Nolan v. Bettis, 12813

• Decision Date: 07 February 1979
• Docket Number: No. 12813,12813
• Citation: 577 S.W.2d 551
• Parties: Ann Joy Bettis NOLAN, Appellant, v. James Jay BETTIS et al., Appellees.
• Court: Texas Court of Appeals

Page 551

577 S.W.2d 551

Ann Joy Bettis NOLAN, Appellant, v. James Jay BETTIS et al., Appellees.

No. 12813.

Court of Civil Appeals of Texas, Austin.

Feb. 7, 1979.

Rehearing Denied Feb. 28, 1979.

Robert L. Templeton, Templeton & Garner, Amarillo, for appellant.

Milton L. Bankston, J. Stockton Williams, Jr., Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellees.

SHANNON, Justice.

Appellees, Douglas Dewey Bettis and his brother, James Jay Bettis, individually and as independent executor of the estate of James W. Bettis, Jr., sued appellant, Ann Joy Bettis Nolan, their stepmother, and three Austin attorneys. Appellees' suit sought actual and exemplary damages and an order canceling a trustee's deed to appellant to Skyview Ranch, a three hundred and sixty-one-acre tract of land located in Travis County. After trial to a jury, judgment was entered canceling the deed and awarding appellees damages of $27,000.

Appellant perfected an appeal, cause number 12,624, to this Court from that judgment. Because the judgment was interlocutory, this Court dismissed the appeal for want of jurisdiction. 562 S.W.2d 520 (Tex.Civ.App.1978, no writ).

According to the fact statements in the briefs, appellees' father, James Wallace Bettis, Jr., was married to, but separated from, his second wife, appellant Ann Joy Bettis Nolan, at the time of his death in March of 1973. At that time, appellant's suit for divorce from Bettis was pending. No children were born to Bettis and appellant. By his first wife, Bettis had two sons, the appellees in the present appeal.

Bettis died testate. His will devised practically all of his estate, including the Skyview Ranch, to his sons, and by its terms the elder son, J. J. Bettis, was named independent executor of the estate. Appellant contested the admission of the will to probate. Judgment was entered admitting the will to probate and this Court affirmed that judgment. Bettis v. Bettis, 518 S.W.2d 396 (Tex.Civ.App.1975, writ ref'd n. r. e.).

In the suit presently on appeal, appellees asserted fraud and conspiracy as grounds for action against appellant and her attorneys. After our opinion in number 12,624, appellees' claim against the attorneys was severed from their claim against appellant, thereby making the judgment against appellant final and appealable.

The events made the basis for suit occurred during the pendency of appellant's contest of her husband's will. After the will was filed for probate, both J. J. Bettis and appellant made application to the county court of Travis County for appointment as temporary administrator of the estate. After a hearing was commenced, the parties agreed that an order might be entered naming Bettis and appellant as joint temporary administrators of the estate. The order, however, was never entered.

The pleadings reveal that at the death of her husband in March, 1973, appellant was living on the Skyview Ranch. The ranch had been purchased by Bettis prior to his marriage to appellant. At Bettis' death, San Antonio Savings and Loan Association held a first mortgage lien against the ranch for a sum less than $10,000. The market value of the ranch far exceeded the outstanding indebtedness. Appellant made the April and May, 1973, mortgage payments to the savings association.

The contest of the will was heard in June, 1973, and the county court entered an order admitting the will to probate on July 12, 1973. The order also required that J. J. Bettis, as independent executor, pay to appellant " . . . a sum of money each month, for one year from the date of Decedent's death, equal to the amount of the mortgage payments which are due and payable on the ranch owned by the Decedent."

Appellees alleged that appellant's counsel called upon the executor for payments due appellant for the months of April, May, June and July, 1973, thereby representing to appellees that the payments for those months to the savings association had been made. Appellees pleaded further that the July payment intentionally had not been paid by Mrs. Bettis so as to permit the note to fall into default. Appellant went to San Antonio on July 31, 1973, to negotiate the purchase and transfer of the mortgage to herself. Appellant obtained the transfer of the note and lien on August 2, 1973.

