Ballesteros v. Jones

• Citation: 985 S.W.2d 485
• Decision Date: 18 November 1998
• Docket Number: No. 04-91-00568-CV,04-91-00568-CV
• Parties: Sandra BALLESTEROS, Appellant, v. James K. JONES and The Law Offices of Mann & Jones, Appellees.
• Court: Court of Appeals of Texas

Page 485

985 S.W.2d 485

Sandra BALLESTEROS, Appellant, v. James K. JONES and The Law Offices of Mann & Jones, Appellees.

No. 04-91-00568-CV.

Court of Appeals of Texas San Antonio.

Nov. 18, 1998.

Rehearing Overruled Jan. 26, 1999.

Marvin B. Zimmerman, Zimmerman & Zimmerman, P.C., San Antonio, Oscar C. Ganzales, Oscar C. Gonzales, Inc., San Antonio, John M. Pinckney, III, Wells, Pinckney & McHugh, P.C., San Antonio, Judith R. Blakeway, Strasburber & Price, L.L.P., San Antonio, for Appellant.

Timothy Patton, Pozza & Patton, San Antonio, Harlin C.Womble, Jr., Jordan & Shaw, P.C., Corpus Christi, for Appellees.

Before PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, ALMA L. LOPEZ, Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, en banc.

OPINION ON APPELLEE'S MOTION FOR REHEARING EN BANC

KAREN ANGELINI, Justice.

Appellee's motion for rehearing en banc is granted and the motion to resubmit is denied. Our opinion of September 29, 1993 and judgment of July 28, 1993 are withdrawn, and the following opinion and judgment are substituted.

Nature of the case

This is an appeal of a judgment notwithstanding the verdict in a legal malpractice and deceptive trade practices suit. Appellant Sandra Ballesteros, filed suit against appellees, James K. Jones and the Law Offices of Mann and Jones (collectively referred to as "Jones"), asserting that the settlement Jones had obtained on her behalf in a suit to establish a common law marriage and for divorce against Andres Monetou was inadequate and that Jones had charged her an excessive fee. The jury found that a common law marriage had existed between Ballesteros and Monetou, and found that Jones was negligent and had acted unconscionably. The trial court granted Jones's motion for judgment notwithstanding the verdict. Ballesteros filed this appeal.

To sustain the trial court's action in entering a judgment notwithstanding the verdict, the reviewing court must determine that there is no evidence to support the jury's findings. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990); Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986). "In making this determination, we view the evidence in the light most favorable to the jury's findings, considering only the evidence and inferences which support them, and rejecting the evidence and inferences contrary to those findings." Navarette, 706 S.W.2d at 309. It is error to grant a judgment notwithstanding the verdict when there is more than a scintilla of evidence to support the jury's finding. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990).

In order to prevail on a legal malpractice claim which arises from prior litigation, the plaintiff has the burden to show that "but for" the attorney's negligence, he or she would be entitled to judgment, and show what amount would have been collectible had he or she recovered the judgment. Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex.1989); Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex.App.--San Antonio 1995, writ denied); Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.Civ.App.--Houston [1st Dist.] 1974, writ ref'd n.r.e.). This is commonly referred to as the "suit within a suit" requirement.

Because the plaintiff must establish that the underlying suit would have been won "but for" the attorney's breach of duty, this "suit within a suit" requirement is necessarily a component of the plaintiff's burden on cause in fact. However, the plaintiff only has the burden to prove a "suit within a suit" in a negligence claim. Plaintiffs need not prove the "suit within a suit" element when suing an attorney under the DTPA. Latham v. Castillo, 972 S.W.2d 66, 69 (Tex.1998).

Because Ballesteros alleged that Jones was negligent, the trial court correctly applied the "suit within a suit" concept when the first jury question asked if a common law marriage existed between Ballesteros and Monetou.

Common Law Marriage

In her first point of error, Ballesteros argues that the trial court erred in granting Jones's motion for judgment notwithstanding the verdict because the evidence was legally sufficient to support the jury's finding of a common law marriage. We agree.

A valid common law marriage consists of three elements: (1) an agreement presently to be husband and wife; (2) living together in Texas as husband and wife; and (3) representing to others in Texas that they are married. Russell v. Russell, 865 S.W.2d 929, 932 (Tex.1993); TEX. FAM.CODE ANN. § 1.91(a)(2) (Vernon 1993). ¹ All three elements must exist at the same time. Bolash v. Heid, 733 S.W.2d 698, 699 (Tex.App.--San Antonio 1987, no writ).

