Farmers Insurance Exchange v. Richard K. Neal

• Court: Court of Appeals of Texas
• Decided: October 29, 2003
• Docket: 06-03-00026-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00026-CV

FARMERS INSURANCE EXCHANGE, Appellant

 

V.

RICHARD K. NEAL, Appellee

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On Appeal from the 76th Judicial District Court

Titus County, Texas

Trial Court No. 27202

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Chief Justice Morriss

O P I N I O N

            This appeal turns on whether two race cars, and associated automobile parts, owned by Richard K. Neal, were vehicles "used for recreational purposes" within the meaning of Neal's standard homeowners insurance policy issued by Farmers Insurance Exchange (Farmers) or, more precisely, whether there was sufficient evidence presented at trial that they were so used. Because we find there is sufficient evidence supporting the trial court's judgment, we affirm.

Background

            During the time period 1992 to 1996, Neal purchased two race cars‒a Boulton Supercomp Dragster and a Don Davis Super Gas Roadster. The race cars were kept on Neal's residence premises in a building used as a workshop, garage, and storage facility. In December 1996, the race cars were destroyed when the building burned, leaving nothing of residual salvage value. Shortly after the fire, Neal filed a claim under his homeowners insurance policy, and Farmers paid the portion of his claim representing the building and some personal property. Farmers, however, refused to pay the remainder of Neal's claim, arguing that the destroyed race cars and related components (e.g., a Barry Grant fuel pump and Chuck Nuytten alcohol carburetor) were expressly excluded under Neal's policy. Neal subsequently sued Farmers, seeking compensation for the loss of the disputed property as well as for statutory penalties and cleanup and removal costs. Following a bench trial in October 2002, a Titus County trial court ruled in favor of Neal, ordering Farmers to pay $119,733.15. Farmers now appeals, questioning the legal and factual sufficiency of the trial court's determination that Neal's two race cars were covered under his homeowners insurance policy.

Standard of Review

            When reviewing a trial court's findings for legal and factual sufficiency, appellate courts should apply the same standards that would be used in reviewing evidence supporting a jury's findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). Recognizing that "findings of fact issued in a bench trial have the same force and dignity as a jury's verdict," we note that the trial court's findings "are not conclusive when there is a complete statement of facts in the record." Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App.‒San Antonio 1995, writ denied). In such a situation, appellate courts are not bound by the trial court's findings, id., but may overturn them only if, after weighing all the evidence in the record, they "are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust." Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

            A trial court's conclusions of law are always reviewable. Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.‒Austin 1992, no writ). They "will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence" and, unless erroneous as a matter of law, will not be reversed. Id. In conducting a de novo review, appellate courts may reexamine for correctness legal conclusions drawn from specific findings of fact contained in the record, id. at 196 & n.1, and exercise their own judgment on each issue, affording no deference to the original tribunal's decision. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999).

Recreational Purposes?

            To determine this coverage question, we must carefully examine the policy language underlying the dispute. Insurance policies are contracts subject "to the same rules of construction as other contracts," and "[o]ur primary goal, therefore, is to give effect to the written expression of the parties' intent." Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 740 (Tex. 1998). In interpreting an insurance policy, it will be "construed liberally in favor of the insured and strictly against the insurer, especially when . . . dealing with exceptions and limitations." Cont'l Cas. Co. v. Fina Oil & Chem. Co., No. 01-02-00449-CV, 2003 Tex. App. LEXIS 5353 (Tex. App.‒Houston [1st Dist.] June 26, 2003, no pet.) (citing Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 737 (Tex. 1990)).

            Although Neal and Farmers agree that the contract language is unambiguous, each party urges this Court to adopt a different interpretation. The policy itself expressly excludes from coverage any "motor or engine propelled vehicles or machines designed for movement on land, including attached machinery or equipment." As a limited exception to this provision, the policy also provides coverage for certain vehicles that (1) "are not subject to motor vehicle registration" and (2) are "vehicles or machines used for recreational purposes while located on the residence premises." (Emphasis omitted.) Because there is no disagreement that Neal's race cars were not subject to motor vehicle registration, the difference in the parties' interpretations results from the wording of the exception's second element. Neal contends the policy covers vehicles used for recreational purposes as long as they are on the premises at the time of the loss, while Farmers contends the policy covers vehicles used for recreational purposes so long as such recreational use occurs on the residence premises. After briefing the location issue in that fashion, Farmers conceded at oral argument that otherwise covered vehicles do not become uncovered because their recreational use occurs off premises. We agree, and now focus on the recreational component of the coverage issue.

