

Opinion issued March 30, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-01022-CV
———————————
Michel Salomon and Malena Salomon, Appellants
V.
Isabelle
(Salomon) Lesay and Khalaf S. Khalaf, Appellees

 

 
On Appeal from the 215th District Court
Harris County, Texas

Trial Court Case No. 2006-14644
 

 
O
P I N I O N
          Appellants Michel and Malena Salomon
appeal from a judgment concerning real property that they allege is their
homestead.  Appellee Isabelle Lesay, the
ex-wife of Michel Salomon, had obtained a lien against the Salomons’ property
for unpaid child support in a separate proceeding.  Lesay foreclosed on the lien, and appellee
Khalaf S. Khalaf purchased the property at a public auction.  The Salomons sued Lesay for filing a
fraudulent lien, and they sued Khalaf to quiet title.  Lesay and Khalaf filed counterclaims.  The trial court subsequently struck Michel’s
pleadings for his repeated failures to appear at court-ordered depositions.  The jury found that the property was Malena’s
homestead, but it also found that Lesay did not fraudulently file her
lien.  The court entered a judgment
declaring that Malena had an undivided, one-half, homestead
interest in the property.  The judgment
also declared that Khalaf had acquired Michel’s undivided, one-half, non-homestead interest in the property as tenant in common
with Malena.
The Salomons appeal,
arguing (1) there was insufficient evidence to support the jury’s verdict
that Lesay had not fraudulently filed her lien, (2) a flawed jury
instruction was submitted on the fraudulent lien claim, (3) the relief awarded
to Lesay and Khalaf violated the constitutional homestead exemption and was
unsupported by the pleadings, and (4) the trial court abused its
discretion when it struck Michel’s pleadings.
We conclude that the
trial court erred when it entered a judgment that gives effect to a child
support lien and a forced sale that are void under the homestead exemption of
the Texas Constitution.  We affirm the
judgment of the trial court in part, reverse in part, and remand for further
proceedings with respect to requests for statutory damages, costs of court, and
attorney’s fees.
Background
          Isabelle
Lesay and Michel Salomon were divorced in Travis County in 2001.  Michel was ordered to pay spousal maintenance
and child support for the couple’s minor child.
Shortly after the
divorce, Michel and Malena Salomon married.  In 2004, the Salomons bought a house located
in Spring, Harris County, near where several of
Malena’s family members resided.  The
deed identified both Michel and Malena as the grantees.  The Salomons did not occupy the residence
full-time.  Michel traveled frequently on
business, while Malena took care of Michel’s elderly mother in France during
much, if not most, of the time beginning in 2006.
          In
a separate proceeding, a Travis County district court found that Michel was in
arrears on his child support and spousal maintenance payments.  The court held him in contempt, and in 2005 it
issued a capias for his arrest for failure to appear at an enforcement
hearing.  Around that time, Lesay and her
attorneys discovered that the Salomons had purchased the property in Spring,
and they filed with the Harris County Clerk a notice of child support lien on
“all nonexempt real and personal property” of Michel Solomon that was located
or recorded in Texas.  See Tex.
Fam. Code Ann. § 157.313(a)(9) (West 2008)
(specifying contents of child support lien notice).  The lien notice specifically identified the Spring property as nonexempt property.  Lesay testified that when she checked the
public records as late as February 2006, after filing the lien notice, the Harris
County Appraisal District records did not reflect that the Salomons’ Spring
property was their homestead.
After Lesay obtained a
writ of execution on the child support lien, a deputy constable sent a letter
to the Salomons’ house in February 2006, requesting a discussion about satisfying
the judgment.  Shortly thereafter, the
Salomons filed with the Harris County Clerk an application for homestead
exemption and an affidavit designating the property as their homestead.
A constable’s sale of
the Salomons’ house was scheduled for March 2006.  Three days before the scheduled sale, an
attorney for the Salomons sent a letter to Lesay’s attorney, advising that his
clients had homesteaded the property and requesting that Lesay intervene to
halt the sale.  The day before the
scheduled sale, the Salomons filed in Harris County district court an
application for a temporary restraining order to enjoin the sale, in addition
to claims against Lesay for declaratory judgment, slander of title, and filing
a fraudulent lien.  The trial court
entered the requested TRO that same day.
Lesay counterclaimed
for declaratory judgment that the property was not a homestead.  The trial court extended the TRO by agreement
of the parties until May 2006.  However,
the Salomons did not pay the $50,000 bond required to maintain the order.  In March 2007, Khalaf S. Khalaf purchased the
property at a constable’s sale.  Khalaf
sent a letter to the Salomons in June, demanding that they vacate the premises.
After receiving
Khalaf’s letter, the Salomons amended their pleadings to join Khalaf as a
defendant.  Their amended petition sought
declaratory judgment that the Spring property was
their homestead and exempt from forced sale, that the child support lien was
invalid, and that the constable’s deed transferring title to Khalaf was
void.  The Salomons reasserted their claim
against Lesay for filing a fraudulent lien and added a claim for wrongful
execution.  Khalaf counterclaimed against
the Salomons to quiet title.
When the trial court
entered the agreed order in March 2006 to extend the TRO, it included an order
that both Salomons appear for depositions in April.  However, Michel did not comply with the order.  In May 2006, the trial court again ordered
Michel to appear for deposition no later than the end of June.  Again, Michel did not comply.  In October 2007, the trial court ordered that
Michel appear for deposition in December. 
The trial court also imposed a fine of $1,000 and warned that Michel’s
pleadings were subject to being struck if he did not appear.  Once again, Michel did not comply.  Lesay moved for sanctions, and in January
2009, the trial court held a hearing on the motion.  When asked by the court why Michel had not appeared
for his deposition, the Salomons’ counsel explained that Michel suspected Lesay
would have him arrested on the capias related to child support arrearages.  The court struck Michel’s pleadings and imposed
a fine of $2,000 against him.
A two-day jury trial
was conducted on the remaining claims asserted by Malena, Lesay, and
Khalaf.  The jury returned a special
verdict, answering “yes” to the question of whether the house was the homestead
of Malena Solomon and “no” to the question of whether Lesay had filed a
fraudulent lien.  The trial court signed
a judgment declaring, among other things, that Lesay’s child support lien was
valid as to Michel but invalid as to Malena, and that Khalaf’s deed was not
void as to Michel but void as to Malena.
The Salomons filed motions
for new trial and to modify or clarify the judgment.  The court denied the motion for new trial,
but it entered a corrected final judgment in which it declared and ordered the
following:
Based on the
jury’s verdict regarding the portion of the case regarding the pleadings of
MALENA SALOMON, it is ADJUDGED, ORDERED AND DECREED that:
 
