Shenandoah Associates v. J & K Properties, Inc.

By points through nine, his three

Ellis contends that the trial court erred at punishment phase of his trial over

ruling objections opening his to the State’s

statement, testimony relating prior- certain Ellis,

extraneous offenses committed his

wife, employees, which were shown

to have resulted in final convictions. We carefully,

have studied the record agree gross

while we errors were com admitting

mitted certain testimonial evi liquor regarding

dence extraneous offenses employees

committed relatives and

Ellis, testimony concerning searches showing

and seizures extraneous offenses

by Ellis not shown to resulted in final have

convictions, all of these errors have been either Ellis’ cross-examination of' waived witnesses, bringing his out the

same information on cross-examination witnesses, by failing

from other State’s specific objections preserve

to voice his event,

complaints for review. under points conclude that are record we they

without merit and are overruled. is affirmed. ASSOCIATES,

SHENANDOAH

Appellant,

v. PROPERTIES, INC., Appellee.

J & K FAMI

HOME ASSOCIATION SAVINGS CORPORATION, LY DEVELOPMENT Bushman, Inc., Appel A-1 and John

lees. 05-85-00629-CV.

No. Texas, Appeals

Court of

Dallas.

March 1987. Rehearing 1987. Oct.

On Motion 9, 1987.

Rehearing Denied Nov. Jr., Dallas,

Royal Brin, appellant. H. for Jordan, Prather, Dunlap Robert C. Dallas, Prather, Windle, Denton, Don for appellees. STEPHENS, STEWART and

Before HOLLINGSWORTH1, JJ.

STEPHENS, Justice. brought by suit multiple-party This Associates, the dissatisfied Shenandoah park a purchaser of mobile home Odes- sa, seeks rescission Texas. Shenandoah Deceptive the Texas under Act of Business and Trade Practices Af- amended in 1979. Commerce Code as weeks, trial of several ter special is- of several hundred submission sues, judgment trial court entered K park from J & rescinding the sale of Shenandoah, charging Shenandoah yet liability unpaid balances awarding mortgages, and first and second attorney’s fees faith and for brought suit in bad having against all of harrassment purposes & K. except J defendants prior her the end of term. Cynthia Hollingsworth, Jus- 1. The Honorable tice, opinion of this concurred in the result appeal, On presents twelve TRIAL COURT’SJUDGMENT points of error for our consideration. J & judgment trial court’s para- final Inc., Properties, co-appellant, presents phrased as follows: error, points seven Savings and Home Inc., 1. A-l Savings, Home and Bush- Association, Family Development Corpora- man were awarded a take-nothing tion, Inc., Bushman, A-l and John appel- judgment as to Shenandoah. lees, present cross-point. one agree We Inc., A-l 2. judgment awarded points with Shenandoah’s of error number (a) attorney’s for: one, six, agree number with J we $173,003.00, fees of expenses $10,- one, & K’s of error accord- number 852.81; (b) appealed court, if to this an ingly, we reverse the of the trial $27,000.00 fees, additional attorney’s court and remand the case for a new trial. $5,000.00

and an expenses; additional CHRONOLOGY OF FACTS (c) if appealed to the Texas Su- preme Court, $13,500.00 an additional legal park, In 1982 KJ & held title to the fees, as attorney’s mortgage $830,- additional encumbered a first $2,500.00 000.00, in Savings. expenses. favor of Home This Jacobson, guaranteed by note was Bill J. 3. Bushman was awarded the same loan, Coupled President of K. J & with the judgment against Shenandoah as was granted J & K had an exclusive sales con- A-l Inc. Family Development tract to for sale of the Savings judg- 4. Home was awarded transaction, park. At the time of this John $893,- against ment for Shenandoah solely Savings Bushman and owned Home 047.35, principal as the sum due on the Inc., A-l Savings and Home the sole was and through interest of the note Au- Family Development. owner of 1, gust 1984, together pre-judg- with 1982,negotiations Later in for the sale of post judgment ment and interest on park began between K and J & Steven note, principal to- balance of Babbidge negotia- K. & Associates. These gether its lien on with foreclosure of through tions fell in December 1982. Later money judg- park, together awith negotiations began between Bushman’s deficiency resulting from any ment for group Babbidge partic- and without the property, ordering and the sale of the ipation negotiations of J & K. These re- any for reimbursement Shenandoah park Babbidge, sulted ina sale of the or excess of the sale over debt. nominee, 4, closing, January and at Home, additionally, was awarded the 1983, Shenandoah, nominee, Babbidge’s be- Inc., A-l sum as was awarded same park. came the title holder of the Bushman, attorney’s fees and for its expenses. and pay- The sale was consummated $135,000.00 cash, ment of the execution Family Development awarded 5. was of a six-months second lien for against judgment $135,000.00 K, payable note for to J & $155,240.32 through August on its note simultaneously which endorsed to 1984, 1, pre-judgment together with Family Development, assumption and the post-judgment interest on bal- $830,000.00 by Shenandoah of the note to $135,000.00note. Addition- ance of its Home. ally, Family foreclosure was awarded money judgment of its lien and a closing, time Some after after Shen- deficiency any occupied property, andoah difficulties sale, resulting and likewise from the parties resulting arose between the ordering payment of excess suit, filing K suit. Prior to the J & from the sale to Shenandoah. however, received bankruptcy; filed for before the judgment case, Family was also awarded stay trial of the the automatic afford- attorney’s for its against Shenandoah bankruptcy filing, K ed J & $179,603.00, together with fees of lifted the Federal Court.

475 1954, $52,325.14, 321, expenses (Tex.Civ.App. the addi- Antonio 322 — San Boyter $13,- ref’d). $27,000.00 This court in set out tional writ sums 500.00, $5,000.00 prerequisites granting to the of re together with $2,500.00 respectively attorney’s scission: expenses

fees in the event equitable remedy To be entitled to the appeal. rescission, however, party must (1) that was awarded he and the other 6. Shenandoah show either i.e., quo, status rescinding: party K are in the that he J & retaining benefits received under (a) park. Sale of mobile home the instrument without restoration (b) personalty certain Sale of contem- State, Texas Co. v. Tex. party, 154 poraneously made with sale of the (1955); Freyer v. 91 S.W.2d park. Michels, (Tex.Civ. 559, 562 (c) Assignment of certain leases cou- dism’d), (2) App. writ — Dallas pled park. with the sale of the special equitable that there are consider (d) Assignment coupled of warranties par the need for the ations that obviate park. the sale of quo, v. ties to be in the status Turner (e) K, agreement An Bill between Corp., Agricultural Credit Jacobson and Shenandoah. (Tex.Civ.App. [1st Dist.] — Houston and J also 7. Bushman were see also Texas n.r.e.); ref’d post-judgment awarded interest of 10% Employers Insurance Association attorney’s expenses on their fees and Kennedy, Tex. awards. (1940). against 8. Court costs were taxed 80% Boyter, 673 at 941. and K. Shenandoah J & 20% complains that the court’s up give prop- it the requiring to SHENANDOAH’S CLAIMS assump- to on the erty, pay but to continue point Shenandoah’s first of error com- lien and to agreement tion of the first note by plains granting trial court erred the par- pay the lien note constitutes a second partial park sale of rescission the the tial rescission. rescission, by plac- instead of full and not $270,000 re- down-payment of A ing parties quo, all the status be- the January purchase the Park. On quired rescission, partial recognized un- cause not $135,- 1983, paid 4, closing, at law, group Texas leaves der the Bushman signed promissory note 000 in cash and a all with the benefits of the transaction. lien by to J K secured a second payable argues that the rescission is unconditionally in which it deed of trust requires complete because it still Shen- $135,000. The pay J & K promised to pay andoah evidenced specifically lien of trust states second deed lien assumption agreement and the second “represents portion of the that the noté $135,000. promissory note for purchase of the ... consideration deed. property” described Simulta- RESCISSION note neously closing, second lien K, stating that it did equitable endorsed remedy an that was Rescission is transfer, “sell, assign set over grounds, granted upon such may be certain securing liens together note with all Boyter v. MCR Construction within fraud. re- Family Development” with Co., 938, (Tex.App. same 673 S.W.2d — Dallas granted the n.r.e.). the trial court pur When The defrauded course. writ ref’d property sale of the put an whether he will rescission election chaser Shenandoah, should have cancelled Shen- or it damages, keep property recover lien second on the indebtedness property andoah’s the sale return rescind status parties to note, to return recovering parted he has value while This at 941. quo. Boyter, See 673 S.W.2d Hightower, 268 S.W.2d O’Con v. with. Corp., part lien is an indivisible of the contract for 601 S.W.2d 65 (Tex.Civ.App.— purchase Park; of the the rescission n.r.e.). Houston writ ref d [1st Dist.] without cancellation of the note constitutes We hold that the properly trial court con prohibited “partial Raney, rescission.” sidered the circumstances of this case and Having S.W.2d at 534. elected to sue equitable found it was require more not to rescission, Shenandoah should have re- Shenandoah to return to J & K the rental O’Con, parted covered the value it with. payments and other monies obtained while 268 S.W.2d at 322. it was in control property. of the payment addition to the cash and the granted The trial court re- Shenandoah’s note, execution of the second lien Shenan quest equitable rescission; for the relief of unpaid doah assumed the balance of the therefore, follows, dictates, equity original lien first note the amount of that the Shenandoah should be returned to $830,000.00, part as a of the consideration quo status requiring J & K to Generally, assumption of the sale. return agreement pur- sales rescinded agreement conveyance in a deed of creates $135,000.00, money chase in the sum of a new contract under making which the one $135,000, cancelling the second lien note of assumption principal becomes the obli- by cancelling assumption gor original and the maker becomes the agreement original of the loan. Shenan- Brooks, Straus v. surety. 136 Tex. granted. doah’s first of error is (Tex.Com.App.1941). point of Shenandoah frames its second agreement The is an unconditional contract error as follows: itself; promise within an unconditional Barber pay being finding by There See v. Federal Land the debt. the trial Bank, (Tex.Civ.App.— judgment required by the one final law Texarkana groundless ref’d this action was own, promisor faith, has made the debt his has brought brought for the bad primarily discharge, become liable for its harassment, purpose of the trial court independent duty and has assumed an rendering judgment erred in payment, irrespective liability Shenandoah for the Defendants’ attor- Id. principal However, debtor. when the ney’s fees and court costs. assumption agreement part of an is a of giving action The facts rise to this cause of underlying the consideration of the con amendment ot occurred after the 1979 tract, the cancellation and rescission of the 17.50(c) Deceptive Trade of the Texas § underlying contract creates a demand that states: Practices Act which equity performed by cancelling be the as (c) finding by that an On a the court sumption agreement. equitable When the ground- action under this section was original granted relief of rescission is the faith, in or brought less and bad must be restored. See parties status of the harass- brought purposes for the of State, 494, Texas Co. v. 154 Tex. 281 S.W. ment, the de- the court shall award 83, (1955); 941; Boyter, 2d 91 673 S.W.2d necessary at- fendant reasonable Green, 390, Proctor v. 673 393 S.W.2d torney’s fees and court costs. 1984, (Tex.App. no [1st Dist.] — Houston 17.50(c) ANN. TEX.BUS. & COM.CODE writ). § (Vernon Supp.1986). recognized exception rule is A to this amendment, the courts 1979 Prior to the purchaser the terminates the con when 17.50(c) to consistently construed section cir tract and the court has examined the finding faith or require jury of bad a it would cumstances and determined that finding ground- harassment and a court of equitable grant the recission be more Services, Computer Business lessness. complete partial restoration without the or West, 759, (Tex.App. 761 Inc. v. 627 S.W.2d pur received the of the consideration n.r.e.); Brunstet 1981, ref’d —Tyler possession purchased in chaser while (Tex. Southern, 560 ter v. 941; 619 S.W.2d Boyter, 673 S.W.2d at item. See n.r. writ ref’d Agricultural Civ.App. Antonio Turner v. Houston Credit —San

