*1 342 legal recovered for malpractice plaintiffs if
Glenn VICKERY and Dianne
entirely
loss is
economic.2 If
holdings
Richards, Petitioners,
of Schlueter
Douglas
applied
were
v.
case,
the same
in
issues
petition
for review would
granted,
have to be
VICKERY,
Respondent.
Roberta
appeals’
reversed,
court of
judgment
No. 98-0059.
the case remanded to the district court for
further proceedings. But the Court sim-
Supreme Court of Texas.
ply refuses to follow
Doug-
Schlueter and
May
1999.
las in this case that
pending
has been
while those cases
being
were
decided.
DeNisco,
Gerald P.
Gregg Weinberg,
S.
The Court would not
tolerate a lower
Richards, Houston,
Dianne
Mack
Tra-
J.
decisions,
court’s refusal to
our
follow
nor
vers,
Travers,
Sherrie
Katy,
Haussner
it,3 yet
should
will
Court
not follow its
Antonio,
Richard R. Orsinger, San
Pamela
own decisions in contemporaneous appeals
Raborn,
E. George, Burta Rhoads
Hous-
involving the same
awfully
issues.
It is
ton, for Petitioners.
hard to insist on others’ adherence to the
rule of law when one’s own commitment to
Brown, Austin,
Christa
Richard R. Mor-
is,
say,
rule
shall we
rison, Kemah,
intermittent.
I
Krist,
D.
Hugh
Ronald
M.
grant
Ray, Houston,
petition
review this
Respondent.
case
I
because
cannot see that Schlueter
and Douglas
any principled
leave
alterna-
Accordingly,
tive.
I respectfully dissent.
HECHT,
Justice
dissenting from the
Mrs. Schlueter
petition
complained
denial of the
in her di-
for review.
proceeding
vorce
that her husband had
The lower
courts
this case awarded
$12,565
diverted to his father
in cash and
anguish damages
mental
punitive
$10,000
an emu business worth
to avoid
damages to
spouse
one
for the other’s
having these assets included in the cou-
estate,
fraud
the division of their marital
$122,600
ple’s
community estate to be di-
and awarded
anguish
mental
damages
vided
the court.4
jury’s
Based on the
attorney
for breach of her fidu-
findings that Mr. Schlueter had defrauded
ciary duty to her client. These awards are
conspired
estate and
not permitted under two of this Court’s
Schlueter,
his father
to harm Mrs.
opinions that have issued
peti-
while this
judgment
district court rendered
that the
tion for
pending.
review has been
$12,850
community recover
from Mr.
Schlueter,
Schlueter v.
the Court held that
father,
Schlueter and
jointly
and sever-
separate
“a
independent
tort action for
ally,
$30,-
and that Mrs. Schlueter recover
actual fraud
accompanying
exemplary
punitive
$18,500
000 in
damages and
damages against
spouse
one’s
do not exist
attorney
husband,
$15,-
fees from her
deprivation
the context of a
of communi-
ty
Douglas
punitive damages
000
Delp,
assets”.1
v.
we held
from his father.5
anguish
mental
damages cannot be
appeals
The court of
affirmed.6 This
(Tex.1998).
Schlueter,
586;
1. 975 S.W.2d
589
4.
975 S.W.2d at
id.
591
(Hecht, J., dissenting).
(Tex.1999).
2. 987 S.W.2d
Id. at 586.
Inc.,
Barney,
3. See In re Smith
(Tex.1998) (quoting Rodriguez
de
Inc.,
Schlueter,
(Tex.
Quijos
Express,
v.
Schlueter
14.
Uncontroverted Facts pro the nunc tunc Raborn filed on Glenn’s behalf a motion for en- Helen and Glenn were married forcement stated that Helen had re- daughter Their Jessica was born Hill, fused to vacate Moss asked that she Glenn, personal injury lawyer, practiced in contempt, be held and asked that a date in Baytown, Texas. Helen worked in his be set for Helen to vacate the Moss Hill legal office as a assistant. family property. Helen was served with the mo- Hill,” Liberty lived “Moss a ranch in tion for enforcement on June but no County purchased that Glenn had before hearing was at that set time. marriage Vickerys to Helen. The also attorney Helen retained Newey Robert owned a University house West Place. negotiate fully settle all client, Wright, a former June matters connected to the divorce. On sued malpractice. Glenn for had $5 18, 1992, June both Glenn and Helen malpractice million in coverage, insurance signed a handwritten document that divid- Wright sought but more than that amount. previously ed undivided assets. The docu- spring began dis- provision ment included a that it did not cussing divorce with Helen. Glenn con- apply to undisclosed assets. This docu- *5 Richards, lawyer, tacted Dianne a divorce ment was not filed with the trial court. 1991, file, in August and in told her to 1992, 20, On June Glenn married Lucille words, “plain Richards’ vanilla” divorce Powell, been, a woman who had at one petition on Helen’s behalf. Richards was time, Helen’s best friend. an old friend of and gone Glenn had to law June, Glenn, In through Helen and their 13, 1991, school with August him. On attorneys, negotiate regard- continued to petition Richards filed a in for divorce ing property. Fearing the division of Helen’s name without speaking ever to disproportionate of undivided as- division Helen about the Although matter. Glenn sets, Glenn not want did the final order to represented divorce, in pro himself se language regarding include undisclosed as- prepared Richards original Glenn’s answer July sets. On Helen withdrew from counterclaim, and in someone her office negotiations settlement and later filed this signed name, pleading and lawsuit. Richards’ office filed the answer and coun- July, In Glenn advanced his motion to 20,1991. September terclaim on enforce the divorce decree. After a hear- 15,1991, signed On November Helen ing August trial court ordered 22, 1991, divorce decree. On November by August Helen to Hill vacate Moss appeared Richards and Glenn before pled following Helen causes action Elliott, Judge signed Bill who the final fraud, against Glenn and Richards: con- decree of divorce. spiracy, fiduciary duty. breach Addi- Moss Hill had been awarded to Glenn tionally, she sued for duress and Glenn May divorce decree. Rich- distress, intentional infliction of emotional ards called Helen to tell her that the metes negligence, gross and sued Richards description and bounds of the Moss Hill negligence, DTP and violation of the A. She property had been omitted from di- sought post-divorce prop- also division of signed agreed vorce decree. Helen erty. Alternatively, sought a bill of pro nunc tunc final decree divorce that portion review to set aside that description. Judge included this Elliott divorce decree that divided the signed pro May nunc tunc decree on answer, estate. Glenn raised the affirmative defenses of accord and satisfac- day, attorney tion, novation, waiver, laches, The next Glenn hired Bur- estoppel, and ta A Raborn. week after the trial court counterclaimed for breach of contract. account in Houston a bank open of had Helen jury on the issues The case went to the new money deposit to gave fiduciary duty (against Glenn breach of to had her write a check He then account. Glenn). Richards) (against and fraud $1,630. Richards never Richards jury that: breached his found Glenn filing the divorce about spoke to Helen duty respect to to the fiduciary until Glenn did not know petition. Helen marital Richards property; division of peti- Richards filed divorce told her that fiduciary duty to Helen with breached her Rich- nor tion in her name. Neither Glenn mari- respect the divorce and division of to a counter- filed ards told Helen Glenn fraud property; tal Glenn committed claim. division respect Helen with again discussed On October Glenn and the division of the property; of marital Helen, also but this time the divorce with of extrinsic property marital was the result in the happy he was not indicated that part, unmixed with fraud on Glenn’s begged keep marriage. Helen jury part of negligence on the Helen. family together proposed counsel- $100,000for of marital awarded Helen loss therapist. ing. began to see a She $350,000 property anguish for mental also with the doctor. met Richards, $6,700,000 for loss from asked Helen On November $1,300,000 for mental marital at some meet him in Houston look Additionally, anguish from Glenn. they University. After houses West $1,000,000 exempla- awarded Helen houses, pulled he out had looked at several ry damages from Glenn. sign it. decree and asked her the divorce cry. began She reiterated granted The trial court the bill of review begged not want the divorce and she did *6 and divided the marital estate. It ren- family together. Glenn keep him to $1,300,- judgment dered Glenn for hours, telling around for two her drove $1,000,000 anguish damages, 000 in mental pressuring sign him her to trust damages, $1,521,371.39 in exemplary finally signed papers decree. She $6,700,000 prejudgment interest reading without them. damages prop- of marital awarded for loss Liberty, mo- back to As she drove $3,821,371.39. erty, for a total of The trial Richards, rang. It was Dianne phone bile Richards judgment against court rendered behest. This was the calling at Glenn’s $350,000. for spoken had to Helen first time Richards identified about the divorce. Richards Summary of Helen’s Version of unethical; said, I have “This is herself and Facts Helen, crying, you.” spoken never with Helen testified that about June did not want the divorce. told Richards she suggested that a divorce was neces- Glenn “Helen, replied, you have done Richards sary protect potential thеir assets from you need to right thing. You know they and assured her would re- creditors you loves protect your assets.... mal- Wright the threat of the unite after only very much. This divorce is and Jesse practice passed. case had She was your protect assets.” she proposal shocked and said that trial court did not learn that the family together. Over keep wanted to told decree until Glenn signed the divorce weeks, insisting on the kept they maintained that her. Glenn still necessity of the He told her the divorce. malpractice threat would reunite after the kept would be secret to avoid em- divorce Helen, how- passed. had Unbeknownst family. barrassment to the ever, Wright had made an offer to June get malpractice would an attor- insurance Glenn told Helen he settle within Glenn’s 10, more than a month limits on October ney her and hired Richards. Glenn sign before Glenn had Helen the divorce told Richards that he wanted the protect decree. divorce to the marital estate’s as- pending malpractice- sets because signed Even after the trial court gave suit. He never her another reason divorce decree on November Glenn told description for the divorce. The of assets they Helen that would reunite. Helen tes- kept in the divorce decree was therefore that until tified she was served with the vague so that would have difficul- creditors decree, motion to enforce the divorce - ty tracing the assets. they get together. believed back spoke Richards stated that she to Helen divorce, pending several times about the Summary Version of the and Helen told Richards she did not never Facts want the divorce. hospitalized during Glenn was the trial Points of Error Common to testify and did not A videotaped live. Glenn and Richards portion of depositions one of his was played jury. Glenn stated that he 1. Motion to Recuse sought protect never the divorce to assets In Glenn’s of error one and Rich- and never mentioned this to Richards as a ards’ the defendants reason the divorce. He wanted a di- Judge assert Leonard Hoffman erred marriage had vorce because the deteriorat- denying Judge their motion to recuse Bill attorney, ed. Helen chose Richards as her motion, they alleged Elliott. their filed, petition knew divorce had been Judge reasonably in partiality Elliott’s it, signing read the divorce decree before question relationship because of his petition and was aware that the divorce Mease, Roy attorneys. of Helen’s one going presented to be to the trial hearing, At the Mease testified that he assets, respect court. With to their Judge Elliott had known each other deliberately kept divorce decree was since 1965 and had been friends since 1983. creditors, vague, stymie not to but for and Elliott families had trav- The Mease reasons; safety knowledge he did not want July together; elled the two cou- *7 family’s holdings “get of the out and be ples Europe together. had went to Mease on the street.” appoint- received a number of ad litem Elliott, Judge ments from as well as from Summary of Richards’s Version of judges. largest other ad litem fee he the Facts had ever earned was from case to which Elliott, by Judge appointed he had been Richards testified that asked her Platt v. Platt. styled It divorce case is the divorce, in represent and that Platt case that provides the basis for the petition speaking she filed the without first the relation- complaints defendants’ about obtaining to Helen or her consent because ship Judge between Elliott. Mease enough she knew Helen well to do so. spoken by Judge repre- Richards had to Helen tele- Elliott Mease to appointed phone frequently years over the when sent the Platt children. Debra Jo Catlett rep- Platt. Ed Wheeler represented Richards called Glenn’s law office and had Mr. (Wheeler in had person met her on several occasions. resented Mrs. Platt. been campaign manager in Mease’s un- prepared Richards an answer and counter- Mease’s Glenn, in her office bid to become district petition for someone successful Glenn, judge.) custody A awarded signed it for and Richards’ office Judge Mr. Platt. Elliott filed it. Richards never told Helen that Platt children to trial. granted Mrs. Platt’s motion for new Glenn filed a counterclaim. again custody against for con- Mr. Platt was awarded after Catlett filed a suit Mease $18,000. Shortly version of the after the second trial. interrogatories, Judge with served Mease hearing Catlett testified at the recusal sua from sponte Elliott recused himself that, trial, she, Mease, during the first Platt. agreed Wheeler to the amount of attor- recusal, In their motion for the defen- ney’s fees each would receive—Mease implied a connection between the dants $18,000, $12,- get get would would Catlett $18,000 gave check Catlett to Mease $7,000. get and Wheeler would July Europe by and the tour of taken not, however, lawyers agree did who would fortnight the Meases and Elliotts a later. pay those fees. Catlett stated Mease told they motion their asserted: fee, that if Mr. Platt pay did not he ordinarily judge attorney and an While Judge would have Elliott render ad travelling together Europe, standing in Platt; litem fees Mr. fur- Mease alone, improper, would be ther that if Platt pay, threatened did not im- instance where such travel followed join Mease would the motion for new trial mediately upon the heels of such attor-- filed Wheeler and $18,000 ney cashing an which had check grant- the motion for new trial would be been ordered the court and then ed, get ... he temporary would orders proceeding ap- on such travel raises an entered where Mr. Platt would be or- pearance impropriety. $18,000 deposit dered to into the Platt, appeal, On defendants assert that him pay directly, Court or he ask friendship Judge Mease used his El- $10,000 for an temporary additional advantage. They liott to his also note trial, fees for thе next he would have the questioned, “once the fee to Mease was children custody removed from the Judge fit Elliott saw to recuse himself Platt, Mr. ... and he would make sure ap- from Platt If it matter.... support that Mr. Platt’s child increased. him- propriate Judge Elliott to recuse Judge Elliott Mr. pay ordered Platt matter, self the Platt it was likewise Mease’s and Wheeler’s fees.1 Catlett mandated, appropriate, if not in the Vick- $18,000 wrote Mease a check for on behalf ery case.” later, July days of Mr. Platt on 8. About 10 pro The Texas Rules of Civil Procedure trip Meases the Elliotts took them judge vide that a shall recuse himself Europe. proceeding impartiality which “his Catlett, According to Judge Elliott later might reasonably questioned.” be Tex.R. granted the motion for new trial filed 18b(2)(a). Civ. P. We review the denial of Wheeler on behalf of Platt.2 Mrs. Mease a motion to recuse for abuse of discretion. Judge granted told Catlett Elliott the mo- McElwee, 18(a); P. McElwee v. Tex.R. Civ. *8 paid tion because Catlett had not Wheeler. (Tex.App. — Houston denied). 