DocketNumber： 01-01-00614-CV
Filed Date： 11/20/2003
Status： Precedential
Modified Date： 4/17/2021
Opinion issued November 20, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-00614-CV
____________
MARY ANN STRAHAN, Appellant
V.
BILLY H. STRAHAN, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 1996-50602
MEMORANDUM OPINION
Appellant, Mary Ann Strahan (Mary), challenges the trial court’s order denying her motion to enforce and clarify the trial court’s divorce decree. The trial court ordered that Mary take nothing, and it awarded appellee, Billy H. Strahan (Billy), $7,000 in damages and $28,000 in attorney’s fees.
In 12 issues, Mary contends that the evidence was legally and factually insufficient to support the trial court’s awards of damages and attorney’s fees to Billy; that certain findings and conclusions of the trial court were “erroneous as a matter of law”; and that the trial court erred in excluding evidence, in denying relief to Mary on her claims, in failing to clarify the divorce decree, and in making certain procedural rulings.
We reverse and render in part and affirm in part.
Facts and Procedural Background
On July 31, 1995, the trial court signed a final decree, the terms of which were agreed to by the parties, which granted the parties a divorce and divided their assets and liabilities. In its division of the parties’ marital estate, the trial court awarded Mary, among other things, ownership of Sharp Color Express, Inc. (Sharp), a printing and imaging company.
The trial court awarded Billy, among other things, complete ownership of three printing and imaging companies: Digital Press Inc. (Digital), Quality Qulor, Inc. (Quality), and Laserscan, Inc. (Laserscan). Billy was also awarded a 1991 Chevrolet Blazer and a large, commercial scanner, referred to by the parties as a “HELL scanner,” which was located on the premises of Sharp. As part of the agreed terms of the parties’ divorce decree, Billy “promise[d] and warrant[ed]” to remove this scanner, at his own expense, from the Sharp premises by August 31, 1995.
The parties each filed a motion to enforce the divorce decree. Mary asked the trial court to award her the following: (1) $25,236.48 from Billy as rebates owed to Sharp and collected from a printing supply company; (2) $5,732.93 from Billy as indemnification owed under the terms of the decree for payments made by Sharp on a monthly obligation; (3) reimbursement of $660 for her expense incurred in moving the commercial scanner to Billy’s business premises; and (4) funds received by Billy as a result of a lawsuit filed against Agfa, a printing supply company. Mary also asked the trial court to clarify a portion of the decree. Following a hearing, the trial court denied Mary’s claims for enforcement and clarification.
In his motion, Billy sought enforcement of the provision of the decree awarding him ownership of the Blazer. The trial court found that Mary had failed to deliver the Blazer to Billy, and, because Mary had sold the Blazer, the trial court ordered Mary to pay Billy damages in the amount of $7,000. The trial court also awarded Billy attorney’s fees in the amount of $28,000.
Billy’s Claim
In her first and second issues, Mary argues that the evidence was legally and factually insufficient to support either the trial court’s $7,000 damage award to Billy or the trial court’s related findings of fact and conclusions of law. In her third issue, Mary argues that the trial court’s findings and conclusions on this issue were “erroneous as a matter of law” and “cannot be upheld under any theory” of law.
We review a trial court’s conclusions of law de novo. In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.). We independently evaluate conclusions of law to determine their correctness, and we will uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. Id.
In an appeal of a judgment rendered after a bench trial, the court’s findings of fact have the same weight as a jury’s verdict, and we review the legal and factual sufficiency of the evidence used to support them, just as we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Our review of a legal sufficiency point requires us to consider only the evidence and inferences that tend to support the finding, disregarding all evidence and inferences to the contrary. Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex. App.—Houston [1st Dist.] 1993, writ denied). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue. Id. In our review of the factual sufficiency of the evidence, we must consider and weigh all of the evidence, and we will set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
With regard to the Blazer, the trial court made the following findings of fact:
11.[Mary] has failed to deliver the 1991 Chevrolet Blazer to [Billy] as ordered, without justification or contractual reimbursement to [Billy], and has converted such property. [Mary] testified at trial that she sold the 1991 Chevrolet Blazer to a third party for the sum of $7,000.00. Delivery of the property is no longer an adequate remedy and [Mary’s] failure to deliver the property has caused damage to [Billy] in the amount of $7,000.00.
