Marvy Finger, as Trustee of the Finger Group and Robert Brown, Trustee for First City Liquidating Trust v. David Haywood

Opinion

NO. 07-02-0424-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JUNE 14, 2004

______________________________

ROBERT BROWN, TRUSTEE FOR FIRST CITY LIQUIDATING TRUST

AND MARVY FINGER, TRUSTEE FOR THE WILLIS RANCH JOINT VENTURE,

Appellants

v.

DAVID HAYWOOD,

Appellee _________________________________

FROM THE 75TH DISTRICT COURT OF LIBERTY COUNTY;

NO. 62,610; HON. J.C. ZBRANEK, PRESIDING __________________________________

On Motion for Rehearing __________________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

Pending before the court is the motion for rehearing of David Haywood. He questions the accuracy of our prior opinion via the assertion that we have failed to comply with the rules applicable to conducting a factual sufficiency review in reversing the judgment. We overrule the motion.

As illustrated in our opinion, we were required to interpret a written document, i.e. the June 7, 2001 letter. Construing a written document is a question of law, not fact; this is especially so given that no one argued, nor did the trial court conclude, that the June 7^th letter was ambiguous. Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex. App.-Amarillo 2000, no pet.) (stating that the construction of an unambiguous contract involves a question of law). Nor did we find its wording susceptible to two reasonable yet conflicting interpretations or ambiguous. See American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003) (stating this to be the test when determining whether a writing is ambiguous). Moreover, the question being one of law, we were entitled to consider it de novo. Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 353 (Tex. App.- Texarkana 2000, no pet.). Thus, neither the trial court's fact findings about the legal meaning and effect of the June 7^th letter nor the rules used to assess the validity of those fact findings bound our decision.

Accordingly, appellee's motion for rehearing is overruled.

Per Curiam

line">Penson v. Ohio, 488 U.S.75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). As a result of our review, we agree that the appeal is frivolous.

Accordingly, counsel's motion to withdraw is granted and the judgment of the trial court is affirmed.

Mackey K. Hancock

Justice

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