Pemelton v. Pemelton

• Decision Date: 09 May 1991
• Docket Number: No. 13-90-133-CV,13-90-133-CV
• Citation: 809 S.W.2d 642
• Parties: Charlotte A. PEMELTON, Appellant, v. Billy Gene PEMELTON, Appellee.
• Court: Texas Court of Appeals

Page 642

809 S.W.2d 642

Charlotte A. PEMELTON, Appellant, v. Billy Gene PEMELTON, Appellee.

No. 13-90-133-CV.

Court of Appeals of Texas Corpus Christi.

May 9, 1991.

Lisa D. Powell, Atlas & Hall, Marlane A. Meyer, Susan Williams, Rebecca Pool, Atlas & Hall, McAllen, for appellant.

Lanette Smith Joubert, Corpus Christi, Barry Evan Jones, Weslaco, for appellee.

Before NYE, C.J., and SEERDEN and HINOJOSA, J.J.

OPINION ON MOTION FOR REHEARING

NYE, Chief Justice.

We withdraw our original opinion and substitute this opinion on motion for rehearing. This is a suit for characterization of property and division of community assets pursuant to divorce. The trial court granted cross-plaintiff-appellee, Billy Gene Pemelton, a divorce based on cruel treatment by appellant, Charlotte Heggen Pemelton. The jury characterized the property in dispute and returned a take nothing verdict for Charlotte's tort claims against Billy Gene. The judgment divided the community estate and its debts, awarding, among other things, Charlotte with all reimbursement due the community for improvements made to her separate property and, to equalize division of the community estate, granted Billy Gene an equitable lien against Charlotte's separate property for his interest in the homestead. Charlotte asserts seventeen points of error. We affirm.

Charlotte and Billy Gene married June 11, 1960, in Mercedes. They then spent four or five years at Abilene Christian University, where Charlotte obtained a teaching certificate and Billy Gene trained for the 1964 Olympic pole-vaulting competition.

In 1965, the couple returned to Mercedes and began farming and ranching. Charlotte also taught school. The couple resided in a house located on a 32-acre tract (Tract A) owned by Charlotte's father and mother, Lloyd and Lilly Myrl Heggen. They rented this and other tracts from the Heggens for farming purposes. They also farmed other acreage which they either purchased or leased from other sources. In 1969, the Heggens deeded Tract A to Charlotte, intending the conveyance as a gift. On this property, Charlotte and Billy Gene created Pemelton Farm and Ranch, a horse breeding farm, by levelling and fencing the land, remodelling the house, building several stables, an office, grain storage bins and miscellaneous storage barns.

In 1976, the Heggens allegedly deeded to Charlotte an additional 127 acres (Tracts B and C), as her separate property. Charlotte executed a promissory note for the land, promising to pay in ten annual installments. Thereafter, the Heggens forgave the annual payment obligation as a Christmas gift. Neither Charlotte nor Billy Gene paid any money for Tracts B and C. This land was contiguous to Tract A and was used for the horse farm. Anticipating legalization of pari-mutuel wagering, the parties established a modest horse-racing facility on Tracts B and C.

During the marriage, Charlotte and Billy Gene also rented and purchased other farmland and owned and operated a western wear store, a cotton gin, a produce packing shed and a land-levelling business. In the mid-1980's, the Mexican peso's devaluation created a severe economic situation for businesses in the Rio Grande Valley. During that time the parties sold or lost through bankruptcy all but the horse farm, which subsequently entered bankruptcy proceedings in 1987.

Charlotte filed for divorce in January, 1988, alleging that the marriage was insupportable due to discord and conflict of personality. She also pleaded that: (a) Billy Gene intentionally and knowingly or recklessly caused her bodily injury by hitting her with his fists and beating her head on the floor of the office trailer; (b) Pemelton Farm and Ranch had to remain in operation to meet its Bankruptcy court debt repayment schedule and that Billy Gene willfully, intentionally and maliciously interfered with Charlotte's negotiations furthering the farm's business and in doing so breached a fiduciary relationship that existed between the couple; (c) Billy Gene squandered community assets over the course of the marriage and asked the court for an accounting and reimbursement of her share of the community which was wasted in this breach of fiduciary responsibility; (d) since their separation, Billy Gene slandered, libelled and defamed Charlotte damaging her reputation and character in the business and social community; and (e) she sought a permanent injunction against Billy Gene prohibiting him from communicating with her and destroying her property. Billy Gene cross-claimed, alleging that: (a) the marriage was insupportable, that Charlotte had committed adultery and treated him cruelly during their marriage; (b) that both Tract A and Tracts B and C, which Charlotte claimed as her separate property, were actually the separate property of both parties or was community property, or was held in constructive trust due to Lloyd Heggen's oral conveyances made in 1966 and 1974, respectively; (c) that the community should be reimbursed for the time, toil and effort invested and expended in developing and improving Charlotte's separate property; (d) that Charlotte intentionally, willfully maliciously and/or fraudulently breached her fiduciary responsibility to properly manage and operate the family business; (e) that Charlotte had slandered, libelled and defamed him, damaging his reputation and character in the business and social community; and (f) that Charlotte's violent and ungovernable temper caused him physical harm and mental anguish.

