Double Ace, Inc., and Matthew Pope and Alyssa Womack and Donna Pope v. Bennie Dale Pope and Michael Deardorff

NO. 07-04-0029-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JUNE 24, 2005

______________________________

DOUBLE ACE, INC., MATTHEW POPE,
ALYSSA POPE WOMACK, AND DONNA POPE, APPELLANTS

V.

BENNIE DALE POPE AND MICHAEL DEARDORFF, APPELLEES

_________________________________

FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

NO. 02-12-19019; HONORABLE HAROLD PHELAN, JUDGE

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

OPINION

Presenting 13 issues, Double Ace, Inc. appeals the judgment following a jury trial,

denying it any relief on its claims for damages and awarding Bennie Dale Pope and Michael

Deardorff damages and attorney’s fees sought by their counterclaims against Double Ace,
Inc. Also, presenting 15 issues, Alyssa Womack, Matthew Pope, and Donna Pope

challenge the judgment denying them any recovery on their claims for damages and

awarding Bennie Dale Pope and Michael Deardorff damages on their counterclaims.

Based on the rationale herein, we affirm in part and reverse and remand in part.

While married to Donna Pope, Bennie was engaged in farming operations. After

consultation with an attorney, Bennie and Donna decided to organize a corporation to be

operated under Bennie’s management, in conjunction with Bennie’s farming operations.

Donna agreed that Bennie would manage Double Ace as its General Manager but that the

stock of the corporation would be held by Donna as trustee for their minor children,

Matthew Pope and Alyssa Pope (Womack). At the first meeting of the Board of Directors

of Double Ace on October 10, 1991, Bennie was elected General Manager and Donna was

elected President and Secretary/Treasurer. Also, 500 shares of stock were issued to

Donna as custodian and natural guardian for each minor child, making a total issue of 1000

shares. Thereafter, the Corporation commenced its farming operations under Bennie’s

management. In 1997, Deardorff was elected as President and Director to assist Bennie.

At that time, Donna signed corporate minutes and stock a certificate transferring 500

shares of stock to Deardorff. Other enabling documentation was signed by Donna.

Although Double Ace prospered, Bennie’s personal farming operations were not successful

and he was forced to file bankrputcy in 2000. The bankruptcy action was followed by

Bennie and Donna’s divorce in 2002.

2
 Before we address the contested issues, we first note two portions of the judgment

which are not challenged by any party. Among other things, the judgment of the trial court

declared that Double Ace owned the machinery and equipment described on exhibits

attached to the judgment. In addition, the judgment decreed that all stock issued by Double

Ace was issued to be held in trust for the benefit of Alyssa Pope Womack and Matthew

Pope and that they are now the beneficial owners of the stock. Because no party presents

any assignment of error or challenge to these declarations, those two portions of the

judgment will be affirmed.

Because the multiple parties present common and diverse claims and counterclaims

by broad pleadings and 28 issues with numerous sub-issues, before addressing the action

in the trial court and the issues, we first outline the claims in broad form.

CLAIMS

Double Ace v. Bennie. Asserted (1) breach of contract, (2) fraud, civil
conspiracy, breach of fiduciary duty and conversion, (3) declaratory judgment
regarding ownership of transferred stock and property, (4) action for
accounting, (5) action to recover on sworn account for monies withdrawn
from the corporation’s bank account, and (6) conspiracy with Otis Pope;

Double Ace v. Deardorff. Asserted (1) fraud, civil conspiracy, and
conversion, (2) declaratory judgment regarding ownership of transferred
stock and property, (3) action for accounting, (4) action to recover on sworn
account for monies withdrawn from the corporation’s bank account;

Alyssa and Matthew v. Bennie and Deardorff. Alyssa and Matthew joined
the suit in their individual capacities for the only purpose of establishing their
sole ownership in the stock of Double Ace;

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 COUNTERCLAIMS

Bennie v. Double Ace, Alyssa, Matthew, and Donna.1 Alleged (1)
wrongful termination, (2) promissory estoppel, (3) quasi estoppel, (4) unjust
enrichment, and (5) quantum meruit.

