COMMERCIAL TECHNOLOGY, INC.,FROM A DISTRICT COURT APPELLANT, v. OF CADDO CAPITAL CORPORATION, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00950-CV
COMMERCIAL TECHNOLOGY, INC.,FROM A DISTRICT COURT
 
        APPELLANT,
 
v. OF
 
CADDO CAPITAL CORPORATION,
 
        APPELLEE. DALLAS COUNTY, TEXAS
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE LAGARDE
JUNE 23, 1989
        Commercial Technology, Inc. (ComTech) appeals from the trial court's judgment in favor of Caddo Capital Corporation (Caddo) following a trial before the court. Based on ComTech's default as guarantor on a promissory note, the trial court awarded Caddo damages in the amount of $105,000. In four points of error, ComTech asserts that: (1) there was a failure of consideration for the endorsement of the promissory note; (2) and (3) Caddo's actions constituted fraud; and (4) a directors' resolution and shareholder's resolution did not constitute a valid and complete assignment of a patent. We affirm.
 
Facts
        At the outset, we point out that ComTech failed to request findings of fact and conclusions of law from the trial court. Nevertheless, the record shows that this case revolves around the invention of a helicopter, and the ownership of the patent for that invention. Before setting out the specific facts in the record, it is helpful to summarize ComTech's assertions on appeal. ComTech claims that: (a) the agreement which it guaranteed provided that Caddo owned and would assign the helicopter patent; (b) the failure to assign the patent constituted a failure of consideration; and (c) Caddo's misrepresentation that it owned the patent constituted fraud.
        Between 1980 and 1981, before ComTech ever became involved with the helicopter and its patent, Caddo, a business investment corporation, loaned a total of $150,000 to Aerospace General Company (AGC). The president of AGC, Gilbert Magill, was the inventor of the helicopter, and he guaranteed payment of the $150,000 owed to Caddo. The terms of the agreement entered into by Caddo and AGC were contained in a document entitled "SECURITY AND LOAN AGREEMENT." On the second page of this document, AGC agreed to pledge the patent rights that it owned in the helicopter to secure the note to Caddo. In conjunction with this agreement, on June 22, 1981, Caddo and AGC also executed a document entitled "SUBORDINATE PLEDGE OF PATENTS." This document was subsequently recorded with the United States Patent and Trademark Office. The subordinate pledge of patents states that the agreed effect of the document is to give Caddo a security interest in the helicopter patent and future related patents. It specifically states that it does not transfer any ownership interest in the patents and future patents to Caddo. The document also goes on to state that AGC will retain the exclusive right to use, assign, or sell the patents and future patents.
        Eventually, AGC failed to meet its obligations under its agreement with Caddo; Caddo then brought suit and obtained a judgment against AGC for $100,000 and a judgment against Magill for $50,000. Sometime in 1984 or 1985, after Caddo had obtained the judgments against AGC and Magill, a man named Eike Mueller apparently approached both AGC and Caddo seeking to purchase the note and judgments from Caddo, as well as AGC's rights, title, and interest in the patent.
        Subsequently, on June 14, 1985, Caddo and Mueller entered into a contract whereby Caddo agreed to assign its right, title, and interest in the note and in the judgments against AGC and Magill. The contract did not mention an assignment of any patent rights; indeed, the contract specifically recognized that the note and judgment were merely secured by the patent rights. The relevant part of the agreement reads:
        Whereas, Mueller is desirous of purchasing the Note and Judgement from Caddo for the sum of $200,000.
 
        In consideration of the following terms and conditions, it is agreed:
 
        1.        Caddo hereby agrees to grant, bargain, convey and assign to Mueller and/or his nominee, without warranty or recourse, all of Caddo's right, title, & interest in the Note and Judgement for the sum of $200,000 payable as hereinafter provided in Paragraph 2.
 
        2.        The purchase price shall be payable as follows:
 
                A. The sum of $5,000 cash upon execution of this agreement, receipt of which is hereby acknowledged by Caddo.
 
                B. The sum of $45,000 cash on or before August 15, 1985.
 
                C. The balance of $150,000 in Mueller's and/or his nominee's promissory note due and payable in quarterly installments of $15,000 each beginning December 31, 1985, bearing 12% interest from date of execution, which shall not be later than August 15, 1985, and secured by a letter of credit in form and substance and from a bank acceptable by Caddo.
 
