Groves v. Hanks

• Decision Date: 30 December 1976
• Docket Number: No. 1086,1086
• Citation: 546 S.W.2d 638
• Parties: Wallace GROVES et al., Appellants, v. Virginia HANKS, Appellee.
• Court: Texas Court of Appeals

Page 638

546 S.W.2d 638

Wallace GROVES et al., Appellants, v. Virginia HANKS, Appellee.

No. 1086.

Court of Civil Appeals of Texas,

Corpus Christi.

Dec. 30, 1976.

Rehearing Denied Jan. 26, 1977.

Ralph Alexander, Kelley, Looney & Alexander, E. G. Henrichson, Henrichson & Smith, Edinburg, for appellants.

William E. York, McAllen, for appellee.

OPINION

BISSETT, Justice.

This is a suit to recover damages for an alleged breach of contract between Bryan Hanks and Wallace Groves, and to recover the proceeds of certain checks which were made payable to Bryan Hanks and were allegedly converted by Wallace Groves, his employees, and the defendant banks when the monies represented by the checks were deposited to Wallace Groves' accounts in the banks.

Bryan Hanks, (Hanks) died on December 18, 1972. This suit was instituted on August 30, 1973 by Virginia Margaret Wooding Hanks, (Mrs. Hanks), the widow of Hanks, who sued individually and as independent executrix of the Estate of Bryan Hanks, Deceased. The defendants are: Wallace Groves, (Groves), William Gaudet, (Gaudet), L. C. Hill, (Mrs. Hill), the First National Bank of Edinburg, Texas, (Edinburg Bank), and the First National Bank of Mission, Texas, (Mission Bank). In addition to defensive pleadings filed by all of the defendants, Groves filed a cross action against Mrs. Hanks to recover certain monies which she withdrew from a bank account standing in the name of 'Bryan Hanks, Agent', which allegedly was owned by Groves.

Following a trial to the court, no jury having been demanded or empanelled, judgment was rendered in favor of Mrs. Hanks on both actions brought by her, and all relief sought by Groves on his cross action was denied. In particular, the judgment awarded Mrs. Hanks: 1) all of the money, ($72,325.29) previously escrowed with the Continental National Bank of Fort Worth and paid into the registry of the United States District Court for the Northern District of Texas, Forth Worth Division, pending the outcome of this suit, together with interest thereon; further awarded Mrs. Hanks $39,372.15, together with interest thereon from August 15, 1972 until September 29, 1975 at the rate of 6% Per annum, against Groves, Gaudet, Mrs. Hill and the Edinburg Bank; and further awarded Mrs. Hanks $68,052.86, together with interest thereon from August 16, 1971 until September 29, 1975 at the rate of 6% Per annum, against Groves, Gaudet, Mrs. Hill and the Mission Bank. The judgment further provided that the various sums of money awarded Mrs . Hanks would bear interest at the rate of 9% Per annum from and after September 29, 1975 until paid, and that the Edinburg Bank have judgment over and against Groves, Gaudet and Mrs. Hill for the said sum of $39,372.15, together with interest thereon, and that the Mission Bank have judgment over and against Groves Gaudet and Mrs. Hill for the said sum of $68,052.86, together with interest thereon. All of the defendants have appealed from the judgment in favor of Mrs. Hanks, but the defendants Groves, Gaudet and Mrs. Hill have not appealed from the portions of the judgment which awarded judgment in favor of the banks over and against them.

Findings of fact and conclusions of law were filed by the trial judge. The findings have not been attacked in this appeal by specific points of error. At the end of the statement and argument made by Groves under point four (his last point) in his original brief and immediately preceding the prayer appears the following paragraph:

'To the extent that the Findings and Conclusions of the Court may conflict with the above, which are based upon stipulations and undisputed evidence, such Findings and Conclusions should be disregarded.'

The above-quoted portion of Groves' brief is nothing more than a mere blanket assertion that at least some of the findings are contrary to the evidence, does not point out in what respect the findings conflict with Groves' asserted points of error, and does not state in what respect each particular finding is not supported by the undisputed evidence. The paragraph is a mere abstraction that does not point out anything tangible or definite. It is too general to be considered as a sufficient challenge to any particular finding of fact. See Hardeman v. Timmins, 111 S.W.2d 746 (Tex.Civ.App.--El Paso 1937, writ dism'd); Southern Pine Lumber Co. v . Nemer, 17 S.W.2d 852 (Tex.Civ.App.--Galveston 1929, no writ); Danciger v. Wood, 240 S.W. 694 (Tex.Civ.App.--Amarillo 1922, no writ) .

