J.D. Miles v. L.D. Hawkins ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00196-CV

J. D. Miles,

                                                                                    Appellant

 v.

L. D. Hawkins,

                                                                                    Appellee

From the 74th District Court

McLennan County, Texas

Trial Court No. 2003-3643-3

MEMORANDUM  Opinion

        This is an appeal on a partial reporter’s record, also known as a “limited appeal.”  See Tex. R. App. P. 34.6(c).  In Mount Pleasant Missionary Baptist Church’s vote “to determine who would gain control over the real property, personal property and funds of the Church,” Hawkins “and his followers gained control of Church property.”  (Miles Br. at 1.)  Miles, representing the “expelled membership” of the Church, sued for declaratory judgment against Hawkins, representing the “remaining membership” of the Church.  (C.R. at 4.)  The jury answered “yes” when asked whether the vote was “subject to fraud or oppression or bad faith.”  (Id. at 146.) Miles sought a judgment declaring that because the vote was “tainted by fraud” the vote was void, and sought an accounting of Church property.  (Id. at 5.) Miles appeals the trial court’s take-nothing judgment in favor of Thomas, the late Hawkins’s successor in interest.  We affirm.[1]

Limited Appeal

         “If the appellant requests a partial reporter’s record, the appellant must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues.”  Tex. R. App. P. 34.6(c)(1).  “The appellate court must presume that the partial reporter’s record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues.”  Id. (4).  The only issue included by Miles in his designation of the reporter’s record is, “The Trial Court erred in rendering judgment in favor of Defendant because jury question #4 should not have been submitted to the jury in the Court’s Charge.”  (C.R. at 180.)  Accordingly, Miles is limited on appeal to complaints that Question No. 4 should not have been submitted.  We are careful, however, not to restrict unduly Miles’s ability to present this appeal by a “hyper-technical” application of that limitation.  See Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991) (per curiam); see also Bennett v. Cochran, 96 S.W.3d 227, 229-30 (Tex. 2002) (per curiam).

Issues on Appeal

         In Miles’s three issues, he complains concerning the charge’s Question No. 4, which asked, “Did the fraud, oppression or bad faith, if any, cause a different outcome of the vote?”  (C.R. at 148.)  Thomas contends that none of Miles’s issues is within the scope of Miles’s statement of issues to be presented on appeal as required by Rule 34.6(c).  We disagree.

        All three issues raised by Miles argue that Question No. 4 should not have been submitted to the jury.  In this regard, Miles’s issues would properly be considered as sub-issues of the single issue in Miles’s statement of issues to be presented on appeal.  The statement was that “[t]he Trial Court erred in rendering judgment in favor of Defendant because jury question #4 should not have been submitted to the jury in the Court’s charge.”  (C.R. at 180.)  The three sub-issues in Miles’s brief are: (1) that the issue misstated the law; (2) that the issue was immaterial; and (3) there was “no evidence” that the jury’s finding of fraud did not cause a different outcome.  (Br. at v.)  We cannot say, and Thomas has not argued, that Thomas was adversely affected by the more general framing of the issue on appeal in Miles’s statement than in the more specific arguments in his brief. 

Overview of the Arguments

        Miles argues that “fraud, of any degree, rendered the vote a void transaction.”  (Br. at 4.)  The basis of Miles’s argument is that fraud vitiates everything it touches, so that, because the jury determined in its answer to Question No. 2 that the vote was subject to fraud, the vote must be disregarded.  For this position, Miles relies on this Court’s statement that “[f]raud vitiates all transactions” in Libhart v. Copeland.  Libhart v. Copeland, 949 S.W.2d 783, 794 (Tex. App.—Waco 1997, no pet.) (quoting Hendryx v. People’s United Church, 84 P. 1123, 1127 (Wash. 1906)).  As further explained below, Miles’s is too broad a view of what constitutes actionable fraud.  The cause of action for fraud includes damages as an element.  If the act complained of does not cause some damage—some harm, some impact, some adverse consequence, some injury—it may be subject to condemnation, but there is no legal remedy.

Sub-Issues One and Two

        Miles’s first two issues, (1) that Question No. 4 misstates the law, and (2) that Question No. 4 was immaterial, are resolved by a correct understanding of the excerpt from Libhart on which Miles relies.[2] As Miles says, Libhart holds that “[f]raud vitiates all transactions” and makes them void.  Libhart, 949 S.W.2d at 794.  But the term fraud, as used in that phrase from the early part of Libhart’s discussion about the judiciary’s review of the proceedings of religious organizations, must be viewed in light of the discussion of fraud and the elements of fraud, discussed later in the case.

        The elements of fraud, as laid out in Libhart, include the element of causation of damages.  Libhart sets out the elements as follows:

       To prove fraud, a plaintiff must show:

(1) the defendant made a material representation;

(2) which was false;

(3) the defendant made the representation knowing it to be false or made it recklessly as a positive assertion without any knowledge of its truth;

(4) the defendant intended that the plaintiff act upon the representation;

(5) the plaintiff acted in reliance upon the representation; and

(6) suffered injury as a result.

Libhart, 949 S.W.2d at 800-801; accord T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992); Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex. App.—Waco 2003, no pet.).