12.[Billy] should be awarded judgment against [Mary] in the amount of $7,000.00 together with interest at ten percent per year compounded annually from the date the order is signed.
The trial court also made the following relevant conclusion of law:
4.[Billy] should be and is granted judgment against [Mary] for $7,000.00, such judgment bearing interest at ten percent per year compounded annually from the date this order is signed, for which let execution issue.
Mary argues that the trial court erred in awarding $7,000 in damages to Billy because the evidence presented at the hearing does not support either the claim for enforcement of the divorce decree or the elements of a claim for “conversion” of the Blazer. Additionally, Mary argues that the evidence presented at the hearing was not legally or factually sufficient to support the trial court’s findings and conclusion on this issue.
In addition to awarding Billy full title and ownership of the Blazer, the decree also provided as follows:
To the extent that either party shall have or receive property or monies which are herein awarded to the other, IT IS ORDERED AND DECREED that the receiving party shall be the Constructive Trustee for the other party of said property or monies and shall within three (3) days of the receipt thereof, transfer and deliver said property or monies to the other party at the last known address of the other party.
Billy filed a “Motion for Enforcement of Decree of Divorce” seeking to have the trial court order Mary to deliver the Blazer awarded to Billy under the terms of the decree. In order to enforce its division of property made in a divorce decree, a trial court may order a party to deliver specific property awarded. Tex. Fam. Code Ann. § 9.009 (Vernon 1998). If a party has failed to comply with a decree of divorce, and the delivery of the property awarded in the decree is no longer an adequate remedy, the trial court may, in addition to other to other legal remedies, render a money judgment for the damages caused by the party’s failure to comply. Id. § 9.010 (Vernon 1998).
The evidence was undisputed that the decree awarded full title and ownership of the Blazer to Billy, that Mary did not deliver the Blazer to Billy, and that Mary sold the Blazer to a third party for $7,000. Although title to the Blazer remained in her name following the divorce, Mary testified that she did not have possession of the Blazer because it was being used by “an employee” in Tennessee. Mary argues that, because she did not personally “possess” the Blazer and because Billy never demanded that she deliver the Blazer to him, the evidence does not support the trial court’s findings that she violated the decree.
In fact, during Billy’s case-in-chief, Mary testified that, sometime in late 1995, she took physical possession of the Blazer from her employee before selling it. By the agreed terms of the decree, at the time she did so, she became the constructive trustee of the Blazer and had a contractual duty to immediately deliver it to Billy and transfer the title to his name. Instead, Mary sold it to a third party.
Mary also argues that, pursuant to an oral agreement she made with Billy, she sold the Blazer with Billy’s permission. Mary testified that, in exchange for letting her retain the Blazer, Billy agreed to retain some office equipment awarded to her in the decree. However, Mary admitted that she did not have any documents to substantiate this claim, and that she later sued Billy for the return of the same equipment purportedly encompassed by their “trade,” a claim she later abandoned.
As the fact finder, the trial court was entitled to resolve any conflicts in the evidence and was free to believe all, part, or none of Mary’s testimony. Munters Corp. v. Swissco-Young Indus., Inc., 100 S.W.3d 292, 299 (Tex. App.—Houston [1st Dist.] 2002, pet. dism’d). After reviewing the evidence in support of the trial court’s findings, disregarding all evidence and inferences to the contrary, we hold that the evidence was legally sufficient to support the trial court’s finding that Mary violated the terms of the decree in failing to deliver the Blazer to Billy. Additionally, after reviewing and weighing all of the evidence presented, we hold that such finding was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
As noted above, because Mary sold the Blazer, the trial court was authorized to exercise its discretion under the Family Code in awarding Billy money damages in place of the Blazer. Tex. Fam. Code Ann. § 9.010. Mary argues that “there [wa]s no evidence of damages” presented here. However, she testified that she sold the Blazer for $7,000. In the absence of any evidence that the actual value of the Blazer was less than this sale price, we hold that the evidence was legally sufficient to support the trial court’s findings that delivery of the Blazer was no longer an adequate remedy at law and that Mary’s failure to deliver the Blazer to Billy caused him to sustain damages of $7,000. Additionally, we hold that such findings were not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
Accordingly, we hold that the trial court did not err in either its order awarding Billy $7,000 in damages or its findings and conclusion concerning this issue.
