Most Worshipful Prince Hall Grand Lodge, Free & Accepted Masons of Texas & Jurisdiction v. Jackson

732 S.W.2d 407

• Court: Court of Appeals of Texas
• Decided: June 5, 1987
• Docket: 05-86-00536-CV
• Status: Published

Opinions

WHITHAM, Justice.

Appellant, The Most Worshipful Prince Hall Grand Lodge, Free and Accepted Masons of Texas and Jurisdiction, appeals from a judgment notwithstanding the verdict in favor of appellees, Sam Jackson, Howard Roberson and Aaron Armstrong, individually, and as trustees of Evergreen Lodge No. 171, Free and Accepted Masons of Texas and Jurisdiction. In its first five points of error, the Grand Lodge contends that the trial court erred (1) in disregarding the jury’s answer to special issue number one, (2) in rendering judgment notwithstanding the verdict in favor of Evergreen and (3) in denying the Grand Lodge’s motion for judgment on the verdict. We agree. Consequently, we reverse the trial court’s judgment and render a take-nothing judgment in favor of the Grand Lodge.

The dispute center's on whether the Grand Lodge or Evergreen is entitled to the proceeds of the sale of real property to which Evergreen held record title. It is undisputed that Evergreen was a local lodge of the Grand Lodge and that the real property in question was subject to the following provision of the Grand Lodge’s constitution:

All property, both real and personal, of every kind or nature, wheresoever situated, acquired by any Local Lodge, shall be deemed as held in trust by such Local Lodge for the use and benefit of the Grand Lodge and shall not be alienated, sold, transferred, exchange [sic] or mortgaged, by the Local Lodge without the consent of the Grand Lodge first being obtained in writing, and upon demise, or dissolution of a Local Lodge the absolute title to all such property of a Local Lodge shall pass to and vest in fee simple in the Grand Lodge. If a Local Lodge desires to dispose of its Real Estate for the purpose of acquiring other Lodge property, the Grand Lodge will not unreasonably withhold its consent to such sale.

(Emphasis added).

The present case was brought on behalf of Evergreen by Sam Jackson, Howard Roberson and Aaron Armstrong, individually, and as trustees of Evergreen to recover the proceeds of the sale of the property. The Grand Lodge obtained the proceeds of the sale in this manner. At the closing of the sale of the property, the title company delivered its check for the proceeds of the sale payable to “Most Worshipful Prince Hall Grand Lodge of Texas and Jurisdiction and Evergreen Lodge No. 171, Free and Accepted Masons.” Jackson, Roberson and Armstrong were present at the closing. It is undisputed that, upon delivery to them of the title company check, Jackson, Roberson and Armstrong immediately endorsed the check over to the Grand Lodge without protest or equivocation and placed it in the hands of the representative of the Grand Lodge also in attendance at the closing. We quote the endorsement on the check of the trustees of Evergreen:

Pay to the order of Most Worshipful Prince Hall Grand Lodge of Texas by Trustees

(s) Sam Jackson

(s) Aaron Armstrong

(s) Howard Roberson

(Emphasis added). It is undisputed that the Grand Lodge deposited the proceeds of the check in its bank account.

The issues before us focus on the allegations in Evergreen’s trial pleadings. Evergreen insists that it alleged four separate grounds for recovery of the proceeds of the sale; to wit: (1) fraud or misrepresentation, (2) unjust enrichment, (3) constructive trust and (4) unconscionable action. Although Evergreen asserts that the four alleged matters are separate causes of action, we entertain doubt that three of the four — unjust enrichment, constructive trust and unconscionable action — constitute causes of action in the sense asserted by Evergreen. Instead, those phrases appear to be descriptive words or equitable remedies. In general, unconscionability is a term used to describe a contract which is unfair because of its overall gross one-sid-edness or the gross one-sidedness of one of its terms. Currey v. Lone Star Steel Co., 676 S.W.2d 205, 213 (Tex.App.—Fort Worth 1984, no writ). A constructive trust is not in reality a trust, but an equitable remedy imposed by law to prevent unjust enrichment resulting from an unconscionable act. Ellisor v. Ellisor, 630 S.W.2d 746, 748 (Tex.App.—Houston [1st Dist.] 1982, no writ). Nevertheless, for the purposes of this opinion, we assume, but do not decide, that unjust enrichment, constructive trust and unconscionable action constitute allegations of separate grounds for recovery of the proceeds of the sale. For purposes of this opinion we further assume, but do not decide, that Evergreen’s trial pleadings allege unjust enrichment, constructive trust and unconscionable action in addition to fraud or misrepresentation.

