Bufkin v. Bufkin, No. 05-06-01719-CV, 259 SW3d 343 (Tex.App.- Dallas, July 1, 2008, pet.
denied Nov. 2008)(prejudgment interest reversed, admissibility of expert testimony, divorce fault
grounds, prenup, stipulation agreement)
We reverse the trial court's judgment insofar as it awards Elizabeth W. Bufkin
prejudgment interest, render judgment in favor of Edward O. Bufkin, Jr., and order that
Elizabeth take nothing against Edward for prejudgment interest.
We affirm the remainder of the trial court's judgment.
08-0728
ELIZABETH W. BUFKIN v. EDWARD O. BUFKIN, JR.; from Dallas County; 5th district (05-06-
01719-CV, 259 SW3d 343, 07-01-08) 2 petition
............................
EDWARD O. BUFKIN, JR., Appellant
V.
ELIZABETH W. BUFKIN, Appellee
.............................................................
On Appeal from the 330 Judicial District Court
Dallas County, Texas
Trial Court Cause No. 96-16958-Y
.............................................................
OPINION
Before Justices O'Neill, Richter and Lang
Opinion By Justice O'Neill
Edward O. Bufkin, Jr. (“Edward”) sued his wife, Elizabeth W. Bufkin (“Elizabeth”), for divorce in
1996, after nine years of marriage. The ensuing, protracted divorce proceeding, including two
trials and several mandamus proceedings, has been focused on what property is subject to
division under the terms of a prenuptial agreement.
A divorce decree (“First Decree”) was signed after the first trial on September 14, 2001 ('Divorce
Date”). On appeal, the property division in the First Decree was reversed and the case
remanded . This second appeal is taken from the second trial court judgment (“Second
Decree”), which awarded Elizabeth community property rights in certain stock dividends and the
valuation increases in two pieces of real property, a residence and a ranch. Edward raises
seven issues. By cross-appeal, Elizabeth raises two.
First, Edward contends that an agreement to limit issues raised in the first appeal dictates what
property is subject to division on remand by the second trial court. In his second and third
issues, he complains about the trial court's exclusion of expert witness testimony and rebuttal
evidence on the value of his ranch and its refusal to admit evidence of fault. Fourth, Edward
argues that the trial court was wrong to disregard the jury's finding that a loan obligation is a
community debt to be bourne by both Elizabeth and Edward. Issue five complains about the
court's award of dividend income to Elizabeth. In issue seven, Edward then states that the trial
court erred by refusing to make requested findings of fact and conclusions of law. Elizabeth's
cross-appeal raises two issues relating to the trial court's refusal to disregard jury findings on
two property valuations. We are not persuaded by either ex-spouse on any of these issues. We
affirm the Second Decree on these points.
One of Edward's issues, however, has merit. Issue six contends that an award of prejudgment
interest is improper because Elizabeth did not plead for prejudgment interest and there is no
statutory basis to support her recovery. We agree. The trial court's award of prejudgment
interest, therefore, is reversed and judgment rendered that Elizabeth recover no prejudgment
interest.
Background
Edward and Elizabeth married on July 26, 1987. Six days before the wedding, Edward and
Elizabeth signed the Antenuptial Contract (“Agreement”) in which they set out their relative rights
to property. In essence, all property owned before marriage or acquired during the first five
years of marriage, or on or before July 26, 1992 (“Fifth Anniversary”), was the respective
spouse's separate property. However, the Agreement provides that “a community property
estate will accumulate from and after a date which is five years from the date of the marriage of
the parties.” Specifically, Section XVIII of the Agreement states:
It is agreed by the parties that from and after the [Fifth Anniversary], all income from all sources,
from personal services, separate property, or otherwise; ... all earnings from personal services
of each party; all property or increases in kind or in value of property that is the product of either
party shall become the community property of the parties provided that it is acquired or
produced from and after such date....”
Edward and Elizabeth stipulated to the validity and enforceability of the Agreement.
During the first trial court proceeding, the judge granted a series of partial summary judgments
declaring, among other things, the following items to be Edward's separate property:
A.
a residence at 3724 Wooded Creek Drive in Dallas County;
B.
a ranch in Oklahoma;
C.
all outstanding shares of stock in Campeon Pipeline Corporation (“Campeon”); and
D.
all shares of stock in Norgasco, Inc. (“Norgasco”) held in Edward's name.