                D. In the event Mueller does not timely satisfy requirements B. & C. above. Caddo shall retain the $5,000 cash payment provided for in A. above as liquidated damages and this Agreement shall become null and void.
As this excerpt reveals, as a condition precedent, Mueller had to obtain a letter of credit. However, in lieu of a letter of credit, Caddo allowed Mueller to substitute a guarantee from ComTech. At approximately the same time, ComTech obtained an apparent assignment from AGC for their rights, title, and interest in the helicopter patent. FN:1 In exchange for this apparent assignment, ComTech agreed to pay off AGC's debts to Caddo and to provide AGC with certain other benefits.
        In regard to guaranteeing Mueller's $150,000 promissory note to Caddo, ComTech sent a letter to Caddo on August 1, 1985. The letter stated, in part:
        Upon your acceptance of the terms and conditions set forth hereinabove and the delivery to you of the $45,000 cash and $150,000 Eike Mueller Promissory Note, all assets, including but not limited to, the U.S. Patent #4,473,199, drawings, design, documents, component parts, and hardware, related to Aerospace General Corporation shall be released to Mr. Eike Mueller and/or CAI and Caddo further agrees to assign to Eike Mueller and/or CAI all right, title and interest to the notes, guarantees and judgment regarding Aerospace General Corporation held by Caddo, as per Caddo Capital Corporation Date Aug. 2, 1985, addressed to you.
(Emphasis added.) The ending phrase "as per Caddo Capital Corporation Date Aug. 2, 1985, addressed to you" appears by interlineation and is initialed TLY.
        On August 9, 1985, Caddo received another letter from ComTech requesting only an assignment of the Magill and AGC judgments, not an assignment of the patent. Attached to this letter was ComTech's August 1 letter and a promissory note from Mueller to Caddo dated August 2, 1985. The note is signed by Eike Mueller and endorsed by S. Mort Zimmerman as ComTech's Chairman of the Board. Pursuant to ComTech's request, Caddo transferred the judgments to Eike Mueller as provided in ComTech's August 1 letter and the initial agreement with Mueller.
        An October 22, 1985 letter from ComTech to Caddo stated:
        We would appreciate your sending to us the original U.S. Patent issued and then assigned to Aerospace General. We would also appreciate your office contacting the law firm of McCollister, McLeary, Fazio, Mixon, Holliday & Hicks, who may still have the U.S. Patent 4,071,206 and the Patent Applications the "Rocket Powered System" and the "Monotrol Control System."
(Emphasis added.) The important thing to notice in regard to this letter is that it refers to the U.S. patent issued and assigned to AGC and does not refer to any patent assigned to Caddo. Caddo responded to this request by sending ComTech the original patent assigned to AGC.
        From August 1985 until August 1986, Caddo received payments on the promissory note from ComTech. In August 1986, ComTech assigned all of its interest in the helicopter patent to Liteco Limited, a Swiss corporation. One month after the assignment, ComTech informed Caddo, by letter, that it was going to withhold payment to Caddo because ComTech believed it had been defrauded by Eike Mueller. Unsuccessful in its efforts to obtain payment from ComTech, Caddo sued ComTech as guarantor of Eike Mueller's promissory note. In an unverified pleading at trial, ComTech asserted a defense of failure of consideration and brought a counterclaim for what appears to be conspiracy to defraud.
        Thomas L. Young, president of Caddo, testified that Caddo had perfected a security interest in the patent but had never owned the patent. Young stated that the only thing that he had ever told anyone was that Caddo had a security interest in the patent. He further stated that he had never attempted to sell anything more than a security interest in the patent, had never had the patent transferred into Caddo's name, and had never had, nor represented that he had, the patent.
        Mort Zimmerman, president of ComTech, testified on direct examination that Young represented that Caddo owned the patent and that Young's claim to own the patent was a misrepresentation. Zimmerman also claimed that Young agreed to assign or convey the patent to ComTech. Despite Zimmerman's initial assertions, he admitted during cross-examination that, prior to signing the guaranty agreement with Caddo, he had examined: (1) the security and loan agreement between AGC and Caddo stating that Caddo only held a security interest in the patent; (2) the subordinate pledge of patents that only gave Caddo a security interest in the patent; (3) the patent which stated on its face that it was assigned to AGC and not Caddo; and (4) the June 14, 1985 agreement FN:2 between Mueller and Caddo that set out the fact that the note and judgments were merely secured by the patent and stated that Caddo would only assign its right, title, and interest in the note and judgments. During cross-examination of Zimmerman, it was also established that Zimmerman had stated in his deposition that the only representations that were made by Caddo to ComTech were those contained in the documents detailed above. FN:3 Moreover, Zimmerman admitted that Caddo had never refused to sign anything requested by ComTech; nevertheless, the record contains nothing which indicates that ComTech ever requested that Caddo execute an assignment or transfer to ComTech of any right, title, or interest that it owned in the patent.
         Finally, the trial court elicited the following responses from Zimmerman:
        THE COURT:        When did you find out that the patent was assigned to Eike Mueller?
 