Mrs. Hanks, as plaintiff, admitted in her pleadings that her husband and Groves, prior to May 6, 1946, entered into 'a business arrangement . . . to be carried entirely under the name of Bryan Hanks', and that Groves 'paid the purchase price and operating expenses of the properties purchased, including any losses'; that 'Hanks was to devote his time to the management of the properties, and was to own a 10% Interest in and to receive 10% Of any net profits on the sale of any of said properties plus a salary of $36,000.00 per year'. She alleged that Groves owed Hanks 'well over $400,000.00'. The agreement dated May 13, 1971, by and between Hanks and Groves, hereinafter discussed in detail, which terminated the business relationship between Hanks and Groves, was made a part of her petition; she alleged that Hanks complied with all terms and conditions imposed upon him by the termination agreement; that Groves, with the exception of the payment of $400,000.00 to Hanks, breached the agreement; and that as a result thereof, she was entitled to 10% Of the net profits accruing to Groves from the sale of certain properties which were sold by Groves after May 13, 1971.

Mrs. Hanks also sought to recover the proceeds of certain checks which were made payable to Bryan Hanks, and which were deposited by Mrs. Hill, the employee of Groves, to the account of Groves in the defendant banks. She alleged that while Hanks was managing the properties Mrs. Hill was the office manager for the business and that she was given 'a power of attorney in connection therewith'; that the power of attorney was cancelled by the termination agreement; that Mrs. Hill, from and after May 13, 1971, 'was the employee solely of Wallace Groves'; that she endorsed the name of Bryan Hanks to the checks and deposited them in Groves' bank accounts, entitled 'Monte Christo Ranch', in the defendant banks without the authority of Hanks; and that such action by Mrs. Hill amounted to a conversion of the checks to her damage in at least the sum of $107,425.01.

Certain evidentiary facts were conceded by a written stipulation of the parties. The other facts which were proven were established by undisputed evidence. In that state of the record, it was the duty of the trial judge, in this a non-jury trial, to determine the legal effect of the stipulated facts and the undisputed evidence and to correctly apply the law to the conceded or undisputed facts. Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (Tex.Com.App., 1935); Employers Casualty Company v. American Employers Insurance Company, 397 S.W.2d 292 (Tex.Civ.App .--Amarillo 1965, writ ref'd, n.r.e.). See also Dallas General Drivers, Warehousemen And Helpers v. Wamix, Inc., of Dallas, 156 Tex . 408, 295 S.W.2d 873, 879 (1956).

Sometime prior to May 6, 1946, Hanks and Groves entered into a contract whereby Hanks agreed to act as agent and attorney in fact for Groves in the acquisition, operation and sale of certain properties. Thereafter, properties were purchased and operated pursuant to the contract, including certain lands in Hidalgo County, Texas, designated by the parties as the 'Valley Lands', and certain lands in the City of Fort Worth, Texas, designated by them as the 'Summit Avenue Property'.

The business arrangement between Hanks and Groves was terminated by an instrument in writing which was dated May 13, 1971. The instrument was introduced into evidence without objection. It was agreed:

(1) Hanks, would execute and deliver to Groves deeds and assignments covering all property standing in his name pursuant to the contract and powers of attorney theretofore existing;

(2) Hanks would cancel the existing powers of attorney when he completed the transactions required by the termination agreement;

(3) Hanks would execute 'any and all other instruments necessary to effectuate the sense of these agreements';

(4) Groves would pay Hanks the sum of $400,000.00 in full settlement of unpaid salary due Hanks;

(5) Groves would pay Hanks 10% Of all profits resulting from the sale of any property in Texas standing in the name of Hanks or jointly in the names of Hanks and Groves, which might be received by Groves from any party with whom Hanks was then negotiating for either a sale or lease.

Hanks conveyed the Hidalgo 'Valley Lands' and the 'Summit Avenue Property' to Groves on June 2, 1971. Groves then entered into exclusive possession of the 'Valley Lands', and thereafter operated the same through his agent Gaudet, a defendant herein, under the name of 'Monte Christo Ranch'. Hanks did not formally cancel any of the then existing powers of attorney. Groves paid $400,000.00 to Hanks.

THE SUIT FOR BREACH OF CONTRACT

The action for damages because of breach of contract is based on a refusal by Groves to pay Hanks or Mrs. Hanks 10% Of the profits from the sale of the 'Summit Avenue Property', which amounted to $72,325.29. It was stipulated: 1) Hanks, prior to May 13, 1971, contacted the real estate firm of Ferree & Searcy concerning the sale of certain portions of the 'Summit Avenue Property', and also contacted the real estate firm of Yager & Co. concerning the sale of all of it; 2) In February, 1972, Groves listed the property for sale with Ferree & Searcy, Realtors; 3) because of confusion created by this listing, Ferree & Searcy stopped offering the property at $800,000.00; 4) thereafter, Edward Yager, the President of Yager & Co., contacted a Fort Worth Insurance Company...