Deardorff v. Double Ace. Alleged a cause of action for indemnity.

Deardorff v. Alyssa, Matthew, and Donna. Alleged (1) fraud, (2)
conversion, and (3) civil conspiracy.

Deardorff v. Alyssa and Matthew. Alleged a cause of action for theft.

Upon the close of the evidence, contending there was no evidence to support the

submission of the elements of any questions to the jury regarding the claims of Double Ace

against Bennie, Bennie’s counsel moved for instructed verdict.2 Also, counsel for Deardorff

adopted Bennie’s argument and moved for instructed verdict on the same grounds. After

granting Bennie and Deardorff’s motions for instructed verdict, and completion of the

charge conference, the trial court submitted the charge to the jury. By its verdict, the jury

found:3

1
Donna Pope was joined as a third-party defendant by counterclaims.
2
Counsel argued that “What we have are a conglomeration of convoluted allegations
in a petition that don’t–don’t allege, even, the elements of any of the causes of action that
are asserted, and there is not one shred of evidence to support the elements even if they
had alleged it.”
3
The numbers correspond to the jury questions.

4
 Bennie Deardorff

(1) Bennie was the General Manager of (7) Donna part of conspiracy;
Double Ace;

(2) Double Ace failed to comply with the (8) Matthew part of conspiracy;
agreement;

(3) Donna, Matthew and Alyssa part of (9) Alyssa part of conspiracy;
conspiracy that caused damages;

(4) Bennie relied on the agreement to his (10) Damages of $5000 past and
detriment; $5000 future;

(5) Damages of $160,000; (11) Finding of malice;

(6) Awarded attorney’s fees for a total (12) $1,000 exemplary damages;
of $48,000 through Supreme Court.
(13) Became a Director in 1997;

(14) Became President in 1997;

(15) Made a party because he had
been a Director/Officer;

(20) Awarded attorney’s fees for a
total of $66,000 through the
Supreme Court.

Based on the instructed verdicts and jury findings, the trial court rendered judgment that

• Double Ace take nothing against Bennie and Deardorff;

• Bennie recover his damages of $160,000, plus interest and attorney’s
fees from Double Ace, Matthew Pope, Alyssa Womack, and Donna
Pope, jointly and severally;

• Deardorff recover his damages of $11,000 plus interest and attorney’s
fees from Double Ace, Matthew Pope, Alyssa Womack, and Donna
Pope, jointly and severally;

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 • Declared Double Ace to be the owner of the machinery and
equipment described in exhibits attached to judgment; and

• Decreed that all Double Ace stock was issued to be held in trust for
Alyssa Pope Womack and Matthew Pope, and that they are the
beneficial owners of the stock.

Issues of Donna Pope4

Proceeding pro se, by issue 11A, Donna contends the trial court erred in failing to

give her at least 45 days notice of the trial setting on the counterclaims filed against her and

others by Bennie and Deardorff. We agree.

Although this action was commenced by Double Ace, Alyssa, and Matthew on

December 18, 2002, by their separate counterclaims, Bennie and Deardorff did not make

Donna a party or seek any relief as to Donna until Deardorff named her in his amended

counterclaim filed September 29, 2003, and Bennie named her in his amended

counterclaim filed October 15, 2003. Counsel for all parties, except Donna, attended a

pretrial conference on October 17, 2003. During the pretrial conference, Bennie’s counsel

announced to the court that because Donna had not been timely served, he would ask for

4
The notice of appeal signed by counsel for Double Ace, Inc. and Alyssa Womack
and Matthew Pope was prepared to also include Donna Pope and was signed by her pro
se. Also, the brief filed by counsel for Alyssa and Matthew was also signed by Donna, pro
se, and presented the issue for Donna regarding Tex. R. Civ. P. 245, which was not
common with Alyssa and Matthew’s contentions. Also, in reviewing another part of the
record, we note that counsel for Double Ace prepared at least one pleading for Donna’s
signature. While pro bono legal services are encouraged, counsel should exercise due
care to avoid the presentation of an ambiguous status regarding an attorney-client
relationship. We express no opinion as to the propriety of the preparation of a pleading or
an appellate brief for a pro se party by an attorney for a party allied to the pro se party.

