Tubb v. Bartlett
| Decision Date | 08 September 1993 |
| Docket Number | No. 08-92-00326-CV,08-92-00326-CV |
| Citation | 862 S.W.2d 740 |
| Parties | T.C. TUBB, Appellant, v. Sheryl Ann BARTLETT, Independent Executrix of the Estate of James H. Bartlett, Deceased, Appellee. |
| Court | Texas Court of Appeals |
Robert R. Truitt, Jr., Midland, for appellant.
C.H. Hal Brockett, Jr., Brockett & Lindemood, Midland, for appellee.
Before OSBORN, C.J., and KOEHLER and LARSEN, JJ.
In a declaratory judgment action concerning the parties' rights and obligations arising out of two indemnity agreements, the jury found that although the parties had mutually agreed to rescind the first handwritten agreement, the rescission was conditioned on the execution of a second similar indemnity agreement which added a third party as an indemnitor. From a judgment on the verdict which among other things awarded the Appellee damages of $18,881 and attorney's fees of $12,811, found the handwritten agreement to be valid and required Appellant to indemnify Appellee's decedent against all debts, obligations, claims, and demands arising out of a certain venture, he brings this appeal claiming in twenty-one points that the trial court erred in denying his motion for judgment non obstante veredicto, in denying his motion to disregard a jury finding, and in denying his motion for new trial.
In 1988, T.C. Tubb (Tubb) made a series of loans to West Texas Career Institute, Inc., a proprietary trade school in Midland, Texas and/or to James H. Bartlett, deceased (Bartlett), for the purpose of financing the school. 1 , 2 The school encountered difficulties and in October 1988, Bartlett was removed from its control.
Following his removal, Bartlett filed suit against Tubb and others, for conversion, tortious interference of contract, breach of the duty of good faith and fair dealing, and unfair collection practices. All claims, future and present, arising out of this suit were settled among the named parties, the settlement being memorialized in an agreement signed by Bartlett and Tubb on July 29, 1989 that detailed the specific terms of the settlement including Tubb's obligation to pay Bartlett $75,000 in exchange for a general release from Bartlett. At the same time this agreement was executed by Bartlett and Tubb, Bartlett insisted upon another agreement, which he dictated and Tubb handwrote and both signed, in which Tubb agreed to indemnify Bartlett from any obligations, debts, claims, and demands arising out of his previous association with Big Horn Energy, OTEC, and their subsidiaries that might be made against him, and Bartlett agreed to work with OTEC to keep from having any adverse effect on the operation of the school. 3 Shortly thereafter, apparently on the same or next day, 4 Tubb decided that any such indemnity agreement needed to include Bill Just, the then owner of West Texas Career Institute. 5 At Tubb's request, another agreement, essentially duplicating the terms of the handwritten agreement but adding Bill Just as an indemnitor, was typed in Tubb's office and signed by Bartlett and Tubb but never by Just who apparently refused to sign. 6
During the same time period in which the agreements were signed, Bartlett was named a party defendant along with others in various suits arising out of his prior associations with Big Horn and OTEC (West Texas Career Institute). At least two of the suits were filed prior to the signing of the agreements and according to Bartlett, were brought to Tubb's attention and discussed with him before the agreements were drafted and signed. Bartlett, subsequent to the signing of the indemnity agreements, sought indemnification from Tubb for the amounts claimed in these suits, which the latter refused to honor.
In January 1990, Bartlett filed this suit for declaratory judgment and indemnity, seeking a determination of the parties' rights and obligations arising out of the two indemnity agreements and a judgment for costs and expenses incurred in defense of claims made against him and for attorney's fees. The case was tried to a jury which found in answer to Question No. 1 that the parties had mutually agreed to rescind the July 29, 1989 handwritten indemnity agreement and discharge each other from the contractual obligations arising thereunder. The jury further found in response to Question No. 2 that the rescission of the handwritten agreement was conditioned on the execution of a similar agreement adding Bill Just as a party. It was not required to answer the third and final question which inquired as to whether the parties agreed at the time the second agreement was signed that it was not to become binding unless and until it was signed by Just. The trial court denied Tubb's motions to disregard the finding on Question No. 2 and to enter judgment on the finding on Question No. 1 and for judgment non obstante veredicto (JNOV) and instead entered judgment on the verdict, declaring the handwritten indemnity agreement to be valid and awarding Bartlett his damages and attorney's fees.
