Eaton et al v. Six

IN THE

TENTH COURT OF APPEALS

No. 10-95-284-CV

     FLOYD J. EATON AND DOROTHY AKIN EATON,

     INDIVIDUALLY AND AS TRUSTEES OF THE

     JOSEPH WASHINGTON STOTT TRUST,

                                                                                              Appellants

     v.

     JEANIE M. SIX, INDEPENDENT EXECUTOR

     OF THE ESTATE OF JOSEPH WASHINGTON STOTT,

     DECEASED,

                                                                                              Appellee

From the County Court at Law #2

McLennan County, Texas

Trial Court # 94-0029PRI

MEMORANDUM OPINION

      Jeanie Six requests that we dismiss this appeal because (1) Floyd and Dorothy Eaton have failed to comply with the trial court's orders regarding the assets of the Joseph Washington Stott Trust and (2) they have failed to follow its order increasing the amount of the cost bond supporting this appeal. Tex. R. App. P. 46(c), 60(a)(1). Because the Eatons have failed to comply with the order increasing the cost bond, we dismiss their appeal. Id.

      Six sued the Eatons for fraud, conversion, and fraudulent transfers of assets belonging to the Stott Trust. On July 11, 1995, after a jury trial, the court rendered an interlocutory judgment for approximately $980,000 against the Eatons. On the same day, Six obtained a temporary restraining order prohibiting the Eatons from transferring any assets under their control derived from the Trust. On July 20, the court established a receivership to take control of these assets. The Eatons were specifically instructed by the order to deliver all Trust assets to the receiver by August 1. Additionally, the order enjoined the Eatons from making any transfers of the assets to any person other than the receiver or Six. When the Eatons failed to transfer the assets to the receiver, and in fact moved substantial amounts from one "off-shore" banking account to another in direct violation of the court's orders, the court held them in contempt and issued a capias for Floyd Eaton's arrest. Apparently, neither Eaton can now be located.

      However, Six argues that the Eatons are following these proceedings by proxy. Because the July 11 judgment did not dispose of all issue in the suit, it was interlocutory. On August 16, the court granted Six's motion for severance, making the judgment final and appealable. On September 15, despite the fact that Six had been unsuccessful in locating either Eaton or serving any documents on them by certified mail since the verdict was returned, the Eatons filed a $1,000 deposit in lieu of bond with the trial court, along with a notice of appeal to this court. Thus, the Eatons timely perfected their appeal even though they had not been officially served with any instrument indicating that the appellate timetable was running.

      After the Eatons filed their deposit in lieu of bond, the court issued an order in which it found that the $1,000 deposit is insufficient security for the costs of this appeal and ordered them to deposit an additional $6,500 by October 9. Id. 46(c). The Eatons have not complied with this order either.

      Rule 46(c) specifically authorizes the trial court to increase the amount of the cost bond. Id. "If the appellant fails to comply with such order, the appeal shall be subject to dismissal or affirmance under Rule 60." Id. Thus, we grant Six's motion to dismiss this appeal. Id. 46(c); 60(a)(1).

      This cause is dismissed. All costs are assessed against the appellants.

                                                                               PER CURIAM

Before Chief Justice Thomas,

            Justice Cummings, and

            Justice Vance

Dismissed on appellee's motion

Opinion issued and filed October 25, 1995

Do not publish

, 380 (Tex. Crim App. 1990). Thus, we review the record to determine if there was sufficient factual evidence of an amount which the court could find “just.” Cartwright, 605 S.W.2d at 289. The amount of expense incurred by a victim need not be supported by proof that it was reasonable. Davis v. State, 757 S.W.2d 386, 389 (Tex. App.—Dallas 1988, no pet.). The fact that a party willingly incurs an amount is sufficient evidence that the amount is “just.” Id. at 389.

THE EVIDENCE

      During the penalty phase of the trial, Shaw testified with specific detail to the medical expenses she incurred from physical injuries as a result of Maloy’s intoxication assault. Shaw’s testimony details the expenses she incurred for her trips in ambulances, doctor visits, procedures, and equipment necessary for recovery and rehabilitation.

      Maloy objected to this testimony claiming that the amounts were not shown to be reasonable and necessary. Without ruling, the court said that it would hear the testimony and determine the admissibility at a later time. Further into Shaw’s testimony, Maloy made the same objection. The court then overruled both objections and stated that the admissibility for restitution purposes would be determined later.

THE ORDER

      The court ordered Maloy to pay $15,264.00 in restitution: $7333.00 to Shaw and $7931.00 to Shaw’s insurance company. The court did not make an express finding as to the sufficiency of the facts to support these amounts or that the testimony of Shaw had been admitted for all purposes.

“JUST” AMOUNTS SUPPORTED BY THE RECORD

      An amount may be deemed “just” without a court specifically determining that the expense is reasonable and necessary. Davis at 389. One court has found that testimony alone about the amount of funeral expenses paid by the victim’s mother would factually support a restitution order. Todd v. State, 911 S.W.2d 807, 816 (Tex. App.—El Paso 1995, no pet.).