Evergreen concedes that only one of these four grounds — fraud or misrepresentation — was submitted to the jury. Evergreen concedes that it made no objection to the court’s charge and that it requested no other special issues. Thus, the jury was asked in special issue number one:

Did the authorized representatives of the Grand Lodge knowingly misrepresent to the trustees of Evergreen Lodge that Evergreen Lodge would receive the proceeds from the sale of the property in question?

The jury answered “no.” The remaining three issues were conditioned upon a “yes” to special issue number one and were not answered. Evergreen, however, argues that the trial court’s judgment could have been granted on the basis that the Grand Lodge was unjustly enriched, that the Grand Lodge held the proceeds in constructive trust or that retention of the funds was unconscionable. Hence, Evergreen would have us uphold the trial court’s judgment on the basis that the judgment could have been based upon one of the three remaining independent grounds of recovery alleged by Evergreen and that the failure of the Grand Lodge to assign error as to each of the three constitutes a waiver of the right to complain of the ruling to which no error was assigned.

We begin by pointing out that at no time did Evergreen move for a directed verdict asserting that it was entitled to judgment based on any of the four causes of action. Moreover, we conclude that Evergreen misplaces the matter of waiver. We reason that Evergreen waived reliance upon its three remaining grounds of recovery. We do so for two reasons. The first is based upon our reading of Evergreen’s motion for judgment notwithstanding the verdict and to disregard the findings of the jury. We quote the motion absent formal parts and prayer. In reading the motion, know that “Lawrence L. Anderson” is a person Evergreen asserts to be an “authorized representative of the Grand Lodge” in connection with special issue number one’s inquiry.

1.

That as a matter of law the response of Lawrence L. Anderson was for the Plaintiffs. Defendant Anderson, District Deputy of the Grand Master of the Grand Lodge, was asked the following question in regard to the meeting of September 14, 1983, at Sam Jackson’s home before the Trustees and others assembled and prior to the conveyance of the subject property on September 16, 1983:

Question: “What will happen to the money from the sale?”

Anderson: “If Evergreen is square and legal Evergreen will get the money.”

The evidence showed in the official reports that on the conveyance date of September 16, 1983, Evergreen was in existence (being legal) with nine members (being square) and met the representations of Lawrence Anderson.

2.

That as a matter of law the response of Lawrence L. Anderson was for the Plaintiffs. Defendant Anderson was asked:

Question: “What did Evergreen receive for their conveyance and transfer of title to the land?”

Anderson: “Nothing.”

3.

That as a matter of law the responses of Lawrence L. Anderson were not disputed and not rebutted.

4.

That as a matter of law under Texas Rules of Civil Procedure/Texas Rules of Court, Rule 301,

... that upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper; and provided further that the court may, upon like motion and notice, disregard any Special Issue Jury Finding that has no support in the evidence....

The reader will note the absence of any reference in the motion to (1) unjust enrichment, (2) constructive trust or (3) unconscionable retention of funds. Indeed, the motion focused upon but one ground of recovery — fraud or misrepresentation. That focus exhibits itself in the motion by the two answers relied upon from Anderson’s testimony:

Question: “What will happen to the money from the sale?”

Anderson: “If Evergreen is square and legal Evergreen will get the money.”

Question: “What did Evergreen receive for their conveyance and transfer of title to the land?”

Anderson: “Nothing.”

