Smith v. Christley, B14-87-00113-CV
| Citation | 755 S.W.2d 525 |
| Decision Date | 21 July 1988 |
| Docket Number | No. B14-87-00113-CV,B14-87-00113-CV |
| Parties | Cyril J. SMITH, Jr., et al., Appellants, v. Barbara Smith CHRISTLEY, et al., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
Mark D. Wilson, Houston, Andrew J. Mytelka, Frederick Black, Galveston, for appellants.
Ben H. Schleider, Jr., John A. Buckley, Jr., Houston, for appellees.
Before PAUL PRESSLER, DRAUGHN and ELLIS, JJ.
OPINION ON MOTION FOR REHEARING
The opinion of May 12, 1988 is withdrawn, and this opinion is substituted in its place.
Two appeals from the probate court are here under consideration. Cyril Smith, Jr. appeals from the part of the judgment in favor of his sister, Barbara Smith Christley. Leasing Associates and James R. Foutch appeal from that part of the judgment in their favor against Cyril Smith, Jr. which granted less relief than they sought.
Martha Reeve Smith left all her property to her husband, Cyril Smith, Sr. He disclaimed his interest in her estate and it passed to their two children, Cyril Smith, Jr. and Barbara Smith Christley. Cyril Smith, Sr. granted his son a durable power of attorney to facilitate management of the family's affairs. Ultimately Cyril Smith, Sr.'s mental condition deteriorated and he lost competency. Appellant Cyril Smith, Jr. was engaged in his own business ventures, some of which required substantial financial backing. Appellant Cyril Smith, Jr.'s now defunct corporation, Ware-Con, took out vehicle and equipment leases from appellant Leasing Associates. Appellant Leasing Associates demanded guarantees from Cyril Smith, Sr. on the leases. Ware-Con eventually failed and the lease payments came into default.
Appellee Barbara Smith Christley sued all appellants and several other parties for various sums which she claimed belonged to her individually or as personal representative of her parents' estates. The court granted judgment for her against appellant Cyril Smith, Jr. for over one million dollars and judgment for appellant Leasing Associates against Ware-Con and a third party for $225,000. Leasing Associates recovered $5,900 from Cyril Smith, Jr. which was far less than it sought.
In points of error one, two, seven, and eight, appellant Cyril Smith, Jr. challenges the legal and factual sufficiency of the evidence to support the jury's answers to some of the special issues. Point of error three criticizes the definition of fraud in the charge. Point of error nine claims that appellee received a multiple recovery. These points of error are overruled because Cyril Smith, Jr. waived his objections to the charge.
Appellant Cyril Smith, Jr. objected to the charge at length. He objected to the submission of special issues 1-10, 14, 15, and 31-33 on the grounds that there was no evidence, or in the alternative, insufficient evidence. Buried within these standard objections was an objection to the definition of fraud and an objection to double recovery. He thus violated TEX.R.CIV.P. 274, which reads in part:
Where the objection made by the complaining party, or an instruction, issue, definition, or explanatory instruction requested by him, is in the opinion of the appellate court obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable.
Appellant violated the rule in two respects. First, his objections were too profuse. See Monsanto Co. v. Milam, 494 S.W.2d 534, 536 (Tex.1973); Mahan Volkswagen, Inc. v. Hall, 648 S.W.2d 324, 330-31 (Tex.App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.) ("laundry list" contravenes rule 274); 3 R. McDONALD, TEXAS CIVIL PRACTICE § 12.29.2. But cf. Baker Material Handling Corp. v. Cummings, 692 S.W.2d 142, 145-46 () (mere number alone does not violate rule 274). Second, he filled the record with spurious objections which could never have been sustained. The fifteen objections to submission of issues on factual insufficiency grounds were utterly unfounded, because
factual insufficiency of the evidence to support an affirmative answer to an opponent's issue furnishes no basis for refusal to submit the issue. Strauss v. La Mark, 366 S.W.2d 555 (Tex.1963); Imperial Insurance Co. v. Ellington, 498 S.W.2d 368 (Tex.Civ.App.--San Antonio 1973, no writ).
