author: TERRY McCALL, Justice.

text:
    Deborah BOWEN, Appellant, v. STATE of Texas, Appellee.
    No. 11-08-00262-CR.
    Court of Appeals of Texas, Eastland.
    Sept. 2, 2010.

      John Saringer, Abilene Office, Wagstaff, Alvis, Stubbeman Seamster & Longacre, Abilene, for appellant.
    Ann Reed, District Attorney, Sweetwa-ter, Patricia Dyer, Assistant Crim. Dist. Atty., Abilene, Jeffrey L. Van Horn, State Prosecuting Atty., Austin, for appellee.
    Panel consists of: WRIGHT, C.J., McCALL, J„ and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

This case involves a family trust established by the will of Alfred P. Douglass. The initial primary beneficiary was his wife. Upon her death, the trust was to terminate, and its assets distributed equally to their children: appellant Deborah Bowen and her brother or their descendants per stirpes. A jury convicted appellant of misapplication of fiduciary property owned by Dana White (or held for her benefit) of the value of $200,000 or more. See Tex. Penal Code Ann. § 32.45 (Vernon Supp. 2009). Appellant was sentenced to eight years in the Texas Department of Criminal Justice — Institutional Division, assessed a $10,000 fine, and ordered to pay restitution in the amount of $350,000 to Dana White and her brothers, Cody Douglass and Michael Douglass, who were the children of appellant’s deceased brother.

In her first two issues, appellant contends that the evidence was legally and factually insufficient to prove each element required for a finding of misapplication of fiduciary property. In her third and fourth issues, appellant contends that the evidence was legally and factually insufficient to prove appellant committed a first degree felony because the evidence did not show that over $200,000 of trust assets were owned by Dana White or held for her benefit. Although there is substantial evidence that appellant as trustee misapplied more than $200,000 of the family trust corpus in question, the evidence is legally insufficient to show that $200,000 of trust assets that were misapplied were owned by Dana White or held for her benefit. At most, slightly over $100,000 of trust assets were owned by Dana White or held for her benefit. The jury charge did not include a lesser offense. We reverse and enter a judgment of acquittal.

Standard of Review

In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex.Crim.App.2009); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App.2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Laster, 275 S.W.3d at 519; Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App.2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App.1997); Cleiuis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

The appellate court reviews the factfin-der’s weighing of the evidence and cannot substitute its judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. Due deference must be given to the factfinder’s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9; Jones v. State, 944 S.W.2d 642 (Tex.Crim.App.1996). The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses’ testimony. Tex.Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). This court has the authority to disagree with the factfinder’s determination “only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.” Johnson, 23 S.W.3d at 9.

Background Facts

Alfred P. Douglass died in March 2001, leaving a substantial estate. The community estate was valued at $1,723,991.63; Alfred’s one-half was valued at $861,995.82. He was survived by his wife, Parnice W. Douglass, and his two children, Jackie Douglass and appellant. Alfred’s will established the Alfred P. Douglass Trust, which utilized the Federal Unified Gift and Estate Tax Credit to exclude the amount placed in the marital trust from estate taxes. Parnice was the primary beneficiary; and, upon her death, the trust assets were to be distributed to Alfred’s living descendants per stirpes. The trust account was funded with $673,219 in an account at Edward D. Jones & Co. (Edward Jones) in Sweetwater. The initial co-trustees were Parnice and Jon Bergstrom of Edward Jones. The trust produced an income of approximately $33,000 in 2002.

Jon Bergstrom of Edward Jones, Alfred’s financial adviser for eighteen years, testified that the purpose of the trust was to take advantage of the unified tax credit under the inheritance tax exemption. Bergstrom invested the trust assets in tax-free municipal bonds because Alfred did not want the trust to invest in risky assets or to pay taxes on its income. According to Bergstrom, Alfred wanted the trust assets to remain invested and increase until both he and his wife had died.

After Alfred’s death, Jackie Douglass became the primary caretaker of Parnice. He lived in the same town as Parnice and farmed his own land and land owned by Parnice. Jackie died unexpectedly in October 2002. He was survived by his three children: Dana White, Cody Douglass, and Michael Douglass. Appellant and Parnice served as administrators of Jackie’s estate.

Appellant became the caretaker of Parn-ice after Jackie’s death. In October 2002, the month that Jackie died, Parnice executed a statutory durable power of attorney naming appellant as her attorney-in-fact. The power of attorney gave appellant the power to handle all of Parnice’s financial affairs. In the summer of 2004, appellant and her husband moved into Parnice’s home and became her full-time caretakers. Jon Bergstrom was asked to resign as co-trustee of the trust, and Parn-ice appointed appellant as the successor co-trustee. At the time appellant was appointed co-trustee in May 2004, the balance in the trust account was $620,065. Within three years, appellant had reduced the trust account to $12,000.

It had taken Alfred and Parnice a lifetime to build an estate of $1,728,991. At the time of Alfred’s death, Parnice had inherited $188,776 (Alfred’s one-half minus the $673,219 placed in the trust) from Alfred and her one-half of the community estate was valued at $861,995. Thus, in addition to being the primary beneficiary of the trust, Parnice had assets of $1,050,772 when Alfred died in March 2001. When Parnice died in March 2006, five years after Alfred died, appellant had reduced Parnice’s assets from $1,050,772 to an estate of $603,879.87. All of Parn-ice’s investments in bonds and cash had disappeared; the land owned by Parnice at her death amounted to $592,000 of the $603,879 according to Parnice’s probate inventory filed by appellant. At the time of Parnice’s death, the trust had assets of approximately $376,584, but appellant as trustee did not distribute one-half of the assets to Jackie’s children as required by the trust provisions. Appellant ultimately distributed all of the remaining trust assets to herself. By December 2006, the trust only had a balance of $124,435.61. The Edward Jones statement for January 1 — 26, 2007, reflects a trust balance of zero. Jason Blake of Edward Jones testified that there was only $12,000 in the trust account when Edward Jones received a lis pendens freezing the account.

The trust provided that the co-trustees could distribute income and principal from the trust to Parnice:

[A]s are necessary, when added to the funds reasonably available to her from all other sources known to [the] Trustee to provide for her health, support, maintenance and education, taking into consideration her age, education and station in life.

The co-trustees, in their discretion, could also make distributions from the trust to any of Alfred Douglass’s descendants:

[A]s are necessary, when added to the funds reasonably available to [them] from all other sources known to [the] Trustee, to provide for their health, support, maintenance and education, taking into consideration their age, education and station in life.

Parnice had significant funds reasonably available to her from sources other than the trust. At about the same time the trust was set up, Parnice also had a separate account with Edward Jones in the amount of $293,336. Parnice owned approximately 1,100 acres, and she was earning income from a lease of the land to Terry Lee Coker. Parnice also had income from Social Security, income from her IRA account, and a separate banking account at Hamlin National Bank that had an average balance of between $75,000 to $200,000 during Alfred’s lifetime. At the time of her death in March 2006, Parnice had a balance of $217,000 in that account, although we note that appellant did not list that amount in the probate inventory she filed on behalf of Parnice’s estate.

Shortly after Jackie’s death, appellant and Parnice opened a joint checking account numbered 791-07863 with right of survivorship at Edward Jones. The joint checking account was initially funded with money from another account owned by Parnice; subsequently, $5,000 was withdrawn from the trust and put in the joint account. Bergstrom had concerns because the joint tenancy account could be used to avoid the equal division provisions (one-half to Jackie and his descendants and one-half to appellant and her descendants) of the trust.

Bergstrom’s concerns were justified. In August 2003, $60,000 was "withdrawn from the trust account (apparently by Parnice as co-trustee) and put into the joint account. Appellant testified that the $60,000 was to help appellant and her husband and that the earlier $5,000 was a loan to Jackie. Bergstrom resigned as co-trustee in May 2004, and Parnice appointed appellant as co-trustee. On numerous occasions, appellant then transferred money from the trust to her own account, her joint account with Parnice, or to Parnice’s account. And appellant had a power of attorney from Parnice that allowed her to withdraw funds from Parnice’s separate accounts. Beginning with the first $5,000 withdrawal from the trust on December 18, 2002, a total amount of $329,140.20 was withdrawn from the trust and placed in the joint account by April 2006.