1.             
ON the claim of DECLARATORY JUDGMENT, the jury finds in
favor of Plaintiff MALENA SALOMON and against Defendants ISABELLE (SALOMON)
LESAY and KHALAF S. KHALAF, and that pursuant to the Texas Uniform Declaratory
Judgment Act, Chapter 37 of the Texas Civil Practice and Remedies Code, it
is declared that:
 
A.      Plaintiff MALENA SALOMON’S real property
residence described as follows is the homestead of MALENA SALOMON, exempt from
forced sale under the Constitution and Law of the State of Texas:           

Lot Forty (40), in Block Twenty (20), of Champion Forest, Section Three (3), a
subdivision in Volume 266, Page 139 of the Map Records of Harris County, Texas;
also known as 
 
16150 Hex[h]am,
Spring, Harris County, Texas 77379 (the “real
property”).
 
B.       The Notice of Child Support Lien filed by
Defendant, ISABELLE (SALOMON) LESAY, on May 23, 2005 in the Harris County Real
Property Records, File number Y484196, is invalid against the above described
real property and that Defendant, ISABELLE (SALOMON) LESAY as Judgment
Creditor, shall release any and all liens existing by reason of the child
support lien and judgment and the filing of the Notice of Child Support Lien
against and only against the above-described real property residence;
 
C.       The Abstracts Judgment filed by
Defendant, ISABELLE (SALOMON) LESAY, in the Harris County Real Property Records
on November 14, 2005 under Clerk’s File #Y896917 and on February 9, 2006 under
Clerk’s File #Z081187, are invalid against the above described real property
and that Defendant, ISABELLE (SALOMON) LESAY, as Judgment Creditor, shall
release any and all liens existing by reason of the Judgment and the filing of
the abstracts of Judgment against and only against the above described real
property residence; and 
 
D.      The Deed Under Execution issued to
Defendant, KHALAF S. KHALAF (aka KHALAF SAMAN KHALAF) filed under Harris County
Clerk File # 2007290995 is void and invalid against the above described real
property and that Defendant, KHALAF S. KHALAF (aka KHALAF SAMAN KHALAF), and
Defendant, ISABELLE (SAL[OMO]N) LESAY, shall release any and all liens or
claims against the real property existing by reason of the Deed Under Execution
and the Judgment under the Abstracts of Judgment filed by Defendant, ISABELLE
(SALOMON) LESAY against and only ag[a]inst the above described real property.
 
