*1 Breach Contract MARKOWITZ, Appellant, Bart issue, fifth its ar Roundville
gues that the trial court erred its failure to find that the Joneses breached contract Bridget Mary MARKOWITZ, Appellee. three. The of a elements breach of con (1) tract claim are: No. the existence of a valid 14-00-01505-CV. contract; (2) performance per or tendered Texas, Appeals Court of (3) plaintiff; formance by the breach of the (14th Dist.). Houston by defendant; contract dam ages to the plaintiff resulting from the Sept. 2003. breach. National W. Ins. Co. v. Life Rehearing Overruled Oct. 2003. Rowe, (Tex.App.-Austin filed). pet. Because we have held that Roundville did not perform tender
ance and prevented its tender was not Joneses, its breach contract claims
also fails. We overrule issue five.
Attorney’s Fees
In its sixth Roundville claims it
conclusively established its entitlement
attorney’s However, fees. in order to be fees,
entitled to attorney’s party must
prevail on its suit based on a written con-
tract. See Tex. Civ. Prac. & Rem.Code 38.001(8) (West 1997). §
Ann. Because prevailed
Roundville has not on any of its
claims, isit to attorney’s entitled fees.
Issue six is overruled.
CONCLUSION issues,
Having overruled Roundville’s we
affirm the the trial court. *4 Meece, appel- Bryan, H. for
Margaret lant. Bryan, appellee. for Segal,
Allen YATES, of Justices Panel consists FOWLER, and SEYMORE. ON REHEARING
OPINION SEYMORE, Justice. CHARLES W. previous opinion dated our We withdraw opinion this substitute April 2003 and issues, Avi Bart Mar- place. In six in its of divorce the final decree appeals kowitz Bridget marriage his that dissolved proper- their and divided Mary Markowitz motion Accordingly, Avi’s ty. We affirm. rehearing overruled. Background signed case. The trial court a final judgment September on and Bridget Markowitz married in appeal ensued. 1983. Avi filed for divorce in 1997 and on 15, 1997, December he presented an agreed decree of Bridget divorce to for her RepoRter’s Record signature. Bridget was scheduled for In his first Avi contends that ishe cancer surgery day. breast the next De- entitled to a new because the trial spite the impending hospital stay, she reporter failed to transcribe and file cer- signed the decree but it initialed “AMW.” pretrial tain proceedings, which were re- Later, she testified that the acronym electronically. corded Avi claims that the my meant “against will.” On December missing pretrial proceedings would demon- 18, 1997, Bridget hospitalized, while he was strate denied fair and the court rendered on par- the merits because agreement ties’ signed the final decree judge’s bias. For the reasons forth set afternoon, of divorce. Late that Bridget opinion, Justice Fowler’s which ma- *5 hospital called trial court from her issue, jority opinion on this the court over- (with
room, claiming
her husband’s attor-
one.
rules issue
line)
ney also on the
that she had been
signing
coerced into
the decree. She sub-
Alleged
Judicial Bias
sequently
attorney
retained an
and filed a
In his second
he
contends was
motion for new trial.
impartial
denied a fair and
trial because of
trial,
Following the grant of a new
judicial
throughout
bias
proceedings.
orders,
trial court
temporary
entered
brief,
In
pages
seventeen
of his
he com-
part
in
providing
spousal
for
support and
plains
years
rulings,
that three
as well
salary
continued
for Bridget, who had
as
comments made
the trial court and
prac-
worked as a
in
nurse
Avi’s medical
Bridget, evidence the trial court’s bias
tice.
comply
Avi did not
with the tem-
against him.
porary
timely
willingly.
orders
or
Addi-
tionally, as the divorce became more
right
Parties have a
to a fair and
contentious, the trial court
Avi in
found
Sebek,
Metzger
trial.
v.
892
contempt on
jailed
three occasions and
(Tex.App.-Houston
37
[1st
him twice for failure
comply
with the
denied).
Dist.]
writ
One of the fun
temporary
During
orders.
the course of
components
damental
of a fair trial is a
proceedings, Avi filed three writs of ha-
v.
judge.
neutral and detached
Ward Vil
corpus,
beas
two or three motions to re-
Monroeville,
57, 62,
lage
409 U.S.
judge,
cuse the
petitions
and two
for
(1972).
S.Ct.
