Connell v. Connell, 04-93-00383-CV

CourtCourt of Appeals of Texas
Citation889 S.W.2d 534
Docket NumberNo. 04-93-00383-CV,04-93-00383-CV
PartiesJean CONNELL and Martin W. Seidler, Trustee in Bankruptcy for Alvin L. Connell, Intervenor, Appellants v. Alvin L. CONNELL, Johniece Hohman and Alvin Connell Ranches, Inc., Appellees.
Decision Date26 October 1994

William A. Frazell, Richard R. Orsinger, James D. Stewart, James D. Stewart & Associates, Inc., and Arthur J. Rossi, Jr., Law Offices of Martin W. Seidler, San Antonio, for appellants.

Carl Parkhurst, Waitz, Greer & Cennamo, P.C., San Antonio, J. Ken Nunley, Nunley & Brant, Boerne, and Lavern D. Harris, Harris & Harris, P.C., Kerrville, for appellees.



BUTTS, Justice.

This is an appeal from the judgment of divorce after the trial court granted a directed verdict in favor of appellees as to "all matters [except the divorce] in this case."

Appellants bring six points of error. Both appellants, Jean Connell and the intervenor Trustee in Bankruptcy for Alvin L. Connell ("Trustee"), complain that the instructed verdict was erroneous since the evidence raised issues of fact regarding their claims. Trustee, alone, complains that the trial court improperly excluded an expert witness' testimony. Jean, alone, argues that the trial court denied her an opportunity to question the same expert witness, improperly divided the property, and improperly denied a claim for unpaid temporary support. We affirm.

The Parties

Jean, petitioner in the divorce suit against Alvin, filed her Eighth Amended Petition to bring in additional parties claiming various theories of fraud and conspiracy. At the time of trial, Jean's claims remained against (1) Alvin, (2) Johniece Hohman, and (3) Alvin Connell Ranches, Inc. We are concerned here with only these three parties. 1

During the suit's pendency, Alvin obtained bankruptcy relief for himself and Alvin Connell Ranches, Inc., receiving discharge in bankruptcy from numerous debts. 2 Thereafter the bankruptcy Trustee intervened in Jean's divorce action. The appellants sought to establish the value of the community estate, contending that Alvin fraudulently depleted the community estate before his discharge in bankruptcy. 3 They sought to prove that Alvin transferred community assets to his girlfriend, Johniece Hohman, and to Jack Stone and the Indian Creek Sheep & Goat Corporation, through fraud and conspiracy.


Jean and Alvin married in August 1955 and separated in May, 1985. They have four grown children. Alvin and Hohman began living together in the 1980's. Jean initially filed for divorce on June 5, 1986. The "paper value" of the community estate, as evidenced by financial statement evaluations, was approximately $3 million. Jean alleges that she dismissed the 1986 divorce suit at Alvin's request when he assured her that "business would remain the same." Alvin continued to pay Jean $1,000 per month for living expenses and also continued to manage the businesses.

The evidence established, however, that the community debts had earlier reached the sum of 1.6 million dollars. Alvin was a respected sheep and goat rancher, involved in numerous business entities. One such business, Alvin Connell Ranches, Inc., was the "family business."

Jean's testimony was that after she agreed to dismiss the 1986 divorce, Alvin intentionally embarked on a series of adventures and misdeeds to deprive her of community property.

The Divorce Suit

Jean alleged the following:

a. Alvin and two others (Donald, their son, and David Cates) misled her and instructed her to sign documents involving Alvin Connell Ranches, Inc. at the Uvalde Production Credit Association (PCA). Jean said that she was under duress because Alvin, Donny and Cates told her that if she did not sign the papers, then she would have no money and no place to live b. The documents she signed at PCA were loan documents securing a large loan to the community. PCA had renewed the loan to the Connells over a period of many years, with the Alvin Connell Ranches property as collateral. Later PCA foreclosed on the 349 acre community property ranch. She contended that PCA agreed in advance to sell the foreclosed property at less than its value to Jack Stone, another rancher. The foreclosure eliminated a second lien held by the Small Business Association, which filed a creditor's bankruptcy claim.

c. Alvin secretly transferred his partnership interest in the Connell-Hesse Partnership to Jack Stone.

d. A $160,000 cash mohair government incentive then went to Stone and not to Alvin.

e. Hohman and others participated in, and benefitted from, the allegedly fraudulent transfers.

f. Hohman's benefits from the community estate were evidenced by her phenomenal financial success during the 1980's, during the same time the Connell's community estate depleted in value.

g. The Trustee also believed that Alvin defrauded creditors prior to filing for bankruptcy.