6
a severance and a separate trial as to Donna. After hearing comments from all counsel,

the trial court observed:

I think there is no point playing games on that. We know that she is the one
that–that’s driving the lawsuit; and, unless she is willing to come in and–and
submit to the answer or–if she wants it tried the 27th, she needs to get in here
now, because I’m not going to try this case twice, same facts.

Following comments by counsel, the court concluded its remarks by stating:

But the only thing that is going to keep us from trying it then is Ms. Pope and
whatever position–if she wants her time to answer, I’m not telling her to give
up any rights, but–except the right to try this on the 27th if she wants it.

The pretrial conference then concluded without any definitive action regarding notice to

Donna of the setting for October 27, 2003.

According to the clerk’s record, Donna filed motions to transfer venue and answers

to the counterclaims of Bennie and Deardorff at 11:00 a.m. on October 23, 2003.5 When

the case was called for trial on October 27, Donna did not appear in person or by counsel.

Bennie’s counsel did not move for severance, but instead presented a plea arguing special

circumstances existed. After noting that no motion for continuance had been filed by any

party or Donna, the court proceeded to empanel the jury.6

5
The record does not show when Donna was served with citation on the
counterclaims.
6
The clerk’s record does not include a copy of the citation served on Donna
concerning Bennie’s counterclaim or any answer by her, pro se, or otherwise.

7
 Citing In re Estate of Crenshaw, 982 S.W.2d 568 (Tex.App.--Amarillo 1998, no pet.),

Donna contends the trial court erred in commencing the trial with less than 45 days notice.

See Tex. R. Civ. P. 45. We held where the Rules of Civil Procedure apply, the

requirements of Rule 245 must be met and concluded, “[t]he record affirmatively shows that

James did not have the required 45-day notice to which he was entitled.” Crenshaw, 982

S.W.2d at 571. Here, too, the record affirmatively shows that Donna did not have the

required 45 days notice provided by Rule 245. In response, Bennie and Deardorff argue

the test set out in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939),

is controlling. However, we are not concerned with these factors because a party who has

been denied due process through lack of notice of a trial setting satisfies the first Craddock

factor and does not have to meet the remaining requirements to be entitled to a new trial.

See Lopez v. Lopez, 757 S.W.2d 721, 722-23 (Tex. 1988). Issue 11A is sustained. Our

disposition of this issue pretermits our consideration of issue 10.

8
 Issues of Double Ace, Inc.

Instructed Verdict

By its 12th issue, Double Ace contends the trial court erred in granting the motions

for instructed verdict on its first, second, third, and fifth causes of action presented by

Bennie and Deardorff. Among other contentions, citing Intermarque Automotive Products,

Inc. v. Feldman, 21 S.W.3d 544 (Tex.App.--Texarkana 2000, no pet.) and Lesikar v.

Rappeport, 33 S.W.3d 282 (Tex.App.--Texarkana 2000, pet. denied), Double Ace argues

that as officers of the corporation, Bennie and Deardorff had the burden of proof to

establish the fairness of their transactions with the Corporation. Focusing our analysis on

the first and second causes of action which alleged claims for breach of contract, breach

of fiduciary duties, and fraud, we agree.

Standard of Review

When reviewing an instructed verdict, we must determine whether there is any

evidence of probative force to raise a fact issue on the material questions presented.

Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). We must

consider all the evidence in the light most favorable to the party against whom the verdict

was directed, disregarding all contrary evidence and inferences and giving the losing party

the benefit of all reasonable inferences created by the evidence. Id. If there is any

conflicting evidence of probative value on any theory of recovery, an instructed verdict is

improper and the case must be reversed and remanded for jury determination of that issue.