477 counterclaims, including repre e.); Distributors, actions and Inc. v. First Na Genico Bank, (Tex.Civ. levels, appellate 420 court tional sentation at various n.r.e.). App. writ ref’d separate a shall be tried to the court in — Texarkana However, Schott, in Leissner v. 668 S.W.2d trial, trial the court.” such to be set (Tex.1984) arising the a case after added). a (emphasis trial was held Such amendment, jury no violation of found fees, attorney’s court of on the issue Act, but did Deceptive Trade Practice therefore, re failed to since Shenandoah brought in bad faith find that the suit was any findings quest of fact or conclusions of The trial purposes of harassment. and for separate attorney’s law on the fees trial to attorney’s fees be court refused to award judge, judgment implies the trial court did find the suit to be cause the necessary fact-findings support of all appeal, Ap of groundless. the Court On judgment. Properties, Rosestone Inc. v. amended act to allow peals construed the Schliemann, (Tex.App. (a) harassment, finding on a of fees based Antonio writ ref’d —San (b) finding ground suit a attorney's trial court did award fees brought less bad faith. Because findings judgment. All of fact and conclu harassment, jury finding a there was necessary uphold the attor sions law attorney’s Appeals awarded fees. Court of ney's fees award are therefore deemed Supreme Court, the Court On review sec judgment. favor of the Shenandoah’s upheld, although Appeals decision was point ond of error is overruled. Supreme declined to decide the Court six, of error number Appeals question of whether the Court of testimony by expert wit complains that interpretation in its that issues was correct pre a ness far exceeded the boundaries of for faith and harassment are bad order, expert’s testi trial which limited the jury, reserved on the issue of attorney’s and the mony to reasonable fees 17.50(c)requires the whether section damages. amount of Shenandoah asserts necessary findings. court to make all the because, prejudicial that the Likewise, Ford, Inc. Wickersham Or order, contrary the witness court’s (Tex. County, ange freely concerning the reliance of testified 1985, writ), App. an award — Beaumont documents, proper parties on certain attorney’s solely jury fees based closing, lack of certain upheld. finding harassment was In the documents bar, closing, generally ac specifically case did find documents at at appel- all cepted interpretation suits documents brought in faith and for the meanings, attorney lees were bad their whether the purpose Under Leissner v. of harassment. propriety, and the Shenandoah acted Schott, jury finding a of 668 S.W.2d at 686 Eth interpreted Canons of witness also enough a to entitle harassment alone of only a of areas ics. These were few attorney’s of fees defendant to an award testified. We dispute on which the witness 17.50(c). under section general proposition that mindful of the are admissibility of of the determination Furthermore, argu as to Shenandoah’s testimony within the is matter opinion attorney’s improperly ment fees were court, which of the trial sound discretion awarded, findings of fact and conclusions appeal on absent a will be disturbed concerning attorney’s the award of of law UMC, v. showing abuse. Inc. Coonrod of entered. requested neither nor fees were 549, (Tex.App. Co., 559 667 Electric S.W.2d argues not re was n.r.e.). 1983, ref’d —Corpus writ Christi request findings quired of fact con However, opinion we are of by jury. since the was clusions law complexity of the case before However, light of the Ordinarily is correct. this par testimony of this us, admission attorneys agreed to an order parties and all witness, of the limita far excess ticular fact issues of reasonable that “the by trial court’s placed upon him the tions attorney’s expenses in necessary fees order, highly prejudicial defending pretrial these prosecuting curred 478 the trial court abused its writ); discretion ad see also Pouncy Garner, v. 626 mitting such testimony. Appellee argues 337, S.W.2d 344 (Tex.App. Tyler 1981, — correctly improper giv that if the evidence n.r.e.). writ ref’d en supported the witness is by other present case, In the the trial court en- case, evidence in the admitted without ob tered an interlocutory default jection, effect, or of the same character or against J & K defendants, and the other complaining par adduced or elicited (1) November which: rescinded Walls, ty, harmless, Drake v. the error is contract; (2) sales general set aside the 62, 348 (Tex.Civ.App. S.W.2d — Dallas warranty deed sale; (3) and bill of can- 1961, n.r.e.); see Missouri-Kan writ ref d celled the promissory note and Shelton,

sas-Texas Railroad v. Co. trust; second lien (4) deed of cancelled the 842, 848 (Tex.Civ.App. — Dallas assumption agreement; (5) ordered 1964, n.r.e.), cert. denied 382 Shenandoah to reconvey the property writ ref’d U.S. (1965); 86 S.Ct. 15 L.Ed.2d 85 “upon defendants receipt of the restitu- City Wise, Houston v. Howe & tion and incidental damages hereafter or- (Tex.Civ.App. — Houston paid Plaintiff, dered to be by this Court.” n.r.e.). writ ref d See Richardson v. The court stated hearing that a would be Green, (Tex.1984); 677 S.W.2d Co held to determine the damages amount of International, lumbia Engineering Ltd. paid to be Clearly, Shenandoah. Dorman, (Tex.Civ. interlocutory judgment only default deter- App. ref’d — Beaumont mined liability Shenandoah; J & K’s However, appellee pointed has not out to damages issue of was not answered. evidence, this court properly what other Therefore, given J & should have been admitted, justify would finding that the notice of taking depositions since it harmless, of this witness was party is a to the suit in which and we decline to search thirty eight yet were to be determined. hundred pages of testimony attempt K objects to the admission of the find such Appellant’s other evidence. sixth deposition testimony Brindle, of Steve Stan- point of error is sustained. Black, ley Stephen Babbidge, Michael Jack- son, (The and Geno Olivas. deposi- J & K’s CLAIMS tions cited J & K in its brief were never KJ & first contends that the trial court and, therefore, read into evidence are not by admitting evidence, erred deposi- into crucial.) trial, depositions At of Jack- tions that were taken without notice Jto & son and Olivas were read into the record K. only given Notice was to A-l. asserting without J & K objec- its notice 200(2) Texas Rule of Civil Procedure tion. deposition After half of Brindle’s had states the requirements notice for an oral record, presented been read into the KJ & deposition: objection for lack of notice. The trial 2. Notice Examination: General objection ruled that the untimely Requirements; Deposition Notice as it applied depositions that had Organization. already record, been read into the but stat- a. Reasonable notice must be served ed:

in writing by party, attorney, the or his objection The insofar as it relates to proposing deposition upon to take a oral depositions prove use of liability and examination, every party or his damages not is overruled inasmuch as at record_ attorney taken, depositions the time the were lia- [Emphasis parties bility When other are by had been determined default added.] given deposition, not judgment against notice of the an “ex Properties, J & K In- parte” deposition is not admissible. See corporated, and when the vacated Court Buster, Reilly v. interlocutory 125 Tex. judgment day default the Adams, (1935); Woodall Proper- S.W. before trial commenced J K& ties, (Tex.Civ.App. 2d Incorporated, withdrew its motion —Galveston continuance, determining damages objec- proper have been after for would which retaking by deposi- K. and proper remedy the to allow the tion J & Brindle Black’s damaging depositions. tion to J & as it presented workmanship evidence of bad objection insofar it relates As as supports improper bookkeeping and that portions thereof depositions or to use of damages. request for yet jury and insofar not read before issue of as relate to the they Having made the determination that this Incorporated, Properties, KJ & deposition testimony improperly admit- under advisement takes that Court ted, K, being notice to J & absent it and will make a decision and carries such unable to conclude that admission was later on that issue. error, K’s first harmless we sustain J & preserved your objection on the You’ve error. read, portions yet any to all record as The court is re- objec- portion your will read over read be versed, for a and the cause remanded tion, If your motion to strike. over new trial. correct, you that are Court determines STEPHENS, Before STEWART necessary such as later will take action ROW1, JJ. prevent or after the verdict to the trial damages. respect harm REHEARING ON MOTION FOR ruling made further on the The court STEWART, Justice. depositions they re- admissibility damages. late to issue of rehearing filed grant We motion Association, Savings Family De- by Home re-urged objection to the re- J K A-l, Inc., velopment Corporation, and John deposition and to the mainder of Brindle’s (the group). deny Bushman We Bushman depositions Upon Babbidge. of Black and rehearing by J & K the motion for filed depositions reviewing the admit- that were (J K), Properties, deny Inc. & and we objection ted into evidence without rehearing filed motion for Shenandoah objection, those that were admitted over we (Shenandoah). Accordingly, we damaging find that Associates evidence was admitted judgment and set our former enter before is not “offset” aside opinion. with this deposition testimony. judgment in accordance properly admitted Richardson, (eg. See 677 S.W.2d at 501. originally & K and Shenandoah sued J defectively built Brindle had testified about (Home),alleging Savings Home Association septic objection, and tanks before the con- contract, misrepresentations, de- breach of testify concerning tinued various other ceptive practices, breaches of warran- trade objection. septic after the defective tanks ty, & K the construction and fraud describe defective Brindle then went on to park to Shenan- of a mobile home sale he water Black testified that was lines. in relation to the as- doah and Home maintenance, rent, charge collecting sumption agreement between leasing. receipt rent He stated that the Home, whereby assumed J accurate; “moderately” books were park. on the Later & K’s indebtedness properly attached lines were not water Family added as defendants faucets; great dan- and there was a at A-l, (Family), Corporation Development main,” “breaking ger of lines off at (A-l), By amend- and John Bushman. Inc. repairs cut water to be off causing the a suit for petition, Shenandoah added ed fault.) due to “several times” all defendants. conspiracy against five civil for at- group counterclaimed portion Bushman remaining We hold grounds torneys’ costs on fees and court deposition deposition and Black’s Brindle’s practic- deceptive trade that Shenandoah’s purposes for improperly were admitted participated in Gordon Rowe Hollingsworth, The Honorable Cynthia Jus- The 1. Honorable tice, rehearing. opinion the former in the results of on concurred opinion prior to the end her term. against groundless es claim Babbidge, nominee, them was and or its and at closing, brought or brought pur- bad faith for January Shenandoah, Babbidge’s poses addition, In nominee, harassment. Home became the title holder of the sued judgment for and park. foreclosure of lien The sale was by consummated under the note and deed of trust assumed payment $135,000 cash, the execution by Shenandoah, Family sued for the and Shenandoah of a six-months’ second lien same relief lien under second note exe- $135,000 K, note for payable to J & which J closing. cuted Shenandoah at After a K simultaneously & Family, endorsed to weeks, trial of the trial several court and assumption by Shenandoah of the rescinding judgment entered its the sale of $830,000 note to Home. Shenandoah, park yet from K to J & closing, Sometime after and after Shen- charging liability Shenandoah with for the occupied andoah property, difficulties unpaid the first and balances of second arose resulting between parties in this mortgages, by Home Family, held and re- suit, suit. filing Prior to the J K& awarding spectively, attorney’s fees however, filed for bankruptcy; before the against to Home and Family Shenandoah case, trial of stay automatic afford- on respective their notes and to A-l and ed bankruptcy filing J & K by the was having brought John Bushman for its suit only annulled the federal as to purposes bad faith and for of harass- against Shenandoah’s of action causes ment them. K. appeal, presents On twelve points of error for consideration. our TRIAL JUDGMENT COURT’S Properties, Inc., co-appellant, presents judgment para- final court’s error, points Savings seven and Home phrased as follows: presents cross-point. Association one We 1. nothing Shenandoah received a take agree with error A-l, Home, judgment Family, as to number four and reverse the trial court’s and Bushman. expenses award of group. Bushman judgment against 2. A-l was awarded In all respects, the trial judg- court’s (a) attorney’s Shenandoah for: fees of ment is affirmed. $173,003, $10,852.81; expenses (b) if court, appealed to this an additional CHRONOLOGY OF FACTS $27,000 fees, attorney’s and an addi- legal J & K held title to the $5,000 (c) expenses; tional ap- if park, mobile home encumbered a first Court, pealed Supreme to the Texas $830,000 mortgage of in favor of Home. fees, $13,500 attorney’s additional as guaranteed by This note was Bill J. Jacob- expenses. and an as additional son, president Coupled of J & K. with the 3. Bushman awarded the same loan, granted J & K had an exclusive sales judgment against Shenandoah as was Family contract to for park. sale of the At A-l. transaction, the time of this John Bushman judgment 4. Home awarded A-l, solely owned Home and Home $893,047.35, for Family. was the sole owner of principal the sum and inter- due on 1982,negotiations Later in for the sale of through August est of its note park began between J & K and Steven together post- prejudgment Babbidge (Babbidge). K. & Associates principal on the interest bal- negotiations through These fell in Decem- note, together ance of the with fore- ber 1982. park, together closure of its lien Home, negotiations began any defi- money judgment Later between with a A-l, broker, K, through ciency from the sale of the resulting and J & Fami- property, ordering reimbursement ly, Babbidge, partic- but without the ipation negotia- excess of the of John Bushman. These park sale tions resulted in a sale of the over debt. rescission,

