ERIC VANDERWERFF v. GRIZELLE LARRIVIEL GRIZELLE VANDERWERFF AS EXECUTOR OF THE ESTATE OF NANCY RODRIGUEZ (2011)

MEMORANDUM OPINION

Opinion By Justice Francis

Nancy Rodriguez sued her former son-in-law, Eric A. Vanderwerff, D.C., when he failed to repay two loans.   The trial court heard the case without a jury and found in Rodriguez's favor, awarding her estate $19,000 in damages plus attorney's fees.¹  In two issues, appellant asserts (1) the claims are barred by the statute of limitations as a matter of law and (2) no evidence supports one of the loans.   We affirm.

Appellee presented evidence that Rodriguez loaned appellant $19,000 when he needed money to pay a tax debt to the Internal Revenue Service.   The loans were evidenced by two checks, both made payable to appellant.   The first check, dated June 1, 2000, was in the amount of $10,000;  the second check, dated April 18, 2001, was in the amount of $9,000.   Grizelle Larriviel, who is Rodriguez's daughter and appellant's ex-wife, testified no date was discussed for repayment of the loans;  instead, she said appellant was to repay the loans when Rodriguez asked for repayment.   Larriviel said Rodriguez first demanded repayment from appellant in 2002, just before Larriviel and appellant's divorce was finalized in October, but appellant told her he could not pay “right now.”   Rodriguez made further demands in 2003 and 2004, but appellant still was unable to pay.   During these years, appellant acknowledged on numerous occasions his desire to repay the notes.   Finally, in February 2007, Rodriguez met with appellant and presented him with a written plan for repayment.   When appellant failed to repay, Rodriguez filed suit in May 2007.

At trial, appellant acknowledged he owed more than $26,000 in back taxes for tax year 1999, but denied he borrowed money from Rodriguez.   He testified he had never seen the June 1, 2000 check for $10,000, although he acknowledged that in answer to an interrogatory he stated he “received the check shortly after the date on the check.”   As for the second check for $9,000, he claimed Rodriguez gave him the money as repayment for all he had done for her.

After all the evidence was presented, appellant asked to amend his pleadings to assert a statute of limitations affirmative defense.   Over appellee's objection, the trial court allowed the amendment, but it ultimately ruled in appellee's favor on her breach of contract claim.

In his first issue, appellant contends the evidence established as a matter of law that appellee's breach of contract claim was barred by the statute of limitations.   Both sides agree an action on a debt must be commenced within four years of the date upon which the cause of action accrued.   See Tex. Civ. Prac. & Rem.Code Ann. § 16.004(a)(3) (West 2002).   Appellant asserts that limitations began to run either on the dates the checks were signed (2000 and 2001) or at the time Rodriguez made the initial demand for payment in October 2002.   Under either scenario, appellant contends, more than four years elapsed before suit was filed.

In response, appellee argues appellant does not address evidence presented from multiple witnesses that appellant orally promised on numerous occasions between 2002 and 2007 to repay the past due debt owed Rodriguez.   Appellee presented this same argument to the trial court when appellant sought his trial amendment on limitations.   For support, appellee directs this Court to our previous opinion in Fuqua v. Fuqua, 750 S.W.2d 238, 242 (Tex.App.—Dallas 1988, writ denied), where we concluded that “an oral promise to repay a past due debt, if the promise is made before an action on the debt is barred by limitations, can create a valid contract which will support an action by the creditor after the limitations period has expired as to the original debt.”

Appellant did not request findings of fact and conclusions of law, and none were made.   In the absence of any findings of fact and conclusions of law, the appellant has the burden to show that the trial court's judgment was not supported by any legal theory raised by the evidence.  Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 279 (Tex.1979) (per curiam).   Further, all fact findings necessary to support the trial court's judgment are implied.   Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).   When the appellate record includes a reporter's record, however, these implied findings are not conclusive and may be challenged for legal and factual sufficiency.   Roberson v. Roberson, 768 S.W.2d 280, 281 (Tex.1989) (per curiam).

Here, the trial court implicitly determined that appellee's cause of action was not barred by limitations.   One theory relied upon below was that appellant's oral promises, made before limitations had run, created a new contract that supported the action on the original debt.   Although appellant has the burden to show the judgment below cannot be sustained on any theory raised by the evidence, he has not addressed this theory on appeal.   Under these circumstances, we conclude appellant has not shown reversible error.   We overrule the first issue.

In his second issue, appellant contends no evidence proves the June 1, 2000 check “represents a payment or transfer of money, as a loan or otherwise, by Nancy Rodriguez to anyone.”   He asserts the evidence established the money was not drawn on an account in which Rodriguez owned any funds.   Further, he argues the evidence showed Rodriguez was bankrupt and had no money at the times the checks were written.

As stated previously, implied findings can be challenged for legal sufficiency.   When a party is attacking the legal sufficiency of the evidence supporting an adverse finding on an issue for which he did not have the burden of proof, he must show that no evidence supports the adverse finding.   See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).   Evidence is legally sufficient if it “would enable reasonable and fair-minded people to reach the verdict under review.”  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).   We credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not.   See id.   The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony.  Id. at 822.

Larriviel testified she was married to appellant in 2000 and 2001 when he borrowed the money from her mother to pay a debt owed to the IRS. Larriviel said that although the June 2000 check was written on the account of Rodriguez's parents, the funds in the account belonged to Rodriguez.   Larriviel explained that Rodriguez obtained the funds by selling two properties she owned in Florida.   Appellant acknowledged he assisted Rodriguez in selling the properties.   The checks to appellant were issued shortly after the land sales closed.   We conclude a reasonable factfinder could find, as the trial court implicitly did here, that the June 1, 2000 check was a loan of money from Rodriguez to appellant.   We overrule the second issue.

In this third issue, appellant asserts the award of attorney's fees must be reversed.   This issue is predicated on his theory that the breach of contract claim fails.   Having concluded otherwise, we necessarily reject appellant's third issue.

We affirm the trial court's judgment.

100942F.P05

FOOTNOTES

FN1. Rodriguez passed away before the case was tried, and her estate was substituted as plaintiff..  FN1. Rodriguez passed away before the case was tried, and her estate was substituted as plaintiff.

MOLLY FRANCIS JUSTICE