Expenditures utilizing trust funds included a 1998 GMC Yukon SUV titled in appellant’s name, many pieces of farm equipment, several farm tractors, several trailers, trucks, jeeps, an old Cadillac, a sand buggy, a Caterpillar bulldozer, a tráiler to carry the bulldozer, an asphalt spreader, a Case backhoe, and many other items. None of the items were ever titled in the name of the trust.

Appellant acknowledged that the trust was funded with $673,219 when Alfred died and that, by May 2002, the trust account had increased to $687,000. She also acknowledged that the titles to the farm equipment, tractors, trailers, trucks, jeeps, bulldozer, backhoe, and other items were usually put in her name. On February 17, 2006, a month before Parnice died, trust funds were used to purchase a $25,000 motor home from Fun Time RV. Appellant said that she sold the motor home after Parnice’s death and kept the money. Two days before Parnice died, appellant used trust funds to purchase a classic Thunderbird for $25,000. Appellant sold it after Parnice’s death, realizing a $9,000 profit. Appellant kept the proceeds.

There were a number of checks, funded from trust funds, in the amount of $3,000 payable to the Office of the Standing Trust in connection with appellant’s bankruptcy restitution payments. Appellant explained that, at the time of Parnice’s death in March 2006, appellant was still paying $3,000 a month to her creditors in bankruptcy.

Appellant testified that the construction business she owned with her husband had filed for bankruptcy in 2002. Although appellant testified that all of the trucks, jeeps, trailers, a dozer, and a backhoe were purchased for the farm, a more reasonable inference is that appellant purchased them with trust funds for her construction business or for the benefit of her and her husband, not for the benefit of Parnice. Appellant testified that Parnice wanted to get back into farming after Alfred died in 2001. Both Alfred and Parnice were eighty-one years of age in 2001. They had quit farming years before. Terry Lee Coker, who lives in Roby near Sylvester, testified that Alfred had turned over the farming to him. Coker worked the land on a crop-sharing basis, paying Alfred and Parnice 25% of the crop proceeds. If Coker did not make a crop, he would pay them 25% of the crop insurance. He paid Parnice’s estate 25% of the crop insurance that he collected in the year that Parnice died. There is no evidence that appellant or her husband knew anything about farming. Farming, a risky enterprise, was something that appellant and her husband wanted to try. It was not for the benefit of Parnice or “to provide for her health, support, maintenance and education, taking into consideration her age, education and station in life.”

The jury returned a unanimous verdict that, as a fiduciary, appellant had intentionally, knowingly, or recklessly misapplied property of more than $200,000 owned by Dana White or held for her benefit.

Analysis

Section 32.45 of the Texas Penal Code defines the offense of misapplication of fiduciary property, providing in pertinent part:

A person commits an offense if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.

Section 32.45(b).

When a valid trust is created, the beneficiaries become the owners of the equitable or beneficial title to the trust property and are considered the real owners. Faulkner v. Bost, 137 S.W.3d 254, 258 (Tex.App.-Tyler 2004, no pet.); City of Mesquite v. Malouf, 553 S.W.2d 639, 644 (Tex.CivApp.-Texarkana 1977, writ ref'd n.r.e.). Pursuant to the Texas Trust Code, one of the methods a trust may be created is by “a property owner’s testamentary transfer to another person as trustee for a third person.” Tex. Prop.Code Ann. § 112.001(3) (Vernon 2007). The trustee is merely the depository of the bare legal title. Faulkner, 137 S.W.3d at 258-59. The trustee is vested with legal title and right of possession of the trust property but holds it for the benefit of the beneficiaries, who are vested with equitable title to the trust property. Id. at 259; Jameson v. Bain, 693 S.W.2d 676, 680 (Tex.App.San Antonio 1985, no writ). As a beneficiary, Dana White was one of the real owners of the trust assets.

As trustee of the trust, appellant owed a fiduciary duty to the trust and its beneficiaries. Appellant also served as a fiduciary to Parnice in handling all of Parnice’s financial affairs under the power of attorney executed by Parnice. The record amply supports the jury’s conclusion that appellant engaged in the misapplication of the trust assets and used them for appellant’s own benefit. See Tyler v. State, 137 S.W.3d 261 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Although the question was not before the jury, there is also sufficient evidence in the record for the jury to have concluded that appellant also engaged in the misapplication of Parnice’s assets. At the time of Parnice’s death in March 2006, the trust still had assets of $376,584. Appellant distributed all of those assets to herself instead of distributing one-half to Jackie’s children immediately after Parn-ice’s death when the trust terminated. After Alfred died in March 2001, Parnice had assets of $1,050,772. When Parnice died five years later, appellant had reduced Parnice’s assets to $603,879.87 according to the estate inventory filed by appellant.

Shortly before Parnice died, appellant contacted an attorney, David DeFoore, to prepare a new will for Parnice that would leave all of Parnice’s estate to appellant. DeFoore testified that he prepared the will at appellant’s request but that he never spoke with Parnice. Tom Reese Jr. testified that he had prepared similar wills for Alfred and Parnice; Parnice’s earlier will split her estate between Jackie and appellant (or their respective descendants if one should die before Parnice). By having Parnice execute a new will in Parnice’s final days, appellant made certain that Jackie’s children would not participate in any of the assets that Alfred and Parnice had accumulated.

Alfred and Parnice had executed their wills at the same time in February 2000. Bergstrom of Edward Jones testified that he had been involved in discussions with Alfred and Parnice that led them to consider a trust in their wills. Their goal was to take advantage of the unified estate tax credit to pass property free of estate taxes to their descendants. They also wanted the trust to be set up to avoid income taxes. Bergstrom said that Alfred had his Edward Jones account invested only in tax exempt municipal bonds and that he wanted Bergstrom to invest the trust assets the same way. According to Bergstrom, Alfred wanted the trust to reinvest all income and then be terminated at the death of himself and Parnice.

Appellant argues that the State did not prove that she intentionally, knowingly, or recklessly misapplied the property because she did not know the terms of the trust. Yet she also argues that she did not violate the terms of the trust. Appellant, as a trustee, had a duty to administer the trust in good faith according to its terms. See Tex. Prop.Code Ann. § 13.051 (Vernon 2007). Before expenditures from the trust were to be made for Parnice’s benefit, the trustees were to take into consideration her other sources of income and her age and station in life. Parnice had ample sources of income that should have been considered, and she had always lived modestly. The record reflects that appellant spent a lot of the money from the trust and from Parnice’s accounts to directly benefit herself and her husband. There is sufficient evidence in the record for the jury’s finding that appellant intentionally, knowingly, and recklessly misapplied property of the trust that she held as fiduciary in a manner that involved substantial risk of loss to the owner of the property and to beneficiaries of the trust.

Appellant had Parnice execute a new will during Parnice’s final days; obviously, appellant knew the terms of Parnice’s earlier will. Both wills contained the same trust provisions according to the attorney, Reese, who prepared the wills. The jury placed little or no credibility on appellant’s testimony that she did not know the provisions of the trust. Appellant’s first and second issues are overruled.

Appellant’s third issue contends that the State’s evidence was legally insufficient to prove appellant committed a first degree felony because there is insufficient proof that over $200,000 in trust assets were owned by Dana White or held for her benefit. Had the indictment listed Parn-ice, Dana White, Cody Douglass, and Michael Douglass as owners of the equitable or beneficial title to the trust property and as persons “for whose benefit the property was held,” this would be an easy case. However, the indictment only listed Dana White as “the owner of said property, and the person for whose benefit the property was held” by appellant as a fiduciary. We find that the record is legally insufficient to support the verdict that appellant misapplied over $200,000 of trust assets owned by Dana White or that were held for the benefit of Dana White. It appears that at most only slightly over $100,000 of trust assets were owned by Dana White or held for her benefit. And the jury charge did not include a lesser included offense.

