text:
    In re STATE FARM LLOYDS, INC., Relator.
    No. 08-05-00054-CV.
    Court of Appeals of Texas, El Paso.
    May 19, 2005.

      Angela Morrow Nickey, Robles, Bracken, Coffman & Hughes, L.L.P., El Paso, for Relator.
    Frank J. Guzman, El Paso, for Interested Parties Ruby Johnson Revocable Trust and Gregory Johnson, Trustee.
    Before Panel No. 5 BARAJAS, C.J., McCLURE, and ABLES, JJ. (Abies, J., sitting by assignment).
   OPINION

ANN CRAWFORD McCLURE, Justice.

Relator, State Farm Lloyds, Inc., seeks a writ of mandamus directing the trial court to enforce a contractual appraisal provision. We conditionally grant relief.

FACTUAL SUMMARY

A fire damaged the home of Ruby Johnson, the Real Party in Interest, and many of her belongings. She immediately notified her insurance company, State Farm. The policy included coverage for damage or loss to personal property and coverage for loss of use of the home while the home is “wholly or partially untenantable.” Johnson made a claim for living expenses under her loss of use coverage and claimed damages to personal items which had been destroyed or damaged in the fire. Johnson did not accept State Farm’s offers related to her personal property and living expenses. Consequently, State Farm invoked the policy’s appraisal provision through a letter written to Johnson’s attorney on May 30, 2003. The appraisal provision provides:

If you and we fail to agree on the actual cash value, amount of loss, or cost of repair or replacement, either can make a written demand for appraisal. Each will then select a competent, independent appraiser and notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a district court of a judicial district where the loss occurred. The two appraisers will then set the amount of loss, stating separately the actual cash value and loss to each item. If you or we request that they do so, the appraisers will also set:
a. the full replacement cost of the dwelling.
b. the full replacement cost of any other building upon which loss is claimed.
c. the full cost of repair or replacement of loss to such building, without deduction for depreciation.
If the appraisers fail to agree, they will submit their differences to the umpire. An itemized decision agreed to by any two of these three and filed with us will set the amount of the loss. Such award shall be binding on you and us.

The policy further provides that “[n]o action can be brought against [State Farm] unless there has been compliance with the policy provisions.”

State Farm notified Johnson’s attorney of its competent, independent appraiser’s identity by letter dated June 6, 2003. Johnson, through her attorney, informed State Farm of her appraiser’s identity but she reserved the right to object to the appraisal process based on a belief that State Farm had waived its right to an appraisal because it had not complied with the policy provisions. The person identified as Johnson’s appraiser told State Farm representatives that she knew nothing about the matter and had not been retained by Johnson. By letter dated June 25, 2003, State Farm requested that Johnson’s attorney identify her appraiser and it further requested clarification on Johnson’s waiver claim. Johnson’s attorney did not respond until September 3, 2003 when he made it clear that Johnson would not participate in the appraisal process. Johnson had filed a breach of eon-tract suit against State Farm approximately one week earlier, but she did not serve State Farm until October 8, 2003. In that suit, she alleged State Farm breached the insurance contract by “failing to compensate Plaintiff for the damaged and destroyed personal items and failing to pay for Plaintiffs loss of use of her home.

On February 5, 2004, State Farm filed its motion to sever the breach of contract claim, enforce the policy’s appraisal provision, and abate the proceedings until the appraisal process had been completed. The Honorable Linda Chew, Judge of the 327th District Court of El Paso County, heard State Farm’s motion on June 16, 2004. At the hearing, Johnson argued that State Farm had waived its right to enforce the appraisal provision but she did not offer any evidence in support of her assertions. The court subsequently signed an order denying relief on November 16, 2004. State Farm now seeks mandamus relief from the court’s refusal to enforce the appraisal provision.

CONTRACTUAL APPRAISAL PROVISION

State Farm contends that it is entitled to mandamus relief because (1) the trial court had no discretion to deny State Farm’s request to enforce the insurance policy’s appraisal provision and (2) State Farm has no adequate remedy at law.

Standard of Review

Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig.proceeding). Moreover, there must be no other adequate remedy at law. Id. An appellate court rarely interferes with a trial court’s exercise of discretion. A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)(orig.proeeeding). With respect to resolution of factual issues or matters committed to the trial court’s discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. With respect to a trial court’s determination of the legal principles controlling its ruling, the standard is much less deferential. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986)(orig.proceeding). Mandamus will not issue where there is “a clear and adequate remedy at law, such as a normal appeal.” Walker, 827 S.W.2d at 840, quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984).

Denial of State Farm’s Request to Enforce Contractual Appraisal Provision

The Supreme Court recently upheld the enforceability of an appraisal provision found in an automobile insurance policy. See In re Allstate County Mutual Insurance Company, 85 S.W.3d 193, 195 (Tex.2002). As in the instant case, the parties there contracted for an appraisal if they disagreed about the damaged property’s value. Id. at 196. The trial court concluded that the appraisal provision was an arbitration agreement and refused to enforce it. Id. at 195. The Supreme Court, noting that Texas courts had drawn a distinction between appraisal and arbitration provisions for over a hundred years, rejected the trial court’s conclusion and held that the court abused its discretion by refusing to enforce the provision. Id. at 196. The Court also determined that Allstate did not have an adequate remedy by appeal because denying the appraisal would vitiate Allstate’s ability to defend the breach of contract claim since the parties had agreed as to the method by which to determine whether a breach had occurred. Id. For example, if the appraisal determined that the vehicle’s full value was what the insurance company offered, there would be no breach of contract. Id. Other courts have upheld similar appraisal provisions. See In re Clarendon Insurance Company, No. 2-04-305-CV, 2004 WL 2984916 (Tex.App.-Fort Worth December 23, 2004, orig. proceeding)(not reported); Vanguard Underwriters Insurance Company v. Smith, 999 S.W.2d 448, 451 (Tex.App.-Amarillo 1999, orig. proceeding). Absent some compelling reason to not enforce the appraisal provision, the trial court had no discretion to refuse State Farm’s request to enforce the appraisal provision.

Johnson does not argue that appraisal provisions are generally unenforceable or that State Farm failed to comply with the appraisal provision. Instead, she contends that State Farm waived its right to invoke the appraisal provision because it did not comply with other provisions in the contract. More specifically, she argues that State Farm failed to (1) request a sworn proof of loss from Johnson; (2) notify her in writing whether the claim would be paid or had been denied or whether more information was needed; and (3) failed to give its reason for denying the claim or its reason for requiring more time to process the claim.

In support of her argument, Johnson directs us to Black v. Victoria Lloyds Insurance Company, 797 S.W.2d 20 (Tex.1990) and In re Clarendon. In Black, the Supreme Court held that summary judgment was improper because a material issue of fact existed as to whether statements made on an insurance card varied with the written terms of a provision in the policy excluding coverage for permissive personal use of a vehicle. Id. at 26. Consequently, a fact issue existed as to whether the insurer had waived its right to enforce that particular provision as written in the policy. Id. at 26. Because Black does not hold that an insurer’s failure to comply with one provision in an insurance policy waives its right to enforce a separate provision, the opinion is inapplicable.

In Clarendon, a homeowner filed a claim under his homeowner’s insurance policy for water and mold damage to his home. The insurer enlisted the help of a third-party claims administrator, which in turn, employed the services of an adjustor. Upon learning that the homeowner was a homebuilder, the adjustor agreed to allow him to do his own repairs. The adjustor did not prepare any paperwork affixing the amount of the loss. Instead, the homeowner was to submit invoices for the repair work and the insurer planned to reimburse him monthly. After paying the homeowner more than $260,000 over a four month period, the insurer became concerned about the manner in which the claims were being handled by the third-party administrator. The insurer hired a new third-party claims administrator who retained another firm to examine the validity of the homeowner’s claims. The insurer stopped making payments to the homeowner because he would not allow anyone to enter his home to videotape or photograph the repairs. The homeowner had a duty under the contract to provide the insurer with access to the damaged property. The homeowner subsequently made a policy limits settlement demand to the insurer and filed suit five days later. During the discovery period, the insurer sent the homeowner a demand for an appraisal based on a provision in the policy. Because the homeowner opposed the appraisal, the insurer filed a motion to dismiss or abate the suit. The trial court denied the motion and struck the insured’s demand for an appraisal. The insurer sought mandamus relief.