The first trial judge also issued a pre-trial order stating the Agreement dictated that any increase
in the value of Edward's separate property was not community property and found that there was
“no community property other than personal property in the possession of the parties.” The
judge then incorporated his pre-trial ruling and the partial summary judgments classifying
property into the First Decree.
Elizabeth appealed. Her appeal was heard by the Eighth District Court of Appeals in El Paso.
While on appeal, the parties agreed that Elizabeth would “narrow the scope of her appeal to the
following issues: (1) whether the trial court erred in granting summary judgment, and (2) whether
it erred in dividing the community estate by not including the increase in value of the Norgasco
stock.” In exchange, Edward agreed to dismiss his cross-appeal.
In its memorandum opinion dated November 20, 2003, the El Paso Court reversed the First
Decree and remanded the case for a division of the community estate. Bufkin v. Bufkin, No. 08-
02- 00025-CV, 2003 WL 22725522 at *5-*6 (Tex.App.- El Paso November 20, 2003, pet.
denied). Focusing principally on the Norgasco stock acquired by Edward during the first five
years of the marriage, the Eighth Court of Appeals determined “increases in kind or value of the
[Norgasco] stock were susceptible of being produced from the separate property both before
and after the [Fifth Anniversary]. We agree the [Norgasco] stock was not acquired after the
anniversary, but [Edward][sic] wholly fails to distinguish the plain language that any increase in
kind or value produced after the anniversary is community, under the [A]greement.” Id at *4. The
El Paso Court then concluded there was some evidence in the record that the difference in the
value of Edward's Norgasco stock on the Fifth Anniversary and the Divorce Date was not de
minimus and could have affected the just and right division of the Bufkins' community estate.
Citing to Jacobs v. Jacobs, 687 S.W.2d 731 (Tex. 1985), the panel “remand[ed] the entire
community estate to the trial court for a just and right division.” Id. at *6.
On remand, Edward and Elizabeth each raised claims for breach of the Agreement and
equitable claims for reimbursement and injunctive relief. Elizabeth did not ask for prejudgment
interest. Instead, her live pleading asks for “such other and further relief, general or special,
legal or equitable, to which she may show herself justly entitled to receive.”
A jury trial was conducted and the jury issued findings on ten facts:
1.
The value of Edward's stock in Norgasco on the Fifth Anniversary was $2,351,250;
2.
The value of Edward's stock in Norgasco on the Divorce Date was $1,660,000;
3.
The value of Edward's stock in Campeon on the Fifth Anniversary was zero;
4.
The value of Edward's stock in Campeon on the Divorce Date was zero;
5.
The value of the residence on the Fifth Anniversary was $210,000;
6.
The value of the residence on the Divorce Date was $284,000;
7.
The value of the ranch on the Fifth Anniversary was $1,506,680;
8.
The value of the ranch on the Divorce Date was $2,038,400;
9.
The debt owed to the Northrim Bank of Alaska (“Bank”) as of the Divorce Date was $835,983.07;
and
10. The debt owed to the Bank should be assumed one-half by each party.
Edward filed a motion asking the second trial judge to disregard the jury's findings nine (the
amount of the Bank debt as of the Divorce Date), and seven (the Fifth Anniversary value of his
ranch). Elizabeth filed her own motion also challenging fact-finding seven and additionally asking
the court to disregard the jury's fourth finding (the value of Edward's stock in Campeon on the
Divorce Date) and fact-finding ten (characterizing the Bank debt as an obligation to be assumed
one- half by each ex-spouse). The trial court disregarded fact-finding ten but adopted all other
findings by the jury.
Judge Lewis signed the Second Decree on October 2, 2006 and awarded Elizabeth
$302,010.00, “said sum being equal to one-half of the increase in value in Edward O. Bufkin Jr.'s
residence in Farmer's Branch, Texas, plus one-half of the increase in value of his ranch in
Oklahoma” less a mediation fee of $850.00. Elizabeth was also awarded $124,659.12 in
prejudgment interest, measured from the Divorce Date. The second trial court also held that “[p]
rior sums awarded as interim attorney's fees to [Elizabeth] are found to have effected a just and
equitable division of the community income out of which they were paid, and shall not be
reimbursed....” The judge then incorporated the jury's findings that Edward's shares in Norgasco
and Campeon had not appreciated and that the ranch's value on the Fifth Anniversary was
$1,506,680. Disregarding the jury's finding that the debt owed to the Bank should be allocated
one-half to each ex-spouse, the trial court concluded “the evidence conclusively established that
such debt should be allocated solely to [Edward].” Both parties perfected appeals from the
Second Decree.
