COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO.
2-02-212-CV
ED SKOOG AND PAULA SKOOG APPELLANTS
V.
MICHELE MARIE LONG CODY, KAREN APPELLEES
SUE CODY MALUF, JJONDE DEL CODY,
ANN DENISE CODY BOURAS, AND
ELIZABETH LOUISE CODY SCHMIDT
AND
MICHELE MARIE LONG CODY APPELLANT
V.
ED SKOOG AND PAULA SKOOG APPELLEES
------------
FROM THE
96TH DISTRICT COURT OF TARRANT COUNTY
------------
OPINION
------------
In this property rights dispute, Appellants Ed and Paula Skoog appeal the
trial court’s order denying their motion for new trial, contending that the jury’s
verdict was factually and legally insufficient. We affirm.
Factual and Procedural Background
Paula is the daughter of Appellee Michele Cody and the older sister to all
other Appellees, Karen Maluf, Jjonde Cody, Ann Bouras, and Elizabeth Schmidt.
Andrew Cody, Michele Cody’s husband and Paula Skoog’s father, died intestate
in 1988. Mrs. Cody filed an Affidavit of Heirship on December 27, 1988,
listing two houses, a travel trailer, and two vehicles in the decedent’s
community property estate. One of the houses, located in Hurst, Texas, was
the Cody’s residence since 1967. Mrs. Cody continued to live in the home
alone after her husband’s death, but in 1990 her health began failing due to
arthritis and what she believed was the beginning of Parkinson’s disease. In
light of Mrs. Cody’s medical problems, Appellants and Mrs. Cody agreed to
combine households. Appellants moved into Mrs. Cody’s home along with their
two sons in December of 1991 and eventually sold their home in November of
1992. On December 17, 1991, Mrs. Cody signed a warranty deed conveying
her home to Appellants wherein she retained a life estate.
Kevin Kuenzli, a lawyer certified in tax law, estate planning, and probate
law, prepared the warranty deed that conveyed the property to Appellants.
Kuenzli testified that he was not aware of any agreement that gave Appellants
the right to live in the house for the rest of Mrs. Cody’s life. He further testified
that such an agreement would be inconsistent with the deed because the right
to live in the house was reserved and retained by Mrs. Cody. The warranty
deed states that Mrs. Cody “shall have the full possession, use and benefit of
said property, as well as the rents, revenues and profits thereof, for and during
[her] natural life.”
All parties concede that there was an agreement between Appellants and
Mrs. Cody regarding their living arrangements and the warranty deed. The
particulars of the agreement, however, are in dispute. Appellants contend that
it was agreed and understood by Mrs. Cody that as long as Appellants were
willing to care for her, they could live in the house free of rent and would inherit
the house upon Mrs. Cody’s death. Appellants additionally claim that the
agreement prohibited Mrs. Cody from evicting Appellants and vice versa.
Appellees claim the agreement was that in exchange for the remainder interest
in the property, Appellants agreed to take care of Mrs. Cody for the rest of her
life. Appellees argue that Mrs. Cody was not prohibited from evicting
Appellants because the agreement was that Appellants could live in the home
only as long as they actually took care of Mrs. Cody. If Appellants ceased to
take care of Mrs. Cody, Appellees claim that the agreement was for Appellants
to leave the house and return the warranty deed to Mrs. Cody. Appellees
concede that they do not contest Appellant’s remainder interest in the property
in the appeal.
Appellants and Mrs. Cody lived harmoniously together in the home for the
first four years. During this time, Appellants and Mrs. Cody made significant
improvements to the home. Appellants claim that they spent approximately
$49,000 of their own money on the improvements and acknowledge that Mrs.
Cody also contributed to the remodeling of the home.
Appellants contend that beginning in late 1995, Mrs. Cody began
showing signs of early dementia and Paula’s siblings began making accusations
that Appellants were stealing money from Mrs. Cody, causing tension between
Appellants and Mrs. Cody. Appellees contend that Mrs. Cody became
increasingly uncomfortable living in the home and began taking extended
vacations or staying overnight at her children’s homes to avoid contact with
Appellants. Appellees claim that: there was frequent yelling and arguing
between Appellants; Paula was trying to have Mrs. Cody declared incompetent;
Appellants brought in a large dog that scared Mrs. Cody; and Appellants owned
exotic lizards that required them to keep live roaches and crickets in the home.
Mrs. Cody testified at another trial that she was scared for her life after Paula
twisted her arm and slapped Maluf during an argument.
