Jose Luis Lopez v. Amy Elizabeth Lopez--Appeal from 19th District Court of McLennan County
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IN THE
TENTH COURT OF APPEALS
No. 10-07-00002-CV
JOSE LUIS LOPEZ,
Appellant
v.
AMY ELIZABETH LOPEZ,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2005-2429-1
ORDER
The Court’s “Order on Opinion,” issued on November 5, 2008, is withdrawn, and
this order is substituted therefor.
The Court’s Opinion and judgment dated August 13, 2008, are withdrawn, and
the Opinion and judgment dated November 5, 2008, are substituted therefor.
Appellee’s motion for rehearing is denied.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Judge Glen Harrison1
(Chief Justice Gray would request a response to the motion for rehearing with a
view to granting it. He would not rewrite the opinion to address the motion for
rehearing (or the dissenting opinion) without requesting a response. He does not
withdraw his dissenting opinion issued on August 13, 2008, so another
dissenting opinion will not issue. He notes, however, that the Court is in error in
assuming the trial court had to impliedly make any findings. Jose had to prove
conversion. He failed to convince the trial court. In his review of the trial court’s
judgment he cannot conclude that the trial court erred. It is improper to
substitute the Court’s judgment on a review of a cold record for the trial court’s
judgment with the trial court’s ability to evaluate the credibility and demeanor of
the live witnesses. Because Jose had the burden of proof and, even according to
the Court, failed to prove the legal relationship under which Amy was in
possession of the receipt or the proceeds thereof, the trial court did not err when
it rendered a take nothing judgment against Jose. Additionally there is some
question of whether a party that lost on a theory tried by implied consent can
appeal that loss. The theory of trial-by-implied-consent is a judgment saving
theory.)
“Order on Opinion” dated November 5, 2002 withdrawn; motion for rehearing denied
Order issued and filed November 19, 2008
Do not publish
Judge of the 32nd District Court of Fisher, Mitchell, and Nolan Counties, sitting by assignment of the
Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(h) (Vernon 2005).
Lopez v. Lopez
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