            That parties may advance conflicting interpretations of a contract does not necessarily mean the contract is, in fact, ambiguous. Columbia Gas Transmission Corp. v. New Ulm Gas, 940 S.W.2d 587, 589 (Tex. 1996). The contract must be examined as a whole in order to ascertain whether there is only one reasonable interpretation, permitting a court to provide "a definite or certain meaning as a matter of law." Id. The pertinent contract language at issue states: "[W]e do cover . . . vehicles . . . used for recreational purposes . . . ." (Emphasis omitted.) We now examine this statement in light of the contract as a whole and determine whether the exception is broad enough to include Neal's race cars.

            Farmers maintains that Neal's race cars were excluded from coverage because they were not "vehicles used for recreational purposes" in the context of the exception to the policy's general exclusion of motor vehicles. Recreation is generally defined as "refreshment by means of some pastime, agreeable exercise, or the like," or as "a pastime, diversion, exercise, or other resource affording relaxation and enjoyment." The Random House Dictionary of the English Language 1613 (2d ed. 1987). Neal's position is that because he drove and worked on his race cars for fun, or as a diversion or hobby, his activities with respect to the cars conform to this general definition. In other words, because Neal's race cars were used as a means of refreshment or diversion, it is the equivalent of saying they were used for recreational purposes.

            Attempting to strengthen this argument, Neal cites City of Bellmead v. Torres, in which the Texas Supreme Court noted that the Legislature's definition of "recreational purposes" included "activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing and water sports." City of Bellmead v. Torres, 89 S.W.3d 611, 613 (Tex. 2002) (emphasis added). We find wholly unpersuasive Neal's comparison of the Legislature's use of "pleasure driving" to the only activities for which Neal's race cars are suited. It is highly unlikely that the Legislature, when using the term "pleasure driving," envisioned individuals "screaming" down a straight, quarter-mile stretch of pavement. It seems incongruous to think of these vehicles as being driven for pleasure. One of Neal's race cars, for example, has a 230-inch wheelbase; can only burn methanol or high-octane automotive fuel; has only two speeds: idle or "wide open" (i.e., the car either idles or travels at speeds approaching 165 miles per hour); has an extremely limited turning radius, as it is designed to travel in a straight line; requires coolant and fuel to be replenished after every quarter mile; and must be stopped by parachute. Neal's own testimony reveals that, if the car was driven even for a mile or two, its transmission would "blow up."

            While not in itself dispositive, it is instructive to note other types of motor- or engine-propelled vehicles that are specifically excepted from the policy's general exclusion in order to determine whether the race cars described above could possibly have been contemplated by the parties. Excepted, for example, are devices for assisting the handicapped, power mowers, golf carts, and farm equipment. It is highly unlikely that Neal's race cars would normally be included in the same category as these less mechanically sophisticated (and much less expensive and dangerous) vehicles; however, the additional phrase characterizing excepted vehicles as those "used for recreational purposes" still suggests the possibility of coverage.

            One difficulty with Neal's application of the general definition of recreation to the facts in this case is that it invites use of a substantially subjective test. We recognize that, although there are many categories of activities generally recognized as recreational, to adopt a definition of recreation that includes any activity one enjoys would undermine any purposeful exclusion of property as inevitably must be considered in the context of homeowners insurance coverage. To some, even an activity as mundane as gardening may be considered recreational; to others, gardening may be viewed as an interminably tiresome chore. Similarly, while Neal undoubtedly enjoyed working on, maintaining, and racing his cars, it is just as likely that others would consider such activities unpleasant, tedious, and hazardous‒not recreational.

            If we were to adopt a definition as global as Neal suggests, it would be particularly significant that even Neal's characterizations of his race cars were not altogether consistent. The record indicates that, during the four tax years from 1992 through 1995, Neal himself categorized his race cars as being used for business purposes and, while depreciating their value in each of the four tax years, conspicuously failed to include them in Part V of IRS Form 4562, which asks taxpayers to list, among other things, automobiles, other vehicles, and property used for entertainment, recreation, or amusement. This, however, is only some evidence against Neal's position that he used his race cars for recreational purposes.