The homeowner argued that the insurer had waived its right to an appraisal or was estopped from seeking an appraisal because its conduct was inconsistent with a demand for an appraisal and because it breached the insurance contract by failing to remit timely payments. Clarendon, 2004 WL 2984916 at *3. The Fort Worth Court of Appeals rejected this argument, holding that the insurer’s payment of the invoices for four months and its attempts to examine the repairs performed by the homeowner did not constitute a waiver of the demand-for-appraisal provision. Id. It relied upon Scottish Union & National Insurance Company v. Clancey, 18 S.W. 439, 440, 83 Tex. 113, 114 (1892), in which the Supreme Court considered the issue of waiver as it applies to a demand for a appraisal. Although Scottish Union was decided more than a century ago, the Court’s observations are instructive. In that case, the insured’s property was destroyed by fire. The insured filed suit in a matter of weeks after the loss and the insurance company pled that the suit had been prematurely brought because the loss was not payable until 60 days after proof of loss had been furnished. Further, the insurance company demanded an appraisal pursuant to the contract. The insured alleged that the insurance company had waived proof of loss and appraisal by making a partial adjustment of the damage. A jury rendered a verdict in favor of the insured. In considering the waiver issue, the Supreme Court stated:

[i]t is a well-known principle in this class of cases that the acts relied on as constituting a waiver should be such as are reasonably calculated to make the assured believe that a compliance on his part with the stipulations providing the mode of proof of loss, and regulating the appraisement of the damage done, is not desired, and that it would be of no effect if observed by him. It cannot be said, in the face of the proof showing that proof of loss was insisted on by the company, and that it was endeavoring to ascertain the amount of damages done by the fire to the goods of the appellee, that this indicated an intention or desire to dispense with the very requirements inserted in the policy for the purpose of enabling the company to arrive at this loss. The facts in this case show that there was no waiver of the stipulations in the policy relating to proof of loss and ap-praisement of the property. They show, on the other hand, that appellants, through their agents and adjuster, were endeavoring to ascertain the amount of damage, while the appellee declined to comply with the conditions in the policy, on which alone his right to recover depends.

Id. at 440-41 [Emphasis added]. Rather than supporting Johnson’s argument, Clarendon undercuts it.

Waiver is the intentional relinquishment of a known right. Labrado v. County of El Paso, 132 S.W.3d 581, 594 (Tex.App.-El Paso 2004, no pet.); Sedona Contracting, Inc. v. Ford, Powell & Carson, Inc., 995 S.W.2d 192, 195 (Tex.App.San Antonio 1999, pet. denied). It is an affirmative defense and the party asserting it bears the burden of proof. See Labrado, 132 S.W.3d at 594. In order to defeat State Farm’s motion to enforce the appraisal provision on the ground of waiver, Johnson had the burden to show that State Farm’s alleged failure to comply with these other policy provisions constituted an intentional relinquishment of its right to seek an appraisal, or as stated in Scottish Union, evidenced an intent to dispense with the policy’s requirements which would enable State Farm to arrive at the amount of loss. Johnson did not offer any evidence to establish her assertions that State Farm failed to comply with any of the policy provisions or that it intentionally relinquished its right to enforce the appraisal provision. For this reason alone, the trial court had no discretion to refuse State Farm’s request to enforce the appraisal provision. Even assuming that Johnson had introduced some evidence to support her assertions, State Farm’s alleged failure to request a sworn proof of loss from Johnson, notify her in writing whether the claim would be paid or had been denied or whether more information was needed, and its alleged failure to give its reason for denying the claim or its reason for requiring more time to process the claim does not evidence an intent to dispense with the policy’s requirements which would enable State Farm to arrive at the amount of loss. To the contrary, the record shows that State Farm was undertaking to ascertain the amount of loss. The trial court abused its discretion by refusing State Farm’s request to enforce the appraisal provision. Because State Farm does not have an adequate remedy at law, we conditionally grant mandamus relief.

Although the trial court’s denial of the motion to enforce the appraisal provision was erroneous, the failure to abate the proceeding is not subject to mandamus review. See In Re Allstate, 85 S.W.3d at 196. The trial court has discretion whether to sever the breach of contract claim and abate the proceedings while the appraisal is being done. See id.; Guaranty Federal Savings Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990); Tex.R.Civ.P. 41. The writ will issue only if the trial court fails to comply with this opinion.

      . Johnson’s petition states other causes of action against State Farm and the construction company employed to repair Johnson’s home.

      . However, the trial court’s refusal to grant Allstate's motion to abate was not subject to mandamus review. In re Allstate, 85 S.W.3d at 196.

      .Under the policy, Johnson has a duty to send to State Farm, upon its request, a signed and sworn proof of loss on a standard form provided by State Farm. According to the policy, State Farm waives its right to require a proof of loss if it does not make a timely request for the proof of loss, but this waiver does not waive State Farm’s other rights under the policy.

      . The policy requires State Farm to notify Johnson in writing whether the claim will be paid or has been denied or whether more information is needed.

      . Another provision of the policy requires State Farm to give the reason for denying the claim or requiring more time to process the claim.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    Richard ROSS, Appellant, v. NATIONAL CENTER FOR EMPLOYMENT OF THE DISABLED, Appellee.
    No. 08-04-00001-CV.
    Court of Appeals of Texas, El Paso.
    May 26, 2005.

      John P. Mobbs, El Paso, for Appellant.
    Ken Slavin, Kemp Smith, P.C., El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Richard Ross appeals a turnover order which requires the surrender of a letter of credit and its proceeds in partial payment of an outstanding judgment. At issue is the authority of the Honorable Jose Baca to order the turnover of a corporate asset owned by two business entities of which Ross is the sole shareholder. Finding no abuse of discretion, we affirm.

FACTUAL SUMMARY

In 1998, litigation ensued in federal district court in Arizona between Tamarack Capital LLC and Tamarack Insurance LLC (Tamarack), Richard Ross individually, and Access Healthsouree, Inc. (Access). Judgment was awarded in favor of Tamarack and Access appealed. It pledged a letter of credit for $1.2 million to secure the judgment pending appeal. During oral argument, the parties advised us that the judgment has been affirmed by the Ninth Circuit Court of Appeals.

On April 26, 1999, Access’s shareholders sued Ross and other defendants in Texas for common law and statutory fraud. On January 21, 2000, the shareholders took a default judgment against Ross in the amount of $5 million in actual damages, $5 million in exemplary damages, and attorney’s fees. After their claims against the other defendants were severed, the shareholders attempted to enforce the judgment against Ross in Arizona. The Arizona Superior Court found the Texas judgment void for insufficient service of process and entered an order vacating it.

On October 27, 2000, the shareholders re-filed their claims against Ross in Texas in cause number 2000-764. He responded to the allegations, and at the time of briefing in this court, that case remains pending in the Mai court. Eight of the shareholders have since assigned their interests in the judgment to Access.

In December 2002, Access filed a motion for turnover relief requesting that Ross surrender his interest in Tamarack. The trial court granted the motion on January 15, 2003, specifically finding that the January 2000 default judgment was final and fully enforceable. It ordered Ross to surrender the stock of the Tamarack entities to the El Paso Sheriffs Department in execution of the judgment. Ross appealed, arguing that the default judgment was void for improper service of process, that the Arizona order vacating the judgment was entitled to full faith and credit, and that consequently, the default judgment was a nullity that could not be enforced. Finding the judgment to be voidable rather than void, we concluded that the validity of service could not be challenged in a collateral attack. See Ross v. Access Healthsource Inc., No. 08-03-00079-CV, 2003 WL 22870451 (Tex.App.-El Paso Dec. 4, 2003, pet. denied)(not designated for publication). Because jurisdictional recitations in a judgment that is regular on its face are accorded absolute verity and can only be directly attacked, we affirmed the turnover order. We rejected Ross’s contention that the Arizona state court order vacating the foreign judgment in Arizona had the effect of voiding the Texas default judgment for purposes of enforcement in Texas. Despite our ruling, Ross has not complied with the turnover order.

Eleven days after our opinion issued, Access filed a second motion for turnover relief claiming Ross was the owner of Tamarack and that as a result, he controlled the $1.2 million letter of credit which Access had pledged to secure the Arizona federal court judgment. Access argued that the proceeds of the letter could not be readily attached through ordinary legal process and that the proceeds were not exempt from attachment, execution, or other seizure. It requested that the court order Ross and Tamarack to turn over the letter of credit and order Chase Bank to turn over the proceeds if Ross or Tamarack demanded payment. The Tamarack entities were not joined as parties, nor has it been alleged that these limited liability companies are the alter ego of Ross.

