Arnoldo Palacios v. Susan J. Robbins--Appeal from 150th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00338-CV
Arnoldo PALACIOS,
Appellant
v.
Susan J. ROBBINS,
Appellee
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-11179
Honorable Janet Littlejohn, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 2, 2003

REVERSED AND RENDERED IN PART; AFFIRMED IN PART

This case involves the dissolution of a relationship between Arnoldo Palacios and Susan Robbins. Arnoldo and Susan met in March 1993, and eventually began living together. Susan contends she and Arnoldo were married by common law by September 1993. Arnoldo insists that, although they lived together, they were never common law married. Susan alleges the primary problem in their marriage was Arnoldo's adultery and his tendency to commit violent acts against her. Their tumultuous relationship ended on August 1, 2000, when Susan filed suit for divorce and lodged claims of fraud and assault against Arnoldo. After a two week trial, (1) the jury found that Susan and Arnoldo were married by common law, Arnoldo committed fraud and assault, and awarded Susan $100,000 in damages for fraud and $200,000 in damages for assault. In fifteen issues on appeal, Arnoldo argues this case should be reversed and remanded for a new trial on the grounds that the evidence is legally and factually insufficient to support the verdict, and the trial court committed reversible error in several of its rulings. We reverse and render in part and affirm in part.

DISCUSSION

A. Denial of Arnoldo's Motion for a Separate Trial

In his first issue, Arnoldo contends the trial court erred when it denied his motion requesting a separate trial on Susan's claims of fraud and assault. Arnoldo argues that by allowing the jury to hear all of Susan's claims in the same trial, he was exposed to a "great risk of prejudice."

Generally, a trial court has broad discretion to grant or refuse motions for severance or separate trial. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). Rule 41 governs severance of causes. Tex. R. Civ. P 41. Rule 174 provides for dividing causes of action for separate trials. Tex. R. Civ. P 174(b). The language of each rule is permissive, not mandatory. See Tex. R. Civ. P 41, 174(b) (both using permissive "may" rather than mandatory "shall"); see also Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 683 (1956) (orig. proceeding) (defining "may" as permissive word).

A trial court may generally order a bifurcated trial of any claim or issue to do justice, in the furtherance of convenience, and to avoid prejudice. Tex. R. Civ. P. 174(b); Guaranty Fed. Sav. Bank, 793 S.W.2d at 658. A claim may be properly severed only if the controversy involves more than one cause of action, the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. State Dep't of Highways and Public Transp. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993); Guaranty Fed. Sav. Bank, 793 S.W.2d at 658.

Arnoldo filed a pre-trial motion asking the trial court, in the interest of judicial economy, to sever Susan's claim of common law marriage from the issues of property and debt division. The motion did not ask the court to bifurcate the issues regarding the marriage from Susan's tort claims or that the basis for doing so was to prevent prejudice. Two months later, when the trial court conducted a hearing on Arnoldo's motion, he asserted that judicial economy would be served by having a single trial first on the issue of whether the couple was married. Other than to state that Arnoldo could be tried "as a bad guy," Arnoldo's attorney did not elaborate on how his client would be prejudiced by a single trial on all issues. Susan's attorney and the attorney ad litem also relied on judicial economy as their reason for opposing separate trials.

It is clear from the record that the focus of the hearing was on whether judicial economy would best be served by a single trial on all issues or by separate trials. Having reviewed the record, we cannot conclude the trial court abused its discretion in denying Arnoldo's motion, and we overrule his first issue.

B. Jury Charge Error

In Arnoldo's eleventh issue, he complains the trial court erred by denying his oral request for a limiting instruction to exclude mention of the sexually transmitted disease Susan allegedly contracted from him when the jury considered the issue of assault. The trial court has wide discretion to determine sufficiency of definitions and instructions. Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998); Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995). A trial court's failure to issue appropriate instructions is not reversible error unless the error was reasonably calculated to and probably did cause the rendition of an improper judgment. Timberwalk Apt., Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).

At the charge conference, the court refused Arnoldo's request for a limiting instruction, but instructed the attorneys to not refer to the sexual assault from which Susan contracted herpes in their closing arguments. We conclude the trial court did not abuse its discretion. Also, although during closing arguments, the attorneys, including Arnoldo's attorney, referred to the sexually transmitted disease, none expressly asked the jury to find that the transmission of a sexually transmitted disease amounted to an assault. Susan's attorney asked the jury to consider the disease in the context of awarding her damages. Thus, even assuming a limiting instruction should have been included, there is no indication that the absence of such an instruction was reasonably calculated to and probably did cause the rendition of an improper judgment. For these reasons, we overrule Arnoldo's eleventh issue.