1995,writ [1st Dist.] Judge granted After Elliott the motion trial, Judge for new asked Elliott Catlett Judge suggested during As Hoffman $18,000. to order Mease to return the hearing, the comments made Mease to Platt, Judge posturing.3 Elliott refused. behalf of could have been mere On Catlett 1.It is not clear from the record how the issue 2. Neither the motion for new trial nor granting order the new trial was entered into pay presented of who would the fees was hearing. testified, evidence at the recusal Judge just Elliott. Mease "We made an came that announcement when that time Judge stated: Hoffman agreed we had to those fees.... I think lawyers say things. have all heard wild [W]e [Judge probably ruled that Elliott] [the fees] say that Mr. Mease said that [Catlett] didn’t reasonable, were all but he didn’t hear testi [Judge Elliott] he had the fix in with mony.” things. [Judge going certain Elliott] was do that, you respect asking Krist: I’m if this is a Mease testified Mr. judicial admission. trip Europe, paid part he of the Absolutely it Never Ms. Raborn: is. transportation Elliott’s costs or travel ex- standpoint been in contest from our penses. why The record is silent as to they it. know Judge Elliott recused himself from Platt. say Judge
We cannot Hoffman abused his argument, of the opening After the issue discretion when he denied the motion to annuity again up when trial court came attorneys stipulation recuse. asked the re- garding annuity whether the was an issue error, point of We overrule Glenn’s first in trial court the case. Raborn told the and Richards’ tenth of error. “misunderstanding in that because of filed a sworn depositions,” terms of Annuity 2. Evidence About the deposition.” She reit- “clarification one-half erated that Helen was entitled to petition, her seventh amended “clari- annuity. of the Krist noted that the sought a assets that partition of undivided contradicted Glenn’s de- fication” affidavit di- were not discussed or divided position testimony that he was entitled to vorce decree. One of these assets was annuity, all that he intended “to of the $35,000 annuity paid apprоximately impeach the dickens out Glenn pay- monthly month. The check was made they’re position that with reference to the able to both and Helen. In a 1992 taking.” now deposition, claiming he was Glenn stated examination, During direct she Helen’s However, annuity the entire for himself. annuity. attorney about the Her testified February he filed a “Clarification if de- asked her she remembered Glenn’s Supplementation Deposition Testi- annuity. testimony regarding the position stated, “I mony,” in which he do not have Helen stated she did not remember When ownership had or control never have attorney her specific testimony, her asked annuity over the itself.” if would refresh looking deposition at the trial, Rabom, attorney, men- At Glenn’s her Helen answered that recollection. annuity opening argument tioned the would, attorney gave her the de- and her following exchange occurred: position. asking and the After her a series annuity, questions about the counsel asked placed has herself [Helen] Ms. Raborn: deposition. Both to read Glenn’s position finds herself in. And objected counsel Glenn’s and Richards’ saying position I’m not that it is a bad depo- of the improper that this was an use going all because I think the evidence is objected Richards’ counsel further sition. half of going to show that she is to have stip- entered into a that Krist Raborn annuity for the rest of her life—that annuity, upon which regarding ulation is, $250,000 for the rest of her income trial rely. entitled to Richards was year [sic]. life objection, court overruled may, If I Helen]: Mr. Krist [counsel depo- portions to read of Glenn’s continued just Is that a for a of clarification: court refused to allow sition. The trial entitled judicial admission that Helen is testi- supplement deposition to his open annuity, court? one-half evidence. mony to be admitted as *9 Honor, had trial, Ms. Raborn: Your we have again counsel in the Helen’s Later deposi- on file deposition portions a clarification of the of Glenn’s read the same testimony into the record. Defen- tion for months. get things happen, done. but she She said certain going say was to didn’t ... how Mr. Mease object deposition, dants’ counsel did not and were Helen to read from Glenn’s allowed to portions read additional error was harmless. deposition under optional the rule of com- 2(B). point We overrule Glenn’s of error
pleteness. supplementation B. Glenn’s of his deposition 2(B), point Glenn’s he asserts the trial court erred in allowing Helen to argued Glenn to the trial court that his deposition. read Glenn’s Glenn’s supplementing affidavit his had deposition 2(C) error Richards’ pursuant been filed to Tex.R. Civ. P. 4(A) 4(C), error the defendants assert 166b(6)(a), provides: which the trial court admitting erred not party duty reasonably A under a Glenn’s affidavit supplementing deposi- his supplement response discovery his a[to testimony. 4(B), tion In point of error request] if he upon obtains information Richards asserts the trial court erred in the basis of which: enforcing stipulations not during made (1) response he knows that opening argument by counsel for Glenn made; incomplete incorrect or when regarding annuity. and Helen (2) he knows response though complete correct when made A. deposition Helen’s use of Glenn’s longer is no complete true and and the that reading deposition asserts his circumstances are such that failure testimony, “not as if ‘present he were amend the answer is in substance mis- testifying,’ but rather the midst of Hel- leading[.] testimony, en’s was erroneous.” He also Helen, however, argued to the trial court asserts authority there is no to support the supplementation improper was an at- reading Helen’s deposition Glenn’s into the tempt deposition. to correct a trial record as a method refreshing her recol- Helen, agreed stating lection. complied had not with Tex.R. Crv. P. governing the rule changes deposi- how agree with Helen that Glenn has not testimony tion are to be made.5 demonstrated harm from any alleged er- (or ror. Glenn does explain how even 2(c), In point of error Glenn asserts his that) argue reading deposi- deposi- affidavit was not a correction to his testimony tion by Helen probably tion, caused “clearly but was supplemental,” and the rendition of an improper judgment. necessary because Helen and her Tex.R.App. See 44.1(a)(1).4 P. After Helen misinterpreted deposition counsel had his testified, deposition excerpts the same regarding annuity, statements and that were later read stance, into the record without “in attempt clarify objection from either defendant. as- complete provid- Even more statement was suming allowing the trial court erred ed....” originally Since the date that this case deposition testimony, is- as to the twice relat- sued, Appellate the Texas Rules of Procedure ing annuity to the fact that the checks were substantially have been revised. See Order property. his Approving Appellate the Texas Rules of Proce- out, Now the affidavit sets which we we dure, (Tex. Aug. Mise. Docket No. 9709134 testimony regards have had [sic] to and 15, 1997). application Because of then new parties they go- between the of what were substantively disposi- rules will not affect the ing place to do. But at no do I see in this case, tion of this all references are herein Vickery says affidavit that Glenn that I do new rules. annuity. not own that therefore, And Rule Court finds that judge 5. The trial stated: with; complied 205 has not been and this Court does not [T]he find in the affidavit supplementation will not be allowed. changes testimony *10 agree do
We with rule not have have never had owner- 166b(6)(a) inapplicable. ship annuity Glenn not or control over does the itself. deposition argue his statements were in- deposi- affidavit is not of the part made, incomplete correct or when or the argument depo- tion. There is no that the complete statements correct and were excerpts sition were of taken out context made, longer when but no were true misleading. are therefore complete. He asserts his statements had sought “clarify” deposition testimony his misinterpreted, been and he needed to by contradicting inapplica- it. Rule 106 clarify complete correct or —not —them. ble. also asserts his affidavit was ad- Moreover, videotaped deposi- Glenn’s optional under missible the rule com- tion, jury during to the his played case-in- pleteness. part: That provides rule chief, contained statement somewhat writing affidavit; When a or recorded statement similar to the statement in the by part party, or thereof is introduced he testified that he and Helen had reached agreement by give an which would party may an adverse at that time intro- he annuity the one-half “after June any writing duce other or other part Wright going, seemed fading case to be ought or recorded statement which away.” Although this does statement not fairness to be contemporane- considered express he contain the disavowal that did ously it. with not annuity, own or control reflects Evid. Tex.R. Civ. annuity to share with intention Hel- ap- are not that rule We convinced en. conclude Glenn was not harmed plies. optional Under the rule com- exclusion of the affidavit. if one pleteness, party part introduces of a 4(C) error point Richards asserts document, statement or the opposing party permitting that the trial court erred in not may contemporaneously introduce much supplement deposition Glenn to his necessary explain of the balance as is duty had a affidavit because Glenn part. Colley, the first Jones v. supplement provides rule under 166b. She 866 (Tex.App. writ —Texarkana authority proposi- or argument denied). The rule is based two consid- tion. Richards has waived (1) danger may erations: that material Tex.R.App. 4(C). 38.1(h). See P. More- being misleading by be made taken out of over, already have that rule 166b we held (2) context, and inadequacy delayed apply. does not repair. deposition, Id. Glenn stated 4(A), In point of error Richards asserts decree, that under the terms of the.divorce the trial court erred because the owner- annuity had awarded to him as a been ship annuity was as a matter law right privilege arising opera- or out of the partitioned prior pursuant divorce affirmatively tion of his He also business.6 Family section 3.52 of Texas Code question, claiming “[Y]ou’re answered (Vernon 1993). support Richards does not yourself?” In his annuity the entire explanation, argument, this assertion with affidavit, year than a executed more after authority. She has waived deposition, stated that would he Tex.R.App. 38.1(h). 4(A). error See P. manage annuity control and checks from the until Helen moved ranch 4(B), Richards point of error asserts then enforcing the trial court erred time, during make arrange- stipulation made we
[a]t [annuity] opening argument. provided to have checks She has nei- separate ments support argument authority I ther nor individually.... to each of us issued legal annuity pro- large purchased ceeds of a fee. 6. The with the
353 4(B) any claiming from estopped is was Point of error this assertion. Tex.R.App. 38.1(h). was enforceable agreements the three P. waived. See C); (question 2(C) point of error We overrule Glenn’s any respect with guilty of laches 4(A), (B), and and Richards’ of error D); agreements (question of the three (C). any of the right her to disaffirm waived E); (question agreements three Jury Charge The 3. an accord and satisfaction reached four, he as- Glenn’s agreement by signing the June 18 Glenn failing serts trial court erred in “[t]he F); (question jury any charge
