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Etheridge v. Opitz

Court of Appeals of Texas, Twelfth District, Tyler

March 29, 2019

JAIME ALEXANDRA ETHERIDGE, APPELLANT
v.
ERIC SCOTT OPITZ, SCOTT OPITZ AND DIANE OPITZ, APPELLEES

          APPEAL FROM THE 294TH JUDICIAL DISTRICT COURT VAN ZANDT COUNTY, TEXAS (TR.CT.NO. 14-00171)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          OPINION

          JAMES T. WORTHEN CHIEF JUSTICE.

         Jaime Alexandra Etheridge appeals from the trial court's judgment in her suit against Eric Scott Opitz for post-divorce division of property and her suit for partition against Scott Opitz and Diane Opitz. In six issues, she complains that the evidence is insufficient to support the jury findings, and the trial court erred in allowing the case to be tried on an unpled theory, admitting certain expert testimony, submitting a jury instruction regarding partnership property, and including in the judgment a recitation that it serves as a muniment of title. We reverse in part and modify and affirm in part.

         Background

         Eric and Jaime married in November 2000 and divorced in October 2010. The divorce decree awarded the parties' residence to Eric and ordered that Eric shall pay the balance due on the promissory note on the property. The decree specifically divested Jaime of any interest in the parties' residence. The decree awarded Eric the community interest in the business known as Summit Dairy, including furniture, fixtures, machinery, equipment, and personal property used in connection with the operation of the business, and all rights and privileges arising out of or in connection with the operation of the business. The decree awarded Jaime $50, 000 for "her community interest in the marital residence and in the business known as Summit Dairy . . . ." The decree also ordered that Eric shall pay any and all debts associated with Summit Dairy and he must remove Jaime's name from any Summit Dairy debt.

         In 2014, Jaime filed suit against Eric for post-divorce division of property alleging that the divorce decree did not divide three tracts of land the couple purchased during their marriage. She also named Eric's parents, Scott and Diane Opitz, as third-party respondents, alleging that she and Eric purchased three additional tracts of land jointly with Scott and Diane. She sought partition of these three tracts.

         After a jury trial, the trial court rendered judgment that Jaime take nothing and that the judgment shall serve as a muniment of title of all property awarded to Eric, Scott, and Diane. This appeal followed.

         Unpled Theory

         In her first issue, Jamie contends the trial court erred in allowing Eric, Scott, and Diane to present their case to the jury based on a new, unpled theory that the property was owned by the Summit Dairy partnership. She asserts that rule of civil procedure 93(2) requires a verified pleading that Jaime held an interest in the property in the capacity of partner. Additionally, she argues that Rule 93(4) requires a verified plea because their assertion that the partnership owns the properties is a claim that there is a defect in parties. For these same reasons, in her fifth issue, Jamie asserts that the trial court erred by rendering a judgment that does not conform to the pleadings.

         Texas Rule of Civil Procedure 93 requires that a pleading asserting that a plaintiff is not entitled to recover in the capacity in which she sues or that the defendant is not liable in the capacity in which he is sued must be verified by affidavit. Tex.R.Civ.P. 93(2). The issue of capacity "is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate." Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005). A party has capacity to participate in a lawsuit when he has the legal authority to act. Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). Rule 93 also requires a verified affidavit accompanying a pleading that asserts that there is a defect in parties. Tex.R.Civ.P. 93(4).

         Rule 93 is inapplicable here. Eric, Scott, and Diane have not argued that any of the parties lack legal authority to act. Neither are they arguing that there is a defect in parties. They are propounding the theory that the properties belong to the partnership pursuant to partnership law. See Tex. Bus. Orgs. Code Ann. § 152.102 (West 2012). They do not need a verified pleading to argue application of partnership law. We overrule Jaime's first and fifth issues.

         Admissibility of Evidence

         In her fourth issue, Jaime contends the trial court abused its discretion by admitting testimony of Paul Anema. She complains that Eric, Scott, and Diane did not timely identify Anema as a witness in response to a request for disclosure and failed to include his name on the designation of witnesses that was filed with the court. Her complaint centers on his testimony concerning the source of funds used to purchase the properties at issue.

         The inclusion and exclusion of evidence is committed to the sound discretion of the trial court. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). The trial court abuses its discretion only when it acts without reference to any guiding rules or principles. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). Even if the trial court errs in admitting evidence, such error requires reversal only if it probably caused the rendition of an improper judgment. See GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999). An erroneous admission is harmless if it is cumulative of other evidence. Id.

         On the first day of the trial, Jaime testified that she wrote the checks to pay for the land out of Summit Dairy's account. Additionally, Eric testified that Summit Dairy pays for the land and it belongs to Summit Dairy. He explained that the down payments and the monthly payments for the tracts of land at issue were made with Summit Dairy partnership funds. He stated that everything that was purchased was purchased for Summit Dairy. He later reiterated that Summit Dairy owns all of the property and pays the taxes, insurance, and maintenance costs. He testified that neither he nor Jaime ever wrote a personal check to pay for anything on that property.

         On the second day of the trial, Anema, an accountant who prepared the tax returns for Summit Dairy, Eric, and Jaime, testified that Summit Dairy made payments on all of the properties at issue. He stated that Eric and Jaime never reported to him that they made any payments on anything associated with Summit Dairy. He also testified that Summit Dairy owns all of the property at issue.

         Accordingly, even assuming the trial court erred in admitting Anema's testimony, it was cumulative of previously admitted evidence showing that the partnership paid for the land. Therefore, its admission was harmless. See id. We overrule Jaime's fourth issue.

          Jury Instruction

         In her third issue, Jaime contends the trial court erred in submitting a jury instruction on Texas Business Organizations Code Section 152.102 regarding classification of property as partnership property. She argues that the instruction was not supported by the pleadings or relevant to the issues being tried. She also asserts it did not aid the jury in answering the questions and instead misled the jury.

         The trial court shall submit instructions and definitions to the jury that are necessary to enable the jury to render a verdict. Tex.R.Civ.P. 277. An instruction is proper if it finds support in any evidence of probative value and if it might be of some assistance to the jury in answering the questions submitted. La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998) (per curiam). We review the trial court's submission of instructions and jury ...


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