Ross did not appear for the hearing. The trial court found once again that Access had a final, fully enforceable judgment against Ross, that the judgment had not been paid, and that Ross’s actions indicated an intent to avoid payment. The court also found that Ross was the sole owner of Tamarack and that Tamarack had possession and control of the letter of credit and its proceeds. It ordered Ross and Tamarack to turn over the letter of credit and ordered Chase Bank to turn over the proceeds from the letter if payment were demanded. On July 8, 2004, Chase tendered the proceeds of the letter of credit into the registry of the court. On that same day, Access assigned its interest in the judgment to the National Center for Employment of the Disabled, which now appears before us as Appellee.

TURNOVER RELIEF

In three issues for review, Ross challenges the propriety of the turnover order. In Point of Error One, he complains that the order was entered against non-parties who were also non-judgment debtors. In Point of Error Two, he argues that because the letter of credit was not property owned by him it was not subject to the turnover order. Finally, in Point of Error Three, Ross alleges that Appellee failed to prove that Ross’s property interest could not be readily attached by ordinary legal process.

Standard of Review

A trial court’s decision to issue a turnover order is reviewed for an abuse of discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). We may reverse if we determine that the court acted in an unreasonable or arbitrary manner, or without reference to any guiding rules or principles. Id. Whether there is evidence to support the turnover award is a relevant consideration. Id. A clear failure by a trial court to analyze or apply the law correctly constitutes an abuse of discretion. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex.1995); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Turnover Relief on Default Judgment

Appellee sought turnover relief pursuant to Section 31.002 of the Texas Civil Practice and Remedies Code. Subsection 31.002(a) provides:

(a) A judgment creditor is entitled to aid from a court of appropriate jurisdiction through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property, that:
(1) cannot readily be attached or levied on by ordinary legal process; and
(2) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.

Tex.Civ.Prac. & Rem.Code Ann. § 31.002(a)(Vernon Supp.2004-05). The turnover statute applies to property that is in the judgment debtor’s possession or subject to his control. Tex.Civ.Prac. & Rem.Code Ann. § 31.002(b)(1). Once assets are traced to the judgment debtor, a presumption arises that those assets are in his possession, and the burden then shifts to him to account for the assets. Buller, 806 S.W.2d at 226.

Non-Judgment Debtors

The crux of Ross’s argument is that a turnover order may not issue against Tamarack without the initiation of separate proceedings against the entities. The reality is that the Tamarack entities are limited liability companies organized under Arizona law. Attempting to sue them in Arizona is pointless inasmuch as the Arizona courts have determined that the Texas judgment which Appellee is attempting to enforce is void. If enforcement is to be had, it is to be had here. Yet this reality dawns with the recognition that we must not paint with too broad a brush since bad facts tend to make bad law.

We begin our analysis with Beaumont Bank, N.A. v. Buller, 806 S.W.2d 228 (Tex.1991). Mrs. Buller, as the personal representative of her deceased husband’s estate, authorized transfers of estate funds to persons having no legitimate claim against the estate. These transfers included the proceeds of a $100,000 certificate of deposit. In a turnover proceeding, the trial court ordered her to provide receipts of the disbursements of the $100,000. The evidence was indisputable that the proceeds from the original CD, which was estate property, were traced to Mrs. Buller. Since Mrs. Buller held estate property, she became a holder of property of a judgment debtor— the estate. Once these assets were traced to her in her representative capacity, a presumption arose that those assets were in her possession. The burden then shifted to her to account for the assets. The Supreme Court explained that the purpose of the turnover proceeding is merely to ascertain whether or not an asset is in the possession of the judgment debtor or subject to the debtor’s control. It emphasized the general principle that “Texas courts do not apply the turnover statute to non-judgment debtors.” Because the turnover statute could only reach Mrs. Buller in her capacity as representative of the estate, the trial court erred in imposing liability in her individual capacity.

Later that same year, the Supreme Court again considered a turnover order in Schultz v. Fifth Judicial Dist. Court of Appeals at Dallas, 810 S.W.2d 738 (Tex.1991)(orig.proceeding). As Ross candidly acknowledges, the basic rule was expanded:

The statute requires a factual showing that the judgment debtor has non-exempt property that is not readily subject to ordinary execution. It may be against one or more parties other than the judgment debtor. Upon proof of the necessary facts, it authorizes the trial court to order affirmative action by the judgment debtor and others to assist the judgment creditor in subjecting such non-exempt property to satisfaction of the underlying judgment. Such an order acts as a mandatory injunction against the judgment debtor and, if there are such parties, against the receiver and any third parties interested in the property rights being adjudicated. [Emphasis added].

Id. at 740. The exception must be limited in its breadth and applied judiciously. As both parties concede, the intermediate courts have taken divergent approaches to its application. Inasmuch as our review requires us to determine whether the trial court abused its discretion in entering the order, we shall look to the jurisprudence which supports the ruling. If supporting authority is applicable to the instant facts, we would be hard pressed to conclude that an abuse of discretion has occurred.

We first find guidance in Dale v. Finance America Corp., 929 S.W.2d 495 (Tex.App.-Fort Worth 1996, writ denied). The Dales were ordered to turn over fifteen items of property, including country club memberships, assets held by a Texas corporation, assets held in trust for the Dales, stock in various corporations, and all other non-exempt property. On appeal, the Dales alleged that only property owned by the judgment debtor may be subject to a turnover order since, as a general rule, Texas courts do not apply the turnover statute to non-judgment debtors.

While not disagreeing with this basic principle, the court of appeals recognized a limited exception and concluded that in certain circumstances, a turnover order may be issued against parties other than the judgment debtor. Dale, 929 S.W.2d at 498, citing Int’l Paper Co. v. Garza, 872 S.W.2d 18, 19 (Tex.App.-Corpus Christi 1994, no writ). In circumstances where a third party retains property, “if it is shown to be non-exempt, owned by a judgment debtor and subject to the debtor’s possession or control, the trial court may issue and enforce its turnover order [against that third party].” Dale, 929 S.W.2d at 498. Once the judgment creditor traces the assets to the judgment debtor, a presumption arises that those assets were in his possession and the burden then shifts to the judgment debtor to account for the assets. Dale, 929 S.W.2d at 498, citing Butter, 806 S.W.2d at 226. The record from the hearing established that the judgment creditors were able to trace the assets listed in the turnover order back to Richard Dale and to demonstrate that the items were subject to his control, including those currently held by third parties. Because the Dales offered no evidence at the hearing, they were unable to rebut the presumption that Richard Dale possessed the turnover items once the judgment creditors traced the assets to him.

More factually analogous is Plaza Court, Ltd. v. West, 879 S.W.2d 271 (Tex.App.Houston [14th Dist.] 1994, orig. proceeding). There, Cullen Bank obtained a judgment for over $8.6 million against the Len-tinos. When Cullen Bank attempted to conduct post-judgment discovery and execute upon the judgment, the Lentinos refused to provide any post-judgment discovery, refused to appear for depositions, and refused to pay the judgment. The trial court entered a turnover order and the property relevant to the controversy was stock owned by each of the Lentinos. When the Lentinos failed to comply, the trial court entered additional orders by which a receiver secured business records, bank accounts, and postal boxes, and took control of the Lentinos various business operations. In a mandamus proceeding, the Lentinos argued that the business entities were not judgment debtors and the trial court had no authority to order the business assets turned over to a receiver in the absence of a showing of ownership by the true judgment debtors. The receiver argued that testimony at trial, contained within the record of a companion appeal, established that the third parties were all directly or indirectly owned by the Lenti-nos. He contended that because the jury found that a “remainder interest in shares of stock” was fraudulently transferred to the Lentinos’ Living Trusts, the Lentinos owned the businesses.

The appellate court disagreed. There was no question submitted to the jury which addressed ownership. Although the jury found that stock had been fraudulently transferred, there was no finding of the percentage ownership in the entities represented by the transferred stock. Nor was there a fact finding in the trial court’s judgment as to ownership. Although the receiver represented by affidavit that he examined the business records and determined that the Lentinos owned 100% of the stock, the entities alleged that the Lentino Limited Family Partnership owned the stock. The appellate court held that without a fact finding by the trial court that the Lentinos were owners of at least a controlling majority of the stock, the turnover order improperly authorized execution on assets of non-judgment debtors. “The turnover statute does not support a proceeding against an entity who is not a judgment debtor, until a judgment creditor succeeds in piercing the corporate veil, or unless the trial court makes a factual finding that the property on which execution is sought is subject to the possession or control of the judgment debtor, even if retained by a third party.” Plaza, 879 S.W.2d at 276-277 (internal citations deleted).

