Raul Almaguer v. Andres Reiner, Sr.--Appeal from 152nd District Court of Harris County

NO. 10-89-129-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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RAUL ALMAGUER,

Appellant

v.

ANDRES REINER, SR.,

Appellee

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From 152nd Judicial District Court

Harris County, Texas

Trial Court # 87-43146

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O P I N I O N

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MBank of The Woodlands declared a $95,000 note of Petro Steel Development, Inc., to be in default and "offset the loan" with a $100,000 certificate of deposit owned by Andres Reiner, which was pledged as security for the note. Reiner sued Raul Almaguer and Franciso Gonzales, alleging that they had agreed to "indemnify" him if the bank used the certificate to offset the loan. Almaguer pled the Statute of Frauds as an affirmative defense. Following a bench trial in which Gonzales did not appear, the court found that Reiner, Almaguer and Gonzales "agreed to each be 1/3 liable for the debts of Petro Steel" and entered a judgment in Reiner's favor against Almaguer for $31,666. We affirm.

The court found that: (1) Almaguer and Gonzales were shareholders in Petro Steel; (2) Almaguer and Gonzales were "partners" in Petro Steel; and (3) Almaguer agreed to be one-third liable for Petro Steel's debts. The first three points attack the legal sufficiency of the evidence supporting these findings.

When the bank used $95,000 of Reiner's certificate of deposit to pay Petro Steel's note, Reiner was subrogated to the bank's rights against the corporation. See Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679, 681 (1931). Reiner claimed Almaguer orally promised to pay one-third of Petro Steel's debts; Almaguer denied it. The contention under point three, that no evidence supported the finding that he made such a promise, is overruled.

The principal argument under point three relates to the Statute of Frauds, which makes unenforceable an oral agreement to pay the debt of another. See Tex. Bus. & Com. Code Ann. 26.01(a),(b)(2) (Vernon 1987). Essentially, Almaguer contends the findings do not support the judgment. To preserve his right to so contend on appeal, he should have excepted to the judgment on that ground in the trial court. See Tex. R. Civ. P. 307; Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 948 (1958). Because he did not do so, we cannot consider that contention. See id. Entering an erroneous judgment does not result in fundamental error. Young v. Hodde, 682 S.W.2d 236, 237 (Tex. 1984). Point three is overruled.

Almaguer argues in his first two points that the evidence was legally insufficient to support findings that he was a shareholder or "partner" in Petro Steel. These findings are immaterial because Almaguer's liability ultimately rests on a promise to pay one-third of Petro Steel's debts. The capacity in which he made the promise is immaterial. Accordingly, even if the findings that he was a shareholder or partner were not supported by any evidence, sustaining the points would not result in a reversal. See Clark v. McFerrin, 760 S.W.2d 822, 826 (Tex. App. Corpus Christi 1988, writ denied). Points one and two are overruled.

Almaguer complains in point four that the court abused its discretion when it refused to allow him to file a trial amendment to make a verified denial of the partnership. See Tex. R. Civ. P. 93(5). As noted above, the capacity in which he promised to pay one-third of Petro Steel's debts is immaterial. Consequently, even if the trial amendment was erroneously denied, the error would not affect either his liability or the judgment. Point four is overruled.

The final point is that the judgment was erroneously entered because it was not supported by any evidence. Almaguer generally argues under this point that the findings do not support the judgment, specifically contends that his liability cannot be based on unsupported findings of shareholder or partner status in Petro Steel, and also asserts that the judgment was a product of passion rather than reason.

Almaguer attacked the judgment in his motion for a new trial on the ground that the pleadings and evidence would not support a recovery on the theory of partnership liability. However, a finding of partnership is immaterial to his liability. Moreover, the complaint that the judgment was based on passion cannot be reviewed as that argument was not presented to the trial court. See Tex. R. App. P. 52(a); Larrumbide v. Doctors Health Facilities, 734 S.W.2d 685, 693 (Tex. App. Dallas 1987, writ denied). We overrule the fifth point. The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion issued and filed July 25, 1991

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