A judge
L.Ed.2d 267
writ of mandamus.
many
There were
should not act
nor an
as
advocate
ad
pretrial motions,
other
involving
some
versary
party. Metzger,
any
for
poor
Bridget’s own
jury
behavior. The
S.W.2d at 38. “To reverse a
spanned
during
seven weeks
Octo-
ground
improper
conduct or com
ber and November 1999. Post-verdict
(1)
judge,
ments of the
find
we must
hearings
motions and
continued in the
judicial impropriety
inwas
fact committed
same vein
non-cooperation
and conten-
complain
probable prejudice to the
tiousness
Bridget.
between Avi and
In
ing party.” Id. at 39.
total,
$300,000
Avi spent more than
fees,
attorney’s
Nava,
Bridget’s
v.
attorney
Barrientos
contractual division of assets or agreement in a divorce the written Supreme relies on the Texas Court’s just right, those are and annulment judg acknowledgment agreed “[a]n If the on the court. binding terms are should be construed in same ment agreement, the court approves v. as a contract.” Ins. Co. manner Gulf in full or may agreement forth the set Motors, Inc., S.W.3d Burns incorporate by reference agreement (Tex.2000); v. accord McGoodwin McGo in the final decree. odwin, (Tex.1984); S.W.2d (c) terms of If finds that the the court Cavazos, 211, 214 Cavazos in a agreement written divorce de- (TexApp.-Corpus Christi writ just right, and annulment are not nied). He argues agreed also to submit may request spouses may as a contract if stand even agreement may set the case a revised adjudication. Mackey it falls as an hearing. for a contested (Tex.App. Mackey, 1998). (Vernon § 7.006 Ann. Tex. Fam.Code writ); -Corpus Rea Christi accord Legislature has mandated The Texas State, gan County Purchasing Co. v. special respon- trial court’s exercise of (Tex.Civ.App.-Austin regarding the of assets sibilities division writ). However, under section 7.006 the mat- upon liabilities dissolution of and Code, Family di the trial court in a requires a find- rimonial bond. Texas law proceeding approve vorce has discretion to court that the terms of ing reject agreements in en such order to of as- agreement written for the division right a just sure and division the marital just Id. right. liabilities are sets and provides: estate. Section 7.006 7.006(b). § By vacating original judg- (a)To promote amicable settlement of ment, its clearly withdrew disputes in a or annul- suit divorce agreement. terms in the approval of the ment, into spouses may enter a writ- its of Fact and Additionally, Findings agreement concerning ten the division of Law, the con- trial court Conclusions property and the liabilities of the agreement the terms of the cluded that spouses and maintenance either Thus, without just right. were not spouse. court, The agreement revised was no approval from the trial there *8 capable be- repudiated agreement or before rendition of the of longer a written agree- ing the enforced.3 divorce annulment unless ever, legislature we do not believe the intend- in a cause is to reinstate it on the docket as though placing no been v. the impede trial had trial court from ed to the had...Wolf Sahm, (Tex.Civ.App.1911) 135 S.W. 734 by quo parties and the in status ante ("It to remark that the effect of is needless interpretation en- granting a new trial. This granting judgment the new trial is to vacate statutory that the trial court will retain sures one.”). prior rendered on the right divi- authority just to determine a and is when a new trial sion of the marital estate following acknowledge We that the lan- 3. may Accordingly, litigants either granted. (a): guage is included in subsection "the agreement proceed trial. to draft another repudiated agreement may be- be revised Here, Findings observed in its the trial court agreement ... unless the is fore rendition any of Law that Fact and Conclusions binding This lan- under another rule law.” arising de- obligations from contractual might guage imply that rendition; agreement how- after bound 90 considering
In agreement whether the set agreement aside an after rendition in this case is “binding under another rule of a in order to consider an law,” we are mindful of the line of intervention). cases establishing enforceability 11 of Rule Accordingly, any we hold that contractu- agreement before or after rendition of a obligation al arising from the decree was (in final decree. See Tex.R. Civ. extinguished when the trial court conclud- writing, signed by parties, and filed “just ed that it was not and right.” Avi’s record). with papers third issue is overruled. However, any we believe on this cases issue that are outside of family law
context do not control. FRAUD THE ON COMMUNITY his fourth Avi con