            Although reasonable minds may differ in their view of what constitutes a recreational activity or, more specifically, what is encompassed in the phrase "vehicles used for recreational purposes," it is Farmers' unfortunate position to have state-approved or state-promulgated forms to use in its homeowners policies that employ that rather elastic language. Not only are exceptions and limitations to coverage generally construed strictly against the insurer and in favor of the insured, Hallman v. Allstate Ins. Co., No. 05-02-00962-CV, 2003 Tex. App. LEXIS 6531, at *5 (Tex. App.‒Dallas July 30, 2003, no pet.), but courts must also "adopt the construction of an exclusionary clause urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties' intent." Nat'l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991). Although we are not bound by the trial court's findings, we may overturn them only if, after weighing all the evidence in the record, we determine they are "so against the great weight and preponderance of the evidence as to be clearly wrong and unjust." Ortiz, 917 S.W.2d at 772.

            Neal testified he and his son took the dragster to the races during the warmer months of the year as a "recreational activity," before preparing for hunting season. Neal also testified that, during the cooler months, he and his son would work on their cars as a father and son activity and would "play with them, monkey with them, tinker with them . . . for enjoyment," "for fun," and "for recreational purposes." Neal's wife agreed with the "recreational purposes" categorization of the activity. Neal testified that, in season, the family would take the dragster to races approximately once a month, depending on the family budget; that, although he did win money on occasion, he never won enough in any race to pay the expenses he and his family incurred in getting to and participating in it, and that he justified the loss of money because he considered it "recreational activity." Neal described two categories of participants on the racing scene, "Sportsman," into which he and other hobbyists and part-timers fell, and "Professional," consisting of those who raced as a business. He noted that, in contrast to Neal's racing practices, the business racers treat racing like a job, working on it "every day of the week" and going to all the races they can find.

            We are called on to determine whether, considering the evidence as a whole, the trial court's finding of recreational use was against the great weight and preponderance of the evidence. We conclude the evidence was sufficient to support the trial court's finding that Neal's race cars were used for "recreational purposes," within the common meaning of that phrase, that is, for "refreshment by means of some pastime," or as "a pastime, diversion, exercise, or other resource affording relaxation and enjoyment." Random House Dictionary, pg. 1613.

Intentional Misrepresentation?

            Farmers also contends that Neal's policy was void because Neal intentionally concealed or misrepresented material facts or circumstances. Specifically, Farmers contends Neal intentionally concealed the existence of the race cars because he did not own them at the time he purchased his insurance policy and failed to affirmatively disclose to Farmers that he subsequently purchased the cars and was storing them on the residence premises. The record itself contains no evidence Neal intended to conceal or misrepresent material facts in an effort to defraud Farmers. On the contrary, the record reflects that, on at least two occasions, Neal contacted Farmers with information he thought relevant to the policy in question, thinking that adjustments to the policy might be necessary. Farmers was certainly entitled to be informed of the existence of this highly unusual property, but we find there was sufficient evidence to support the trial court's conclusion that Neal's failure to report the purchase did not amount to intentional concealment, misrepresentation, or fraud.

            We, therefore, affirm the judgment of the trial court.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          October 15, 2003

Date Decided:             October 29, 2003

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-11-00029-CV

                                                ______________________________

IN THE MATTER OF THE MARRIAGE OF CHRISTINE RUTH SLANKER AND TED EUGENE SLANKER, JR., AND IN THE INTEREST OF

                                            T.L.S., A MINOR CHILD

                                                                                                  

                                            On Appeal from the County Court at Law

                                                             Lamar County, Texas

                                                            Trial Court No. 77863

                                                                                                  

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            Ted Eugene Slanker, Jr., and Christine Ruth Slanker—after concluding that they no longer wished to remain married to each other and struggling through two years of contempt proceedings, restraining orders, depositions, motions to compel discovery, at least three settings for final hearing, two attorneys for Christine, and a trial conducted sporadically December 13–16, 2010—finally obtained a signed divorce decree and property division December 31, 2010.^[1]  Ted appeals, urging twelve, often multifarious, points of error accompanied by almost forty pages of stated facts and vehement argument and praying for remittitur or for remand.  Christine, with a micro-brief containing just three lines of argument, agrees that the trial court erred and prays for remand.  Because we conclude that (1) there was harmful error and that (2) remittitur or rendition is not appropriate, we reverse the trial court’s judgment and remand this case to the trial court for a new trial.