Following an eleven day jury trial, the trial court granted a directed verdict in favor of appellees as to "all matters [except the divorce] in this case." The trial court then granted the divorce, divided the community estate and rendered judgment denying all other relief sought. Among the minimal assets, Jean received their house and Alvin their hunting dogs and some personal effects.

Standards of Review for Directed Verdict

In points of error one and two, appellants argue that the trial court erred in granting the directed verdict against them. The trial judge instructed the verdict after the parties closed and after a lengthy jury charge conference.

We review the evidence in the light most favorable to the party against whom the directed verdict was rendered, and disregard all contrary evidence and inferences. White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex.1983). It is error to grant a directed verdict when the evidence raises any issue of material fact. Garza v. Maverick Mkt., Inc., 768 S.W.2d 273, 276 (Tex.1989). If there is any conflicting evidence of probative value on any theory of recovery, the issue is for the jury and an instructed verdict is improper. White, 651 S.W.2d at 262.

During the charge conference the trial judge continued to ask counsels for Jean and the Trustee to submit specific jury instructions which must be based on facts in evidence before the jury. Jean and the intervenor Trustee had submitted requested jury charges consisting of over 70 pages. There was an objection by Hohman's counsel that the requested instructions were in "shades and degrees" of everything and not appropriate as broad form charges. The trial judge ruled:

I have listened very carefully to your arguments on a Proposed Charge that covers many pages and has many questions.... [S]ome of these proposed Charges have covered law that is not settled. I haven't heard any facts in this matter that would justify the submission of four hundred different theories and let the jury unravel it, and then once we get their conflicting answers back, that we decide which one we want to pick out to get a judgment. Justice wasn't built that way.

I haven't heard much evidence to justify anything except suspicion.... That's the closest you all are to anything concerning all the facts with all the people. You've got a lot of suspicion. Conspiracy can be proven by circumstantial evidence and usually is in most cases, but you cannot have it proved by unreasonable inferences or by inference piled upon inference upon inference. You have to have something of substance, not suspicion.

* * * * * *

On requiring the jury to follow his instructed verdict, the trial judge told the panel: "[T]he court is of the opinion that there is nothing as a matter of law to submit to you."

The directed verdict which does not specify the grounds upon which it was granted will be upheld if the record discloses any basis for granting it, even if that ground was not embodied in the motion for directed verdict. Granato v. Bravo, 498 S.W.2d 499, 502 (Tex.Civ.App.--San Antonio 1973, no writ). At the close of appellants' evidence, Hohman's counsel moved for directed verdict, stating there were only three pieces of property which were involved in the case: the Connell-Hesse partnership in which Alvin once had a 50 percent interest no longer was in the suit; the Taylor Ranch Property into which Alvin originally put $17,000, but which sum was shown to have been reimbursed to him, and he never had any further interest or participation; and the third was the head count and payment for goats and sheep bought by Johniece Hohman, shown to be her personal property, citing the testimony of Jean's own witness, Debbie McDonald, a bookkeeper, which confirmed this. The trial court did not rule at that time on Hohman's motion.

When Trial Court May Grant Verdict On Its Own Motion

When based upon the evidence produced upon trial before a jury one or more parties are entitled to a verdict as a matter of law, the court, either on its own motion or upon the motion of a party, may instruct the jury as to the verdict it must return, or may withdraw the case from the jury and render judgment. 4 R. MCDONALD, TEXAS CIVIL PRACTICE § 21:52 (1992). A defendant will be entitled to an instructed verdict if either (a) in each theory of recovery there is at least one fact proposition, constituting a component element, asserted by the plaintiff, as to which the plaintiff's evidence is so meager or the defendant's evidence is so compelling that reasonable persons could not differ as to the conclusion that such proposition is not established; or (b) each theory of recovery as to which plaintiff has raised an issue of fact on all component elements is destroyed by some affirmative defense applicable to such theory as to which the truth of every component fact proposition asserted by the defendant has been so conclusively established that reasonable minds cannot differ. Id.

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