Andrews v. Sullivan

• Decision Date: 18 April 2002
• Docket Number: No. 13-99-512-CV.,13-99-512-CV.
• Citation: 76 S.W.3d 702
• Parties: Clarence and Zella ANDREWS, Appellants, v. Charles E. SULLIVAN d/b/a Charles E. Sullivan Realty, Appellee.
• Court: Texas Court of Appeals

76 S.W.3d 702

Clarence and Zella ANDREWS, Appellants, v. Charles E. SULLIVAN d/b/a Charles E. Sullivan Realty, Appellee.

No. 13-99-512-CV.

Court of Appeals of Texas, Corpus Christi.

April 18, 2002.

Eileen Marie Gaffney, Houston, for Appellant.

John C. Juravich, Thomas V. Erdos Jr., Erdos & Juravich, Sugar Land, for Appellee.

Before Justices HINOJOSA, CASTILLO and MAURICE AMIDEI.¹

OPINION

Opinion by Assigned Justice MAURICE AMIDEI.

This is an appeal from an adverse judgment following a jury verdict in a suit on an earnest money contract and for fraud to recover a real estate broker's commission.

Appellee, Sullivan Realty, orally contracted with Clarence and Zella Andrews, appellants, to find a buyer to purchase the Andrews' motor inn for a purchase price of $390,000; Sullivan was to receive a four percent real estate commission. Thereafter, Sullivan obtained a written earnest money contract and $5,000 earnest money from the Patel brothers expressly providing for a four percent or $15,600 real estate commission to Sullivan. The closing of the contract was delayed several times, but prior to closing the Andrews told Sullivan the sale was off, and at the Patels' request Sullivan signed a release of the $5,000 earnest money to the Patels. The month after the release the Andrews sold the motor inn to the Patels with the Andrews' daughter as the agent and without paying Sullivan any commission. At trial, the jury found in favor of appellee in each of six questions submitted to the jury as follows:

(1) Appellants' failure to comply with the agreement to pay a commission to appellee was not excused;

(2) Appellants obtained the release by fraud;

(3) There was clear and convincing evidence that appellants committed fraud against appellee;

(4) $15,600 would fairly and reasonably compensate appellee for its damages, which included only one element: The commission for the sale of the property in question (5) $20,000 is the reasonable fee for the necessary services of appellee's attorney in the case;

(6) $5,000 as exemplary damages awarded to appellee.

Standard of Review

The appellants' issues based on legal and factual insufficiency of the evidence and charge errors cannot be reviewed by the ordinary standard of review for insufficiency of evidence and charge errors because appellant failed to bring forward a record complete with all the exhibits. See Tex.R.App. P. 34.6(b)(1). Appellants requested a record and, although granted numerous extensions, never requested the exhibits as required. Appellants did not request a partial reporter's record. See Tex.R.App. P. 34.6(c). Therefore, we cannot hold the judgment is erroneous because of claimed factual or legal insufficiency of the evidence without a complete record. Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968)(per curiam). Nor can we determine whether there are any alleged charge errors because the entire record is not available for our review. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex.1986).

To preserve appellate complaints the record must show that (1) the complaint was made to the trial court by a timely request, objection or motion that stated the grounds for the ruling the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; (2) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; (3) the trial court ruled on the request, objection, or motion, either expressly or implicitly; or (4) that the trial court refused to rule on the request, objection or motion, and the complaining party objected to the refusal. See Tex.R.App. P. 33.1(a).

Issues Presented

Appellants' brief contains sixteen issues. Appellants group issues 1, 2, 3, and 4 to argue that jury question number 2 was improperly submitted by the trial court because it was immaterial and was not supported by sufficient proof. The appellants' only objection to jury questions number 2 and 3 was as follows:

My only objection to Questions number 2 and 3 is that I believe that it gives the Plaintiff two bites at the fraud question and there is no evidence of either fraud as far as Question Number 1 nor Question Number 3, so he attempts to have a fraud question with regard to Question Number 2 and Question Number 3.