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Id. An instructed verdict is proper when (1) the opponent’s pleadings are insufficient to

support a judgment; (2) the evidence conclusively proves a fact that established a party’s

right to judgment as a matter of law; or (3) the evidence offered on a cause of action is

insufficient to raise an issue of fact. Rudolph v. ABC Pest Control, Inc., 763 S.W.2d 930,

932 (Tex.App.--San Antonio 1989, writ denied). We must affirm an instructed verdict if the

record discloses a ground that establishes, as a matter of law, the movant was entitled to

judgment, even though the ground was not embodied in the motion for instructed verdict.

Gonzales v. Willis, 995 S.W.2d 729, 740 (Tex.App.--San Antonio 1999, no pet.).

The evidence revealed multiple transactions, too numerous to detail, including

corporate checks, withdrawals, loans, and payments over the years which involved Bennie

or Deardorff while Bennie was acting as General Manager and Deardorff was acting as

President and Director. Bennie and Deardorff do not contend they did not serve as officers,

but contend, although the evidence demonstrated that transfers and payments had been

made, Double Ace introduced no evidence to show the transactions were unauthorized or

inappropriate. The motion sought an instructed verdict on the ground that Double Ace

provided no evidence of any impropriety in any of the transactions listed on the referenced

exhibit. However, because transactions between officers or directors of a corporation are

subject to strict scrutiny, as former officers, Bennie and Deardoff had the burden of

establishing the fairness of the transactions to the Corporation. See Popperman v. Rest

Haven Cemetery, Inc., 162 Tex. 255, 345 S.W.2d 715, 717 (1961).

10
 Since transactions between Bennie and Deardorff, as fiduciaries, are presumptively

fraudulent, they had the burden to introduce evidence to establish the fairness of the

transactions in which they were involved. Lesikar, 33 S.W.3d at 298. See also Willis v.

Donnelly, 118 S.W.3d 10, 34 (Tex.App.--Houston [14th Dist.] 2003, no pet.) ( holding the

trial court did not misplace the burden of proof that a “profiting fiduciary has the burden to

prove questioned transactions were fair, honest, and equitable.”). Considering the

evidence in accordance with the appropriate standard of review and the imposition of the

burden of proof, in the absence of any pleading and evidence that the corporate bylaws

provided otherwise, we conclude Double Ace presented sufficient evidence to raise fact

issues as to the subject transactions, and the trial court erred in granting the instructed

verdict. Issue 12 is sustained.

Our holding that the trial court erred in granting the instructed verdict requires that

the judgment that Double Ace take nothing against Bennie and Deardorff be remanded for

new trial. We must now decide whether such determination requires that the judgment

awarding Bennie and Deardoff damages on their counterclaims be reversed.

Rule 44.1(b) of the Texas Rules of Appellate Procedure provides:

(b) Error Affecting Only Part of Case. If the error affects part of, but not all,
the matter in controversy and that part is separable without unfairness to the
parties, the judgment must be reversed and a new trial ordered only as to the
part affected by the error. The court may not order a separate trial solely on
unliquidated damages if liability is contested.

11
Bennie and Deardorff’s counterclaims are considered as compulsory counterclaims under

Rule 97(a) of the Texas Rules of Civil Procedure. Also, we note Double Ace, Alyssa,

Matthew, and Donna do not assign any error to the determination of their joint and several

liability fixed by the judgment for damages sustained by Bennie and Deardorff.

In Otis Elevator Co. v. Bedre, 776 S.W.2d 152, 152-53 (Tex. 1989), the Court held

a partial reversal and remand was not proper unless the issues are severable and,

consequently, it reversed the judgment of the court of appeals which ordered a partial

remand. Later, in Prati v. New Prime, Inc., 949 S.W.2d 552, 558 (Tex.App.--Amarillo 1997,

writ denied), having sustained only two points, we reversed and remanded the case for new

trial. Accordingly, we conclude it would be improper to sever the claims of Double Ace from

the counterclaims asserted by Bennie and Deardorff.7 Therefore, our consideration of the

remaining issues presented by Double Ace is not necessary.

