Jerry O. Dueitt v. Terry Russell Dueitt, Trustee of the John Russell Dueitt Trust

• Court: Court of Appeals of Texas
• Decided: February 1, 2007
• Docket: 09-05-00424-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-05-422 CV

NO. 09-05-423 CV

NO. 09-05-424 CV

NO. 09-05-431 CV

NO. 09-05-432 CV

JERRY O. DUEITT, Appellant

V.

TERRY RUSSELL DUEITT a/k/a RUSTY DUEITT, Appellee

and

TERRY RUSSELL DUEITT, TRUSTEE OF

THE CHRISTY LYNN CARRIGAN TRUST, Appellee

THE JOHN RUSSELL DUEITT TRUST, Appellee

THE JAMES WESLEY DUEITT TRUST, Appellee

THE JENNIFER ANN DUEITT TRUST, Appellee

On Appeal from the 284th District Court

Montgomery County, Texas

Trial Cause Nos. 03-05-03646-CV, 03-05-03648-CV, 03-05-03652-CV

03-05-03647-CV, and 03-05-03650-CV

MEMORANDUM OPINION

This appeal arises from a family dispute between two brothers about the management of property inherited from their grandfather. We affirm.

At trial, appellant Jerry O. Dueitt ("Jerry") sought reimbursement for expenses he incurred in managing real property he owned jointly with his brother, Terry Russell Dueitt ("Rusty"), and four family trusts. Jerry filed five separate suits, one against Rusty individually and the other four against Rusty as trustee of the family trusts. The suits were tried together, and Jerry sought the total sum of $ 646.96 as damages. ⁽¹⁾ Jerry also asked for attorney's fees in excess of $ 22,000 and for an equitable lien on the real property. The jury awarded Jerry $582.41 in damages but declined to award any attorney's fees or court costs. After hearing Jerry's motion for judgment notwithstanding the verdict ("JNOV"), the trial court awarded Jerry a total of $58.25 in attorney's fees. But, the trial court did not grant the additional relief Jerry requested-namely, that the court disregard the jury's answer to charge question 3 regarding whether Jerry's services and materials were accepted and that the court award the full amount of damages and attorney's fees sought.

Though Jerry originally brought six appellate issues, he subsequently withdrew

issue one. Therefore, we limit our review to issues two through five.

In issue two, Jerry complains that the evidence was factually insufficient to support the jury's total damage award of $582.41. Because the jury "found the services and expenditures to be reasonable and necessary, and beneficial to the defendants and the properties concerned, and [because] the amounts sought [were] never substantially challenged, [he contends] the verdicts awarding lesser amounts as damages were so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust."

In reviewing a factual sufficiency issue, an appellate court considers all of the evidence and may set aside the verdict only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). However, before determining the evidence's sufficiency, a reviewing court "must first identify the standard against which the evidence is to be measured." St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 (Tex. 2002). In Osterberg v. Peca, the Texas Supreme Court concluded that "it is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge." 12 S.W.3d 31, 55 (Tex. 2000).

In this case, there were no objections to the charge at trial. The objections were lodged in post-trial motions. In his JNOV motion, Jerry asked the trial court to disregard the jury's answer to question 3, but the trial court did not grant this request. Question 3 asked the jury whether the "services and materials were accepted by the person sought to be charged, used and enjoyed by him[.]" The jury answered "no." In his JNOV motion, Jerry contended question 3 was an improper charge question in his suit for reimbursement. Further, at the hearing on his JNOV motion, Jerry argued that his case was one of equitable compensation for joint contribution and was not one of quantum meruit, as alleged by Rusty. ⁽²⁾ But, Jerry did not object to the charge before it was submitted; therefore, we measure the sufficiency of the evidence against the charge as submitted. See Osterberg, 12 S.W.3d at 55.

Charge questions 1, 2, and 3 identify the elements of Jerry's cause of action. To prevail on the charge submitted without objection, Jerry had to show that: (1) he rendered valuable services or furnished materials to defendants; (2) the services or materials were reasonable, necessary, and beneficial to defendants; and (3) the services and materials "were accepted by the person sought to be charged, used and enjoyed by him [.]" By answering "yes" to questions 1 and 2, the jury found in favor of Jerry on the first two elements but failed to find for him on question 3. Without an affirmative finding on question three, Jerry did not prove all of the elements on the claims he submitted to the jury for his cause of action, and he is not entitled to any relief. See Myrex Industries, Inc. v. Ortolon, 126 S.W.3d 548, 552 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).

