Court of Appeals of Texas, Twelfth District, Tyler
from the 294th District Court of Van Zandt County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. WORTHEN, CHIEF JUSTICE.
Appellant Jaime Alexandra Etheridge's motion for
rehearing. We deny Appellees Eric Scott Opitz, Scott Opitz,
and Diane Opitz's motion for rehearing. On the
court's own motion, we withdraw our opinion issued March
29, 2019 and vacate our judgment of that date. The following
is now the opinion of this court.
Alexandra Etheridge appeals from the trial court's
judgment in her suit against Eric Scott Opitz, Scott Opitz,
and Diane Opitz for post-divorce division of property and for
partition. 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.
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.
2014, Jaime filed suit against Eric for post-divorce division
of property alleging that the divorce decree did not divide
six 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 of those tracts of land jointly with Scott
and Diane. Additionally, she sought partition of the three
tracts purchased by all four parties.
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
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.
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).
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.
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.
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.
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
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.
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.
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.
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 questions
under an abuse of discretion standard. Toles v.
Toles, 45 S.W.3d 252, 263 (Tex. App.-Dallas 2001, pet.
jury charge included the text of business organizations code
Section 152.102 as follows:
(a) Property is partnership property if acquired in the name
(1) the partnership; or
(2) one or more partners, regardless of whether the name of
the partnership is indicated, if the instrument transferring