We overrule Mary’s first, second, and third issues.
Attorney’s Fees
In her fourth and fifth issues, Mary argues that the evidence was legally and factually insufficient to support either the trial court’s award of attorney’s fees in the amount of $28,000 or the trial court’s related findings of fact and conclusions of law. In her sixth and seventh issues, Mary argues that the trial court’s findings and conclusions on this issue were “erroneous as a matter of law” and that the award of attorney’s fees to Billy, in the absence of a proper damage award, was improper and alternatively, “cannot be sustained under the Family Code nor [sic] under any other theory.”
Attorney’s fees may not be recovered from an opposing party unless such recovery is provided for by statute or by contract. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex. 1996) (orig. proceeding). A marital property agreement incorporated into a divorce decree is treated as a contract. Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986). A trial court may also award reasonable attorney’s fees as costs in a proceeding to enforce a property division under a divorce decree. Tex. Fam. Code Ann. § 9.014 (Vernon 1998). A trial court’s decision to grant attorney’s fees in such a case is reviewed for an abuse of discretion. Kurtz v. Jackson, 859 S.W.2d 609, 612 (Tex. App.—Houston [1st Dist.] 1993, no writ).
The divorce decree provides, in relevant part, as follows:
The parties have consented to the terms of this Final Consent Decree of Divorce and Judgment. Accordingly, this Final Consent Decree of Divorce and Judgment shall be binding both as a contract and an Order or Judgment, and all provisions thereof may be enforced as a contract between the parties . . . . The parties further agree and stipulate that, if a party defaults in performing any of that party’s obligations under this ‘Final Consent Decree of Divorce and Judgment,’ the party obligee shall be entitled to recover from the defaulting party all reasonable attorney’s fees, Court costs, and other expenses the party obligee may incur in enforcing performance by the defaulting party.
As noted above, the evidence presented was legally and factually sufficient to support the trial court’s order and findings that Mary failed to comply with the parties’ agreed property division by not delivering the Blazer to Billy and that, as a result, Billy sustained damages of $7,000. Because Mary did not comply with her contractual obligation, we hold that the trial court did not abuse its discretion in finding that Billy was entitled to the recovery of attorney’s fees in his action to enforce the parties’ agreed property division.
With regard to the amount of attorney’s fees awarded, the trial court found that Billy had incurred, and was entitled to recover, $28,000 as “reasonable and necessary” attorney’s fees, and, in its conclusions of law, the trial court awarded Billy such fees. The record reflects that, in open court, counsel for Mary stated that, “[W]e have both agreed as to the attorneys’ fees that were reasonable and necessary for the pursuit of this case and that all other qualifications and all other necessary elements of proof have been made and agreed upon.”
Because the parties stipulated as to the reasonable nature and amounts of their respective fees, we hold that Mary waived any challenge to the sufficiency of the evidence to support the trial court’s order, findings, and conclusions concerning the amount of attorney’s fees awarded. Tex. R. App. P. 33.1.
We overrule Mary’s fourth, fifth, sixth, and seventh issues.
Mary’s Claims
In her ninth issue, Mary argues that the trial court’s denial of relief on the following claims was “erroneous as a matter of law” or, alternatively, “against the great weight and preponderance of the evidence”: (1) $25,236.48 of what she contends were “rebates” owed to Sharp that were collected from printing suppliers, (2) reimbursement of $5,732.93 in payments that Mary made on an obligation owed by Billy, (3) reimbursement of $660 in expenses that she incurred to move the scanner awarded to Billy, and (4) a portion of the settlement proceeds from Billy’s suit against Agfa. In her eighth issue, Mary argues that the trial court erred in excluding certain exhibits offered in support of her claims.
In denying Mary’s claims for relief, the trial court made no specific findings of fact or conclusions of law, but stated simply that “[Mary] failed to present any competent evidence to support her other claims and/or causes of action and they should be denied.”