Issues of Alyssa Womack and Matthew Pope

By their first and second issues, Alyssa and Matthew contend the trial court erred in

failing to instruct the jury on the correct definition of civil conspiracy. We disagree.

Jury charge error is reviewed under an abuse of discretion standard. Texas Dep’t

of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). A proper instruction assists the

7
See 5 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 30:50
(2d ed. 1999).

12
jury, accurately states the law, and finds support in the pleadings and evidence. United

Servs. Auto. Ass’n v. Brite, 161 S.W.3d 566, 577 (Tex.App.–San Antonio 2005, pet. filed).

Here, although the definition in the charge somewhat differs from the definition submitted

by Double Ace, Alyssa, Matthew, and Donna, it does not constitute a misstatement of the

law that would result in an improper verdict. Furthermore, the trial court has great discretion

regarding the manner in which the jury is charged, so long as the charge properly submits

the issues that control the disposition of the case. See id.; Campbell v. C.D. Payne and

Geldermann Sec., Inc., 894 S.W.2d 411, 420 (Tex.App.--Amarillo 1995, writ denied).

Concluding that the trial court did not abuse its discretion, their first and second issues are

overruled.

By their third issue, Alyssa and Matthew contend the agreement with Bennie was not

sufficiently specific to alter the employment at-will relationship between Bennie and Double

Ace, as a matter of law. We disagree.

As a bar to recovery, Bennie’s status as an at-will employee would have constituted

an affirmative defense. Crow v. Rockett Special Util. Dist., 17 S.W.3d 320, 330 (Tex.App.--

Waco 2000, pet. denied). Because Alyssa and Matthew did not file an answer or other

pleading in response to Bennie’s counterclaims, they waived the argument asserted here.

Tex. R. Civ. P. 94; Komet v. Graves, 40 S.W.3d 596, 602 (Tex.App.–San Antonio 2001, no

pet.). Accordingly, their third issue is overruled.

13
 By issue four, Alyssa and Matthew contend the jury findings to questions one, two,

four, five, and six were against the great weight and preponderance of the evidence. Then,

without specifying the challenged questions by number, by issue twelve, Alyssa and

Matthew contend the jury findings that (A) they were part of a conspiracy that damaged

Deardorff, (B) Deardorff suffered $10,000 in damages as a result of such conspiracy, (C)

Deardorff’s harm resulted from malice, and (D) Deardorff suffered $1,000 in damages as a

result of any malice were also against the great weight and preponderance of the evidence.

We disagree.

Bennie had the burden of proof on questions one, two, four, five, and six. Similarly,

Deardorff also had the burden to prove the challenged findings applicable to his

counterclaim. The proper challenge to jury findings, where, as here, Alyssa and Matthew

did not have the burden of proof, is by a no evidence or factually insufficient evidence

standard. See Calvert, “ No Evidence “ and “Insufficient Evidence” Points of Error, 38 Tex.

L. Rev. 361, 364-68 (1960). Conversely, where an appellant challenges a jury verdict on

issues which he had the burden of proof, the standard on appeal is whether the findings

were against the great weight and preponderance of the evidence or should be reversed as

a matter of law. See Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264,

275-76 (Tex.App.--Amarillo 1988, writ denied). Moreover, the issue is not developed by

argument. See Howell v. Murray Mortg. Co., 890 S.W.2d 78, 80 (Tex.App.–Amarillo 1994,

pet. denied), and Tex R. App. P. 38.1(h). The issues are overruled.

14
 By issues five and eight, Alyssa and Matthew contend the trial court erred in granting

judgment jointly and severally against them for Bennie and Deardorff’s attorney’s fees. We

disagree.

By their counterclaims, Bennie and Deardorff sought to recover attorney’s fees

against Double Ace, Alyssa, and Matthew. Alyssa and Matthew argue, absent statutory

authority, no legal basis exists for such recovery. However, any claimed deficiency in the

pleadings should have been specifically pointed out by exception in writing and brought to

the attention of the trial court as provided by Rule 90 of the Texas Rules of Civil Procedure.

