Herbert v. Herbert

774 S.W.2d 1, 1988 Tex. App. LEXIS 3437, 1988 WL 163015
CourtCourt of Appeals of Texas
DecidedNovember 30, 1988
DocketNo. 2-84-197-CV
StatusPublished
Cited by3 cases

This text of 774 S.W.2d 1 (Herbert v. Herbert) 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
Herbert v. Herbert, 774 S.W.2d 1, 1988 Tex. App. LEXIS 3437, 1988 WL 163015 (Tex. Ct. App. 1988).

Opinion

OPINION ON REMAND

FENDER, Chief Justice.

This case has been remanded to this court by the Texas Supreme Court for a redetermination of appellant’s seventh [2]*2point of error which asserts that the jury’s negative finding to the sole special issue1 submitted is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Herbert v. Herbert, 754 S.W.2d 141 (Tex.1988).

We reverse and remand.

A detailed account of the procedural history of this case can be found in our prior opinion, 699 S.W.2d 717. However, for the reader’s benefit, we will set out the pertinent proceedings in the case. Appellant, Dorothy Herbert, sued her former husband, Hansel Kay Herbert, to collect 50% of his military retirement benefits pursuant to the property settlement agreement contained in their divorce decree. Hansel defended by asserting that Dorothy was not entitled to specific performance because she had materially breached the agreement by refusing to give him certain items of his personal property, as specified in the decree. Upon the jury’s finding that Dorothy had not substantially complied with the duties and obligations required of her under the property settlement agreement contained in the divorce decree, the trial court rendered a take-nothing judgment against Dorothy.

Dorothy’s seventh point of error contends the jury’s verdict was “so against the great weight and preponderance of the evidence as to be manifestly unjust and therefore there was insufficient evidence to support the Jury’s verdict.”

The trial court submitted the following special issue in the charge to the jury:

SPECIAL ISSUE

Do you find from a preponderance of the evidence that Dorothy Herbert substantially complied with the duties and obligations required of her under the property settlement agreement contained in the divorce decree dated August 12th, 1977.
In answering the above and foregoing Special Issue you are instructed that substantial compliance as used in this Special Issue is a performance of all important particulars and permits only such omissions or deviations from the agreement as are inadvertent and unknowingly and was [sic] not due to bad faith.
Answer “She did substantially comply” or “She did not substantially comply”.
ANSWER: She did not substantially comply.

In reviewing a point of error asserting that a jury’s answer is “against the great weight and preponderance” of the evidence, we must consider and weigh all of the evidence, both the evidence which tends to prove the existence of a vital fact as well as evidence which tends to disprove its existence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ford Motor Co. v. Nowak, 638 S.W.2d 582, 585 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.). So considering the evidence, if a jury finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point 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) (per curiam); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951) (per curiam).

The Supreme Court of Texas has cautioned the courts of appeals in factual insufficiency cases to detail the evidence relevant to the issue in consideration and clearly state “why the jury’s finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias.” Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986) (opinion on reh’g). Further, the supreme court has specified that in our opinions we should state in what regard the contrary evidence greatly outweighs the evidence in support of the jury’s verdict. See id.; see also Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986) (per curiam).

[3]*3If a jury makes a negative finding in answer to a question within the charge, it means that the party with the burden of proof has failed to carry its burden of proving that fact. Grenwelge v. Shamrock Reconstructors, Inc., 705 S.W.2d 693, 694 (Tex.1986) (per curiam); Siderius, Inc. v. Wallace Co., Inc., 583 S.W.2d 852, 861 (Tex.Civ.App.—Tyler 1979, no writ). In considering great weight points complaining of a jury’s failure to find a fact, courts of appeals should be mindful that a jury was not convinced by a preponderance of the evidence. See Herbert, 754 S.W.2d at 144. Therefore, the supreme court has instructed us in the instant case that “[reversal would be warranted only after a detailing of evidence under the Pool criteria indicates that the great weight of that evidence supports an affirmative answer.” See id. (emphasis in original).

In his pleadings, Hansel claimed Dorothy had materially breached the divorce decree because she had refused to deliver to him numerous items that had been awarded him in the decree. The decree awarded Hansel approximately 130-140 specific personal items as his separate property.2 Additionally, the decree awarded Hansel the following items which were not specified in exact number:

Father’s miscellaneous papers
Navy military service papers, records and medals personal to Hansel Kay Herbert
Property personal to Hansel Kay Herbert
33ys, 45 and 78 rpm records, record albums, cassettes, and 8 track tapes
WWI and WWII books
Books about music, musicians, etc.
Miscellaneous clothing personal to Hansel Kay Herbert
Miscellaneous airplane model kits
Seven hundred to eight hundred 78 rpm records with wood cruise box
Two to three hundred 33ys rpm records
Miscellaneous text books, chart board (navigational), uniforms in wardrobe trunk, etc.
Heirloom pictures and frames pertaining to the ancestors of Hansel Kay Herbert
35 mm slides and 8 mm movies taken by Hansel Kay Herbert, except those of Jimmy Herbert, Petitioner and her family
Two large cases of tapes
Tax records
Cancelled checks and bank statements and other financial records

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Bluebook (online)
774 S.W.2d 1, 1988 Tex. App. LEXIS 3437, 1988 WL 163015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herbert-v-herbert-texapp-1988.