include in the by signing May effected a novation Glenn, including questions all tendered pro nunc tunc or the June 1992 decree specifically his affirmative defenses.” He G); (question agreement 18 apparently trial argues the court denied any agreements of the three ratified proposed questions on the basis of H). (question amendment, in Helen’s trial which she as- amendment, response to Helen’s trial judicially estopped serted from questions regarding Glenn also tendered asserting any rights based on the 18 June for breach of contract and his counterclaim agreement. In a portion of Richards’ laches, estoppel, his affirmative defenses of seven, point of error she asserts the trial novation, waiver, and ratification that re- refusing jury erred tendered only to the divorce decree and nunc ferred questions on the issues of ratification and pro tunc decree contained refer- estoppel. adopts argu- Richards Glenn’s agreement. ence to the June 18 regarding ments and authorities is- these tendered sues. Helen asserts Glenn’s questions were immaterial because “[i]t To alleged determine whether an error very of a bill of review action essence reversible, jury charge must we prior that a is entitled to set aside a party pleadings, pre consider the the evidence judgment, by any theory and is not es- trial, charge sented at and the in its entire so, topped doing prove from if she can ty. Corp. Island Recreational Dev. v. Re of fraud.” judgment was the result Ass’n, public Texas Sav. jury affirmatively answered the The (Tex.1986); Curtis, Merckling 555 question, Vickery “Did commit (Tex.App. — Houston Vickery in the division fraud denied). 1995,writ Error in the [1st Dist.] property marital of Helen charge only is reversible if harmful —in Vickery?” It found the and Glenn also words, if it probably other caused the ren division of marital between Helen improper judgment. dition of an Tex. was the fraud result extrinsic R.App. 44.1(a)(1); P. see Island Recreation any negligence unmixed with on Helen’s 555; Corp., al Dev. 710 S.W.2d at Merck part. jury was instructed there are ling, 911 S.W.2d types required two of fraud and was A. tendered and refused separately type. for each answer questions fraud was instructed occurs when: questions if Hel- Glenn’s tendered asked party misrepre- a. a makes a material sentation, en: agreements7 of the three misrepresentation breached b. is made with A); knowledge falsity of its or made (question deсree, agreement. The November 1991 divorce decree, May pro 1992 nunc tunc and the June *12 recklessly any knowledge Wright without had offered to settle the case with- assertion, 1991, truth positive policy the and as a in Glenn’s limits in October malpractice actually and the case settled misrepresentation e. the is made with 5, on June weeks before Helen 1992—two the intention that it should be acted signed agreement the June 18 less by the party, on other and —for policy than Glenn’s limits. party d. the other in reliance on acts thereby misrepresentation the and every Fraud vitiates transaction tainted injury. suffers by it. v. Mut. Middleman Atlantic Ins. Co., (Tex.Civ.App.— 568 jury was further that instructed fraud n.r.e.). writ ref There is Waco d also occurs when: to agreement by real assent induced party a. a to disclose conceals or fails jury fraud. Id. The found Glenn commit- knowledge material fact within the Thus, “agreements” ted fraud. the three party, of that vitiated. not were Helen could breach a party party b. the that the other knows Any by contract vitiated fraud. error in ignorant of is the fact and does not failing regard- to questions submit Glenn’s equal opportunity have an to discov- ing breach of contract was harmless. truth, er Estoppel C. party c. other intends to induce the party by to take action con- some asserts trial court erred in fact; cealing or failing to disclose the denying questions submission of his and regarding estoppel. definitions He asserts party injury “pleaded d. the other estoppel suffers it was error because was knowledge by of acting proved signing original, result without subsequent of the undisclosed fact. as well as decree and con- ju- tract.” He further that Helen asserts B.Breach of contract dicially admitted November 1991 that the Glenn asserts the trial court erred in May pro nunc tunc decree 1992 decree refusing regarding questions his tendered “existed and enforceable” and were is breach of contract because Helen’s failure “estopped denying therefore from their en- comply agreements with the to three forceability.” pleadings. jury raised found again note fraud every vitiates committed Helen in fraud transaction tainted it. The found couple’s proper- the division of the marital Glenn committed fraud. Helen is not es- ty. encompass this question We read topped claiming from the documents she agreements. all three Helen’s fraud claim Moreover, signed are unenforceable. we on her was based assertion have looked Glenn’s sole record refer- getting tricked her into a sham divorce as support ence of his assertion protect from a means to their assets “stipulated existence effective- malpractice A Wright case. June June 1991 ness of both November decree attorney from letter Helen’s subsequent May 1992 Nunc Pro and the attorney be- Glenn’s reflects Helen still decree,” support Tunc find it does Wright malpractice the June case lieved contention.8 his posed couple’s a threat assets. Helen, However, Laches unbeknownst June D. 1991; hearing en- decree motion to and that Nunc Pro Tunc
8. At the on Glenn’s examination, force, during Hel- subsequently direct reflected entered on the date that; en’s counsel stated: only hearing] and that the issue [at provision 16 stipulate parties page before us I County original Liberty dated reference to residence. [sic] decree was November trial court erred equitable remedy pre- Glenn asserts the Laches is regarding whether refusing question asserting from a claim plaintiff vents a was reached “an accord and satisfaction time; claim lapse because of a signing between Helen and Glenn Bank, said to be stale. Bluebonnet Sav. argues, further agreement.” He % Homes, Grayridge Apartment F.S.B. certainly right had the seek “Helen Inc., (Tex.App.— *13 however, signed property, of division denied). 1995, Houston writ [1st Dist.] accepted the benefits of the November and are: The two essential elements of laches in May 1992 divisions 1991 and (1) having delay by an unreasonable one in accord and satisfaction of the decrees them, rights asserting in legal equitable or right.” (2) good change position by a faith of asked, an question “Was The tendered another to his detriment because of the accord and satisfaction reached between Enter., Inc., delay. Rogers v. Ricane 772 Vickery by and Glenn (Tex.1989). Although 80 a S.W.2d ” (Em- signing agreement? of the 6/18/92 applying the doctrine of laches is not added.) However, phasis argument his on limitations, by any of bound statute appeal support in of this issue seems to be statute of limitations is one measure of signing based on Helen’s of the November whether a claim has become stale. Blue- May pro 1991 decree and the 1992 nunc Bank, bonnet Sav. 907 at 912. decree, agreement. tunc not the June 18 plaintiffs Laches does not bar a suit be- argument To the extent we understand his fore the run un- statute limitations has sup- has not appeal, appears estoppel extraordinary less or circum- the June 18 ported his assertion present. stances are Id. agreement constituted accord and satis- any argument. faction with Glenn has pled proved Glenn asserts he a de- any respect to this issue. waived error with lay disadvantage. that worked to his He explain does not how he was disadvan- Moreover, jury’s we conclude that taged, only however—he to his refers own finding fraud harmless rendered pleadings agreements. and to the three refusing questions in on this error Glenn’s Glenn has not established that his defense requires bargaining An issue. accord contract, express of laches was raised the evidence. either evidenced a new Moreover, implied, replaces agreement. an old argue Glenn does not extraordi- Hamel, 868, 372 Bueckner v. 886 S.W.2d nary circumstances exist that would bar (Tex.App. writ [1st Dist.] Any claim. in refusing Helen’s error —Houston denied). contract, parties In the new questions regarding laches party may give or mutually agree that оne harmless. perform, accept, and the other will some- E. Waiver thing expect- different from what each Glenn asserts the trial court erred ing from the old contract. Id. The satis- failing questions to submit his tendered performance actual faction is the “waiver, regarding because which is waiver noted, agreement. Id. As we have new voluntary relinquishment known any agreement there is no real assent to Thus, pleaded proved by fight Helen’s right, induced fraud. fraud, there could be no jury’s finding of signing of the two decrees.” As we have agree- mutual accord there was no noted, because any agree- there is no real assent to ment. jury found ment induced fraud. The Any in the Glenn committed fraud. error Novation G. ques-
trial court’s failure to submit Glenn’s trial court erred Glenn asserts the regarding tions waiver is harmless. refusing regarding whether a questions signed when Helen F. Accord and novation was effected satisfaction 356 pro point nunc tunc overrule Glenn’s of error four May decree or portion point of Richards’ of error agreement. The essential ele
June alleged error in re- (1) seven that deals with previous, ments of novation are: fusing jury questions. her tendered (2) agreement a mutual obligation; valid parties acceptance to the of a new Objections Charge (3) contract; extinguishment of the old (4) contract; Rich- validity In Glenn’s of error five and of the new seven, Martin, appellants ards’ Flanagan contract. 880 S.W.2d overruling the trial court erred assert (Tex.App. writ — Waco objections charge. numerous w.o.j.); dism’d Mandell v. Hamman Oil (Tex. Co., Necessity predicating Ref. fraud and A. 1991, writ App. de [1st Dist.] fiduciary duty questions on bill of re- — Houston nied). view *14 stated, repeatedly we have fraud viti- As a asserts that because this was it, every by tainted and ates transaction questions the proceeding, bill of review any agreement is no assent to there real underlying judgment9 had to attacking the by jury fraud. Because the found induced finding that Helen predicated upon be fraud, Glenn committed he cannot estab- was entitled to bill of review relief. He first, second, asserts, lish the or fourth elements previous no valid ob-
novation—there was questions' in The manner which these ligation, agreement no mutual to the ac- presented provid- had the effect of were contract, ceptance of a new and no valid remedy in bill of ing Helen a addition to Any failing least, new contract. error in to sub- and, very if at the even review question regarding predicated mit the tendered nova- proper, should have been upon finding supporting tion bill of review is harmless. brought a relief. Helen could not have H. Ratification if these actions could have bill review the trial court erred in Glenn asserts brought independently. pres- To been refusing regarding whether questions without independently, these issues ent three any Helen ratified or all the predicate, was error. agreements. He states ratification rests argument ap- on understand Glenn’s We to confirm upon a manifestation of assent (1) сomplained-of peal to be twofold: another, or that of prior one’s act predicated questions should have been “pleaded proved ... ratification was upon finding that Helen was entitled by signing.” assume Glenn Helen’s (2) relief, not of review Helen was bill signing refers to Helen’s of the three if she was entitled to bill of review relief agreements. Again, there can be no real bring independent action entitled to fraud; by any agreement induced assent fiduciary duty fraud. breach of sign if induced fraud to Helen was pointed any place the record has not agreements, she cannot have mani- three be- complaint this latter was raised where signed. to the documents she fested assent Any argument the trial court. fore refusing ques- the tendered Any error Additionally, Glenn has therefore waived. regarding ratifica- tions and instructions authority proposi- for the provided tion was harmless. questions had complained-of tion that the that Helen predicated finding on a to be I. Conclusion fiduciary duty with was committed complains breach of questions about which Glenn 9. The harm, (1) (3) whether Glenn whether are those that asked to cause the intent fiduciary duty concern- breached his to Helen Glenn committed fraud (2) (pred- ing property, the division of marital property. respect of marital to the division question) whether the previous on the icated was entitled to bill of review relief. Final- marital “all property tions defined separate property owned ly, although complained-of questions spouses either or both as of November predicated finding were not on a that Hel- 22,1991.” relief, en was entitled to bill of review question
bill of review was submitted to argue that trial Richards and Glenn jury; jury found that the division in using phrase court erred “marital of marital property was the result of ex- jury property” because allowed the part, trinsic fraud on Glenn’s unmixed with separate take into consideration Glenn’s Thus, any negligence part. any property couple’s community as well as the Helen’s TexR.App. states, property. Glenn “The term ‘mari- error would be harmless. See property* charge tal as used skewed P. 44.1. jury could consider and proper- B. Use of the term “marital ultimately judgment.” affected the ty” Any use “mari- error of the term Both complain Glenn and Richards property” tal judg- was harmless. The about the use of the term “marital proper- damages ment does not award Helen the ty” jury one, three, four, five, questions found for “loss of marital and six. Glenn, property.” respect to the tri- With al proper- court made its own division of general preceded instructions that *15 10 Richards, ty; respect the trial charge separate defined and communi- only damages awarded Helen ty Question asked, property. number one anguish, damages mental and not Vickery “Did fiduciary Glenn breach his by jury prop- found for loss of marital duty Vickery concerning to Helen the divi- erty. sion of the marital of Helen Vick- ery and Vickery?” Question Glenn three Fiduciary duty C. askеd, “Did Dianne Richards breach her trial Glenn asserts court erred fiduciary duty Vickery rep- to Helen while one, allowing question in which if asked resenting Vickery Helen in the divorce and fiduciary duty Glenn breached his to Hel- marital property division between en, duty fiduciary because assumed a Vickery?” Question and Glenn Helen, between “which exis- four if asked Glenn committed fraud fiduciary relationship tence of such should against Helen in the division of the cou- have, least, very predicate at the been
ple’s property. Question marital five question.” if couple’s asked the division of the marital A spe husband and wife owe each other property was the result of extrinsic fraud fiduciary cial duties. Matthews v. Mat Glenn, by any negligence unmixed with on thews, 275, (Tex.App.— 725 S.W.2d 279 six, part. Question Helen’s damage n.r.e.). Houston writ refd [1st Dist.] question predicated on the answers to Additionally, significant we think it is four, questions one and asked what sum of attorney. an Glenn is To the extent money compensate Helen for her advising legal as Glenn was damages by caused the fraud or breach of pects of a transaction which he would fiduciary duty “concerning of Glenn benefit, “high duty Glenn assumed the property” division of the marital of the Bohn, attorney an to his client.” Bohn v. Question 6A, couple. damage question (Tex.Civ.App 455 S.W.2d . —Hous six, dism’d). identical question related to Rich- ton writ Because [1st Dist.] ques- fiduciary duty ards. The instructions to all had a to Helen as a these disposition property. points 10. See of Glenn’s regarding nine, 10, and 11 division of Richards, law, ciary duty by in Dianne did not err the trial court
matter of
if
”
inquiry
omitting
an
Any
....