Therefore, by emphasis on the first question, Evergreen points to the representation as established as a matter of law. By emphasis on the second question, Evergreen points to a false representation as a matter of law. Consequently, we conclude that Evergreen asked the trial court to disregard the jury’s answer to special issue number one and render judgment for it on the basis that it had shown fraud or misrepresentation as a matter of law.

Nevertheless, Evergreen maintains that it can recover on grounds not advanced by Evergreen in its motion. We cannot agree that Evergreen, in its motion to disregard and for judgment notwithstanding the verdict, can ignore its now asserted separate grounds of recovery and thereby force the Grand Lodge to speculate upon all of the possible grounds of recovery that might support a judgment and assign error on appeal as to each speculated ground. We conclude that, if Evergreen considered that it was entitled to judgment as a matter of law under its separate grounds of recovery of unjust enrichment, constructive trust and unconscionable retention of funds, then it should have told the trial court so in its motion to disregard and for judgment notwithstanding the verdict. Only then was the Grand Lodge required to assign error or else waive the right to complain of the ruling to which no error was assigned. We cannot agree that the Grand- Lodge must present its appeal based on the allegations in Evergreen’s trial pleadings instead of on Evergreen’s motion to disregard and for judgment notwithstanding the verdict. For all we know on this record, Evergreen abandoned the three separate grounds of recovery not brought forward in its motion to disregard and for judgment notwithstanding the verdict. Therefore, we conclude that Evergreen — not the Grand Lodge — waived the matters in this appeal relied upon by Evergreen in support of the trial court’s judgment; to wit: reliance upon unjust enrichment, constructive trust and unconscionable retention of funds.

We turn now to the second reason Evergreen waived reliance upon its alleged three remaining grounds of recovery. We find this further waiver in Evergreen’s failure to comply with the provisions of rule 324(c) of the Texas Rules of Civil Procedure:

When judgment is rendered non obstante veredicto or notwithstanding the findings of a jury on one or more special issues, the appellee may bring forward by cross-point contained in his brief filed in the Court of Appeals any ground which would have vitiated the verdict or would have prevented an affirmance of the judgment had one been rendered by the trial court in harmony with the verdict. ...

******

The failure to bring forward by cross-points such grounds as would vitiate the verdict shall be deemed a waiver thereof....

TEX.R.CIV.P. 324(c). Evergreen’s brief in this court contains no cross-points assigning unjust enrichment, constructive trust or unconscionable retention of funds as a ground which would have vitiated the jury’s verdict or prevented an affirmance of a judgment rendered on the verdict. Therefore, on appeal Evergreen waived reliance upon (1) unjust enrichment, (2) constructive trust and (3) unconscionable retention of funds; and Evergreen cannot be heard to argue that the trial court’s judgment could have been granted on the basis that the Grand Lodge was unjustly enriched, that the Grand Lodge held the proceeds in constructive trust or that retention of the funds was unconscionable.

Indeed, we conclude that rule 324(c) is designed to prevent what Evergreen attempts. Evergreen would force the Grand Lodge to speculate upon all of the possible grounds of recovery that might support a judgment in favor of Evergreen and assign error by appeal as to each speculated ground. To the contrary, rule 324(c) requires that Evergreen bring forward by cross-point any ground that might support a judgment in favor of Evergreen. Thus, rule 324(c) affords the means by which specifics are identified and addressed and speculation avoided. Moreover, by requiring cross-points assigning grounds, application of the rule affords the other party notice and the opportunity to respond. In this way, the issues are joined in an organized manner. Normally, when a trial court has entered judgment notwithstanding the verdict, and an appellate court concludes that this was error, it must reverse the judgment of the trial court and enter judgment in harmony with the verdict, unless the appellee presents by cross-points grounds sufficient to vitiate the jury’s verdict or to prevent an affirmance of the judgment had one been entered on the verdict. Jackson v. Ewton, 411 S.W.2d 715, 717 (Tex.1967).