Home, plac- of the instead full and not additionally, was awarded ing quo, as A-l and all in the be- parties same sum was awarded the status rescission, attorney’s partial recognized for and un- Bushman its fees cause not $48,- expenses law, group received appellate but der Texas the leaves Bushman expenses in the trial court. 825.14 for of with all benefits the transaction. the argues that rescission Shenandoah the Family judgment 5. was awarded complete not the still $155,240.32 judgment because against Shenandoah for $830,000 requires pay evi- to- August through note and assumption agreement and denced post- the gether prejudgment with $135,- promissory of its the note for on the balance second lien judgment interest $135,000 Additionally, Family note. 000. itsof lien and awarded foreclosure deciding point, we purposes For of this money judgment against Shenandoah assume, deciding, the without resulting any deficiency from the for properly conveyance rescinded the of sale, judgment the or- likewise K park title to the from J & to Shenandoah. payment of re- dered the excess agree as be- We with Shenandoah that from sale to Shenandoah. ceived the rescission, K, upon it it tween and J & this Family judgment was also awarded the it is entitled to recover all consideration attorney’s against Shenandoah for However, not paid park. for it does the $179,603,together with its ex- fees is enti- necessarily follow $52,325.14, and the addition- penses liability of its tled to cancellation $13,500, $27,000 togeth- al sums of agree- assumption lien first note under $5,000 $2,500 respectively er with and Home cancella- ment between it nor to attorney’s expenses fees and in the $135,000 tion of lien note for the second appeal. of an event by Family. We will each held address A-l, Home, Bushman, Family 6. separately. the notes were awarded their taxable costs of court. Lien The First Note 7. Shenandoah was awarded case, In as we have a written against rescinding: J & K grant- sumption agreement executed (a) park. Sale of home the mobile or, grantee, When and the creditor. (b) personalty Sale of contem- certain unpaid balance of Shenandoah assumed poraneously the sale made with original first lien note the amount park. that it part of the consideration as (c) Assignment cou- of certain leases conveyance sale and gave to J K for & pled park. with sale of the Shenandoah, effect, park, held back (d) Assignment coupled of warranties portion consideration which was of the park. the sale purchase price. It due Home from (e) K, agreement An & Bill between J pay Home holder of undertook to Jacobson, and Shenandoah. K, note, J & but in order to benefit 8. Bushman A-l were also awarded Home discharge incumbrance which percent post-judgment interest of purchased. against property being held expenses attorney’s on their fees Hoeldtke, Tex. 142 S.W. Hill

awards. pay (1912). obligating itself percent Home, it obligating costs 9. Court taxed Shenandoah was not were rather, percent K; pay Shenandoah and self to a debt it owed & obligating pay debt to J J & K. itself creditor, Home, Home and when K’s SHENANDOAH’S CLAIMS accept K to agreed with J & note, be promise pay the error com- point of Shenandoah’s first and J principal debtor on the note by granting came erred plains that trial court surety for the debt. park & became a rescission sale partial 482 873,142

Id. at arrangement S.W. 871. The Civ.App. writ). no In that —Dallas embraced all binding the elements of a case, separate assumption agreement contract. There was valuable considera- original released the makers of the note. tion mutuality obligation. Shenan- case, In this K, Home did not release J & longer K; doah was no a debtor of J & we do not but consider the release of the rather, it was a debtor of Home. KJ & original maker as critical holding against has no cause of action Village, Presidential because the court on the note pay unless Shenandoah fails to part there language relied from Hill Home, only upon principle and then v. Hoeldtke. The Presidential surety may that the recover from the debt- Village following quotation set forth the or compelled whose debt he has been to from the Hill case: pay. Id. In those cases where it is held if the Thus, assumption agreement created mortgagee has in some manner acted separate a unconditional contract within it- upon promise grantee of the that Brooks, self. 141, 146, Straus v. 136 Tex. liability fixed, of the latter becomes it is 396 (Tex.Com.App.1941). not claimed that this action must be such Shenandoah made the debt its own and as would create an estoppel against the independent assumed an duty payment, grantee. It seems to be sufficient if it is irrespective of liability original such as to acceptance evince an or an debtor, J & K. Barber v. Federal Land adoption promise mortgag- Bank, 204 (Tex.Civ.App.— ee. Texarkana writ ref d 336, (quoting Hoeldtke, Id. at Hill v. Nevertheless, Shenandoah con 874-75). Here, S.W. at clearly Home ex- tends that misrepresenta because J & K’s hibited assumption its execution of the tions warranty justified and/or breaches of agreement acceptance of Shenandoah’s sale, rescission of the it should not be liable promise pay the note at issue. It fur- assumption agreement. under the This ther relied and acted on Shenandoah’s as- might argument be a valid if Shenandoah sumption (1) by: of J K’s& indebtedness findings had obtained affirmative on its waiving Home’s due-on-sale clause in the allegations conspiracy or at least con (2) note and forebearing to exercise its certed action KJ & and the Bushman right admittedly to enforce the delinquent group inducing purchase K, original obligor, note J & property. However, jury found to guarantors. and its the contrary. While it is true that Accordingly, we hold that Shenandoah lender’s legal actionable fraud constitutes a rely grounds against cannot on its J & K basis for the borrower’s avoidance of the for rescission of the sale as a defense transaction, Turner Agri v. Houston liability to Home on the first Corp., cultural Credit reasons, lien note. For the above we fur- (Tex.Civ.App. [1st Dist.] — Houston assumption agreement ther hold that the n.r.e.), writ ref’d in this case exon separate from divisible the sale misrepre erated Home from actionable transaction. sentation, fraud, warranty, breach of or deceptive practice in trade either the sale The Second Lien Note financing park. We have found down-payment A re- authority holding original that the quired purchase park. January On may debtor’s fraud used as a be defense to closing, $135,- paid at assumptor’s liability on a note in the signed 000 in cash promissory a note any wrongdoing by absence the creditor. payable to K J & secured a second lien contrary, To the this court has held that park deed of trust on the it uncon- any alleged original fraud of the which maker is promised $135,000. assumptor’s ditionally pay liability defense to the specifically on a note. The second lien Village, Presidential Ltd. v. deed trust Co., (Tex. Lone “represents portion Star Gas S.W.2d 335 states that the note purchase Although attempted ... the of to of the consideration for knowledge prove Family or property” in the deed. that had of had the described misrepresentation, closing, participated in some Simultaneously with the second K, that, fraud, practice stating deceptive lien or trade note was endorsed 3.305(b)(3), transfer, meaning “sell, assign of section and set within the that it did in deprived it of as a holder due together note with all liens treatment over the within course, Family Family Development” jury found innocent securing same to is grant any wrongdoing. We conclude there no the trial court with recourse. When as proper denying Family basis for treatment a ed of the sale the rescission Consequently, in due Shen that it should holder course. ty, maintains to J & K liability andoah’s defenses have cancelled Shenandoah’s indebtedness urged Fami par liability to defeat to return the cannot be on the second lien note to quo. Boyter v. MCR Id. ly. ties to the status Co., 938, 941 Construction 673 S.W.2d foregoing For all reasons we hold n.r.e.).

(Tex.App.—Dallas writ ref’d 1984 granted judg- properly that Family ment for hand, to Home and debt and argues Family the other On respective lien their value, foreclosure of took second-lien note for it notes. Shenandoah’s first of error is good faith, in and without notice it overruled. had dishonored or of was overdue or been against or claim to it on the defense point of Shenandoah frames its second and, part any person consequently, is error follows: as in a holder due course. TEX.BUS.COM. being finding by no trial court There 3.302(a) 1968) (Tex. (Vernon CODE ANN. § required by judgment one final law UCC). Every presumed note holder groundless this and action a be holder due course of instrument faith, brought for the brought bad or Jonwilco, contrary. absent evidence harassment, purpose of the trial court Services,

Inc. v. C.I.T. Financial 662 S.W. rendering erred 664, (Tex.App.—Houston 2d 666 [14th Defendants’ attor- 1983, writ); Yaffe, Favors 605 no Dist.] ney’s fees and court costs. (Tex.Civ.App.—Houston giving rise to cause of action facts writ ref’d [14th Dist.] after the 1979 amendment sec- occurred 3.305 of the Texas Business and Section 17.50(c) Deceptive Trade tion of the Texas pertinent part: Commerce Code states in Act, which states: Practices To is holder in the extent that a holder a an finding a the court that ac- On free due course he takes the instrument groundless tion under this section was from faith, brought brought or in bad and harassment, the court purposes

(b) the in- any party all defenses reasonable award the defendant shall has not with whom the holder necessary attorneys’ strument fees and court and except dealt costs. 17.50(c) ANN. &

TEX.BUS. COM.CODE § (Vernon Supp.1986). (2) transac- illegality of the such ...