In his Points of Error Nos. One, Two, Seven, Eight, and Nine, Tubb asserts trial court error in denying his JNOV motion because the finding in response to Question No. 1 conclusively established that the parties had rescinded the handwritten agreement, that there was no evidence to establish a binding indemnity agreement, that the judgment failed to include a set-off in favor of Tubb in the amount of $218,400, that Tubb established that Bartlett had failed to satisfy a condition precedent to any recovery under the handwritten indemnity agreement, and that the handwritten indemnity agreement was ambiguous and therefore unenforceable.
When the trial court's denial of a motion for JNOV is challenged, we must determine whether there is any evidence more than a scintilla to support the findings of the jury because the trial court may disregard a jury finding and grant a JNOV only if there is no evidence from which the jury could have made its findings. Dowling v. NADW Marketing, Inc., 631 S.W.2d 726, 728 (Tex.1982); Baker v. International Record Syndicate, 812 S.W.2d 53, 56 (Tex.App.--Dallas 1991, no writ). Furthermore, the evidence must be reviewed in a light most favorable to the jury finding, considering only the evidence and inferences tending to support the jury finding. Dowling, 631 S.W.2d at 728; Baker, 812 S.W.2d at 56; Boatright v. Texas American Title Co., 790 S.W.2d 722, 728 (Tex.App.--El Paso 1990, writ dism'd), citing Dodd v. Texas Farm Products Company, 576 S.W.2d 812 (Tex.1979). If there is any competent evidence to support the jury's finding, the court may not disregard that finding and grant a JNOV. Boatright, 790 S.W.2d at 728.
Before analyzing the record to determine if there is any competent evidence more than a scintilla to support the jury's finding in answer to Question No. 2 that the rescission of the handwritten agreement was conditioned upon the execution of the second agreement by Just, we note that Tubb voiced no objection to the manner in which the charge was submitted with the second question to be answered only if the jury answered "yes" to the first question. 7
Bartlett testified that he would not have signed the settlement agreement and accepted the $75,000 payment without an indemnity agreement because it would have left him exposed to a liability of $300,000 for guarantees he had made while in control of Big Horn Energy and West Texas Career Institute. It was Bartlett's testimony that when Tubb asked him to sign the second indemnity agreement, he explained that it had nothing to do with the first agreement but that he just wanted to add Just's name as an indemnitor so that it would make him liable for the indebtedness along with Tubb. Bartlett testified that he told Tubb he could care less whether Just was added since the agreement was between Tubb and himself. Significantly, Bartlett testified that the typewritten agreement that he signed had nothing to do with the handwritten agreement, it was simply for Tubb's benefit so that Tubb could have Just assume some of the liability. Bartlett testified that Tubb never conditioned the validity of either agreement on Just's inclusion. Although Tubb contends that it was discussed and understood between Bartlett and himself that the handwritten agreement was rescinded by the second agreement and that the check was only good if Just signed the second agreement, he agreed in his testimony that Bartlett told him he really didn't care ("I don't care, really, it doesn't make any difference") if Just was added to the indemnity agreement. Tubb's account of his conversation with Bartlett is consistent with the latter's except that Bartlett's version could be interpreted as an understanding between the parties that "no matter who is added to the Indemnity Agreement we still have an agreement between ourselves."
Moreover, at the time the second agreement was prepared, Tubb took the handwritten agreement, but not the $75,000 check, from Bartlett and had the second agreement typed from it, which materially differed from the handwritten agreement only in respect that the second agreement added Just's name as an indemnitor. The handwritten agreement was apparently returned to Bartlett since it was in his possession at the time his deposition was taken. This gives rise to an inference that the parties did not intend an unconditional rescission of the handwritten agreement by their execution of the second agreement, else the handwritten agreement would have been destroyed or at least not returned to Bartlett.
We hold that the evidence summarized above amply supports the jury's finding that the rescission of the handwritten agreement as found in answer to the first question was conditioned upon the second agreement being signed by Bill Just. While the evidence is conflicting, it certainly does not show that as a matter of...
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