Furthermore, we conclude that we cannot give Evergreen’s brief a liberal construction and consider Evergreen’s counterpoints as cross-points under rule 324(c). See Fidelity & Casualty Co. v. Central Bank, 672 S.W.2d 641, 646 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). We reach this conclusion because Evergreen fails to cite to the record in its brief to any evidence supporting its right to recover upon unjust enrichment, constructive trust and unconscionable retention of funds. Rule 74(f) provides:

A brief of the argument shall present separately or grouped the points relied upon for reversal. The argument shall include: (1) a fair, condensed statement of the facts pertinent to such points, with reference to the pages in the record where the same may be found; and (2) such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.

TEX.R.APP.P. 74(f) (emphasis added). In interpreting similar language in earlier rules of civil procedure, the courts have been specific as to the duty of the appellate courts to make an independent search of the statement of facts. It is not the duty of the court of appeals to make an independent search of the statement of facts. Saldana v. Garcia, 155 Tex. 242, 248, 285 S.W.2d 197, 201 (1955). This court is not required to search the record for evidence supporting a litigant’s position under particular points of error, and in this case we refuse to so search. See Widmer v. Stamps, 663 S.W.2d 875, 880 (Tex.App.—Houston [14th Dist.] 1983, no writ). Because Evergreen’s statement of facts is not referenced to pages in the record concerning unjust enrichment, constructive trust and unconscionable retention of funds, this court has no duty to independently search the statement of facts in an attempt to determine if the grounds of recovery have merit. Crisp v. Southwest Bancshares Leasing Co., 586 S.W.2d 610, 614 (Tex.Civ.App.—Amarillo 1979, writ ref’d n.r.e.). The burden is on the litigant to show that the record supports its contentions and to point out the place in the record where matters complained of, or upon which the litigant relies, are shown. See Vapor Corp. v. Welker, 582 S.W.2d 858, 860 (Tex.Civ.App.—Beaumont 1979, no writ). "Rule 418(c) [a predecessor to current rule 74] makes plain the duty of counsel to support the points of error with a fair and condensed statement of facts pertinent thereto ‘... with references to the pages in the record where the same may be found — ’” Hale v. Ramsey, 524 S.W.2d 436, 438 (Tex.Civ.App.—Austin 1975, no writ) (emphasis in original). It is not the obligation of the appellate court to search out the statement of facts to discover the facts which might support a litigant’s points of error. See Hale, 524 S.W.2d at 438. We conclude, therefore, that in the present case the references to certain grounds of recovery are not supported by proper references to the record where evidence as to the grounds may be found. See Kropp v. Prather, 526 S.W.2d 283, 288 (Tex.Civ.App.—Tyler 1975, writ ref’d n.r. e.). The burden is on the litigant to show that the record supports its contentions and to point out the place in the record where the matters complained of are shown. See Kropp, 526 S.W.2d at 288. In the present case, as in Kropp, we do not believe that the rules require us to read through the entire record to determine whether Evergreen’s allegations have any validity. Kropp, 526 S.W.2d at 288. We conclude, therefore, that Evergreen has failed to meet its burden. See Kropp, 526 S.W.2d at 288. In concluding that we cannot give Evergreen’s brief a liberal construction and consider Evergreen’s counterpoints as cross-points, we point out that we are not holding that Evergreen waived its counterpoints by failing to comply with the briefing requirements of rule 74. See Inpetco, Inc. v. Texas American Bank/Houston, 729 S.W.2d 300 (Tex.1987). Furthermore, we point out that we are not reversing a trial court judgment for defects or irregularities in appellate procedure. See Inpetco, 729 S.W.2d at 300; TEX R.APP.P. 83. Therefore, we conclude that the Supreme Court’s holding in Inpetco is inapplicable to the present case.