tion, obligation of the as renders amendment, Prior to the 1979 nullity; party 17.- consistently construed section courts (3) misrepresentation has in- such 50(c) finding of faith require bad sign party instrument duced finding of a court or harassment knowledge nor reasonable neither Computer Business Ser groundlessness. knowledge of its opportunity to obtain West, vices, Inc. v. 627 S.W.2d or its essential terms. character n.r.e.); ref’d (Tex.App.—Tyler Southern, 3.305 Brunstetter v. ANN. TEX.BUS. COM.CODE § 1981, writ Antonio 1968) (Tex.Civ.App.—San (Vernon (Tex.UCC). n.r.e.); parties attorneys agreed all Distributors, ref’d Genico Inc. v. Bank, order that “the First fact issues reasonable National (Tex.Civ.App. necessary expenses fees attorney’s writ ref’d — Texarkana n.r.e.). However, Schott, in prosecuting defending Leissner v. incurred these (Tex.1984), 668 S.W.2d 686 arising a case counterclaims, including repre actions amendment, after the 1979 the jury found levels, appellate court sentation at various Deceptive violation of the Trade Practic separate shall be tried to the court in a Act, es did but find that the suit was trial, court.” such trial to be set brought purposes in bad faith and for (Emphasis added.) held Such a trial was harassment. The trial court refused to fees; attorney’s by the court on the issue of attorney’s award fees because the court did therefore, to re since Shenandoah failed groundless. not find the suit to be On quest any findings or conclusions of of fact appeal, appeals the court of construed the trial to separate attorney’s law on the fees (a) amended act to allow fees based on a implies judge, the trial court finding harassment, (b) finding a that necessary fact-findings support in of its all groundless brought the suit was in bad judgment. Properties, Inc. v. Rosestone jury finding faith. Because there was a Schliemann, (Tex.App. harassment, appeals the court of awarded n.r.e.). The —San Antonio writ ref’d attorney’s supreme fees. On review the attorney’s did in its trial court award fees court, appeals the court of decision was judgment. findings All of fact and conclu upheld, although supreme court de uphold attor necessary sions of law question clined to decide the of whether the in ney’s fees are therefore deemed award appeals court of interpre was correct in its sec judgment. favor of the tation that issues of bad faith and harass point ond of error is overruled. jury ment are for judg and reserved ment on the issue of whether section 17.- error, In its third 50(c) requires the trial court to make all that erred in admit contends the trial court Likewise, necessary findings. in Wick ting lengthy regarding filing of a evidence Ford, Orange ersham County, Inc. v. partnership, permitting in certificate of (Tex.App. — Beaumont lengthy argument prejudicial about its 1985, writ), attorney’s an award of fees nominee, legality charging as the and in solely jury finding based on a of harass expenses investigation question to bar, upheld. ment was In the case at specifically in judgment. did find that Shenandoah’s Shenandoah appellees brought suits all were in parties pleaded that states that because all purpose bad faith and for the of harass partnership, it was a it had no burden Schott, ment. Under Leissner v. 668 S.W. fact, prove Maryland that Casu Lafield finding 2d at a jury of harassment Co., 119 Tex. alty enough alone is to entitle a defendant to an (1930), partner and its existence as a attorney’s award of fees under section 17.- Thus, ship at issue. it was therefore not 50(c). in trial court erred allow contends that the that a

ing lengthy to establish not partnership had certificate of limited Furthermore, as to Shenandoah’s Texas; in or in been recorded California argument attorney’s fees were im testify that permitting Bushman to awarded, properly findings of fact and con if he had made a difference would have concerning clusions of law the award of filed; had been known no certificate attorney’s requested fees were neither nor group some allowing the Bushman argues entered. Shenandoah that it was investigation to deter required request findings expenses for an of fact and had filed conclusions of law since the trial was mine that no certificate been However, jury. Ordinarily witness, Soni, this is correct. Jay and for a California would taken care office staff have testify; per- so attend the trial and filing supervision. under his mitting group’s attorney to the Bushman argue nonregistration the cer- about the August 6, 1984 On redirect examina- tificate, great prejudice all to the of Shen- tion, duty his Opdahl testifies it was andoah. general partner supervise and be responsible filing part- of limited group notes reply, Bushman proper nership certificates with author- they refer to Shenan- in their counterclaim he in normal ities and that received partnership” doah as “California report his course of duties wheth- “general part- Babbidge as Opdahl and filed. Imme- er or not certificate was They whether Shen- ners.” maintain that thereafter, plaintiff rested. diately limited its certificate of andoah had filed contested; vigorously partnership was August 1984 Defendants’ witness J. answer, in their in their amended both third Soni testified on direct examination special and in their deni- plea in abatement partner- no certificate of limited als, Shenan- they denied the existence of ship had been filed in Angeles Los partnership and its California, doah as a valid limited County, the county where By pleadings, legal capacity required to sue. such statute filing. such placed they argue that the burden was 15, examina- August 1984 On redirect prove proper formation Babbidge tion, he and Opdahl testified legal under California law. and existence part- into the Shenandoah had entered 1,1982,” evi- as nership “by December burden, attempting meet Shen- 19, and plaintiff’s exhibit denced testimony andoah offered the of one of its a formal into subsequently entered general partners, Gary Opdahl, and intro- partnership agreement limited duced into evidence its of limited certificate 3/12/83, 263, signed ex. (plaintiff’s partnership. In order to Shenan- address clos- months after the more than two point, chronology of doah’s third certifi- ing) support plaintiff’s of” “in testimony regard evidence with Opdahl partnership. of limited cate issue must be summarized: testify over permitted was further 4, 1983, on January objection that on 31,1984 July Testifying on exam- direct 1983, 20, the time of and at October ination, proves up part- Opdahl limited trial, plaintiff’s cer- he “believed” nership certificate and testifies same Ange- filed in the Los tificate had been Angeles County, filed Los in Cali- records, only he found County but les fornia, plain- resulting in admission during the course out otherwise partnership certificate of limited tiff’s trial. plaintiff’s exhibit 19. into evidence summary, we conclude From this cross-examination, August 1984 On conflicting testimony placed Opdahl’s Opdahl testifies that between Decem- ques and raised fact credibility in issue his 3, 1983, January he ber group tions, entitling the Bushman thereby forming nothing, did “other than allegations and disprove Shenandoah’s proper- partnership,” syndicate they presented testimony when Opdahl’s ty- Further, Shenandoah their case-in-chief. Soni’s objection to any waived cross-examination, August On to elicit proceeding on cross-examination Opdahl know admits he does not required to him that Shenandoah from knowledge” where certifi- “personal County Angeles in Los filed, file its certificate filing if if anywhere, or cate was during filed certificate was that no say his paid, only but can fee was 1982 or periods. relevant time 3. Home Missouri-Kansas-Texas Railroads Co. (trial court) $48,825.14 Shelton, (Tex.Civ. (court appeals) 5,000.00 court) (supreme 2,500.00 App.-Dallas n.r.e.), writ ref’d cert. denied, 4. Family 382 U.S. 86 S.Ct. 15 L.Ed. (1965). 2d 85 We hold that the trial court (trial court) $52,325.14 (court appeals) 5,000.00 did not err in admitting testimony about court) (supreme 2,500.00 non-recording of the certificate of limit partnership. ed A-l, Additionally, the court awarded Bush- man, Home, Family their “taxable complains Shenandoah also un costs of court.” der this that the trial court erred allowing the group’s attorney Bushman “to We first address the awards for argue great length prejudicially at expenses appellate courts. We have non-registration certificate, over the of a authority supporting found no an award of closing arguments.” his We have read the expenses charges based on an estimate of portion argument about which Shen may appeal be incurred of a complains andoah find that Shenan case, group and the Bushman have cited object doah failed to in the trial court to Further, none. there is no evidence statement made the Bushman anticipa record to show the nature of the group’s attorney at that time. im Before Thus, expenses appeal. ted we sustain proper argument can constitute reversible point Shenandoah’s fourth error, as to the complainant prove must seven A-l, Bushman, Home, amounts awarded to factors, error, the third of which is that if Family expenses for in the court of any, preserved by proper predi appeals supreme and in the cate, court. objection, such as an a motion to instruct, or a motion for mistrial. Stan Reese, dard Fire Insurance Co. v. 584 We now consider the awards 835, (Tex.1979). S.W.2d 839 expenses for incurred in the trial court. has any may waived error that it have had Shenandoah many claims that of the items based on its contention that the trial court included expenses under trial court are not improper argument. allowed they recoverable because consist of ex Finally, complains of the tri- penses preparation for trial. It is the expenses al court’s allowance of general rule in expenses Texas that in group investigating Bushman for whether prosecuting defending curred or a suit certificate had been filed California are not recoverable as costs or expenses and for witness to attend trial. recovery unless expressly of those items is portion point This of three will be discussed provided statute, for is available under four; otherwise, point under equitable principles, Phillips Wertz, v. 579 point

third is overruled. 279, S.W.2d 280 (Tex.Civ.App. — Dallas 1979, n.r.e.), expressly pro writ ref’d or is complains in its fourth vided for contract. Berts v. Busines awarding that the trial court erred in Services, Inc., speople Personnel 620 S.W. group expenses Bushman not taxable 861, 1981, 2d (Tex.Civ.App. 863 no — Dallas allowable law. The trial court writ). applies litigant’s This rule ato loss following expenses: made the awards for of time and employees. that of his Id. Defendant Expenses apply The rule has also been held to to a 1. A-l premium replevy for a bond and to travel (trial court) $10,852.81 ing expenses prosecuting incident to or de (court appeals) of 5,000.00 suit, fending Brandtjen Kluge v. Man court) (supreme 2,500.00 609, ney, (Tex.Civ.App.— 238 S.W.2d 612 2. Bushman 1951, n.r.e.); Fort Worth writ ref’d to a (trial court) $10,852.81 bond, premium supersedeas for a Ham- (court appeals) of 5,000.00 Hammonds, 516, monds v. 158 Tex. 518- court) (supreme 2,500.00

