Ricardo Acevedo and Janet Acevedo v. Josephine Stiles--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00077-CV
Ricardo ACEVEDO and Janet Acevedo,
Appellants
v.
Josephine STILES,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CI-16270
Honorable Martha Tanner, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 7, 2003

AFFIRMED

Josephine Stiles is an elderly stroke victim who needed assistance caring for herself andher house. She sought Ricardo Acevedo's legal services to transfer title to her home to a healthcare worker in exchange for services. Instead of the transfer Stiles planned, Acevedo had Stiles sign a power of attorney; and title to Stiles' home was transferred to Ricardo's wife and legal assistant, Janet Acevedo. Stiles did not receive the care she needed from Janet and was forced to leave her home. She subsequently sued Ricardo and Janet Acevedo for, inter alia, breach of fiduciary duty. The jury found the Acevedos both breached their fiduciary duties to Stiles and awarded $40,000 in damages. In addition to awarding Stiles the $40,000 in damages, the trial court's judgment ordered that the warranty deed conveying the property to Janet Acevedo be set aside and declared void, a quitclaim deed Stiles had signed in favor of Janet Acevedo also be set aside, title quieted in Stiles against the Acevedos, and the Acevedos to vacate the property. We affirm.

1. In Ricardo's third, fourth, and fifth issues, he complains that the evidence is insufficient to establish an injury or support the jury's damages finding; and the trial court erred in failing to suggest a remittitur. Janet joins in Ricardo's third and fourth issues and, in her second issue, argues there is no evidence she owed Stiles a fiduciary duty. However, appellate review of these complaints requires resort to a reporter's record; and we have none because neither of the Acevedos paid or made arrangements to pay for it and, as we have previously ruled, the Acevedos are not entitled to appeal without paying the fee. See Tex. R. App. P. 35.3(3). (1) We therefore decline to consider the Acevedos' evidentiary complaints. See Tex. R. App. P. 37.3(c).

2. In Janet's third issue, she argues the trial court erred in awarding both damages and rescission because the two are mutually exclusive. We disagree. If both rescission and damages are essential to accomplish full justice, they may both be awarded. See Smith v. National Resort Communities, 585 S.W.2d 655, 660 (Tex. 1979); Atkins v. Beasley, 544 S.W.2d 505, 507 (Tex. Civ. App.-Waco 1976, no writ).

3. In her fourth issue, Janet argues the trial court erred in awarding Stiles a writ of possession, because Texas Rule of Civil Procedure 310 authorizes a writ of possession only in foreclosure suits; and either no foreclosure took place or, if it did, the Acevedos were not notified.

We again disagree. A writ of possession is nothing more than a "[w]rit of execution employed to enforce a judgment to recover the possession of land. It commands the sheriff to enter the land and give possession of it to the person entitled under the judgment." Black's Law Dictionary 1444 (West 1979). The writ was appropriate in this case because the Acevedos failed to supersede the trial court's judgment awarding Stiles' home to her.

4. In Ricardo's first issue, which Janet joins, he argues the trial court's judgment is not final because it fails to dispose of his counterclaims. We disagree. The judgment followed a conventional trial on the merits and contains a Mother Hubbard clause. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204 (Tex. 2001); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).

5. In Ricardo's second issue, which Janet also joins, he argues that, because the trial court deprived him of property without notice or an opportunity to be heard, he is entitled to proceed by a restricted appeal. We again disagree. Ricardo may not proceed by a restricted appeal, because he participated at trial. See Tex. R. App. P. 30.

6. In his sixth issue, Ricardo, joined by Janet, argues that Stiles' "post-verdict action" for rescission is barred by res judicata (claim preclusion), waiver, and "the 'clean hands' doctrine" because Stiles failed to present the claim to the jury. We disagree. Stiles' pleadings sought both damages and equitable relief as remedies for the Acevedos' breaches of fiduciary duty. The trial court correctly submitted the contested fact issues to the jury and considered the propriety of equitable relief after the verdict was returned. See Burrows v. Arce, 997 S.W.2d 229, 245-46 (Tex. 1999).

7. In his seventh issue, Ricardo argues that Stiles' allegations are for legal malpractice. We disagree. Stiles pleaded, proved, and submitted a breach of fiduciary duty claim. See, e.g., Burrows v. Arce, 997 S.W.2d 229 (Tex. 1999).

The judgment is affirmed.

Sarah B. Duncan, Justice

1. In her first issue, Janet argues this court erred in denying her right to proceed without payment. We disagree, as set forth in our earlier orders.