In
regard to the claim for homestead by declaratory judgment brought by Plaintiff
MICHEL SALOMON, the pleadings were struck by the Court due to the failure of
Plaintiff MICHEL SALOMON to adhere to multiple court rulings regarding
discovery, and, therefore, there were no pleadings and no testimony of MICHEL
SALOMON to submit to the jury, the Court makes the following ruling:
 
IT
IS ADJUDGED, ORDERED AND DECREED that:
 
1.             
On the claim of DECLARATORY JUDGMENT, the Court finds in
favor of Defendant ISABELLE (SALOMON) LESAY and Defendant KHALAF. S. KHALAF and
against Plaintiff MICHEL SALOMON and that pursuant Texas Unifonn
Declaratory Judgments Act, Chapter 37 of the Texas Civil Practice and Remedies
Code, it is declared that:
 
A.            
Plaintiff MICHEL SALOMON’s real property residence described
as follows is NOT the homestead of MICHEL SALOMON and is NOT exempt from forced
sale under the Constitution and Law of the State of Texas:       

Lot Forty (40), in Block Twenty (20), of Champion Forest, Section Three (3), a
subdivision in Volume 266, Page 139 of the Map Records of Harris County, Texas;
also known as       

16150 Hexham, Spring, Harris County, Texas 77379 (the
“real property”).
 
B.            
Plaintiff MICHEL SALOMON as joint tenant with MALENA SALOMON
owns a current undivided, non-homestead interest in the real property
residence.
 
C.            
The Notice of Child Support Lien filed by Defendant,
ISABELLE (SALOMON) LESAY, on May 23, 2005 in the Harris County Real Property
Records, File Number Y484196, is valid against the above described real
property owned by Plaintiff MICHEL SALOMON and that Defendant, ISABELLE
(SALOMON) LESAY, as Judgment Creditor, shall not release any and all liens
existing by reason of the child support lien and judgment and the filing of the
Notice of Child Support Lien against and only against the above-described real
property residence.
 
D.            
The Abstract of Judgment filed by Defendant, ISABELLE
(SALOMON) LESAY, in the Harris County Real Property Records on November 14,
2005 under Clerk’s File #Y896917 and on February 9, 2006 under Clerk’s File
#Z081187, are valid against the above described real property interest owned by
Plaintiff MICHEL SALOMON and that Defendant, ISABELLE (SALOMON) LESAY, as
Judgment Creditor, shall not release any/all liens existing by reason of the
Judgment and the filing of the abstracts of Judgment against and only against
the above described real property residence; and
 
E.             
The Deed Under Execution issued to Defendant, KHALAF S.
KHALAF, (aka KHALAF SAMAN KHALAF) FILED UNDER Harris County Clerk File # 20070490995
is not void and is valid against the above described real property interest
owned by Plaintiff MICHEL SALOMON and that Defendant, KHALAF S. [KH]ALAF (aka
KHALAF SAMAN KHALAF), and Defendant, ISABELLE (SALOMON) LESAY shall not release
any/all liens or claims against the real property existing by reason of the
Deed Under Execution and the Judgment under the Abstracts of Judgment filed by
Defendant, ISABELLE (SALOMON) LESAY against and only against the above-described
real property.
 
F.             
Defendant KHALAF S. KHALAF (aka KHALAF SAMAN KHALAF) is [e]ntitled to the current undivided, non-homestead interest
owned by Plaintiff MICHEL SALOMON as a joint tenant with MALENA SALOMON
acquired by sale at Harris County auction on the court house steps on March 6,
2007 as set forth in the Deed Under Execution issued to Defendant KHALAF S.
KHALAF (aka KHALAF SAMAN KHALAF) filed under Harris County Clerk File #
20070490995.
 
2.             
Defendant ISABELLE (SALOMON) LESAY shall have and recover
judgment in the amount of $2,000.00 from and against Plaintiff MICHEL SALOMON,
being the sanctions awarded against MICHEL SALOMON by the court’s order of
January 29, 2009.
 