487 603, litigation not re- 19, (1958); expenses that are 313 605 to attor are of the Tex- fees, of from Shenandoah under ney’s experts, costs “other coverable trial,” general as rule and authorities cited above: expenses preparation City of 700, services, Express; delivery such as Federal Biggers, 380 S.W.2d 705 Houston v. calls; travel; 1964, long premiums; ref’d distance bond (Tex.Civ.App.—Houston writ n.r.e.); postage; reproduction expense; binding for an who of a fee auditor brief; transcripts rule of appointed by the court under 172 of elicited dur- trial; (75 Procedure, air-conditioning percent ing of Taor office the Texas Rules Civil Culicchia, weekend); of and secretarial overtime. mina v. 355 S.W.2d Paso writ ref 'd n.r. (Tex.Civ.App.—El following We further hold that the e.); deeds, copies Whitley v. to certified categories charges contained in the item (Tex.Civ.App.— King, 581 S.W.2d $10,852.81 recoverable as ization of are 1979, writ); no Fort Worth loss fee, fee, filing reporter court costs: earnings pend- due to time lost because of fees, fees, transcript subpoena/citation suit, required ency of such as time deposition These items total costs. trial, depositions at Phil and attendance $2,808.66 $10,852.81, they are all (Tex.Civ. Latham, lips v. as Because A-l recoverable court costs. n.r.e.), ap App.—Dallas writ ref’d and Bushman are entitled to recover remand, (Tex. peal 551 S.W.2d after $2,808.66 portion judg under that Civ.App.—Waco ref’d awarding their costs of ment them taxable hand, taking expense On the other court and we have found items because item depositions is an of court costs and recoverable, we set that are otherwise properly chargeable as such. Wallace expenses in the trial aside awards Briggs, 162 Tex. $10,852.81 to A-l and Bushman. court of (1961). $48,825.14 The trial court awarded Home cases, foregoing In the the court exam- appar- It is expenses in the trial court. sought charged ined each item to be as judge the that the ent from record arrived court costs or to be recovered as awarding the figure by at Home same individually. items and ruled on the Conse- $10,852.81 he awarded A-l and Bush- that must the quently, separate we examine Fees, man, Expenses” in- plus “Additional up items that make the total amounts by alone. These additional curred Home member of the Bushman awarded each sums, part, expenses in- in consisted of “expenses” group the trial court as of Home for time employees curred they if are under the determine recoverable travel, spent the case and for their hotel on general rule stated above. deposi- in at meals while attendance and charges granted or at the trial. Other were judge The trial its award of ex- tions fees; expense in for for travel for penses to A-l and Bush- consultant the witnesses; legal man, part recovery nonemployee for fees individually, as of their Niestat in grounds Angel firm of under the DTPA on that Shenan- the California investigation of whether groundless relation to the doah’s suit them was faith, its certificate of limit- brought brought or for had filed and in bad Angeles County; Los for partnership & ed in purposes the of harassment. TEX.BUS. Services, 17.50(c). Support charges Legal The of Los prevail- ANN the COM.CODE § California, searching actually Angeles, for ing party this section is entitled under part- if limited necessary attor- the records determine the “reasonable recover and filed and for nership had been Id. Because certificate neys’ fees and court costs.” firm to $10,852.81 expense Jay Soni of that making up award- the of items the the case; testify in the for identical, travel to Texas A-l Bushman are we ed to bankruptcy K’s papers the simultaneously. copies of their awards consider case; deposition for costs. examined the itemizations have We Home ex $10,852.81. The court awarded charges totalling holdWe $830,- in the provisions charges penses on the following categories of based the note and in accompanying the deed of tion” as authorized of the terms $135,000 trust that Shenandoah under second assumed lien note. have al We assumption agreement closing. ready $48,825.14 award, Those held that of at $7,465.05 provide only Thus, instruments holder that the of the recoverable. we only may appropriateness recover address the note all reasonable costs and of the $3,500 extra award expenses specifically argues Family Development. of suit. Home figure appears expenses by Legal That charged Sup- page 2 of Home Exhibit 276 as port attorneys Services Costs/Ex and the California “Estimated penses.” expenses There is no specif- are evidence to show the collection under of any nature provisions expenses costs disagree. ic of its We note. up $3,500. making To the extent charges These were not incurred aid of charges costs, such are Family taxable as Home’s counterclaim for debt and fore- has otherwise been awarded Instead, those on its they closure note. were judgment. We hold under this record that in defending against incurred Shenandoah’s costs/expenses estimated are resulting claims. evidence from the recoverable under the trial court’s investigation California used to attack “expenses as Ac collection.” Opdahl’s credibility and Shenandoah’s ca- $52,- cordingly, we set aside the award pacity partnership prosecute as a limited Family Development expenses 325.14 to suit group, the Bushman court, may in the trial and we hold which Home was a member. $7,465.05 charges recover listed un authority We have found no for “expenses” der under as taxable costs proposition provision that the in a note judgment. trial court’s extent of To the recovery of all “costs and reasonable adjustments, above expenses of anything suit” means other point fourth of error is sustained. expenses than the usual court costs five, point number com- ordinarily general allowed under Texas plains that the trial court re- committed types rule litigation. Home has by allowing parol error versible evidence as none. cited None of the of additional items meaning and intent of rental expense pro sought by fees Home are A-l, agreement between expressly vided statute. None are January which executed on provided for under the terms the note. during closing proper- of the sale of the However, deposition are recovera costs ty. This without merit. Briggs, as court Wallace ble costs. According Tex. at 348 S.W.2d at 523. in its ar is mistaken Shenandoah we ly, may hold that likewise recov Home gument pleadings that there of mis are no er, $10,- costs, $2,808.66 as taxable of the justify parol evi take to the admission of $4,656.39 expenses, plus 852.81 awarded as agreement. dence in relation to the rental deposition costs that were added to its contrary, pleaded To the A-l mis mutual Fees, Expenses” “Additional Home Ex take fact as an to its affirmative defense through testimony, hibit 276 for a total of sign prepared failure to master lease $7,465.05. Further, that no other we hold rental Shenandoah under the terms of the comprising items court ex Home’s trial agreement. and the That issue was tried recoverable; penses consequently, are we mis there was mutual found $48,825.14 aside the to Home as set award A-l fact between take of expenses in the trial court. concerning A-l was money the amount of pay agreement. the rental under Development

Finally, Family was $52,325.14 expenses, granted as trial court Parol evidence is admissible to show $10,852.81 of a mis which included the same award true terms contract when mutual v. Mid- A-l, issue; plus expenses Santos the same additional take or fraud is at ed Co., Refrigerator bring Continent fees the total awarded Home to Sav $48,825.14, and, addition, (Tex.1971); Alkas v. United Family was Association, ings “expenses of collec 672 S.W.2d awarded We overrule Shen- d an abuse of discretion. writ ref (Tex.App. Corpus Christi — contention that the unlisted wit- err in admit andoah’s The trial court did not Shenan not have been allowed to testi- parol evidence of which ness should ting the fifth complains. fy doah at all.

of error is overruled. primary We now address Shenandoah’s point of error

In its sixth point, is that complaint in its sixth which expert wit- testimony by an complains that Barker, allowing erred in the trial court pre- of a the limitation ness far exceeded witness, testify beyond the expert & K’s order, witness’ testi- limited the trial which pretrial order. limits set in the court’s attorney’s of reasonable mony to the areas K provides that J & could That order damages. to the amount of Shen- fees and testimony in its case-in- present Barker’s testimony that this was contends andoah respects: only following chief in the because, contrary court’s prejudicial personal Testimony relating to his 1. order, freely as to the witness testified professional experience, and history, parties, proper documents reliance witness; expert qualifications as an closing, lack of certain documents at for a to the dam- Testimony which relates 2. interpre- closing, generally accepted alleged plaintiff has it has ages which meanings, and their of documents tation to the actions or inactions incurred due attorney not the for Shenan- whether Inc.; and Properties, of J & propriety, and the witness’ doah acted with to the rea- Testimony which relates 3. interpretation of the Canons of Ethics. attorney’s amount of sonableness initially complains liti- in the above referenced fees involved witness, Barker, expert an unlisted do; gation qualified if he is to so and, therefore, should not have witness testify all. Yeldell v. allowed to at been Barker’s testi have reviewed We Nursing Cen- Holiday Hills Retirement & entirety. hold that mony in its We (Tex.1985). Inc., ter, exam testimony J & K on direct elicited that, defend- The court there held because the limitations ination of Barker was within failure good cause for its ant did not show pretrial order. set forth interrogatories to answer to to amend its witness, did not the trial court com- add the that Shenandoah is To the extent refusing to allow its discretion elicited from Bark- plaining abuse testify. Id. group unlisted witness outside the defendant’s byer the Bushman Here, K filed a began, order, first after trial we note scope pretrial any to introduce the testimo- mem- request for leave not directed to that the order is Barker, Second, during presentation ny group. of the Bushman ber signed an or- August The trial 6 that Shenan- case-in-chief. court held on part deny- discovery request granting propounded der doah had not para- one part. pretrial question The court deleted ing question any it in required that stated: disclosure graph of the order have which would preclude the Bushman so as to Barker to the court APPEARING FURTHER calling expert him wit- group as an from timely made request was that said any that then ruled The trial court ness. in its granting of same that pretrial or- July 31 objection based on hardship and an entirety work would testimony as to der be overruled would [Shenandoah]; .... injury to by the Bushman Barker elicited from the trial that when We conclude complained has not group. Shenandoah order and portion deleted this error, regard- thus, any, if ruling; this impliedly part, it request in granted the TEX.R.APP.P. ruling is waived. ing the good cause & K had shown found that J 52(a). previous testimony of a presenting Barker’s attacked has not Shenandoah expert witness. ly undisclosed ground. specific any other testimony on ruling as the trial court’s attacked has not 490

However, portions general testimony, statement of this it makes a the error does infringe upon the not call for reversal. attempted point that Barker Id. The sixth pass ques- on is overruled. prerogative the court to testimony was law and that his tions of error, In Shenandoah’s seventh has re- highly prejudicial. Shenandoah complains jury’s finding it that the that no portions of Barker’s ferred us to various conspiracy among existed the five defend- objec- testimony “over that was admitted (the ants four members of the Bushman any specific has neither attacked tion” but group K) contrary and J & was to the any authority ruling of the court nor cited overwhelming weight preponderance ruling any particular to show that disagree. of the evidence. We Moreover, Shenandoah did not ob- error. Court, Supreme The Massey Texas v. testimony. ject to much of his Co., (Tex. Armco Steel 652 S.W.2d 932 Having all of Barker’s reviewed 1983), recognized an actionable civil con major testimony, we conclude that the vast spiracy to consist of: disprove ity proper of it was Shenan persons a combination two or more claims, damage propriety of its doah’s accomplish purpose an unlawful or to fees, attorney’s claim for and its reliance accomplish purpose by a lawful unlawful alleged misrepresentation. on fraud and means. Great National Insurance Life Further, also ruled that the trial court (Tex. Chapa, v. 635 Co. S.W.2d testimony Barker’s was admissible on the 1964); Company, v. State Standard Oil given deceptive issue of whether a act is a (1937). 130 Tex. practice. object did not trade (1) The essential elements two or are: error, if ruling; therefore it waived (2) persons; object more to be accom ground admitting any, regard to this (3) plished; meeting of minds on the complains. Id. the evidence of which action; (4) object or course of one or unlawful, (5) acts; and evidentiary The standard of review of more overt dam ages proximate result. points is whether the trial court abused its discretion. Inc. v. Coonrod Electric UMC Id. at 934. Co., (Tex.App . —Cor agrees readily pus writ ref’d Shenan Christi object accomplished, the sale of be doah does not address this standard. The unlawful, yet contends park, was not record reflects that the court ruled on a accomplished unlawful sale question-by-question basis as whether representations through the false means testimony and lim Barker’s was admissible made, warranties, knowingly and false purposes that are ited his group to induce members of the Bushman preceding paragraph. in the outlined relies Shenandoah to close. Shenandoah that the trial court record does not reflect principally admittedly false warran his discretion. abused assumption agreement ty by Home hereof, Finally, error is not “has as of the date reversible seller obligations rulings timely performed all of its un ordinarily evidentiary un shown note, trust, particular promissory the deed turns on the der the less the whole case hereby warrants that and ... the lender Bridges admitted or excluded. evidence under Richardson, presently is not default 649 the seller City However, 1961), obligations to lender.” any of its (Tex.Civ.App. ref'd — Dallas made the curriam, jury found that Home alone Tex. 354 the per n.r.e. regarding perform & K’s (1962). length representations In view of the S.W.2d366 obligations under the testimony from ance of its the volume of the trial and assumption agreement jury on all con note to which witnesses before the refers, contains evidence issues, and the record that Shenandoah’s tested we hold in de knew J & was testi that Shenandoah did not turn on Barker’s whole case agree signing assumption prior to hold that fault Consequently, we further mony. repre- admitting jury The foimd that Home’s some ment. court erred in if the trial only Shenan- produc- fore this court. We address regard not a in this was sentation point. in- ing damages, that it was not doah’s waiver cause of Thus, ducing, and that it was not material. point, only determining In a no evidence prove that the wholly failed to Shenandoah tending support the trial to evidence act participated an unlawful defendants and reasonable inferences court’s conspir- liability for civil to base on which considered. If there is therefrom are to be point of error seventh acy. Shenandoah’s support probative force to some evidence is overruled. finding, the no evidence attack jury’s eighth in its Warren, contends Shenandoah v. fails. DeBenavides 674 S.W.2d there is no evi- points of error that ninth Antonio writ (Tex.App. — San brought this action that Shenandoah dence n.r.e.). ref’d purposes of harass- in bad faith and sufficiency, reviewing factual we In or, alternatively, jury’s that the find- ment if weigh all the evidence to determine must brought in bad ings the action was that great findings are so purposes of harassment are and for faith weight preponderance evidence weight preponder- great King’s In re unjust. manifestly as to be Shenandoah relies on of the evidence. ance 664-65, Estate, 244 S.W.2d 150 Tex. falsely that it warranted Home’s admission (1951). evidence is conflict Where agreement that J & K assumption in the findings of the by the ing, we are bound delinquent performed and had all not was Cannady, 669 S.W.2d Holly v. fact finder. obligations under the note assumed of its writ). 1984, no (Tex.App. — Dallas argues that Shenandoah Shenandoah. representations falsity of the contends there the admitted evidence, overwhelming good evidence, evidence of faith of its was or insufficient part pur- rights complain on its and lack of harassment its to intention to waive suing legal rights park closing under the DTPA. We its of the or of the the condition disagree. may Waiver be established documents. possessing a known proof party that pointed in the seventh As we out in a relinquishes it or acts right expressly point, there is in the record that evidence with, act in or fails to manner inconsistent warranty in the as Shenandoah knew with, intent a manner consistent sumption agreement was false when the right. Alford, Meroney & Co. claim the agreement signed. There is also other (Tex.Civ. Rowe, 213-14 conflicting regarding para evidence ref’d App. — Amarillo agreement graph of the in the record. dis that Shenandoah The record reflects t conflicting jury resolves all, if of the de majority, covered s e complains no park of which it fects in the m i t o Nevertheless, January of 1983. later than y n park operate continued . contin through trial and accept rents eleven, points ten and $830,000 note payments on the to make ued complains there is no that that evidence hold that this of 1983. We September until closing right complain of the waived its jury support is sufficient evidence or, park, and condition of the documents right to waived finding that Shenandoah findings in alternatively, jury’s Id. park. of the the condition complain of contrary great regard are complaint Regarding Shenandoah’s of the weight preponderance evidence. documents, re the record closing Shenandoah, points under its Although attorney prepared waiver, veals evidence argue as well seems error as closing documents and reviewed the rat- and/or findings by the as to against the falsity that, closing, it knew ification, point of error before conclude that no we note the assumed warranty that Home’s jury’s finding as to against the levelled inter- Family had an and that current ratification; question is not be- was thus this 492 potential property. 1975,