A 11 agreement Rule is a con tends the trial court erred failing in tract, governed by contract law. In re him community award a share of assets Nolder, Marriage 48 S.W.3d through Bridget’s lost jury fraud. The (Tex.App.-Texarkana 2001, pet.); see found that Bridget committed fraud LaFrance, Padilla v. S.W.2d community $67,800. in the (Tex.1995). amount The acknowledge agree We that jury’s trial court held that the answer was ments incident to divorce become enforce advisory and wrongful disposition they able incorporated contracts when are community merely assets into a final factor Traylor decree. v. Traylor, in property considered division. “Be (Tex.App.-Texarkana writ). spouse cause a wronged adequate has an acknowledge We further that agreements remedy for Dispute community under Alternative fraud on the Resolution through ‘just Procedures are right’ property enforceable divi any the same manner as upon divorce, other written sion ... indepen there is no contract. See Tex. Civ. PRac. & Rem.Code tort spouses dent cause of action between (Vernon 154.071(a) 1997). § Howev damages community to the estate.” Ann. er, we do not believe our application Schlueter, Schlueter Family section 7.006 of the Code (Tex.1998). recognizes concept “Texas instant case conflicts with these settled community, of fraud on which is Ames, principles. See In Marriage re wrong by spouse one that the court 592 (Tex.App.-Amarillo consider in its division of estate of the 1993, writ) (finding no conflict between parties and may justify unequal Family section 154.071 and Code section (em division of the property.” Id. at 588 (the 3.681(a) 7.006)). predecessor to section added). phasis properly Our decision ensures that the tri A trial court has wide discre
al court will statutory authority retain tion just dividing community determine a estate. right division of the Wright Wright, marital required by estate as section 7.006. *9 App.-Eastland pet.). may
After It granted, a new trial the con court divorce, spouses’ fault opportunity should have an either ac sider the the to cept reject abilities, agreement. capacities the par See Keim v. benefits that a Anderson, (Tex.App.- ty not at fault have S.W.2d would derived from writ) El Paso (acknowledging marriage, that continuation of the op business education, opportunity the trial court should portunities, physical have condition of extinguished cree granted. were when the new trial was (2) fact; court is vital the oppor evidence of a parties, disparity, business age the from estates, by of law or evidence education, barred rules tunities, separate size of weight only to the evidence offered giving and waste of property, the nature fact; a the evidence prove to vital Schlueter, 975 S.W.2d community assets. conclusively opposite of establishes 589; Wright, 65 at 717. On at see S.W.3d Uniroyal Tire Goodrich Co. vital fact. presume that appeal, we (Tex.1998). Martinez, discretion, its and we properly exercised issue, we a no-evidence determining In property division ab may not disturb the and inferences only the evidence consider Wright, abuse of discretion. sent clear finding to and disre- support that tend at 717. inferences to evidence and gard all The record reflects that Blasdel, S.W.2d contrary. Catalina v. Bridget’s earning capacity, in- considered (Tex.1994). than If there is more level, come, and the benefits educational support the find- a scintilla evidence marriage she would have received had the is sufficient as a matter ing, the claim also considered continued. The trial court v. Reyna, Inc. Browning-Ferris, law. personal expenditures dur- Avi’s excessive (Tex.1993). 925, 928 and his ing pendency divorce trial, accountant public At a certified by temporary refusal to abide orders prac value of the medical testified that the (which in protracted resulted enforcement $221,000, attorney’s including not tice was that the com- litigation) actions reduced practice Avi from medical fees paid munity assets Last- available division. Additionally, evidence accounts. ly, jury’s considered the attorneys over paid that Avi his showed Bridget’s award of two dollars for inten- $100,000 practice for the from the medical distress, tional infliction emotional practice’s usual ac divorce. The medical finding Bridget fraudulently that trans- attorney’s such fees countant testified that assets, finding ferred and the that neither Fur business-related deductions. are not party unfairly expended community had ther, this ac the evidence showed knowledge property without the other’s such non-business deduc countant labeled total, not consent. In the record does from “due shareholder.” Given tions as in the division of reflect abuse of discretion $221,000 amounts, the valuation these two Therefore, we community estate. $100,000 attorney’s fees plus in excess overrule issue four. Avi, practice from there due the medical support of evidence to more than scintilla Valuation $321,000 for the jury’s valuation In fifth Avi contends his v. Morri practice. See Rathmell medical granted the trial court should have son, (Tex.App.