error
objection
question
overruling Glenn’s
is there
injury
question
six
regarding
one.
omission
hold that the
fore harmless. We
definition
complains about the
Richards
attor
“which is known to the
phrase
of the
duty
jury question
three.
fiduciary
not error
the instruction was
ney” from
provides:
That instruction
Finally,
necessarily implicit.
it is
because
attorney
relationship
an
between
error to describe
hold that it was not
we
fiduciary in nature.
highly
and client is
attorney
relationship between
special
fiduciary relationship is one of
A
fiduciary.” See Judwin
“highly
client as
and the law re-
trust and confidence
Harrison,
Griggs &
Properties, Inc. v.
an at-
dealings
that all
between
quires
(Tex.App.
[1st
— Houston
be characterized
torney and client
writ) (“The
attorney-client
Dist.]
faith, candor and hones-
good
the utmost
nature.”).
fiduciary
relationship
highly
affirmatively
attorney must
dis-
ty. An
D. Fraud
facts bear-
his client all material
close to
question
fraud
submit
asserts the
case, as well as the
ing on the Ghent’s
phase
“a shade
ted to the
consequences flowing from
legal
fiduciary duty”
alleged breach
fact” is a fact which
facts. A “material
errone
was therefore
and the submission
person under the same
reasonable
upon which he relies
The authorities
ous.
circumstances,
im-
would attach
similar
that the breach
proposition
for the
stand
determining
his course of
portance to
existing
relationship
be
fiduciary
conduct or action.
to the com
and wifе as
tween a husband
appeal:
Richards asserts on
spouse
each
munity property controlled
3[,]
was submitted
Jury question
which
community.” In
a “fraud on the
is termed
only in-
objections];,]
Appellant[’]s
over
Moore,
821, 827
Marriage
re
*16
of
a technical
there was
quires whether
writ).
In
no
(Tex.App. — Amarillo
a material
by failing to reveal
breach
Moore,
appeals
of
stated:
the court
proper-
in marital
divorce or
fact in the
marital rela-
in the
Any such conduct
division],
inquire
does not
ty
and]
fraud on the commu-
tionship is termed
Ap-
was harmed....
Appellee
whether
because,
actually
although not
nity
Jury Ques-
objected to the
pellant also
fraudulent,
consequences
all the
it has
contain the
because it does not
tion 3
fraud in that
of actual
legal
effects
is
fact which
[]
a material
[“]to
caveat
the other
conduct tends to deceive
such
attorney.”
Appellant
...
to the
known
confidences that exist
spouse or violate
“highly”
the
objected to the word
also
marriage.
a result of the
Jury Question 3 as a com-
Instruction
However,
in this
question
fraud
Id.
the
weight of the evidence be-
on the
ment
actual
if Glenn committed
case asked
duty exists between
fiduciary
a
cause
fraud,
fraud.
not constructive
“high-
and is not
attorney and client
by
community”
a claim
“Fraud on the
fiduciary in nature.”
ly
improper
against another
spouse
one
complaint
community
prior
first
Richards’
estate
depletion
We understand
community. Belz v.
was erroneous
question three
of the
to be that
dissolution
Belz,
(Tex.App
had
ask whether Helen
it did not
because
. —Dal
n.r.e.).
Fraud on
Richards’ actions.
writ refd
damaged by
las
been
indepen
anas
6A,
community
permitted
what
is not
jury was asked
question
suit; it is
in a divorce
action
dent cause of
damages
compensate
amount
can
that the court
by
spouse
wrong
a
one
any, that were
damages,
“her
Helen for
if
property and
division of
in its
of fidu-
consider
by the breach
caused
proximately
may justify
unequal
disposition of the
fraud occurred because if such was non-
May
voluntary
existent in
Helen’s
property.
Id. at 247.
signing
may
wiped
at
out
that time
have
However,
spouse may,
in the context
any error associated with the November
divorce,
of a
recover for other intentional
authority
signing.”
provided
Glenn has
upon
torts
spouse during
committed
argument
that the broad form sub-
Moore,
marriage.
Glenn complains also the fraud property” division of the marital of Helen question “specify did not a time frame that jury and Glenn. The was asked to deter- alleged perpetrated.” the fraud was He damages mine the amount of for loss of asserts this was error because “different property anguish. marital and for mental facts existed in November of 1991 $6,700,000 versus It for of marital awarded loss 1992; May specifically, Appellant $1,300,000 of had a property an- for mental right jury to know guish. judgment when the deemed this The trial court rendered million, marital property
of totalled $6.7 judgment the trial not court did render for $1,300,000 for in mental anguish the dam- made a this amount. The trial court divi- ages prejudgment on the interest sion of the property marital awarded marital damages property. for loss of only prejudgment interest on following complaints Glenn raises re- Thus, Helen did not million. re- $6.7 (1) garding question six: because this was a money judgment ceive Glenn’s fraud case, a of not enti- bill review respect of marital proper- with to her loss (2) damage question; just a tled to ty; only prejudgment she received interest right property solely of was- within division error, of on that amount. In this court, jury trial province and the argue Glenn does not that Helen was not issue; (3) this could not decide there is not entitled to interest. prejudgment this His a of action separate cause for fraud for complaint regarding the award loss of may damages recouped by which be one marital is without merit. (4) another; spouse against although the could argues Glenn also jury was instructed that one the factors of just a right prop- make division of awarding it damages could consider in erty. To we understand the extent this of value separate the “enhancement of complaint, hold it is without merit.11 we pleadings sup- property,” there were of prop- The trial court made the division reimbursement; (5) port mental an- erty. guish “an is not element of recoverable fiduciary duty damages objected for breach that he at trial to argues fraud.” question damages six for fraud regarding and/or separate because “there is not a cause of asserts bill of review damages may action for be recouped which in a money judg “should not culminate spouse against one another for fraud ment, requires portion rather but that the during marriage, may only but be consid- original judgment be set aside and a judge in awarding ered the trial judgment new rendered.” We assume disproportionate community division of the complaint refers award for loss injured spouse.” again estate to He and not property, marital the award for Moore, argument cites no additional anguish. upon mental relies Kessler authority this assertion. support Kessler, 522 (Tex.App.— n.r.e.), writ Corpus Christi refd distinguishable. We find Moore part: provides which Moore, Appeals the Amarillo held Court proceeding A bill of review based on separate that no of action for cause fraud contemplate fraud does not extrinsic in a community on the exists divorce ac- merely judgment of a which rendition tion. 890 Fraud on petitioner money awards the because community upon spouse’s “perpetrated fraud, contemplates such but re- interest estate of the entire and the examination case Here, parties.” Id. Helen claimed that judgment fairly and rendition of a which *18 sign fraudulently induced her to the Glenn all finally disposes of issues raised the to her that by representing divorce decree original trial and the bill of review malpractice they would after the reunite itself. misrepresen- passed. suit threat had Here, of although tations affected more than Helen’s share at 526. the acquiesced community property; that Helen’s for the jury damages found loss Vickery division of Glenn jury instructed that "loss of mari- of the estate 11. The was property” was that Vickeiy, tal Helen over and above amount actually any, you may which received from money, if award a sum of value, Vickery equal property.... to as of to Helen the the of marital division right just of a Novembеr
361 argument pleadings Helen’s concerns the However, underlying in the divorce suit. to a divorce she did not the belief want on complaints we Glenn’s ad- understand to that she Glenn would More- reunite. dress in the bill of pleadings the review over, Glenn’s fraud after continued the action, underlying not the divorce. Unfor- divorce. We hold is complaint this without tunately, provides argu- no other merit. to this relating ment issue. next asserts the trial erro- Nonetheless, we find any error in neously instructed that one of the factors factor in submission of this the instruction jury jury could consider in award of be harmless. The was instructed its “[ejnhaneement damages that one of the factors it could was the of consider value damages in awarding for loss of marital separate property of through property was enhancement of value talent, money, time, of contribution labor any separate property. However, of Hel- objected and effort.” Glenn there because en not for damages elected to recover her pleadings were no to support evidence property; loss of marital instead she took Specifically, reimbursement. Glenn as- property kind after the trial court although serts there of was evidence Any made a division. in- new error in improvements of property, the cost jury structing the about how to calculate was there no of evidence enhancement of damages for loss marital property. separate assume harmless. property to which Glenn refers is Moss Finally, asserts argues Hill. He the trial court prejudiced this factor submitting a damage erred jury issue as giving larger into judg- Helen a anguish. Specifically, mental he asserts: than ment it otherwise would have award- Gilliland, for [I]t ed. He cites was error the trial court to Anderson v. sub- damage mit a issue as anguish to mental (Tex.1985), S.W.2d “which holds First, for numerous reasons. mental claim that a reimbursement funds anguish not “an element of recovera- expended improvements estate for damages fiduciary duty ble for breach of another estate is to be measured fraud,” in a divorce as action such and/or enhancement value of the benefitted however, this[;] objection such was over- estate.” Moore, In re Marriage ruled. See response, Helen asserts: at 829-30. comprises This all of complaint argument Glenn’s lack Glenn’s about issue; identify any this does not pleadings to support reimbursement why the other “numerous reasons” the tri- particularly galling goes because al already court erred. We have found heart of what is all lawsuit distinguishable. Moore to be Glenn has plead- about. course there were Of why identified reason submission ings support reimbursement because damage regarding issue mental an- purported attorney, Helen’s Dianne guish was error. Richards, was actually working for part As damages point Glenn. for We overrule Glenn’s of error five fraud, consider Richards’ error seven. entitled to fairly reasonably what Helen 5. The Trial Amendment had if uр have Glenn had not set a sham-attorney of his part three and Rich- *19 six,12 fraudulent scheme. error point ards’ of the defendants 12. respect Richards has not briefed this issue. She to issue. adopts argument Glenn’s with authorities Well,
complain suggesting that the trial court erred in I’m a continuance not all, Judge. at this at I have told time granting trial After Helen’s amendment. my very client—I want to be candid evidence, close of counsel ten- Helen’s my Court —I told client that I have In the proposed dered trial amendment. prepared try am to I think its case. amendment, argued trial Helen that Glenn case; try to I within his interest judicially estopped relying was from on the imperative think it that he be avail- agreement August June 18 because at the said, I try able to me to the case. I enforce, hearing on his to motion voir probably get through could dire had relied on the divorce decree and he today necessary, him if but that without pro nunc tunc decree. She asserted that get shape if he he needs to himself agreement arguing the June 18 during me can to assist the trial.... agreement, enforceable Glenn was jury panel only trial The court told taking position “totally that was inconsis- that Glenn was excused from voir dire. position proceed- with the taken in the tent jury day. was selected that The ing to enforce decree which was heard on day, following The Raborn informed the August 1992.”13 The trial amendment extremely ill, trial court that Glenn any court specifically asked the to disallow hospital, admitted to the had been jury agree- issue raised June undergoing would be tests to determine agreed, allowing ment. The trial court of condition. The trial the seriousness his to file the trial amendment ill jury told the that Glenn was court judicial stating estoppel would control. day. in court that After the be disposition we of As noted our statements, attorneys their opening made point point of error four and Richards’ of testify. was called the stand to seven, error found fraud which trial, day The third of before Helen’s agreement. vitiated the June 18 There- continued, testimony Raborn told trial fore, we error allow- conclude that, doctor, talking to Glenn’s after ing the trial was harmless. amendment personally “I have reached the conclusion point overrule Glenn’s third error going that I’m not to have Mr. sixth of error. and Richards’ available me for the trial of this case. me, only Not is he not available to he’s Relating Points Error drug I.V.’s and apparently on some sort Solely to Glenn I him.” Raborn she was can’t talk to said doctor, getting an affidavit from Glenn’s for Motion Continuance moving be for continuance. and would 2(A), Glenn asserts stated: She motion denying trial court his erred Every- long depositions. have had [W]e a continuance. body ready go forwards may [sic] be 9,May has Crohn’s disease. On just I I’m depositions. don’t know. trial, day ill. the first he became trying everybody to tell what situa- attorney, began, voir Burta going Before dire tion is and what I’m to do soon Raborn, And, permission the trial court’s I Dr. affidavit. asked as have Schwartz’s hаp- frankly, happens quite Glenn to see his doctor. Raborn told whatever my control. pens. It’s out the trial court: negotiations) provided that during settlement 13. pro decree and nunc original divorce on or before December provided leaves House judgment that Glenn would "Helen tunc received the relief he 1992....” Glenn possession [Helen] of Moss Hill "when take sought hearing on his motion en- during the the Houston residence moves into Moss Hill was ordered leave handwritten June force—Helen summer of 1992...." The August (signed by end agreement Helen and Glenn at the
363 Helen was then recalled to the stand to 624, (Tex.1986); Kelsey- 626 Levinthal v. continue direct examination. Clinic, P.A, 508, Seybold 902 S.W.2d 510 recess, 1994, After (Tex.App. noon Raborn filed no [1st Dist.] — Houston writ). Glenn’s motion for continuance. The grounds for continuance were: party of a not mere absence does presence Defendant’s at trial ... is es- him Humphrey entitle to a continuance. attorneys sential for adequately his to (Tex. 480, v. Ahlschlager, 778 483 S.W.2d Further, represent him in this matter. 1989, writ); App. no Brown v. — Dallas gravely prejudiced Defendant will be if Brown, 135, (Tex.Civ. 137 S.W.2d proceed
this trial is
to
writ).
