Dawn Gayken, D.D.S. v. Ann D. Ewton, Individually and as Independent of the Estate of Merle Clement Ewton, D.D.S. ( 2008 )

NO. 07-06-0379-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 4, 2008

______________________________

DAWN GAYKEN, D.D.S.,

                                                                                                 Appellant

v.

ANN D. EWTON, Individually and as Independent Executor of the

Estate of MERLE CLEMENT EWTON, D.D.S., Deceased,

                                                                                                 Appellee

_________________________________

FROM THE 248^th DISTRICT COURT OF MONTGOMERY COUNTY;

NO. 01-02-00972-CV; HON. JOHN M. DELANEY, PRESIDING

_______________________________

                                                     Memorandum Opinion

                                          ______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          This appeal is the second in this matter. The cause involves a bill of review filed by Ann D. Ewton, individually and as independent executor of the estate of Merle Clement Ewton, D.D.S., to negate an order dismissing the underlying suit for want of prosecution. Dawn Gayken had sued Ewton for damages arising from the sale of a dental practice. Ewton counterclaimed to recover upon a promissory note and the purchase agreement memorializing the sale. The trial court originally dismissed the bill of review. That dismissal was appealed, and the reviewing court reversed the order and remanded the cause after finding that Ewton “established a prima facie claim in support of her bill . . . .” Ewton v. Gayken, 130 S.W.3d 382, 385 (Tex. App.–Beaumont 2004, pet. denied). Upon remand, the trial court granted the bill, reinstated the cause, addressed the merits of the dispute, and awarded judgment to Ewton. Through this appeal, Gayken again questions whether her opponent was entitled to prosecute the bill of review. We affirm the decision of the trial court.

           Issue 1 - Statute of Limitations

          In her first issue, Gayken argues that Ewton was not entitled to prosecute a bill since she had an adequate remedy at law, that remedy being the initiation of a second suit. Such a suit would not have been barred by the six-year statute of limitations allegedly applicable to promissory notes. Whether that same statute applied to those aspects of Ewton’s initial suit founded on the purchase agreement as opposed to the promissory note went unaddressed in her appellant’s brief. We overrule the issue.

          The standard of review is one of abused discretion. Interaction, Inc. v. State, 17 S.W.3d 775, 778 (Tex. App.–Austin 2000, pet. denied); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.–Houston [14^th Dist.] 2002, no pet.). Next, we note that the element encompassing the absence of legal remedies pertains to the exhaustion of legal remedies against the former judgment or judgment being attacked. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999); see also Martin v. Martin, 840 S.W.2d 586, 592 (Tex. App.– Tyler 1992, writ denied) (stating that it must be shown there is an absence of adequate legal remedies against the judgment under attack). Indeed, it appears that the concept of adequate legal remedies generally encompasses the availability of a writ of error, a direct appeal, or a motion for new trial. Hesser v. Hesser, 842 S.W.2d 759, 765 (Tex. App.– Houston [1^st Dist.] 1992, writ denied). Or, as the Supreme Court said in Gold v. Gold, 145 S.W.3d 212 (Tex. 2004), “we have only applied this rule [involving the scope of legal remedies available] to motions that could have been filed in the trial court’s first proceeding.” Gold v. Gold, 145 S.W.3d at 214. Filing an independent second suit does not fall within the ambit of a motion filed in the first proceeding. Consequently, we reject Gayken’s argument that because Ewton could have filed another suit, she had adequate legal remedies.

          Issue 2 - Elements of Bill of Review

          Second, Gayken asserts that Ewton failed to address the elements required to obtain a bill of review. In doing so, she refers to Ewton’s purported failure to plead the elements of a bill in her petition. However, as already noted, the court of appeals that heard the first appeal found that Ewton had successfully pled and proven a prima facie case for a bill of review. See Ewton v. Gayken, 130 S.W.3d at 385. That decision was and is final, and we will not reconsider contentions that impugn it. Issue two is overruled.

          Accordingly, the judgment of the trial court is affirmed.

                                                                           Brian Quinn

                                                                          Chief Justice

pillow. During the incident, she averred that Joseph had pulled her into the closet and locked her in a bear hug with his hand over her mouth while screaming and threatening to kill her and their sons. She further stated that she kneed him in the groin and, after he grabbed her leg, she reached for her gun in a shoe case (which she had just placed in that location that morning) and shot Joseph twice. Two more shots were fired inadvertently, according to her, after she fell in the outer closet and Joseph lunged at her. Yet, this testimony and other of its ilk simply raised issues of credibility. And, selecting the witness and testimony to believe falls within the bailiwick of the jury. For instance, it was up to that body to decide whether appellant spoke truthfully when she alleged that the decedent grabbed and screamed at her; again, the neighbor testified that he heard no noises coming from Joseph except a final grunt.

          So, based on the entire record before us, we cannot say that the jury’s verdict is supported by weak evidence or so against the great weight of the evidence as to undermine our confidence in the outcome. Simply put, the evidence is both legally and factually sufficient to uphold the verdict, and issues one and two are overruled.

          Issue 3 - Charge Error

          Appellant next complains of the trial court’s failure to make clear to the jury in the charge on punishment that a finding either for or against sudden passion must be unanimous per Sanchez v. State, 23 S.W.3d 30, 34 (Tex. Crim. App. 2000). We overrule the issue.

          Here, the trial court instructed the jury, via separate paragraphs, about its need to decide whether or not appellant acted under sudden passion. So too did it inform the jury of the range of punishment applicable in either situation. It subsequently closed its instructions by telling the jurors that “[y]our verdict must each be unanimous.” (Emphasis added). After deliberating, the jury returned one form addressing the matter of sudden passion and another setting punishment. Under these circumstances, we conclude that the trial court fulfilled its obligation in question through informing the jury that each verdict must be unanimous. See Cartier v. State, 58 S.W.3d 756, 760 (Tex. App.–Amarillo 2001, pet. ref’d) (finding the general instruction that the verdict must be unanimous sufficient to instruct the jury that its finding on sudden passion must be unanimous).

          Issue 4 - Evidence to Support Sudden Passion

          Finally, appellant argues that the jury finding against sudden passion was in error. It is not clear whether appellant is challenging the legal or factual sufficiency of the evidence or both of them. However, appellant does not prevail under either one, and we overrule the issue.

           Sudden passion is passion directly caused by and arising out of provocation by the individual killed which passion arises at the time of the offense and is not solely the result of former provocation. Tex. Pen. Code Ann. §19.02(a)(2) (Vernon 2003). Next, adequate cause is cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. Id. §19.02(a)(1).

          Evidence appears of record that, if believed, could support a finding of sudden passion. Yet, the very same evidence depicting that appellant did not act in self-defense also constitutes some evidence that she acted from cool reflection or otherwise planned the murder. Again, there were no signs of a struggle in the bedroom or closet or on appellant. Moreover, the only surviving witness at the scene, other than appellant, heard no screams or threats purportedly uttered by Joseph, only those of appellant. This and other matter of record tended to contradict appellant’s version of events.

          As already stated, the jury was free to disbelieve appellant’s story. Even if Joseph had been abusive to appellant in the past, it had before it some evidence upon which it could decide, beyond reasonable doubt, that appellant’s actions did not result directly from or arise out of provocation at the time of the offense. And, we cannot say that the evidence supporting such a decision was weak or overwhelmed by contrary evidence.

          Having overruled all of appellant’s issues, we affirm the judgment of the trial court.

                                                                           Per Curiam

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