        A.        Assigned to Eike Mueller?
 
        THE COURT:        Yes?
 
        A.        When did I find out?
 
        THE COURT:        Yes?
 
        A.        At the time that we loaned and assigned our guarantee, Mr. Mueller stated that the Patent was assigned to him, and then we signed a separate agreement with him.
Zimmerman admitted that Mueller claimed to own the patent at the time ComTech guaranteed Mueller's promissory note to Caddo. Therefore, ComTech's assertion that it was guaranteeing the promissory note in exchange for Caddo's transfer of its ownership of the patent appears inconsistent. With these facts in mind, we now address Comtech's four points of error.
Failure of Consideration
        In ComTech's first point of error, it claims that there was a failure of consideration for the promissory note. It is a well-settled principle of law that the affirmative defense of failure of consideration must be asserted in a verified pleading. TEX. R. CIV. P. 93. See also Holland v. First Nat'l Bank, 597 S.W.2d 406, 410 (Tex. Civ. App.--Dallas 1980, writ dism'd). ComTech apparently overlooked this rule, and, at trial, Caddo objected to ComTech's unverified pleading. FN:4 The trial court sustained the objection, and ComTech then requested to amend its pleadings. Caddo claimed surprise, stating that a continuance would cause undue hardship on its witnesses. The trial court deferred its ruling. Caddo put on its case in chief, and, when ComTech began to put on its case, Caddo urged the trial court to rule on ComTech's request for a trial amendment. Once again, the trial court deferred ruling. Caddo then objected each time ComTech introduced evidence that appeared to support the claim of failure of consideration. After ComTech had put on the majority of its case, the trial court granted ComTech leave to amend. Nevertheless, ComTech failed to file its "First Amended Answer and Counterclaim" FN:5 until July 20, 1988 --thirty-four days after the trial court granted leave for ComTech to amend, and twenty-nine days after final judgment. FN:6
        A trial amendment may be allowed after verdict and before judgment, but a trial amendment cannot be allowed after judgment. See Santa Rosa Medical Center v. Robinson, 560 S.W.2d 751, 759 (Tex. Civ. App.--San Antonio 1977, no writ); see also American Produce & Vegetable Co. v. J. D. Campisi's Italian Restaurant, 533 S.W.2d 380, 386 (Tex. Civ. App.--Tyler 1975, writ ref'd n.r.e.); Milam v. Cooper Co., 258 S.W.2d 953, 958 (Tex. Civ. App.--Waco 1953, writ ref'd n.r.e.). Consequently, because the pleadings before the trial court were not verified and because ComTech failed to file a verified trial amendment prior to judgment, there is no verified pleading properly before this Court. We hold, therefore, that the defense of lack of consideration is not raised. See Holland, 597 S.W.2d at 410.
        Even if we were to assume that failure of consideration is properly before this Court for review, the evidence is factually and legally sufficient to support the trial court's implied finding that the promissory note was supported by consideration. FN:7 In addressing factual and legal sufficiency of the evidence in a nonjury trial where no findings of fact or conclusions of law were filed or requested, we must imply that the trial court made all necessary findings to support its judgment; the implied findings may then be challenged by legal and factual sufficiency points in the same manner as jury findings and trial court findings of fact. See Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980); Mahan v. Davers, 730 S.W.2d 467, 468 (Tex. App.--Fort Worth 1987, no writ). Cf. 1st Coppell Bank v. Smith, 742 S.W.2d 454, 458 (Tex. App.--Dallas 1987, no writ)(does not involve implied findings).
Legal Sufficiency
        ComTech had the burden of proof on the affirmative defense of failure of consideration. See Wright v. Robert & St. John Motor Co., 122 Tex. 278, 58 S.W.2d 67, 69 (1933); Holland v. First Nat'l Bank, 597 S.W.2d at 410. Because ComTech had the burden to prove failure of consideration, a legal sufficiency point on appeal should be styled as a "matter of law" point. See Pulaski Bank and Trust Co. v. Texas Am. Bank, 759 S.W.2d 723, 731-32 (Tex. App.--Dallas 1988, writ filed). When a "matter of law" point is raised, we must first examine evidence in support of the trial court's findings and ignore any evidence to the contrary. Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982); Pulaski, 759 S.W.2d at 732. If there is no evidence to support the fact finder's answer, we must then review the entire record to see if the contrary is established as a matter of law. Pulaski, 759 S.W.2d at 732; see also Holley, 629 S.W.2d at 696. In the final analysis, if any evidence of probative force supports the trial court's adverse finding, then ComTech's legal sufficiency challenge must fail. See Holley, 629 S.W.2d at 697.