Discussion
1.
The Rule 11 Agreement
Edward's first issue contends that the letter agreement made during the first appeal limited what
issues could be remanded to the second trial court to only a division of any increase in value of
Edward's Norgasco stock. See Footnote 1 The El Paso Court of Appeals, however, determined
that once it found that there was some evidence that there was an increase in the value of
Edward's Norgasco stock between the Fifth Anniversary and the Divorce Date, it had to remand
the entire community estate for division - not just any increased value of the Norgasco stock. We
agree.
Appellate courts cannot reverse only one piece of a property division. Jacobs v. Jacobs, 687 S.
W.2d 731, 732 (Tex. 1985); Schlafly v. Schlafly, 33 S.W.3d 863, 872 (Tex. App.-Houston[14th
Dist.] 2000, pet. denied) (appellate court does not have authority to render judgment dividing
marital property). Instead, a court of appeals must remand the entire community estate for a new
division. Jacobs, 687 S.W.2d at 732. We resolve Edward's first issue against him.
2.
Excluding Expert Testimony and Rebuttal Evidence
Edward's second issue contends that the trial court committed reversible error when it excluded
the testimony of Edward's real estate appraiser, Tom Jackson, and rebuttal evidence on the
value of the ranch and residence.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion
standard. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001); City of
Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The trial court's evidentiary ruling will
be upheld if there is any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v.
Malone, 972 S.W.2d 35, 43 (Tex. 1998). Under an abuse of discretion standard, we are not free
to substitute our judgment for the trial court's judgment. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d
48, 52 (Tex. 2002). Instead, a trial court abuses its discretion only if it acts in an arbitrary or
unreasonable manner without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
A.
The Expert
Rule 702 of the Texas Rules of Evidence governs the admissibility of expert testimony. Tex. R.
Civ. Evid. 702; E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995).
Rule 702 provides: "if scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may testify thereto in the form of an
opinion or otherwise." Tex. R. Civ. Evid. 702. The testimony must be relevant and based on a
reliable foundation. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727-28 (Tex.
1998); Robinson, 923 S.W.2d at 554. Once the opposing party objects to proffered expert
testimony, the proponent of the witness' testimony bears the burden of demonstrating its
admissibility. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996); Robinson, 923 S.W.2d at 557.
If the foundational data underlying an expert's opinion testimony is unreliable, the expert will not
be permitted to base an opinion on that data because any opinion drawn from that data is
likewise unreliable. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997). A flaw
in the expert's reasoning from the data may render reliance unreasonable and render his
inferences drawn from information dubious. Id. In that circumstance, the expert's testimony is
unreliable and legally constitutes no evidence. Id.
The trial court held a full evidentiary hearing on the admissibility of opinion testimony by
Edward's real estate appraisal expert, Tom Jackson. Mr. Jackson admitted that Edward asked
him to appraise the ranch as raw land as of the Fifth Anniversary and the Divorce Date ignoring
the value of the timber on the land. He was then instructed to include a third party's timber
appraisal originally from June 1996 See Footnote 2 in his total values. Although he was a
trained and certified forester, Jackson was not engaged to express an opinion on the timber
value The expert admitted that the method dictated by Edward's counsel did not conform with
mandatory provisions of the Uniform Standards of Professional Appraisal Practice See
Footnote 3 and that he had never valued real estate “that way” before.
During the Daubert-Robinson hearing, Edward offered no evidence regarding the reliability of
the third party's timber appraisal or its methodology, and, thus, he failed to prove the underlying
data for his expert's opinion was reliable. Accordingly, the trial court did not abuse its discretion
in concluding that the expert's methodology was unreliable and excluding his testimony. We
overrule Edward's third issue as to the exclusion of Mr. Jackson's testimony.
B.
Rebuttal Testimony
Edward also argues that he was precluded from presenting “rebuttal testimony” concerning the
value of his ranch and residence. The judge gave each party an equal amount of time. The
record does not reflect any details of the time limitations except that the trial court apprised him
of his remaining time when he rested. Edward does not complain about the trial court's time
limitations. Texas Rule of Civil Evidence 611 accords the trial court the ability to exercise
reasonable control over the interrogation of witnesses and presentment of evidence. Tex. R. Civ.
Evid. 611(a).