The State argues that Dana White had a power of attorney from both of her brothers, Cody Douglass and Michael Douglass; therefore, Dana White had a greater right of possession to one-half of the trust than appellant did. Analyzing “ownership” in terms of right of possession does not help the State. Cody Douglass executed his durable power of attorney on June 23, 2006, and Michael Douglass executed his durable power of attorney on April 5, 2006. The powers of attorney authorized Dana White to act as their agent in pursuing their claims involving their father’s estate against appellant. The terms of the trust determined who the owners were or for whose benefit the trust assets were held, not the powers of attorney. Under the terms of the trust, none of Jackie’s children had any right of possession to the trust assets until the trust terminated by its terms on the death of Parnice in March 2006. At that time, the trust had assets of $376,584, one-half of which would be $188,292. Appellant clearly misapplied the $188,292 by distributing that amount to herself, but the indictment accused her of misapplying over $200,000, and Dana White was entitled to only a third of the $188,292 at the date of termination.

The State contends that the jury was entitled to look at appellant’s actions from the time she became a co-trustee. We agree, but we still face the problem of whether $200,000 in trust assets were owned by Dana White or held for her benefit. Section 32.45 of the Texas Penal Code provides that the victim of a fiduciary’s misapplication of property may be either “the owner of the property” or “a person for whose benefit the property is held.” Under Faulkner, 137 S.W.3d at 258, all of the beneficiaries of the trust were the real owners and persons for whose benefit the trust property was held. When appellant became a trustee in May 2004, the trust asset balance was $620,065. Even ignoring Parnice as an owner and primary beneficiary of the trust, one-half of $620,065 is $310,032. And only one-third of that amount — $103,344—could reasonably be said to be owned by, or held for the benefit of, Dana White; the other two-thirds would have been for the benefit of her brothers.

The indictment charged appellant with a first degree felony under Section 32.45. The State’s evidence was legally insufficient to show that misapplied trust assets owned by Dana White or held for her benefit amounted to $200,000 or more. Appellant’s third issue is sustained. We need not reach appellant’s fourth issue.

This Court’s Ruling

The judgment of the trial court is reversed, and a judgment of acquittal is rendered.

      . Although Bergstrom referred to it as the inheritance tax exemption, he was referring to the federal estate tax exemptions and credits that are part of the Unified Gift and Estate Tax system. See 26 U.S.C. §§ 2001(a), 2010 (unified credit against estate tax), and 2056 (marital exemption). The credit at that time was $675,000.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dale BRAMLETT, Individually And as Independent Administrator of The Estate of Vicki Bramlett, Deceased; Shane Fuller and Michael Fuller, Appellants, v. Benny P. PHILLIPS, M.D., Appellee.
    No. 07-10-0061-CV.
    Court of Appeals of Texas, Amarillo, Panel D.
    Sept. 2, 2010.

      John Smithee, Templeton, Smithee, Hayes, Heinrich & Russell, L.L.P., Amarillo, TX, Alexander B. Klein III, J. Todd Trombley, Myriam K. Legge, The Klein Law Firm, Houston, TX, Thomas J. Turner, Turner & Jordan, P.C., Lubbock, TX, for Appellants.
    Jim Hund, Hund, Krier, Wilkerson & Wright, P.C., Lubbock, TX, for Appellee.
    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
   OPINION ON MOTION FOR REHEARING

PER CURIAM.

At issue here is the authority of an intermediate appellate court to review the judgment entered by a trial court after the Texas Supreme Court has remanded the case to the trial court for the entry of a judgment “consistent” with the opinion of the Supreme Court. Appellee, Benny P. Phillips, M.D., takes the position that the Supreme Court’s jurisdiction is exclusive, whereas Appellants, Dale Bramlett, Individually and as Independent Administrator of the Estate of Vicki Bramlett, Deceased; Shane Fuller and Michael Fuller, take the position that this Court has statutory jurisdiction. Believing this case to be one involving, in part, review of legal and factual determinations made by the trial court within the parameters of the mandate issued by the Supreme Court, we find that intermediate appellate review of those previously unresolved issues would be appropriate to the effective administration of justice. Accordingly, we reaffirm our denial of Appellee’s motion to dismiss and we deny Appellee’s motion for rehearing.

Background

This is an appeal following the entry of a judgment in favor of Appellants in their medical malpractice cause of action against Appellee, following remand from the Texas Supreme Court. In the original appeal to this Court, the trial court’s judgment was reversed, in part, and a take-nothing judgment was rendered in favor of Appellee on the issue of gross negligence and punitive damages; a remittitur was suggested on the issue of Shane and Michael’s future pecuniary losses; and, in all other respects, the judgment of the trial court was affirmed. See Phillips v. Bramlett, 258 S.W.3d 158 (Tex.App.-Amarillo 2007) rev’d, 288 S.W.3d 876, 882 (Tex.2009). Petition for review was granted by the Texas Supreme Court to consider the interrelationship between two provisions of the Medical Liability and Insurance Improvement Act of 1977, now repealed. See Tex.Rev.Civ. Stat. Ann. art. 4590L The first provision, Section 11.02(a), capped the liability of a physician at a fixed amount, adjusted for inflation; whereas the second provision, Section 11.02(c), created an exception to this cap when the physician’s insurer negligently fails to settle within the meaning of the Stowers Doctrine, that is, when the physician’s insurer negligently fails to settle a claim within the limits of the physician’s liability policy. See generally, G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544, 547 (Tex. Comm’n App. 1929, holding approved). Ultimately, the Supreme Court determined that both provisions could be given effect by conforming the judgment against the physician to Section 11.02(a)’s cap and reserving for another case any suit against the insurer under Section 11.02(c)’s Stowers exception. Phillips v. Bramlett, 288 S.W.3d 876, 882 (Tex.2009). Accordingly, on March 6, 2009, the Supreme Court reversed the judgment of this Court and remanded the cause to the trial court for it to apply the cap and render judgment consistent with the opinion of the Supreme Court. Id. at 883.

Although the Supreme Court’s opinion “reversed” the judgment of this Court, it did not address issues previously determined by this Court pertaining to the re-mittitur suggested on the issue of Shane and Michael’s future pecuniary losses or the recovery of punitive damages. All motions for rehearing were denied and the Texas Supreme Court issued its mandate on September 29, 2009.

After the Supreme Court issued its opinion, Appellants amended their petition to include claims against Appellee’s insurance carrier, The Medical Protective Company of Fort Wayne, Indiana, Medical Protective Insurance Services, Inc., d/b/a The Medical Protective Company of Fort Wayne, Indiana (hereinafter “Med Pro”), and two adjusters, Dan Walston and Paul Rinaldi. Because Med Pro had filed a motion for rehearing before the Supreme Court, Appellants contended that Med Pro was a party to the proceeding and they filed a motion requesting the trial court to compel Med Pro to appear and answer Appellants’ allegations.

Both parties moved for judgment and a hearing on pending motions was heard on November 19, 2009. On December 1, 2009, the trial court signed a new judgment, the judgment the subject of this appeal. In rendering that judgment, the trial court omitted findings contained in the original judgment relevant to Appellants’ amended pleadings and it implicitly denied Appellants’ attempt to add additional parties. Furthermore, according to Appellant’s allegations, in rendering judgment the trial court disregarded a post-original judgment Rule 11 agreement between the parties pertaining to the effective date for the computation of post-judgment interest. Additionally, the trial court made legal and factual decisions pertaining to the applicable date for computation of the statutory cap, as well as the applicable consumer price index to be applied in calculating the cap. Appellants’ motion to modify, correct, or reform that judgment was subsequently overruled by operation of law.

Before filing this appeal, Appellants sought relief from the Supreme Court through a petition for writ of mandamus. The requested relief was denied without written opinion and this appeal followed.

Originally this Court denied Appellee’s motion to dismiss for want of jurisdiction without written opinion. Upon consideration of Appellee’s motion for rehearing, we requested Appellants to respond. Thereafter, Appellants did file a response and Appellee filed a reply to that response.

Appellate Jurisdiction

If a judgment is reversed and the case is remanded to the trial court to have “some special judgment rendered by the court below,” the appellate court retains jurisdiction until that particular judgment is entered and the mandate of the appellate court obeyed. Wells v. Little field, 62 Tex. 28, 30-31 (1884). This jurisdiction is not, however, exclusive. On remand, the filing of the appellate court’s mandate with the trial court clerk vests the trial court with limited jurisdiction, as defined by the parameters of the mandate, to decide those issues specified in the appellate court’s mandate. V-F Petroleum, Inc. v. A.K. Guthrie Operating Co., 792 S.W.2d 508, 510 (Tex.App.-Austin 1990, no writ); Texacally Joint Venture v. King, 719 S.W.2d 652, 653 (Tex.App.-Austin 1986, writ ref'd n.r.e.).

