Security Sav. Ass'n v. Clifton, 05-87-01041-CV

• Citation: 755 S.W.2d 925
• Decision Date: 28 July 1988
• Docket Number: No. 05-87-01041-CV,05-87-01041-CV
• Parties: SECURITY SAVINGS ASSOCIATION, Appellant, v. Art B. CLIFTON, Appellee.
• Court: Texas Court of Appeals

Page 925

755 S.W.2d 925

SECURITY SAVINGS ASSOCIATION, Appellant, v. Art B. CLIFTON, Appellee.

No. 05-87-01041-CV.

Court of Appeals of Texas,

Dallas.

July 28, 1988.

Rehearing Denied Aug. 31, 1988.

Alan S. Leibel, Michael R. Swan, Michael J. Wagner, Dallas, for appellant.

Harold Hoffman, Keith Zagar, Dallas, for appellee.

Before DEVANY, McCLUNG and BAKER, JJ.

BAKER, Justice.

Security Savings Association appeals from a judgment in which a jury awarded damages and attorneys fees to Art B. Clifton for conversion of Clifton's ten percent interest in a $2,000,000.00 savings account held by SSA. In six principal arguments, SSA contends the trial court violated the parol evidence rule, erred in submitting certain jury questions, erred in awarding exemplary damages, attorney's fees, and prejudgment interest, and attacks the sufficiency of the evidence to support the jury's findings. We find the award of attorney's fees and calculation of prejudgment interest to be improper. We modify the judgment and, as modified, affirm.

In March 1983, SSA agreed to fund a condominium project known as the "Dove Park Project." SSA agreed to fund the project if Ray J. Stockman, a real estate developer and principal in the project, would agree to pledge the profits realized from the land sale as collateral until the land loans for the project were paid and the construction loan funded. Stockman held the profits amounting to $2,000,000.00 as trustee for: (1) himself, owning $800,000.00; (2) Texas International Properties (TIP), SSA's wholly owned subsidiary, owning $1,000,000.00; and (3) Clifton, owning a $200,000.00 interest by virtue of an assignment from Stockman. Stockman agreed to the pledge and placed the profits in an account with SSA. Clifton received his ten percent interest simultaneously with the pledge and consented to the pledge agreement.

The land loans were paid on July 29, 1983. Before this, Clifton notified SSA that he intended to withdraw his interest when the land loans were paid. SSA ignored Clifton's request and insisted that Stockman repledge the entire $2,000,000.00 as collateral for the construction loan until the permanent loan funded. Stockman agreed but stated that he was without authority to bind Clifton's interest as collateral for the construction loan. Stockman signed the new pledge agreement as SSA demanded, and SSA refused to recognize Clifton's interest or demand. Consequently, Clifton filed suit for conversion of his ten percent interest and for prejudgment and postjudgment interest, punitive damages, and attorneys fees.

SSA asserted two affirmative defenses, arguing that Clifton had released all of his interest in the account by virtue of a settlement agreement in another lawsuit and that Clifton was barred from recovering his interest because he represented SSA as its attorney in the initial real estate transaction. The settlement agreement upon which SSA based its release defense arose from another lawsuit brought by Clifton against TIP and other parties. SSA was not a party to that suit.

In the earlier suit, Clifton claimed a partnership interest in several projects, including the Dove Park Project, and sought his share of the profits. Under the initial settlement agreement in February of 1984, Clifton agreed to release all claims in return for $310,000.00 in the form of cash, promissory notes, and an assignment of 20.75 percent interest or $207,500.00 of TIP's $1,000,000.00 interest in the $2,000,000.00 account held by SSA as collateral for the Dove Park Project. In October of 1984, the parties consummated the settlement by entering into another agreement which essentially effectuated the terms of the February agreement. Under the October agreement, Clifton again released all his claims and reassigned his newly acquired 20.75 interest in the account back to TIP in exchange for $238,671.31. He had already received the cash and promissory notes provided by the February agreement. However, the new agreement contained language which SSA claims supports its contention that Clifton assigned all his interest in the $2,000,000.00 account to TIP, including the ten percent interest he initially acquired from Stockman. Paragraph two of the October agreement states that "Clifton hereby transfers, conveys and assigns to Texas International Properties, Inc. a 20.75% interest in Security Savings Association Certificate of Deposit No. 59-1002464108, said 20.75% interest being all of Clifton's right, title and interest in and to such Certificate of Deposit." [Emphasis added].