est in and on the (Tex.Civ.App.—Tyler lien 288 writ ref’d support n.r.e.). This evidence is sufficient point of error num- jury finding that Shenandoah waived ber twelve is overruled.

right complain closing documents sale, executing closing closing doc- J & K’s CLAIMS uments, accepting the deed from J & K& first contends the trial J points K. Shenandoah’s tenth and eleventh by admitting court erred dep into evidence are overruled. ositions that were taken without notice to J In its twelfth and final 200(2) & K. Texas Rule of Civil Procedure error, jury’s Shenandoah contends that the requirements states the notice for an oral findings spe 14 and 15 of subdivisions deposition: cial issue three and subdivisions 15 number 2. Notice Examination: General nine, special and 16 to issue number all of Requirements; Deposition Notice which deal with or not & K whether Organization. performed obligations all of its under the default, first lien note and was not sub a. Reasonable notice must be served stantially ignore testimony ju and the writing by party, attorney, or his dicial admissions that note was in fact proposing deposition upon to take a oral closing. default at the time of We dis every party or his examination, agree. jury found answer to sub- record_ attorney of (a) part of each of these four subdivisions 200(2) added). (emphasis TEX.R.CIV.P. represented that Home warranted or that J parties given When other are not notice of timely performed & K had all of its obli deposition, parte” deposition an “ex gations under the note and was Buster, 125 Reilly v. See not admissible. Thus, closing. not in default at 323, 931, (1935); 328, Tex. ignore judicial did not Adams, (Tex. 922, 925 Woodall v. 7 S.W.2d admissions to that effect. 1928, writ); see Civ.App.—Galveston challenge findings does not the additional Garner, 337, Pouncy also v. 626 S.W.2d subparts under the other to these subdivi 1981, (Tex.App.—Tyler writ ref’d n.r. sions, provide which the warranties e.). producing damages were not a cause of 3, case, (issue 14(c) 15(c)) subparts present and that the trial court en- representations interlocutory judgment were either not induc tered an default (issue 9, 15(d)) ing subpart 23, or not material KJ & and Home on November (issue 9, 16(c)). subpart (1) which: rescinded the sales con- tract; (2) general warranty set aside the Further, Shenandoah has failed sale; (3) deed and cancelled the bill of portions cite us to of the record to sustain $135,000 promissory lien note second argument points that all of evidence trust; (4) assumption deed of cancelled the representations to the fact that these (5) agreement; and ordered Shenandoah to upon warranties were relied in Shenan property reconvey the to the defendants purchase park. doah’s Shenan “upon receipt of the restitution and inciden- doah’s failure to cite the record constitutes damages paid tal hereafter ordered to be argument point of waiver of this under this Plaintiff, by court stated this Court.” The Home, Nursing error. Golden Villa Inc. hearing that a would be held to determine Smith, v. (Tex.App.— paid to be to Shen- amount of Houston writ ref d [14th Dist.] de- andoah. The later set aside the independent This court declines to make an granted judgment fault Home and pages hundred tes thirty-eight search of attempt to set K did not it a new trial. J & support timony attempt Shenan Garcia, against it until the default v. aside doah’s claims. Saldana July depositions at issue after the 200-01 Tex. 285 S.W.2d Prather, (1955); Kropp were taken. Clearly, judgment ruling the default The court made no further on the admissibility depositions granted against only they K J & of the re- J & determined as Shenandoah; damages. late liability K’s to the issue of to the issue of Therefore, damages was not answered. J J & K reurged re- objection its to the given K should been notice of the & have deposition mainder of Brindle’s and the taking depositions of the it still a since was depositions subsequent offers the party the suit. Forman, Black, Babbidge. Initially, and J K trial specifically & has not attacked the objects the J & K to the admission of ruling objection it its that waived court’s Forman, testimony of deposition Luther deposi- based on lack of notice as the Brindle, Black, Stephen Stanley Bab- Steve Olivas, Jackson, tions of Michael Gene and Jackson, bidge, Geno Olivas. Michael and deposi- portion as to that of Steve Brindle’s (The depositions by J K in its other cited urged & K its tion that was read before J and, read into evidence brief were never objection. Consequently, & K waived has therefore, trial, crucial.) At the are not error, any, regard ruling, if to that depositions of were Jackson and Olivas deposition testimony the elicited we treat read J & K assert- into the record without prior objection properly to J & K’s notice as ing objection. its After more than notice admitted. deposition had read half of Brindle’s been argues process rights its record, J & K that due presented objec- K into the J & deposi- by the admission of were violated lack of notice. The trial court tion for K, to J & and it tions taken without notice it objection untimely as ruled that the deposition testimony ad- contends that the already applied depositions that had only the cred- provided jury mitted record, into been read but stated: findings support it had to ible evidence objection it insofar as relates relating against to the conditions of liability depositions prove use therefore, It, park. that contends damages not as at is overruled inasmuch admitting reversibly erred trial court taken, depositions lia- the time the were testimony. such bility had been determined default against Properties, In- judgment J & K that trial Although agree we corporated, and when the Court vacated admitting deposition tes any court erred day interlocutory default timony & after it made its adverse to J K Proper- notice, trial J & K before commenced our objection thereto for lack ties, Incorporated, motion withdrew its er not end there. Reversible inquiry does continuance, evidentiary which would have been ordinarily ror is not shown remedy retaking proper to allow rulings whole case turns on the unless the depositions. admitted or excluded.' particular evidence Richardson, Bridges City objection insofar as it relates As to addition, reverse before we can at 649. depositions portions thereof to use of or judgment, we must con the trial court’s insofar yet not read before deposition clude that admission they relate to issue denial complained of was such a Properties, Incorporated, J & K reasonably rights as would be of J & K’s advisement takes under Court cause probably did to cause calculated make decision and carries it and will improper judgment of an the rendition later on issue. 81(b). Id.; TEX.R.APP.P. it. your objection on the preserved You’ve objection, read, notice J & K’s yet After portions as to all record portions of Brindle’s objec- your court admitted portion read be read over will deposi- excerpts from the deposition and tion, If the your motion to strike. over Forman, Babbidge. Black, correct, tions of you are Court determines objection, Brindle after Both necessary later before such action as will take at septic system in the to defects prevent testified the verdict to in the trial after objection testimony after park. His respect damages. any harm with testimony prior summary, of his an examination of was cumulative record as objection, deposition he also testi- a whole shows that the subject; that after testimony complains the wa- of which J & K was problems fied to some minor only not the testimony in more detail credible system. testified before ter Black jury support findings against to its K. and to electri- J & defects in the lines to water Consequently, we that the admission three at the hold problems in rows one and cal testimony of this does not amount to such a park. rights reasonably denial of & K’s that hand, Brindle and other after On the probably caused and did cause the rendition admitted, testimony Shenan- Black’s improper judgment against of an J & K. Murray as a live wit- doah called Lindal 81(b). TEX.R.APP.P. testified, objection Murray ness. without point, argues In its second K that the J & K, defects in to the same or similar J & erred, deeming objection, trial court over lines to which septic system and water admitted J & K’s answers to Shenandoah’s to the same or similar Brindle testified and admitting request for admissions and in the same in the water lines and defects requests an- into evidence said and deemed problems in one and three at electrical rows swers and J & K’s answers to Shenan- testified. park to which Black interrogatories. argues doah’s J & K three rule, general er According to the support position that an- theories to its testimony is deemed ror in the admission of for admis- request swers to Shenandoah’s party subsequent objecting harmless if the interrogatories are inadmissible: sions and similar evidence to ly permits the same or (1) multiple, confus- questions some were Richard objection. introduced without be K, through ing, by and and abusive to J & Green, (Tex. son v. Jacobson, Bill had no president, who 1984). Thus, that the trial court’s we hold present time he answered counsel at the admission, objection, of Brin over J & K’s requests in the interrogatories testimony Black’s was harmless. dle’s and (2) counsel; Ja- presence of Shenandoah’s Id. upon mi- answers were obtained cobson’s misrepresentations sinformation and/or deposi Luther Forman testified counsel; (3) Jacob- him Shenandoah’s testimony Murray. con tion after His request for son’s answers problems in rows one cerned the electrical 13, 15, 16, and 18 numbers admissions bring park three of the and the cost admitted deemed should not have been amps up amps park to 100 and/or stay was in upon the automatic based testimony was per pad. trailer Forman’s instigation of the effect at the time Murray. from of that elicited cumulative case at bar. admissibility ruling upon An erroneous ordinarily re of cumulative evidence is the merits We need not address and General v. Traders versible, Whitener because, point argument under this J & K’s Co., 289 S.W. Insurance 155 Tex. erred assuming trial court (1956), admission of and the 2d deeming Shen J & K’s answers admitted not constitute incompetent does evidence 15, 16, 17, requests andoah’s numbers compe there is error when reversible admitting assuming 18 and it erred on the same in the record tent evidence an and its answers into evidence those Kasishke, S.W. Mandril question. interrogatories, we swers to Shenandoah’s (Tex.Civ.App. 238, 249 2d — Amarillo rever not call for such error does hold that authori on these Based ref’d & K against J only relief awarded The sal. of For- ties, the admission we hold is that award in the trial court’s error. testimony harmless man’s sale of rescinding ed Shenandoah the assess K and to it from J & property Babbidge’s deposition Finally, K, which against J & costs ment of court the condi- K or of no mention of J & made ques six below. address by we not harmed park. J & was tion of the there here is whether presented thus tion its admission. K next that the any jury findings unrelated the mat- contends trial court are instructing K’s answers to Shen- ters contained in J & erred in return for admissions, request to its andoah’s additional deliberation to determine an interrogatories, that are sufficient to other- amount of to award Shenandoah support rescission of the sale. wise jury initially after found that no actual damages had been incurred judgment The trial of rescission court’s warranty repre- for and/or false breach jury’s an- against J & K is based The in special sentations. issues involved special to various subdivisions of is- swers reproduced of error are below: this two, one, three, Although and nine. sues jury’s clearly answers are ISSUE NO. 5 some of SPECIAL by the admission of the deemed tainted any, money, paid sum of if if What requests and answers to other answers Shenandoah, you cash to do find now in K in re- J & admitted Shenandoah’s that preponderance of the from a evidence admissions, jury quest for also found position it put in the would adversely to & K on issues which purchased in had it not would have been in either were not addressed the Park? interrogato- or in its request admissions cents, any. in if Answer dollars K. to J & ries ANSWER; None example, jury For found that J & K ISSUE NO. 6 SPECIAL operating that warranted statements any, money, paid if if sum of What correct, relating park were true and cash, you prepon- in do find from a now they conformity were not in with the fairly of the evidence would derance warranty, nonconformity reasonably compensate Shenandoah damages actual to producing cause of incurred, it has if damages the actual Shenandoah, warranty and that this any? knowingly. jury these made made that the term “actu- You are instructed findings alleged warranty same as to the damages” means the difference be- al improvements including that the the sanita- repre- of the Park as tween value sewage system tion and were constructed promised or to Shenandoah and sented plans provided in accordance with the Shen- in in the condition its actual value andoah J & K. Neither Shenandoah’s to Shenandoah it was delivered which interrogatories request nor its for admis- closing. the time of the at sions addressed these matters. These find- cents, any. if in or Answer dollars ings support are sufficient ANSWER: _0_ judgment against court’s J & K under the DTPA. See TEX.BUS. & COM.CODE changed after further This answer was 17.50(a)(2). ANN. $44,500. § jury deliberation ISSUE NO. 8 SPECIAL two