Thus, to the extent that the mandate vests the trial court with jurisdiction, albeit limited, to determine legal and factual issues, the parties retain their right to appeal those determinations through the usual and customary process of appeal. Tex. Gov’t Code § 22.220(a) (Vernon Supp. 2009).

If a trial court exceeds the limited jurisdiction granted by the mandate, the jurisdiction of the appellate court continues for the purpose of enforcing its order by the issuance of either a writ of prohibition or a writ of mandamus. See Wells, 62 Tex. at 31; Dallas/Fort Worth Int’l Airport Bd. v. City of Irving, 868 S.W.2d 750, 751 (Tex.1993); Curtis v. Nobles, 588 S.W.2d 687, 690 (Tex.Civ.App.-Amarillo 1979, orig. proceeding). This right of review by writ of prohibition or writ of mandamus does not, however, deprive an intermediate appellate court of jurisdiction to review the decisions of the trial court which were made within the trial court’s limited jurisdiction. See Wall v. East Tex. Teachers Credit Union, 549 S.W.2d 232 (Tex.Civ.App.-Texarkana 1977, writ ref'd) (appeal from judgment of the district court on remand from the Texas Supreme Court); Peurifoy v. Wiebusch, 174 S.W.2d 619, 621-22 (Tex.Civ.App.-El Paso 1943, no writ) (appeal from the judgment of the district court on remand from the Texas Supreme Court).

Therefore, where the Supreme Court reverses an earlier judgment and remands the case to the trial court for the rendition of a judgment “consistent” with the judgment of the Supreme Court, an intermediate appellate court has jurisdiction to review the decisions of the trial court which were made within the trial court’s limited jurisdiction.

Appellee contends the Texas Supreme Court has exclusive jurisdiction to review the new judgment entered by the trial court on remand. Appellants contend the trial court erred in its legal determination of the rate and commencement date for post-judgment interest, as well as matters collateral to the Supreme Court’s resolution of the Stowers issue. Because we believe Appellee has incorrectly construed the law pertaining to the exclusivity of the Supreme Court’s jurisdiction, we reaffirm our denial of his motion to dismiss.

Conclusion

Because the trial court had jurisdiction to enter judgment in this case, we have jurisdiction to review the decisions of the trial court. Appellees motion for rehearing is denied.

      . Act of June 16, 1977, 65th Leg., R.S., ch. 817, § 11.02, 1977 Tex. Gen. Laws 2039, 2052 (formerly Tex.Rev.Civ. Stat. Ann. art. 4590i). Article 4590i was repealed by Act of June 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.

      . The Supreme Court ultimately treated the filing as an amicus brief.


author: KENT C. SULLIVAN, Justice.

text:
    In re PARK MEMORIAL CONDOMINIUM ASSOCIATION, INC., Sameer Soleja, Lynn Tibbe, Michael Kirk, Barbara Belbot, and Jonathan Simon, Relators.
    No. 14-10-00430-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 14, 2010.

      Daryl L. Moore, Richard D. Daly, Jonathan Daniel Simon, Houston, for relators.
    Sean Cody, James J. McConn, Jr., Joseph A. Slovacek, John W. Belk, Paul J. McConnell, III, William C. Ferebee, Oscar Trevino Jr., Dominique M. Varner, Jacob Fein, Houston, Olney G. Wallis, Llano, David R. Hunter, Simonette Verdi, Arlington, VA, James Eric Wren III, Waco, Jennifer P. Sanders, Addison, for real party in interest.
    Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.
   OPINION

KENT C. SULLIVAN, Justice.

This mandamus proceeding arises from a dispute between a condominium association and some of the condominium residents over the ownership of insurance proceeds. The respondent trial court ordered the relators, Park Memorial Condominium Association, Inc. and its directors (collectively, the “Association”), to distribute the disputed proceeds to the real parties in interest, an assortment of individual unit owners (the “Homeowners”). This mandamus action followed. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); Tex.R.App. P. 52.

We hold the trial court deprived the Association of due process, and abused its discretion, by summarily ordering distribution of the disputed funds in the absence of pleadings actually requesting such relief. Because the rulings in question are void, we conditionally grant mandamus relief.

I.

BACKGROUND

In 2008, the Association filed a declaratory-judgment action in the 133rd District Court, asking the trial court to affirm the Association’s legal right to sell the Park Memorial Condominium complex. That property, according to several engineering reports, had sustained significant structural damage and, in lieu of making repairs, the Association sought to sell the complex.

However, the Homeowners — a collection of some, but not all, of the unit owners— opposed the Association’s plan to sell the property. They filed a separate lawsuit in a different district court, generally accusing the Association and others of failing to properly maintain the complex. They also alleged that the Association and its attorney had mishandled a lawsuit against the property’s insurer, Lexington Insurance Company. That lawsuit had resulted in a settlement agreement, through which the Association received some unspecified amount of money from Lexington in settlement of the claims.

Those insurance proceeds — and, specifically, the question of who controls them— have become a source of disagreement between the Homeowners and the Association. The Homeowners believe the proceeds should be distributed to the owners of the individual condominium units. Generally, the Association does not oppose disbursement of the proceeds to most of the unit owners but claims a “setoff’ as to money to be distributed to the Homeowners because those individuals allegedly interfered with a possible sale of the complex for $17 million.

In October 2009, the Homeowners filed a motion asking the trial court to resolve the parties’ conflict by ordering the Association to distribute all of the insurance proceeds to the unit owners. In response, the Association repeatedly objected, over the course of several hearings, that the Homeowners’ pleadings do not actually claim any entitlement to the proceeds and that the trial court could not grant relief not requested in the Homeowners’ pleadings.

Notwithstanding that objection, on April 12, 2010, the trial court granted the Homeowners’ motion and instructed the Association to distribute the disputed funds, ruling:

The Court is of the opinion that the net proceeds of the settlement with Lexington Insurance Company ... are the property of and should be distributed to all owners of condominium units in the Park Memorial Condominium (or their mortgagees, as applicable), and that no funds should be withheld by Park Memorial Condominium Association, Inc. from the owner’s or mortgagees’ portion of such settlement funds.

The Association objected to the ruling and asked for reconsideration, arguing that the trial court had deprived the Association of due process by summarily disposing of its claims without proper notice, pleadings, or proof. The trial court denied the Association’s motion for reconsideration on May 10, 2010.

In addition, the trial court issued a show-cause order requiring the relators to appear before the court on May 18, 2010 to explain their failure to immediately comply with the court’s orders. Relators petitioned this Court for a writ of mandamus, and we stayed the trial court’s orders pending the resolution of this proceeding. We now lift our stay order and conditionally grant mandamus relief.

II.

Standard op Review

A relator seeking mandamus must show that the trial court abused its discretion and there is no adequate remedy by appeal. In re Laibe Carp., 807 S.W.3d 314, 316 (Tex.2010) (orig. proceeding) (per curiam). As to the first prong, a trial court abuses its discretion if it (1) reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, (2) clearly fails to correctly analyze or apply the law, or (8) acts without reference to any guiding rules or principles. See In re Columbia Med. Ctr. of Las Colinas, 806 S.W.3d 246, 248 (Tex.2010) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt, L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam); In re Helix Energy Solutions Group, Inc., 303 S.W.3d 386, 396 (Tex.App.-Houston [14th Dist.] 2010, orig. proceeding).

Regarding the second prong, in determining the adequacy of relators’ appellate remedy, if any, we usually consider whether the benefits outweigh the detriments of mandamus review. See In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845 (Tex.2008) (orig. proceeding). However, if the trial court’s order is void, as is claimed here, mandamus relief is appropriate and the relator need not show that he has no adequate appellate remedy. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000) (orig. proceeding) (per curiam).

III.