After the trial, Edward tried to introduce evidence (1) to rebut Elizabeth's testimony that he told
her the value of the ranch was at least $425 an acre; or (2) to dispute the valuations for the
residence by Elizabeth's expert. Edward argues because rebuttal testimony was not allowed by
the trial court, his appraiser could not defend his appraisal or critique Elizabeth's expert's
appraisal The record reflects, however, Edward had ample opportunity to cross-examine
Elizabeth's valuations and did not. We conclude that his concerns could have been addressed
when he examined Elizabeth in his case-in-chief and cross-examined her residential real estate
expert. Further, although given the opportunity, he did not examine her after the pertinent
testimony.
A successful challenge to evidentiary rulings usually requires the complaining party to show that
the judgment turns on the particular evidence excluded or admitted. Brownsville v. Alvarado, 897
S.W.2d 750, 753-54 (Tex. 1995). In determining if the excluded evidence probably resulted in
the rendition of an improper judgment, a court must review the entire record. McCraw v. Maris,
828 S.W.2d 756, 758 (Tex. 1992); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.
1989). A court ordinarily will not reverse a judgment for erroneous rulings on admissibility of
evidence when the evidence in question is cumulative and not controlling on a material issue
dispositive to the case. Gee, 765 S.W.2d at 396. To obtain a reversal of a judgment based on
error in the exclusion of evidence, an appellant must show that the trial court's ruling was in error
and that the error was calculated to cause and probably did cause the rendition of an improper
judgment. Tex. R. App. P. 44.1; Alvarado, 897 S.W.2d at 753; McCraw, 828 S.W.2d at 757.
Given his full presentation of his expert's testimony, his cross-examination of Elizabeth's expert
and his waiver of his right to cross-examine Elizabeth, we are not persuaded that the exclusion of
the evidence Edward included in his bill of exception resulted in an improper judgment. We
resolve Edward's second issue as to rebuttal evidence against him.
3.
Exclusion of Evidence of Fault
Edward's third issue argues the trial court was wrong to exclude evidence of fault. Edward and
Elizabeth both stipulated to the validity and enforceability of the Agreement. The El Paso court
held that once Edward made this stipulation, he could not then argue it was invalid. Bufkin, 2005
2272522 at *4. Section XI of the Agreement expressly provides for the division of property in the
event of divorce. Specifically, “each party will take, in full settlement of his or her property and all
other rights due upon divorce, only his or her separate property estate and his or her one-half
(½) share of the community property estate of the parties.” The Texas Family Code authorizes
such written agreements. Tex. Fam. Code Ann. §§ 4.001-4.009 (Vernon 2006).
Since Edward and Elizabeth have contracted how the community estate was to be divided in the
event of divorce, provisions of the Texas Family Code allowing evidence of fault See Footnote
4 in divisions do not apply. The Agreement's terms dictated an even division of the community
estate. Accordingly, evidence of fault is not relevant and the trial judge did not abuse her
discretion when she excluded it. We resolve Edward's third issue against him.
4.
Dueling Motions to Disregard Jury Findings
1.
Disregarding Jury Findings
Edward's fourth issue contends that the trial court committed reversible error when it granted
Elizabeth's request to disregard the jury's answer Question No. 10, which allocated the Bank
debt to both parties. The judge reasoned that “no evidence supported such answer, and the
evidence conclusively established that such debt should be allocated solely to [Edward].”
A trial court may properly disregard a jury's finding of fact where the evidence supporting the
finding is legally insufficient. Toles v. Toles, 45 S.W.3d 252, 259 (Tex.App.-Dallas 2001, pet.
denied); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). Evidence is legally
insufficient where (1) there is a complete lack of evidence of a vital fact; (2) the court is barred
by rules of law or of 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 scintilla; or (4) the evidence
conclusively establishes the opposite of a vital fact. Lochinvar Corp. v. Meyers, 930 S.W.2d 182,
188 (Tex. App.-Dallas 1996, no writ). The record reflects that the debt at issue was
borrowed by Campeon to build a pipeline at Cedar Creek which was never completed. Edward
signed guarantee for the debt but only used his separate property as collateral. Section XI of the
Agreement specifically provides that “[a]ll liabilities benefitting separate property shall be
assumed by the owner of the separate property” (emphasis added). There is no evidence in the
record that the money borrowed by Campeon ever benefitted the community or that the loan
proceeds received from the Bank were used to pay for the Bufkins' living expenses. Accordingly,
the Agreement dictates that the debt must be assumed by the owner of the separate property.