The appellants' motion for judgment notwithstanding the verdict containing only one ground that there was "no evidence" to support the jury's finding of common law fraud was never ruled on by the trial court. The appellants' brief raises a new argument over the applicability of section 27.01 of the Texas Business and Commerce Code, and concludes jury question number 2 was immaterial. In an attempt to avoid waiver, appellants cite Brown v. Armstrong, 713 S.W.2d 725, 728 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.), for the proposition, "an objection to the submission was not even necessary because issues concerning the materiality of a question and sufficiency of the evidence to support a question may be raised for the first time after verdict." However, the Brown case is not on point because it holds that a trial court may on its own motion disregard the jury's answer to an immaterial question; it does not hold that a party who complains that an issue is immaterial and/or the evidence is insufficient may object or raise the issue for the first time after verdict or during appeal to preserve error on appeal. Id. Appellants' objection was not to the materiality of the question but made only the axiomatic statement that appellee was getting two fraud issues instead of one, and that the fraud evidence did not apply to question number 1, a contract question. Appellants tried to argue there were two fraud theories, and that there was evidence only as to one theory of fraud. In any event, jury question number 2 is material for the purpose it was submitted, i.e., whether there was any fraud in obtaining the release, and we must conclude the evidence of fraud supported both questions numbers 2 and 3.

Appellants have not met their burden to show there was legally or factually insufficient evidence to support jury question number 2 or any other jury question submitted in this case because they failed to bring forward a complete record on appeal. See Tex.R.App. P. 34.6(b)(1). The appellants requested and were granted numerous extensions to obtain the reporter's record but never requested the documentary exhibits. Although appellants could have brought forward a partial reporter's record, they failed to do so. See Tex. R.App. P. 34.6(c). Therefore, we cannot hold that the judgment is erroneous because of claimed factual or legal insufficiency of the evidence without a complete record, notwithstanding the above quoted objection appellants made to the trial court. Englander Co., 428 S.W.2d at 807. Further, we cannot determine whether there are any charge errors as contended by appellants because the entire record is not available for our review. Island Recreational Dev. Corp., 710 S.W.2d at 555. Therefore, appellants' issues numbers 1, 2, 3 and 4 are overruled.

Appellants' issues 5, 6, and 7 are grouped in their brief with the argument that jury question number 3 was improperly submitted by the trial court because it was confusing and would mislead the jury and was not supported by sufficient evidence.

Assuming, arguendo, that appellants filed the entire record and we could rule on charge errors and sufficiency of the evidence in this case, the appellants did not make an objection at trial that question number 3 was confusing and would mislead the jury as stated in their brief. The only objection made was a joint objection, quoted above, that the appellants used to object to question numbers 2 and 3 simultaneously, and does not express or imply that appellants were complaining that question number 3 was confusing and would mislead the jury as now argued by appellants. In this objection, appellants complain that there is insufficient evidence to submit the fraud question twice without explaining to the trial court why, or in what way, the evidence was insufficient to support the two issues regarding fraud. Now the appellants contend in their brief that question 3 should have been limited to only fraud in obtaining the release, but they did not request the trial court to so limit question number 3 in order to preserve the error, if any, for the record. The appellants' objection was not specific enough to enable the trial court to understand the precise grounds and make an informed ruling. Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex.1986). Appellants cite no authority to support their argument that question number 3 should have been limited to fraud in the inducement of the release. Even if the objection had been properly made, question number 3 was not too broad or confusing, considering the evidence presented, to allow the jury to make a fraud finding regarding the obtaining of the release. To limit the question as appellants now argue the trial court should have, would have been another phase or shade of the same question, which is not grounds for reversal of the judgment unless its submission is tendered in substantially correct wording in writing by the party complaining of the judgment. Tex.R. Civ. P. 278. Appellants failed to make a submission and request to the trial court to include in the charge a question with substantially correct wording. Further, even if there...