It was further alleged that on or about August 14, appellant appointed one of her attorneys to serve as substitute trustee under the existing deed of trust. On August 14 the substitute trustee prepared notices of foreclosure sale and caused the same to be posted. The substitute trustee on September 4, 1973, conducted a foreclosure sale of the ranch property and struck off the property to appellant at a bid price of eighty-seven cents per acre, a total sum of $300.00. On the same day a trustee's deed to appellant was executed and filed of record.

Appellees alleged that neither appellant nor her counsel notified them or their counsel that the note and debt were in default, or that appellant had purchased the note and lien, or that appellant intended to foreclose. Appellees pleaded that such acts of appellant were intentional and malicious and done in furtherance of a conspiracy to defraud appellees of their rights to the ranch.

The court's charge contained thirty-two special issues. The jury answered, Inter alia, that appellant failed to give appellees actual notice of the acceleration of the mortgage note and that she failed to make demand upon appellees for payment of the full amount owing on the note. Appellees were not given actual notice of the deed of trust sale. A potential purchaser was present at the foreclosure sale who would have been able to obtain cash for purposes of bidding. The substitute trustee, however, announced at the sale that he would not allow bids unless the bidder produced cash in the amount of the bid at the time of the bid. Because of the substitute trustee's announcement, the potential purchaser did not bid. The substitute trustee failed to allow the potential purchaser a reasonable time to obtain cash for purposes of bidding. The sales price, $300.00, was grossly inadequate for the land, considering its fair market value of $220,000 at the time of sale. The jury answered further that the failure to give appellees notice of the acceleration of the note, the failure to make demand upon appellees for full payment of the note, the failure to give appellees notice of the sale, and the substitute trustee's requirement that the bidder possess the cash amount of his bid, caused or contributed to cause the ranch land to be sold at foreclosure for the grossly inadequate price.

The jury found that appellant secured the transfer of the lien on the ranch with intent to foreclose the lien, and caused the substitute trustee to be appointed with the intent to foreclose the lien, all with the fraudulent intent to deprive appellees of their property rights in the ranch. The jury responded also that appellant, acting individually or through her agents, fraudulently intended to deprive appellees of their property rights in the Skyview Ranch by failing to notify appellees of the acceleration of the note, failing to make demand upon appellees for full payment of the note, failing to give appellees notice of the sale, and failing to request the original trustee to serve under the deed of trust. Appellant or her agents acted fraudulently, according to the jury by requiring the bidder to possess the cash amount of his bid and by not allowing a potential bidder reasonable time to obtain cash for purposes of bidding.

In response to the damage issues, the jury answered that appellant acted with malice in seeking to deprive appellees of their property rights to the land and that exemplary damages should be assessed against her in the sum of $25,000. The jury found that $2,000 in damages would compensate appellees for loss of use, resulting from the foreclosure, of 161 acres of the 361-acre ranch.

Pursuant to verdict, the court rendered judgment for appellees for $27,000, for cancellation of the trustee's deed, and for title to be vested in J. J. Bettis, as independent executor of his father's estate, burdened only with the homestead rights of the surviving spouse in 200 acres of the ranch.

Appellant attacks the judgment by thirty-five points of error. Some of the points of error are "no evidence" or "insufficient evidence" points. Appellees argue that this Court must presume that evidence supports the jury findings because appellant filed no statement of facts in the present appeal. Guthrie v. National Homes Corporation, 394 S.W.2d 494 (Tex.1965). The basis for appellees' argument is given below.

In appeal number 12,624, which this Court dismissed for want of jurisdiction, appellant filed a transcript and a statement of facts. After this Court dismissed that appeal, the district court, after hearing, signed an order of severance in February of 1978. The entry of the order of severance made the judgment final and appealable. Appellant then filed an appeal bond and perfected the present appeal, cause number 12,813, by filing a transcript with the Clerk of this Court. Appellant never filed, nor tendered for filing, a statement of facts in the present appeal, number 12,813.

Appellant has filed a motion with this Court entitled, "Motion to Deem Statement of Facts Filed." In her motion, appellant argues that the statement of facts filed in the appeal dismissed for want of jurisdiction, number 12,624, should be considered as also filed in the present appeal, number 12,813. Appellant takes this position even though the statement of facts was not admitted into evidence by the district court as a part of the record in the second proceeding and even though no statement of facts was tendered or filed in the present appeal.

An appellate court may take notice of its records for purposes of Res adjudicata, but an appellate court may not refer to the statement of facts of another case " . . ....