        ComTech claims that there was a failure of consideration because Caddo failed to convey the helicopter patent to ComTech, as it had agreed to do. However, there is overwhelming evidence that Caddo never contracted, agreed, or stated that it would assign the patent to Eike Mueller, ComTech, or any of ComTech's related companies. The initial agreement between Mueller and Caddo called for the assignment of only the note and judgments and made no mention of any conveyance or assignment of patent rights. According to the undisputed testimony of Caddo's president, the note and judgments were assigned and sent to Mueller as required by the agreements entered into by the parties. Furthermore, if ComTech really believed that Caddo owned the patent and was agreeing to convey the patent to ComTech, it seems inconsistent that ComTech required AGC or Mueller to execute assignments of their right, title, and interest in the patent to ComTech without also requiring Caddo to do the same. Furthermore, ComTech asked Caddo to execute an assignment of the note and judgments but never asked Caddo to execute an assignment of the patent. Caddo's president unequivocally stated that it agreed to assign only the note and judgments and never stated that it owned the patent or would assign the patent to ComTech.
        ComTech points to the language below from the letter agreement sent to Caddo as establishing that Caddo agreed to convey ownership of the patent to ComTech.
    [A]ll assets, including but not limited to, the U.S. Patent #4,473,199, drawings, design, documents, component parts, and hardware, relating to Aerospace General Corporation shall be released to Mr. Eike Mueller and/or CAI . . . Caddo further agrees to assign to Eike Mueller and/or CAI all right, title and interest to the notes, guarantees and judgment . . . .
Release means, "The relinquishment, concession, or giving up of a right, claim or privilege, by the person in whom it exists or accrues, to the person against whom it might have been demanded or enforced." BLACK'S LAW DICTIONARY 1159 (5th ed. 1979) (emphasis added). Applying this definition, it is clear that Caddo only agreed to release whatever right, claim, or privilege it had in the patent--Caddo did not agree to convey ownership, nor can it reasonably be inferred from this language that Caddo claimed ownership. If, indeed, ComTech believed that Caddo owned the patent and agreed to convey it, ComTech's letter would have listed the patent with the other items to be assigned to Eike Mueller and/or CAI. FN:8 Based on the facts set out above, we conclude there is ample evidence to support the trial court's implied finding that the promissory note was supported by consideration.
Factual Insufficiency
        As previously noted, ComTech had the burden to plead and prove failure of consideration. If the complaining party attacks the factual sufficiency of the evidence in support of a finding for which he had the burden of proof, he should bring an "against the great weight and preponderance of the evidence" point of error. Cornelius, Appellate Review of Sufficiency of the Evidence Challenges in Civil and Criminal Cases, 46 TEX. B.J. 439, 441 (1983) [hereinafter Cornelius]. A great weight and preponderance point requires a consideration of all the evidence, both that tending to prove and that tending to disprove the fact. RRTM Restaurant Corp. v. Keeping, 766 S.W.2d 804, 807 (Tex. App.--Dallas 1989, writ filed). This Court may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Based on the evidence as previously set out, we cannot conclude that the verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust; an appellate court may not pass upon the credibility of witnesses or substitute its judgment for that of the trier of fact. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). For these reasons, we overrule ComTech's first point of error.
Fraud Defense
        In its second and third points of error, Comtech alleges that Caddo committed fraud by misrepresenting that: (1) Caddo had foreclosed on and owned the patent; and (2) Caddo would release the patent, drawings, design documents, component parts, and hardware upon endorsement of the promissory note. As with the first point of error, we must address a preliminary question as to whether the defense of fraud was affirmatively plead as required by rule 94 of the Texas Rules of Civil Procedure. FN:9 Caddo has not raised this issue; therefore, we do not address it.
        However, assuming arguendo that the affirmative defense of fraud is properly before this Court, we hold that the evidence was sufficient to support the trial court's finding that there was no fraud. Fraud, at least as asserted in this appeal, is an affirmative defense, and the burden is on the asserting party to prove all the elements of the defense. Neuhaus v. Kain, 557 S.W.2d 125, 136 (Tex. Civ. App.--Corpus Christi 1977, writ ref'd n.r.e.); see also Albritton v. Henry S. Miller Co., 608 S.W.2d 693, 695 (Tex. Civ. App.--Dallas 1980, writ ref'd n.r.e.); Rich v. McMullan, 506 S.W.2d 745, 549 (Tex. Civ. App.--San Antonio 1974, writ ref'd n.r.e.). In order to prove the affirmative defense of fraud, ComTech must prove the following elements:
        (1)    a material misrepresentation was made;
 
