Gina Y. Quintanilla v. Consuelo Ybarra ( 2013 )


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  •                                NUMBER 13-11-00687-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    GINA Y. QUINTANILLA,                                                            Appellant,
    v.
    CONSUELO YBARRA,                                                                Appellee.
    On appeal from the County Court at Law
    of San Patricio County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Longoria
    Memorandum Opinion by Justice Longoria
    In three issues, which we will renumber and address as seven, appellant, Gina
    Quintanilla, challenges the legal and factual sufficiency of the trial court’s verdict in favor
    of appellee, Consuelo Ybarra, and of six of the supporting findings of fact, and argues
    that the judgment does not conform to the pleadings. For the reasons stated below, we
    affirm.
    I. BACKGROUND
    In 2001, Ybarra’s husband died of illnesses related to his exposure to asbestos.
    The Ybarra family received a $41,000 settlement; all family members, including
    Quintanilla, agreed in writing that Ybarra would receive 100% of the settlement. Ybarra
    testified that when she received the settlement money, she “gave it to my daughter,
    [Quintanilla] in her hands, and told her to save it for me in the bank so that when I
    needed it, she would give me some.”1 Ybarra later filed suit alleging that Quintanilla
    misappropriated $22,124.32 of the settlement money.2 The parties waived argument
    and submitted proposals for the court’s ruling. The court heard testimony, primarily
    regarding the nature and extent of Quintanilla’s expenditures out of the settlement
    monies, and rendered judgment for Ybarra in the amount of $22,124.32.3
    Quintanilla admitted during her testimony that she paid her own property taxes
    out of the settlement money. Quintanilla claimed that she paid the taxes with Ybarra’s
    money because the two had agreed that Ybarra would be responsible for the taxes, but
    Quintanilla did not produce any evidence of the agreement.4 Quintanilla argued during
    her testimony that she spent over $60,000 on behalf of Ybarra and that she is actually
    owed money. At Quintanilla’s request, the court issued findings of fact and conclusions
    of law. Quintanilla also filed a motion for judgment notwithstanding the verdict and
    1
    Ybarra testified that she chose to entrust the settlement to Ybarra in this way because it would
    allow Ybarra to pay Quintanilla’s bills “through the computer.” Ybarra has a first-grade education, does
    not speak English, and is illiterate.
    2
    Ybarra also alleged that Quintanilla fraudulently induced her to transfer a 7.5 acre parcel of land
    and home located in Sinton, Texas (the “Sinton Property”), and another home located in Odem, Texas
    (the “Odem House”). The trial court dismissed Ybarra’s claims regarding title to the land for lack of
    jurisdiction.
    3
    This figure is from the trial court’s amended judgment.          The trial court originally rendered
    judgment for $28,368.93.
    4
    At one point prior to trial, Quintanilla’s attorney wrote to Ybarra’s attorney stating that the
    property taxes had been “historically paid” by Ybarra, “as part of a life estate.” The issue of title to the two
    parcels is not before us, but the deeds conveying the parcels to Quintanilla are in the record. The deed
    for the Odem House is largely illegible, but the title contains the phrase “With Reservation of Life Estate.”
    In any event, Quintanilla did not argue at trial that Ybarra was responsible for the property taxes because
    she was a life tenant, but argued that there was “an agreement between all of us.” Quintanilla specifically
    denied that the agreement was in writing because “I didn’t think I needed anything in writing from my
    parents.” Quintanilla also does not assert on appeal that Ybarra was responsible for the property taxes
    because she was a life tenant.
    2
    alternative motions to reconsider the judgment and for new trial. The court entered an
    amended final judgment but did not expressly rule on Quintanilla’s motion. Quintanilla’s
    motion was subsequently overruled by operation of law. See TEX. R. CIV. P. 329b. This
    appeal followed.