(1)        There Was Harmful Error

            Ted complains at length about the trial court’s valuation and characterization of sizeable portions of the property divided and the propriety of its division, the exclusion of Ted’s expert witness testimony, and the sorts of liens used by the trial court to secure Ted’s payment of amounts ordered.  He also argues that, because the oral pronouncement by the court differs noticeably from the written judgment, error exists.  The details of the matters leading up to the divorce are largely irrelevant to our decision; thus, we will focus on the legal effect of the actions taken by the trial court.  On the other hand, a few procedural points are important, however, to explain the current posture of the case.

            After the three-day trial, the trial court ruled orally December 28, 2010, in a telephone conference, during which one attorney was snowed-in in New York state.  The decree of divorce was signed December 31, 2010, the last day in office for the trial judge.  In addition, Ted alleges that the judgment was signed by the court without first being sent to Ted’s attorney to review.  Ted argues that many of the errors in this judgment resulted from that failure.^[2] 

            The new trial judge granted judgment nunc pro tunc January 19, 2011, to make a few, more technical, changes.  The new judge declined to address other, more substantive, matters raised in a motion for new trial, however, stating that, as he did not hear the case, he was uncomfortable altering the judgment signed by the prior judge.

            The property in dispute included some of Ted’s stock—that had changed both in value because of market fluctuations and in number because of a reverse five-to-one split—a cattle ranch and an associated but separate business selling grass-fed beef and other specialty meat products.  Also involved are a residence, a rental house, animals, an airplane, a boat, bank accounts, and various debts.

            Although the parties agree that the judgment should be reversed, such a result is not automatic merely because both parties state they desire one.  Both the rules and caselaw state that a reviewing court can reverse only when there is error in the judgment of the court below.^[3]  Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643, 644 (Tex. 1987); Estate of Clinton v. S. Pac. Transp. Co., 709 S.W.2d 636, 639 (Tex. 1986); Sears, Roebuck & Co. v. Marquez, 628 S.W.2d 772, 773 (Tex. 1982); Chrismon v. Brown, 246 S.W.3d 102, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet).

            Christine’s abbreviated brief to this Court does, however, simplify one aspect of our review considerably.  In a civil case on appeal, we “accept as true the facts stated unless another party contradicts them.”  Tex. R. App. P. 38.1(g).  There are no contradictions to the facts stated by Ted, because Christine provides no alternative to Ted’s version of the facts on appeal.^[4]

            Nevertheless, despite the agreement that this case should be reversed, we must still find reversible error to provide this remedy.  We now turn to that analysis.

            We first address Ted’s argument that the trial court committed reversible error by refusing to allow his named expert witness, James Davis, to testify about the value of the business related to the ranch, Slanker’s Grass-Fed Meat (SGFM), and the value of community property goodwill connected with the business.  For the exclusion of evidence to constitute reversible error, the complaining party must show that (1) the trial court committed error, and (2) the error probably caused the rendition of an improper judgment.  State v. Cent. Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009); McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

            At trial, Christine’s counsel claimed never to have been given Davis’ curriculum vitae (CV) or informed of either Davis’ expected use as a witness or of his testimony.  The trial court refused to allow him to testify.  The record shows, however, that, at a pretrial hearing, Christine’s counsel explicitly acknowledged receiving his CV, report, and opinion concerning the nature of his testimony—all some eight months before trial.  It is clear that Davis’ testimony would have been helpful and relevant.  It is also apparent that he was not allowed to testify because the trial court was inaccurately informed that counsel had not been given notice of Davis’ existence, much less a CV or a report.

            It thus appears that the witness was excluded for failure to timely identify and provide a report.  See Tex. R. Civ. P. 193.6.  It further appears that the decision was made in reliance on erroneous information provided by Christine’s counsel at trial.  A trial court’s exclusion of an expert who has not been properly designated can be overturned only on a finding of abuse of discretion.  Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994).  In this case, the trial court was provided inaccurate information, and disregarded the actual state of affairs.  We conclude that the exclusion of Davis’ testimony was an abuse of discretion.

