Opinion
No. 02-10-00134-CV
Delivered: March 3, 2011.
Appealed from the 16th District Court of Denton County.
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
In four points, Ms. Wilhoite appeals the trial court's judgment against her in this breach of contract case. We will affirm.
Background Facts
Sometime in 2007 after the death of her husband, Ms. Wilhoite contacted her brother, Mr. Frank, asking for some help with some of her property. Mr. Frank offered to help Ms. Wilhoite move closer to him so that he could help care for her. Ms. Wilhoite's home in Ennis, Texas (the Ennis house) was put up for sale, and Mr. Frank paid roughly $148,000 for a house down the street from his own in Aubrey, Texas (the Aubrey house), which Ms. Wilhoite moved into. Mr. Frank testified that he and Ms. Wilhoite agreed that since the Ennis house had not yet sold, he would pay for the house with his own savings and she could pay him back with the proceeds from the Ennis house once it sold. Ms. Wilhoite denied making such an agreement and testified the house was a gift to her. The deed for the Aubrey house is in both names. Mr. Frank testified that he put his name on the deed as some sort of assurance that he would be repaid. He stated that he planned to deed his interest to his sister once she paid him back. Both parties agree that there was never a written agreement regarding the Aubrey house.
Mr. Frank also took Ms. Wilhoite to a bank to get a loan to pay off some of her credit card debt because the monthly payments were too high. Mr. Frank pledged a $10,000 certificate of deposit as collateral. The payments were set up to be automatically withdrawn from Ms. Wilhoite's account at the bank. Ms. Wilhoite made a few payments before closing her account and defaulting on the loan. Mr. Frank made some payments on the loan, and then the bank foreclosed on Mr. Frank's CD to pay off the loan balance.
Sometime after moving to the Aubrey house and selling the Ennis house, Ms. Wilhoite told Mr. Frank that she would not pay him for the house or the loan. Mr. Frank sued Ms. Wilhoite for breach of contract and fraud and sought an award of title to and possession of the Aubrey house. Ms. Wilhoite, who was at this time represented by counsel, responded, asserting the statute of frauds as an affirmative defense and various counterclaims.
Ms. Wilhoite argued none of her counterclaims at trial, nor does she make any arguments regarding them on appeal.
Ms. Wilhoite's attorney later withdrew as her counsel. The trial court offered to reset the trial date so that Ms. Wilhoite could engage new counsel, but Ms. Wilhoite refused, stating, "I want to go on to trial and represent myself. I think I can handle it." The trial judge repeatedly warned Ms. Wilhoite that she would have to hold Ms. Wilhoite to the same standard as a licensed attorney, and Ms. Wilhoite said she understood.
Ms. Wilhoite originally requested a jury trial but changed her mind after the trial judge discussed her responsibilities during voir dire. The bench trial was held with Ms. Wilhoite representing herself. The trial court found for Mr. Frank and ordered that he recover $158,425.46, plus prejudgment interest and attorney's fees.
Ms. Wilhoite filed a pro se motion for new trial only on the grounds that she had "asked for a jury trial and did [not] know she could object to a bench trial." The motion was denied, and Ms. Wilhoite filed this appeal.
Standard of Review
In a trial to the court where no findings of fact or conclusions of law are filed, the trial court's judgment implies all findings of fact necessary to support it. Pharo v. Chambers Cnty., 922 S.W.2d 945, 948 (Tex. 1996); In re Estate of Rhea, 257 S.W.3d 787, 790 (Tex. App.-Fort Worth 2008, no pet.). When a reporter's record is filed, however, these implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency of the evidence points. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Estate of Rhea, 257 S.W.3d at 790. When such points are raised, the applicable standard of review is the same as that to be applied in the review of jury findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989). The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re Guardianship of Boatsman, 266 S.W.3d 80, 85 (Tex. App.-Fort Worth 2008, no pet.).
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). If a party is attacking the legal sufficiency of an adverse finding on a point on which the party had the burden of proof, and there is no evidence to support the finding, we review all the evidence to determine whether the contrary proposition is established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).
When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
Discussion
I. The Aubrey House
Ms. Wilhoite first argues that the court erred in finding that there was an oral contract between the parties regarding the sale of the Aubrey house because any such oral contract would violate the statute of frauds. Ms. Wilhoite also claims that the trial court erred by not finding that the house was a gift from Mr. Frank.
It was Ms. Wilhoite's burden to plead and prove the applicability of the statute of frauds. See Tex. R. Civ. P. 94. Although Ms. Wilhoite pleaded it, she presented no evidence in support of her pleading and thus, she failed to meet her burden. See O'Farrill Avila v. Gonzalez, 974 S.W.2d 237, 246 (Tex. App.-San Antonio 1998, pet. denied). Further, Ms. Wilhoite failed to object to any of the parol evidence offered by Mr. Frank at trial and thus failed to preserve her complaint for review. See Tex. R. App. P. 33.1(a) (requiring the record to show that a complaint was made to the trial court); Steger v. Muenster Drilling Co., 134 S.W.3d 359, 377 n. 61 (Tex. App.-Fort Worth 2003, pet. denied) (holding that plaintiff waived complaint that evidence did not comply with the statute of frauds because she could not show any objections to the evidence on those grounds).
