Drake v. Spriggs, No. 13-03-429-CV (Tex. App. 12/14/2006)

• Court: Texas Court of Appeals
• Writing for the Court: Yañez
• Decision Date: 14 December 2006
• Docket Number: No. 13-03-429-CV.,13-03-429-CV.
• Citation: Drake v. Spriggs, No. 13-03-429-CV (Tex. App. 12/14/2006), No. 13-03-429-CV. (Tex. App. Dec 14, 2006)
• Parties: CAROL J. DRAKE, CARLENE K. VINYARD, JANET FAY DAY, AND CHERYL A. KURTZ, Appellants, v. LUCILLE SPRIGGS, ET AL., Appellees.

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CAROL J. DRAKE, CARLENE K. VINYARD, JANET FAY DAY, AND CHERYL A. KURTZ, Appellants, v. LUCILLE SPRIGGS, ET AL., Appellees.

No. 13-03-429-CV.

Court of Appeals of Texas, Thirteenth District, Corpus Christi.

Memorandum Opinion Delivered and Filed December 14, 2006.

On Appeal from the 343rd District Court of Aransas County, Texas.

Before Justices HINOJOSA, YAÑEZ, and CASTILLO.

MEMORANDUM OPINION

Memorandum Opinion by Justice YAÑEZ.

Appellants, Carole J. Drake, Carlene K. Vinyard, Janet Fay Day, and Cheryl A. Kurtz, appeal a judgment in favor of appellees, Joe Zambrano d/b/a AA Pepe's Bail Bonds and Lucille Spriggs d/b/a Lulu's Bail Bonds. On appeal, appellants raise ten issues which, for purposes of organization, will be reordered, addressed as eight, and referred to numerically as herein sequenced: (1) the trial court erred in entering judgment on the jury's verdict; (2) the trial court erred in denying appellants' motion for new trial; (3) the trial court erred in granting a motion for instructed verdict on appellants' causes of action of civil conspiracy, conspiracy to defraud, fraud, fraudulent misrepresentation, negligent misrepresentation, and breach of the common law express warranty for services; (4) the trial court erred by failing to submit to the jury all grounds of recovery raised in appellants' original petition; (5) the trial court erred in requiring appellants to make offers of proof under the rule of optional completeness; (6) the trial court erred by improperly excluding evidence; (7) appellants' motion to recuse judge was denied in error;¹ and (8) the trial court erred in granting a no-evidence motion for summary judgment on appellants' Deceptive Trade Practice Act ("DTPA") claim.² We reverse the summary judgment and remand the cause for further trial proceedings.

BACKGROUND

Appellants are the heirs of Carl J. Kurtz ("Kurtz").³ On September 17, 1999, a district court in Montrose County, Colorado issued a warrant for Kurtz's arrest; the State of Colorado had charged Kurtz with two felony offenses, conspiracy to commit murder and criminal solicitation to commit murder, which were allegedly committed in Montrose County. On September 28, 1999, as a result of the outstanding warrant, Kurtz was arrested in Aransas County, Texas and placed in the county jail. Shortly thereafter, Kurtz was arraigned by an Aransas County judge. Though the warrant fixed bail at $500,000 for both charges combined, bail was instead set at $1,000,000 ($500,000 for each charge). Kurtz subsequently paid appellees, AA Pepe's Bail Bonds and Lulu's Bail Bonds, two Texas bonding companies, a total of $100,000 ($50,000 to each) for two bonds to secure his release from jail in Aransas County. After appellees guaranteed the two $500,000 bonds, Kurtz was released from jail on the condition that he appear for a hearing in Montrose County, Colorado. On November 1, 1999, Joe Zambrano, acting on behalf of himself and Lucille Spriggs, escorted Kurtz to his advisement hearing in Montrose County. At the hearing, Judge Richard Brown expressed concern and confusion with regard to Kurtz's bonds and his appearance before the court. The court found that Kurtz, despite his intent not to do so, had waived his right to contest extradition from Texas by appearing in Aransas County.⁴ Judge Brown then considered whether or not Kurtz should be required to post an additional bond to remain out on bail. Zambrano attempted to reassure the court that appellees would continue to hold themselves liable on the bonds in the event of forfeiture, but the court ultimately concluded that the bonds were invalid and that appellees were likely not subject to the court's jurisdiction in Colorado. As a result, Judge Brown required Kurtz to post another bond from a Colorado bondsman in the amount of $100,000. Kurtz complied with the court's order, paying a Colorado bonding company $ 10,000 to help secure his release pending a trial on the two charges. After the criminal case against him was resolved, Kurtz obtained an attorney for the purpose of recovering a portion of the $100,000 in bonding premiums paid to appellees. Demand letters were sent to appellees on Kurtz's behalf. The letters alleged that appellees had misrepresented to Kurtz the validity of the bonds and the extent to which they would secure his release. A few months later, Kurtz died on August 5, 2001.