Ownership and Control

At this juncture, we must determine whether the trial court properly concluded that the letter of credit was within Ross’s possession and control. In Point of Error Two, Ross complains that there is no evidence that Ross owned any property right. The trial court specifically found:

The Court further finds that Defendant Richard Ross is the sole owner of Tamarack Capital, L.L.C. and Tamarack Insurance, L.L.C., (The ‘Tamarack Entities’) and that Tamarack Capital, L.L.C. and Tamarack Insurance, L.L.C., have a present right to possess and/or control Letter of Credit number D-230001 issued by JP MorganChase Bank and naming Tamarack Capital, L.L.C. and Tamarack Insurance, L.L.C. as beneficiaries, and that the Tamarack Entities have a future right to receive the proceeds of said Letter of Credit upon presentment to JP Morgan Chase Bank under its terms.

This finding stems from the following debate:

Counsel for Ross: And there’s no evidence that Mr. Ross owns this letter of credit, you know, if this letter of credit is properly [sic] under the [turnover] statute.
The Court: But he owns this company.
Counsel for Ross: He owns the company.
The Court: And that’s what — in that case—
Counsel for Access: Your Honor, the cases are consistent. The general rule is you can’t do a turnover against a third party non debtor unless you put into evidence that the judgment debtor is in control of the property.
And Mr. Ross — although either under sanctions and contempt — has not bothered to come and provide us evidence about it, just deposition testimony of — about his assets. Yet he wants to hide behind that and say that nothing is going on here is really troubling.
We’re trying to preserve the status quo. And what — and what the evidence here is, from the transcript, from Mr. Ross’s own mouth, is that he’s the owner of both of these entities. There is also a turnover order by this Court specifically naming both of these entities and requiring Mr. Ross to turn over his stock.
The Court: I think that’s — I think that’s a defining point for me, the fact that I had ordered him to turn over the stock.
Counsel for Access: And he’s not done it. And we—
The Court: And he hasn’t done it.
Counsel for Access: —wouldn t even be here because we would own the stock now and it would not be—
The Court: And you could go and exercise the letter of credit.
Counsel for Access: And then the letter of credit would come to the entities which we own rather than getting into Mr. Ross’s hands. Because the control issue nght now is in his hands. He controls these entities, so he controls the money. [Emphasis added].

It is clear from the reporter’s record that Judge Baca had before him two seasoned lawyers, excellent arguments, and the applicable case law. For him, the turning point was the shifting burden. “If he had gotten rid of the stock ... [a]nd told us so, that he didn’t own it ... otherwise I think the burden is on him to say that he doesn’t own it.... And that could be done simply with an affidavit.”

Applying Dale to these facts, we find no abuse of discretion in Judge Baca’s conclusion. Once the judgment creditor traces the assets to the judgment debtor, a presumption arises that those assets were in his possession and the burden then shifts to the judgment debtor to account for the assets. Dale, 929 S.W.2d at 498, citing Butler, 806 S.W.2d at 226. Applying Plaza, this presumption applies to assets held by a corporate entity as long as the trial court finds that the true judgment debtor owned at least a controlling majority of the stock. Such a finding justifies the issuance of a turnover order against assets of non-judgment debtor. Plaza, 879 S.W.2d at 276-77. Ross was the sole owner of the stock in two companies who had sole control of the letter of credit. Given the applicable authorities, the evidence, the failure of Ross to rebut the presumptions, and the trial court’s specific findings, we find no abuse of discretion. Points of Error One and Two are overruled.

Property Cannot Be Readily Attached By Ordinary Leyal Process

Finally in Point of Error Three, Ross complains that Appellee failed to show that the property in question is not readily subject to execution. A copy of the letter of credit was introduced into evidence, without objection, indicating that Tamarack was the beneficiary. Ross’s attorney advised the court that “the original letter of credit is held in the safe of Tamarack’s attorney in Arizona and not here in Texas.” Evidence that corporate assets are in the hands of third parties and being held out of state is sufficient to meet this requirement. Childre v. Great Southwest Life Ins. Co., 700 S.W.2d 284, 288 (Tex.App.-Dallas 1985, no writ). Efforts to obtain the stock certificates through a turnover order had previously failed. Efforts to depose Ross had failed. Efforts to enforce the judgment in Arizona had failed. Contempt orders and sanctions proved equally unsuccessful. We find no abuse of discretion in the trial court’s conclusion that the letter of credit could not be secured by ordinary legal process. Point of Error Three is overruled. Having overruled each issue for review, we affirm the judgment below.

      . While the appeal was pending, the trial court held Ross in contempt for failing to appear for his deposition, failing to produce records sought during post-judgment discovery, and failing to turnover the shares of stock in the Tamarack entities. Ross was also sanctioned for discovery violations.


author: PER CURIAM.

text:
    In the Interest of S.D.E., a minor child.
    No. 08-04-00092-CV.
    Court of Appeals of Texas, El Paso.
    May 26, 2005.

      John Whitaker, El Paso, for appellant S.D.E.
    Enrique Ramirez, El Paso, Dan Driscoll, Asst. Atty. Gen., San Antonio, for appellee Carlos Estrada.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

PER CURIAM.

Luz Chavira has appealed the trial court’s order which set aside a previous judgment establishing a parent-child relationship between her daughter and Carlos Estrada. Because the order is interlocutory, we dismiss the appeal for want of jurisdiction.

FACTUAL AND PROCEDURAL SUMMARY

S.D.E. was born April 7, 1989. In June 1990, the Attorney General filed a petition to establish the parent-child relationship alleging Carlos Estrada to be the biological father. Estrada filed a statement acknowledging paternity. On September 12, 1990, the trial court entered an order establishing paternity and ordering child support. In the intervening years, various suits for enforcement have been litigated.

On August 29, 2002, Estrada filed a motion to set aside the order establishing the parent-child relationship. All parties and the court have treated this proceeding as a bill of review. Estrada alleged that in November 2001, he learned he is not the child’s father. He and S.D.E. voluntarily submitted themselves for genetic testing on August 7, 2002. The results, which excluded him as the biological father, were attached to his motion. When the associate judge denied relief, Estrada appealed to the referring court, complaining that the test results had been disregarded. Hearings were conducted on June 9, 2003 and October 24, 2003 before the Honorable Mike Herrera. The court reporter’s record from those proceedings are before us. From that point forward, the procedural posture becomes a bit muddy. There is a reference in the record to a hearing held on February 13, 2004, but we have no transcription of it. We have two different orders dated February 27, 2004, both of which grant Estrada’s bill of review and refer the matter to the Title IV-D court master. On March 12, 2004, Estrada refiled his request that the order adjudicating paternity be vacated and set aside because it was procured by fraud. We also have an order dated March 12, 2004 granting the motion as follows:

IT IS THEREFORE ORDERED that the judgment of September 1, 1990 shall be vacated and set-aside and that the cause stand for trial on the merits.

Chavira’s notice of appeal refers to the March 12 order.

BILL OF REVIEW

The final judgment in a bill of review should either deny relief to the petitioner or grant the bill of review and set aside the former judgment, insofar as it is attacked, and substitute a new judgment which properly adjudicates the entire controversy. In the Interest of J.B.A., 127 S.W.3d 850, 851 (Tex.App.-Fort Worth 2004, no pet.), citing Tex. Employers’ Ins. Ass’n v. Arnold, 126 Tex. 466, 88 S.W.2d 473, 474 (1935); Shahbaz v. Feizy Import & Export Co., 827 S.W.2d 63, 64 (Tex.App.Houston [1st Dist.] 1992, no writ); Crabtree v. Crabtree, 627 S.W.2d 486, 487 (Tex.App.-Corpus Christi 1981, no writ). A bill of review that sets aside a prior judgment but does not dispose of all the issues of the case on the merits is interlocutory in nature and not a final, appealable order. Shahbaz, 827 S.W.2d at 64, citing Tesoro Petroleum v. Smith, 796 S.W.2d 705, 705 (Tex.1990); Hartford Underwriters Ins. v. Mills, 110 S.W.3d 588, 591 (Tex.App.-Fort Worth 2003, no pet.).