Since Edward owned the Campeon shares as his separate property, he alone assumes
Campeon's liabilities, including the Bank debt. Edward's fourth issue is overruled.
The trial court did issue its own findings of fact on issues not included in the jury charge.
Edward's seventh issue complains that it issued its findings, the trial court failed to include
findings of fact he proposed. But, Edward fails to disclose what specific finding is the subject of
his complaint. Bare assertions of error, without argument or authority, waive error. Sullivan v.
Bickel & Brewer, 943 S.W.2d 477, 486 (Tex.App.-Dallas 1995, writ denied). See also Fredonia
State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (appellate court has
discretion to waive point of error due to inadequate brief). When a party fails to adequately brief
a complaint, he waives the issue on appeal. Devine v. Dallas County, 130 S.W.3d 512, 513-14
(Tex.App.-Dallas 2004, no pet.); Howell v. T S Commc'ns, Inc., 130 S.W.3d 515, 518 (Tex.App.-
Dallas 2004, no pet.). Since we cannot discern what finding is the subject of Edward's seventh
issue, we hold that he has waived his complaint.
B.
Refusing to Disregard Jury Findings
Elizabeth also asked the trial court to disregard two other jury findings: (1) the jury's Divorce
Date value of Edward's Campeon stock, and (2) the jury's Fifth Anniversary value of the ranch.
The trial court's refusal to disregard these findings gives rise to her two issues.
The appeal of a trial court's refusal to disregard a jury finding is a challenge to the legal
sufficiency of the evidence supporting the finding. Hinkle v. Hinkle, 223 S.W.3d 773, 777-78 (Tex.
App.-Dallas 2007, no pet.). In contrast to reviewing a trial judge's decision to disregard a finding,
when the trail court upholds a jury finding, we examine the entire record, considering the
evidence both in favor of and contrary to the challenged finding. Id. (citing Cain v. Bain, 709 S.W.
2d 175, 176 (Tex.1986) (per curiam)). Anything more than a scintilla is legally sufficient to
support the finding. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); Pulley v.
Millberger, 198 S.W.3d 418, 426 (Tex.App.-Dallas 2006, pet. denied).
So, we must determine whether the record contains more than a scintilla of evidence that (1)
Edward's Campeon stock on the Divorce Date was worthless, and (2) the ranch's value on the
Fifth Anniversary was $1,506,680. More that a scintilla of evidence exists when the evidence
“rises to a level that would enable reasonable and fair-minded people to differ in their
conclusions. Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 899 (Tex.
App.-Dallas 2000, pet denied). Evidence that is so weak that it only creates a mere surmise or
suspicion of a fact is legally insufficient and constitutes no evidence. Id. at 898-99.
In her first issue, Elizabeth argues that the trial court erred by refusing to disregard the jury's
answer on the Fifth Anniversary value of the ranch because the parties had stipulated to a
different amount. The “stipulation” apparently arises from Edward's post-verdict motion See
Footnote 5 in which he argues that undisputed evidence established the Fifth Anniversary value
of the ranch to be $1,101,794.37, and Elizabeth's response that she did not introduce any
controverting evidence of the ranch's value. A stipulation, however, is "an agreement, admission,
or concession made in a judicial proceeding by the parties or their attorneys respecting some
matter incident thereto." Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.W.3d 899, 904
(Tex.App.-Dallas 2005, pet.denied) (quoting Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex.
1998)); Ortega-Carter v. American Int'l Adjustment Co., 834 S.W.2d 439, 441-42 (Tex.App.-
Dallas 1992, writ denied). To be enforceable, the stipulation must be in writing, signed, and filed
as part of the record, or made in open court and entered of record. Tex. R. Civ. P. 11.
Stipulations are binding upon the parties, the trial court, and the reviewing court. Id. (citing Jim
Sowell Const. Co., Inc. v. Dallas Cent. Appraisal Dist., 900 S.W.2d 82, 84 (Tex.App.-Dallas 1995,
writ denied)); M.J.R.'s Fare of Dallas, Inc. v. Permit & License Appeal Bd., 823 S.W.2d 327, 330-
31 (Tex.App.-Dallas 1991, writ denied).
