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Miller v. McNiel

Court of Appeals of Texas, Eighth District, El Paso

March 31, 2005

DOUG MILLER AND MILLER CATTLE COMPANY, Appellants
v.
JIMMY D. MCNIEL, VERA SELLERS, AND NIVERADO JAVALERA, Appellees.

          Appeal from the 143rd District Court of Reeves County, Texas (TC#02-08-17433-CVR)

          Before Panel No. 3 Barajas, C.J., Larsen, and Chew, JJ.

          OPINION

          RICHARD BARAJAS, CHIEF JUSTICE

         This is an appeal from the decision of the trial court entering a final judgment finding that one Appellee [1], is entitled to judgment. For the reasons stated, we affirm the judgment of the trial court.

         I. SUMMARY OF THE EVIDENCE

         This dispute involves responsibility for errors made during a business transaction for the purchase of cattle. Appellant Miller is a rancher who purchases and sells cattle on a frequent basis. During calendar year 2001, he purchased several thousand head of cattle from Appellee Jimmy D. McNiel who functioned as a middle man for a Mexican national, Niverado Javalera, who delivered the cattle to the United States border. In January 2002, Appellee informed Appellant that due to Appellee's inability to advance funds to the Mexican seller, he would no longer be able to sell cattle to Appellant. Appellant proposed a new financial arrangement agreeing to purchase the cattle directly from Mr. Javalera and agreeing to make certain payments in advance as front money for the cattle sales. Appellant and Appellee had a side agreement whereby Appellant agreed to sell some of the Mexican cattle to Appellee for a predetermined price. None of the agreements were in writing.

         Vera Sellers, Appellee's employee, had prepared invoices for payment for the cattle sold by Appellee to Appellant under the 2001 arrangement. Appellant and Appellee agreed to allow Vera Sellers, Appellee's employee, to prepare the daily invoices for the various transactions which were then faxed to Appellant for payment in the same manner as Vera Sellers had been handling the invoices in the past. Sometime during February or March of 2002, the parties agreed that they would split the cost of Vera Sellers's salary. On March 18, 2002, Vera Sellers prepared an invoice reflecting the purchase of 96 head of cattle by Appellant. The invoice was faxed to Appellant in the routine manner. On March 19, 2002, Vera Sellers prepared another invoice for 312 head of cattle which inadvertently included a duplicate billing for the 96 head of cattle billed in the March 18, 2002 invoice. The error in the invoice, resulted in an overpayment to Niverado Javalera in the amount of $32, 935.34.

         The procedure established by the parties provided that backup information, which consisted of brokerage sheets and sorting sheets, for the invoices would be faxed by Appellee to Vera Sellers at the end of each day. Vera Sellers would prepare an invoice and fax it to Mrs. Miller and also fax a copy back to Appellee's fax machine. Appellant would pick up the invoice at Appellee's office and meet with Javalera. Some payment of funds was made on a daily basis though the record does not clearly describe the procedure followed nor does it describe the details for determining the amount to be paid. Appellant apparently had a very complicated arrangement with Mr. Javalera which required that Appellant pay for some additional costs as well as advance funds for the cattle actually delivered. Neither Appellee nor Ms. Sellers received the proceeds from the sale of the 96 head of cattle, those funds were paid directly to Niverado Javalera. The parties speculate that back-up information for the 96 head of cattle in dispute was faxed on two consecutive days resulting in the fee for the 96 head of cattle being invoiced twice. The invoiced amount was included in a payment to Niverado Javalera in the amount of four hundred two thousand six hundred forty-seven dollars and fifty cents.

         After trial to the court, the judge entered a judgment finding that the Appellant had non-suited Vera Sellers, that Appellant should take nothing from Appellee and finding against Niverado Javalera in the amount of $32, 935.34. The Appellant appeals from this judgment asserting five issues on review.

         II. DISCUSSION

         In five issues on review, Appellant complains of the findings of fact and conclusions of law found and filed by the trial court below. Issue Nos. One and Two complain that the trial court erred in finding that there was no evidence or insufficient evidence that "Appellee was negligent in regard to any duty he owed Appellant which proximately caused any Damage to Appellant." Issue No. Three complains that the trial court erred because there is "no evidence or insufficient evidence to support Trial Court's finding that Appellant was negligent and such negligence proximately caused Appellant's Damages [sic]." Issue No. Four complains that the trial court erred because there is "no evidence or insufficient evidence to support Trial Court's finding that Vera Sellers was negligent and such negligence proximately caused Appellant's Damages [sic]." In Issue No. Five, Appellant complains that the trial court erred in denying the request for additional findings of fact and conclusions of law.

         A "no evidence" or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are two separate "no evidence" claims. When the party having the burden of proof suffers an unfavorable finding, [2] the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as "a matter of law." When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of "no evidence to support the finding." In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.--El Paso 1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210 (Tex.App.--Fort Worth 1987, writ ref'd n.r.e.).

         When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court's finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. In re Estate of Livingston, 999 S.W.2d at 879; Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989); Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.--El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.--El Paso 1992, writ denied). A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879-80; Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832.

         In reviewing a factual sufficiency point of error, the appeals court must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Findings of fact may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. In that event, the appeals court must state clearly why the finding ...


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