C. Statute of Limitations on Susan's Assault Claims

In his eighth issue, Arnoldo contends the trial court erred when it disregarded his objections and submitted the jury charge without any date limitations as to Susan's sexual assault claim. In addition, he maintains that a two-year statute of limitations period under Texas Civil Practice and Remedies Code section 16.003 applies to Susan's assault claims, and the trial court erred when it denied his motion for judgment notwithstanding the verdict ("motion for JNOV") on the basis that her claims were barred by this limitations period.

In order to rely on the affirmative defense of limitations, a defendant must plead, prove, and secure findings to sustain the affirmative defense. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). At the charge conference, Arnoldo objected to Susan's request that the phrase "sexual assault" be included in the definition of assault on the grounds that any alleged sexual assault was barred by the applicable statute of limitations. But the jury was not asked for findings on Arnoldo's statute of limitations defense, and the record does not reflect that he requested such a jury question. By failing to request and secure a jury finding on his affirmative defense, Arnoldo has not preserved these complaints for appellate review. See Rivas v. Cantu, 37 S.W.3d 101, 116-17 (Tex. App.--Corpus Christi 2000, pet. denied); Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 763 (Tex. App.--El Paso 2000, no pet.). Accordingly, we overrule Arnoldo's eighth issue.

D. Legal and Factual Sufficiency Challenges

In several issues on appeal, Arnoldo asserts the evidence is legally and factually insufficient to support the verdict. In reviewing the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the jury's findings, and we disregard all evidence and inferences to the contrary. Texas Dep't of Mental Health and Mental Retardation v. Rodriguez, 63 S.W.3d 475, 480 (Tex. App.--San Antonio 2001, pet. denied). If there is more than a scintilla of evidence to support the finding, the finding will be upheld. Id. In reviewing a factual sufficiency point, we are required to weigh all the evidence in the record. Id. Findings 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. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Id. Because the appellate court is not the fact finder, it may not substitute its own judgment for that of the trier of fact, even if a different answer could be reached on the evidence. Id.

Whether Susan and Arnoldo were Married in September 1993

In Arnoldo's third and fourth issues, he challenges the legal and factual sufficiency of the jury's finding that he and Susan were married by common law and that they were married by Labor Day weekend in September 1993. A valid common law marriage consists of three elements: (1) an agreement to be married; (2) after the agreement, the couple live together in Texas as husband and wife; and (3) the couple represents to others in Texas that the couple is married. Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993); Tex. Fam. Code Ann. 2.401 (Vernon 1998). All three elements must exist at the same time. Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.--San Antonio 1987, no writ). The agreement to be married may be shown by circumstantial evidence such as the conduct of the parties, representing to others the couple is married, and proof of cohabitation. Russell, 865 S.W.2d at 933. Arnoldo concedes there may be sufficient evidence to support one or more elements of a common law marriage. But he argues that all three elements must coexist at the same time, and there is legally and factually insufficient evidence to show that he and Susan were living together and representing to others they were married by Labor Day weekend in September 1993.

The facts pertaining to the alleged common law marriage are as follows. Susan and Arnoldo met in March 1993. Susan testified that after dating for approximately three months, she and Arnoldo discussed whether they wanted to get married but no decisions were made. After Susan discovered she was pregnant with her first child in July 1993, she and Arnoldo again discussed marriage, but they decided not to have a formal marriage for financial and religious reasons. Susan testified that despite their agreement to not be formally married, they did agree to be informally married. She said it was Arnoldo's idea to have a common law marriage.

According to Susan, Arnoldo acknowledged on Labor Day weekend in September 1993 that they were married, when they were driving to her parents' house for a visit. That weekend, Susan and Arnoldo told her parents they were married and expecting a child together. Arnoldo explained that common law marriages were common in the Valley. After Susan's parents learned of the marriage, they gave the couple a wedding gift.

Following Labor Day weekend of 1993, there were other representations that the couple was married. At the time Susan and Arnoldo first informed her parents of their marriage, they were residing together in Arnoldo's apartment. On their visit with Susan's parents over Labor Day weekend, the couple announced they intended to buy a house together in Houston. Arnoldo purchased the home on December 28, 1993, and the residential loan application indicates Arnoldo stated his marital status as "married." The couple moved into the house together in January 1994. Several documents introduced at trial, including health and car insurance forms dated between 1996 and 2000, a loan application dated in December 1998, and tax forms from the year 2000, revealed that Arnoldo represented himself as a married man and that Susan was his spouse.