When a is based on money, any, you if do findings What amount of or more and at least one of the evi- supports preponderance from a findings judgment, find there to Shenandoah necessity findings or dence should be awarded to consider the other fail- representation warranty or or or for a questions pertaining to the admission information, any, if found having ure to disclose of evidence no relation exclusion Special Nos. by you in Issue particular findings support knowingly? Answer Wilkinson, been made to have judgment. McMillion applicable each Defend- separately (Tex.Civ.App. — Dallas discretion, ant, may your any. cor.) According if You judgmt writ dism’d than three amount not more rulings an hold trial court’s award ly, we that the of actual times the amount regard to K’s to Shenan J & answers with $1,000, any, by you if found inter excess of request doah’s for admissions and 7, or none. Issues 6 or award Special K’s harmless error. J & rogatories were point is second overruled. cents, any.

Answer dollars and if attention thereto in writing and send them for further back deliberation. 195. The TEX.R.CIY.P. court not only has -0- A-i authority jury to instruct to retire -0- [Pamily] attempt reconcile conflicting an __ [Home] swers, duty to jury’s but it has a call the Bushman __ City Dallas v. attention to conflicts. Riddle, (Tex.Civ.App. resubmitted This issue was n.r.e.); corrected the last sentence to read: —Eastland writ ref’d see Pon Lip Gilliland, Chew v. discretion, your may You award Patrick, County Harris v. (Tex.1965); than the amount not more three times actual in excess of amount of 211, (Tex.App. 213-14 — Texarkana $1,000, any, you Special if found in 1982, writ). correctly no pointed The court 6, or award none. Issues 5 or required out the in and conflict the answers jury conflicting the to reconsider their an judge trial court first read the the When point swers. of error three is J & K’s attorneys, to the jury’s answers Shenan- attorney jury’s noted that an- doah’s the overruled. eight the an- swer issue conflicted with point, argues In K J & that the fourth (which and in issues six seven the swers awarding trial court erred blank). The court jury left noted that issue remedy jury the because the of rescission eight upon conditional the should have been found the contract of that December five to issues and six instead answers and terminated rescinded following court 6 or 7. The sent the issues to agreement parties prior the the actual jury: note to the 4,1983. January & closing real estate on J I jury, of the have reviewed Members presents argument support K to no new verdict, your light answers to your instead, point; fourth it refers us to its five, eight, in- you six and are issues one, two, points arguments under its your structed to reconcile answer effect, arguing the three. J & is that In in- respect to J & K. You are further only representations or warran- actionable “special structed that the reference to contained in the ties that & K made were J is to read issue six or seven” amended 14, 1982, contract as reaffirmed December six,” “special special or issues five on in the thereto December amendment eight. issue number those parties terminated and that when following objection J to & K made the January on contracts at lunch sending jury: the note to warranty by J K to representation or objection having I to want to state closing later as of the existed question jury to the be- that submitted day. disagree. that We findings cause as a matter law their as a require five and special on issues six that jury found Shenan disregard the Court to matter of law closing papers doah and ratified waived special number finding their on issue park. of the and condition sale provisions statute eight under the defeated Shen law defenses These common jury to the and to resubmit matter plead recovery under all theories andoah’s to mislead possibility has a confuse or claims, not which are except ed its DTPA in conflict. jury as what it is that’s v. Smith subject law defenses. common Procedure Texas Rules Civil (Tex.1980); Baldwin, 611 S.W.2d governs defective verdicts. It states: Inc., Industries, Joseph v. PPG 674 S.W.2d defective, is If the verdict informal or ref’d (Tex.App . —Austin may it to at direct be reformed n.r.e.) representations reh’g). (op. Oral responsive If it is not the bar. of DTPA the basis can serve as also submitted, conflicting issue contains Barnes, action. Weitzel jury’s shall findings, the court call sufficient evi (Tex.1985). There was support jury jury to

dence before judg- findings judgment granting of J & K’s violations under the trial court’s Home lien, ment, attorney’s previously have DTPA. We considered J & foreclosure one, two, arguments fees under deed of points K’s other under note and affirming have J K’s trust. are the trial rejected and three and them. & Since we judgment granting court’s this re- fourth error is overruled. Home lief, “cross-point.” we not address this need point, K asserts that the In its fifth cross-point, denying erred in its motion for its one formal Home con- trial court finding could not tends that trial court’s n.o.v. because findings to J & K in not made the adverse Shenandoah’s action Home was have 1, 2, 3, special groundless contrary great weight if the court had issues and 9 (a) Be- erroneously preponderance into evidence admitted evidence. request disposition for admissions with cause of our of this case Shenandoah’s admissions, (b) deemed its answers which we affirm the court’s award & K’s (c) interrogatories, attorney's Home of fees court costs already note, under its on its we hold depositions. certain We have held counterclaim moot, sup- Home has cross-point there was sufficient evidence because already port jury’s findings from sources other received all relief to which 17.50(c) admissions, of would be entitled under section than the deemed the answers portions the DTPA. interrogatories, and those the K depositions timely of which J & judgment We reverse the trial court’s fifth objected. Accordingly, point J & K’s awarding expenses, group the Bushman is overruled. judgment they and we take render nothing appel- in expenses for the trial and Next, KJ & contends that the trial court respects, late courts. In all other the trial taxing portion in a the court erred costs judgment court’s is affirmed. jury it because the could not have to J found adverse & K its answers to Justice, STEPHENS, dissenting. 1, 2, 3, special issues and 9 if the trial court original had not admitted into evidence its answers this opinion The handed down 1987, request 31, to Shenandoah’s for admissions re- reversed and court March interrogatories depositions. and and certain a to the court for manded the cause adversely already We have ruled to J K original disposi- trial. to the new I adhere argument case, on the J & K’s sixth disagree asserted. and with the tion of the point is overruled. for Re- majority opinion issued Motion hearing, accordingly, I dissent.

Finally, point K urges J & in its seventh granting brought that the trial court erred in Shen- suit multiple-party This Associates, any relief not an andoah because it was dissatisfied Shenandoah partnership authorized limited in California purchaser park a mobile home Odes- type entity. In sa, nor other other rescission valid Texas. seeks words, Deceptive K J & that Shenandoah the Texas contends and under capacity K cites no lacked the to sue. J & Act of Business Trade Practices Af- authority support its conten- in 1979. applicable as amended Commerce Code weeks, Consequently, waived this several tion. it has ter a trial of special is- point. hundred submission of several sues, judgment court entered its the trial HOME’S CROSS-POINTS K park J & rescinding of the from the sale Shenandoah, yet charging Shenandoah urges counterpoint l.B. Home be unpaid liability balances with for separate cross-point a if it is considered awarding mortgages, and first and second to so it. Home con- proper consider more attorney’s fees counterpoint that the trial under tends and for faith having brought its suit bad rescinding the sale erred court de- against all harassment purposes per- K We park J & to from Shenandoah. K. except J & fendants a defense of the this contention as ceive 498 Hightower, v. O’Con appeal, majority, with.