On September 27, 2001, appellants, Kurtz's heirs, filed suit against appellees in Aransas County. By way of their original petition, appellants alleged causes of action for violation of the DTPA, fraudulent and negligent misrepresentation, breach of warranty, breach of good faith and fair dealing, and breach of contract. Appellees raised a no-evidence motion for summary judgment as to appellants' DTPA claim, which was ultimately granted on November 13, 2002. Trial began on March 24, 2003, and at the close of appellants' case-in-chief, the trial court granted appellees' motion for instructed verdict on appellants' causes of action for breach of warranty and fraudulent and negligent misrepresentation. The trial proceeded on appellants' breach of good faith and fair dealing and breach of contract claims. The jury ultimately returned a verdict in appellees' favor on both claims. Appellants filed motions for new trial, judgment notwithstanding the verdict, and to recuse the trial judge; all three motions were denied. Appellants then filed this appeal.

ISSUES ON APPEAL

Issues 1-5

We begin by finding that appellants have waived the first five issues on appeal. In their brief, appellants offer no argument or authority for why they are entitled to a new trial.⁵ Regarding their motion for judgment notwithstanding the verdict, appellants only argue that they are entitled to JNOV because there was testimony at trial that should have constituted a judicial admission. The testimony believed to constitute a judicial admission is not provided for us, nor is the Court directed to any specific point in the record. We are not told whether the alleged judicial admission constitutes some of the evidence that was improperly excluded at trial, as appellants allege in another issue, or whether this is an admission that was actually presented as evidence before the jury.⁶ Appellants additionally failed to provide any argument for why there was legally insufficient evidence to support the jury's verdict.⁷

In urging this Court to find error in the trial court's granting of instructed verdict and its failure to submit all causes of action stated in appellants' original petition, appellants simply refer us to numerous portions of the record. Appellants provide no legal authority and fail to discuss the elements required to prove causes of action for civil conspiracy, conspiracy to defraud, fraud, fraudulent misrepresentation, negligent misrepresentation, and breach of the common law express warranty for services; appellants have also failed to discuss how alleged facts and evidence presented establish each required element for each cause of action asserted.⁸

Lastly, in their complaint regarding the trial court's use of the rule of optional completeness, outlined in rule 107 of the Texas Rules of Evidence, appellants simply define the rule and direct us to numerous points in the record where the rule was utilized. Appellants make no attempt to explain how the trial court erred in its application of the rule, nor do they explain how they were harmed by any such error.⁹

We have little latitude on appeal and can neither remedy deficiencies in a litigant's brief nor supply an adequate record.¹⁰ Furthermore, we have no duty to perform an independent review of the record and applicable law to determine whether the error complained of occurred.¹¹ Because appellants failed to adequately brief the five aforementioned issues on appeal, they have presented nothing for our review.¹²

Issue 6: Excluded Evidence

In the sixth issue, appellants allege the trial court erred in excluding evidence that was material and relevant to their causes of action. We review the trial judge's exclusion of evidence under an abuse of discretion standard.¹³ A trial court abuses its discretion when it acts without regard for any guiding rules or principles.¹⁴ To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show the trial judge's ruling was in error and the error probably caused the rendition of an improper judgment.¹⁵

Appellants first direct our attention to an excluded portion of Joe Zambrano's deposition, which allegedly contains a judicial admission. This portion contains the following exchange between appellants' counsel and Zambrano:

Q [By counsel]: And so if that statement was not true, you received $50,000 from Carl Jay Kurtz that you were not entitled to; correct?

A [By Zambrano]: Correct.

The "statement" referred to in counsel's question is the "Oath of Sureties" that Zambrano signed on Kurtz's bail bond. The oath consisted of a sworn statement from Zambrano to the State of Texas, whereby Zambrano swore to have a net worth greater than one-million dollars.

After reviewing his entire deposition, we find that Zambrano made a quasi-admission. The Texas Supreme Court, in distinguishing a quasi-admission from a judicial admission, has stated:

A party's testimonial declarations which are contrary to his position are quasi-admissions. They are merely some evidence, and they are not conclusive upon the admitter. . . . These are to be distinguished from the true judicial admission which is a formal waiver of proof usually found in pleadings or the stipulations of the parties. A judicial admission is conclusive upon the party making it, and it relieves the opposing party's burden of proving the admitted fact, and bars the admitting party from disputing it.¹⁶

In order to treat a party's testimonial quasi-admission as a conclusive judicial admission, the statement must be "deliberate,...