    II. DISCUSSION
    In seven issues, Quintanilla challenges the legal and factual sufficiency of the
    trial court’s judgment, six of the supporting findings of fact, and argues that the trial
    court’s judgment did not conform to the pleadings. In an appeal from a bench trial in a
    civil case, an attack on the sufficiency of the evidence must generally be directed at
    specific findings of fact, rather than the judgment as a whole. Arrellano v. State Farm
    Fire & Cas. Co., 
    191 S.W.3d 852
    , 855 (Tex. App.—Houston [14th Dist.] 2006, no pet.)
    (citing Zagorski v. Zagorski, 
    116 S.W.3d 309
    , 319 (Tex. App.—Houston [14th Dist.]
    2003, pet. denied)); see TEX. R. CIV. P. 299. Accordingly, we will consider Quintanilla’s
    first and second issues together as six issues, one for each of the challenged findings of
    fact.
    A. Legal and Factual Sufficiency
    1. Standard of Review
    We review a trial court’s findings of fact for legal and factual sufficiency with the
    same deference and under the same standards as jury verdicts. Ortiz v. Jones, 
    917 S.W.2d 770
    , 772 (Tex. 1996) (per curiam); 
    Arrellano, 191 S.W.3d at 857
    .
    “[U]nchallenged findings of fact are binding on an appellate court unless the contrary is
    established as a matter of law or no evidence supports the finding.” 
    Arrellano, 191 S.W.3d at 855
    .
    3
    We will sustain a legal sufficiency issue (also called a no-evidence issue), when:
    (1) the record discloses a complete absence of evidence of a vital
    fact; (2) the court is barred by rules of law or evidence from giving
    weight to the only evidence offered to prove a vital fact; (3) the
    evidence offered to prove a vital fact is no more than a mere
    scintilla; or (4) the evidence establishes conclusively the opposite of
    the vital fact.
    Marathon Corp v. Pitzner, 
    106 S.W.3d 724
    , 727 (Tex. 2003) (per curiam); see Brockie v.
    Webb, 
    244 S.W.3d 905
    , 909 (Tex. App.—Dallas 2008, pet. denied); 
    Arrellano, 191 S.W.3d at 856
    . More than a scintilla of evidence exists if the “evidence rises to a level
    that would enable reasonable and fair-minded people to differ in their conclusions.”
    Ford Motor Co. v. Ridgway, 
    135 S.W.3d 598
    , 601 (Tex. 2004) (citing Merrell Dow
    Pharm., Inc. v. Havner, 
    953 S.W.2d 706
    , 711 (Tex. 1997)); see City of Keller v. Wilson,
    
    168 S.W.3d 802
    , 812 (Tex. 2005). Evidence is less than a scintilla if “it is so weak as to
    do no more than create a mere surmise or suspicion of its existence.” Ford Motor 
    Co, 135 S.W.3d at 601
    . We must review “the evidence in a light that tends to support the
    finding of the disputed fact and disregard all evidence and inferences to the contrary.”
    Bradford v. Vento, 
    48 S.W.3d 749
    , 754 (Tex. 2001) (citing Weirich v. Weirich, 
    883 S.W.2d 942
    , 945 (Tex. 1992)); see City of 
    Keller, 168 S.W.3d at 819
    –20.
    In contrast, when an appellant challenges the factual sufficiency of the trial
    court’s findings, we consider and weigh all the evidence in the record. City of Pharr v.
    Boarder to Boarder Trucking Serv., Inc., 
    76 S.W.3d 803
    , 807 (Tex. App.—Corpus
    Christi 2002, pet. denied).    We set aside the verdict only if it “is so against the
    overwhelming weight of the evidence as to be clearly wrong and unjust.” 
    Arrellano, 191 S.W.3d at 856
    (citing Cain v. Bain, 
    709 S.W.2d 175
    , 176 (Tex. 1986)); see City of 
    Pharr, 76 S.W.3d at 807
    ; 
    Brockie, 244 S.W.3d at 909
    .