            We must next determine whether the trial court’s error in excluding Davis’ testimony probably caused the rendition of an improper judgment.  Tex. R. App. P. 44.1(a); Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010).  To satisfy this standard, the improperly excluded evidence must be controlling on a material issue and not cumulative of other, properly admitted evidence.  Mentis, 870 S.W.2d at 16; Southland Lloyd’s Ins. Co. v. Tomberlain, 919 S.W.2d 822, 828 (Tex. App.—Texarkana 1996, writ denied).  The rest of the evidence also must not have been so one-sided that the error likely made no difference in the judgment.  Cent. Expressway Sign Assocs., 302 S.W.3d 866.  “[I]t is not necessary for the complaining party to prove that ‘but for’ the exclusion of evidence, a different judgment would necessarily have resulted.”  McCraw, 828 S.W.2d at 758.  The complaining party must show only “that the exclusion of evidence probably resulted in the rendition of an improper judgment.”  Id.  The role that excluded evidence plays in the context of the trial is also important.  Thus, the exclusion or admission is likely harmless if the evidence was cumulative, or the rest of the evidence was so one-sided that the error likely made no difference in the judgment.  Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873 (Tex. 2008).  But if erroneously admitted or excluded evidence was crucial to a key issue, the error is likely harmful.  Id.  Determining whether a particular error is harmful depends on the particular case.  Cent. Expressway Sign Assocs., 302 S.W.3d at 870.  In making this determination, we review the entire record.  Id.

            In this case, the excluded testimony was the only expert testimony from either party that would have been provided on these subjects—essentially that SGFM had net losses of over $200,000.00 from 2006 to 2009 and that Ted had made repeated loans from sales of separate property stocks to keep the company liquid.  The expert would also have testified that any business goodwill was minimal because of the losses and that any that did exist was Ted’s because of his immersion in and total involvement with the business and its marketing, while Christine’s actual efforts connected with that business were at best minimal.  As the overriding matter at issue was the valuation and nature of the property, it is difficult to think that a possible error of approximately $200,000.00 in determining the value of the estate would be considered de minimus.  It was thus crucial to the key matter before the court, and its exclusion was thus likely harmful.

            Ted also argues that the trial court used values for stock owned by Ted that were simply wrong.  Essentially, he argues that the trial judge followed red herrings laid out by Christine’s counsel, rather than the evidence.  He also argues that the value placed on the ranch was without any real support in the evidence.  The most extreme allegations involve what either is, or at one point was, the major asset other than the ranch, a large amount of stock owned by Ted.  Although the evidence showed that the particular stock (TZA) had suffered a one-to-five inverse split, reducing the number of shares owned from 16,500 to 3,300 and that both that stock and the predecessor stock which had been traded for it had lost value in a substantial manner, Christine continued to argue that Ted had sold stock and secreted in some unknown place hundreds of thousands of dollars.  Christine appears to have compounded the error by using the pre-split number of shares and multiplied that by the post-split value per share to calculate the amount that should exist in the brokerage account and which obviously was not there. 

            The result was that Christine’s counsel informed the court that the value of the two stocks was over $800,000.00, when the remaining shares of stock at the time of trial was much less.

            The trial court did not make any findings of fact about the stock valuation, and its judgment contains no specific references to stock valuations other than a generic statement that the Wolverton account, worth $100,000.00, was given to Ted.  The court did find that Ted could not trace either stock or cattle back to separate property, thus evidently concluding all such property was community.  However, Christine also acknowledged that the brokerage account had belonged to Ted well before the marriage and that the predecessor stock was in the account at the time of their marriage.  Thus, though her testimony that particular stocks were acquired during marriage was correct, the evidence indicates for the most part not a purchase from outside, but shifting of assets from one stock to another within the account, a factor suggesting that tracking Ted’s separate property might be appropriate.

            In a tertiary argument, Ted also complains that funds derived from his separate property accounts made up shortfalls in the community-property business, but were not properly credited in his favor by the trial court.

            Although counsel’s argument may have merit, we have not followed the argument entirely.  But, based on Ted’s recitation of numerous facts, pointing to error in the trial court, see Tex. R. App. P. 38.1(g), we conclude that the trial court erred based on the evidence and argument at trial, in characterizing the amounts involved in the brokerage account as wholly community.

            Because there is reversible error, we are authorized to accept the parties’ agreement that reversal is appropriate here.

(2)        Remittitur or Rendition Is Not Appropriate

            Ted’s reply brief argues that, notwithstanding the agreement that error occurred, Ted has also requested a remittitur or rendition.  He asserts, therefore, that a simple reversal and remand is not enough.  A rendition or a suggestion of remittitur could be available in limited circumstances where this Court was presented with evidence of such absolute clarity that it could render a judgment of property division differing from the trial court’s, or could suggest a remittitur to correct an imbalance in the intentionally disproportionate division made by the trial court.  See Phillips v. Phillips, 296 S.W.3d 656, 682 n.12 (Tex. App.—El Paso 2009, pet. denied); Burney v. Burney, 225 S.W.3d 208, 220 n.3 (Tex. App.—El Paso 2006, no pet.).