On as recited 268 S.W.2d 321, (Tex.Civ.App. 1954, presents points of error 322 twelve Antonio — San ref’d). Boyter writ This Properties, J & out for our consideration. set prerequisites Inc., presents points granting to the co-appellant, seven of re Association, error, scission: Savings Home Inc., Development Corporation, A-l Family equitable To remedy entitled to the be Bushman, appellees, present one rescission, however, John party must agree I with cross-point. Shenandoah’s (1) show either that he and other one, points number and number of error quo, i.e., party are in the status that he six, agree point of error I K’s retaining is not benefits under received one, I accordingly, reverse would number the instrument without restoration remand of the trial court and judgment State, Texas v. Co. party, Tex. a new trial. 494, case for v. (1955); Freyer Michels, (Tex.Civ. 360 S.W.2d OF FACTS CHRONOLOGY App. dism’d), (2) — Dallas special equitable that there are consider opinion correctly recites the majority par the need ations obviate facts, ren- chronology quo, in the status Turner ties to be by the trial court. dered Agricultural Corp., 601 S.W.2d Credit (Tex.Civ.App. [1st Dist.] CLAIMS SHENANDOAH’S — Houston Employ writ); see also Texas com- first of error Kennedy, ers Association v. Insurance granting plains trial court erred that the (1940). 135 Tex. partial park rescission of sale of Boyter, at 941. rescission, 673 S.W.2d plac- not by full instead of ing parties quo, in the status be- all the court’s complains the rescission, un- recognized not partial cause give up prop- it to the judgment requiring law, group the der leaves Bushman Texas assump- erty, pay to on the but to continue of the transaction. with all the benefits to agreement first lien note and tion of the par- pay lien note constitutes a the second argues that rescission is the agree argument. I this tial with rescission. requires complete not it still Shen- because $830,000, pay as evidenced to andoah re- down-payment A of agreement, together assumption the with January the Park. quired purchase On to $135,- promissory the lien note $135,- second 4, paid 1983, closing, Shenandoah at deciding purposes of this For 000. signed promissory a note 000 cash deciding that majority without the assumes lien K a second payable to J & secured granted properly Shenan- the trial court pay promised it of in which deed trust park, purchase the of its doah rescission $135,000. deed of The second lien & on its yet hold Shenandoah liable would “rep- the note states that specifically trust This first lien note. assumption of the ... of the consideration portion resents a which expresses a rationale with conclusion property” the described purchase for the agree. I closing, cannot Simultaneously with in the deed. by J & note was endorsed

the second lien RESCISSION “sell, transfer, assign K, it did stating that together note with the within remedy that and set over equitable is an Rescission Develop- Family securing same to all liens such may granted upon grounds, certain be the trial ment” recourse. When Boyter v. MCR Construction as fraud. the of the sale granted the rescission Co., 938, (Tex.App. 941 S.W.2d 673 — Dallas Shenandoah, it have should property n.r.e.). pur 1984, The ref’d defrauded writ indebtedness cancelled Shenandoah’s he will election put is to an whether chaser note, parties to return the lien damages, or the second property and recover keep the Boyter, 673 S.W.2d quo. See status property return sale and rescind the part of an indivisible lien is at 941. This parted recovering value he has while

499 Park; 390, purchase (Tex.App. for the contract S.W.2d [1st — Houston writ). the rescission without cancellation Dist.] prohibited note a re “partial constitutes recognized exception A is rule Mack, Raney v. scission.” purchaser when the terminates the con 1973, no (Tex.Civ.App. — Texarkana tract the court has examined the cir writ). rescission, Having elected to sue for cumstances and determined that it would Shenandoah should recovered val have grant equitable be more the rescission O’Con, parted ue it with. 268 S.W.2d at complete partial without the restoration 322. pur of the consideration received payment to the cash and the addition possession purchased chaser while in note, lien execution of the second Shenan 941; Boyter, See item. at unpaid doah balance of the assumed Agricultural v. Turner Houston Credit original in the first lien note amount of Corp., 601 S.W.2d (Tex.Civ.App.— $830,000.00, part consideration ref d Houston [1st Dist.] Generally, assumption an of the sale. I properly the trial court believe that agreement conveyance in a deed of creates weighed circumstances of this case and making under the one new contract which equitable require it more found assumption principal becomes obli- to J K rental Shenandoah to return & the original gor and the maker becomes the while payments and other monies obtained Brooks, Straus surety. 136 Tex. property. it control of (Tex.Com.App. granted re- The trial court 1941). The agreement unconditional rescission; quest equitable relief of itself; contract within an unconditional therefore, dictates, follows, equity promise pay promisor debt. has should be returned to the that Shenandoah own, primar made his has the debt become quo by requiring J K to return status ily discharge, for its has as liable purchase agreement sales the rescinded independent duty payment, sumed an $135,000.00,by money in cancel- the sum of liability principal irrespective of the $135,000, and ling note of the second lien Id. debtor. assumption cancelling Shenandoah’s However, assumption of an when the original the loan. Shenan- agreement of existing part a the debt is of consideration grant- point of error should be doah’s first sale, underlying for the contract of the ed. cancellation and rescission of the sale de six, number In of error cancelling equity that done mands be testimony expert wit- by an complains that assumption. purchaser the For a to debt pre- of the boundaries far exceeded ness successfully purchase rescind of real the order, expert’s testi- limited the trial which law, yet in a of to estate be held the attorney’s fees and mony to reasonable assumption is underlying the of the debt damages. Shenandoah asserts of amount exception if unconscionable. An would lie because, testimony prejudicial the that mortgagee it be that the released shown order, the contrary court’s witness original obligor the in re the from debt of concerning freely the reliance testified al purchaser, on the or otherwise liance documents, proper parties certain the on of the position, tered its as a consideration of closing, the lack certain for a documents the case This was not shown be sale. closing, generally ac- the at the documents here, majority has cited author nor the of documents cepted interpretation rescission ity support position of attorney meanings, whether the their lies, original debt should yet underlying propriety, acted with eq paid by When be Shenandoah. Eth- interpreted the Canons of witness also granted uitable relief of rescission. of only a few of areas These were ics. be re original parties must status of I testified. on which the witness State, 154 Tex. dispute Texas Co. v. stored. See proposition general (1955); Boy 83, of 507-08, am mindful 494, 91 281 S.W.2d admissibility Green, ter, 941; determination Proctor v. 673 the 673 S.W.2d 500

opinion testimony is a matter within the 2. Notice Examination: General court, Requirements; Deposition Notice of sound discretion of the which Organization. appeal will not be disturbed on absent a UMC, Inc. v. showing of Coonrod abuse. a. Reasonable notice must be served Co., 549, Electric (Tex.App. 667 559 S.W.2d writing by party, or his attorney, 1983, —Corpus n.r.e.). Christi writ ref’d proposing to deposition upon take a oral However, opinion light I am that in examination, of the every party or his record_ us, complexity case attorney of of the of the before particu of the admission of this [Emphasis parties When other are added.] witness, lar far in excess limitations given deposition, notice of the an “ex placed upon pretrial him the trial court’s deposition parte” is not admissible. See order, highly prejudicial and the trial Buster, Reilly v. 125 Tex. 82 admitting court abused discretion 931, Adams, (1935); Woodall v. 933 testimony. such 922, (Tex.Civ.App 7 S.W.2d 925 . —Galves 1928, Pouncy see also writ); v. ton argues Appellee correctly that if the im Garner, 337, (Tex.App.— 626 S.W.2d 344 proper given by evidence the witness is 1981, Tyler writ ref’d supported by case, in the other evidence present case, the trial court en- objection, admitted without or of the same interlocutory tered an default effect, character or or elicited by adduced defendants, KJ & and the other complaining party, the error is harm 23, (1) 1983, November which: Walls, rescinded v. 62, less. Drake 348 S.W.2d 69 contract; (2) general the sales set aside the 1961, (Tex.Civ.App. writ ref’d n.r. — Dallas sale; (3) warranty deed and bill of can- e.); see Missouri-Kansas-Texas Railroad $135,000 promissory note celled Shelton, (Tex. 842, 848 Co. v. 383 S.W.2d trust; (4) lien deed second cancelled the 1964, Civ.App. n.r.e.), writ ref’d — Dallas (5) agreement; assumption ordered denied, cert. 86 S.Ct. U.S. reconvey property (1965); City Houston v. L.Ed.2d 85 “upon receipt defendants restitu- Wise, (Tex. Howe & 323 S.W.2d damages hereafter tion and incidental or- n.r.e.); Civ.App. writ ref’d — Houston Plaintiff, paid dered to be this Court.” Green, Richardson see v. hearing The court stated would be (Tex.1984); Engineering In Columbia damages held to determine the amount of ternational, Dorman, Ltd. Clearly, paid to Shenandoah. to be (Tex.Civ.App. — Beaumont interlocutory judgment only default deter- n.r.e.). However, appellee ref’d has not Shenandoah; K’s liability mined J & pointed what other out this court evi was not answered. issue dence, admitted, properly justify would a Therefore, given J & K should have been finding testimony this that of witness depositions since taking of it notice harmless, search was and I decline to damages party to the suit in which testimony thirty-eight pages of to hundred yet to be determined. were attempt Ap to find evidence. such other pellant’s sixth of error should be sus objects of & K to the admission Brindle, tained. deposition testimony of Stan- Steve Black, Stephen Babbidge, Michael Jack- ley deposi- (The son, and Geno Olivas. &J K’s CLAIMS were never cited J & K in its brief tions K first the trial court J & contends that therefore, and, are not read into evidence evidence, deposi- by admitting erred into trial, crucial.) of depositions At Jack- to J that were notice & tions taken without the record were read into son and Olivas A-l. only given Notice was K. objec- asserting K its notice without deposition 200(2) half of Brindle’s had tion. After Rule of Procedure Texas Civil record, presented KJ & read into the requirements for an oral been states the notice The objection for of notice. lack deposition: objection untimely leasing. receipt He stated the rent that court ruled that was accurate; depositions had applied “moderately” as it to the that books that were record, already stat- read into the but been properly the water lines were not attached ed: faucets; great and at the there was dan- main,” ger “breaking it relates to objection insofar as of the lines off at The prove liability and depositions repairs

use for causing of the water to cut off be as at damages fault.) not is overruled inasmuch “several times” due to this taken, lia- depositions the time the were remaining portion I hold that the would by default bility determined had been deposi- deposition of Brindle’s and Black’s In- Properties, J & K judgment improperly purposes for tion were admitted corporated, when vacated the Court objec- determining damages proper after day interlocutory default deposi- tion J & K. Brindle and Black’s Proper- commenced J & before trial testimony K as damaging to J & it tion ties, Incorporated, its motion withdrew presented workmanship evidence of bad continuance, which would have been supports improper bookkeeping retaking remedy to proper allow the request damages. depositions. Having made the determination objection As as it relates to the insofar improperly deposition admit- depositions portions thereof to use of K, ted, being notice absent to J yet not and insofar read before conclude such admission was unable to they as relate to issue of error, I would sustain J & K’s harmless Properties, Incorporated, KJ & error. point of first takes that under advisement Court it and a decision and carries will make should judgment of the trial court be The later on that issue. reversed, for a cause remanded your preserved objection on You’ve new trial. read, any portions yet record as to all objec- portion your read read will be over

tion, If the your motion strike. over correct, you determines that are

Court necessary later

will action as take such prevent after the the trial or verdict respect damages. harm with ruling on the made no further they admissibility depositions re- MILLER, Appellant, Chestley Labron damages. late to the issue of re-urged objection the re- J & K Texas, Appellee. The STATE deposition mainder Brindle’s Upon depositions Babbidge. Black and 13-86-250-CR. 13-86-247-CR to Nos. depositions admit- reviewing the that were Texas, Appeals Court objection ted evidence without into Corpus Christi. I objection, those admitted over that were damaging admitted find evidence that was Aug. 28, 1987. jury that before the not “offset” 22 and Rehearings Denied Oct. testimony. deposition properly admitted Nov. 1987. (e.g. Richardson, 677 501. S.W.2d at See defectively about built Brindle had testified con- objection,

septic before tanks concerning testify various

tinued to objection. septic tanks after the

defective on to defective went describe

Brindle then that he was Black testified

water lines. maintenance, rent, charge collecting

Case Details

Case Name: Shenandoah Associates v. J & K Properties, Inc.

Court Name: Court of Appeals of Texas

Date Published: Oct 6, 1987

Citation: 741 S.W.2d 470

Docket Number: 05-85-00629-CV

Court Abbreviation: Tex. App.