    4
    2. Analysis
    In her first issue, Quintanilla challenges the trial court’s second finding: “[t]hat
    [Quintanilla] promised [Ybarra] that the approximate sum of $41,000.00 [Ybarra]
    received from her [sic] husband’s Asbestos settlement would be kept by [Quintanilla]
    and used solely for the benefit of [Ybarra].” Quintanilla argues that “there is absolutely
    no evidence to support the existence of a ‘promise’ or anything similar.” However,
    Ybarra testified regarding the settlement money, stating, “I gave it to my daughter, in her
    hands, and told her to save it for me in the bank so that when I needed it, she would
    give me some.” During her own testimony, Quintanilla admitted that 100% of the money
    was to go to her mother, and never contradicted Ybarra’s allegation that she promised
    to use the settlement money only to pay Ybarra’s own bills.5                    Instead, Quintanilla
    maintained that her expenditures were, in fact, on Ybarra’s behalf. In a “summary”
    requested by the trial court after the trial, Quintanilla stated that the testimony that
    “[Quintanilla] was given $41,000 to manage on behalf of [Ybarra]” was “uncontroverted.”
    Based on the foregoing, we conclude that the evidence is legally sufficient because
    there is more than a scintilla of evidence that Quintanilla promised Ybarra that
    Quintanilla would only pay Ybarra’s bills from the settlement money.                    Furthermore,
    because the finding is not so contrary to the overwhelming weight of the evidence as to
    be unjust, we conclude that the evidence is factually sufficient to support the trial court’s
    finding. We overrule Quintanilla’s first issue.
    In her second issue, Quintanilla challenges the trial court’s tenth finding, that “all
    other payments [Quintanilla] claims were made for the benefit of [Ybarra] were either
    5
    Much of the dispute between Quintanilla and Ybarra appears to be the result of Quintanilla’s
    failure to keep the settlement money separate from her personal funds.
    5
    not made by [Ybarra] or were made to benefit [Quintanilla] only.”6 Quintanilla argues
    that this finding “is not supported by either testimony or documents.” However, although
    Quintanilla held title to both the Sinton Property and the Odem House at the time,
    Quintanilla admitted that she paid the property taxes for both parcels out of the
    settlement money. Property taxes are generally the responsibility of the record owner of
    the property. See TEX. TAX CODE ANN. § 32.07(a) (West 2008); Peoples Gas, Light, and
    Coke Co. v. Harrison Cent. Appraisal Dist., 
    273 S.W.3d 208
    , 212 (Tex. App.—
    Texarkana 2008, pet. denied). Quintanilla testified that she and Ybarra agreed that
    Ybarra would be responsible for the property taxes even though Quintanilla held legal
    title to both properties. We conclude that the evidence is legally sufficient because there
    is more than a scintilla of evidence to support the trial court’s finding that Quintanilla’s
    other expenditures out of the settlement funds, such as paying the taxes due on
    Quintanilla’s real property, were not made for Ybarra’s benefit. We conclude that the
    evidence is also factually sufficient because it is supported by the majority of the
    evidence that was before the trial court. Quintanilla’s second issue is overruled.
    In her third issue, Quintanilla challenges the trial court’s finding that
    “[Quintanilla]’s promise was false.”7           Proof that a declarant made a statement with
    knowledge of its falsity can be established by direct or circumstantial evidence.
    Burleson State Bank v. Punkett, 
    27 S.W.3d 605
    , 613 (Tex. App.—Waco 2000, pet.
    denied). There is uncontested evidence in the record that Quintanilla agreed that the
    6
    Ybarra admitted that certain expenditures, (like insurance, phone, water, electric and medical
    bills) were for her benefit. The trial court found to that effect in its seventh, eighth and ninth findings,
    which are unchallenged by either party.
    7
    The trial court designated this and the finding on damages, considered below, as conclusions
    of law. It is a finding of fact, and we will treat it as such. See Clay v. Mercado, 
    224 S.W.3d 277
    , 283 n.1
    (Tex. App.—El Paso 2005, no pet.) (“The trial court’s designation of a ‘finding of fact’ or a ‘conclusion of
    law,’ however, is not controlling, and we may treat a conclusion of law as a finding of fact when
    appropriate.”).
