11th Court of Appeals
Eastland, Texas
Memorandum Opinion
Victoria L. Carter
Appellant
Vs. No. 11-03-00178-CV -- Appeal from Taylor County
James Prescott Johnson
Appellee
Victoria L. Carter filed suit against James Prescott Johnson in justice court, alleging that Johnson failed to pay rent on property owned by Carter and that Johnson damaged the rental pro-perty. The justice of the peace found for Carter after Johnson failed to appear for trial. Johnson appealed the cause to the county court at law. Carter amended her pleadings to include claims that Johnson had failed to pay a debt to her for a car loan and that Johnson had damaged her personal residence. The county court at law found in favor of Johnson and ordered that Carter take nothing in her suit. We affirm.
Carter is Johnson’s mother. Carter agreed to let Johnson live in a rental house that she owned. Johnson agreed to pay the monthly mortgage payment while he lived in the house. Johnson testified at trial that he made repairs and improvements to the property while he lived there. Carter testified that Johnson damaged the property while living there and that Johnson failed to make some of the rental payments.
Johnson testified that he took out a loan at Dyess Federal Credit Union to purchase a car. Johnson asked his mother for assistance in making the car loan payment. The record shows that Carter paid off the entire amount of the loan. The parties dispute whether Carter’s payment of the loan was a gift or a loan to Johnson.
Carter does not, in her first two issues on appeal, claim that the trial court’s findings of fact are based upon legally or factually insufficient evidence. This observation is underscored by the fact that there are no references in Carter’s brief to the standards of review for legal or factual sufficiency questions. Instead, Carter attacks the conclusions of law made by the trial court.
Appellate courts may review conclusions of law when attacked as a matter of law, but we do not make that review on sufficiency grounds as we would when sufficiency points are raised. Mercy v. Bludworth, 715 S.W.2d 693, 697 (Tex.App. - Houston [1st Dist.] 1986, writ ref’d n.r.e), overruled on other grounds by Shumway v. Horizon Credit Corporation, 801 S.W.2d 890 (Tex.1991). We will review the legal conclusions that the trial court has drawn from the facts found in order to determine whether the conclusions are correct. Mercy v. Bludworth, supra.
In Carter’s first issue, she claims:
The trial court erred when it ruled that Carter failed to meet her burden of proof showing Appellee was indebted to her for the money she paid Dyess Federal Credit Union for the Chrysler Sebring, which resulted in an erroneous ruling that failed to include Carter’s intent, i.e., donor’s intent, behind payment of Appellee’s debt.
We take the issue as a challenge to the trial court’s conclusion of law that “[t]he Plaintiff [Carter] failed to meet her burden of proof in showing the Defendant was indebted to her for the money she paid Dyess Federal Credit Union for the Chrysler Sebring.”
Johnson testified at trial that, after he took out the car loan, he had trouble making the payments. Johnson asked Carter for assistance in making one payment on the loan. Johnson testified that Carter paid the entire loan amount, although he did not ask her to pay the entire amount. Johnson further stated that, at that time, he did not intend to pay Carter back for the loan amount and that they did not discuss Johnson paying Carter for the loan amount. A few months later, Carter requested payment from Johnson and also requested that he sign a promissory note. Johnson testified that he refused to sign a promissory note or security agreement. At trial, Carter presented a copy of a promissory note and security agreement with Johnson’s signature. Johnson testified that that was not his signature on the documents.
Carter testified at trial that she paid off Johnson’s loan at Dyess Federal Credit Union with the understanding that Johnson would repay her in monthly payments. Carter stated that she did not intend the payment as a gift but, rather, as a loan to Johnson. Carter admitted that she did not perfect a lien against the title to the car after paying the car loan for Johnson.
Carter had the burden to prove that Johnson owed her money in connection with the vehicle note. See, e.g., Cauble v. Handler, 503 S.W.2d 362, 363 (Tex.Civ.App. - Fort Worth 1973, writ ref’d n.r.e.)(where the burden of proof of the existence of the debt and the amount of the debt was placed upon the one claiming the debt). The trial court heard conflicting testimony concerning Carter’s payment to Dyess Federal Credit Union for Johnson’s used car loan. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 923 (Tex.App. - Houston [1st Dist.] 1988, no writ). The trial court found that Carter’s son, Johnson, asked Carter to help him with one car payment; that instead of helping him with one car payment, after some discussion with Dyess Federal Credit Union personnel about their loaning that much money to an 18-year-old, Carter wrote them a check and paid off the entire note; that, although Carter was an attorney, she did not transfer the title to the vehicle to her but, rather, allowed it to be released to Johnson; that Carter did not ask Johnson to sign a promissory note until approximately one month after the note had been paid; and that, while Carter said that Johnson signed a promissory note to her, Johnson denied signing the note. After hearing all of the evidence, the trial court entered its findings and concluded therefrom that Carter did not meet her burden to establish that Johnson was indebted to her for the amount of the vehicle loan. We find that the trial court correctly applied the law to its unchallenged findings of fact when it entered its conclusions. Carter’s first issue on appeal is overruled.