Analysis

The Association presents at least two arguments in support of its request for mandamus relief. First, the Association contends its due-process rights were deprived because the trial court granted the Homeowners relief that was not requested in their pleadings. Second, the Association contends the Texas Rules of Civil Procedure do not authorize a trial court to resolve a disputed fact issue — here, entitlement to the insurance proceeds — outside of a full trial on the merits, motion for summary judgment, or agreement by the parties. Accordingly, the Association concludes that, by doing so, the trial court acted without reference to guiding rules and principles and therefore abused its discretion. See Helix Energy, 303 S.W.3d at 396. We analyze each of these arguments in turn.

A. Notice of the Homeowners’ Requested Relief

Due process, on a fundamental level, requires notice and a fair opportunity to be heard. See Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex.2004); Derbigny v. Bank One, 809 S.W.2d 292, 295 (Tex.App.-Houston [14th Dist.] 1991, no writ). Due process requires a full hearing before a court having jurisdiction, the opportunity to introduce evidence at a meaningful time and in a meaningful manner, and the right to judicial findings based on the evidence. See Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex.2001); Derbigny, 809 S.W.2d at 295; King v. Lindley, 697 S.W.2d 749, 752 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.); Jordan v. Jordan, 653 S.W.2d 356, 358 (Tex.App.-San Antonio 1983, no writ).

Here, notice of the relief sought by the Homeowners — that is, distribution of the insurance proceeds — should have been, but was not, apparent from their pleadings. In fact, their petition did not assert any claim whatsoever to the insurance proceeds.

The primary function of pleadings is to notify the opposing party of one’s claims and defenses, as well as the relief sought. See Herrington v. Sandcastle Condo. Ass’n, 222 S.W.3d 99, 102 (Tex.App.-Houston [14th Dist.] 2006, no pet.). A trial court cannot grant relief to a party in the absence of pleadings supporting that relief, unless the issue has been tried by consent. See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 818 (Tex.1988) (citing Tex.R. Civ. P. 301); Binder v. Joe, 193 S.W.3d 29, 32 (Tex.App-Houston [1st Dist.] 2006, no pet.). Therefore, we conclude the trial court abused its discretion by granting the Homeowners relief not requested in their pleadings. See Helix Energy, 303 S.W.3d at 396.

B. Summary Disposition of Disputed Fact Issue

In addition, the Association claims the trial court abused its discretion by summarily resolving a disputed fact issue without a trial on the merits, motion for summary judgment, or settlement by the parties. We agree.

The Texas Rules of Civil Procedure provide several procedural vehicles that may be used to resolve a dispute between the parties. Those options include, among other things, the following: trial on the merits, either to a jury or the bench, motions for summary judgment, or agreements by the parties to compromise some or all of a party’s claims. See, e.g., Tex.R. Civ. P. 11 (agreements between parties), 166a (summary judgment), 216 (jury trial), 262 (bench trial). Except by these methods, however, a trial court cannot resolve a disputed issue. See Unitrust, Inc. v. Jet Fleet Corp., 673 S.W.2d 619, 623 (Tex.App.-Dallas 1984, no writ) (“A dismissal, when issues are disputed, without affording the parties a right to a full trial on the merits, should only be invoked if the summary-judgment procedure is invoked or if the parties come to an agreement on the issues.”).

In this case, the parties disagree as to the proper amount of insurance proceeds, if any, that should be distributed to the Homeowners. The Homeowners generally argue the Association, as a fiduciary, was obligated to distribute all of the proceeds to the condominium residents. The Association, however, believes it should be entitled to an offset of some of those proceeds because of the Homeowners’ allegedly wrongful actions in thwarting a possible sale of the complex.

The Homeowners asked the trial court to rule on the merits of that dispute, but not by summary judgment or bench trial. Instead, they claimed, as they do here, that the parties reached an enforceable Rule 11 agreement that would fully and finally dispose of their disagreement. The Association argues, and the mandamus record proves, otherwise.

According to the Homeowners, the Association reportedly agreed to distribute insurance proceeds in exchange for the Homeowners’ agreement to permit the sale of the complex. They further claim that, while the parties had not yet worked out the details, their general agreement to that effect was entered into the record at a hearing on November 9, 2009. See Tex.R. Civ. P. 11 (contemplating enforcement of agreements “made in open court and entered of record”). According to the mandamus record, however, the Association’s attorney expressly denied any such agreement to distribute insurance proceeds:

Judge, this case involves a declaratory judgment action about whether or not the Park Memorial Homeowners’ Association has the right to sell the property. I don’t know that the insurance proceeds are actually a part of this lawsuit, so I’d have to go back and look at that, but I can’t agree right now on the record that there’s going to be an order that the proceeds be distributed, because that’s not part of the pleadings in this case.
Right now what’s at issue is whether or not the association has the authority to diS' — to sell the property, and so I don’t think right now there’s actually any jurisdiction for an order that the proceeds be distributed ....

We conclude the record clearly fails to demonstrate an enforceable Rule 11 agreement between the parties. Thus, in the absence of a motion for summary judgment or trial on the merits, the trial court was not authorized to attempt to resolve the parties’ dispute by court order. See Unitrust, 673 S.W.2d at 623. Accordingly, we hold that the trial court, by acting without reference to any guiding rules or principles, abused its discretion. See Helix Energy, 303 S.W.3d at 396.

IV.

Conclusion

We conclude the trial court’s orders compelling the Association to distribute insurance proceeds are void for lack of jurisdiction, and represent an abuse of the trial court’s discretion. Because the orders are void, the Association need not demonstrate it lacks an adequate remedy by appeal. See Sw. Bell, 35 S.W.3d at 605.

We lift our stay order issued May 17, 2010. We conditionally grant the petition for writ of mandamus and direct the trial court to set aside its two April 12, 2010 distribution orders. The writ will issue only if the trial court fails to act in accordance with this opinion.

      . Respondent is the Honorable Jaclanel McFarland, presiding judge of the 133rd District Court.

      . The individuals who are party to this mandamus proceeding include Sameer Soleja, Lynn Tibbe, Michael Kirk, Barbara Belbot, and Jonathan Simon.

      . That lawsuit, originally filed in the 151st District Court, was later consolidated with the Association's declaratory-judgment action in the 133 rd District Court.

      . The Homeowners do not contend, and the record would not support any implication, that the Association somehow waived its right to complain about defects in the Homeowners’ pleadings. See Tex.R. Civ. P. 67 (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”). Instead, the record indicates that the Association repeatedly objected to the lack of any pleadings supporting the Homeowners' requested relief.

      . This list is far from exhaustive. Depending on the circumstances, a lawsuit could also be concluded by, for example, a plea to the jurisdiction, special exceptions, special appearance, nonsuit, sanctions, default judgment, or instructed verdict. See Tex.R. Civ. P. 85, 91, 120a, 162, 215, 239, 268. In addition, a trial court may, in some circumstances, decide a pure question of law at a pretrial conference. See Tex.R. Civ. P. 166(g), cited in Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 322 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) ("Of course, the trial court’s authority in a pretrial conference is limited to deciding legal, not factual, issues.”); but see Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 355 (Tex.App.-San Antonio 1999, pet. denied) (noting dismissal at pretrial conference is "not favored”). However, the parties do not contend that any of these rules apply here.

      .Rule 11 provides that "no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex.R. Civ. P. 11.

      . Emphases added.

      . Even were we to infer a valid agreement from the record, which we cannot, nothing would prohibit the Association from withdrawing from such agreement. A judgment cannot be rendered on an agreement when a party has withdrawn from the agreement. See Ford Motor Co. v. Castillo, 279 S.W.3d 656, 663 (Tex.2009). In that hypothetical scenario, the aggrieved party's remedy would be to file a separate claim for breach of contract. See id.

      Moreover, the Homeowners' assertion of a purported Rule 11 agreement does not change the fact that the trial court improperly ordered distribution of the insurance proceeds without any pleadings requesting such relief.

      . Because a party's pleadings invoke the trial court's jurisdiction to render a judgment, an order not supported by the pleadings is void for lack of jurisdiction. See Moreno v. Moore, 897 S.W.2d 439, 442 (Tex.App.-Corpus Christi 1995, no writ).