-Houston jury’s valuation his medi JNOV on writ). Dist.] [14th practice is no evidence cal because there sup- evidence to Having found sufficient subissue, $321,000. As it that was worth valuation of the medical port jury’s argues also that the trial court erred he it not address whether practice, we need testify about the value allowing Bridget Bridget testify about error to allow practice she was of the medical because five. overrule issue value. We testify subject. designated on that Attorney’s Fees point only A no-evidence issue, Avi contends discloses one sixth when the record his sustained *10 granted court have of the trial should complete a absence following: of the JNOV because there is SEYMORE, Justice, no evidence to CHARLES W. support jury’s award of in zero attor- concurring. ney’s fees appeals for Avi’s successful to I majority’s disposition concur with the appeals the court of and the Texas Su- of Avi’s first regarding missing issue
preme judg- Court. He asks us to render pretrial reporter’s However, I record. $50,000 ment of for a appeal successful in would hold that Avi also failed to meet the $20,000 court and the event a requisites second and third appeal successful Texas Rule before the Su- Texas preme 34.6(f). Court. Appellate Procedure When a reporter’s destroyed, record lost or a However, determination of this party is if entitled a new trial four judgment. issue has no effect on the “A Tex.R.App. requirements are met. P. party has no statutory right attorney’s 34.6(f)(1) (4). First, appellant must — fees in divorce case which does in timely request Second, Id. custody volve child determination.” recorded, Beard, proceedings electronically sig- 40, Beard 49 S.W.3d denied). App.-Waco portion nificant pet. recording A must trial attorney’s lost, award fees as a destroyed, or through inaudible parties’ the division of the es marital Third, appellant. fault of the Id. the lost Goetz, tate. Fletcher v. destroyed portion necessary must be denied). (Tex.App.-Fort Worth pet. Fourth, appeal’s Id. resolution. case, In this specifically trial court parties agree must be on unable to a com- ordered judgment the final that both plete reporter’s record. Id. sides attorney’s should bear their own Most significantly, Avi fails to show that fees. Avi not assign does error to this pretrial the record of proceedings is portion “nec Thus, judgment. it is a Id.; essary appeal’s moot to the resolution.” question whether the trial see Neatherlin, granted should have jury’s Young JNOV on the of appellate valuation attorney’s fees. We (Tex.App.-Houston [14th Dist.] are constrained to address issues which pet.) (appellant failed to demonstrate that an controversy actual Speer exists. See v. missing portion necessary of record Presbyterian Children’s & Home Serv. appeal); resolution Palmer v. Espey (Tex.1993). Agency, 847 S.W.2d Assoc., Inc., Huston & 351-52 Further, under the appellate rules of pro ( Tex.App.-Corpus pet Christi de cedure, judgment may be reversed on nied). pretrial proceedings, ground that the trial court committed orders, temporary court addressed en probably error law unless the error orders, discovery forcement of those and improper caused rendition of an judgment. disputes. appeal on Avi’s issue is whether Tex.R.App. 44.1(a). Accordingly, we do impartial he received a fair and trial on not address Avi’s sixth issue. merits, pretrial pro not error in the ceedings. reporter’s I believe that Conclusion pretrial proceedings record is not abso We have through overruled issues one lutely necessary ap to determine whether five, and issue six rendered moot. Ac- pellant impartial fair received a trial cordingly, of on As the court addressed in merits.. is affirmed. opinion rehearing, on we examined the FOWLER, SEYMORE trial record and found was not denied J.J. concurring. a fair or the merits. *11 missing pretrial pro- that the Further, completely Avi claims Avi has not fulfilled 34.6(f). he was denied ceedings of Rule would demonstrate requirement second on the merits trial pretrial must that the record is a. fair and He show Tex.R.App. ap- bias.1 An lost, judge’s of the trial destroyed, or inaudible. P. because 34.6(f)(2). a trial under the pellant is entitled to new Avi admits in brief that he his recordings following circumstances: “is unaware of whether these de- lost or log and their notes have been (1) requested timely appellant if the has majori- I stroyed.” Lastly, agree with record; reporter’s ty parties that to show that “the Avi failed fault, (2) if, appellant’s without reporter’s rec- agree complete cannot on a portion significant or a significant exhibit TexR.App. 34.6(f)(4). P. ord.” reporter’s notes and records of the court destroyed pro- or—if the has been lost has fulfill I would hold that Avi failed to electronically recorded —a ceedings were 34.6(f). Accord- requisites three Rule has significant portion recording is not entitled to a new trial ingly, Avi inaudible; destroyed lost or is been reporter’s because of the failure file the proceedings. of pretrial record (3) lost, destroyed, if or inaudible record, lost or the