When a party attacks the legal sufficiency of an adverse finding on an issue on which she had the burden of proof, she must demonstrate on appeal that the evidence established, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing a “matter of law” challenge, we must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there was no evidence to support the finding, we must then examine the entire record to determine if the contrary proposition was established as a matter of law. Id. We will sustain the point of error only if the contrary proposition was conclusively established. Id.
When a party attacks the factual sufficiency of an adverse finding on an issue on which she had the burden of proof, she must demonstrate on appeal that the adverse finding was against the great weight and preponderance of the evidence. Id. at 242. We must consider and weigh all of the evidence, and we can set aside a verdict only if the evidence was so weak or if the finding was so against the great weight and preponderance of the evidence that it was clearly wrong and unjust. Id.
We will address each of Mary’s claims in turn.
$25,236.48 in Rebates
The divorce decree granted Mary exclusive ownership of Sharp, including “all cash, money sums owed to Sharp, contract rights of Sharp, accounts receivable of Sharp, goodwill of Sharp, and claims . . . belonging to Sharp” as of May 24, 1995. Mary argues that she was entitled to recover, from Billy, $25,236.48, which she contends was a rebate paid to Billy’s company, Digital, that was, in fact, owed to Sharp.
Bennett Greenspan, the former owner of Industrial Photographic Supplies (IPS), testified that, between 1990 and 1994, his company frequently procured rebates for equipment and supplies purchased from product manufacturers, such as Agfa, and forwarded them to the parties’ printing companies. A canceled check from IPS to Digital, dated May 15, 1995, and totaling $101,434.56, was introduced into evidence. Greenspan testified that $25,236.48 of the amount of the check was for “rebates” issued by Agfa and owed to Sharp. Greenspan testified that this amount was owed as a result of purchases made by the parties’ companies in 1994, and that the check was issued and hand-delivered to Billy on or about May 15, 1995.
However, during cross-examination, Greenspan admitted that the payee of the check was Digital, not Sharp, and that the memo line of the check reads, “Total refund of Contex/SGI System paid by Billy Strahan.” Greenspan explained that his company delivered the check to Digital as a “refund” because Billy had purchased approximately $101,000 worth of software and equipment from IPS and had been unsatisfied. Greenspan then described the check as a “refund” for “all the moneys from all the sources that had been used by Mr. Strahan to pay us.”
As noted above, the trial court, as fact finder, was entitled to resolve conflicts in the evidence. Munters Corp., 100 S.W.3d at 299. Here, the trial court was presented with conflicting evidence from the same witness concerning the source of the funds and the purpose of the check and, as fact finder, determined that Mary, as owner of Sharp, was not owed any portion of the May 15, 1995 check as an unpaid rebate.
Based on the record presented, we hold that the evidence was legally sufficient to support the trial court’s ruling that $25,236.48 of the May 15, 1995 IPS check to Digital was not an unpaid rebate owed to Sharp, and we further hold that the evidence was factually sufficient to support the trial court’s decision to deny this claim because the ruling was not against the great weight and preponderance of the evidence.
We overrule Mary’s ninth issue as to her claim for rebates in the amount of $25,236.48.
$5,732.93 Reimbursement
Mary argues that she was entitled to recover, from Billy, $5,732.93 as a reimbursement for her payments on a monthly obligation identified in the divorce decree only as the “Select Set 5,000,” for which Mary contends Billy was required to indemnify her, pursuant to the terms of the decree.
The relevant provision of the decree reads as follows:
[Mary] will pay any and all debts, charges, and liabilities and other obligations pursuant to the “Select Set 5,000”obligation which is now payable at $2,751.17 per month, and will be assumed by Sharp. [Billy] will indemnify [Mary] and Sharp from liability for payments prior to May 1995, if not paid.
Mary concedes that, “under the questioning of opposing counsel,” she admitted that only $2,751.17 of the $5,732.93 that she argued she paid was actually for the monthly Select Set obligation. Additionally, we note that, during argument to the trial court, Mary’s counsel conceded that she sought reimbursement of only one month’s payment, $2,751.17, under this provision of the divorce decree.