We hold there is legally and factually sufficient evidence to support the jury's finding that Susan and Arnoldo were married in September 1993. Accordingly, we overrule Arnoldo's third and fourth issues.

Fraud and Damages on Fraud

In Arnoldo's fifth issue, he contends there is legally and factually insufficient evidence to support the jury's findings that he committed fraud. Specifically, Arnoldo argues there is no evidence to show he made any misrepresentation to Susan. In his sixth issue, Arnoldo maintains there is legally and factually insufficient evidence to support the jury's award of actual damages for the alleged fraud; alternatively, he insists the damages award is excessive. Finally, in his seventh issue, Arnoldo contends there is legally and factually insufficient evidence to support the jury's exemplary damage award for fraud.

We initially note that Susan's claim is actually one of fraud on the community because, at trial and on appeal, the primary focus of her fraud claim was that Arnoldo "made disappear" vast sums of money during the pendency of the divorce proceeding. Texas courts do not recognize fraud on the community as an independent cause of action in the context of divorce proceedings. However, Texas courts do recognize the concept of fraud on the community to the extent that a trial court may consider such fraud in its division of the community estate, justifying an unequal division of property. See Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998). "Because a wronged spouse has an adequate remedy for fraud on the community through the 'just and right' property division upon divorce, . . . there is no independent tort cause of action between spouses for damages to the community estate." Id. at 585. For this reason, a trial court may award a money judgment in favor of one spouse against the other to achieve an equitable division of the community estate. Id.; In the Matter of the Marriage of Moore, 890 S.W.2d 821, 828 (Tex. App.--Amarillo 1994, no writ). However, "[b]ecause the amount of the judgment is directly referable to a specific value of lost community property, it will never exceed the total value of the community estate." Id.

Here, Susan's allegations are similar to those made in Schlueter: Arnoldo depleted community assets in which she was entitled to share. If Susan's allegations were true, the trial court could have considered Arnoldo's behavior when dividing the community estate. Id. at 589. However, at Susan's request, the trial court submitted her fraud claim to the jury, and Arnoldo did not object - at trial or on appeal. Nevertheless, because we agree with Arnoldo that the evidence is legally insufficient to support a finding of fraud, we sustain his complaints.

To prevail on a fraud claim, a plaintiff must demonstrate that (1) a material misrepresentation was made; (2) with knowledge of its falsity or made recklessly without knowledge of its truth; (3) it was made with the intent that the other party should act; and (4) the other party acted in reliance on the misrepresentation and suffers injury. Eagle Prop. Ltd. v. Scharbauer, 807 S.W.2d 714, 723 (Tex. 1990). Fraud may consist of both active misrepresentation and passive silence. Samedan Oil Corp. v. Intrastate Gas Gathering, Inc., 78 S.W.3d 425, 437 (Tex. App.--Tyler, 2001, no pet.). Testimony from Arnoldo's deposition and at trial, as well as other documentary evidence, revealed that Arnoldo could not account for the expenditure of various monies accumulated after September 1993. For example, at his deposition, he said he had deposited insurance proceeds from a fire at a rental house into a segregated account. At trial, he could not explain how all the money had been expended; however, he admitted some of the money was not used to repair the fire-damaged house. Arnoldo also withdrew money from the couple's brokerage and personal checking accounts.

Although the record reveals inconsistencies between Arnoldo's deposition testimony and his trial testimony, there is no evidence of any affirmative misrepresentation made by Arnoldo upon which Susan acted in reliance. Susan herself did not testify about any representations Arnoldo made or failed to make to her about the couple's assets. Other than her testimony about the assets she wanted the trial court to award to her in the property division, Susan did not testify about Arnoldo's alleged withdrawal of community funds, wasting of community funds, or spending of community funds without her knowledge or consent. See Moore, 890 S.W.2d at 827. Also, we are unable to determine whether the trial court considered the fraud damages award as a means of Susan recouping her share of the community estate when it divided the community estate, and neither party complains on appeal about the division of the estate. See Schlueter, 975 S.W.2d at 588, 590 (remanding for new property division because trial court improperly compensated the community for husband's actual and constructive fraud); Moore, 890 S.W.2d at 842 (reversing that portion of judgment assessing damages for husband's breach of fiduciary duty separate from division of estate).