The relationship between Appellants and all of the Appellees continued
to deteriorate, and in June 1997, Paula wrote her mother and siblings a letter
refusing to take further care of Mrs. Cody. The letter, in pertinent part, stated:
If I am aware that mother is in need of emergency care, I will
be responsible for getting her emergency care. Immediately, I shall
notify whichever one of you I can contact, and someone else will
take over the arrangements for further care. I will not be
responsible for obtaining medications, making medical or dental
appointments or transportation. I will not be responsible for giving
nursing care or making arrangements for it nor for providing her
personal care in any capacity.
In response, Mrs. Cody moved her furnishings out of the house and moved in
with her son Jjonde in July of 1997. Shortly thereafter, Appellants changed
the locks to the house and placed Mrs. Cody’s remaining belongings in garbage
sacks and put them on the front porch.
Mrs. Cody made attempts in the Justice Courts of Tarrant County to have
Appellants evicted. These cases were dismissed for lack of jurisdiction. On
Monday, April 2, 1998, a Tarrant County Court at Law held a bench trial on
Mrs. Cody’s forcible detainer claim and granted her a writ of possession
allowing her to evict the Appellants from the home. Appellants moved out of
the home that weekend.
Appellants filed suit against Appellees for various causes of action
including breach of contract, wrongful eviction, breach of warranty, tortious
interference with contract, fraud, cloud on title, and mutual mistake. Appellees
denied Appellants’ causes of action and filed various affirmative defenses to
Appellants’ claims, including res judicata, collateral estoppel, estoppel, quasi-estoppel, statute of frauds, statute of limitations, parol evidence rule, and
anticipatory repudiation. Mrs. Cody asserted counterclaims against Appellants
for injury to real property, rent, and conversion of certain personal property.
Appellees Maluf, Jjonde Cody, Bouras, and Schmidt asserted a counterclaim
seeking a declaratory judgment that no cloud on title exists with respect to the
property and improvements. After an eight-day trial, issues for only two causes
of action asserted by Appellants were submitted for consideration by the jury
—breach of contract against Mrs. Cody and tortious interference by the
siblings. All of Mrs. Cody’s counterclaims were submitted for consideration by
the jury.
Jury Question Number 1 asked the jury to determine if there was an oral
agreement between Mrs. Cody and Appellants whereby Appellants could not
be evicted from Mrs. Cody’s home if they agreed to care for Mrs. Cody. The
jury answered “no” to this question. Because all subsequent questions
regarding Appellants’ claims were conditioned on a finding of the existence of
that specific agreement, Appellants were denied relief for all of their claims.
The jury also answered the issues submitted by Mrs. Cody on her counterclaims
in the negative. The trial court rendered judgment on the verdict on March 21,
2002. That judgment provided that all parties take nothing for their claims and
that each party bear their own costs of court. The court did not grant the
declaratory judgment requested by Appellees.
In Appellants’ sole issue, they argue that the jury’s answer to Question
Number 1 was both factually and legally insufficient. Mrs. Cody filed cross-issues claiming legal insufficiency to support the jury’s findings in favor of
Appellants regarding Mrs. Cody’s claims and the denial of attorneys’ fees. Mrs.
Cody asks us to consider these cross-issues only in the event that we reverse
this case based upon the issue and argument raised by Appellants. Otherwise,
Mrs. Cody requests that we affirm the trial court’s final judgment.
Discussion
Appellants’ sole issue on appeal is based upon a challenge of the legal
and factual sufficiency of the evidence.
Legal Sufficiency
Appellants assert that there is no evidence to support the jury’s answer
to Question Number 1. When the party having the burden of proof on a fact
question appeals from an adverse answer, the issue or point challenging the
legal sufficiency of the evidence should be that the matter was established “as
a matter of law.” Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).
Nonetheless, the Texas Supreme Court’s practice is to liberally construe the
issues or points contained in appellate briefs. Pool v. Ford Motor Co., 715
S.W.2d 629, 633 (Tex. 1986) (op. on reh'g). Thus, if a party with the burden
of proof incorrectly phrases the issue or point and contends there was “no
evidence” to support the jury's answer, the party has still invoked this court's
appellate jurisdiction to consider the contention that the opposite of the answer
was established as a matter of law. Id.; Croucher, 660 S.W.2d at 58.
If an appellant is attacking the legal sufficiency of an adverse answer to
an issue on which he had the burden of proof, the appellant must overcome
two hurdles. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.
1991). First, the record must be examined for evidence that supports the
finding, while ignoring all evidence to the contrary. Second, if there is no
evidence to support the finding, then the entire record must be examined to see
if the contrary proposition is established as a matter of law. Id.; Sterner v.
Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).
Appellants claimed in the lower court that their agreement with Mrs. Cody
gave them an equal right of possession to the property and challenged the
validity of the warranty deed that gave Mrs. Cody the sole right to possess or
use the property during her lifetime. Appellants, as plaintiffs in this case, bore
the burden of proof at trial. Thus, Appellants’ challenge to the legal sufficiency
of the jury’s answer to Question Number 1 must begin with an examination of
the evidence that supports the jury’s findings, while ignoring the controverting
evidence. Marathon Oil, 767 S.W.2d at 690.