allowed
without
1980,
App. Corpus
no
Christi
—
presence
his
will in all
[his absence]
party
absent
must
that he had a
show
deprive
likelihood
Defendant
op-
of the
being
reasonable
not
present,
excuse for
portunity
equitable
fair and
prejudiced by
receive
and that he was
his absence.
(Tex.
State,
160,
verdict.
Green v.
writ);
Civ.App. Tyler
no
Erback v.
by
The motion
supported
was
—
affidavit
Donald,
(Tex.Civ.
170 S.W.2d
291-92
Schmaltz,
Dr.
physician,
Glenn’s
Jim
writ).
App.
no
A rea
Worth
— Fort
diagnosed
who
condition
“ex-
being present
sonable
excuse
not
does
up
acerbation or flare
of his Crohn’s coli-
require
prejudice
not
if
reversal
no
is
tis.” Dr. Schmaltz stated that “it would be
Green,
163;
shown.
at
589 S.W.2d
Er
life threatening” for Glenn to leave the
back,
Tex.R. Civ. And doesn’t he wanted divorce. he asserts Hoaglund’s Glenn conversations courage jury. face this have to nego- “proper with Helen were settlement objected Krist had Glenn’s counsel that and Rule tiations” therefore inadmissible. his own motion limine.15 The violated require not does exclusion when objection. trial court overruled purpose evidence is offered for a other highly is prejudi- asserts this statement so for, of, prove liаbility invalidity than or to it requires cial that reversal. or a claim its amount. Helen’s seventh judgment of a on the To obtain reversal petition, when pleading amended the live improper jury argument, appel basis of an trial, parties went claim contained a (2) (1) error, prove lant must an that for intentional infliction of dis- emotional (3) pre provoked, not or that was invited tress based these conversations by proper predicate, as served trial such alleged Glenn’s threats her. Helen instruct, or a objection, an a motion to offered evidence of these conversations (4) mistrial, that was not cura motion support of her claim for intentional inflic- instruction, by prompt ble withdraw distress; tion of ar- emotional her counsel statement, al a reprimand gued that Glenn’s threats “caused her (5) judge, argument by its anguish great It concern. is some- extent, nature, degree, and constituted re thing very definitely part versibly harmful error. Gorman v. Life only cause of action in case.” this Am., N. Ins. Co. of authority for his assertion that evi- this 1993, no (Tex.App. [1st Dist.] — Houston dence is inadmissible is his citation to rule writ). if probabili We must determine only it is argument is that ty improper argument caused inadmissible because the conversations greater probability that harm is than the negotiations. constituted settlement proper proceed was based on the verdict evi- Glenn has not demonstrated that the Id. at 388-89. The ings and evidence. dence was inadmissible. argument must be evaluated improper 2(D). case, voir light beginning the whole with We overrule Glenn’s error manager. did to know that 14. Janet Brewer was Glenn’s office 15. Krist not want trial, subpoena appear at hospital Under Brewer was in the or about the seri- letter, accompanied by a state- sent a doctor's ousness his condition. ment, stating appear. she was too sick to investigated counsel Helen's learned Europe. trip was on a Brewer two-week ending closing manager. She shown argument. ness hasn’t dire day. Weinberg Mr. [Richards’ counsel] at 389. Id. talking learning things from about ease, jury had In this been told what is said. what’s not said well as trial, was sick and unable to attend things people You about who can learn limine, but due Krist’s motion only subpoenas, but vi- avoid—not avoid ill jury had not told Glenn so been subpoenas. olate hospitalized. had been then that he Krist object did to these Glenn’s counsel *23 by argu- his own motion in limine violated preserve on statements. To error curable courage ing did not the to face have argument, object request must and counsel in the courtroom. We hold the trial to Texas Em disregard. instruction objection overruling court erred Glenn’s Puckett, ployers Ins. Ass’n argument. Krist’s to (Tex.App. [1st Dist.] — Houston Nevertheless, we conclude the error was denied). Objection is not writ re harmless. We have reviewed the entire argument, in case of quired the incurable complained-of statement was record. argument which defined as so inflamma is comment, lengthy closing in a an isolated tory prejudicial that its harmful or nature argument. presented evidence by an cann'ot be cured instruction disre jury, much of which is detailed elsewhere gard. appeal asserts Id. On the opinion, in 10 volumes. be- this fills argument highly prejudicial so that was very probability is that lieve there little objection unnecessary preserve er was was, comment, though it egregious this ror. asserts was no evidence He there outcome could have affected the of was, gold and that Brewer knew where the case. support Krist’s assertion evidence also of Krist’s com- complains the that he Brewer violated sub believed noting about Brewer. After ments Janet committing perju poena in to avoid order in was absent violation Brewer from ry. court’s Krist stated: subpoena, argument was so We do not believe the where [sic] She is the woman knows prejudi- that its or inflammatory harmful is.[16] gold the cured cial could not have been nature knows is the woman that the true
She disregard. an instruction to Vickery’s estate. value Glenn Glenn’s of error six. We overrule and Division of 4. The Bill of Review give can do I think the least we Property Vickery— Mrs. —Mrs. doubt the assets
the benefit the In of error seven and points discovered, the 15.4 million. that we’ve legally eight, complains the he evidence Brewer is not why I feel that’s Janet support insufficient to the factually having to perjure in order to avoid here the mari- jury’s finding that the division of of this her own self in violation Court’s the result of extrinsic fraud tal estate was subpoena. any on Helen’s negligence unmixed asserts kept part. the In nine and he the points
She was
one who
records
just
right
the,
quote,
trial court did
make
gold.
was
busi-
She
gold
disputed.
In the
gold
approx-
location of
16. The
to which Krist referred is
imately
gold
Hoaglund
coins
$1 million in
that Glenn
between
recorded conversation
deposition
In
purchased
testimony,
Helen,
from a
dealer.
local
Hoaglund made
references to
several
purchases
that the
Brewer stated
deposi-
possession.
gold
In his
in Glenn’s
customarily
to her at Glenn’s
were
delivered
tion,
thought Helen had
that he
Glenn stated
office,
gold
take
and that
given
gold and
it to a relative.
taken
deposit
possession and
box. The
Glenn’s safe
fully
petitioner
pre
prevents
its discre-
from
division
and abused
in
under
claim or defense
dividing
senting
estate.
tion in
255;
lying
830 S.W.2d at
legal-
action.
he asserts the
evidence
Bakali
In
party, collateral to
in the
asserts Glenn concealed
the issues
313. Helen
gave
17. We note that while
testified he
for the divorce was for
Glenn
reason Glenn
marriage
sought the divorce
had
because the
protection of assets.
deteriorated,
only
Richards testified that
divorce,
alternatively
her
sion the
wanting
his real reason for
Court
makes of
property to be undivided
Wright
[sic]
as the fact that June
of-
well
November
1991 Decree
Divorce
malpractice
fered to settle her
suit for
Pro
May
and the
1992 Nunc
Tunc
policy
signed
limits before Helen
the di-
Judgment
in accordance with Article
conclude
vorce decree. We
the evidence
3.91(a)[18]
Family
Code.
legally
factually
support
sufficient
finding
fraud.
of extrinsic
estate,
order
the marital
then divides
awarding
percent
Helen 58
estate
further asserts
did not
awarding
percent.
fault or negligence.
show she was without
potes
only
the bill
challenges
notes, among
things,
He
other
that Helen
review, and not the alternative basis for
assistant,
legal
was a
claims she did not
Thus,
judgment.
argues,
Glenn’s chal-
it,
signing
read the divorce decree before
lenge
to the bill of review immaterial
called
admits she never
or wrote to
and the
be affirmed on
judgment must
any neg-
further
Richards. Glenn
asserts
ground.
basis of
independent
Helen;
ligence
imputed
of Richards is
judgment
If a
on more than
rests
one
specifically,
negli-
he asserts Richards was
by the
ground,
party aggrieved
judg
gent
filing
petition
the divorce
without
assign
ment “must
error as to each such
Helen,
speaking
informing
not
Helen of
judgment
ground
having
or risk
af
filing
inventory,
legal rights,
not
to which no
ground
firmed
error
they
go-
telling
Helen when
were
assigned.”
Dep’t
Human
Texas
*25
ing to court.
Orr,
Resources v.
relied
Helen testified she
on Glenn and
writ).