The jury found that Tracts B and C were community property and that Charlotte breached her fiduciary duty to Billy Gene by representing that he shared ownership of Tracts B and C. It also found that Billy Gene intentionally and willfully committed acts calculated to damage and which did damage Charlotte's business and that Billy Gene damaged Charlotte when he breached his fiduciary duty to her after their divorce was filed; however, in both instances, the jury found that "-0-" money would fairly compensate her for her damages.

The judgment granted the divorce based upon Charlotte's cruel treatment of Billy Gene and affirmed that Tract A was Charlotte's separate property. These findings are not contested on appeal. The judgment awarded Tracts B and C and a contiguous 17-acre undisputed community property tract to Billy Gene and ordered Charlotte's separate estate to pay Billy Gene $150,000.00 for his interest in the homestead. To enforce this judgment, the trial court granted him an equitable lien on Tract A.

Charlotte's tenth point of error asserts that the trial court erred in allowing Billy Gene to present witnesses not timely designated in response to her request for discovery. She indicates that under Tex.R.Civ.P. 166b(6), a party who timely responds to a timely-filed discovery request must supplement his response no later than thirty days before the trial commences, unless the court finds good cause for permitting or requiring later supplementation.

Failure to respond to or supplement discovery requests results in the automatic loss of the opportunity to offer the witnesses' testimony. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex.1986); Gonzalez v. Stevenson, 791 S.W.2d 250, 252 (Tex.App.--Corpus Christi 1990, no writ); Tex.R.Civ.P. 215(5). However, if the proponent offering the evidence shows in the record that good cause exists for such failure, the trial court may admit the testimony. Gonzalez, 791 S.W.2d at 252; Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243, 246 (Tex.1985); K-Mart Corp. v. Grebe, 787 S.W.2d 122, 126 (Tex.App.--Corpus Christi 1990, writ denied); Tex.R.Civ.P. 215(5). Determination of good cause is within the sound discretion of the trial court and can only be set aside if the court acted without reference to any guiding rules and principles. Morrow, 714 S.W.2d at 298; K-Mart, 787 S.W.2d at 126; Ramos v. Champlin Petroleum Co., 750 S.W.2d 873, 876 (Tex.App.--Corpus Christi 1988, writ denied).

In the present case, Billy Gene requested and received court permission to supplement discovery, allowing him to designate all of his witnesses twenty-five days before trial. Both parties refer to a hearing held on June 5, 1989, in which the trial court overruled Charlotte's objection to the late supplementation. Our examination of the statement of facts reveals no record of that hearing. The burden is on Charlotte to see that a sufficient record is presented to us to show error requiring reversal. Tex.R.App.P. 50(d). We therefore presume that anything omitted from the record on appeal supports the trial court's judgment. Producer's Constr. Co. v. Muegge, 669 S.W.2d 717, 718 (Tex.1984); Haynes v. McIntosh, 776 S.W.2d 784, 785-86 (Tex.App.--Corpus Christi 1989, writ denied); De Leon v. Dr. Pepper Bottling Co., 694 S.W.2d 381, 382 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.).

More importantly, Charlotte failed to object when Billy Gene's witnesses testified. By failing to make a timely objection, motion or request to the trial court at the time an undisclosed witness takes the stand, a party waives any complaint under Rule 215(5) regarding the admission of that witness' testimony. Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex.1989); Tex.R.App.P. 52(a). Point ten is overruled.

Charlotte asserts by her twelfth and thirteenth points of error that the evidence is legally and factually insufficient to support the jury's findings in Jury Question numbers 1 and 2. The jury found in Question 1 that Tracts B and C as well as the master bedroom and living room furniture were not Charlotte's separate property. In Question 2, the jury found that the conveyance of Tracts B and C by deed dated September 1, 1976, which the Heggens made to Charlotte, was not intended as a gift. Specifically, Charlotte argues that the evidence conclusively established that the 1976 deed conveyed the property to her separate estate and was a gift from her...