    6
    entire settlement belonged to Ybarra, but Quintanilla used the settlement money to pay
    the property taxes on Quintanilla’s own property. Quintanilla also provided no further
    proof of the agreement she testified existed between her and Ybarra. As we discussed
    above, Quintanilla never denied in the trial court that she had promised to pay Ybarra’s
    bills with the settlement money. Quintanilla instead attempted to prove that payments
    Quintanilla made out of the settlement monies were Ybarra’s own bills.                Rose
    Samaniego, one of Quintanilla’s sisters, further testified that during a “family meeting”
    Quintanilla refused to give the remainder of the settlement money to Ybarra because
    she was saving it for Ybarra’s future nursing home expenses. In short, there is more
    than a scintilla of evidence in the record from which the fact-finder could infer that
    Quintanilla’s promise was false at the time it was made. Because the finding is also not
    so contrary to the great weight of the evidence, we hold that the evidence is factually
    sufficient to support this finding. We overrule Quintanilla’s third issue.
    In her fourth issue, Quintanilla challenges the sufficiency of the evidence to
    support the trial court’s twelfth finding of fact that: “[Quintanilla] never introduced bank
    statements to prove $18,000 was withdrawn from [Quintanilla]’s bank account to give to
    [Ybarra].” Quintanilla argues that “[t]his finding suggests, but does not state, that such
    evidence did not exist. [Quintanilla]’s testimony is clear, however, that those monies
    were withdrawn.” This finding refers to several sums of money that were withdrawn by
    Quintanilla and delivered to Ybarra for various miscellaneous purposes such as upkeep
    of properties.   Quintanilla and Ybarra dispute the amount and purpose of these
    withdrawals. Quintanilla interprets this finding as impliedly stating that she did not
    withdraw that money and deliver it to Ybarra. We interpret it merely as the trial court’s
    finding that although Quintanilla stated on direct examination in reference to these
    7
    monies that “[t]he withdrawals are in the bank statements I gave you,” Quintanilla did
    not produce any bank statements showing withdrawals in those amounts from her
    accounts.8      We have reviewed the record, and we found no bank statements
    referencing these withdrawals. Quintanilla does not explain where they can be found in
    the record. Furthermore, even if this finding is a comment on the existence of this
    evidence, the trial court, as the finder of fact, could disbelieve any part of all of
    Quintanilla’s testimony regarding the withdrawals. See City of 
    Keller, 168 S.W.3d at 819
    . Accordingly, we conclude that the evidence is legally and factually sufficient to
    support this finding. We overrule Quintanilla’s fourth issue.
    In her fifth issue, Quintanilla challenges the trial court’s finding that Ybarra
    suffered $24,236.56 in damages. Quintanilla argues only that this finding is “at variance
    with both the evidence produced at trial and the pleadings before the court.” Quintanilla
    does not provide any citation to evidence in the record supporting this contention.
    Ybarra put on evidence that Quintanilla paid at least $13,031.05 in property taxes out of
    the settlement monies and spent at least $10,000 in other bills, which were not Ybarra’s
    bills, out of the settlement monies. Although Quintanilla and Ybarra disagree on the
    precise details of the non-tax expenditures, we conclude that this evidence is both
    legally and factually sufficient to support the trial court’s finding of damages.
    Quintanilla’s fifth issue is overruled.
    In her sixth issue, Quintanilla challenges the sufficiency of the evidence with
    respect to the trial court’s fourteenth finding of fact, that “[t]he testimony of [Quintanilla],
    and the testimony of her witnesses was not credible.”                   Quintanilla argues that this
    8
    The “you” in this statement refers to Quintanilla’s lawyer. Quintanilla appears to be referring to
    the bank statements that she supplied her lawyer before trial.
    8
    finding “pretends to cloak an opinion in the garb of fact,” and that no reasonable trier of
    fact would have regarded Quintanilla’s testimony and that of her other witnesses as
    “less than truthful.” However, the finder of fact, in this case the trial court judge, is the
    sole judge “of the credibility of the witnesses and the weight to give to their testimony.”
