Delahoussaye v. Kana, No. 01-07-00579-CV (Tex. App. 11/13/2008)
| Decision Date | 13 November 2008 |
| Docket Number | No. 01-07-00579-CV.,01-07-00579-CV. |
| Parties | MARIE PFISTNER DELAHOUSSAYE, Appellant, v. LISA DELAHOUSSAYE KANA, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 334th Judicial District, Chambers County, Texas, Trial Court Cause No. 20174.
Panel consists of Justices TAFT, KEYES, and ALCALA.
Appellant, Marie Pfistner Delahoussaye, appeals from a judgment in favor of appellee, Lisa Delahoussaye Kana. Delahoussaye filed suit against Kana seeking return of real property, actual damages, exemplary damages, and attorney's fees. After a jury trial, the trial court rendered a take-nothing judgment in favor of Kana, in accordance with the jury's verdict. In six issues, Delahoussaye asserts that (1) the trial court erred "in denying [her] motion for declaratory judgment for recission of the deed"; (2) the trial court erred by denying her motion for judgment notwithstanding the verdict because the evidence is legally insufficient to support the verdict; (3) the trial court erred by denying her motion for new trial because the evidence to certain jury questions is legally and factually insufficient to support the verdict; (4) the jury erred by failing to answer certain questions because it erroneously answered the predicate questions; (5) the trial court erred by denying her motion for sanctions; and (6) Texas Rule of Civil Procedure 327b and Texas Rule of Evidence 606 are unconstitutional because they "deprive a party of the right to seek information concerning possible jury misconduct during deliberation." We conclude the evidence is legally and factually sufficient to support the jury's verdict, the trial court did not abuse its discretion by denying the requested sanctions, and Delahoussaye waived her constitutional challenges to rule 327b and rule 606. We affirm.
Delahoussaye inherited two tracts of land on Point Barrow Road, in Baytown, Texas from her parents. One tract is a 10.92 acre tract located on Trinity Bay. The other, smaller tract was located across Point Barrow Road from the bay.
In 2001, Delahoussaye was diagnosed with cancer and began treatment. During this time her relationship with Kana, Delahoussaye's daughter, was good. They spoke regularly, and Kana was present during Delahoussaye's surgery and took her to two of her chemotherapy treatments. In 2002, Delahoussaye was informed she had a mass in her right breast, and her doctor recommended removing it. However, she wanted to wait.
In April 2002, Kana's husband began a job in the Clear Lake area. Because Kana and her family lived in Conroe, her husband had an hour-long commute and often got up before his daughters were awake, returning after they had gone to sleep. Kana asked Delahoussaye for two acres on the smaller tract across Point Barrow Road on which she could build a house for her family. Delahoussaye responded she "would be more than happy to give [Kana] two acres across the road."
A few days later, Delahoussaye told Kana that instead of giving her the tract of land across Point Barrow Road, she would give Kana the land on the bay property because she knew Kana would take care of it and never sell it. Delahoussaye also told Kana she would give her the entire 10.92 acres of the bay property, explaining that it "would be real easy because [Delahoussaye] already had a survey of the whole thing and she wouldn't have to have it re-surveyed."
In May, Delahoussaye met with an attorney to have him prepare a deed for Kana. Delahoussaye provided the legal description of the property conveyed, which was attached as an exhibit to the deed and included all 10.92 acres of the bay property. The deed recited the consideration for the property as the "love and affection which I have and hold for my daughter." Kana was not involved in preparing the deed or meeting with the attorney and did not know of the deed until Delahoussaye called to tell her the deed had been prepared.
After the deed was filed, Delahoussaye went to her attorney's office for the deed. Her attorney informed her the deed had been mistakenly filed in Harris County and must be filed in Chambers County. Delahoussaye said she would take care of it. Delahoussaye, Kana, and Kana's daughters drove to Chambers County, filed the deed, and had lunch. Kana paid for the filing fee. When the original deed was returned from Chambers County, Delahoussaye took it to Kana, telling her she should get a safety deposit box and keep the deed in it.