During her testimony, Mary admitted that she could not produce a canceled check or other documentation to show that she had, in fact, paid this or any amount on the Select Set obligation. Nor did she testify concerning the date that she made such payment, or the month for which such payment was owed.
Based on the record presented, we hold that the evidence was legally sufficient to support the trial court’s ruling that Mary was not entitled to indemnification from Billy on the Select Set obligation, and we further hold that the evidence was factually sufficient to support the trial court’s decision to deny this claim because the ruling was not against the great weight and preponderance of the evidence.
We overrule Mary’s ninth issue as to her claim for a reimbursement in the amount of $5,732.93.
$660 Moving Expenses
As part of her ninth issue, Mary also argues that she was entitled to recover, from Billy, the sum of $660 that she incurred to pay to move the scanner awarded to Billy. As part of her eighth issue, Mary argues that the trial court improperly excluded evidence offered in support of this claim. We review a trial court’s evidentiary rulings for abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
As noted above, the decree required that the scanner be removed from Mary’s premises by August 31, 1995, at Billy’s expense. Mary testified that the scanner was located at her place of business, and that Billy faxed her a signed letter on August 25, 1995, authorizing her to allow a moving company to move the scanner. Mary testified that Billy caused the scanner to be removed from her premises, but because Billy was not available when she called him to bring a check for the moving company, she paid the movers. When Mary attempted to introduce into evidence copies of the letter, the invoice from the moving company, and her canceled check made payable to the moving company in the amount of $660, Billy objected to these exhibits as hearsay, and the trial court sustained Billy’s objections and excluded the exhibits. The exhibits were then submitted as bills of exception.
The rules of evidence permit the admission of business records kept in the course of regularly conducted activities. Tex R. Evid. 803(6). To be properly admitted under rule 803(6), the proponent must prove that the document was made at or near the time of the events recorded, from information transmitted by a person with knowledge of the events, and made or kept in the course of a regularly conducted business activity. Id. We hold that Mary’s check to the moving company qualified as a business record under rule 803(6) because Mary testified that she wrote it at the time the movers removed the scanner, she had personal knowledge of its making and its purpose, and the check was written and kept in the regular course of her business. See LaFreniere v. Fitzgerald, 669 S.W.2d 117, 118-19 (Tex. 1984) (holding canceled checks admissible as business records). Accordingly, we hold that the trial court abused its discretion in excluding the check, movant’s exhibit number 5, from evidence.
The rules of evidence also provide that the oral or written admissions of a party-opponent are not hearsay. Tex R. Evid. 801(e)(2)(A); Port Neches ISD v. Soignier, 702 S.W.2d 756, 757 (Tex. App.—Beaumont 1986, writ ref’d n.r.e.) (holding letter from party-opponent constituted admission). Accordingly, we hold that movant’s exhibit number 5A, Billy’s letter authorizing Mary to allow the movers to remove the scanner, was not hearsay, and that the trial court abused its discretion in excluding the letter.
The August 25th letter specifically authorized Mary to allow the moving company to remove the scanner from Sharp’s premises and take it to a warehouse, where Billy would take possession of it. The check to pay the movers was signed by Mary, was made payable to “Rex Machinery Movers, Inc.” in the amount of $660, and, in the memo section, reads “moving HELL Scanner.” We hold that this evidence, combined with Mary’s testimony on this issue, was sufficient to support her claim for reimbursement of the $660 under the terms of the parties’ divorce decree, and, because none of the other testimony or evidence presented rebutted this claim, Mary’s established her right to recover on this claim as a matter of law.
We sustain Mary’s eighth issue concerning the trial court’s ruling to exclude the portions of exhibits 5 and 5A noted above. Accordingly, we further sustain Mary’s ninth issue as to her claim for $660 for expenses incurred to move the scanner.
Settlement Funds from Agfa
Mary argues that she was entitled to recover, from Billy, $205,000 in settlement funds received by Billy, Quality, and Digital as a result of the settlement of their lawsuit against Agfa. Specifically, Mary argues that the entire amount of the settlement, which Agfa paid into the registry of the trial court presiding over the lawsuit, constituted unpaid “rebates” owed to Sharp. The bulk of these funds were distributed by order of that trial court to Billy, Quality, and Digital. However, $6,250 of these funds was also distributed to Billy, “as Assignee of [Sharp].”