Accordingly, we hold the evidence is legally insufficient to support Susan's fraud claim, and we sustain Arnoldo's fifth issue. Because we hold there is no liability for fraud, we need not reach Arnoldo's complaints regarding the actual and exemplary damages awarded by the jury on Susan's fraud claim. See also Schlueter, 975 S.W.2d at 589-90.

Damages on Assault

In his ninth issue, Arnoldo asserts there is factually insufficient evidence to support the jury's findings that Susan was entitled to $200,000 in damages for injuries she suffered from Arnoldo's assaults. Arnoldo also argues these actual damages are excessive. "A claim that damages are excessive is reviewed under a factual sufficiency analysis." Southwest Tex. Coors, Inc. v. Morales, 948 S.W.2d 948, 951 (Tex. App.--San Antonio 1997, no writ). "We examine all the evidence to determine whether the award is supported by sufficient evidence and order remittitur only if the award is so against the great weight and preponderance of the evidence as to be manifestly unjust." Id. If sufficient probative evidence exists supporting the jury's verdict, the reviewing court is not entitled to substitute its judgment for that of the jury. J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 666 (Tex. App.--Fort Worth 1999, pet. denied). It is particularly within the province of the jury to resolve matters that are necessarily speculative and not subject to precise mathematical calculations such as physical pain and mental anguish. Morales, 948 S.W.2d at 951-52. "Because personal injury damages are unliquidated and incapable of measurement by any certain standard, the jury has broad discretion in fixing the amount of the award." Peeples, 985 S.W.2d at 665.

Susan alleged Arnoldo used physical force against her on several occasions. Arnoldo twice threw Susan across the room into a wall, which left bruises on her arms. On another occasion, Arnoldo pushed Susan forcing her to fall to the ground. Arnoldo also punched a car window with his hand, while Susan was in the driver's seat, which caused glass to fly into Susan's eye. Susan also testified that she sought counseling at a battered women's shelter because of these assaults. Additionally, Susan alleged Arnoldo forced himself on her in October 1994 knowing that he was experiencing an outbreak of herpes. Although Susan knew that Arnoldo had been diagnosed with herpes, on that particular occasion, she did not want to have unprotected intercourse with him. However, Arnoldo refused to use protection. Susan was diagnosed with herpes in October 1994. She testified that as a result of the disease, she has experienced a great deal of pain, which lasts approximately two weeks at a time. The intense pain she experiences starts from her waist and runs down her legs. In addition, she often develops lesions in her private areas that drain. Susan stated the diagnosis made her angry with Arnoldo and when she informed him about her condition, he told her that now no man will ever want her. Susan explained that she can no longer have normal child births if she is having an outbreak, because of the risk that the virus might cause blindness in her newborn child. Finally, Susan stated that she felt $100,000 would be adequate compensation for the injuries resulting from the assaults.

We hold the evidence is factually sufficient to support the damage award to Susan, and we overrule Arnoldo's ninth issue.

Attorneys' Fees

In his tenth issue, Arnoldo argues there is legally and factually insufficient evidence to support the jury's award of attorneys' fees. Arnoldo concedes that an attorney may be awarded fees in a suit affecting the parent-child relationship; however, he complains that Susan's attorney should not have received fees for her tort claims and the trial court erred in not segregating those fees.

Attorneys' fees attributable to separate causes of action must be segregated unless the claims arise from the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991). Where no objection is made to the failure to segregate attorneys' fees, either at the time evidence of attorneys' fees is presented or to the charge, the error is waived. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997); Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988); see also Tex. R. Civ. P. 274. Here, Arnoldo raised his objection for the first time post-verdict. Because this objection was not raised during trial, it was not timely and Arnoldo waived any complaint about the failure to segregate the fees. Accordingly, we overrule his tenth issue.

E. Denial of Arnoldo's Motion to Remove the Attorney Ad Litem

In his second issue, Arnoldo asserts the trial court abused its discretion when it denied his motion to dismiss the attorney ad litem or limit the attorney's participation in the trial to the matters of conservatorship and child visitation. Arnoldo argues that because there was no dispute over the parentage of the two children or conservatorship, it was not necessary to appoint an ad litem to protect the children's interests. In addition, Arnoldo insists that the attorney ad litem's participation in the suit harmed him because the attorney's questions regarding his adultery and the sexually transmitted disease Susan allegedly contracted from him painted him in a negative light.