Elizabeth's argument fails for two reasons. First, a stipulation must be an express agreement and
cannot arise by implication from a post-verdict statement in one party's motion to disregard a
jury finding. Tex. R. Civ. P. 11(“...no agreement between attorneys or parties touching any suit
pending will be enforced unless it be in writing, signed and filed with the papers as part of the
record...”). Second, even if there was an agreement after trial on the ranch's value, that
agreement would not be construed as an admission of a fact that was controverted at trial.
Austin v. Austin, 603 S.W.2d 204, 207 (Tex. 1980) (stipulation will not be construed as an
admission of a fact intended to be controverted); Hansen v. Acad. Corp., 961 S.W.2d 329, 335
(Tex.App.-Houston[1st Dist.] 1997, pet. denied). The ranch's value on the Fifth Anniversary was
controverted and the trial court submitted a question which the jury answered. At trial, Elizabeth's
expert witness testified it was worth $2,000,000. Edward testified that he thought the land “clear-
cut” (or without timber) was worth $1,000,000. His timber expert valued the timber alone on the
Fifth Anniversary at $387,194.37. The jury was entitled to derive a different value within the
range established by the evidence. State Farm Fire & Cas. Co. v. Rodriguez, 88 S.W.3d 313,
321 (Tex.App.-San Antonio 2002, pet. denied) (“It is well-established that in resolving damages
issue, a jury's finding will be upheld if it is within the range of testimony regarding the amount of
damages incurred.”). We overrule Elizabeth's first issue.
With respect to the Campeon stock, Edward testified that the value was zero and the corporation
had no assets. He stated that Campeon's operations contract with a third party on the Divorce
Date precluded the corporation from making any profits and it was merely an shell entity he used
to bill actual expenses to the third party without any premium. As the owner of the stock, Edward
was able to offer his opinion of its value. Gulf States Util. Co. v. Low, 79 S.W.3d 561, 566 (Tex.
2002) (“It is well settled that a property owner may opine about the property's value.”) (citing
Porras v. Craig, 675 S.W.2d 503, 504 (Tex.1984)). Elizabeth's stock expert derived a different
value for the corporation and her testimony and appraisal were admitted. The jury, however, was
not required to adopt the expert's value. A jury is entitled to blend evidence admitted before it
and may believe all, some or none of a witness' testimony. State Farm Fire & Cas. Co., 88 S.W.
3d at 321.
In conducting our review of both the legal sufficiency of the evidence, we are mindful that the
jury, as fact-finder, was the sole judge of the credibility of the witnesses and the weight to be
given their testimony. Id.; Burns v. Burns, 116 S.W.3d 916, 920 (Tex.App.-Dallas 2003, no pet.).
We may not substitute our judgment for the fact-finder's, even if we would reach a different
answer on the evidence. State Farm Fire & Cas. Co., 88 S.W.3d at 321 (citing Maritime
Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998)). The evidence before the jury was
sufficient to support its finding. Accordingly, Elizabeth's second issue is overruled.
5.
Edward's Reimbursement Claim
The trial judge refused to reimburse “prior sums awarded as interim attorneys' fees to Elizabeth”
because they “effected a just and equitable division of the community income out of which they
were paid.” Although labeled attorneys' fees, the record reflects that the money Edward wants
reimbursed were proceeds from quarterly dividends of Nordasko stock issued to its shareholders
between the Fifth Anniversary and the Divorce Date. Edward admitted that the $64,000 at issue
only reflected two of sixteen quarterly dividends See Footnote 6 he received between the Fifth
Anniversary and the Divorce Date.
As dividends, these payments constituted income. Fischer-Stoker v. Stoker, 174 S.W.3d 272,
279 (Tex.App.-Houston[1st Dist.] 2005, pet.denied) (“[D]ividends paid on investments, whether
the investments are separate property or not, are income under Texas law and generally
community property”). Under Section XVIII of the Agreement, income “yielded by separate
property” paid after the Fifth Anniversary and before the Divorce Date is community property. As
such, the trial court has broad discretion to determine how to allocate the money. Penick v.
Penick, 783 S.W.2d 194, 198 (Tex. 1988); Hailey v. Hailey, 176 S.W.3d 374, 384 (Tex.App.-
Houston[1st Dist] 2004, no pet.) (trial court has broad discretion both in evaluating a claim for
reimbursement and making a just and proper division of the community). Further, as community
property, Edward has no right of reimbursement of funds identified as dividends because they
are already part of the community marital estate defined in Texas Family Code Section 3.401(4)
(A). Tex. Fam. Code Ann. § 3.401(4)(A) (Vernon 2006). We overrule Edward's fifth issue.