The reservation by Mrs. Cody of a life estate in the warranty deed is
strong evidence in support of the jury’s finding that there was no oral
agreement between Appellants and Mrs. Cody whereby Appellants could not
be evicted from the home. The warranty deed states that Mrs. Cody “shall
have the full possession, use and benefit of said property, as well as the rents,
revenues and profits thereof, for and during [her] natural life.” Standing alone,
the deed’s reservation of Mrs. Cody’s right to full possession, use, and benefit
of the property defeats any argument that Appellants could not be evicted from
the home.
Although Mrs. Cody was incompetent to testify as a witness at trial,
portions of her previous testimony at the forcible detainer trial were read into
the record. Mrs. Cody testified that she had an agreement with Appellants that
if they took care of her for the rest of her life, they would receive the house
after she died. When asked what was to happen if Appellants stopped taking
care of her, Mrs. Cody replied that they would give her back the warranty deed
and leave the house. The jury heard evidence regarding Mrs. Cody’s attempts
to evict Appellants and the county court’s writ of possession granting Mrs.
Cody full possession of the property. This is further evidence that the parties
did not have an agreement that prevented them from evicting one another from
the home.
The testimony of the remaining Appellees also supports the jury’s finding
that there was no agreement whereby Appellants could not be evicted from the
home. Bouras, Schmidt, Cody, and Maluf all testified that the agreement
between Appellants and Mrs. Cody was that in exchange for taking care of
Mrs. Cody, Appellants would get the house when Mrs. Cody died. When
Jjonde Cody was asked if he understood the agreement to be that neither party
could evict the other from the house, he replied that Mrs. Cody did not explain
the agreement in that way. Further, Maluf testified that the agreement did not
grant Appellants the right to live in the house.
Disregarding all evidence to the contrary, the evidence supports the jury’s
finding that there was no agreement between Appellants and Mrs. Cody
whereby Appellants could not be evicted from the home in exchange for their
agreement to care for her. Therefore, we find that Appellants failed to
establish, as a matter of law, that Mrs. Cody entered into an agreement that
prevented her from evicting Appellants from the home.
Factual Sufficiency
The issue or point challenging the factual sufficiency of the evidence
should be that the finding was “against the great weight and preponderance of
the evidence.” Croucher, 660 S.W.2d at 58. In reviewing an issue asserting
that an answer is “against the great weight and preponderance” of the
evidence, we must consider and weigh all of the evidence, both the evidence
that tends to prove the existence of a vital fact as well as evidence that tends
to disprove its existence. Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex.
1989), cert. denied, 494 U.S. 1080 (1990); Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986). So considering the evidence, if a finding is so contrary to the
great weight and preponderance of the evidence as to be manifestly unjust, the
issue should be sustained, regardless of whether there is some evidence to
support it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959)
(op. refusing writ n.r.e.); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660,
661 (1951).
The only evidence that there was an agreement whereby Mrs. Cody could
not evict Appellants from the home derives from Paula’s testimony at the trial.
Paula testified that when she received the warranty deed to the house, Mrs.
Cody said, “here’s the deed where I’m giving you the house, and here’s the part
on this other page where you can’t throw me out, that I get to keep the right
to live in it.” Paula additionally stated that essentially, Mrs. Cody told her “I
can’t kick you out; you can’t kick me out.”
Appellants argue that “[i]t was clearly wrong for the jury to find there
was no oral agreement allowing [Appellants] to live in the [house] when the
only evidence presented at trial indicates there was such an agreement.”
However, the jury did not find, and Appellees do not contend, that Mrs. Cody
did not allow Appellants to move into her home. The question to the jury asked
whether there was an oral agreement whereby Appellants could not be evicted
from the home in exchange for their agreement to care for Mrs. Cody.
Appellants admit that Mrs. Cody agreed to and understood that only as long as
Appellants agreed to care for her could they live in the house free of rent until
Mrs. Cody passed away. It is undisputed that Paula sent a letter to Appellees
stating that she would not be responsible for “providing [Mrs. Cody] personal
care in any capacity.”
After reviewing and weighing both the evidence that tends to prove the
existence of such an agreement as well as the evidence that tends to disprove
its existence, we conclude that the jury’s finding was not contrary to the great
weight and preponderance of the evidence as to be manifestly unjust.
Conclusion
We overrule Appellants’ sole issue and affirm the trial court’s judgment.
DIXON W. HOLMAN
JUSTICE
PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DELIVERED: November 6, 2003