Helpinstill v. Regions Bank

33 S.W.3d 401, 2000 Tex. App. LEXIS 7739, 2000 WL 1701324
CourtCourt of Appeals of Texas
DecidedNovember 15, 2000
DocketNo. 06-99-00070-CV
StatusPublished
Cited by4 cases

This text of 33 S.W.3d 401 (Helpinstill v. Regions Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Helpinstill v. Regions Bank, 33 S.W.3d 401, 2000 Tex. App. LEXIS 7739, 2000 WL 1701324 (Tex. Ct. App. 2000).

Opinion

OPINION

Opinion by

Justice HILL.

Bobby Helpinstill, individually and as a general partner in MBO Computers, a Texas general partnership, appeals from a judgment in favor of Regions Bank, successor in interest to and formerly known as Longview National Bank. The Bank sued Helpinstill to recover funds representing overdrafts that Helpinstill’s partner in MBO, Mike Brown, had made when paying creditors of the partnership. Brown, while creating overdrafts on the partnership account, was shuffling funds from one bank account to another and is now in federal prison for conducting a check-kiting scheme.

Helpinstill presents seven points of error in which he contends that: (1) there is no evidence, or, strictly in the alternative, legally and factually insufficient evidence, that he ratified Brown’s actions; (2) there is no evidence or, strictly in the alternative, legally and factually insufficient evidence, that Brown’s deposit of money “created” by his kiting scheme was within the ordinary course of business of the partnership; (3) the honorable trial court erred in instructing the jury, over Helpinstill’s objection, on the obligations of one partner to another, because the instructions given are an improper comment on the weight of the evidence; they inform the jury of the effects of their answers, they are not necessary to allow the jury to decide this case; and they impermissibly shift the burden of proof to Helpinstill; (4) the honorable trial court erred in overruling Helpinstill’s objection that the phrase “in the ordinary course of business” used in jury question number one is a legal phrase and should be defined; (5) the honorable trial court erred in submitting jury question number two without limiting the benefit of the deposits reference in the question to those attributable to Brown’s illegal kiting scheme; (6) the honorable trial court erred in submitting jury question number three without limiting the time period during which the appellant could ratify Brown’s actions to the period of time after the appellant first learned that Brown was illegally kiting checks through the partnership bank account; and (7) the honorable trial court erred in refusing to submit the appellant’s requested jury questions num[403]*403bers one through four, on the grounds that the proposed jury questions were a controlling issue in the case.

We affirm because: (1) there is legally and factually sufficient evidence to support the jury’s finding that Brown, in depositing to and writing checks on the partnership account at Longview National Bank, was acting in the ordinary course of business of the partnership; (2) because the undisputed evidence established Helpins-till’s liability to the bank as a matter of law, any error in giving the instructions to the jury on partnership law to which Hel-pinstill objects was not such an error as probably caused the rendition of an improper judgment or prevented Helpinstill from properly presenting his case to this court; (3) the trial court did not err in failing to submit to the jury a definition of the phrase “in the ordinary course of business” because the term is one of common use and has no special legal or technological meaning; and, even if the failure to define the phrase was error, it is not reversible because Helpinstill did not submit a definition to the trial court; (4) because the evidence is undisputed that MBO benefited from the funds deposited in the partnership bank account at Longview National Bank, both before and after the initiation of Brown’s check-kiting scheme, any error by the trial court in failing to limit a jury question inquiring about such a benefit without limiting it in time to the period of the check-kiting scheme was not such an error that probably caused the rendition of an improper judgment or prevented Helpinstill from properly presenting his case to this court; and (5) any error by the trial court with respect to either of the questions relating to Helpins-till’s ratification of Brown’s action is likewise harmless because Helpinstill’s liability to the bank was established as a matter of law without any need of his ratifying Brown’s check-kiting scheme.

Helpinstill argues in point of error two that there is no evidence or, alternatively, factually insufficient evidence to support jury question number one, which asked whether Brown, in depositing to and writing checks on the bank accounts of MBO, that resulted in an overdraft at Longview National Bank in January 1997, was acting in the ordinary course of business of the partnership. We note that the question did not inquire, as intimated by Helpinstill in his point of error, whether “Brown’s deposit of money ‘created’ by his kiting scheme was within the ordinary course of business of the partnership.” In determining whether there is no evidence of probative force to support a jury’s finding, we must consider all of the evidence in the record in the light most favorable to the party in whose favor the verdict has been rendered, and we must apply every reasonable inference that could be made from the evidence in that party’s favor. See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). In this review, we disregard all evidence and inferences to the contrary. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). We will sustain a no-evidence point of error when: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence conclusively establishes the opposite of the vital fact. See Havner, 953 S.W.2d at 711. More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fairminded people to differ in their conclusions. Id; Burroughs Wellcome Co., 907 S.W.2d at 499.

Helpinstill and Brown were partners in MBO. They created a partnership banking account at Longview National Bank, each agreeing that he would be individually liable for any overdrafts created on the account. It began to be a regular [404]*404procedure of the business that Brown, who was actively managing the business, would write overdrafts on the account and cover them later with deposits. Helpinstill acknowledges that Brown’s activity in depositing checks to and writing checks on the partnership account and creating overdrafts on those accounts was, prior to Brown’s kiting scheme, in the ordinary course of business of the partnership. We believe that the evidence is sufficient to support the jury’s finding that Brown’s depositing checks to and writing checks on the bank accounts of MBO in January 1997 was in the ordinary course of business of the partnership. We disagree with Hel-pinstill’s contention that such activity by Brown ceased to be in the ordinary course of business of the partnership when Brown initiated a check-kiting scheme by shuffling money from one account to another, all in different banks, in order to keep MBO solvent. Brown’s creation of the overdrafts was in the ordinary course of business of MBO, even though the illegal check-kiting scheme was not.

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Cite This Page — Counsel Stack

Bluebook (online)
33 S.W.3d 401, 2000 Tex. App. LEXIS 7739, 2000 WL 1701324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helpinstill-v-regions-bank-texapp-2000.