    
    Id. The fact
    finder “may choose to believe one witness and disbelieve another.” 
    Id. We may
    only overturn the trial court’s findings if no reasonable person could find to the
    contrary. 
    Id. at 820.
    Quintanilla argues that no rational factfinder could regard her
    testimony and that of her witnesses “as less than truthful,” but she does not provide any
    argument in support of this contention. Because we must give almost total deference to
    the trial court’s determination of the credibility of a witness that testified before it, and
    since Quintanilla does not explain why the trial court could not rationally decide that the
    testimony she offered was not credible, we conclude that Quintanilla has not
    demonstrated that the evidence is legally or factually insufficient to support the
    challenged finding. See 
    id. We overrule
    Quintanilla’s sixth issue.9
    B. Judgment Conformed to the Pleading
    In her seventh issue, Quintanilla argues that Ybarra never actually alleged in her
    pleadings to the trial court that “[Quintanilla] acted to defraud [Ybarra] with respect to
    the Asbestos settlement.” Any judgment of the trial court “must be supported by the
    pleadings, and a party may not be granted relief in the absence of pleadings to support
    such relief.” Salomon v. Lesay, 
    369 S.W.3d 540
    , 553 (Tex. App.—Houston [1st Dist.]
    2012, no pet.); see TEX. R. CIV. P. 301. However, issues not pleaded may be tried by
    the express or implied consent of both parties. TEX. R. CIV. P. 67. Quintanilla reminds
    9
    Quintanilla also challenges the trial court’s eleventh finding of fact, which relates to whether
    Quintanilla’s father ever transferred his interest in either the Odem House or the Sinton Property to
    Quintanilla. We will not address this issue because, as we noted above, the trial court dismissed all of
    Ybarra’s claims relating to title to the lands.
    9
    us that “issues are not tried merely by the hearing of testimony thereon,” and we instead
    look to whether the issue was actually tried. Sage Street Assoc. v. Northdale Const.
    Co, 
    863 S.W.2d 438
    , 446 (Tex. 1993); see also Ingram v. Deere, 
    288 S.W.3d 886
    , 893
    (Tex. 2009). Other than citing to Sage Street, Quintanilla does not directly argue that
    the theory of fraud was not tried by consent. Quintanilla only argues that “[v]irtually the
    entire case presented by [Ybarra] at trial involved whether or not the funds were
    distributed for [Quintanilla]’s versus [Ybarra]’s benefit” and because there is no proof
    that “any of the questioned expenditures benefitted [Quintanilla] to the exclusion of
    [Ybarra],” there is a variance between the pleadings and proof at trial that requires
    reversal. We note that paragraph nine of Ybarra’s first amended petition stated that
    “[Ybarra] would show that [Quintanilla] has misappropriated to [Quintanilla’s] benefit the
    sum of $22,124.32,” and details Quintanilla’s specific expenditures with the settlement
    money, but does not discuss the elements of fraud. In any event, Quintanilla did not
    raise this issue with the trial court, and argues it for the first time on appeal. We will not
    consider this issue because as a general rule we will not review the actions of a trial
    court on an issue that was not presented to it at the time. Barnard v. Barnard, 
    133 S.W.3d 782
    , 789 (Tex. App.—Fort Worth 2004, pet. denied); Methodist Hospitals of
    Dallas v. Tall, 
    972 S.W.2d 894
    , 898 (Tex. App.—Corpus Christi 1998, no pet.) (“It is
    axiomatic that an appellate court reviews actions of a trial court based on the materials
    before the trial court at the time it acted.”); Brown Services, Inc. v. Fairbrother, 
    776 S.W.2d 772
    , 774 (Tex. App.—Corpus Christi 1989, writ denied).                  We overrule
    Quintanilla’s seventh issue.
    10
    III. CONCLUSION
    We affirm the judgment of the trial court.
    _______________________
    NORA L. LONGORIA
    Justice
    Delivered and filed the
    16th day of May, 2013.
    11