Clarostat Mfg., Inc. v. Alcor Aviation, Inc., 544 S.W.2d 788, 791 (Tex.Civ.App.--San Antonio 1976, writ ref'd n.r.e.). In Clarostat the appellant made stock objections to the submission of eleven special issues. The appellate court refused to consider any of the appellant's objections to the charge because rule 274 had been violated. For the same reasons, we overrule Cyril Smith, Jr.'s points of error one through three, and seven through nine.
It should be noted that the 1988 amendments to rule 279 did not authorize objection to the submission of an issue on the grounds of factual insufficiency. Until its amendment, the last sentence of rule 279 read in part:
A claim that the evidence was insufficient to warrant the submission of any issue may be made for the first time after verdict....
The amended version provides:
A claim that the evidence was legally or factually insufficient to warrant the submission of any question may be made for the first time after verdict....
(Emphasis added). Despite the clear language of the new rule, its legislative history demonstrates unambiguously that no change was intended. The Supreme Court Advisory Committee held the following discussion before recommending the amendment:
I'm not sure I understood what change he made.
For example, even though you can object to the submission of an issue based on legally insufficient evidence--there is no evidence to support it--even if you did not do so after verdict, you could move for a Judgment N.O.V. because there was no evidence to support it. So you could actually raise that after verdict even though it was not raised before.
But you can't ask for--what bothers me is this terminology here. It appears to state--to infer that a basis--that an objection to an issue because there is factual insufficiency is sufficient to keep it from being submitted. That is not correct.
CHAIRMAN SOULES: That's correct. You--there's no question that you properly stated the law there.
The fact that this language suggests that to me might also suggest it to somebody else. The claim that the evidence is factually insufficient may be made after the submission to the jury.
PROFESSOR EDGAR: Well, that's a correct statement of the law because that's the only time it can be made.
That's right. But it infers that factual insufficiency could be made before the case is submitted to the jury.
I think probably Hadley corrected it. I just didn't understand him clear enough. I think you took out the word "factually" here; did you not?
PROFESSOR EDGAR: No, you see, the rule as it now reads just says, "a claim that the evidence was insufficient to warrant the submission may be made for the first time after verdict."
PROFESSOR EDGAR: And people have, from time to time, said, "Well, does that mean legally insufficient evidence or factually insufficient evidence?" Well, actually it means both, and that's what we've said.
Well, you cannot possibly file an objection to the submission of an issue on the grounds that the evidence was factually insufficient to sustain it--to void or submit it.
PROFESSOR EDGAR: Does this indicate that you can?
I think it does. It did to me.
PROFESSOR EDGAR: Well, that's not our intention.
Well, that's all right.
PROFESSOR EDGAR: And certainly that was not--
I just wanted to clear that up in my own mind.
CHAIRMAN SOULES: All right, any further discussion on final paragraph of Rule 279?
Okay. Those in favor of recommending the Supreme Court adopt this final paragraph, show by hands. Opposed? That's unanimously recommended.
TEXAS SUPREME COURT ADVISORY COMMITTEE MEETING, MINUTES at 5-8 (Sept. 13, 1986). One commentator criticized the proposed change even before it was approved by the Supreme Court:
The addition of "or factually" is unfortunate, and will contribute to confusion, and perhaps, lead some into making spurious objections. As observed, one can complain that there is no evidence to warrant submission, but not that there is factually insufficient evidence to do so. The trial court must submit, even though the answer will be against the great weight and preponderance of the evidence or supported by factually insufficient evidence. This being true, objections to submission on those bases are meritless, and may contribute to a charge of "numerous, unfounded" objections.
It is most unfortunate, therefore, that the new rule itself now suggests that such objections have merit, but may be made for the first time after verdict ...
Muldrow, Objections to the Charge, in STATE BAR OF TEXAS, ADVANCED APPELLATE ADVOCACY D-14 (Oct. 1987) (citations omitted) (emphases in original).
In points of error four through six, Cyril Smith, Jr. contends that attorneys fees should not have been awarded to appellee. He argues that appellee's attorney was improperly allowed to testify about the fees, because he was not listed as an expert witness in response to interrogatories. See Tex.R.Civ.P. 166b. The interrogatory in question was propounded by a third party which eventually settled, and appellant Cyril Smith, Jr. never asked for a list of experts.
A party must be able to rely on...
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