Arnoldo's complaint on appeal does not comport with his objections below. Arnoldo filed a motion to remove the attorney ad litem, in which he argued that because the issue of paternity had been resolved, the attorney ad litem had fulfilled his responsibilities. Therefore, the attorney was no longer needed and would only incur unnecessary expenses and fees. At the motion hearing, Arnoldo reiterated these arguments. Now, on appeal, Arnoldo claims the trial court erred in not limiting the role of the attorney ad litem to the issues of conservatorship and visitation, and he was prejudiced by the attorney's cross-examination. Because Arnoldo did not raise these specific objections before the trial court, and he does not guide us to any portion of the record where he objected to the ad litem's questions at trial or in his motion for a new trial, he has failed to preserve his complaint for our review. Tex. R. App. P. 33.1(a). Accordingly, we overrule Arnoldo's second issue.

F. Evidentiary Objections

In his twelfth, thirteenth, and fourteenth issues, Arnoldo claims the trial court erred when it overruled his evidentiary objections. Specifically, Arnoldo contends the trial court erred when it allowed Susan to testify about her own medical condition and when it admitted testimony from lay witnesses concerning the legal effect of documents introduced at trial. The admission and exclusion of evidence is committed to the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles. Id. at 754. For the admission or exclusion of evidence to constitute reversible error, an appellant must show that the trial court committed error and that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992).

Susan's Testimony Regarding Her Medical Condition

First, Arnoldo complains it was erroneous for Susan to testify regarding her contraction of herpes from him, and he insists the admission of this testimony caused the rendition of an improper judgment because the jury awarded Susan $200,000 in damages. At trial, Susan testified that she has had many health complications from the disease. She stated that if she had another child, the child may become blind if she is having an outbreak when she gives birth.

Arnoldo argues this testimony violates Texas Rule of Evidence 701 because Susan was not qualified to give an opinion regarding the specifics of her own medical condition. After the trial court overruled Arnoldo's first objection on this basis, Susan's attorney asked additional questions regarding her ability to have healthy children in the future and about what she had been told about the risks when her second child was born. Arnoldo did not object to the subsequent questions. When an objection to evidence is properly made, prior or subsequent presentation of essentially the same evidence without objection waives any complaint regarding the admission of the evidence. Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984). Because Arnoldo failed to object to the follow-up questions regarding Susan's health, he waived any complaint regarding the admission of this testimony. We overrule his twelfth issue.

Erroneous Admission of Legal Conclusions from Lay Witnesses

Arnoldo contends on two occasions the trial court erroneously allowed testimony about the legal effect of documents at trial. The first instance occurred when the attorney ad litem asked Arnoldo if any one of twenty-two exhibits (2) showed that Susan and Arnoldo were "holding out" as a married couple. Arnoldo replied, "yes." In the second instance, Susan's counsel asked Arnoldo's supervisor, Edward Thorn, what was indicated to him by the fact that Arnoldo's insurance documents showed Susan was covered by his insurance as a spouse. Thorn said, "It would seem likely they were married, based on that." The trial court overruled Arnoldo's counsel's objections that these questions improperly called for a legal conclusion.

We disagree with Arnoldo's characterization of the questions. The first question merely asked Arnoldo to admit, or deny, that certain documents stated he and Susan were married. The second question merely sought to elicit from Thorn whether he thought the couple was married based on Arnoldo's insurance documents showing Susan as Arnoldo's spouse. Neither answer was a legal conclusion. Accordingly, we overrule Arnoldo's thirteenth and fourteenth issues.

G. Cumulative Effect of Errors

In his last issue, Arnoldo contends that the cumulation of errors in this case warrants a remand for a new trial. Arnoldo's issue is without merit. We hold that all of Arnoldo's complaints are overruled, except on the issue of fraud. Regarding that issue, we reverse and render judgment that Susan take nothing on this claim. There is no need for a new trial on the merits, and we overrule Arnoldo's fifteenth issue as well.

CONCLUSION

Because there is legally insufficient evidence to support the jury's verdict on Susan's claim of fraud, we reverse that portion of the trial court's judgment awarding Susan $60,000 for fraud and $40,000 exemplary damages for fraud, and we render a take-nothing judgment on Susan's fraud claim. We affirm the judgment in all other respects.

Sandee Bryan Marion, Justice

1. The parties agreed that issues of property division, conservatorship, and support of the couple's children would not be submitted to the jury; but instead, would be submitted to the trial court or settled by agreement.

2. These exhibits include Arnoldo's loan applications, car and health insurance documents, Arnoldo's W-2 tax forms, earnings' statements, and deeds.