Because Alyssa and Matthew did not present their objections to the trial court in writing, the

issues are not preserved for our review. See National Farmers Union Property and Cas. Co.

v. Degollado, 844 S.W.2d 892, 900 (Tex.App.–Austin 1992, writ denied); Tex. R. Civ. P. 67;

Rapp v. Felsenthal, 628 S.W.2d 258, 259 (Tex.App.–Fort Worth 1982, writ ref’d n.r.e.). See

also Gulf Ins. Co. v. Vantage Properties, Inc., 858 S.W.2d 52, 55 (Tex.App.--Houston [14th

Dist.] 1993, writ denied).

By issues six and seven, including multiple sub-parts, Alyssa and Matthew contend

there was no evidence, or the findings were against the great weight and preponderance

of the evidence to support the jury finding that Deardorff was made a party to the underlying

suit by reason of his being or having been a director and officer of Double Ace. However,

15
by their statement of facts,8 Alyssa and Matthew acknowledge Deardorff testified he was an

employee and officer of Double Ace and, the Corporation, including Alyssa and Matthew,

sought to impose fiduciary duties upon him as an officer and employee of the Corporation.

Moreover, but for such relationship, Deardorff would not have been a proper party to the suit

for breach of fiduciary duties. Issues six and seven are overruled.

By issues 7B and 7C, Alyssa and Matthew contend the trial court erred in submitting

jury question 20 pertaining to Deardorff’s attorney’s fees because the court failed to

conditionally submit the questions requested by them. However, these issues are not

developed by argument or discussion in the brief and, the basis for conditional submission

is not explained. We conclude the issue does not present the argument clearly and

concisely as required by Rule 38.1(h) of the Texas Rules of Appellate Procedure. See

Heard v. Moore, 101 S.W.3d 726, 730 (Tex.App.--Texarkana 2003, pet. denied). Moreover,

Alyssa and Matthew have not demonstrated the trial court acted without reference to any

guiding principles and abused its discretion. Texas Dept. of Human Services v. E.B., 802

S.W.2d 647, 649 (Tex. 1990). Issues 7B and 7C are overruled.

By issue nine, Alyssa and Matthew contend the trial court abused its discretion in

sustaining objections to Matthew’s requests for production and in denying Double Ace,

8
Because Deardorff did not challenge the assertion in Alyssa and Matthew’s
appellate brief, we accept the fact assertion as true. See Tex. R. App. P. 38.1(f); Ingalls
v. Standard Gypsum, L.L.C., 70 S.W.3d 252, 255 n.2 (Tex.App.--San Antonio 2001, pet.
denied).

16
Alyssa, Matthew, and Donna’s motion to compel production. Since no party challenges the

relief sought by Matthew as to the corporate stock and that the corporation owned the

machinery and equipment described in the judgment, our disposition of this appeal renders

this issue moot and our consideration is pretermitted. See Tex. R. App. P. 47.1.

By issues 13 and 14, Alyssa and Matthew contend the trial court erred in allowing the

testimony of Beatrice Carr and Aubrey Jan Fouts and any testimony regarding

compensation Bennie may have received as General Manager of Double Ace because

Bennie failed to timely disclose such information prior to trial as required by Rule 194.3 of

the Texas Rules of Civil Procedure. We disagree.

Our review of the record reveals that no requests for disclosure were made on behalf

of Alyssa and Matthew.9 Further, in order to preserve a complaint for appellate review, a

party must present to the trial court a timely request, objection, or motion, state the specific

grounds thereof, and obtain a ruling. Tex. R. App. P. 33.1(a)(1). Alyssa and Matthew did

not object to the alleged errors at trial. Therefore, issues 13 and 14 present nothing for

review and are overruled.

By issue 15, Alyssa and Matthew contend the trial court erred in failing to grant a

mistrial after Bennie’s counsel launched a direct attack on counsel for Double Ace. We

disagree.