6.
Prejudgment Interest
The Second Decree awards Elizabeth “prejudgment interest, measured from [the Divorce Date]
at the rate of 8.25% per annum simple interest, in the sum of One Hundred Twenty Four
Thousand Five Hundred Seventy Nine and 12/100 Dollars ($124,579.12).” We review the trial
court's prejudgment interest award under an abuse of discretion standard. Wilmer-Hutchins
Indep. School Dist v. Smiley, 97 S.W.3d 702, 706 (Tex.App.-Dallas 2003, pet. denied). To
determine if there was an abuse of discretion, we must decide if the lower court acted without
reference to any guiding rules or principles. Downer, 701 S.W.2d at 241-42.
In his sixth issue, Edward contends that the award of prejudgment interest is wrong because
there was no ascertainable sum of money due and payable prior to entry of the Second Decree.
He characterizes Elizabeth's claim for prejudgment interest as one arising in equity and requiring
a specific pleading request. Elizabeth's pleading merely contains a general prayer for relief.
Elizabeth counters that the prejudgment interest results from her claim for a money judgment
under the Agreement, which both parties stipulated was valid and enforceable. See Footnote 7
It is undisputed that the Agreement does not provide for the recovery of prejudgment interest.
There are two separate bases for an award of prejudgment interest: an enabling statute, or
general principles of equity. Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.
2d 507 (Tex. 1998); Granite Const. Co. v. Mendoza, 816 S.W.2d 756 (Tex.App.-Dallas 1991, writ
denied). If Elizabeth's recovery is predicated on a statutory right, she is not required to plead a
claim for prejudgment interest. City of Houston v. Fletcher, 166 S.W.3d 479, 493 (Tex.App.-
Eastland 2005, pet.denied); Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 441 (Tex.App.-
Houston[1 Dist.] 2000, no pet.)(citing Benadividez v. Isles Const. Co., 726 S.W.2d 23, 25 (Tex.
1987)).
Until its repeal in 1997, Article 5069-1.06 of the Texas Revised Civil Statutes provided for
prejudgment interest in contract cases. Tex. Rev. Civ. Stat. Ann. Art. 5069-1.03 (Vernon 1987 &
Supp. 2007). The statute now governing prejudgment interest is the Texas Finance Code. Tex.
Fin. Code Ann. §§ 301.001-304.302 (Vernon 2006); de la Garza v. de la Garza, 185 S.W.3d
924, 927-29 (Tex. App.-Dallas 2006, no pet.). The Finance Code provides for the recovery of
prejudgment interest in cases involving extensions of credit, wrongful death, personal injury,
property damage or condemnation. Tex. Fin. Code Ann. §§ 302.002, 304.101, 304.201 (Vernon
2006). See Footnote 8
Statutory construction is a legal question we review de novo. City of Rockwall v. Hughes, 246 S.
W.3d 621 (Tex. 2008). In construing statutes, we ascertain and give effect to the Legislature's
intent as expressed by the language of the statute. Id. (citing State v. Shumake, 199 S.W.3d
279, 284 (Tex. 2006)). We use definitions prescribed by the Legislature. Id. (citing Tex. Gov't
Code Ann. § 311.011(b)(Vernon 2005)). Otherwise, we construe the statute's words according
to their plain and common meaning. Id. (citing Texas Dep't of Transp. v. City of Sunset Valley,
146 S.W.3d 637, 642 (Tex. 2004)).
Unlike its predecessor, Finance Code § 302.002 is silent on contract cases not involving
extensions of credit. Accordingly, we believe the provision does not apply to contracts where
there is no extension of credit. de la Garza, 185 S.W.3d at 927-29. While the Agreement
requires financial inventories and prescribes the characterization and division of property, its
terms do not contemplate any extensions of credit. Therefore, we conclude Section 302.002
does not provide Elizabeth with the means to recover prejudgment interest. Id.; Natural Gas
Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 413 (Tex.App.-Amarillo 2003, pet.
denied). Since this case does not involve claims for wrongful death, personal injury, property
damage or condemnation, Elizabeth cannot seek support from either Section 304.101 (providing
prejudgment interest in cases of wrongful death, personal injury or property damage) or Section
304.201 (providing prejudgment interest in condemnation proceedings).