        (2)    the speaker knew that the misrepresentation was made or made it recklessly without any knowledge of its truth;
 
        (3)    the speaker made the representation with the intention that it should be acted on;
 
        (4)    the party acted in reliance upon the representation, and the party thereby suffered injury.
Neuhaus, 557 S.W.2d at 125, 136. See Albritton, 608 S.W.2d at 695. We reiterate that no findings of fact or conclusions of law were filed or requested in this case; consequently, it is implied that the trial court made all necessary findings to support its judgment. See Burnett, 610 S.W.2d at 736; Mahan, 730 S.W.2d at 468. The implied findings may be challenged by legal and factual sufficiency points of error in the same manner as jury findings and trial court findings of fact. See Burnett, 610 S.W.2d at 736; Mahan, 730 S.W.2d at 468. ComTech did not specifically raise legal or factual insufficiency in its second and third points of error; however, we construe ComTech's challenge to the trial court's implied finding of fact that there was no fraud as, in essence, raising those issues. Consequently, we will address these points as if they raised both factual and legal sufficiency.
Legal Sufficiency
        As with the affirmative defense of failure of consideration, ComTech had the burden to prove the affirmative defense of fraud. See Neuhaus, 557 S.W.2d at 136. Therefore, in reviewing the legal sufficiency, we will apply to the facts below the same standard set out under the failure of consideration section.
        Caddo's president stated that Caddo had never claimed that it had foreclosed on the patent and, as a result, owned the patent. Additionally, while ComTech asked AGC and Mueller to assign their right, title, and interest in the patent to ComTech, ComTech never asked Caddo to assign any right, title, or interest in the patent. ComTech only asked Caddo to agree to release any rights that it may have had in the patent. This action is wholly consistent with the interest that Caddo claimed to have in the patent (i.e., a security interest). Furthermore, the fact that ComTech executed an assignment of the patent to a Swiss corporation the month before it defaulted on the note to Caddo, without ever asking for or receiving an assignment of the patent from Caddo, indicates that ComTech believed that it, not Caddo, owned the patent rights. Finally, prior to guaranteeing the promissory note, ComTech reviewed: (1) the security and loan agreement between AGC and Caddo; (2) the subordinate pledge of patents; and (3) the June 14, 1985 agreement between Mueller and Caddo. All of these instruments stated that Caddo only held a security interest in the patent. ComTech also reviewed the original patent which stated on its face that it was assigned to AGC. Based on these facts, there is ample evidence to support the trial court's implied finding that Caddo did not represent that it had foreclosed on the patent and thus owned the patent. Indeed, the only evidence that Caddo had made such a representation was from Zimmerman, the president of ComTech, and he had been impeached with prior testimony.
        As for the claim that Caddo did not release the patent, drawings, design documents, component parts, and hardware, there is ample evidence that Caddo released any rights that it may have had in these items, and there is no evidence that Caddo retained these rights. ComTech appears to assert that the word release, as used in the August 1, 1985 letter from ComTech to Caddo, actually means to assign or transfer. As previously stated, in a legal context, release means the relinquishment, concession, or giving up of a right. See BLACK'S LAW DICTIONARY 1159 (5th ed. 1979). Caddo, at least in regard to the facts in the record before us, never did anything inconsistent with giving up all rights to these items. Furthermore, the evidence is sufficient to show that Caddo never claimed to own the patent and never agreed to assign or transfer the patent to anyone.
Factual Insufficiency
        Once again, because ComTech had the burden to prove fraud, we apply the same standard for review of factual sufficiency as we applied under the failure of consideration section. Based on the facts set out under our discussion of the legal sufficiency of ComTech's fraud claims, we cannot say that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule ComTech's second and third points of error.
The Resolution
        In ComTech's fourth point of error, it asserts that AGC's directors' resolution and shareholder's resolution did not constitute a valid assignment of the patent to ComTech. We fail to see how this point in any manner relates to the case before us. AGC was not a party to this suit, the pleadings before the trial court did not contain any theory of recovery related to these resolutions, no error relating to these resolutions was ever raised in the trial court, and, on appeal, ComTech fails to allege any possible trial court error in relation to the resolutions. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. TEX. R. APP. P. 52(a). ComTech has certainly failed to comply with this requirement because the record does not contain a single instance where ComTech objected to anything remotely relating to the resolutions. We overrule ComTech's fourth point of error, and affirm the trial court's judgment.
                                                          
