not statute, authority duty” “under a does is no no no There majority’s conclusion that proposition ply for that a here. The whatsoever good for says in a he husband failed to show cause deposition who that will not as- supplementing based on an erroneous testify “supple on a matter at trial must deposition sumption; husband did not have to show changes his if he ment” answers supple- “good rule 215 cause” under his mind does decide to fact, authority menting re- appeals there no matter. one court of has because place. first correctly recently year quiring supplement him stated as last that “[tjhere specifically are no cases that Texas testimony was though Even the valuation deponent supplement deposi his require a admissible, was not without the wife left ” testimony. Transp. Int’l tion Navistar disposal response it. had her She Co., Corp. v. Tractor Crim Truck & im very testimony: to the potent antidote (Tex.App. S.W.2d — Texarkana precisely we said peachment. This is what denied) added). (emрhasis writ same Stores, Inc., Ramsey Lucky proce noted is there a “[n]or court also 1993,writ (Tex.App [1st Dist.] . —Houston requires nonparty depo dural rule denied). ease, disagreed we with In that supplement nent” —like Hickson here —“to “im appellants opinion2 Fort Worth that a testimony.” deposition his Id. sup general duty deponent on a poses a *15 authority plement deposition testimony.” Id. requir
The fact that
is no
his
there
expressly
decide
ing party
says
deposition
a
who
in a
that he
630 n. 9.
declined to
We
testify
“sup
on
at trial
whether
Rule of Civil Procedure
will not
a matter
to
Texas
166b(6)(a)
deponent
plement”
deposition
requires
supplement
his
answers
a
to
if he
testimony.
In
changes
deposition
his mind
to
Id. at 630.
our
and does decide
is
his
fact,
discussion, however,
just critical;
do
“[w]e
critical.
it is not
it is
we stated that
above,
any
dispositive.
general
As
in
that
who testifies
noted
the standard of note
witness
differently
deposition
his
is sub
review for the admission of the valuation
at trial
from
ject
impeachment
deposition
is
with the
tes
abuse of discretion. See La
492;
timony.”
n. 9.
could
prade, 784 S.W.2d at
Hochheim Prairie
Id. at 630
The wife
Farm,
credi
An abuse
have
or even abolished the
at 276.
of dis
debilitated
bility
and
with deft
cretion
the admission of evidence occurs
of the husband
Hickson
they
contrary
that
guiding
when the trial court acts
use of their earlier statements
Chems.,
jury on
principles.
opinion to offer the
rules or
Reichhold
Inc. would have no
Co.,
Mfg.
very subject
which
were now
v. Puremco
247 the
on
denied).
If,
accept
(Tex.App.
asking
jury
as
their word.
writ
— Waco
noted,
correctly
the Navistar court
there is
majority’s holding
this
The
on
effect of
specifically requires
deponent,
no ease that
is to
what
witnesses
issue
transform
non-party,
his
party
supplement
deposi
or
attorney
deposi-
said at the
the husband’s
testimony,
tion
how can the trial court have
agreement.
rule
tions into an imitation
contrary
any guiding
or princi
acted
rules
hold
majority
seeks to
the witnesses
аllowing
ples
testimony?
the valuation
attorney
they agreed
to what
the husband’s
way,
Put another
how could the trial court
inviting
idea until one
to on
record —an
“contrary
any guiding
acted
or
have
rules
it was
agreement,
considers
because
that
specific
principles”
guid
when there are no
signed and
with the
writing,
not “in
filed
answer,
ing
principles?
rules or
papers
part
as
of the record” or “made
course,
that
did
the trial court
not abuse
com-
open
of record” was
court and entered
its discretion.
pletely
Tex.R.Civ.P.
unenforceable.
otherwise
authority
“[u]nless
Rule 11
required
Because there is no
mandates
rules,
agreement
no
be-
deposition
provided in these
“supplement”
husband to
any
valuation,
attorneys
parties touching
suit
testimony on
Rule
tween
or
Texas
of Civil
215(5),
it be writ-
penalizes party
pending
will be enforced unless
Procedure
which
part
supplement
ing, signed
papers
filed with
failing
when the
denied).
App.
Cunningham,
Worth
writ
added). agreement made the witnesses and comply
the husband’s does not with How, then,
rule 11. can it be enforced at
trial? The answer is that it can’t. reasons,
For all of disagree these I with
Section C the “Combined En Bane and Opinion
Panel Rehearing.” Motion for presents analysis gone
That section an badly and,
awry consequence, holding as a that is
very wide of the mark.
COHEN, J., joins HEDGES, J., in this DUGGAN, J.,
opinion. joins HEDGES, J., panel
on the submissions of this issue.
Henry HERNANDEZ, Appellant, David Texas, Appellee. STATE 04-94-00793-CR,
Nos. 04-94-00794-CR. Texas, Appeals
Court of
San Antonio.
July 1995.
Rehearing July Overruled