Opinion
No. 04-17-00352-CV
04-11-2018
Brian MCLAUGHLIN and Bobbi Lynn McLaughlin, Appellants v. Edward B. FRANKEL, Individually and as Trustee of the Frankel Family Trust, Appellee
MEMORANDUM OPINION
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2013CI17653
The Honorable Angelica Jimenez, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Brian McLaughlin and Bobbi Lynn McLaughlin appeal a take nothing judgment entered by the trial court based on a jury's verdict asserting: (1) the evidence is factually insufficient to support one of the jury's answers; and (2) the trial court erred in allowing the Frankel Family Trust to file a late answer. We affirm the trial court's judgment.
BACKGROUND
The McLaughlins filed the underlying lawsuit asserting various claims relating to damage caused to their property during its removal from their apartment. The property was removed from the apartment pursuant to a writ of possession issued in an eviction suit. Initially, the McLaughlins sued Edward B. Frankel, individually, but they later amended their petition to sue Frankel both in his individual capacity and as trustee of the Frankel Family Trust, alleging Frankel and/or the trust owned the apartment complex. After a three-day jury trial, the jury found against the McLaughlins on all of their claims, and the trial court entered a take-nothing judgment. The McLaughlins appeal.
FACTUAL SUFFICIENCY
In their first issue, the McLaughlins challenge the factual sufficiency of the evidence to support the jury's finding to the first jury question. In that question, the jury was asked, "Did Defendant take possession of the McLaughlins' property, but fail to treat the property by using reasonable care?" The jury answered "no." The McLaughlins assert the jury's answer was against the great weight and preponderance of the evidence because their testimony at trial was not controverted.
It is unclear from the record and the briefing what cause of action supported the submission of this question.
"When a party attacks the factual sufficiency of an adverse finding on an issue on which [the party] has the burden of proof, [the party] must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In our review, we "must consider and weigh all of the evidence, and [we] can set aside a verdict only if ... the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Id. "[A]s the factfinder, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony." United Parcel Serv., Inc. v. Rankin, 468 S.W.3d 609, 615 (Tex. App.—San Antonio 2015, pet. denied). "Thus, a jury may believe or disbelieve the testimony of a witness, in whole or in part, and may resolve any inconsistencies in a witness's testimony." Id.
Under the jury question submitted to the jury, the McLaughlins had the burden to show the defendant took possession of their property. As previously noted, the McLaughlins' property was removed from their apartment pursuant to a writ of possession. When a writ of possession is executed, the officer executing the warrant must "instruct the tenant to remove" or "allow the landlord, the landlord's representatives, or other persons acting under the officer's supervision to remove all personal property from the rental unit other than personal property claimed to be owned by the landlord." TEX. PROP. CODE ANN. § 24.0061(d)(2)(C) (West 2014). Bobbi Lynn McLaughlin testified the property was removed by a uniformed officer who was accompanied by ten men. Although she testified she recognized two of the men, she did not state they were men associated with the apartment complex. From the testimony, the jury could have found the property was removed by "other persons acting under the officer's supervision." Therefore, the jury could have found the defendant never took possession of the McLaughlins' property. Although Bobbi Lynn also testified a manager appeared at some point when the property was being removed, she did not state the manager directed the removal. In fact, she said the manager "turned her back and acted like it wasn't even happening." Having reviewed all of the evidence in the record, we hold the evidence is factually sufficient to support the jury's answer to the first jury question. Accordingly, we overrule the McLaughlins' first issue.
LATE ANSWER
In their second issue, the McLaughlins assert the trial court erred in allowing the Frankel Family Trust to file a late answer. Although an answer generally must be filed seven days before the date of trial, an answer can be filed after that time if "leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party." TEX. R. CIV. P. 63. A trial court's ruling on a request for leave to file a late answer is reviewed under an abuse of discretion standard. Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980).
In this case, the record reflects the trial court gave the trust permission to file the late answer. In their brief, the McLaughlins do not argue they were surprised by the amendment. J-IV Invs. v. David Lynn Mach., Inc., 784 S.W.2d 106, 108 (Tex. App.—Dallas 1990, no writ) (noting party resisting filing of late pleading has burden to convince the trial that the late filing will operate as a surprise); Patino v. Tex. Emp. Ins. Ass'n, 491 S.W.2d 754, 756 (Tex. Civ. App.—Austin 1973, writ ref'd n.r.e.) (same). Because the trial court exercised its discretion to allow the trust to file the late answer, the McLaughlins' second issue is overruled.
During the charge conference, the McLaughlins' attorney objected to the submission of questions regarding the trust, arguing they failed to timely answer and should have been defaulted. In response, the trust's attorney noted the trial court gave the trust permission to file the answer.
CONCLUSION
The trial court's judgment is affirmed.
Sandee Bryan Marion, Chief Justice