        In Miles’s case, unlike Libhart, there is no jury question regarding what is traditionally thought of as “damage” or “injury.”  In this declaratory judgment action, Miles sought no damages in the form of a money judgment, but rather a determination of who was rightfully in control of the church property—Miles or Hawkins.  Thus the causation element of fraud, as applied to the facts of this case, required a determination of whether the first five elements, as submitted in this charge, resulted in the sixth element—in essence, whether Miles suffered a resulting injury.  In effect, the first five elements were asked in Question No. 2, and the causation element—did the “fraud” cause a different outcome in the vote—was asked in Question No. 4.

        Additionally, even though the elements of fraud were part of the instructions accompanying Question No. 2, the question was phrased in terms of whether the vote was “subject to” fraud, (C.R. at 146), not whether it constituted fraud.  In the context of this case, reconciling the answers to Questions Nos. 2 and 4, for example, the answer to Question No. 2 finds that some of the individual votes were “subject to” having been obtained by fraud, oppression, or bad faith, but the answer to Question No. 4 finds that the number of votes secured as a result of fraud was not sufficient to “cause a different outcome of the vote.”  (See id. at 146, 148.)

        Question No. 4 was not, on the facts of this case, a misstatement of the law.[3] Further, Question No. 4 was not immaterial, because it inquires into the essential element of injury caused by the act.  While we recognize that the loss of having individual votes properly cast and counted is important, unless the votes affected would cause a different outcome in an election, the individual loss of votes in a situation like this does not result in a legally cognizable injury.  Accordingly, we overrule Miles’s first and second issues.

Sub-Issue Three

        In Miles’s third issue, he contends that there was “no evidence” to support the jury’s answer to Question No. 4, (Br. at 6.), and, therefore, to submit it was error.  Because of the limitations imposed by Miles’s statement of his issue in this limited appeal, we understand the issue to be that the trial court should not have submitted the question because there was no evidence to support a negative answer to the issue.

        But the fundamental problem in the presentation of this issue is that the issue as argued on appeal misplaces the burden of proof on the jury issue.  The charge required that an affirmative answer be based upon a preponderance of the evidence.  To prevail on the argument that the jury’s answer “no” to Question No. 4 was supported by no evidence, Miles, having the burden of proof on the issue, must show that a “yes” answer was proved as a matter of law and that, for purposes of bringing it within the issue statement filed with the request to the reporter, the issue should, therefore, not have been submitted to the jury at all.  See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

        Miles’s burden on appeal is to show that there was error in the trial that affected the result.  It is Miles’s burden to bring forth a sufficient record to make this showing.  We do not perceive that this rule would be altered by the filing of a limited appeal.  If we presume there is nothing in the record contrary to the position being argued by Miles, it is of no help to Miles.  With the burden to establish that the submission of the issue was erroneous because Miles had established a “yes” response to the issue as a matter of law, Miles would still be required to present a record sufficient for us to make this determination.  In essence, Miles must bring forth some record that contains the evidence by which he conclusively proved the issue of a resulting injury.

        On the record before us, Miles is unable to establish that as a matter of law the result of the vote would have been different absent fraud.  Accordingly, Miles failed to meet the burden on appeal to show that the submission of the issue was erroneous because there was no evidence on the issue.[4] Accordingly, we overrule Miles’s third issue.

CONCLUSION

        Having overruled Miles’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

Affirmed

Opinion delivered and filed August 1, 2007

[CV06]

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        [1]  The full text of the description of the dispute from Miles’s brief is as follows:

                      Appellant, J. D. MILES, under the legal doctrine of virtual representation, filed suit against Appellee, L. D. HAWKINS, who not only represented himself, but the remaining church members continuing to act as Mount Pleasant Missionary Baptist Church (the Church) located in Waco, Texas.  (CR 70).  Miles, representing himself and those who were expelled from the Church, brought suit against Hawkins complaining of the proprietary of a Church vote that was taken on or around September 10, 2003.  (CR 71-72).

                      The two competing factions, represented by the parties herein, took a vote at the Church to determine who would gain control over the real property, personal property and funds of the Church.  (CR 71).

(Miles Br. at 1.)

        [2] We assume without deciding that Miles preserved those issues.  See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 274, 278.

        [3] In any event, Miles’s objection was not adequate to put the trial court on notice of the need to clarify the charge in this regard.  See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 274, 278; Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d 893, 903-904 (Tex. 2005).

        [4] Again, we note that Miles’s position on this issue in reliance on Libhart is that once he proved that the congregation’s vote was subject to fraud, a showing of no injury would then be an affirmative defense.  This is evidenced by Miles’s objection to the charge:

         With regard to Question Number 4, with regard to Question Number 4 concerning did it—did oppression, bad faith, fraud cause a different outcome in the vote?  Your Honor, we would say that that also is an affirmative defense.  That affirmative defense has not been pled nor has it been tried by consent.  There is absolutely no evidence which would guide the jury to allow them to determine whether or not the vote—the outcome of the vote would have been one way or the other absent the fraud of the jurors, as it was an affirmative defense not pled and not tried by defense.  And there being no evidence or insufficient evidence of anything having to do with facts which would allow or—allow the jury to come to an answer to this question, we ask that it be withdrawn.

[sic] (R.R. at 34-35.)  Because we have determined in our resolution of Miles’s first and second issues that he had the burden to prove injury caused by the conduct of Hawkins, the trial court properly overruled this objection and submitted the issue which placed the burden of an affirmative answer on Miles.