Pope v. Darcey

• Citation: 667 S.W.2d 270
• Decision Date: 26 January 1984
• Docket Number: No. A14-82-729CV,A14-82-729CV
• Parties: Dougal C. POPE, Appellant, v. H. James DARCEY, et al, Appellees. (14th Dist.)
• Court: Court of Appeals of Texas

Page 270

667 S.W.2d 270

Dougal C. POPE, Appellant, v. H. James DARCEY, et al, Appellees.

No. A14-82-729CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Jan. 26, 1984.

Rehearing Denied Feb. 23, 1984.

Rudy M. Groom, Pope & Waits, Houston, for appellant.

John W. Odam, Helm, Pletcher & Hogan, Houston, Mark D. Wilson, Atkinson & Wilson, for appellees.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.

OPINION

DRAUGHN, Justice.

Dougal Pope appeals from a judgment in favor of appellees Darcey and Weeks and appellee Parsons. The trial court held against Pope finding that he had brought a groundless Deceptive Trade Practices Act (or D.T.P.A.) suit against Darcey and Weeks, and that he improperly entered an earnest money contract with Parson's brother, who later died intestate. Pope now contends that there were various errors in the trial as to both appellees. We find no error and affirm the judgment.

Mrs. Jennie Bruno died in 1975 survived by her sister, Ruth Parsons, her brother, Louis Boekelman, Ellen Parsons Keith, Sherry Ellen Keith and Donna Ruth Keith. Her will provided that her estate be divided equally among the five above-mentioned survivors. Ruth Parsons and Ellen Parsons Keith were named co-independent executrixes and were given the power to dispose of any property without the consent of the remaining heirs.

Dougal Pope, an attorney, represented the Bruno estate until May or June of 1976, when Pope's employment was terminated. In 1978, Pope began negotiating with Louis Boekelman to purchase Boekelman's 1/5 interest in the Bruno estate. The papers finalizing those negotiations were signed on August 29, 1978.

In the interim, Parsons and Keith continued to administer the estate. The major holdings of the estate were several pieces of land. An old family friend, James Darcey, was appointed by the court to appraise the property. Darcey thereafter found a buyer for one of the holdings, 95 acres in Waller County. The buyer, James Weeks, was not able to come up with the money under the terms of the original contract. Darcey, however, knowing that Weeks was anxious to purchase the property, suggested an alternate plan. Darcey himself offered to buy 27.6 acres of the 95 acres with his commission from the sale of the remaining 67.4 to Weeks. Weeks, in turn, was able to locate a sufficient sum to buy the 67.4 acres. This arrangement was satisfactory, and the entire 95 acres was transferred to Weeks. Weeks thereupon immediately deeded the 27.6 acres to Darcey.

In November, 1978, Pope filed a Deceptive Trade Practices Act (D.T.P.A.) suit against Darcey and Weeks. He claimed that they violated the provisions of the act by their failure to disclose to Boekelman, Pope's predecessor in interest, that Darcey, a broker, was a principal in the sale of the Waller property. Darcey and Weeks responded by filing cross-actions against Pope. Executrix Parsons then intervened in this lawsuit, and urged that the trial court declare the earnest money contract between Pope and her brother, Boekelman, to be null and void because it violated Pope's confidential relationship with Boekelman because of Pope's prior connection with the Bruno Estate. Four months before the actual trial began, in January 1982, Pope dismissed his suit against Darcey and Weeks. Darcey and Weeks then were realigned as plaintiffs on their cross-action against Pope. They claimed that Pope brought the D.T.P.A. suit in bad faith and for purposes of harassment; therefore, they were entitled to attorney's fees. The trial court held against Pope, from which holding Pope appeals.

Before reviewing appellant's points of error on the merits, we must first consider appellees' contention that appellant Pope's brief does not comply with our briefing rules. Appellant presents thirteen "points of error." Many of the points are more properly characterized as general statements of criticism, rather than complaints of error in the trial court. Points of error are not proper for consideration if they are merely abstract propositions of law and do not complain of any specific action in the court below. Powell v. Powell, 604 S.W.2d 491, 493 (Tex.Civ.App.--Dallas 1980, no writ). Rule 422 of the Texas Rules of Civil Procedure provides that the briefing rules are to be liberally construed, but where the briefing rules are violated, the court may require the case to be rebriefed. Rather than require rebriefing and additional delay, we will construe appellant's criticisms to be equivalent points of error.

In his first point of error, appellant apparently complains that the trial court erred in awarding attorney's fees to Darcey and Weeks based upon the jury's finding that the D.T.P.A. suit was brought by Pope in bad faith. Appellant claims that regardless of the bad faith issue, the Deceptive Trade Practices Act only allows such recovery if the case is actually brought to trial. Thus, he contends, his dismissal of his original suit prior to trial avoided imposition of attorney fees. We disagree. The Deceptive Trade Practices Act only requires that a suit be "brought" in bad faith for one to be liable for attorney's fees, not that it be prosecuted to its conclusion. Cameo Constr. Co. v. Campbell, 642 S.W.2d 10, 12 (Tex.App.--El Paso 1982, no writ). See Tex.Bus. & Com.Code Ann. § 17.50(c) (Vernon Supp.1982-83).

Appellant's next point entitled, "Pope's Objection to Certain Testimony Offered by Darcey and Weeks," contains a list of twenty-eight statements, unobjected to and admitted at trial. Appellant suggests that twenty-seven of the statements constituted hearsay evidence. We disagree. Even though appellant failed to timely object to these statements, we find that none of them were admitted for their truth or falsity, but rather simply to show that the statements were made. Thus, the hearsay rule does not bar this testimony. Western Co. of N. Am. v. Grider, 626 S.W.2d 923, 926 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.). Appellant also complains that certain statements made by Pope were incompetent as to any issue in the case; however, appellant did not object to admitting his own statements at trial. In order to preserve one's right to complain about the admission of testimony, appellant must have objected at the time the testimony was offered into evidence. Farias v. Texas Gen. Indemnity, 565 S.W.2d 117, 119 (Tex.Civ.App.--Corpus Christi 1978, no writ). Thus, appellant's second point of error is overruled in its entirety.

In points of error three, four, six and seven appellant contends that there was no evidence, or in the alternative, insufficient evidence, to support the jury's findings that appellant brought the D.T.P.A. suit against Darcey and Weeks in bad faith and for purposes of harassment. We find, however, there was ample evidence to support both. Appellant's major claim in the Deceptive Trade Practices suit was that Darcey and Weeks violated the provisions of the Act by their failure to disclose to Boekelman and the other Bruno estate heirs that Darcey was a principal in the sale of the Waller property. However, as a result of his work on the Bruno estate, appellant had become familiar with Jennie Bruno's will and knew that Parsons and Keith could sell this estate property without the consent of the remaining heirs. Thus, any alleged deception of Boekelman was irrelevant, which appellant, in fact, admitted at trial on cross-examination. Additionally, appellant admittedly recognized that Boekelman's death on July 16, 1979 was of significant impact. Boekelman's own testimony was the sole evidence...