Mary bases her claim to the settlement funds on the following provision of the divorce decree:
[Billy], Digital, [Quality], and [Laserscan], reserve any claim they may have or which Sharp, may have against First Interstate Bank, IPS, [Agfa], Bayer Financial, accounting firms, insurance companies or any vendor/supplier of Sharp previous to May 24, 1995, and specifically reserve the right to bring such actions or to require assignment thereof from [Mary] and Sharp, to [Billy] or his nominee without recourse upon Sharp or [Mary]. Any monies received from [Agfa] or other entities listed in this paragraph, after July 31, 1995, is awarded to [Billy] (excluding unpaid rebates).
(Emphasis added.)
Aside from Mary’s bare testimony, there is no evidence in the record to support her claim that the settlement funds consisted entirely of “unpaid rebates” owed to Sharp. As part of her eighth issue, Mary also argues that, had the trial court properly admitted into evidence copies of the pleadings from the Agfa lawsuit that she offered as exhibits, such evidence would have supported her claim to the settlement funds.
We disagree. A review of the “Ninth Amended Original Petition” filed by Billy, Quality, and Digital in the Agfa lawsuit indicates that the causes of action brought against Agfa in that proceeding included the following: a claim by Sharp that Agfa overcharged for equipment and supplies; claims by Sharp, Quality, and Digital that Agfa sold them defective proofing and processing systems; a claim that Agfa failed to deliver a proofing system as ordered; claims by Digital for rebates owed on supplies and failure to ship supplies; and a claim by Sharp that Agfa owed it commissions on sales of proofing and processing systems Agfa made to other companies, based on recommendations by Sharp. Thus, the pleading from the lawsuit indicate that several claims were alleged against Agfa for recovery of various damages other than rebates owed to Sharp. Moreover, these pleadings, as well as the trial court’s order distributing the settlement funds, do not indicate that, at the time that Agfa and the other defendants in the lawsuit settled the claims brought against them, the parties attempted to characterize the settlement proceeds or limit or describe the specific claims being settled. Accordingly, we hold that, without deciding whether the trial court erred in excluding from evidence the pleadings from the Agfa lawsuit Mary offered as exhibits, any such error was harmless.
Based on the record presented, we hold that the evidence was legally sufficient to support the trial court’s ruling that Mary was not entitled to the settlement funds from the Agfa lawsuit, and we further hold that the evidence was factually sufficient to support the trial court’s decision to deny this claim because the ruling was not against the great weight and preponderance of the evidence.
We overrule Mary’s ninth issue as to her claim for a portion of the settlement funds from the Agfa lawsuit.
Motion to Clarify
In her tenth issue, Mary argues that the trial court erred in denying her motion to clarify a provision of the parties’ divorce decree as it related to the settlement proceeds from the Agfa lawsuit. A court may render orders to enforce the division of property made in the decree of divorce or to clarify the prior order. Tex. Fam. Code Ann. § 9.006 (Vernon 1998).
Mary argues that the following provision of the decree is ambiguous:
[Billy], Digital, [Quality], and [Laserscan], reserve any claim they may have or which Sharp, may have against First Interstate Bank, IPS, [Agfa], Bayer Financial, accounting firms, insurance companies or any vendor/supplier of Sharp previous to May 24, 1995, and specifically reserve the right to bring such actions or to require assignment thereof from [Mary] and Sharp, to [Billy] or his nominee without recourse upon Sharp or [Mary]. Any monies received from [Agfa] or other entities listed in this paragraph, after July 31, 1995, is awarded to [Billy] (excluding unpaid rebates).
(Emphasis added.) Mary sought clarification from the trial court concerning whether, by this provision, she was entitled to the settlement proceeds obtained by Billy, Quality, and Digital in the lawsuit against Agfa.
The trial court ruled that this provision contained no ambiguity. Because the parties agreed to be contractually bound to the agreed terms of the decree, including the provision at issue, we review the trial court’s determination that the provision at issue was not ambiguous in the same manner as we would review a similar ruling on any other contractual provision. Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). Only when, after applying the applicable rules of construction, a contract term is susceptible of two or more reasonable interpretations will the term be considered ambiguous. Id. at 465.