9
Double Ace initiated a request.

17
 During cross-examination, Bennie’s counsel questioned Alyssa regarding whether

counsel for Double Ace was the “driving force” behind the lawsuit. Counsel’s objection to

the line of questioning as an improper attack in “violation of the code of conduct and the

rules of ethics” was overruled. Bennie’s counsel followed by asking, “Did you know that the

lawyer that you have been following his direction has been suspended twice”? Counsel

immediately objected again and requested the jury be instructed to disregard the comment.

The court sustained. Bennie’s counsel replied, “Your honor, I am prepared to prove it, and

that is relevant to this case.” Counsel objected for a third time and the jury was instructed

to disregard the last question.

Counsel for Alyssa and Matthew did not object to any of Bennie’s counsel’s

statements complained of on appeal. See Tex. R. App. P. 33.1(a)(1). See also Checker

Bag Co. v. Washington, 27 S.W.3d 625, 643 (Tex.App.–Waco 2000, pet. denied) (noting the

same standard that applies to an improper attack during jury argument also applies to an

improper question). However, an objection is not required to preserve error if the error is

deemed to be incurable. Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968).

Although unwarranted attacks against the integrity of counsel are generally considered to

be incurable, this rule is not absolute. See, e.g., Checker Bag Co., 27 S.W.3d at 643. In

fact, instances of incurable error are rare. NationsBank of Texas, N.A. v. Akin, Gump,

Hauer & Feld, L.L.P., 979 S.W.2d 385, 399 (Tex.App.–Corpus Christi 1998, pet. denied).

The test for incurable error is whether the comments considered in their proper setting, were

reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by

18
counsel or an instruction by the court, or both, could not eliminate the probability that it

resulted in an improper verdict. Cooper Tire & Rubber Co. v. Mendez, 155 S.W.3d 382, 410

(Tex.App.--El Paso 2004, pet. filed). Alyssa and Matthew must prove the probability the

improper comments caused harm is greater than the probability the verdict was grounded

upon the proceedings and the evidence. Tex. Employers' Ins. Ass'n v. Guerrero, 800

S.W.2d 859, 865 (Tex.App.--San Antonio 1990, writ denied).

In the present case, the comments were directed at counsel for Double Ace, not

counsel for Alyssa and Matthew. Further, the remark was merely that opposing counsel had

been “suspended.” No reference was made regarding the suspending regulatory body or

to any instance of wrongful conduct which may have led to the claimed suspension. We

conclude the remarks were not harmful to Alyssa and Matthew and assume any harm was

cured as to them by the instruction of the trial court. Moreover, absent preservation of error

by objection, issue 15 presents nothing for review and is overruled.

Disposition

Accordingly, having overruled all of Alyssa and Matthew’s issues, we affirm those

portions of the judgment ordering and decreeing that:

(1) all stock issued in Double Ace, Inc. was issued to be held in trust for the
benefit of Alyssa Pope Womack and Matthew Pope and declaring them the
sole beneficial stockholders of Double Ace, Inc;
(2) the personal property described in Plaintiff’s exhibits P-16, P-17, and P-18
attached to the judgment is the property of Double Ace, Inc.;

19
 (3) except as provided in (1) and (2) above,10 that Alyssa Pope Womack and
Matthew Pope take nothing against Bennie Pope and Michael Deardorff;
(4) Bennie Dale Pope recover from Alyssa Womack Pope and Matthew Pope,
jointly and severally, $160,000 with prejudgment interest of $4,418.40 and his
attorney’s fees found by the jury; and
(5) Michael Deardorff recover from Alyssa Womack Pope and Matthew Pope,
jointly and severally, his damages in the amount of $11,000 and his attorney’s
fees as found by the jury.

In addition, having sustained Donna’s issue 11A and Double Ace’s issue 12, in all other

respects, the judgment of the trial court is reversed and the cause is remanded for further

proceedings.

Don H. Reavis
Justice

10
Alyssa and Matthew did not present any issues challenging these portions of the
trial court’s judgment.

20