Here,
(Tex.App. — Austin
attorney,
her
Richards. Glenn was not
trial
marital
court divided the
estate
only
husband; he
an at-
Helen’s
was also
to
pursuant
granting the bill of review and
say
cannot
torney. We
Helen’s reliance
property
alternatively as a division
undi
attorneys, both of
two
whom were
these
by
judgment
vided
the divorce decree
Helen,
to
respect
neg-
fiduciaries with
pro
agree
nunc
tunc.
with Helen that
We
ligence.
agree with
also
We
challenge
because
did not
the alter
imputed
acts should
be
Richards’
by
trial
given
native reason
court for
petition
Helen. Richards filed
divorce
estate,
dividing
marital
Glenn’s chal
and
answer and counterclaim at
Glenn’s
lenge
finding
on the bill of review is
It
inappropri-
direction.
would be
immaterial.
ate
reward Glenn for actions taken
points
We
of error sev-
overrule Glenn’s
Richards at his own behest.
eight.
en and
judgment
Alternate basis for
B.
property
C. Division of
judgment
in
provides
court’s
The trial
In points nine and
Glenn asserts the
part that
just
right
trial court
make a
and
did not
granted
and the
its
the Bill of Review
division of
and abused
discre-
property
parties
dividing
estate of the
shall be
tion in
estate.
marital
22, 1991,
legal-
on the
he
the evidence was
divided as of November
asserts
basis,
support
ly
factually
which the
alterna-
insufficient
following
Court
of property.
is identical
the divi- division
tively adjudges
3.91(a)
property,
court shall divide the
provides:
Section
property
a manner that the
deems
in
decree of divorce or annulment
If a final
having
regard
just
right,
due
for the
dispose
a Texas court failed to
rendered
any
rights
party
children of the
each
subject
property
to division under Sec-
marriage.
though
code even
the court
tion 3.63 of this
3.91(a) (Vernon 1993).
§
spouses
jurisdiction over the
or over
had
Tex. Fam.Code Ann.
pro
nunc
tunc
original decree
3, 1994,
signed
the trial court
June
On
following:
Helen the
awarded
marital es- decree
a division of
two documents:
the marital
house
dividing
an order
contents of the
tate and
The residence
University;
division of marital estate
estate.19 The
in West
and the
of the estate
listed the assets
in
jewelry
personal
effects
Clothing,
The order
assigned
control;
to each asset.
values
subject to her
possession or
party,
those
awarded to each
listed
assets
name;
in Helen’s
any
account
Money
each, and
dollar value of
along with the
bene-
benefits or other
Any retirement
percent of
provided that Helen received 58
em-
existing by reason of Helen’s
fits
received
the marital
and that Glenn
estate
ployment;
percent.
judgment
The final
listed
bonds,
stocks,
in Hel-
Any
or securities
party,
to each
and included
assets awarded
name;
en’s
description
property
awarded.
policies in Helen’s
All life insurance
documents collec-
will refer to these
name; and
tively
judgment.
as the 1994
Pontiac.
A1955
legally and
asserts the evidence is
pro tunc decree
and nunc
The decree
factually
support
insufficient to
the values
following:
awarded Glenn
judg-
property
to the
in the 1994
assigned
house
and contents of the
The residence
Helen asserts that because Glenn
ment.
(Moss Hill);
County
Liberty
trial court’s alterna-
challenged
has not
personal effects
Clothing, jewelry and
found to be undi-
tive division
control;
subject to his
possession or
pro
nunc
vided
the divorce decree and
name;
Money in
account Glenn’s
judgment,20
judgment
tune
the 1994
should
bene-
benefits or other
Any retirement
be affirmed.
em-
existing by reason of Glenn’s
fits
points
eight,
of error seven and
we
ployment;
points of error
declined to address Glenn’s
stocks, bonds,
or securities
Any
sufficiency
relating
legal
and factual
name;
*26
Glenn’s
jury’s find-
supporting
of the evidence
the
in
policies
Glenn’s
All life insurance
ing that
committed fraud because
Glenn
name; and
challenge the alternative
Glenn failed to
practice.
Glenn’s law
dividing
given by
reason
the trial court
noted, the divorce decree
previously
As
However,
marital
we believe
the
estate.
respect
deliberately vague with
to address Glenn’s
appropriate
it is
Vickerys’
Specifically
many of
assets.
the
nine, 10,
11, in which
points of error
and
were, among
in the decree
not identified
not
complains
he
that the trial court did
annuity
paid approxi-
things,
other
just
right
prop-
and
division of the
make a
$35,000
(payable
a
to Helen
mately
month
erty. Even under Tex. Fam.Code
Ann.
stock,
coins,
Glenn),
gold
trea-
Pepsico
and
(Vernon 1993),
the trial court
§ 3.91
which
(the
bills,
Rockwall
sury
promissory
note
judgment,
gave
its alternative basis for
as
note),
antique
cars.
and a collection
property
marital
in a
it must divide the
divorce, in addition to the
“just
right.”
and
There-
the
manner that is
After
decree, Helen re-
fore,
relating
specified
in the
points of error
items
bills,
Pepsi-
$500,000 treasury
just
right
and
are
ceived
whether the division was
stock,
and a 1990 Suburban.
Co
properly before the Court.
property
provides the division of
previous
20. Thе order
discussed in the
19. This order was
review;
granted
review and the division
pursuant
section on the bill of
to the bill of
alternatively provided that
original
of review and
bill
divorce
property undivided in the
dividing previously undi-
the trial court
are identical.
vided assets.
$1,000,000
kept
treasury
denied),
bills. Until
[1st Dist.]
writ
the trial
clearly
court
abused
August
its discretion.
gave
Helen one-half of
monthly
annuity check.
McElwee,
the trial court mischarac-
community property
terized
as the wife’s
The award of
judg-
assets
the 1994
separate property.
at 189.
origi-
ment and the award of assets in the
We noted a trial court has broad discretion
nal
pro
divorce decree and nunc
tunc de-
making “just
right”
and
division of the
are, many respects,
cree
identical. The
estate,
community
and its decision will not
however,
judgment,
awarded some of
appeal
be disturbed on
absent abuse of
unspecified
original
the assets
in the
di-
appel-
discretion.
Id. We further noted an
vorce decree that had been
divided
may
late court
render
new division of
divorce,
parties after the
pre-
and awarded
property; only
may
a trial court
make a
viously unspecified and undivided assets.
division
community property.
Id. at
again
University
received the West
respect
189. With
to mischaracterized
contents,
effects,
house and
personal
bank
property, we stated:
accounts,
benefits,
Pontiac,
retirement
If the trial court mischaracterizes com-
stocks,
judg-
and life insurance. The 1994
munity property
separate property,
as
ment also
previously
awarded Helen those
property
then
get
does not
divided
unspecified
already
assets
had
re-
part
community
estate.
If
Suburban,
stock,
Pepsico
ceived: the
property
mischaracterized
has value
treasury
Additionally,
and the
bills.
have
trial court’s
affected
judgment
annuity.
awarded Helen the
division,
just
right
then the mis-
judgment,
again
Under
the 1994
characterization
re-
and.
harmful
was awarded
Hill property
the Moss
quires
appellate
court to remand the
effects,
contents,
accounts,
personal
bank
entire
estate to the trial
just
benefits, stocks,
insurance,
right division
retirement
life
If,
properly
community.
characterized
practice.
judgment
law
The 1994
hand,
on the other
the mischaracterized
previously unspecified
also awarded those
only
had
a de minimis effect
already
assets Glenn had
received:
just
right
the trial court’s
divi-
(and
collectibles),
antique cars
other
sion, then the trial court’s error is not an
$1,000,000 in treasury bills. The 1994
abuse of discretion.
judgment
then awarded Glenn: all cases
(first
added).
emphasis
Id.
The trial court
office;
pending in his law
the Rockwall
approxi-
stated it had awarded the wife
note; annuity payments paid between De-
*27
mately
percent
community
61
of the
es-
1, 1991,
31, 1992;
August
cember
However, counting
tate.
the miseharacter-
gold
parties
of the
which the Court
“[a]ll
property,
actually
the wife
received
ized
exclusively
custody
finds
control
the
approximately
percеnt
64
of the communi-
in the amount of
Glenn W.
ty
Id. at 190. Had this
not
estate.
Court
$992,000.00.”
court,
remanded the case to the trial
we
first,
argues,
that the trial court
effectively
a
divi-
would have
awarded new
awarding
separate
“erred in
to Glenn his
community
percent
sion of
estate —64
the
estate,
Ranch,
Hill
than con
wife,
Moss
rather
percent.
rather than 61
We
remanded,
firming
separate property.”21
holding:
such as his
therefore reversed and
brief,
reply
argues
In his
that under
has more
when mischaracterization
this
decision in McElwee v. McEl
Court’s
upon
than a mere de minimis effect
the
wee,
division,
appellate court
(Tex.App
371 improvements, million dollars community than 1.3 estate remand the must $701,500 only valued at was the just right divi- for a the trial court in 1994. the divorce at the time of correct character- upon the sion based property. ization doctrine, inception-of-title the Under property. separate Hill is Glenn’s Moss Id. Wierzchula, 623 S.W.2d v. Wierzchula See (1) Hill was that Moss responds (Tex.Civ.App. [1st 731 — Houston (2) mischaracterized, if it was even writ). trial court could 1981, no Dist.] mischaracterized, was harmless. the error separate property. of his not divest Glenn argument. will address each Eggemeyer, 554 S.W.2d Eggemeyer v. 3, 1994, signed trial court the On June (Tex.1977). fact, was awarded MARI- “DIVISION OF document entitled separate proper Hill as his sole and Moss document, In this TAL PROPERTY.” judgment. in the 1994 ty as follows: Moss Hill was valued However, Hill though Moss even Moss Hill Ranch community separate property, 1) $575,000.00 House and 1 acre 2) $126,500.00 Land —202 acres any claim for has a reimbursement estate 3) $450,000.00 & autos cattle, Machinery, equipment discharge community funds used Hill assigned to Moss The total value v. money obligation. Rogers purchase then included the “NET COMMU- (Tex.App Rogers, 754 S.W.2d . — NITY ASSETS.” writ). 1988, no There Dist.] Houston [1st 7, 1994, signed trial court On June fore, to be community was entitled judgment, final in which it divided $63,500 that the com for the reimbursed estate,” man- “parties’ marital in the same pur munity paying toward off spent Again, reflected in the June 3 order. ner money chase note. in the division and Moss Hill was included community has a reimburse- also The Texas Su-
was awarded
Glenn.
enhanced valued
ment claim for the
phrase
preme
has held that
Court
which
determined
separate property,
parties”
only to com-
“estate of the
refers
fair market
between the
the difference
Cameron,
v.
munity property. Cameron
any improvements
before and after
value
(Tex.1982).
210, 214
mar-
community during the
made
Gilliland, 684 S.W.2d
riage. Anderson v.
that, al-
two documents show
These
(Tex.1985);
S.W.2d at
Rogers, 754
Helen,
including
ac-
though
parties,
case,
Hill was valued
In this
Moss
Hill
knowledged that Moss
was Glenn’s
(the
$66,000
price) before
purchase
nonethe-
separate property, the trial court
expended on it. Of
community funds were
community
mischaracterized it as
less
$66,000,
community was entitled
property.
$63,500,
balance
be reimbursed
Nevertheless,
we believe
error
сommunity
note. After the
paid on the
mischaracterizing
Hill
harmless.
Moss
prop-
million dollars on
spent over 1.3
inventory, which is evidence
Helen’s sworn
$701,-
only increased to
erty, its value had
Vannerson,
under Vannerson
house,
im-
fact,
*28
659,
(Tex.App.
[1st
$575,000 of the
—Houston
accounts for
provement,
denied),
1993,
writ
showed
Dist.]
con-
$701,500.
apparently
The trial
Hill before the
pm-chased Moss
Glenn
Hill’s
or all of Moss
that most
cluded
$2,500
$66,000.
paid
He
marriage for
was attributable
value
increased
$63,500
down;
remaining
paid
out
improve-
in
million dollars
more that 1.3
community
community.
funds.
evidence
by
Never-
made
ments
$1,359,910
community
theless,
community
in
is not entitled
showed
on
expended
it
im-
amounts
expended on
recover the total
subsequently
were
funds
en-
Hill; may only recover the
Moss
Despite
Hill.
more
provements to Moss
Anderson,
erroneously
hanced value.
684 S.W.2d at were
excluded from the valua-
tion of the estate.
First,
argues
Glenn
the trial court erred
judgment,
Under the 1994
Glenn was
by considering
inventory
Helen’s sworn
as
separate property.
not divested of his
In-
and,
evidence,
evidence
absent such
there
stead,
him,
property
was awarded to
support
evidence to
the values
along
separate
with a credit for the
fund
by
reached
property
the trial court in the
paid
payment
that he
as a down
on the
disagree.
division.
