Crisp v. Southwest Bancshares Leasing Co.

• Decision Date: 10 August 1979
• Docket Number: No. 9027,9027
• Citation: Crisp v. Southwest Bancshares Leasing Co., 586 S.W.2d 610 (Tex. Ct. App. 1979)
• Parties: A. W. CRISP, Jr., and Crisp Equipment Company, Appellants, v. SOUTHWEST BANCSHARES LEASING COMPANY, Appellee.
• Court: Texas Civil Court of Appeals

Page 610

586 S.W.2d 610

A. W. CRISP, Jr., and Crisp Equipment Company, Appellants, v. SOUTHWEST BANCSHARES LEASING COMPANY, Appellee.

No. 9027.

Court of Civil Appeals of Texas, Amarillo.

Aug. 10, 1979.

Rehearing Denied Sept. 26, 1979.

Wilbur T. Knape, Hurst, for appellants.

Daniel K. Hedges, Russell H. McMains, Rufus Wallingford, Fulbright & Jaworski, Houston, for appellee.

REYNOLDS, Chief Justice.

Adjudged aiders and abettors in a fraudulent scheme, defendants seek relief from a monetary judgment on the central conception that the defrauded plaintiff is bound by the knowledge and acts of its agent, who participated in the scheme. Neither that conception nor any other ground asserted for reversal is sustainable under the circumstances of this cause. Affirmed.

Southwest Bancshares Leasing Company began this litigation against Bentwood Corporation, James W. McPherson, A. W. Crisp, Jr., Crisp Equipment Company and other defendants. Southwest's stated cause of action was for the recovery of monetary damages resulting from a fraud perpetrated against it by Bentwood and its president, McPherson, who were knowingly aided and abetted by Crisp Equipment, Crisp (the president of Crisp Equipment), and other defendants.

Southwest pleaded that it was in the business of leasing equipment for use in commercial enterprises, usually purchasing the equipment at the behest of the prospective lessee and then leasing it to the lessee. Bentwood, acting through its president, McPherson, made application to Southwest for a lease of items of construction equipment. Southwest alleged that it issued and delivered to McPherson two checks payable to Crisp Equipment in the sums of $35,000 and $27,500 for the purchase of a front-end loader and a grader, respectively, after the company had issued sworn bills of sale, which were formally notarized by Crisp, indicating that for and in receipt of $35,000 and $27,500 Crisp Equipment had sold the equipment to Southwest. However, a clandestine deal between McPherson and Crisp Equipment had been arranged, and the true purchase price of the equipment totaled only $14,750. Crisp Equipment apparently endorsed the two checks aggregating $62,500 and returned them to McPherson, and Crisp Equipment was paid $14,750 by a Bentwood check.

Theorizing that it was entitled to rescind the sale for fraud, Southwest tendered the equipment to Crisp Equipment in return for the $62,500 it had paid. Alternatively and because of the fraud, Southwest sought both actual damages of at least $47,750, the difference between the market value of the equipment and the price Southwest paid, and exemplary damages.

Defensively, the live trial pleadings of Crisp Equipment and Crisp averred that the fraud, if any, perpetrated against Southwest was by its president, E. L. Epperson, whose prior fraudulent transactions with McPherson put Southwest on notice; Epperson's acts were ratified by and bound Southwest, which accepted the benefits of the acts and is thereby estopped to recover damages; and that the bills of sale were fraudulently procured by Southwest and are invalid. Furthermore, Crisp Equipment and Crisp pleaded that the transactions were at arm's length and Southwest's failure to exercise ordinary care to protect its own interests was the sole cause of any damages. Still further, Crisp Equipment and Crisp pleaded that Southwest had elected to recover under a bond protecting it from losses incurred from the fraud and dishonesty of Epperson and is barred from prosecuting this suit.

Bentwood and McPherson failed to appear for the jury trial. The trial evidence adduced which bears on the appellate matters may be summarized.

Southwest was victimized in a series of fraudulent schemes involving purchase and lease transactions. To generate cash for Bentwood, McPherson, who actually owned all of the stock of and operated Bentwood, participated in the purchases of construction equipment at prices less than the purchase prices which are shown on the instruments conveying title to Southwest. Southwest acting by president Epperson and another, leased the equipment to Bentwood, acting by McPherson. Checks issued on Southwest in the amounts of the cost of the equipment shown on the instruments of title were delivered to McPherson, who paid the sellers of the equipment the actual cost of the equipment and retained the balance. Southwest's president, Epperson, who according to McPherson received some of the proceeds from the checks, admittedly was complicitous in the schemes.