      Significantly, Article 42.037(k) provides that any dispute relating to the proper amount or type of restitution shall be resolved by the court. Tex. Code Crim. Proc. Ann. § 42.037(k) (Vernon Supp. 1999). The trial judge heard the detailed testimony of Shaw’s expenses. Shaw’s testimony shows that she willingly incurred the expenses because the expenses were required for her rehabilitation as a result of Maloy’s actions. The trial judge overruled Maloy’s objection that the amounts were not shown to be reasonable and necessary and properly considered the amounts testified to by Shaw in making a restitution order. Maloy has only challenged the adequacy of the evidence to support medical expenses. The total amount of restitution ordered was not controverted by Maloy. The court, in its discretion, impliedly found Shaw’s expenses to be “just” based upon the testimony of Shaw. No abuse of discretion by the trial court is shown.

      This case is distinguishable from Thompson v. State cited by appellant. Thompson v. State, 557 S.W.2d 521 (Tex. Crim. App. 1977). In Thompson, the appellant asserted that there was no evidence of the economic damage suffered by the victim. The defendant hit the victim then failed to stop and render aid. There was no testimony of specific medical expenses incurred as a result of the hit and run. The Court of Criminal Appeals found that evidence of the condition of the victim at the scene, and in the emergency room, even coupled with the judge viewing the victim in the court room was not sufficient to support a restitution order of $12,000. Thompson, 557 S.W.2d at 525-26. Thompson does not control this case because Shaw testified regarding the specific expense amounts incurred as a result of Maloy’s intoxication assault.

      Maloy further urges us to disregard the testimony of Shaw because the testimony is alleged to be hearsay. In furtherance of this point, Maloy directs us to Cartwright, where the Court of Criminal Appeals held a restitution award invalid because the award was based upon hearsay. Cartwright, 605 S.W.2d at 289. In this case, there was no hearsay objection made at the time of the testimony. Maloy’s objections were that the medical expenses were not shown to be reasonable and necessary. Nowhere in the record does Maloy object that the testimony was hearsay. Any error that the testimony was hearsay was waived. Tex. R. App. P. 33.1(a). Further, Shaw testified about the amounts of medical expenses she actually incurred. Testimony of these amounts about which she had direct knowledge is not hearsay.

      Further, Cartwright is distinguishable from this case for another reason. In Cartwright, there was no record of the proceedings below and a pre-sentencing investigation report was the entire record for review. The Court of Criminal Appeals noted that the report mentioned the fact that the victim had suffered financial losses but did not support the amount awarded. The court noted that the report was hearsay. Id. at 289. Cartwright, was decided before the majority rule was embraced by Texas Rule of Evidence 802 which treats hearsay admitted without objection the same as all other evidence in that it is capable of sustaining a verdict. Tex. R. Evid. 802. See Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986). Thus, even if Shaw’s testimony is hearsay, it would still support the trial court’s order of restitution.

PAYMENT TO INSURANCE COMPANY

      Finally, Maloy asserts that her objection that the amounts were not reasonable and necessary served to give notice to the court that Maloy disputed the insurer’s subrogation claim. We do not agree. Maloy’s issue as presented to this court addressed only the proof necessary to support restitution for medical expenses. In our sound discretion, however, we will address this issue. Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim. App.1990).

      It is a well established rule that an objection preserves only the specific ground or grounds named. Bouchillon v. State, 540 S.W.2d 319, 322 (Tex. Crim. App.1976). An exception to this general rule is if the correct ground of exclusion was obvious to the judge and to opposing counsel, then no waiver results from general or imprecise objections. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977), relying upon 1 McCormick & Ray, Evidence, Sec. 25, p. 25 (2d ed. 1956). In the case at bar, the judge considered and overruled Malloy’s objections. Both objections at trial were that the amounts testified to had not been shown to be reasonable and necessary. Nowhere in this record do we find the slightest suggestion by Maloy that the losses incurred by Shaw and paid by the insurance company were in dispute. The objection did not point to, nor did it generally indicate, that Maloy challenged Shaw’s testimony on the basis that some of the expenses were paid by Shaw’s insurance company.

      If Maloy was objecting that the court should not order restitution for amounts paid by the insurance company, we find that the objection is defective because this objection would not have been obvious to the trial judge or opposing counsel. Therefore, Maloy did not preserve any error for review and we cannot consider new grounds on appeal. However as stated above, the sentencing court is authorized to order payment to a third party who has paid the victim for the expense incurred. Tex. Code Crim. Proc. Ann. art. 42.037 (Vernon Supp. 1999); Gonzalez, 954 S.W.2d at 106.

      The trial court properly overruled the objections that the amounts were not shown to be reasonable and necessary and considered the testimony of Shaw. The trial court impliedly found the testimony admissible and sufficient to support a restitution order. We do not find that the trial court abused its discretion.

      We affirm the court’s judgment.

                                                                                     TOM GRAY

                                                                                     Justice

Before   Chief Justice Davis,

            Justice Vance, and

            Justice Gray

Affirmed

Opinion delivered and filed on April 7, 1999

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