Here, the trial court set aside the prior judgment but it did not address the merits of Estrada’s claims. See J.B.A., 127 S.W.3d at 852. Instead, the court ordered that the underlying case be tried on the merits. Because the judgment granting the bill of review does not dispose of all issues, it is merely interlocutory and not appealable. Id., citing Tesoro, 796 S.W.2d at 705. We dismiss the appeal for want of jurisdiction.


text:
    Frank E. GARCIA, Appellant, v. Christine R. GARCIA, Appellee.
    No. 08-04-00108-CV.
    Court of Appeals of Texas, El Paso.
    June 2, 2005.

      John Needham, El Paso, for Appellant.
    Chris Bradley, El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from a division of property incident to divorce. For the second time in a matter of days, we are presented with an amorphous award of “reimbursement” in favor of the wife. On appeal, Frank Garcia challenges both the award of reimbursement and the disproportionate division of the community estate. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Frank and Christine Garcia married on February 14, 1999. They purchased a home for $105,000 shortly after marriage. Christine withdrew $15,060.66 from her separate property retirement account of which approximately $3,000 was paid as the down payment and at least $7,000 was spent for improvements. The couple signed a promissory note for $102,000. At the time of trial, the residence had a fan-market value of $110,000; the parties owed approximately $103,000 because they had refinanced in 2003.

Christine moved out of the home on May 2, 2003 and filed a divorce petition on September 11, 2003. In her pleadings, she alleged that she had contributed separate funds to the community estate for which she had not been adequately compensated. She sought both common law reimbursement and statutory reimbursement via economic contribution. In her inventory and appraisement, she characterized the home as community property and listed what she referred to as a reimbursement claim in the amount of $15,060.56. At trial, she asked that she be awarded $10,000 to equalize the division of the community estate.

PROCEDURAL SUMMARY

The procedural posture of the case merits discussion. A bench trial was conducted before Associate Judge Jose Juarez on April 1, 2004. Christine was represented by counsel while Frank appeared pro se. Judge Juarez completed a standard form entitled “Findings and Recommendation in Final Divorce.” Frank timely filed a handwritten notice of appeal to the referring court. However, it does not appear from the record that a hearing was either requested or conducted. The findings of Judge Juarez were adopted and signed by the Honorable Alfredo Chavez on April 12, 2004 and the final decree of divorce was signed on April 16. If hearings were conducted on either April 12 or April 16, we do not have the benefit of a reporter’s record. Our record consists of the reporter’s record from the evidentiary hearing conducted by Judge Juarez on April 1 and the clerk’s record. One exhibit was offered during the hearing, but it was not formally admitted into evidence, nor do we have a copy of it. While Christine’s inventory and appraisement appears in the clerk’s record, and as an appendix in Frank’s brief, it was not offered into evidence at trial. It does appear from the record that Judge Juarez had a copy before him.

The final decree awarded the marital home to Frank and required him to pay Christine $10,000 “for her reimbursement claim in the real property awarded in this divorce decree to [him].” In a separate section, the following recitation appears:

The court finds that separate funds of [Christine] were used for the benefit of the community estate in the sum of $10,000.00. The Court orders that the community reimburse [Christine’s] separate estate as follows: $5,000.00 by [Christine] to [Christine] and $10,000.00 by [Frank] to [Christine]. [Emphasis added].

We presume this “finding” was derived from Judge Juarez’s recommendations, but it does not track them precisely. Judge Juarez found “that sep. funds of [Christine] were used for benefit of comm, in the sum of $15,000. Court orders comm, reimburse [Christine] sep. estate as follows: $5,000 by [Christine] $10,000 by [Frank] on or before 9-1-04.” Thus, the highlighted number in the decree appears to be a typographical error. Frank did not request either traditional or statutory findings of fact and conclusions of law. See Tex.Fam.Code Ann. § 6.711 (Vernon Supp. 2004-05); Tex.R.Civ.P. 296. We have previously declined to construe the findings of the associate judge as “findings of fact” of the “referring court.” See Roberts v. Roberts, 999 S.W.2d 424, 436 (Tex.App.-El Paso 1999, no pet.).

SUFFICIENCY OF THE EVIDENCE

In his sole issue for review, Frank challenges the sufficiency of the evidence to support the reimbursement award. He also contends the error resulted in an abuse of discretion because it led to a grossly disproportionate division of the community estate. Our analysis must of necessity employ overlapping appellate standards of review. We first address the distinctions between them and how they overlap in the family law arena.

Standards of Review

Traditional Sufficiency Review

In considering a legal sufficiency or “no evidence” point, an appellate court considers only the evidence which tends to support the jury’s findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.-El Paso 1992, no writ). If any probative evidence supports the jury’s determination, it must be upheld. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); Neily v. Aaron, 724 S.W.2d 908, 913 (Tex.App.-Fort Worth 1987, no writ).

In a bench trial, findings of fact are the equivalent of a jury answer to the special issues. Associated Telephone Directory Publishers, Inc. v. Five D’s Publishing Co., 849 S.W.2d 894, 897 (Tex.App.-Austin 1993, no writ); Lorensen v. Weaber, 840 S.W.2d 644 (Tex.App.-Dallas 1992), rev’d on other grounds sub nom.; Exxon Corp. v. Tidwell, 816 S.W.2d 455, 459 (Tex.App.-Dallas 1991), rev’d on other grounds, 867 S.W.2d 19 (Tex.1993); A-ABC Appliance of Texas, Inc. v. Southwestern Bell Tel. Co., 670 S.W.2d 733, 736 (Tex.App.-Austin 1984, writ ref'd n.r.e.). Because Frank did not request either traditional or statutory findings of fact, we must presume that the trial court made all the necessary findings to support its judgment. Pharo v. Chambers County, Texas, 922 S.W.2d 945, 948 (Tex.1996); Wofford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). If the trial court’s implied findings are supported by the evidence, we must uphold the judgment on any theory of law applicable to the case. Wofford, 801 S.W.2d at 109. In determining whether some evidence supports the judgment and the implied findings of fact, we consider only that evidence most favorable to the issue and disregard entirely the contrary evidence. Id. Frank has not raised a factual sufficiency complaint.

Abuse of Discretion Standard

Most of the appealable issues in a family law case are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support. Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.-El Paso 2000, no pet.). An appeal directed toward demonstrating an abuse of discretion is one of the tougher appellate propositions. While the appellant may challenge the sufficiency of the evidence to support findings of fact, in most circumstances, that is not enough. If, for example, an appellant is challenging the sufficiency of the evidence to support the court’s valuation of a particular asset, he must also contend that the erroneous valuation caused the court to abuse its discretion in the overall division of the community estate.

The term “abuse of discretion” is not susceptible to rigid definition. London v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934 (Tex.App.-Austin 1987, no writ). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986), citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Comm.App.-1939, opinion adopted). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

Which Standard Do We Apply?

The Family Code requires that the trial court divide the estate of the parties in a manner that is just and right having due regard for the rights of each party. Tex.Fam.Code Ann. § 7.001 (Vernon 1998). There is no requirement that the court effectuate an equal division. Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). The courts have determined a number of factors which may justify a disproportionate division. Murff 615 S.W.2d at 698-99. In reviewing the equitable remedy fashioned by the trial court in achieving a just and right division, we must determine not only whether the trial court’s findings are supported by the evidence, we must also determine whether error, if established, caused the trial court to abuse its discretion. We have repeatedly held that once it has been determined that the abuse of discretion standard applies, an appellate court should engage in a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) Did the trial court err in its application of discretion? Knight v. Knight, 131 S.W.3d 535, 539 (Tex.App.-El Paso 2004, no pet.); Sandone v. Miller-Sandone, 116 S.W.3d 204, 206 (Tex.App.-El Paso 2003, no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex.App.-El Paso 1998, no pet.). The traditional sufficiency review comes into play with regard to the first question; however, our inquiry cannot stop there. We must proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. Stated inversely, we must conclude that the trial court’s decision was neither arbitrary nor unreasonable.