            But, the evidence is not such as to allow this Court to render judgment or suggest a remittitur as requested by Ted.  The division of multiple properties, some separate, some community, is by its very nature a judgment call based on the evidence and what is believed by the trial court.  This Court, although it may conclude certain property is separate and certain property is community, is not in a position to observe the parties and bury itself in the minutiae of all the lists of properties these parties evidently believed important enough to demand possession of as a result of the division.  In such a situation, rendition is not appropriate.  Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990); see Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 324 (Tex. App.—Houston [1st Dist.] 2007, no pet.); McMillin v. State Farm Lloyds, 180 S.W.3d 183, 211 (Tex. App.—Austin 2005, pet. denied) (“We cannot render judgment . . . because the evidence is not conclusive.”).

            An appellate court can also suggest an appropriate remittitur.  However, the availability of that remedy is limited in scope.  Typically, it exists in conjunction with excessive damage awards.  See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 315–16 (Tex. 2006) (Johnson, J. concurring); Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987); CIGNA Healthcare of Tex., Inc. v. Pybas, 127 S.W.3d 400, 415 (Tex. App.—Dallas 2004, judgm’t withdrawn).  It can be appropriate regarding a default judgment with a variance between the pleadings and the judgment actually entered.  Gulf States Petroleum Corp. v. Gen. Elec. Capital Auto Lease, 134 S.W.3d 504, 510 (Tex. App.—Eastland 2004, no pet.); cf Nat’l Freight, Inc. v. Snyder, 191 S.W.3d 416, 426 (Tex. App.—Eastland 2006, no pet.) (declining to allow remittitur as remedy for failure to properly segregate past medical expenses at trial).

            When a record does not allow us to determine an amount of remittitur that might be properly suggested, that remedy is likewise unavailable, and we must remand for a new trial.  See Downing v. Burns, 348 S.W.3d 415 (Tex. App.—Houston [14th Dist.] 2011, no pet.).  In such a situation, the exact amounts to be provided to each party are not known with the clarity that might allow remittitur to be available.  See Playboy Enterp., Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250, 272 (Tex. App.—Corpus Christi 2006, pet. denied).

            We decline the invitation to either render judgment or suggest a remittitur.

            We reverse the judgment of the trial court as to the property division and remand the cause for a new trial on that subject.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          November 2, 2011     

Date Decided:             November 18, 2011

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^[1]December 31, 2010, was the last day on the job for the trial judge.  The newly elected judge of the Lamar County Court at Law took office the next day.  That transition affected this case.

^[2]The judgment signed by the trial judge who tried the case and granted the divorce ordered a $300,000.00 judgment to be paid in 100 monthly installments of $300,000.00 each.  It also contained other details that were either incomplete or inconsistent with the oral pronouncements of the trial court, as shown by the motion for judgment nunc pro tunc filed by opposing counsel and confirmed by the reporter’s record.   In that regard, there was also a complaint about a schedule A that was part of the inventory used by Christine’s counsel and attached to a proposed judgment—but although not used or referenced by the trial judge had been attached to the judgment, incorrect tenses being used in connection with stock account language, a failure to distinguish between a business and a website awarded to Ted, and several other matters.  We also note, that even though the findings of fact state that only Christine had separate property, the judgment itself is supported by an attachment that specifies certain property as being separate property of Ted.  Ted also contends that the errors in characterization of property and in valuing property led to an unsupportable order of a $300,000.00 judgment against Ted to “equalize” the estate.

                Such alleged errors are not unique to the judgment.  In a motion for contempt, Christine’s attorney alleged that Ted was in contempt because he had been “ordered to provide 90 pounds of human meat per month and 150 pounds of dog and cat meat per month to Christine . . . and owes petitioner 630 pounds of human meat and 1050 pounds of dog and cat meat which he has not provided to her and their child.”  The dogs, cats, and humans in the area applaud this failure.

^[3]This case does not involve an agreement by the parties to dismiss an appeal under Rule 42.1 of the Texas Rules of Appellate Procedure.  Tex. R. App. P. 42.1.

^[4]That procedural artifact does not necessarily establish Ted’s recited facts for general purposes, on a retrial, but allows us to accept Ted’s statement of facts as a given for the purposes of our analysis.