Likewise, Ms. Wilhoite failed to prove that the house was a gift. See Sorrell v. Elsey, 748 S.W.2d 584, 588 (Tex. App.-San Antonio 1988, writ denied) (holding that when pleading a gift as an "independent reason why the plaintiff should not recover upon the case stated and proved," it is an affirmative defense). Mr. Frank testified that Ms. Wilhoite had promised to pay him for the house, and the trial court was within its discretion to believe him over Ms. Wilhoite. See Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 777 (Tex. App.-Fort Worth 2009, no pet.) ("In a bench trial, the trial court is the sole judge of the credibility of the witnesses, assigns the weight to be given their testimony, may accept or reject all or any part of their testimony, and resolves any conflicts or inconsistencies in the testimony."). The evidence is legally and factually sufficient to support the court's finding that the Aubrey house was not a gift. We overrule Ms. Wilhoite's first and second points.
II. The $10,000 Loan
In her third point, Ms. Wilhoite argues that the evidence is insufficient to support the trial court's finding that Mr. Frank loaned $10,000 to Ms. Wilhoite. Ms. Wilhoite improperly characterizes the loan from the bank as a loan from Mr. Frank. Mr. Frank provided sufficient evidence to prove that he was a surety for the loan, which originated from Ms. Wilhoite's bank.
It is undisputed that Ms. Wilhoite signed the promissory note for $10,000 and the automatic transfer agreement for repayment and that Mr. Frank signed the security agreement, securing the payment of the loan. It is also undisputed that Ms. Wilhoite received the $10,000, that her credit card balance was paid off, and that she later closed out the bank account tied to the automatic transfers without first fully paying her debt.
As a surety for the loan, once Mr. Frank paid the debt, "he stands in the shoes of the creditor and may sue on the judgment itself." Caldwell v. Stevenson, 567 S.W.2d 278, 280 (Tex. Civ. App.-Austin 1978, no writ); see also Tex. Bus. Com. Code Ann. § 9.601 (Vernon Supp. 2010) ("A secured party: (1) may reduce a claim to judgment, foreclose, or otherwise enforce the claim, security interest, or agricultural lien by any available judicial procedure."). Mr. Frank sued on the debt standing in the shoes of the bank. There was ample evidence that Ms. Wilhoite owed Mr. Frank the amount of the CD which the bank used to pay off Ms. Wilhoite's debt. We overrule Ms. Wilhoite's third point.
Ms. Wilhoite also argues that the loan between Ms. Wilhoite and Mr. Frank violates the statute of frauds. Because the loan agreement and security agreement are in writing, there is no statute of frauds issue here.
III. Ineffective assistance of counsel
In her fourth and final point, Ms. Wilhoite complains that her own pro se representation deprived her of her constitutional right to effective representation by counsel. See U.S. Const. amend. VI. The constitutional right to effective assistance of counsel has been extended only to certain civil proceedings in Texas. See In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (holding that there is a right to effective counsel in parental-rights termination cases); In re Protection of H.W., 85 S.W.3d 348, 355-56 (Tex. App.-Tyler 2002, no pet.) (noting that there is a right to effective counsel in involuntary civil commitment cases). Ms. Wilhoite cites no case that has extended the constitutional right of effective counsel to contract cases, and we decline to do so. See Chrisman v. Chrisman, 296 S.W.3d 706, 707 (Tex. App.-El Paso 2009, no pet.(declining to extend the right to divorce proceedings); see also In re M.J., No. 09-09-00355-CV, 2010 WL 3042438, at *4 (Tex. App.-Beaumont Aug. 5, 2010) (mem. op.) ("In the absence of a constitutional or statutory provision granting a right to appointed counsel, we decline to extend a right to effective assistance of counsel to a dispute resolving the division of possession between joint managing conservators."). Furthermore, even if the right did extend to contract cases, by exercising her right to represent herself, Ms. Wilhoite is precluded from claiming ineffective assistance. See Williams v. State, 549 S.W.2d 183, 189 (Tex. Crim. App. 1977) (stating that when an accused elects to represent himself he cannot complain that the quality of his own defense amounted to a denial of effective assistance of counsel); Macon v. State, No. 2-05-00195-CR, 2007 WL 79714, at *4 (Tex. App.-Fort Worth Jan. 11, 2007, no pet.) (mem. op., not designated for publication). We overrule Ms. Wilhoite's fourth point.
Conclusion
Having overruled all of Ms. Wilhoite's points, we affirm the trial court's judgment.