      . In light of our disposition on these grounds, we need not address the Association's alternative challenges to the trial court’s ruling. See Tex.R.App. P. 47.1.


author: TRACY CHRISTOPHER, Justice.

text:
    CRESSMAN TUBULAR PRODUCTS CORPORATION, Appellant/Cross-Appellee, v. KURT WISEMAN OIL & GAS, LTD. and Escondido Petroleum, Appellees/Cross-Appellants, v. Sepco Tubular, Inc. and United Casing, Inc., Cross-Appellees.
    No. 14-08-01039-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 23, 2010.

      Jack McKinley, Robert L. Ramey, Steven D. Naumann, Houston, for appellants.
    Rick Lee Oldenettel, Timothy Ray High-tower, Alan R. Scheinthal, Houston, Debora Beck Alsup, Austin, Ben K. Baron, Joseph Edward Byrne, Dallas, for appellees.
    Panel consists of Justices ANDERSON, BOYCE, and CHRISTOPHER.
   OPINION

TRACY CHRISTOPHER, Justice.

This is a double appeal of a case in which multiple theories of liability were asserted against four defendants for damages caused by the sale of goods for use in an oil well. After the defendant found liable for 99% of the plaintiffs’ damages filed for bankruptcy protection, the trial court severed those claims from this case and entered judgment requiring all of the plaintiffs’ damages and attorney’s fees to be paid by the defendant that the jury found to be 1% responsible. On appeal, that defendant contends that all of the plaintiffs’ damages sound in tort, and thus, the trial court erred in disregarding a jury finding allocating responsibility for breach of an express warranty and in awarding attorney’s fees to the plaintiffs. The plaintiffs argue that all of their damages sound in contract, and they contend that the trial court erred in failing to disregard the jury’s finding allocating responsibility for breach of implied warranties, failing to hold the defendants jointly and severally liable, and failing to include the jury’s breach-of-contract finding as an alternative basis for the judgment against one of the defendants. We conclude that the plaintiffs’ express-warranty claim against appellant sounds in contract, but their implied-warranty claims against the cross-appel-lees sound in tort; thus, the trial court did not err in disregarding the proportionate-responsibility finding as to the express warranty claim against one defendant and in refusing to disregard a similar finding as to the implied warranty claims against two other defendants. Finally, we further conclude that the trial court did not err in refusing to include alternative bases for its judgment, and we affirm the trial court’s judgment.

I. Factual and PROCEDURAL Background

Kurt Wiseman is the owner of Kurt Wiseman Oil & Gas, Ltd., which owns a working interest in the Gerdes No. 1 well in Lavaca County, Texas. He also is the president of Escondido Petroleum, which is the well operator. We refer to all three collectively as “Wiseman.”

The Gerdes No. 1 well had been shut in for some time and the existing casing was damaged, but Wiseman planned to perform a fracture stimulation to return the well to production. In this procedure, the rock surrounding the oil reservoir is fractured by fluid mixed with increasing concentrations of proppant pumped at high pressure into the well down a tubing string, which consists of joints of pipe connected to one another by couplings. The proppant holds the fracture open to allow oil and gas to drain into the well bore. The proppant and fluids are then removed and oil can be produced through the same tubing string.

Wiseman ordered the tubing string from Cressman Tubular Products Corporation and specified that the components were to be API P110, which means that they were to meet a particular toughness standard set by the American Petroleum Institute. Cressman ordered the tubing string from Sepco Tublar, Inc.; Sepco ordered the couplings from United Casing, Inc.; and United Casing bought the couplings from the manufacturer, Colaco Tubular Services, Inc. When delivered by Colaco, the couplings had been painted white, which in industry custom signified that they met the API P110 standard. United Casing sent the couplings to Sepco, and Sepco attached the couplings to the joints of pipe before shipping them to Cressman, who then shipped them Wiseman.

A. The Tubing String Failures

The joints of pipe were assembled into a tubing string and used in the planned fracture stimulation in January 2004. Because the easing in the well narrowed from 7 5/8 inches to 5 inches in diameter, wider pipe joints were used in the upper part of the tubing string and narrower pipe was used in the lower part.

After about sixty percent of the fluid and twenty percent of the proppant had been pumped down the well, the tubing string failed and there was a sudden dramatic loss of pressure. The fracture stimulation could not be completed, and mud entered the formation so that a mixture of fracture fluid, proppant, and mud were mixed with the condensate that flowed from the well. As Kurt Wiseman later testified, “The mud went into the fracture, made it to the point where the well was actually showing skin damage, which is damage near the well bore, not allowing it to flow. So, yes, the mud was obviously damaging [the formation].” Wiseman’s expert Richard Klem explained at trial that the “skin damage” from the mud or “positive skin” meant that the perforations in the well casing were blocked.

Wiseman hired consultants who were unable to find a physical obstruction to the tubing string, and eventually, a well service company was able to circulate the mud in the well and remove part of the string, which was found to have lost a coupling from its upper, wider part. The coupling could not be found, and as Kurt Wiseman later testified, he was concerned that it might have fallen to the area where the casing and tubing string narrowed such that removing the entire tubing string could allow the coupling to fall deeper into the well bore and “junk” the well, potentially rendering it unusable. Wise-man decided to leave the narrower part of the tubing string in place, and reattached the wider portion of the string to it using an “overshot packoff.” Fluids and mud were washed out from the well in sufficient quantities for the well to begin producing oil.

Production stopped in May 2004 when Wiseman again found mud inside the tubing string. When a crew attempted to remove it, the tubing string parted and two couplings were found to have split from the wider portion of the string. Wiseman was able to quickly obtain only a dozen couplings, and as explained at trial, Wiseman would lose its lease if production was interrupted for more than thirty or sixty days. Wiseman therefore replaced the split couplings and those adjacent to them, and the well was returned to production. The split couplings and those that had been replaced were tested, and it was found that the split couplings did not meet API P110 standards.

In January 2005, the well again stopped producing, and once more Wiseman found that a coupling had failed and mud had entered the tubing string. This time, he was able to obtain enough couplings to replace all of the approximately 300 couplings from the wider portion of the tubing string to the overshot packoff. In 2006, the well was no longer producing enough gas to lift the oil condensate, and Wiseman began using a gas lift to raise the oil from the well. Wiseman’s lease was secured by a second producing well on the same property in 2007, and he was able to interrupt production on the Gerdes No. 1 well to remove the overshot packing, replace the entire tubing string, and perform a second fracture stimulation without jeopardizing the lease of the property. After the second fracture stimulation, the well produced enough gas to allow Wiseman to discontinue the use of the gas lift.

B. The Trial

Wiseman sued Cressman and Sepco in September 2005, and added United Casing and Colaco as defendants in 2006. Against each of the defendants, Wiseman asserted claims for manufacturing defects, negligence, gross negligence, violations of the Deceptive Trade Practices-Consumer Protection Act (“DTPA”), and breaches of contract, express warranties, and the implied warranties of merchantability and fitness for a particular purpose. Cressman, Sep-co, and United Casing asserted cross-claims for contribution and indemnity from Colaco. Wiseman introduced evidence that if the couplings had not failed, the fracture stimulation would have been completed when it was initially attempted in 2004, and it would not have been necessary to incur expenses for removing the tubing string, clearing mud from the well bore, transporting mud from the site, repairing various pieces of production equipment, washing transport trucks, watching the well, testing the well bore and the couplings, replacing damaged or missing couplings, using a gas lift, and performing a second fracture stimulation.

The trial court submitted jury questions on Wiseman’s express warranty, implied warranty, DTPA, and products liability theories of liability against each defendant, and submitted questions concerning Wise-man’s breach-of-contract claim against Cressman.

As relevant to this appeal, the jury was asked whether any defendant made an express warranty to Wiseman that became the basis of the bargain; the jury answered in the affirmative only as to Cress-man and Colaco. The jury also was asked if any defendant breached the implied warranty of merchantability. The jury answered “yes” as to each defendant and allocated responsibility for damages resulting from the breach of implied warranty as follows: 99 percent to Colaco, 1% to Cress-man, and 0% to United Casing and Sepco. The jury found that Wiseman sustained damages of $548,187 for breach of this implied warranty.