Because we have determined that neither the Agreement nor any enabling statute provides for
Elizabeth to recover prejudgment interest, we now turn to common law to see if Elizabeth's
general prayer for relief will support the trial court's award. Courts do have the equitable power
to award prejudgment interest. Perry Roofing Co. v. Olcott, 744 S.W.2d 929 (Tex.1988); Rio
Grande Land & Title Co. v. Light, 758 S.W.2d 747 (Tex. 1988) (per curiam). However, where
prejudgment interest is sought at common law as an element of the damages, a plaintiff must
plead for it. Benavidez, 726 S.W.2d at 25 (citing Republic Nat. Bank v. Northwest Nat. Bank, 578
S.W.2d 109, 117 (Tex. 1978)). A prayer for general relief does not suffice. Id.; Vidor Walgreen
Pharm. v. Fisher, 728 S.W.2d 353 (Tex. 1987)(per curiam).
We conclude the trial court erred in awarding prejudgment interest to Elizabeth. We sustain
Edward's sixth issue.
Conclusion
We reverse the trial court's judgment insofar as it awards Elizabeth W. Bufkin prejudgment
interest, render judgment in favor of Edward O. Bufkin, Jr., and order that Elizabeth take nothing
against Edward for prejudgment interest. We affirm the remainder of the trial court's judgment.
MICHAEL J. O'NEILL
JUSTICE
061719F.P05
Footnote 1 Although not contained in Edward's first issue, his brief argues that, not only should the issues on
remand be limited, the case should also have been remanded to a specific visiting judge who presided over the
first trial. However, the case was properly remanded to the trial court where the sworn and elected judge,
Marilea Lewis, had authority to preside over the second trial. Davis v. Crist Indus., Inc., 98 S.W.3d 338 (Tex. App.
- Fort Worth 2003, pet. denied)(assignment of case to visiting judge does not give visiting judge exclusive
authority to try case); Starnes v. Chapman, 793 S.W.2d 104, 106-07 (Tex. App.- Dallas 1990, orig. proceeding)
(assigned judge did not continue to have authority to proceed once case was reversed and remanded unless
reassignment ordered). In addition, the record reflects that the visiting judge's assignment to the case was
canceled in an order relieving judge entered on March 16, 2005 - over nine months before trial.
Footnote 2 The June 1996 timber appraisal was later amended after a reduced appraisal process to include
values for the timber as of the Fifth Anniversary and the Divorce Date.
Footnote 3 “USPAP”. Section 858.726 of the Oklahoma Certified Real Estate Appraiser's Act specifically requires
Oklahoma appraisers to comply with USPAP. Okla.Stat.Ann. Tit. 59 § 858-726 (West 2000).
Footnote 4 Tex. Fam. Code Ann. § 7.001 (Vernon 2006).
Footnote 5 Motion for Decree on Jury Verdict and for Judgment N.O.V. Regarding the Amount of Northrim Bank
Debt and Valuation of Mountain Top Ranch filed by Edward on February 15, 2006.
Footnote 6 The record reflects that, during trial, the parties used the terms dividends and distributions
interchangeably.
Footnote 7 Elizabeth also contends that Edward waived his sixth issue by not objecting to the award of
prejudgment interest in the trial court. The record reflects that Edward did file a timely motion to modify the
judgment in which he objected to the award. Elizabeth did not plead for it and there was no discussion of it in
any hearing before entry of the Second Decree. Recovery of prejudgment interest is not even mentioned in
Elizabeth's post- verdict motion to enter judgment. Accordingly, we construe Elizabeth's argument to be Edward
was required to object before judgment was entered to a cause of action she did not raise. This contention
incorrectly assumes that the trial court can award relief a party has not requested. Bird v. Kornman, 152 S.W.3d
154,161, (Tex.App.-Dallas 2004, pet. denied) (“a trial court may not grant relief to a party in the absence of
pleadings to support that relief”)(citing Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.1983)); Stoner
v. Thompson, 578 S.W.2d 679, 682 (Tex.1979); Tex. R. Civ. P. 301 (judgment must conform to pleadings).
Footnote 8 The Finance Code does not apply to prejudgment interest recoverable for delinquent taxes or unpaid
child support which are governed by Chapter 33 of the Texas Tax Code, and Texas Family Code Section
157.265, respectively. Tex. Fin. Code Ann. §§ 304.301, 304.302 (Vernon 2006).
File Date[07/01/2008]
File Name[061719F]
File Locator[07/01/2008-061719F]