Guzman v. Solis

• Citation: 748 S.W.2d 108
• Decision Date: 27 January 1988
• Docket Number: No. 04-87-00053-CV,04-87-00053-CV
• Parties: Ramona GUZMAN, Administratrix for the Estate of Lorenzo Guzman and Isabel Guzman, both Deceased, Appellant, v. Minerva SOLIS, Maria Aurora Gatlin, Robert X. Solis, Martha Solis and Gloria Jean Malvani, Appellees.
• Court: Texas Court of Appeals

Page 108

748 S.W.2d 108

Ramona GUZMAN, Administratrix for the Estate of Lorenzo

Guzman and Isabel Guzman, both Deceased, Appellant, v. Minerva SOLIS, Maria Aurora Gatlin, Robert X. Solis, Martha

Solis and Gloria Jean Malvani, Appellees.

No. 04-87-00053-CV.

Court of Appeals of Texas,

San Antonio.

Jan. 27, 1988.

Rehearing Denied Feb. 26, 1988.

Michael Woods Wagner, Wagner & Wagner, San Antonio, for appellant.

Charles K. Tabet, San Antonio, for appellees.

Before ESQUIVEL, BUTTS and CHAPA, JJ.,

OPINION

CHAPA, Justice.

The previous opinion of this Court delivered December 9, 1987, is withdrawn and the following opinion is substituted.

Appellant/cross appellee Ramona Guzman, Administratrix for the Estate of Lorenzo Guzman and wife, Isabel Guzman, sued appellees/cross appellants:

a) Minerva Solis and Maria Aurora Gatlin, two of her sisters, and daughters of the deceased;

b) Robert X. Solis, Minerva Solis' husband;

c) Gloria Jean Malvani, Maria Aurora Gatlin's daughter; and

d) Martha Solis, Minerva Solis' daughter.

The suit was to recover certain monies allegedly belonging to the Estates of Lorenzo Guzman and wife, Isabel Guzman, on the theories of conversion, fraud, constructive trust, and unjust enrichment.

The jury findings were favorable to Guzman in the causes of both Estates. The jury found Gatlin owed $12,300.00, Minerva Solis owed $10,200.00, and Robert Solis owed $10,200.00 to the Estate of Isabel Guzman; Gatlin owed $4,000.00, and Minerva and Robert Solis owed $6,500.00 to the Estate of Lorenzo Guzman; and granted Guzman $10,815.00 attorney's fees. However, the trial court granted appellees/cross appellants a non obstante veredicto judgment as to the cause of the Estate of Isabel Guzman. Guzman appeals from that judgment. After remittitur the court entered judgment upon the jury findings as to the cause of the Estate of Lorenzo Guzman. Appellees/cross appellants by counter point, appeal only from the part of the judgment which grants attorney's fees.

The issues before this Court as to Guzman are:

1) Whether the court erred in granting a non obstante veredicto judgment in favor of Maria Aurora Gatlin, Minerva Solis, and Robert Solis; and

2) Whether the court erred in granting a non obstante veredicto judgment in favor of Minerva Solis and Robert Solis.

The only issue presented by the appellees/cross appellants is whether the court erred as a matter of law in granting judgment for attorney's fees.

The initial complaint is that the court erred in granting a non obstante veredicto judgment in favor of Maria Aurora Gatlin, Minerva Solis, and Robert Solis denying recovery of $12,300.00, $10,200.00, and $10,200.00 respectively.

To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict, it must be determined that there is no evidence upon which the jury could have made the findings relied upon. In acting on the motion, all testimony must be considered in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in that party's favor. Leyva v. Pacheco, 358 S.W.2d 547 (Tex.1962); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952).

Douglass v. Panama Inc., 504 S.W.2d 776, 777 (Tex.1974).

In this case, the non obstante veredicto judgment was granted "in accordance with the Motion For Judgment Not Withstanding The Verdict filed by them [appellees/cross appellants]." As pertains the initial point of error, the Motion For Judgment Not Withstanding The Verdict repeatedly asserts that Gatlin, and Minerva and Robert Solis are entitled to the said judgment because "there is no evidence" that the allegations against them were "done without the knowledge and consent of Isabel Guzman, deceased." Therefore, the question before this Court is whether there is evidence of probative force in the record that the acts alleged were done without the knowledge and consent of Isabel Guzman, deceased.

The evidence in the record, considered in the light most favorable to the verdict, which tends to support the lack of knowledge and consent of Isabel Guzman is:

1) that Isabel and Lorenzo Guzman had very little education and distrusted banking institutions;

2) that Isabel trusted her daughters Minerva Solis and Maria Gatlin implicitly with her financial affairs;

3) that as a result, Maria Gatlin and Minerva Solis were in complete control of the accounts containing Isabel Guzman's money;

4) that a process was followed of opening and closing several accounts in different sets of names for reasons unknown;

5) that during this process, Maria Gatlin at times withdrew the interest/dividends earned in one account and transferred them to an account in her previous name, Maria Aurora Bautista;

6) that 3 months before the death of Isabel Guzman, a statement from San Antonio Savings account was received by Maria Gatlin, which Isabel Guzman requested be brought to her by another daughter, Pat Mitchell;

7) that when Mitchell brought the statement to Isabel, Maria Gatlin became furious that the statement had been shown to Isabel;

8) that upon noticing how little money the statement disclosed, Isabel became very upset and reacted as if she had no previous knowledge of "what was going on with her money";

9) that Isabel Guzman died several months later from a stroke; and

10) that one month after the death of Isabel Guzman, the accounts were closed and the money transferred to two new accounts, one in the names of Maria Gatlin and Minerva Solis, and another in the names of Maria Gatlin, Minerva Solis and Gloria Jean Melvani. The point of error is sustained.

In the next point, Guzman complains because the judgment non obstante veredicto was granted in favor of Minerva and Robert Solis denying recovery of the $6,000.00.

With regards to the $6,000.00, the non obstante veredicto judgment was granted upon the allegation that there was no evidence that the $6,000.00 was owed and not paid by Minerva Solis and upon the application of the two year statute of limitations.

Ramona Guzman testified without objection that:

1) Minerva Solis admitted to Maria Gatlin and Alice Silva that $6,000.00 was borrowed by Minerva Solis from her mother, Isabel Guzman;

2) the money borrowed by Minerva Solis was never paid back; and

3) when she questioned Minerva Solis about the money, after the death of Isabel Guzman, Minerva Solis refused to give her any information.

Minerva Solis testified that she had made various and sundry withdrawals on numerous occasions of Isabel Guzman's funds, and admitted she had specifically borrowed $4,200.00 from Isabel Guzman. She further testified she had made no deposits in Isabel's accounts after borrowing the funds. The withdrawals and amount borrowed amounted to much more than $6,000.00.

Considering the evidence in the record in the light most favorable to the verdict, we hold that there is evidence that the $6,000.00 was owed and not paid by Minerva Solis.

The two year statute of limitations is an affirmative defense which is required to be plead by the party who alleges it....