portion reporter’s exhibit, necessary to destroyed FOWLER, Justice, McKEE WANDA resolution; and appeal’s concurring. agree on com- parties if cannot join majority opinion in all re- We reporter’s plete record. spects except its of the first discussion Tex.R.App. 34.6(f) (Vernon Special P. only, the first issue this is the
issue. On supplied); Routier Pamph.2002) (emphasis majority opinion. State, 112 S.W.3d 570-71 State, Crim.App.2003); Issac v. RECORD REPORTER’S (en (Tex.Crim.App.1999) 756-57 banc).2 complied has not find that Avi In his first Avi contends We that requirement, showing that he is entitled to a trial with fourth new because complete agree reporter parties to transcribe and the could failed Tex.R.App. P. pretrial reporter’s record. See proceedings, file certain which 34.6(f)(4). part is dis- This failure on his electronically. dis were recorded We positive of this issue. agree. assign his error to the denial of provided transcripts pretrial three does not
1. Avi hearings motions to recuse. hearings and recusal as exhibits two However, we cannot consider to his brief. appellate perfected exhibits as the Texas appeal these 2. was before This 34.5, amended, 34.1, (contents 34.6 Appellate See P. Procedure were Tex.R.App. Rules Thomas, 34.6(f) record); January appellate Till v. 2003. Rule effective (Tex.App.-Houston clarify application its to exhibits [1st Dist.] 733-34 amended State, require agreement only portion as to the pet.); see Gabriel v. also provide (Tex.App.-Waco the text at issue and (letter appellate copy that a pet.) attached to brief not determine record). parties the two used even if the part of the We note exhibit should be record, com agree. P. 34.6 in the Avi TexR.Afp. motions included cannot recusal (Vernon ments; 34.6(f) compare complained alleged shown in the Tex.R.App. about bias P, 34.6(f) rulings. Pamph.2002) Special TexR.App. with pretrial comments trial court’s 2003). (Vernon to recuse were denied. Both motions *12 94 R.App. 34.6(f); any State, can find no reference in
We docu see also v. Routier by ment submitted Avi that he has fulfilled 112 at' (appeals S.W.3d 557-58 court had State, requirement. Kirtley this See v. granted clarify motion to correct and (hold (Tex.Crim.App.2001) S.W.3d record and remanded case for a trial court ing that a new not State, trial could be ordered hearing); v. Gaston S.W.3d parties until there a finding (trial was could (Tex.App.-Dallas no pet.) record). agree complete not on reporter’s fact); findings court made Doubrava importantly, More Avi State, fails direct us to (Tex.App.-East any part of the which 'd) (trial voluminous record 2000, pet. land ref court filed con parties agree could on shows re remand); hearing clusion of law after on placements transcripts for the lost State, Pierre v.
pretrial proceedings. Nguyen See Kos ref'd) App.-Houston pet. [1st Dist.] noski, (Tex.App.-Hous (judicial fact findings of issued after case ton pet.) (finding Dist.] [14th remanded). abated failed to fol unsupported issue record reference and, result, guides low these he has waived). addition, our order of No right complain any waived his harm 11, 2001 granted vember Avi time to file appeal. the lost record have on his thirty days his brief the reporter’s after 34.6(f) Rule Accordingly, because has filed, many record was because he had so satisfied, not been Avi is not entitled ato problems in locating transcribing lost, destroyed new trial due to a or unfiled Nonetheless, appellant’s brief proceed- reporter’s pretrial record 14, 2002, January filed on and Avi ings. The first issue is overruled. supplement asked he entitled to his when reporter brief filed J., YATES, joins opinion first additional transcripts. Although record it issue. later, year than now more our clerk’s office has received no tran additional
scripts agreement, attempts and no
agree, apparently on the lost record. The appellate procedure
rules and the case steps
law a litigant detail the must take if
confronted a lost record. with Tex.