Kana and her family moved into the existing house on the bay property in late May or early June, after the children were out of school for the summer. Delahoussaye would visit frequently, and Kana and her daughters would visit Delahoussaye in Pasadena approximately once every other week. Kana and her husband began making plans to build a new home on the bay property. Delahoussaye went with Kana and her daughters to see a builder's model home. Kana and her husband began making improvements, including putting in a large septic system. Delahoussaye paid approximately half of the price of the septic system.
In August, shortly before school started, Delahoussaye called Kana and told her that she wanted to put a trailer on the bay property. Kana questioned her mother about the trailer. Delahoussaye admitted she did not want to put a trailer on the property, but it was her other daughter, Kana's half-sister, who wanted the trailer. Kana responded that she would not allow a trailer on the property because it was not what Delahoussaye really wanted. Several hours later, Delahoussaye called Kana again and said she was going to have a lawyer prepare the papers necessary to convey the bay property back to Delahoussaye and she wanted Kana to sign the papers the next day. Kana replied that she would not give the bay property back. Delahoussaye demanded the return of some personal property, and Kana gave her the items. Delahoussaye and Kana did not speak after that. In September, Kana received a letter from Delahoussaye's attorney demanding the bay property. Kana received one or two more similar letters. Finally, in December 2002, Kana was served with this lawsuit.
In contrast, Delahoussaye testified that when she told Kana she would be happy to give her two acres on which to build a home, it was with the understanding that Kana would take care of Delahoussaye for the rest of her life. According to Delahoussaye, the conveyance of the entire 10.92 acres of the bay property was a mistake and should have been only two acres. In May 2002, before the deed was filed in Chambers County, Delahoussaye filed a protest with the Chambers County Appraisal District. The protest included an affidavit explaining that she had transferred the land to Kana in return for the agreement that Kana and her family would care for her because she had cancer. Delahoussaye states that she paid for numerous improvements on the bay property and the existing house in anticipation of moving onto the property.
Delahoussaye explained she wanted the trailer to be placed on the property because the existing house was too small and had only one bathroom. Delahoussaye stated Kana and her husband were always having parties and she needed a place where she could rest. When she mentioned placing a trailer on the property, Kana told her "Don't come down here no more." Kana sent letters to Delahoussaye informing her that if she came on the property it would be considered trespassing and informing her of the possible criminal penalties. Delahoussaye asked Kana to return the property and filed this suit when Kana refused.
In her first issue, Delahoussaye contends the trial court erred by denying her "Motion for a Declaratory Judgment under the Texas Civil Practice and Remedies Code, Chapter 37, Declaratory Judgments, for the recission of the deed made the subject of this lawsuit because it was obtained by fraud and breach of contract by [Kana] and alternatively, a mistake." Delahoussaye asserts (1) "there is sufficient evidence to show that [Kana] breached the contract"; (2) Delahoussaye was entitled to recission or reformation because Kana insisted the bay property was a gift from Delahoussaye, but the burden of proof was on Kana to prove a gift; and (3) alternatively, the evidence showed that Delahoussaye only intended for two acres to be a gift, not the entire tract.
Kana responds that fraud, breach of contract, and mistake are Kana also asserts "the deed itself clearly indicate[s] that it is a gift deed and the description of the property conveyed is equally clear."
Delahoussaye requested declaratory relief in her petition. After the jury's verdict, she filed a "Motion for Judgment Non Obstante Veredicto and for Declaratory Judgment." The only ground she raised to support her motion for declaratory judgment was that Kana had the burden to prove the existence of a gift and that she failed to establish that Delahoussaye intended to make a gift of the bay property to Kana. However, the issue of whether the transfer of the property was a gift was not submitted to the jury.
The elements required to establish the existence of a gift are: (1) intent to make a gift; (2) delivery of the property; and (3) acceptance of the property. Panhandle Baptist Found., Inc., v. Clodfelter, 54 S.W.3d 66, 72 (Tex. App.-Amarillo 2001, no pet.) (citing Roberts v. Roberts, 999 S.W.2d 424, 432 (Tex. App.-El Paso 1999, no pet.)). "In determining whether a gift was intended by the execution of a deed, we must look to the facts and circumstances surrounding its execution in addition to the recitation in the deed itself." Id., 54 S.W.3d at 72 (citing Haile v....
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