In addition to separate questions addressing express and implied warranties, the trial court also submitted another question that combined both theories. In the combined question, the jury was asked to indicate with a single “yes” or “no” answer whether any defendant failed to comply with an express warranty; an implied warranty of merchantability; or an implied warranty of fitness for a particular purpose. The jury answered in the affirmative as to each defendant; found that Wiseman sustained damages in the amount of $548,187; and again allocated 99% of the responsibility for such damages to Co-laco and 1% to Cressman.

Regarding Wiseman’s breach-of-contract claim against Cressman, the jury found that Cressman failed to comply with the terms of its agreement, causing Wiseman $5,481 in damages.

Finally, the jury found that a reasonable attorney’s fee for preparation and trial of Wiseman’s DTPA and contract claims was $219,274.

C. Post-Verdict Motions and Judgment

After the jury rendered its verdict and was discharged, Colaco filed for bankruptcy and the claims against it were severed from the case. Wiseman moved the trial court to disregard the jury’s proportionate-responsibility finding associated with the question that combined liability for breach of express and implied warranties. Wiseman also asked the trial court to disregard the jury’s proportionate-responsibility finding associated with the question in which the jury was asked to determine liability for breach of the implied warranty of merchantability alone. In addition, Wiseman argued that the jury failed to answer the question concerning damages for Cressman’s breach of contract “consistently with its other damages findings” and asked the trial court to disregard that finding and enter judgment against Cress-man for $548,187 for breach of contract, together with attorney’s fees, interest, and costs. The trial court granted the motion only in disregarding the proportionate-responsibility finding associated with Wise-man’s combined express and implied warranty theories, and ultimately rendered judgment holding Cressman solely liable for $548,187 in actual damages and $219,274 in attorney’s fees. Wiseman’s motion to modify the judgment was overruled by operation of law, and this appeal ensued.

II. Issues Presented

Cressman argues that Wiseman’s damages sound in tort, and thus, the trial court erred in disregarding the jury’s finding allocating responsibility for breach of an express warranty. Cressman further asks that if we sustain its first issue, we reverse the award of attorney’s fees.

Wiseman brings a cross-appeal against Cressman, Sepco, and United, Casing, challenging the trial court’s failure to disregard the jury’s finding allocating responsibility for breach of implied warranties and hold these defendants jointly and severally liable. In a second cross-issue, Wiseman argues that the trial court further erred by failing to increase the damages that the jury found were caused by Cressman’s breach of contract and enter judgment on the alternative basis of breach of contract.

III. Standard of Review

A trial court may disregard a jury finding only if it is unsupported by evidence or if the issue is immaterial. Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994). A question is immaterial when it should not have been submitted or calls for a finding beyond the province of the jury, such as a question of law. Se. Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex.1999). A properly-submitted question can be rendered immaterial by other findings. Id.

IV. Analysis

The parties do not dispute that the coupling failures caused Wiseman damages of $548,187 or that $219,274 is a reasonable fee for the necessary services of the plaintiffs’ attorneys. They all assert that tort claims are subject to proportionate responsibility and claims sounding in contract are not. See Tex. Civ. PRAC. & Rem.Code Ann. § 33.002(a)(1) (Vernon 2008) (providing that proportionate responsibility applies to “any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought”). The parties differ in the importance they attach to the particular theory of liability asserted and to the character of the damages.

Cressman contends that courts determine whether an express-warranty claim sounds in tort or contract by examining the nature of the damages, and argues that the damages found by the jury to have been caused by Cressmaris breach of an express warranty sound in tort because the coupling failures damaged property other than the tubing string. Wiseman responds that claims for breach of express warranty sound in contract as a matter of law, and in any event, the damages at issue were contractual because Wiseman did not seek to recover for damage to the formation.

Regarding Wiseman’s cross-appeal, the parties agree that breach of an implied warranty can sound in tort or contract, depending on the nature of the damages. Wiseman contends that the damages found by the jury for the defendants’ breaches of implied warranties sound in contract because Wiseman sought damages only for economic loss, and thus, the damages awarded for this claim are not subject to the proportionate-responsibility statute. United Casing and Sepco assert that Wise-man sought and was awarded compensation for damage to property other than the tubing string that was the subject of Wise-man’s contract with Cressman, and thus, the claim sounds in tort and the proportionate-responsibility statute applies.

A. Cressman’s Breach of an Express Warranty

The trial court partially granted Wise-man’s motion to disregard the jury’s proportionate-responsibility findings, and Cressman challenges that ruling on both procedural and substantive grounds. As a threshold matter, we address Cressmaris contention that Wiseman waived any right to the relief it requested, or that it was otherwise estopped from challenging the application of the proportionate-responsibility statute.

Cressman points out that the jury was instructed to allocate responsibility for Wiseman’s damages if it found that more than one defendant breached a warranty. According to Cressman, it relied to its detriment on Wiseman’s failure to object to this portion of the jury charge, and thus, we should hold that Wiseman waived any challenge to the application of the proportionate-responsibility statute or is estopped from raising such a challenge. We disagree. Whether the proportionate-responsibility statute applies is a question of law. Reveille Trucking, Inc. v. Loera Customs Brokerage, Inc., No. 13-08-00127-CV, 2010 WL 2638494, at *3 (Tex.App.-Corpus Christi June 29, 2010, no pet. h.) (mem. op.) As a purely legal question, it is analogous to a legal sufficiency challenge that can be raised post-verdict. Cf. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999) (per curiam) (holding that the availability of attorney’s fees is a purely legal question, and thus, may be challenged post-verdict, even by the party that proposed submitting the matter to the jury). Cressman also asserts that Wise-man waived error in that, before the jury was discharged, Wiseman failed to complain that the jury returned an inconsistent verdict in allocating responsibility for the damages caused by the breach of warranty. Because Cressman has not identified the finding that allegedly conflicts with this answer, this argument is waived. Tex.RApp. P. 38.1(i).

Turning to the substantive arguments, Cressman contends that breach of an express warranty sounds in tort when the breach causes damage to or loss of use of property other than the property that is the subject of the contract. The Texas Supreme Court, however, recently held that express-warranty claims sound in contract. Med. City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55, 57 (Tex.2008). In reaching this result, the court in Carlisle did not base its holding on the type of the damages sought or sustained. See id. at 61 (“[T]he damages recoverable here support our conclusion that the claim is based in contract.... Medical City’s damages were economic injuries based on the defective roof, further demonstrating that its recovery is contract-based.”) (emphasis added). To the contrary, the court spoke in broad terms in holding that “a claim based on an express warranty is, in essence, a contract action.” Id. at 58.

We conclude that the trial court did not err in granting Wiseman’s request to disregard the jury’s proportionate-responsibility finding in connection with Cress-man’s breach of an express warranty. We therefore overrule Cressman’s first issue and do not reach its second issue.

B. Sepco and United Casing’s Breach of Implied Warranties

On appeal, Wiseman has not challenged the trial court’s failure to render judgment against Sepco and United Casing based on any theory other than breach of an implied warranty. Moreover, Wiseman has never argued that the jury’s finding that Sepco and United Casing caused damage to Wiseman by breaching implied warranties is inconsistent with the finding allocating 0% of the responsibility for such damages to these defendants. Wiseman instead argues that the trial court erred in failing to disregard the jury’s proportionate-responsibility finding that Sepco and United Casing are not responsible for any part of Wiseman’s damages arising from their breaches of implied warranties.

Generally, breach of an implied warranty under article 2 of the Texas Uniform Commercial Code is a tort claim. See JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 704-05 (Tex.2008). In JCW Electronics, the court noted that as originally enacted, Chapter 33 of the Texas Civil Practices and Remedies Code expressly was applicable to actions “to recover damages for personal injury, property damages, or death in which at least one defendant is found liable on a basis of ... breach of warranty under chapter 2, Business & Commerce Code.” Id. at 704 (quoting Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.04, 1987 Tex. Gen. Laws 37, 41). The court further explained that although Chapter 33 was subsequently amended, “there is no indication that the Legislature intended to restrict the scope of Chapter 33 by explicitly removing implied warranties.” Id. Wiseman contends that JCW Electronics is inapplicable because that case concerned personal injury and death rather than property damage. But in JCW Electronics, as in Medical City Dallas v. Carlisle, the court did not narrowly limit its holding to the facts of the case, but stated its reasoning in a manner that applies equally here. Specifically, the court based its holding in JCW Electronics on the legislature’s intent that Chapter 33 be applied to claims for “personal injury, property damages, or death” under chapter 2 of the Texas Uniform Commercial Code. Here, the implied-warranty claims were submitted to the jury in language tracking section 2.314(b) of the Business and Commerce Code.