Having concluded that Evergreen waived reliance upon unjust enrichment, constructive trust and unconscionable retention of funds, we consider next whether judgment should be rendered in the Grand Lodge’s favor on Evergreen’s separate ground of recovery for fraud and misrepresentation. Whenever jury findings are favorable to a party, judgment should be rendered in the party’s favor unless the trial court was justified in rendering judgment notwithstanding the verdict. Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex.1983). To sustain the action of the trial court in granting a motion for judgment notwithstanding the verdict, it must be determined that there is no evidence upon which the jury could have made the findings relied upon. In acting on the motion, all testimony must be viewed in a light most favorable to the party against whom the motion is sought, and every reasonable intendment deducible from the evidence is to be indulged in that party’s favor. Trenholm, 646 S.W.2d at 931. Before a judgment notwithstanding the verdict is proper, there must be no evidence of probative force upon which the jury could have made the findings relied upon. Berlow v. Sheraton Dallas Corp., 629 S.W.2d 818, 821 (Tex.App.—Dallas 1982, writ ref’d n.r.e.). In the present case, the jury’s finding that no authorized representative of the Grand Lodge knowingly misrepresented to Evergreen that it would receive the proceeds of the sale was favorable to the Grand Lodge. Thus, we must determine if there is any evidence of probative value to support the jury’s finding.

From our reading of the record, we are persuaded that there is evidence of probative value to support the jury’s finding. Indeed, there is evidence of probative value to support a finding that Anderson was not “the authorized [representative] of the Grand Lodge.” Furthermore, there is evidence of probative value that Anderson did not “knowingly misrepresent to [Evergreen] that [Evergreen] would receive the proceeds from the sale of the property.” Rather than extend this opinion unnecessarily, we will identify a small part of the probative evidence from which the jury could infer that no misrepresentation was made. In doing so, we draw upon the first of the two Anderson answers referred to by Evergreen in its motion to disregard and for judgment notwithstanding the verdict. Although the evidence is conflicting, for the purposes of this opinion, we assume, but do not decide, that Anderson was the authorized representative of the Grand Lodge. The record reflects the following:

Q. Okay, And what did you tell them about where the money would go?

[Anderson]: I told them if they had a square and constituted lodge, that the money would go to Evergreen 171.

Anderson, however, followed this answer by his next answer, stating what would happen to the proceeds from the sale of the property if Evergreen did not have a “square and constituted lodge”:

Q. And if they did not have a square and constituted lodge, where would the money go?

[Anderson]: The money would go to the Grand Lodge.

Thus, the jury heard that the money might go to Evergreen or to the Grand Lodge depending on whether Evergreen had a “square and constituted lodge.” Hence, we reach the inquiry as to what evidence was before the jury concerning whether Evergreen had a “square and constituted lodge.” We point to but one facet of the evidence from which the jury could infer that Evergreen did not have a “square and constituted lodge.” We refer to the fact that at closing Evergreen endorsed the check in payment for the property over to the Grand Lodge. Thus, the jury knew that the three trustees of Evergreen who bring this action on behalf of Evergreen voluntarily surrendered the proceeds of the sale of the property to the Grand Lodge immediately upon receipt of the funds.

We conclude that this surrender of the funds was evidence from which the jury could infer that Evergreen admitted that it did not have a “square and constituted lodge” and that the money indeed should “go to the Grand Lodge,” to quote Anderson. Therefore, we conclude further that the record contains evidence of probative value to support the jury’s finding that the authorized representative of the Grand Lodge did not knowingly represent to the trustees of Evergreen that Evergreen would receive the proceeds from the sale of the property. Consequently, the trial court should have granted the Grand Lodge’s motion for judgment on the verdict and rendered judgment that Evergreen take nothing against the Grand Lodge. Therefore, we conclude that the trial court erred in rendering judgment notwithstanding the jury’s finding to special issue number one.

We sustain the Grand Lodge’s first five points of error, reverse the trial court’s judgment and render judgment in favor of the Grand Lodge that the Evergreen parties take nothing. All costs in the trial court and in this court are taxed against Evergreen.

STEPHENS, STEWART, McCLUNG, McCRAW and THOMAS, JJ., join in the majority opinion. HECHT, J., files a concurring opinion in which ENOCH, C.J., and HOWELL and ROWE, JJ., join. BAKER, J., files a dissenting opinion in which DEVANY and LAGARDE, JJ., join.