Nelson v. Dallas Independent School Dist., 05-88-01347-CV

• Decision Date: 29 June 1989
• Docket Number: No. 05-88-01347-CV,05-88-01347-CV
• Citation: 774 S.W.2d 380
• Parties: 55 Ed. Law Rep. 782 Reverend Isaac T. NELSON and Geraldine Nelson, Appellants, v. DALLAS INDEPENDENT SCHOOL DISTRICT, et al., Appellees.
• Court: Texas Court of Appeals

Page 380

774 S.W.2d 380

55 Ed. Law Rep. 782

Reverend Isaac T. NELSON and Geraldine Nelson, Appellants, v. DALLAS INDEPENDENT SCHOOL DISTRICT, et al., Appellees.

No. 05-88-01347-CV.

Court of Appeals of Texas Dallas.

June 29, 1989.

Rehearing Denied Aug. 8, 1989.

Thomas G. Nash, Dallas, for appellants.

Roger Albright, Dallas, for appellees, Cent. States Southeast and Southwest Areas Health & Welfare Fund.

Frank W. Elliott, Dallas, for appellee, Dallas Independent School Dist.

Before ROWE, McCLUNG and BURNETT, JJ.

ROWE, Justice.

Appellants, the Reverend Isaac T. Nelson and Geraldine Nelson, sued appellees, Dallas Independent School District and Central States Southeast and Southwest Areas Health and Welfare Fund, to recover certain funds allegedly owed to their deceased daughter or her estate. On motion for summary judgment, the trial court granted a take-nothing judgment in favor of Central States. After a nonjury trial, the trial court granted a take-nothing judgment in favor of DISD. In eleven points of error, the Nelsons complain that the evidence is legally and factually insufficient to support the judgment in favor of DISD and that the trial court erred in granting summary judgment in favor of Central States. We affirm the trial court's judgment with respect to DISD, but reverse and remand with respect to Central States.

On January 21, 1983, Debra Kay Nelson Jones died intestate. Debra had no children but was survived by her husband, Percy Jones, and by her parents, the Nelsons. In a separate lawsuit, a jury determined that Percy had killed Debra and was therefore barred from receiving the proceeds of any insurance policy on Debra's life or any share of Debra's estate. This lawsuit involves two separate claims by the Nelsons to recover certain funds paid by appellees to Percy prior to this determination.

Claim Against DISD

At the time of her death, Debra was entitled to earned but unpaid salary from DISD of $3,106.52. On February 2, 1983, DISD issued two checks payable to Debra's estate as payment of such salary. After securing an affidavit from Percy, DISD released the two checks to him. The checks were subsequently indorsed "Debra K. Jones" and were paid by the drawee bank.

The Nelsons filed this lawsuit against DISD seeking to recover the salary. The trial court found that on the date that DISD delivered the checks to Percy, no one had been appointed as the personal representative of Debra's estate. It concluded, therefore, that on the date of delivery, Percy was entitled to collect the checks on behalf of Debra's estate pursuant to Probate Code section 160. TEX.PROB.CODE ANN. § 160 (Vernon 1980). Accordingly, the trial court entered a take-nothing judgment in favor of DISD. The Nelsons challenge the sufficiency of the evidence to support the findings upon which this judgment is based.

In addressing the Nelsons' challenges to the legal and factual sufficiency of the evidence supporting the trial court's findings, we apply the same standards as we would apply in reviewing the sufficiency of the evidence supporting a jury's answers to jury questions. Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.). In analyzing their no evidence points, we must determine whether there is more than a scintilla of evidence to support the trial court's findings. See Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987). In making this determination, we must consider only the evidence favorable to the trial court's findings and disregard all evidence to the contrary. Okon, 612 S.W.2d at 941; see Stafford, 726 S.W.2d at 16; In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). If the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital facts, we must overrule the Nelsons' no evidence points. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

In reviewing their factual sufficiency points, we must determine whether, considering all the evidence, the trial court's findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. Okon, 612 S.W.2d at 941; see Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985); In re King's Estate, 150 Tex. at 664-65, 244 S.W.2d at 661. It is, however, within the trial court's province as the trier of fact to judge the credibility of the witnesses and to resolve any conflict or inconsistencies in the testimony. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, writ ref'd n.r.e.); Cobb v. Dunlap, 656 S.W.2d 550, 553 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.).

In their sixth and seventh points of error, the Nelsons contend that there is no evidence or insufficient evidence that Percy was entitled to collect Debra's unpaid salary pursuant to Probate Code section 160. Section 160 provides, in relevant part:

When no one has qualified as executor or administrator of the estate of a deceased spouse, the surviving spouse ... has the power ... to collect claims to the community estate....

TEX.PROB.CODE ANN. § 160 (Vernon 1980). In the court below, the parties stipulated that Percy was married to Debra on the date she died. Similarly, they stipulated that on February 2, 1983, no one had qualified as the administrator of Debra's estate, but that the Reverend Nelson was appointed temporary administrator two days later. The record contains no evidence contradicting these stipulations. Accordingly, these stipulations were binding upon the parties and the trial court and are now binding upon this Court. See Geo-Western Petroleum Dev., Inc. v. Mitchell, 717 S.W.2d 734, 736 (Tex.App.--Waco 1986, no writ); Trinity Universal Ins. Co. v. Bellmead State Bank, 396 S.W.2d 163, 168 (Tex.Civ.App.--Dallas 1965, writ ref'd n.r.e.). We conclude that this stipulated evidence conclusively establishes every fact necessary to show that Percy was entitled to collect Debra's unpaid salary on behalf of the estate pursuant to Probate Code section 160. We overrule the sixth and seventh points of error.

In their first and second points of error, the Nelsons assert that there is no evidence or insufficient evidence that DISD issued the checks to Percy or that he received the checks in the capacity of community survivor. The Nelsons argue that if the checks were issued pursuant to section 160, DISD should have made them payable to Percy as community survivor and not to Debra's estate. We find no authority, nor have the Nelsons cited any, for the proposition that a debtor in DISD's position must specify that payment is being made to a spouse as community survivor in order to rely on section 160. We see no cogent reason to require a debtor to specify the capacity of community survivor as opposed to simply making the check payable to the deceased spouses's estate as DISD did here. We overrule the first and second points of error.

In their fourth and fifth points of error, the Nelsons contend that there is no evidence or insufficient evidence that delivery of the checks to Percy constituted full payment of Debra's claim against DISD. As we have already indicated, Percy had the right to collect the checks from DISD on February 2, 1983. Since DISD delivered the checks to Percy on that date, the Nelsons cannot now claim that such delivery failed to satisfy DISD's obligation to Debra's estate. Cf. First Nat'l Bank v. Gann, 150 S.W.2d 290, 292 (Tex.Civ.App.--Galveston 1941, writ ref'd). We overrule the fourth and fifth points of error.

In their third point of error, the Nelsons complain that the trial court erred in entering judgment for DISD because the improper indorsement of the checks did not pass title. We fail to see how this principle in any way affects this lawsuit. As the surviving spouse, Percy was authorized to collect the salary that DISD owed to Debra; and DISD was likewise authorized to deliver such salary to Percy. DISD fulfilled its obligation on February 2, 1983. The subsequent improper indorsement may have given rise to a cause of action for conversion against whoever indorsed Debra's name, the drawee bank, and any depositary or collecting banks, but not against DISD. We overrule the third point of error.

Claim Against Central States

When Debra died, Central States issued a check for...