Wiseman does not dispute that the implied-warranty claims are claims for breach of warranty under chapter 2 of the Business and Commerce Code; however, Wiseman points out that the court recognized an exception in that, “when the damages are purely economic, the claim sounds in contract.” Id. at 705. But Wiseman’s position at trial was that the damages at issue were not purely economic because the tubing string also damaged property when it failed. For example, Kurt Wise-man testified that the formation and the well bore were damaged as follows:

Q. When this fails, the frac job goes awry, what does that do to the formation when the frac gets messed up?
A. Well, you — now you have got mud, which is extremely damaging, exposed to formation as well. You got gas and mud and frac proppant trying to come up the back side, as well as up the tubing. You got a severe problem.
Q. Did this failed frac result in the fluids to go the wrong place, cause damage to the formation, in terms of its — your ability to get oil and gas out of there?
A. Yes. Having mud across the formation is damaging.... The mud went into the fracture, made it to the point where the well was actually showing skin damage, which is damage near the well bore, not allowing it to flow. So, yes, the mud was obviously damaging.
Q. Could you repair the damage?
A. Only way to attempt to repair that damage would be to re[-]frac the well.

Wiseman’s expert Richard Klem similarly testified that the tubing string failures resulted in “s kin damage” or “positive skin,” meaning that the perforations that had been made in the casing to perform the fracture stimulation became blocked. In addition, the evidence Wiseman submitted in support of its damages claim include itemized invoices for the costs to repair various items of production equipment and to remove mud from equipment, tanks, and transport trucks. And finally, Wiseman’s attorney testified,

The measure of damages when you are provided defective materials that ruin your well is three things: A, the cost to repair the well, if that can be done. If it cannot be repaired — what we’re seeking for there is the lesser of the three. The cost to repair the well, and if you can’t repair the well you are entitled to recover the cost to replace the well.

This is the correct measure of damage to the reservoir or the well bore. See Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 511-12 (Tex.1993); Atex Pipe & Supply, Inc. v. Sesco Prod. Co., 736 S.W.2d 914, 917 (Tex.App.-Tyler 1987, writ denied). But these costs are subject to apportionment. See Dresser, 853 S.W.2d at 511-12 (apportioning damages in accordance with the percentage of responsibility found by the jury). Damage to the well formation is damage to an interest in real property. Atex, 736 S.W.2d at 917. And damage to the well bore is damage to a real estate improvement. Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 426 (Tex.2008). Both are “property damage”; thus, the exception applicable to implied-warranty claims that result solely in economic damages does not apply here. See Bay Rock Operating Co. v. St. Paul Surplus Lines Ins. Co., 298 S.W.3d 216, 230 (Tex.App.-San Antonio 2009, pet. denied) (holding that damage claim for the costs to repair a well is a claim for property damage, not economic loss); see also Equistar Chems., L.P. v. Dresser-Rand Co., 240 S.W.3d 864, 868 (Tex.2007) (treating a factual finding of the costs “to restore” a plant as tort damages where the plaintiff failed to object that the jury question allowed the jury to find both tort damages and economic losses in a single answer); Parkway Co. v. Woodruff, 901 S.W.2d 434, 441 (Tex.1995) (explaining that property damage can be measured by diminution in value or cost of repair).

We conclude that the Wiseman’s implied-warranty claims against Sepco and United Casing sound in tort, and thus, the trial court did not err in applying the jury’s proportionate-responsibility finding to the damages associated with these claims. We therefore overrule Wiseman’s first cross-issue.

C. Alternative Bases for Recovery

Wiseman contends in his second issue that the trial court erred in failing to award judgment against Cressman on the alternative basis of breach of contract. The jury found that Cressman’s failure to comply with its contract caused Wiseman damages of only $5,481, but Wiseman contends that the evidence is factually insufficient to support this finding. He argues that he presented a single model for damages and in response to every other damage question, the jury found that Wiseman had sustained damages of $548,187. He therefore argues that the jury’s finding of contract damages in the amount of $5,481 is inconsistent with the jury’s other damage findings, and maintains that the trial court should have substituted the higher damages found by the jury in connection with Wiseman’s warranty and DTPA claims for the lower contract damages.

These arguments are without merit. A complaint that the jury’s findings are inconsistent is waived if it is not raised before the jury is discharged. Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 24 (Tex.App.-Houston [14 Dist.] 2006, no pet.); Tex.R. Civ. P. 295. Because Wiseman did not timely raise this complaint, we will not attempt to reconcile the purportedly inconsistent findings. See Springs Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 867 (Tex.App.-Austin 2006, pet. granted, judgm’t vacated w.r.m.). Moreover, the remedy for a judgment based on factually insufficient evidence is a new trial, not substitution of one finding for another. See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401-02 (Tex.1981) (per curiam). Wiseman has not requested a new trial, and at oral argument, Wiseman’s counsel affirmatively stated that Wiseman does not want a new trial. We therefore overrule Wiseman’s second issue.

Y. Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

      . The “circulation of mud” is defined as “[t]he return to the surface of a portion of the drilling [mud]...." Howard R. Williams & Charles J. Meyers, Manual of Oil & Gas Terms 139 (Patrick H. Martin & Bruce M. Kramer eds., 14th ed. 2009) (1957).

      . “The term 'junk' is a term of art used in the oil and gas industry to refer to 'non-drillable material such as steel or iron, in [a] well bore.' " Exxon Corp. v. Emerald Oil & Gas Co., (quoting Tarrant County Water Control & Improvement Dist. No. One v. Fullwood, 963 S.W.2d 60, 67 (Tex.1998) (per curiam)). The term also may be used as a verb.

      .An "overshot” is “a fishing tool used to recover lost pipe in a drilled well.” Webster's Third New Int’l Dictionary, 1610 (1993). A "packer” is "a device for packing the space between the wall of an oil well and the pipe or between two strings of pipe.” Id. at 1618.

      . Each also asserted claims against any upstream sellers, but these claims were not presented to the jury.

      . The jury found that no attorney’s fees would be necessary in the event of an appeal, and this finding was not challenged. The jury’s answers to the remaining questions have not been challenged on appeal.

      . Regarding the proportionate-responsibility provision of section 33.002, see Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2 § 2.05, 1987 Tex. Gen. Laws 37, 41, amended by Act of May 29, 1989, 71st Leg., ch. 380 § 4, 1989 Tex. Gen. Laws 1490, 1492, amended by Act of May 8, 1995, 74th Leg., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 971-72, amended by Act of May 19, 1995, 74th Leg., ch. 414, § 17, 1995 Tex. Gen. Laws 2988, 3003, amended by Act of May 21, 2001, 77th Leg., ch. 643, § 2, 2001 Tex. Gen. Laws 1208, 1208-09, amended by Act of June 2, 2003, 78th Leg., ch. 204, §§ 4.01, 4.10(1), 2003 Tex. Gen. Laws 847, 855, 859.

      . Nor do we imply that a court may reconcile inconsistent findings by substituting a higher damage figure for a lower one. See, e.g., Aztec Corp. v. Tubular Steel, Inc., 758 S.W.2d 793, 800 (Tex.App.-Houston [14th Dist.] 1988, no writ) (“We cannot substitute our judgment for that of the jury and order additur....”).

      . In a footnote, Wiseman further asserts that the trial court also should have included breach of an implied warranty as an alternative basis for the judgment against Cressman. As previously discussed, however, the jury's proportionate-responsibility findings apply to such claims. Wiseman’s recovery against Cressman for breach of an implied warranty therefore would be less than the recovery for breach of an express warranty, and a plaintiff is entitled to judgment on the theory that affords the greatest or most favorable relief. Tex.R. Civ. P. 301; Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex.1988).