A Creature Called Reimbursement

Family law practitioners have dealt with reimbursement for decades, although the magic word did not appear in the Texas Family Code until the Legislature created a statutory right of economic contribution in 2001. Tex.Fam.Code Ann. Title 1, Chapter 3, Subchapter E, § 3.401 et seq., added by Acts 2001, 77th Leg., R.S. ch. 838, § 2, eff. Sept. 1, 2001. Generally speaking, these amendments were not well received by family law practitioners and both bench and bar have struggled with their application. Christine pled for both common law reimbursement and economic contribution. While the record does not reveal the precise theory upon which the $10,000 award was based, we can discern from the testimony how the number was derived: $3,000 refers to the down payment and $7,000 refers to the improvements. For reasons which we will detail, Christine’s recovery for the down payment hinges on common law reimbursement while her recovery for improvements falls within the realm of economic contribution.

Common Law Reimbursement

Although case law is replete with references to a “right” of reimbursement, the rule of reimbursement is purely an equitable one. Vallone v. Vallone, 644 S.W.2d 455, 458 (Tex.1982), citing Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943). It is not an interest in property or an enforceable debt, per se, but an equitable right which arises upon dissolution of the marriage through death, divorce or annulment. Id., citing Burton v. Bell, 380 S.W.2d 561 (Tex.1964); Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935). An equitable right of reimbursement arises when the funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit. Id.

A claim for reimbursement of funds expended by an estate for improvements to another estate is to be measured by the enhancement value to the benefit-ted estate. Kimsey v. Kimsey, 965 S.W.2d 690, 700 (Tex.App.-El Paso 1998, pet. denied), citing Anderson v. Gilliland, 684 S.W.2d 673, 675 (Tex.1985). This measurement is applied whether the claim for reimbursement is based on funds expended for payment of a purchase money debt or for a capital improvement to another estate. Id., citing Penick v. Penick, 783 S.W.2d 194, 197 (Tex.1988). The party claiming the right of reimbursement has the burden of proof. Id., citing Jensen v. Jensen, 665 S.W.2d 107, 110 (Tex.1984); Vallone, 644 S.W.2d at 459.

Since common law reimbursement is an equitable claim, a court of equity is bound to look at all facts and circumstances to determine what is fair, just, and equitable. Id., citing Penick, 783 S.W.2d at 197-98; Magill v. Magill, 816 S.W.2d 530, 535 (Tex.App.-Houston [1st Dist.] 1991, writ denied). This allows for consideration of offsetting benefits. Id. at 700-01, citing Jensen, 665 S.W.2d at 109; Magill, 816 S.W.2d at 535. Great latitude must be accorded to the trial court in applying equitable principles to value such a claim, for it is not just a balancing of the ledgers between competing marital estates. Id. at 701, citing Penick, 783 S.W.2d at 198; Magill, 816 S.W.2d at 535. The discretion to be exercised in evaluating a claim for reimbursement is equally as broad as the discretion exercised by a trial court in making a just and proper division of the community estate. Id., citing Penick, 783 S.W.2d at 198.

The economic contribution statute does not apply to purchase money expended by Christine’s separate estate. The use of separate property in the acquisition of property during marriage gives the contributing spouse equitable title to the extent the contribution is not a gift. The Amarillo Court of Appeals has determined that contributing separate funds as a down payment on real estate does not constitute an economic contribution under the statute. In the Matter of the Marriage of Royal, 107 S.W.3d 846, 851-52 (Tex.App.Amarillo 2003, no pet.). One commentator has agreed:

[R]emember that the statute doesn’t apply until the day after title is determined. So, if you have a mixed title character claim, don’t look to the statute for the answer. Look to all of the mutation/mixed title case law. The Economic Contribution Statute only applies after title is determined.
Character is determined at the time the property is purchased. So down payments and debt assumed at closing are used to determine the initial character of the property and are not economic contribution claims.

Jim Penn C.P.A., Theory of Economic Contribution, Vol. 23 Family Law Forum Issue 4 p. 4 (December 2004).

In Royal, the court of appeals affirmed an award of reimbursement to the husband in an amount equal to his separate property down payment on the community residence. Frank has not disputed at trial or on appeal that Christine paid the down payment from her separate funds. He explains in his brief that he also contributed separate property, but he did not plead it and he did not trace it. More importantly, since he has not raised a factual sufficiency complaint, we do not address the controverting testimony. Because Christine’s testimony supports the common law reimbursement claim, we find the evidence sufficient to support an award of $3,000.

Economic Contribution

A marital estate that makes an economic contribution to property owned by another marital estate has a claim for economic contribution with respect to the benefitted estate. Tex.Fam.Code Ann. § 3.403(a). For purposes of our analysis, “economic contribution” is the dollar amount of capital improvements to property other than by incurring debt. Tex.Fam. Code Ann. § 3.402(a)(6). The amount of a claim for economic contribution is determined by multiplying the equity in the benefitted property on the date of divorce by a fraction. Id. § 3.403(b). The numerator is the amount of the economic contribution by the contributing estate. The denominator is equal to the sum of that same economic contribution and the contribution by the benefitted estate to the equity in the property. Where the benefitted estate is the community estate, the amount of the contribution by the benefitted estate is measured by determining the net equity of the community in the asset as of the date of the first economic contribution by the contributing separate estate and any additional economic contribution to the equity owned by the community thereafter. Id.; see LaFrensen v. LaFrensen, 106 S.W.3d 876, 879 n. 2 (Tex.App.-Dallas 2003, no pet.). In a decree of divorce, the court shall determine the rights of both spouses in a claim for economic contribution as provided by Family Code Chapter 3, Sub-chapter E, in a manner that the court considers just and right, having due regard for the rights of each party. Tex. Fam.Code Ann. § 7.007(a).

Equity at the time of divorce. The statutory formula requires a court to multiply the home’s equity at the time of divorce by a fraction. The owner of real property may testify to her opinion of its fair market value, even if she would not qualify to testify about the value of property belonging to someone else. See Porras v. Craig, 675 S.W.2d 503, 504 (Tex.1984); A.G.E., Inc. v. Buford, 105 S.W.3d 667, 677 (Tex.App.-Austin 2003, pet. denied). Christine testified that the fair market value at the time of divorce was $110,000. Due to refinancing, the balance of the lien was $103,000. Thus, the equity (FMV less amount of the lien) was $7,000.

Numerator of the fraction. The numerator is $7,000, the sum of the economic contribution claimed by Christine’s separate estate. She testified that she spent $7,000 of her retirement funds for improvements to the home, including raising the rock wall, installing two large gates in the back yard, two additional large gates in the side yard, building a bar onto the kitchen, installing an extensive vanity with a closet in the master bedroom and carpeting throughout the home. All of these improvements were made before the couple ever moved in.

Denominator of the fraction. The denominator is the sum of Christine’s economic contribution ($7,000), the community estate’s equity in the home on the date of the first contribution (none), and any additional economic contribution to the benefit-ted property by the benefitted estate after the first contribution by the contributing estate. Economic contribution requires the reduction of the principal amount of that part of a debt incurred during marriage and secured by a hen on the property. It also applies to the dollar amount of the refinancing of the mortgage to the extent the refinancing reduces the principal. Even Frank admitted that the refinancing resulted in a mortgage of $103,000. The record thus reflects that the refinancing did not reduce the principal. The denominator, then, is $7,000 + 0 + 0 = $7,000.

The fraction. $7,000 = 1
$7,000
Calculation. $7,000 X 1 = $7,000

The amount of the economic contribution claim is $7,000. Because the amount of the claim does not exceed the equity in the home, there is no violation of Section 3.403(d)(the amount of a claim under this section may not exceed the equity in the property on the date of divorce). Tex. Fam.Code Ann. § 3.403(d).

If It Walks Like a Duck ...

Without the benefit of findings of fact, we cannot ascertain precisely the theory of recovery employed by Judge Juarez. We must presume that the trial court made all the necessary findings to support its judgment and if the implied findings are supported by the evidence, we must uphold the judgment on any theory of law applicable to the case. The judgment here may be affirmed by applying economic contribution to the improvements and common law reimbursement to the purchase money-

Must we reverse because the trial court mislabeled the total award as “reimbursement” and did not allocate specific dollars to a proper theory of recovery? We find no error in attaching a misnomer to the remedy employed. We conclude that the constituent elements are properly aligned: the pleadings support the evidence, the evidence supports the implied findings of fact, and the findings support the judgment.