In
Vannerson v.
property. By
remaining
included the
val-
Vannerson,
857 S.W.2d at
this Court
division,
Hill in
property
ue Moss
performing
held that when
a division of
implicitly recognized
the trial court
property,
marital
the trial court could take
community
extent of the
in
investment
judicial
party’s
inventory,
notice of a
sworn
effectively
Hill and
Moss
divided the com-
which
papers
was filed and included in the
munity reimbursement claim between the
before the trial court and
referred to
parties.
trial
put
specif-
court never
judge.
trial
ic value on the amount of the reimburse-
The record in this case shows Helen’s
claim,
ment
and
Glenn does
contend
inventory
May
was filed on
implied
such
of that
value
claim
the trial court
inventory
referred to the
at
if
was excessive. Even
the trial court
hearing
Therefore,
May
value,
determined that all of the increased
properly
the trial court
considered Helen’s
$701,500,
community
expen-
was due to
inventory as evidence.
ditures,
giving
then
Helen reimbursement
Second,
argues
Glenn
there was no evi-
excessive,
for that amount would not be
support
dence to
the inclusion of Moss Hill
$1,423,-
given
undisputed
evidence that
community
Ranch
the valuation of the
community
spent
pur-
funds was
estate, because Moss Hill Ranch is Glenn’s
($63,500
improve
pur-
chase and
Moss Hill
separate property.
already
We have
ad-
$1,359,910
money
improvements
chase
+
argument
in response
dressed this
= $1,423,410).
points of
error nine and 10. Hel-
Although the court mischaracterized
inventory
en’s sworn
was evidence that the
community
Moss Hill
property,
community
approx-
as
we con-
had contributed all but
clude,
imately
purchase price
toward the
findings
absent
of fact and cоnclu-
$3000
improvement
of Moss Hill. The value
contrary,
sions of law to the
that such
Hill,
of Moss
initial
minus Glenn’s $3000
mischaracterization did not affect the trial
payment,
properly
considered
court’s division.
in dividing
property.
trial court
points
We overrule Glenn’s
of error nine
Third,
argues
the evidence is le-
and 10.
gally
factually
support
insufficient to
Glenn contends the
gold
“all
the award to Glenn of
of the
legally
factually
evidence is
insuffi- parties
exclusively
finds
which the Court
support
cient to
the trial court’s division of
custody
and control of GLENN VICK-
property.
support
of this
of er- ERY,
$992,000.”
in the amount of
(1)
ror,
argues
the trial court erred
argues
possession
gold
he was not in
by considering
inventory
Helen’s sworn
as
the time of the
division.
evidence of the value of the
deposition
Glenn testified
that Helen
(2)
property;
sup-
there
no evidence to
$800,000 $900,000 gold
had taken
Hill Ranch
port the valuation of Moss
being
such was either
held Helen or her
(3)
community property;
the evidence is
However,
family.
safety depos-
the bank’s
legally
factually
support
insufficient to
it records show no one other than Glenn
*29
finding
gold
that the
coins were in
signed
in to
and Janet Brewer had ever
(4) community
gold
stored.
possession; and
liabilities
access the box where
was
including
award
maining
damages,
tort
factually suffi-
legally and
This evidence is
each
anguish. We will address
mental
gold.
for
possessed the
to show Glenn
cient
separately.
contested awards
of the
argues
trial
Finally,
Glenn
anguish
Mental
from
by excluding certain liabilities
erred
Specifically,
property.
of
division
of
of
argues the doctrine
election
Glenn
$3,821,371.89 in tort
Glenn contends
recovery
actual
of
bars Helen’s
remedies
to
have
damages awarded
Helen should
anguish.
contends
damages for
He
mental
liability charged
a
been considered
marital
by electing to recover her
that
agree
community. We cannot
against the
review,
for-
under
bill of
property
assessed
damages
the tort
any
her tort
right to recover
of
feited her
community Liability. To so
be a
should
anguish.
damages, including mental
responsible
make
hold would be to
bars
of remedies doctrine
The election
to
damages
half of
tort
awarded
for
(1)
in
has
only
one
made
relief
when
conduct.
her because of Glenn’s tortious
(2)
more
choice
between two or
formed
compel
authority
to
has cited
(3)
remedies, rights,
states of facts
holding.
a
such
(4)
as to
consti
are so inconsistent
which
v. Aet
injustice. Bocanegra
We overrule Glenn’s
of error
manifest
tute
(Tex.
Co.,
848, 851
Ins.
605 S.W.2d
na Life
Entry
judgment
D.
1980)
purpose
the election of reme
The
Glenn contends
recovery
prevent
doctrine
to
double
dies
judgment
entering
trial court erred
a
Oaks, Ltd. v.
single wrong. Green
for a
beyond
just
right
division
Cannan,
(Tex.App.—
749 S.W.2d
(1)
an award
property because
included
1987),
cu
per
Antonio
writ denied
San
(2)
damages,
anguish,
punitive
mental
(Tex.1988).
riam,
plain
A
In this there is no recovery. double Helen recovered The term property encompasses her marital un- “interest” two der distinct so, compensation; the bill of forms of doing review. interest as interest damages. and interest as right $6,700,- forfeited her Cavnar to recover the Inc., v. Quality Control Parking, award for the loss of her marital (Tex.1985). 551-52 property.22 Interest Allowing Helen to recover her compensation as interest is by allowed property marital law is not inconsistent with by parties or fixed for the use allowing her to recover for mental anguish money. detention of Id. Interest as dam- she suffered as a result of Glenn’s actions. ages compensation by allowed law as judgment does not contain a duplica- additional damages for lost use of the mon- tive award actual damages. The trial for. ey damages due during lapse as court did by allowing not err Helen to time between the accrual of the claim and recover for mental anguish. the date of judgment. Id. It is the damages 2. Punitive second of categories these present Second, argues Helen is not enti- in this case. tled to punitive recover damages because Cavnar, supreme court discussed judgment does not include actual the rationale behind an award prejudg- damages upon based fraud or breach of ment interest. fiduciary duty. disagree. Although primary objective awarding dam- Helen chose to recover proper- her marital ages in always civil actions has been to ty in lieu of an award under her fraud compensate injured plaintiff, rather claim for the loss of property, her marital than punish the defendant. A law she was also anguish awarded mental dam- recovery that denies prejudgment in- ages on her fraud claim. anguish Mental terest goal. frustrates this If a judg- damages Thus, are actual damages. there provides plaintiffs ment only the amount an award of actual damages upon damages sustained the time of the which to punitive base award of dam- incident, plaintiffs fully compen- are not ages. The trial court did not err They sated. have been denied the op- awarding Helen exemplary damages on portunity to invest and earn interest on her fraud claim. damages amount between the Prejudgment interest time of the occurrence and the time of judgment. $1,521,- The trial court awarded Helen added) (cita- 371.89 in prejudgment interest. This 696 S.W.2d at (emphasis omitted). prejudgment amount of interest was calcu- tions $6,700,000 lated and awarded based on the argues that because Helen chose jury verdict for property loss of marital property equita- redivide the under the a result of Glenn’s fraud and breach of forego ble bill of review she must However, fiduciary duty. Helen chose not interest, prejudgment which was calculat- $6,700,000 to receive the for the loss of her upon money ed based damages Instead, property. marital she elected to Thus, she chose not to recover. the issue portion recover her property of the marital right is whether Helen waived her to re- after a property new division of the under prejudgment cover choosing interest the bill of argues review. Glenn equitable bill of review. recovery
22. Helen concedes that a of the mar- the fraud claim would have been a double Therefore, property recovery. ital under the bill of review and she elected to recover damages property loss of marital under under the bill of review.
375
elected to
damages merely because she
involving pre-
are no cases
While there
of
equitable cause
action
issue,
under the
are
recover
there
judgment interest on this
damages.
taking the actual
opposed
that we
damages cases
punitive
several
finding of
actual
The record contains
similar.
find
Thus,
prejudgment
the
interest
damages.
v.
Texas Financial
Consolidated
readily
purposes
The
ascertainable.
was
Shearer,
(Tex.App.
477
739 S.W.2d
— Fort
allowing prejudgment
interest
behind
1987,
refd),
the
writ
homeowners
Worth
by allowing Helen to re-
be served
would
wrongful foreclo
sued the defendant
get a
it.
would not
double
cover
She
(1)
sought
They
sure.
alternate remedies:
the
of
recovery,
compensation for
loss
but
was null
that the trustee sale
declaration
property.
use of
the
her
(2)
void,
fair mar
damages
or
the
Accordingly, we overrule Glenn’s
in their
equity
of their
interest
ket value
error
of
jury
in favor
home. Id. at 478. The
found
them
of the homeowners and awarded
Relating
Error
Points of
$36,288
$20,000 in
damages
actual
Solely to Richards
damages.
at 479. In lieu of
punitive
Id.
Fiduciary Duty
$36,288,
ac
the
chose to
1. Breach of
homeowners
cept
equitable
declaring
relief
error, Richards
In her
first
void; however, they
null
trustee sale
rendering
the trial court erred
asserts
grant
requested the court to also
them
finding
her
she breached
judgment
$20,000
damages.
The de
punitive
Id.
fiduciary duty to Helen because there
argued
by electing equitable
that
fendants
sup-
evidence or insufficient evidence
no
relief,
were prohibited
the homeowners
(1)
that:
port
finding
B]
[A
collecting
punitive damages,
from
Helen of
material fact
failed to advise
which
from the
dam
were derived
actual
know;
(2)
[C
D]
Helen did not
Id.
that even
age award.
The court held
damaged.
had
Helen
been
though
equitable
the homeowners chose
jury
The
answered ‘Yes” to
follow-
relief, they
punitive
could
dam
collect
“Did Dianne Richards
ing question:
ages.
purposes
at 480.
Id.
The
served
duty
Vickery
fiduciary
Helen
breach
punitives
the defen
awarding
(punishing
Vickery in the
representing Helen
while
dants)
served, and
was a
would be
there
be-
property division
divorce and marital
damages,
though
even
finding of actual
Vickery
Vickery?”
Helen
and Glenn
tween
elected not to recover them.
homeowners
asked:
Jury question 6A
Id.,
&
Longview
also Nabours v.
Sav.
see
money,
any,
...
if
What sum of
(Tex.
Ass’n,
Loan
700 S.W.2d
reasonably compensate Helen
fairly and
1985)
even
(exemplary damages available
any,
Vickery
damages, if
for her
if
though
equitable relief
action involves
by Dianne
proximately caused
were
damages);
actual
finding
there
also
Richards,
any, concerning the division
if
(Tex.
Troy,
Fillion v.
656 S.W.2d
property Helen
of the marital
App.
writ refd
[1st Dist.]
— Houston
Vickery?
and Glenn
n.r.e.)
damages available when
(punitive
equitable
granted).
relief
OF MARITAL PROPERTY:
LOSS
$100,000.00
MENTAL ANGUISH:
$350,000.00
analogous to this
We find these cases
judgment
trial
rendered
interest,
Prejudgment
puni
like
situation.
$350,000
take
from Richards.
Helen
dam
damages,
tive
of actual
derivative
sufficiency
review,
A. Standard of
Lyles,
ages.
Corp.
Terrace Inv.
Bayou
the evidence
(Tex.App
. —Houston
writ).
legal sufficiency
not be
reviewing
We do
[1st Dist.]
evidence,
only
consider
evidence
forego
we
her derivative
lieve that
must
inferences,
viewed in
when
their most Helen and that
wanted
the divorce.
believed Helen.
light,
support
favorable
tend to
finding, and
all
disregard
evidence and We conclude the evidence
legally
*32
contrary.
inferences to
City
the
Davis v.
and factually
support
sufficient
the
Antonio,
(Tex.
518,
San
752 S.W.2d
522
jury’s finding that Richards
her
breached
of
1988). If
any
there is
evidenсe of proba
fiduciary duty to Helen. We overrule
1(A)
(B).
support
finding,
point
tive force to
the
Richards’
of
and
the find
error
ing
upheld.
will be
Sherman v.
See
First
1(C)
points
1(D),
In
and
Rich-
error
Bank,
(Tex.