                                                          SUE LAGARDE
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00950.F
 
 
FN:1 We use the word apparent because ComTech argues, in point of error four, that AGC's directors' resolution and shareholder's resolution do not constitute a valid and complete assignment.
FN:2 In his deposition, Zimmerman admitted that he had seen this document prior to signing the promissory note, but, during trial, he claimed on direct examination that he had not seen the document prior to signing the promissory note and during cross-examination that he could not remember when he first saw it.
FN:3 This conflicts with Zimmerman's testimony at trial that Young, in telephone conversations, claimed to own the patent. Zimmerman explained the discrepancy by asserting that no questions were asked specifically regarding these conversations during the deposition.
FN:4 Caddo merely lodged an oral objection and not a written special exception. However, failure to specially except to a defective pleading operates as a waiver of the defect only against a party seeking reversal on such account. Plains Ins. Co. v. Evans, 692 S.W.2d 952, 955 (Tex. App.--Fort Worth 1985, no writ). Caddo is not seeking reversal based on ComTech's failure to verify its pleading; therefore, Caddo's objection was sufficient. See id.
FN:5 ComTech originally filed a general denial and later filed a second "Original Answer" prior to trial.
FN:6 We note, however, that the Answer reflects that it was subscribed and sworn to on June 21, 1988, the same date the judgment was signed.
FN:7 ComTech does not specifically raise factual or legal sufficiency in its first point of error. The first point merely states that "[t]here was a failure of consideration for the endorsement of the promissory note." We construe this point to be an attack on the factual and legal sufficiency of the evidence in support of the trial court's implied finding to the contrary. Consequently, we will address this point as if it raised both factual and legal sufficiency.
FN:8 Assign means, "To transfer, make over, or set over to another." BLACK'S LAW DICTIONARY 108 (5th ed. 1979). Clearly, assigning an item differs from releasing rights in an item.
FN:9 ComTech's answer and counterclaim before the trial court did not raise fraud as an affirmative defense. Liberally construing ComTech's counterclaim, the most we could possibly infer would be conspiracy to defraud, which is not the same as asserting fraud as an affirmative defense.
File Date[01-02-89]
File Name[880950F]