DISPROPORTIONATE DIVISION

The second part of Frank’s argument is that the reimbursement award so skewed the overall division of the community estate as to constitute an abuse of discretion. He suggests that Christine was awarded 92%. We disagree with his calculations. Christine testified that Frank had $11,440 in community property in his possession. This number appears in her inventory, which although not admitted into evidence, serves as the basis for Frank’s computations. The itemization to which he refers includes only personalty; it does not include the residence which he was awarded. Christine’s testimony also established that the equity in the home was $7,000, which must be added to Frank’s column. In reality, Frank was awarded community assets totaling $18,440; Christine was awarded community property valued at $5,900. Frank assumed indebtedness of $2,500 while Christine assumed debts of $6,000. The net award to Frank is $15,940 and the net to Christine is a negative $100. Taking into consideration the reimbursement award, we subtract $10,000 from Frank’s assets and add $10,000 to Christine’s. Frank ends up with $5,940 while Christine receives $9,900. This results in a 62%-38% division in Christine’s favor. While this is a disproportionate division, it is not as grossly disproportionate as Frank contends.

Frank complains that there is “no evidence” to support the disproportionate division. Again we must disagree. Our jurisprudence commonly refers to the “Murff” factors which a court may consider in making a disproportionate division. Murff, 615 S.W.2d at 698-99. These include the disparity of income or earning capacity, the spouses’ capacities and abilities, benefits which a party not at fault would have derived from a continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and nature of the property. Id. Here, the trial court heard evidence relating to the disparity of income and the size of the parties’ separate estates. Christine testified that she earned $6,500 in the previous year while Frank earned $50,000. Her separate estate totaled $4,250 while Frank’s totaled $9,650, excluding his retirement benefits. Frank admitted that his retirement account contained “$40,000 or so.” There was sufficient evidence from which the trial court could conclude that a disproportionate division was just and right. We find no abuse of discretion. We overrule the sole point and affirm the judgment of the trial court.

      . Despite the fact that Christine used traceable separate funds for the down payment of the home, she has not claimed a separate property interest in it. The purchase of property during marriage partly with community funds and partly with separate funds of one of the spouses creates a tenancy in common between the separate and community estates, each owning an interest in the proportion that it supplies to the consideration. Gleich v. Bongio, 128 Tex. 606,99 S.W.2d 881, 883 (1937). Nor has she complained that the award of the home to Frank has resulted in divestiture of separate property in violation of Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 142 (Tex.1977).

      . Under the Family Code, "equity” means, with respect to specific property owned by one or more marital estates, the amount computed by subtracting from the fair market value of the property as of a specific date the amount of a lawful lien specific to the property on that same date. Tex.Fam.Code Ann. § 3.401(3).


author: Opinion by Justice ROSS.

text:
    Isaiah Scott BOONES, Appellant v. The STATE of Texas, Appellee.
    No. 06-04-00111-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted March 30, 2005.
    Decided June 6, 2005.

      Larry W. Fields, Carthage, for appellant.
    Danny Buck Davidson, District Attorney, Carthage, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by Justice ROSS.

Isaiah Scott Boones appeals from his conviction for aggravated assault with a deadly weapon. Following a jury trial, Boones pled true to the enhancements for two prior felony convictions. The trial court sentenced Boones to eighty years’ imprisonment consistent with the jury’s assessment. On appeal, Boones argues the trial court erred by 1) failing to dismiss the entire array after sustaining a Batson challenge, 2) excluding a qualified juror from serving as the alternate juror after returning a challenged juror to the array, and 3) failing to correctly instruct the jury concerning parole. Because the trial court’s remedy to the Batson challenge was not error, because any error concerning the alternate juror was harmless, and because Boones has failed to show the parole instruction resulted in egregious harm, we affirm.

1) The Trial Court Did Not Err In Failing To Dismiss the Entire Array

In his first point of error, Boones contends Article 35.261 of the Code of Criminal Procedure required the trial court to call a new array once it found that a juror had been struck from the jury due to his race. See Tex.Code Crim. Proc. Ann. art. 35.261 (Vernon 1989). Boones argues the trial court erred by reinstating the juror rather than calling a new array.

During voir dire, the State used its peremptory strikes to strike six of the eight African-American jurors within strike range. Boones objected based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State provided reasons for striking each of the six jurors. The only reason the State provided for striking juror Larry Tyrone Harris, however, was that Harris failed to completely fill out his juror questionnaire. The defense pointed out that, because Harris stated he was single, the only sections not filled in were the occupation and work telephone number. Harris did list an employer. The defense also pointed out there were other jurors, not African-American, who also failed to fill out their questionnaires completely and who were not struck. The State initially said the failure to complete the questionnaire was the only reason for striking Harris. After reviewing the questionnaire, the trial court asked the State if it had any additional reasons for striking Harris. The State responded there was a warrant for assault that was recalled on a Larry Harris and “we think that it was him.” The trial court found that the State provided race-neutral explanations for all the strikes except Harris and ordered that Harris be reinstated on the jury panel. Boones did not request the trial court to dismiss the panel and call a new array, nor did Boones object to the trial court’s failure to dismiss the array pursuant to Article 35.261.

A party is prohibited under the Equal Protection Clause from using peremptory challenges to exclude otherwise qualified and unbiased persons from a jury solely on the basis of their race. Id. at 88, 106 S.Ct. 1712. The Texas Legislature has codified the Batson rule in Tex.Code CRim. PROC. Ann. art. 35.261. A Batson challenge consists of three steps. Ford v. State, 1 S.W.3d 691, 693-94 (Tex.Crim.App.1999) (citing Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). First, the party challenging the strikes must make a prima facie case of discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Batson, 476 U.S. at 93-94, 106 S.Ct. 1712. The burden then shifts to the proponent of the- strike to make a reasonable race-neutral explanation for the strike. Id.; Williams v. State, 937 S.W.2d 479, 485 (Tex.Crim.App.1996). As long as no discriminatory intent is inherent in the explanation given, the explanation need not be persuasive or even plausible. Purkett, 514 U.S. at 768, 115 S.Ct. 1769; Williams, 937 S.W.2d at 485. Third, if the proponent of the strike produces a race-neutral reason for the strike, the party making the challenge shoulders the burden of proving intentional discrimination. Purkett, 514 U.S. at 768, 115 S.Ct. 1769; Williams, 937 S.W.2d at 485. “At this stage, ‘implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.’” Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Purkett, 514 U.S. at 768, 115 S.Ct. 1769). The trial court must determine whether the party making the challenge carried the burden of persuasion by proving purposeful discrimination. Mil ler-El, 537 U.S. at 339, 123 S.Ct. 1029; Purkett, 514 U.S. at 767, 115 S.Ct. 1769. In this case, the trial court found the State improperly exercised a peremptory challenge on Harris. The issue raised in this case is whether the trial court’s remedy was appropriate.

The United States Supreme Court explicitly declined to instruct courts as to the appropriate remedy when a juror is struck due to race. Batson, 476 U.S. at 99, 106 S.Ct. 1712. After the Supreme Court’s decision in Batson, the Texas Legislature enacted Article 35.261, which provides only one remedy — dismissal of the entire panel. See Tex.Code Crim. Prog. Ann. art. 35.261, That article provides, “If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.” Tex. Code Crim. Peoc. Ann. art. 35.261(b). The Texas Court of Criminal Appeals has since noted that the remedy provided for by Article 35.261 “may be unconstitutionally restrictive.” State ex rel. Curry v. Bowman, 885 S.W.2d 421, 424 (Tex.Crim.App.1993). The court reasoned that dismissing the entire array is “not a just and reasonable vindication of a prospective juror’s right” and held that the trial court “may fashion a remedy in its discretion consistent with Batson and its progeny.” Id. at 425. In Bowman, the Texas Court of Criminal Appeals held that the decision to reinstate the excluded veniremembers to the jury was an acceptable remedy. Id. As in this case, the defendant in Bowman did not expressly assert any statutory rights. Id. “[T]he remedy prescribed by article 35.261 is not exclusive” and “a trial court is authorized to remedy a Batson error by reinstating the excluded venire member to the trial jury.” Craig v. State, 82 S.W.3d 451, 453 n. 1 (Tex.App.-Austin 2002, pet. ref'd). The trial court did not abuse its discretion by reinstating the excluded potential juror to the jury. We overrule Boones’ first point of error.

2) Any Error in the Selection of the Alternate Juror Was Harmless

Boones contends the trial court erred by not designating Randy Graves as the alternate juror instead of Dena Holmes. When the trial court reinstated Harris, the alternate juror was not changed. Graves, who had previously been the twelfth juror and was now the thirteenth potential juror, was not called as the alternate. Instead, Dena Holmes, who had been designated the alternate juror before Harris was reinstated, was still designated as the alternate juror. Boones argues that the trial court erred by not changing the alternative juror and that its actions, in effect, gave the State an extra peremptory challenge.