Nat’l
242
760 S.W.2d
ards
is no
asserts there
evidence or insuffi-
1988).
reviewing
In
factual sufficiency
the
cient
damaged.
evidence that Helen was
evidence,
examine all
we
the evi
recover,
asserts,
Richards
must
Helen
dence,
only
and will set aside
verdict
if
show
a pecuniary
she has suffered
loss.
or
finding
true,
the evidence is so weak
assuming
proposition
is so Even
we
is
against
weight
great
preponder
and
hold there was sufficient evidence to dem-
been damaged.
onstrate Helen had
Rich-
ance of the
that
it
clearly
evidence
inventory
any
ards never filed an
or did
wrong
Bain,
unjust.
and
Cain v.
709
discovery
regarding
extent of the mari-
(Tex.1986).
175, 176
S.W.2d
tal estate. Richards testified herself that
fiduciary duty
B. Breach of
intentionally
she
drafted
divorce decree
A fiduciary duty
attorney
exists between
that
vague
Vickerys’
about
assets
Maverick,
po-
and client. Willis v.
760
order to conceal these assets from
S.W.2d
tential creditors. Helen and Glenn
(Tex.1988);
divided
645
Perez v. Kirk & Car
some of these undisclosed assets after the
rigan,
(Tex.App.—
265
However,
presented
divorce.
Helen
evi-
denied).
Corpus
writ
Christi
dence that Glenn had concealed million
$1
relationship
attorney
between
and client
$500,000
gold
treasury
and
bills from
requires
perfect
candor,
absolute and
her.
pe-
Helen established she suffered a
and
and
openness
honesty,
the absence of
cuniary
legally
factually
loss
both
Perez,
deception.
concealment or
sufficient evidence.
S.W.2d
We
point
overrule Richards’
of error
It
is uncontroverted Richards filed a
1(C)
(D).
petition for
divorce Helen’s name with-
ever
or
consulting
obtaining
out
her
Fair
Evidence of the
Market Value
It
permission.
is also uncontroverted
Community
of the
Estate
prepared
Richards
Glenn’s answer and
two,
point
of error
Richards asserts
counterclaim,
signed
her
someone
office
in rendering judg-
the trial court erred
Glenn,
filed
and her office
this docu-
against
ment
her because there was no
ment; Richards never informed Helen that
evidence or insufficient evidence “as to the
filed a
counterclaim. Richards tes-
fair market
of the whole or a sub-
value
tified she never
informed Helen Helen’s
portion
community
stantial
estate
legal rights in a divorce. Helen testified
appellee
without which
could not demon-
spoke
she never
to Richards about
damaged.”
strate
she had been
day
persuaded
divorce until the
three,
error
the trial
she asserts
sign
According
the divorce decree.
community
in admitting
erred
evidence the
Helen,
she did
she told Richards
not want
$1,400,000
spent
improve-
estate had
however,
divorce; Richards,
told Helen
ments to Moss Hill
evidence of the
right thing
Helen was
doing
be-
replacement
placed on his fur-
cost Glenn
protecting
family’s
cause she was
as- niture
effects after
di-
personal
by signing
Richards
sеts
the decree.
testi-
legally
vorce because this evidence was
and factually
fied she had discussed the divorce with
insufficient to establish the
actual or
may be classified as
market value
estate.
Fraud
fair
dis
Actual
involves
constructive.
fraud
these
assume
assertions relate to her
to deceive.
honesty
purpose or intent
argument
because
could
Griffith,
Archer v.
loss,
pecuniary
establish
suffered
(Tex.1964).
Constructive fraud
entering judgment
trial court erred in
duty
legal or
equitable
some
breach of
Richards. For the reasons articu-
fraudulent because it
the law declares
in our discussion of
lated
others,
confi
violate
tends to deceive
1(C)
(D),
points
we
overrule Richards’
dences,
Id.
injure public interests.
of error two
three.
actor’s
is irrelevant.
Id. Construc
intent
*33
in a
frequently
most
found
tive fraud is
Anguish
3. Mental
rela
fiduciary or
breach
a
confidential
of
five,
of error
Richards
point
In
asserts
(1943).
2(c)(2)
tionship.
§
37 C.J.S. Fraud
rendering
judg-
court
a
the trial
erred
fraud,
are ordi
damages
In an
for
action
anguish damages
mental
ment for
because
narily
to the actual loss that
limited
(1)
law,
matter
anguish
as a
of
mental
proximate
direct
of the fraud.
result
fraud,
not recoverable for constructive
Savage,
Realtors v.
545
Hudson & Hudson
(2)
factually
legally
the evidence was
(Tex.App. Tyler
—
support
finding
to
insufficient
mental writ).
alleged
caused
Richards’
anguish
(Tex.
Kerr,
In Boyles v.
ing factors support “spe- the existence of a First, cial relationship.” there was a con- eight, her Richards tractual relationship between Helen and asserts the trial court allowing erred Second, Helen, Richards. who testified question concerning counsel to getting she was coerced into a divorce she Disciplinary Texas Rules of Professional want, particularly did not susceptible (the rules.) disciplinary Conduct After Finally, emotional distress. Richards acknowledged Richards disciplinary susceptibility knew Helen’s to emotional rules were authoritative relevant with distress; Helen, according to her testimo- *34 respect to your “how to deal with client” ny, sobbed and told Richards on Novem- agreed the rules were the “ultimate ber 1991 that she did not want the authority area,” in that Helen’s counsel divorce. asked Richards a questions series of re- garding original her conduct in the divorce that, We hold under the facts of this application case and the disciplinary case, fiduciary duty Richards’ breach of rules that conduct. Defense counsels’ supports an award of anguish mental dam- objections to this questioning line of were ages.23 overruled. To for anguish, plain- recover mental similarly Helen’s counsel used the disci- prove tiff must painful such emotions as plinary questioning rules as a basis for
grief,
disappointment,
indignation,
severe
-witness,
expert
both Helen’s
Lilly,
Earle
shame,
pride,
wounded
despair,
public
or
witness,
expert
and Richards’
former Tex-
humiliation. Havens v. Tomball Commu-
Cook,
Supreme
Eugene
as
Court
(Tex.
Justice
nity Hosp., 793 S.W.2d
about Richards’ conduct.
Defense counsel
App.
writ de-
[1st Dist.]
—Houston
nied).
objected
disciplinary
to the use of the
rules
Richards asserts there is no evi-
during Lilly’s testimony,
object
but did not
proximately
dence she
caused the mental
during
to their use
anguish
cross-examination of
disagree.
suffered
Helen. We
appeal,
fоrmer Justice
days
Helen testified that in
Cook. On
she com-
after No-
plains only
during
vember
of the use of the rules
signed
the date she
the divorce
and,
testimony;
according
testimony,
argument
decree
to her
she raises no
the first time
about
use of
spoken
she had
to Richards
counsel’s
the rules
examin-
divorce,
ing Lilly
about the
“I didn’t eat.
I
cross-examining
didn’t
former Jus-
sleep.
I
very
cried all the time.
I was
tice Cook.24
intentional;
Kneip
23. Helen has directed our attention to
conduct was
Helen testified that
15, 1991,
Unitedbank-Victoria,
(Tex.
telephone
their November
con-
ERIC rehearing from denial of en banc. Cumulative Error majority’s I from the resolution dissent The defendants assert the cumulative four, five, points of error and twеlve. trial court’s error amounts to effect reversible error. We have concluded case, only special issues sub- In this Therefore, there is no reversible error. the division mitted to the concerned there no cumulative effect. We overrule property i.e., con- couple’s marital — of error 13 and Richards’ Specifically, issues structive fraud. those point of error 12. were: QUESTION 1
Conclusion fiduciary Did Glenn breach judgment. We affirm the Vickery concerning duty to par- Justices COHEN and WILSON also of the marital of Helen division ticipating. Vickery? Vickery and Glenn *37 App. publish. Do not Tex. R. P. 47. QUESTION 2 Chief Justice SCHNEIDER Justices COHEN, MIRAJBAL, WILSON, Vickery against Did commit fraud HEDG- Glenn TAFT, ES, Vickery in the division of the against and NUCHIA voted Helen Vickery and rehearing property marital of Helen en banc. Justice O’CONNOR Vickery? participate. did not Glenn regarding pending depo- In the argues con- her divorce. 25. Richards also the information sition, regarding Newey tained in the law firm's note an states he thinks Helen retained meeting alleged 1991, with Helen in the fall of 1991 but would have to his firm in November law- could be outcome-determinative in this records. The affidavit attached to check his meeting allegation of a suit. She based her reflects, however, Newey's quash motion Newey Newey’s depo- between Helen and on on that Helen first visited firm March testimony, sition in which he indicated Helen 1992. first contacted his office in November 1991 jury ques- ‘Tes” to both answered community proper- couple’s of the division tions.1 those actions into account ty is to take during couple’s of the commu- a redivision majority opinion correctly states estate; injured nity spouse is not enti- jury case went to the on the “[t]he separate monetary award tled to receive fiduciary duty (against issues of breach of Richards) I property. the redivision of addition to (against and fraud Glenn).” contention meritorious and find Glenn’s Maj. majority at 4. Op. What fifth of error. would sustain his only fraud acknowledge fails to is that the jury in the against claims Glenn contained community” is defined as “Fraud on the fraud in charge relate to his constructive wrong by spouse “a one which the couple’s community the division of the may in its of the estate of consider division question regarding actual property. No justify un may and which an parties jury. fraud was ever submitted to the v. equal property.” division of the Belz Belz, (Tex.App 667 S.W.2d single regarding damages In question . —Dal n.r.e.). A las writ ref'd trial court action, awarded for both causes of may judgment regarding enter the dam monetary damages based on Glenn’s spouse one as a result of ages suffered fiduciary duty during fraud and breach of spouse’s other fraud on the communi couple’s community the division of the however, is not ty. type recovery, This addition, property. granted In the court for an inde separate damages awarded as made a new Helen’s bill of review and Rather, pro pendent cause of action. Vickerys’ property. marital division of the spouse a means of vides the defrauded five, complains, сommunity recouping share of the part, questions regarding other lost as a result of the property fiduciary fraud and breach of Glenn’s fiduciary duty. fraud or breach of spouse’s damage question re- duty along with — Mazique Mazique, See action—were garding those same causes of (Tex.App. Dist.] [1st — Houston jury. improperly submitted to the writ); Belz, 667 S.W.2d at argues provided the submission Helen an Belz, the court wrote: remedy beyond granted additional community is claim of fraud on the namely, a redivision of [A] her bill of review— end, either to recover community The basis of a means to estate. wrongfully conveyed, specific property complaint that there is no inde- greater or ... to obtain a share of pendent cause of action for fraud or breach divorce, community upon in order spouse estate fiduciary duty committed one wronged spouse for compensate the other the division or lost interest property. He asserts parties’ community of a In the context divorce proper remedy for fraud estate. that the division, fraud on the communi- property in the fiduciary duty committed breach review, Ex- supported finding of extrinsic fraud. ques- respect to Helen's bill of With jury, charge asked the "[w]as tion five of the the division of the marital spouse present where one con- trinsic fraud is between spouse, other ceals material facts from the Vickery and Glenn the result thereby prevent- *38 spouse is and the defrauded by unmixed fraud extrinsic asserting legal right. Mont- ed some See from any negligence part of Helen with Vickery?” (Tex. gomery Kennedy, S.W.2d 313 v. 669 answered, jury "Yes.” Helen’s The case, 1984). concealed from In this having granted, she was been bill of review $1,000,- approximately the existence of couple's of the then entitled to a redivision belonged gold which to the com- 000 in coins community property. Therefore, did not know munity. because she language question five does not indi- existed, was unable to the coins at- majority opinion does not cate—and the any claim to them. by assert tempt explain conduct to —what
383
Bounds,
(wrongful
at 926
ty
wrong by
spouse
a
one
which the
560 S.W.2d
death); Price,
(negli-
732
at 316
S.W.2d
may
in
of the
court
consider
its division
inju-
personal
to recover for
gence action
may
parties
estate of the
and which
accident);
stemming from traffic
ries
justify
unequal
proper-
an
division of the
(intentional
For the reasons stated
fully dissent. TexR.App. P. 47.
Do publish.
Judgment opinion rendered and delivered 4,1997.
Dec. MOORE, Appellant,
Johnathan of Texas. STATE
No. 72638. Appeals
Court of Criminal of Texas.
April
Rehearing Denied Oct.