Despite her claim that this provision is ambiguous and requires clarification, during her cross-examination testimony, Mary engaged in the following exchange with Billy’s counsel:
Q:No. I’m asking you what you think is ambiguous.
A:Well, if you look at it, the way it is the only thing that’s ambiguous right here is that line where it says, “Excluding rebates.” With a line. There was a word in there that they couldn’t interpret. That’s what I think is ambiguous. Which we now have identified as being “unpaid rebates.”
Q:Okay. So there is nothing ambiguous now that you know what that word is; is that right?
A:Right, as far as reading it.
From this testimony, it is evident that, once the handwritten portion of the provision concerning “unpaid rebates” was identified for her, Mary no longer considered it ambiguous. Mary has also not shown that, on its face, this provision contains an inherent ambiguity, or that it is ambiguous when read or applied in conjunction with any other provisions of the decree. Moreover, as noted above, the trial court did not err in ruling that Mary was not entitled to the settlement proceeds of the Agfa lawsuit.
Accordingly, we hold that the trial court did not err in determining that this provision was not ambiguous and in denying Mary’s motion for clarification. We overrule Mary’s tenth issue.
Trial Amendment
In her eleventh issue, Mary argues that the trial court erred in refusing to grant her leave to amend her pleadings. During the hearing, Mary’s counsel requested leave to amend her pleadings to include a claim for rebates owed to Mary or Sharp from the Agfa litigation. Mary’s counsel subsequently acknowledged that he had, in fact, included such a claim in the pleadings filed on Mary’s behalf.
Pleadings may be amended within seven days of trial, only upon leave of the trial court. Tex. R. Civ. P. 63. Here, Mary’s counsel acknowledged that a claim for rebates from the Agfa litigation was presented in her pleadings. Therefore, there was no need for a trial amendment, and the trial court did not err in denying Mary’s motion to amend.
We overrule Mary’s eleventh issue.
Additional Evidence
In her twelfth issue, Mary argues that the trial court erred in refusing to allow her to offer rebuttal testimony, or alternatively, to re-open her case-in-chief.
A party has a right to present rebuttal testimony at trial. Tex. R. Civ. P. 265(f). In addition, when it “clearly appears to be necessary to the due administration of justice,” a trial court may permit a party to offer other additional evidence. Tex. R. Civ. P. 270. We review a trial court’s decisions to deny a party’s motion to offer rebuttal or other additional evidence for abuse of discretion. See In re Hawk, 5 S.W.3d 874, 877-78 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (motion to re-open); Stevenson v. Koutzarov, 795 S.W.2d 313, 318 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (motion to offer rebuttal testimony).
Mary argues that the trial court abused its discretion in refusing to permit her counsel to recall Mary to testify, after Mary had rested, “in light of the fact that she wanted to explain the very answers that [Billy’s] counsel had elicited from her.” Mary also argues that she sought to re-open her case-in-chief because the trial court erroneously “denied” her bill of exceptions as to two exhibits and refused to permit her to re-open her case-in-chief so as to “perfect” her offer of proof concerning several other excluded exhibits.
The record does not support Mary’s contention that she sought to “rebut” testimony or evidence offered by Billy. Rather, Mary sought leave from the trial court merely to explain testimony she gave during her cross-examination. With regard to Mary’s motion to re-open and offer additional testimony as to excluded exhibits, Mary has not shown why she was unable to properly present such evidence during her case-in-chief. Nor has she demonstrated, and the record does not indicate, that it was “clearly . . . necessary to the due administration of justice” for the trial court to grant the motion to re-open. See Tex. R. Civ. P. 270.
Accordingly, we hold that the trial court did not abuse its discretion in denying Mary’s request to offer what she contends was rebuttal evidence or, alternatively, to re-open her case-in-chief. We overrule Mary’s twelfth issue.
Conclusion
We reverse the trial court’s order denying Mary’s claim for $660 as reimbursement for the expenses she incurred in paying to move the scanner, and we render judgment for Mary that she recover $660 from Billy, plus all appropriate pre- and post-judgment interest. We affirm all remaining portions of the trial court’s order.
Terry Jennings
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.