One transaction concerned the sale of two pieces of construction equipment by Crisp Equipment to Southwest and then leased by Southwest to Bentwood. McPherson negotiated with Crisp for the sale of the equipment to Southwest for a total amount of $14,500, but made it clear to Crisp that the equipment would not be bought unless Crisp filled out the bills of sale in favor of Southwest for certain amounts of money. Crisp directed an employee, Charles White, to execute, at the request of McPherson, two bills of sale, one showing a grader sold to Southwest for $27,500, and the other showing a loader sold to Southwest for $35,000. Crisp, a notary public, admitted to formally notarizing the bills of sale. Epperson then issued Southwest's checks, one for $27,500 and the other for $35,000, payable to Crisp Equipment and hand delivered them to McPherson. The checks were endorsed "Crisp Equipment Co." Crisp and employee White testified that neither endorsed the checks. McPherson testified that he, in the presence of Max Shaw, a banker, personally observed White endorse the two checks; and Shaw, who accompanied McPherson to Crisp Equipment for the purpose of having the checks endorsed, testified that a person in Crisp Equipment's office endorsed the two checks. The two endorsed checks were returned to McPherson. Crisp was paid $14,500 for the two pieces of equipment by a Bentwood check.

Following the introduction of evidence, some named defendants were dismissed upon the motion of Southwest, leaving Crisp Equipment, Crisp and one other defendant. The jury exonerated the third defendant, but the jury found, in response to special issues submitted, that:

No. 5: McPherson and others participated in a scheme to defraud Southwest with respect to the purchase of construction equipment from Crisp and Crisp Equipment.

No. 6: Crisp and Crisp Equipment knowingly aided and abetted in such scheme.

No. 6A: Such aiding and abetting was a proximate cause of any damage to Southwest.

Accepting the verdict and rendering judgment, the trial court decreed, Inter alia, that Southwest recover of and from Bentwood, McPherson, Crisp Equipment and Crisp, jointly and severally, the sum of $47,750, with pre-judgment and post-judgment interest. Crisp and Crisp Equipment have appealed, seeking a reversal of that portion of the judgment rendered against them and a rendition of judgment in their favor or, alternatively, a remand of the cause.

Crisp and Crisp Equipment, collectively styled Crisp unless otherwise named, have designated nine points of error. At the outset, Southwest challenges all nine points, contending that each one is flagrantly multifarious in violation of Tex.R.Civ.P. 418, ¹ and unworthy of consideration on the authority of Flock v. Kelso, 366 S.W.2d 698 (Tex.Civ.App. Amarillo 1963, no writ), and International Security Life Ins. Co. v. Short, 443 S.W.2d 949 (Tex.Civ.App. Amarillo 1969, writ dism'd). Rule 418 governs the contents of an appellant's brief and, as amended effective 1 January 1978, provides that the brief should contain, among other matters:

(d) Points of Error. A statement of the points upon which the appeal is predicated shall be stated in short form without argument and be separately numbered. In parentheses after each point, reference shall be made to the page of the record where the matter complained of is to be found. Such points will be sufficient if they direct the attention of the court to the error relied upon.

With notice of Southwest's challenge to the sufficiency of the points, Crisp requested and was granted, during submission of this cause, leave to file a supplemental brief; however, the original statements of points are sedulously echoed in the supplemental brief. Six and one-half pages are required to merely state the nine points. Each point either embraces more than one specific ground of error or attacks several distinct alleged errors. Obviously, the points are penned in patent violation of both the letter and the spirit of the rule; yet, by force of the rule, we are committed to pass on the merits of each point if we can ascertain, in the light of the statement and argument thereunder the complaint to which attention is directed. Accord, O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 114 (Tex.1976).

After a comprehensive study of Crisp's briefs, we discern that Crisp has directed attention to the complaints which are recorded and discussed under the ensuing numerical headings. Any lack of certainty of discernment stems from the composition of Crisp's briefs. The briefs do not, contrary to the direction of Rule 418(e) that they should, "include (i) a fair, condensed statement of the facts pertinent to such points, with reference to the pages in the record where the same may be found . . . ." Because Crisp's statement of facts is not referenced to pages in the record, this court has no duty to independently search the 522 pages of the statement of facts in an attempt to determine if the complaints have merit, Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 200-01 (1955), but we have made the effort to do so.

1.

Intertwined among Crisp's presentation of several points of error are complaints that there is no evidence to support either the submission of or the jury's answers to special issues nos. 5, 6 and 6A. The no evidence complaints invoke the principles that an issue must be submitted to the jury when it is raised by any...