Boones’ argument essentially challenges the procedure used by the trial court in selecting the alternate juror. The trial court used a different procedure other than simply accepting the thirteenth potential juror as the alternate juror. This procedure was likely motivated by the requirements of the Government Code in selecting an alternate juror. Section 62.020(e) of the Government Code grants an additional peremptory strike if one alternate is selected, but it explicitly limits the use of this additional strike to the selection of the alternate juror. Tex. Gov’t Code Ann. § 62.020(e) (Vernon 2005). Further, the Government Code prohibits the use of other peremptory challenges allowed by law or by rule against an alternate juror. Id. Section 62.020(e) provides:

Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law or by rule if one or two alternate jurors are to be impaneled. Each side is entitled to two peremptory challenges in addition to those otherwise allowed by law or by rule if three or four alternate jurors are to be impaneled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by law or by rule may not be used against an alternate juror.

Id. The additional peremptory strikes and the limitations on which peremptory strikes may be used to select the alternate juror likely motivated the trial court to follow the procedure that it did.

The trial court calculated the potential strike range for the jury panel and then designated the next three jurors on the list as the permissible range for alternates. First, the trial court determined the last possible potential juror who could serve on the jury. Because one potential juror was excused and each side had ten peremptory strikes, the last possible juror who could serve on the jury was the thirty-third potential juror. The trial court then designated the next three potential jurors as the range where the parties could exercise their one additional peremptory challenge. Because the range of alternate jurors was separate from the range of jurors eligible for the jury, the reinstatement of Harris did not affect the designation of Holmes as the alternate. Although the State argues this method is the only logical procedure that will comply with the Government Code’s provisions, it is not necessary we reach that conclusion in this case.

Even if the trial court’s procedure was in error, Boones has failed to show the alleged error resulted in harm. The alternate juror was dismissed without serving on the jury. Therefore, the error, if any, was clearly harmless. See Tex.R.App. P. 44.2. We overrule Boones’ second point of error.

3) No Egregious Harm Shown Concerning the Parole Instruction

Boones contends in his third point of error the trial court erred in giving the jury an instruction concerning parole law which differs from the standard parole instruction contained in Article 37.07 of the Code of Criminal Procedure. See Tex. Code CRiM. PROC. Ann. art. 42.12, § 3g(a)(l) (Vernon Supp.2004-2005). According to Boones, the trial court committed reversible error because the instruction is mandatory.

The instruction given to the jury differed from the language required by the rule. Specifically, the instruction omitted part of the discussion about good conduct time. The charge required by Article 37.07, § 4(a) reads as follows:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

Tex.Code Crim. Pkoc. Ann. art. 37.07, § 4(a) (Vernon Supp.2004-2005). “[T]he over-all purpose of the instruction is to inform jurors of these concepts as a general proposition, but to prohibit the jury from using its notions of parole or ‘good conduct time’ in any calculus in assessing the appropriate punishment.” Luquis v. State, 72 S.W.3d 355, 360 (Tex.Crim.App.2002). The Texas Court of Criminal Appeals has warned against deviating from the language of the statute. See id. at 363. The trial court has a mandatory duty to instruct the jury with the statutory charge. See id. The charge given to the jury in this case omitted the instruction concerning the accrual of good conduct time by a prisoner. However, the charge did inform the jury that it was not permitted to consider the extent that good conduct time may be awarded to Boones. The charge given to the jury reads in pertinent part:

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will be [sic] not become eligible for parole until the actual time served equals one-half of the sentence imposed or thirty (30) years, whichever is less, without the consideration of any good conduct time he may earn. Eligibility for parole does not guarantee that parole will be granted.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

We review errors in the jury charge using the standard set out in Almanza. Brown v. State, 122 S.W.3d 794, 803 (Tex.Crim.App.2003); see Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g). The standard of review for errors in the jury charge depends on whether the defendant properly objected. Almanza, 686 S.W.2d at 171. If a proper objection was raised, reversal is required if the error is “calculated to injure the rights of defendant.” Id. In other words, an error that has been properly preserved is reversible unless it is harmless. Id. If a defendant does not object to the charge, reversal is required only if the harm is so egregious the defendant has not had a fair and impartial trial. Rudd v. State, 921 S.W.2d 370, 373 (Tex.App.-Texarkana 1996, pet. ref'd).

While Boones did object to the charge, his objection concerned the inclusion of an instruction on parole law, rather than an objection to the content of the instruction. To preserve error for appellate review, the complaining party must make a timely, specific objection explaining the grounds for the objection, if the grounds are not apparent from the context. Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App.1998). The issue raised on appeal must correspond to the objection made at trial. Id. At trial, Boones made the following objection: “Judge, other than a general objection to the Charge, a specific one, that’s the inclusion of the parole law, we don’t have any other objections at this time.” Although “no technical considerations or form of words” are necessary, the defendant is required to “let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Lankston v. State, 827 S.W.2d 907, 909. (Tex.Crim.App.1992). Boones’ objection is insufficient for the trial court to clearly understand he is objecting to the charge based on its deviation from the statutory language. Because the defense did not make a specific objection which corresponds to the complaint on appeal, we will review the alleged charge error under the egregious harm standard.

Where there has been no objection, we will reverse the causé only if an appellant has shown the error caused egregious harm. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994); Blumenstetter v. State, 135 S.W.3d 234, 240 (Tex.App.-Texarkana 2004, no pet.). Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App.1991); Hall v. State, 937 S.W.2d 580, 583 (Tex.App.-Texarkana 1996, pet. ref'd). We determine harm in light of the entire jury charge, the state of the evidence, including contested issues and the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998); Rudd, 921 S.W.2d at 373. The purpose is to illuminate the actual, not just the theoretical, harm to the accused. Hines v. State, 978 S.W.2d 169, 175 (Tex.App.-Tex-arkana 1998, no pet.); Rudd, 921 S.W.2d at 373.

If it was error for the trial court to make these changes in the instruction required by Article 37.07, the error did not result in egregious harm to Boones. In this case, the instruction given to the jury simply omitted the explanation of good conduct time. In Bolden v. State, the First Court of Appeals held no harm had been shown when an instruction omitted all reference to “good conduct time.” 73 S.W.3d 428, 433-34 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). As the First court stated, the instruction was intended to increase the sentences assessed by juries and does not benefit the defendant. The inclusion of the instruction concerning “good conduct time” probably would not have benefitted Boones. Further, unlike the instruction in Bolden, which completely omitted any reference to “good conduct time,” the instruction in this case informed the jury that it was not to consider the effect of any “good conduct time” in assessing the sentence. See id. at 433. Because we assume the jury follows the trial court’s instruction, we must assume the jury did not consider the effect of the “good conduct time” on the defendant. See Luquis, 72 S.W.3d at 366. Boones has not directed us to any place in the record showing that the jury discussed, considered, or attempted to apply what it was told about “good conduct time” or showing that the jury was confused about the possible application of “good conduct time.” Boones has not shown the instruction resulted in egregious harm. We overrule his final point of error.

Summary

The trial court did not err in reinstating a juror after sustaining the Batson challenge to one of the struck jurors rather than dismissing the entire array. Boones did not object or request the dismissal of the entire panel or invoke any statutory right to have the entire array dismissed. The trial court did not abuse its discretion by remedying the Batson violation by reinstating the struck juror. Even if the trial court’s procedure in selecting the alternate juror was error, any such error was harmless. Finally, Boones has failed to show the parole instruction resulted in egregious harm.

We affirm the judgment.

      . Id. Indeed, the wisdom of the statutory charge has been questioned due to its capacity to mislead the jury in cases, such as this, where good conduct time the defendant earns will not accelerate his or her eligibility for release on parole or affect his or her eligibility for release to mandatory supervision. See Luquis, 72 S.W.3d at 362; Owen v. State, No. 06-03-00051-CR, 2004 WL 299856, at *2 n. 1, 2004 Tex.App. LEXIS 1556, at *4 n. 1 (Tex.App.-Texarkana Feb. 18, 2004, pet. ref'd) (not designated for publication); Rogers v. State, 87 S.W.3d 779, 783-85 (Tex.App.-Texarkana 2002, pet. ref'd) (Ross., L, concurring); see also Tex. Gov't Code Ann. § 508.145(d) (Vernon 2004).