Viewing the evidence as we are required to do under the applicable standard of review, the facts pertaining to the alleged common law marriage are as follows. Monetou and Ballesteros began living together in 1970. Both were married to other persons at the time. Their relationship lasted 17 years. Shortly after the relationship began, Ballesteros and her husband divorced. In 1975, Ballesteros gave birth to a son fathered by Monetou. They named their son Andres, Jr Monetou's wife died in 1980. In 1983, Monetou legitimized his son by a decree of paternity. The decree recited that Monetou and Ballesteros were living together at the same address in Laredo. During their relationship, Ballesteros and Monetou traveled together and would sign hotel and airline documents "Mr. and Mrs. Monetou." Monetou supported Ballesteros, Andres, Jr., and Ballesteros's two other sons financially. Ballesteros testified that her older son considered Monetou a hero and that her second son called him "daddy."

According to Ballesteros, she and Monetou cohabited three or four times a week in Laredo, although Monetou also spent some time at his Nuevo Laredo residence with his other children. Monetou kept clothes at the house in Laredo; he would bathe, shave, and eat there; and he invited his other children over for visits and meals. Monetou paid for improvements to the house in Laredo. At times, Monetou and Ballesteros traveled together, accompanied by Monetou's other children. Monetou gave Ballesteros a diamond ring and a wedding band which she continued to wear after Monetou's wife died. Monetou introduced Ballesteros to others as his wife. They held themselves out as husband and wife in Laredo and while traveling. Monetou co-signed promissory notes for Ballesteros, including one that allowed her to pay off the mortgage on the house in Laredo that she and Andres, Jr. had shared with Monetou.

Ballesteros testified that after Monetou's wife died, she and Monetou began spending more time together and that he moved his clothes into the house in Laredo and would stay there. During this time, according to Ballesteros, they also held themselves out to others as being married to one another. She testified that at this time they entered into an agreement to be married. We consider this as some evidence of the existence of an agreement to be married. Collora v. Navarro, 574 S.W.2d 65, 70 (Tex.1978); Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex.App.--Houston [1st Dist.] 1991, writ denied); Bolash, 733 S.W.2d at 699. Furthermore, the agreement to be married may be shown by circumstantial evidence or conduct of the parties. Russell, 865 S.W.2d at 933. Proof of cohabitation and representing to others that they were married may constitute circumstantial evidence from which a jury could find an agreement to be married. See id.

Jones argues that Monetou and Ballesteros could not be engaged in a common law marriage because the relationship was illicit in its origin. If an impediment to the creation of a lawful marriage between the parties exists, as when one is married to another, there can be no common law marriage, even if all three elements are proven. Howard v. Howard, 459 S.W.2d 901, 904 (Tex.Civ.App.--Houston [1st Dist.] 1970, no writ). However, an ongoing agreement to be married may be shown by the circumstantial evidence of the parties continuing to live together as husband and wife and holding themselves out to others as being married after the removal of the impediment. TEX. FAM.CODE ANN. § 2.22 (Vernon 1993) ²; Garduno v. Garduno, 760 S.W.2d 735, 741 (Tex.App.--Corpus Christi 1988, no writ). There is evidence that the parties lived together as husband and wife and represented themselves to others as being married after Monetou's wife died. As we have indicated, Ballesteros testified that at the time of the death of Monetou's wife they entered into an agreement to be married. This is some evidence of the required agreement.

Looking at the evidence in the light most favorable to the jury's findings, we find some evidence to support the jury's finding that Ballesteros and Monetou were engaged in a common law marriage. Thus, the evidence is legally sufficient and the motion for judgment notwithstanding the verdict was improper on this issue. We sustain the first point of error.

Jones argues in his first two cross-points that the evidence is factually insufficient to support the jury's common law marriage finding. In considering a factual insufficiency challenge, we must consider and weigh all the evidence and reverse for a new trial only if the challenged finding is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We may not substitute our opinion for that of the jury merely because we would have reached a different result. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986).

Jones first contends that the evidence is factually insufficient on the requirement of holding out. The common law marriage requirement of holding out can be established by word or conduct. Estate of Giessel, 734 S.W.2d 27, 31 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). Proof of holding out requires that it be done in Texas. TEX. FAM.CODE...