The jury found for Clifton on every issue submitted and made the following relevant findings concerning SSA's affirmative defenses: (1) that the parties to the October release agreement did not intend to release the ten percent interest that Clifton acquired from Stockman; (2) that the phrase in the release stating "said 20.75% interest being all of Clifton's right, title and interest in and to such Certificate of Deposit" was inserted by mutual mistake; (3) that Clifton received no consideration for the alleged release of the ten percent interest in issue; and (4) that Clifton did not represent SSA as its attorney. Based on the jury findings, the trial court entered judgment against SSA for the $200,000.00 principal amount, $105,377.21 in interest as of June 23, 1987, $75,000.00 in exemplary damages, and $35,000.00 in attorney's fees.

Before reaching the merits of this case, we first address Clifton's contention that SSA has waived many of the points of error asserted in this appeal. Specifically, Clifton argues that SSA failed to object to the submission of jury questions number two and three, failed to preserve its "no evidence" points, and failed in its motion for new trial to specifically challenge the jury findings it now claims to be against the great weight and preponderance of the evidence.

A party must make a specific objection to the submission of a jury question believed to be improper if that party wishes to preserve the error for appellate review. TEX.R.CIV.P. 274; Vela v. Alice Specialty Co., 607 S.W.2d 289, 291 (Tex.Civ.App.--Tyler 1980, no writ). Jury questions number two and three inquire into the intention of the parties to the October release agreement. During the submission conference, SSA objected on the grounds that the release agreement was unambiguous and, therefore, could not support the submission of the questions. SSA takes the same position in this appeal. SSA has preserved its complaint for our review.

To preserve a "no evidence" point for appellate review, the objecting party must perform one of the following procedural steps in the trial court: (1) an objection to the submission of the question to the jury; (2) a motion to disregard the jury's answer to the relevant fact question; (3) a motion for instructed verdict; (4) a motion for judgment notwithstanding the verdict; or, (5) a motion for new trial. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985). In points of error numbers six, seven, and eleven, SSA complains that there was no evidence to support the submission or the jury's answer to the questions concerning mutual mistake, or to support the award of exemplary damages. SSA did not object to the questions, nor did it file any of the motions required to preserve these points. Points of error number six, seven, and eleven have not been preserved for review and are overruled.

In this appeal SSA asserts that the following two jury findings are against the great weight and preponderance of the evidence: (1) that the parties to the October release agreement included the ten percent interest Clifton acquired from Stockman by mutual mistake; (2) that no attorney-client relationship existed between Clifton and SSA. SSA's motion for new trial states that "[t]he findings of the jury were against the overwhelming weight of the evidence." Clifton takes the position that because SSA failed to specifically identify the numbered findings it challenges in this appeal, it has waived its complaint. We disagree.

"Against the great weight and preponderance of the evidence" points must be raised in a motion for new trial in order to preserve the issues for appeal. TEX.R.CIV.P. 324. Furthermore, the objection in the motion for new trial must be specific enough to inform the trial court of the alleged error. TEX.R.CIV.P. 322. To accomplish this end, it is generally required that jury findings be attacked separately in a motion for new trial. See Biggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359, 368 (1957); Naranjo v. Cull, 569 S.W.2d 529, 532-33 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.). However, that is not the case where the jury finds against the objecting party on every question submitted. In such a case, the otherwise general objection that all the findings are against the great weight and preponderance of the evidence is specific. Cf. Blair v. Buksnys, 521 S.W.2d 652, 653 (Tex.Civ.App.--San Antonio 1975, no writ). It is of no significance that SSA chose to attack only a few of the findings in this appeal. SSA has preserved its complaint for our review.

In its first principal argument, SSA contends that the October release agreement is not ambiguous. SSA argues that the agreement conclusively establishes its defense of release and demonstrates that the trial court erred in admitting parol evidence to vary the terms of the agreement and in submitting jury questions concerning its construction. In support of its argument, SSA notes that the trial court found the release unambiguous but nevertheless allowed the terms of the release to be varied by parol evidence. Clifton agrees but contends that when the October release is read in light of the February agreement, it unambiguously released only the 20.75 percent interest acquired from TIP and not the ten percent interest acquired from Stockman. In the alternative, Clifton claims that if the...