In her second issue on appeal, Carter argues:
The trial court erred when it ruled that Appellee did not damage the rental property located at 714 Ross, and when the court ruled that Appellee had no obligation to pay past due rental payments to Carter.
We take the issue as a challenge to the following conclusions of law made by the trial court: “The Plaintiff [Carter] failed to meet her burden of proof in showing the Defendant did not pay rent in cash for the months checks were not written” and “The Plaintiff failed to meet her burden of proof in showing the property at 741 Ross was damaged during the occupancy of the Defendant.”
Carter testified at trial that there were six months in which Johnson failed to pay rent. Carter further testified that Johnson damaged the rental property and offered pictures of the property as evidence of the damage. Johnson testified that he did not enter into a rental agreement with Carter and that he did not make payments for “rent” to Carter. Johnson testified that he paid Carter $166 per month while living in the house, which was the amount of the mortgage on the house. Johnson further testified that he would sometimes make the payment in cash or that he would work for Carter in exchange for the monthly payment. Johnson stated that he did not damage the rental property and that he made improvements on the rental property while living there.
The trial court found that Johnson made some of the rental payments to Carter in cash and by work done on the home and that Carter did not meet her burden in showing that Johnson failed to make the rental payments on the months in question. The trial court further found that Johnson moved into the rental property owned by Carter with the intention of making repairs needed on the property; that Johnson paid Carter $166 by check five times; that the uncontroverted testimony of Carter is that some rental payments were made by cash payments and the others were done by work on Carter’s home and other rental properties; that the property was not in good condition when Johnson moved into the house or when he moved out of the house; and that the date of the damage was not established as being before or after Johnson moved in. We find that the trial court correctly applied the law to its unchallenged findings of fact when it entered its conclusions. Carter’s second issue on appeal is overruled.
In her third issue on appeal, Carter complains that the trial court erred in admitting evidence. On March 5, 2003, Carter filed a motion to exclude Johnson’s responses to requests for disclosure, responses to requests for production, and answers to interrogatories. Carter sought to exclude the evidence because the responses were untimely. On March 7, 2003, the trial court held a hearing on Carter’s motion. At the hearing, Johnson acknowledged that the responses were 11 days late. After explaining to the trial court the reason for the late responses, Johnson noted that, due to the unique circumstances of the case, Carter was not unfairly surprised by the untimely responses. The trial court denied Carter’s motion for exclusion, but allowed Carter a motion for continuance. Carter proceeded with the witnesses who were present, and the case was then continued until March 28, 2003.
We review a trial court’s decision on discovery sanctions for an abuse of discretion. See Bodnow Corporation v. City of Hondo, 721 S.W.2d 839 (Tex.1986). The record shows that Carter was allowed a motion for continuance to adequately prepare for trial as a result of the late responses to discovery. Carter has not shown that the trial court abused its discretion in admitting the evidence. Carter’s third issue on appeal is overruled.
In her fourth issue on appeal, Carter claims that the trial court erred in allowing Johnson to present “affirmative defenses.” Carter argues that Johnson presented the affirmative defenses of accord and satisfaction, payment, and duress and that Johnson did not include the defenses in his pleadings. Carter further argues that the trial court “sua sponte” implied the defense of necessity.
Johnson testified that he did not owe Carter for past due rent or for the amount she paid to Dyess Federal Credit Union. Johnson denied damaging Carter’s rental property. The trial court found that Carter did not meet her burden in showing that Johnson owed her for the money she paid to Dyess Federal Credit Union, that Johnson owed her for past due rent, or that Johnson damaged her rental property. The trial court further found that Carter did not meet her burden in proving that Johnson committed “malicious mischief/negligence...when he kicked in the door of [Carter’s] resi-dence.” The record does not support Carter’s argument that the trial court erroneously admitted evidence of affirmative defenses. Carter’s fourth issue on appeal is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
January 31, 2005
Not designated for publication. See TEX.R.APP.P. 47.2(a).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.