However, in Jerry's argument and analysis of issue two, which contests the sufficiency of the evidence supporting the jury's damage award, Jerry ignores the impact of the jury's finding that the services and materials he provided were not accepted, used, and enjoyed by the defendants. In addition, Jerry does not contest the evidence's sufficiency as to the question 3 finding. Instead, Jerry concentrates on evidence showing that he performed beneficial services and that the reimbursements requested were reasonable. In concluding his issue two argument, Jerry states:

The record demonstrates that the overwhelming weight and preponderance of the evidence supports the amounts to which Jerry testified and presented documentary evidence. The jury, having properly ruled that the expenses were reasonable and necessary to the upkeep and maintenance of the properties in question and beneficial to the defendants, had no rational basis to cut all of the amounts in the manner that it did."

He does not show, as he must, that the jury's failure to find in his favor on whether the defendants accepted the services and materials he provided is against the great weight and preponderance of the evidence. See Dow Chemical Co. v. Francis, 46 S.W.3d at 242. Further, the record shows that in February 2002, Rusty specifically requested that all future expenses be submitted to him in writing prior to their being incurred unless they involved an emergency. Jerry testified he declined Rusty's request. The record shows that the various expenses made the subject of these suits were incurred subsequent to February 2002. Such a specific request provides a sufficient factual basis for the jury's refusal to answer question 3 in Jerry's favor, and he does not claim otherwise.

In view of the jury's finding in question 3, Jerry did not prove he was entitled to any damages. ⁽³⁾ However, we need not consider the propriety of the jury's damage award because Rusty brings no appellate issue addressing it. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.1998) (holding appellate court cannot reverse on unassigned error); Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex.1987) (holding appellate court erred by considering unassigned points of error). Issue two is overruled.

In issues three, four, and five, Jerry contends he should have been awarded additional attorney's fees, should have been granted an equitable lien by the trial court, and should have been awarded interest on the judgment. For the reasons expressed in our review of issue two, Jerry is not entitled to any of the relief he requests because he did not prove all of the elements of his cause of action. Issues three, four, and five are overruled.

In issue six, Jerry contends the trial court denied him a fair hearing on his post-trial motion for sanctions. Jerry argues that the trial court showed "bias and prejudice" against him by ruling on his motion for sanctions without notice and without permitting his counsel to address applicable law and facts. However, the record contains no request from Jerry for a hearing. Further, after the hearing on Jerry's motion for new trial, the court informed the parties that it would take the motion for new trial under advisement and would consider Jerry's motion for sanctions by submission. At that point, Jerry's counsel made no objection. In addition, Jerry did not file a motion for reconsideration after the court denied his motion. Thus, we do not reach the issue of whether Jerry had the right to a hearing on his motion for sanctions because he failed to preserve it for appeal. See Tex. R. App. P 33.1. Issue six is overruled.

Jerry further seeks sanctions against Rusty from this Court under its inherent authority. We decline to enter sanctions in this case. Jerry's motion is denied.

Accordingly, we overrule all of Jerry's issues, deny his motion for sanctions, affirm the trial court's judgment, and tax the costs of appeal against Jerry. See Tex. R. App. P. 43.4.

AFFIRMED.

____________________________

HOLLIS HORTON

Justice

Submitted on July 27, 2006

Opinion Delivered February 1, 2007

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Jerry appealed the five cases separately. As the issues are the same in all five appeals, we review them together. The five cases are identified as follows by their respective defendant and the amount Jerry sought from each: (1) Rusty Dueitt ($324.28); (2) Rusty as trustee of the Christy Lynn Carrigan Trust ($108.11); (3) Rusty as trustee of the John Russell Dueitt Trust ($35.84); (4) Rusty as trustee of the James Wesley Dueitt Trust ($72.09); (5) Rusty as trustee of the Jennifer Ann Dueitt Trust ($106.64).

2. Question 3 would be a proper question in a quantum meruit charge submission. See Bashara v. Baptist Mem'l Hosp. Sys., 685 S.W.2d 307, 310 (Tex. 1985). The four elements of a quantum meruit claim are as follows:

(1) valuable services were rendered or materials furnished;

(2) for the person sought to be charged;

(3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; and

(4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged.

Id.

3. Despite the jury's failure to find for Jerry on question 3, the jury proceeded to questions 4, 5, and 6. This action probably occurred because the instruction following question 3 stated: "If you answer Yes you may proceed to Question No.2[,]" which the jury had already answered. (Emphasis added). Since the instruction did not require the jury to stop when it answered "no"to question 3, the jury also answered questions 4, 5, and 6. In answer to question 4, the jury found that the defendants reasonably challenged the original amounts demanded by Jerry and that the challenge was a basis for lowering those amounts. In question 5, the jury awarded Jerry the following amounts from the respective defendants: (1) Rusty-$292; (2) James's trust-$64.88; (3) Christy's trust-$ 97.30; (4) Jennifer's trust-$95.97; and (5) John's trust-$32.26. In question 6, the jury declined to award attorney's fees or costs.