3.             
Costs are to be paid by the party that incurred the costs.
 
In summary, with respect to Malena
Salomon’s pleadings, the trial court’s judgment declared:
(i)      the house is the homestead of Malena Salomon, 
(ii)     Lesay’s child support lien and
corresponding judgment are invalid, and Lesay shall release all liens against
the house by reason of the lien and judgment, and 
(iii)    Khalaf’s deed is void and invalid, and
Khalaf and Lesay shall release all liens and claims by reason of the deed.
With respect to Michel Salomon’s
pleadings, which were struck for failure to comply with multiple discovery
rulings, the trial court declared:
(i)      the house is not the homestead of Michel Salomon,
(ii)     Michel Salomon, as joint tenant with Malena
Salomon, owns an undivided, non-homestead interest in the house,
(iii)    Lesay’s child support lien and corresponding
judgment are valid, and Lesay shall not release any liens by reason of the lien
and judgment,
(iv)    Khalaf’s deed is not void and is
valid, and Khalaf and Lesay shall not release all liens and claims by reason of
the deed, and
(v)     Khalaf is entitled to the undivided,
non-homestead interest owned by Michel Salomon as joint tenant with Malena
Salomon.
The Salomons have appealed from this
final judgment.  Neither Lesay nor Khalaf
have challenged the judgment on appeal.
Analysis
I.              
Sufficiency
of the evidence on fraudulent lien claim
In their first issue,
the Salomons argue that the evidence at trial conclusively proved that Lesay’s
child support lien was fraudulent, and therefore the jury’s finding to the
contrary was not supported by legally or factually sufficient evidence.  Lesay argues that the evidence showed that
she had a good faith belief that the Salomons’ property was non-homestead, and
that the Salomons failed to prove otherwise. 
Khalaf similarly argues that the evidence supported a conclusion that
Lesay reasonably believed that the Salomons’ primary residence was in France
rather than Texas, and therefore she reasonably believed that the property was
not covered by the homestead exemption.
In a legal sufficiency, or “no-evidence” review,
we determine whether the evidence 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).  In making this determination, we credit
favorable evidence if a reasonable jury could, and we disregard contrary
evidence unless a reasonable jury could not. 
Id.  We consider the
evidence in the light most favorable to the finding under review and indulge
every reasonable inference that would support it.  Id. at 822.  So long as the evidence falls within the zone
of reasonable disagreement, we may not substitute our judgment for that of the
jury.  Id.  The jury is the sole judge of the credibility
of the witnesses and the weight accorded to their testimony.  Id. at 819.  Although we consider the evidence in the
light most favorable to the challenged findings, indulging every reasonable
inference that supports them, we may not disregard evidence that allows only
one inference.  Id.
at 822.
In a factual-sufficiency review, the court must examine both
the evidence supporting and contrary to the judgment.  See Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242
(Tex. 2001); Plas–Tex, Inc. v. U.S. Steel
Corp., 772 S.W.2d 442, 445
(Tex. 1989).  “When a party
attacks the factual sufficiency of an adverse finding on an issue on which she
has the burden of proof, she must demonstrate on appeal that the adverse
finding is against the great weight and preponderance of the evidence.”  Dow
Chem. Co., 46 S.W.3d at 242.  The trier of fact is
the sole judge of the credibility of the witnesses and the weight to be given
their testimony.  Klekar v. S. Pac. Transp. Co.,
874 S.W.2d 818, 827 (Tex. App.—Houston [1st Dist.] 1994, writ denied).  A jury may believe or disbelieve the
testimony of a witness, in whole or in part, and it may resolve any
inconsistencies in a witness’s testimony. 
Eberle v. Adams, 73 S.W.3d 322, 327 (Tex. App.—Houston [1st
Dist.] 2001, pet. denied).  The
reviewing court must
assume that the fact-finder resolved all evidentiary conflicts in accordance
with its decision if a reasonable person could have done so.  See id. An appellate court may not substitute
its own opinion contrary to the fact-finder’s implicit credibility
determinations.  Id.
Because Michel’s
pleadings were struck by the trial court, he had no claims presented to the
jury.  Malena’s cause of action, alleging
that Lesay filed a fraudulent lien against her property, is rooted in
Section 12.002 of the Civil Practice and Remedies Code:
(a)      A person may not make, present, or use a
document or other record with:
(1)     knowledge that the document or other record is a fraudulent
court record or a fraudulent lien or claim against real or personal property or
an interest in real or personal property;
(2)     intent that the
document or other record be given the same legal effect as a court record or
document of a court created by or established under the constitution or laws of
this state or the United States or another entity listed in Section 37.01,
Penal Code, evidencing a valid lien or claim against real or personal property
or an interest in real or personal property; and
(3)     intent to cause another person to suffer:
(A)     physical injury;
(B)     financial injury; or
(C)     mental anguish or
emotional distress.
Tex. Civ. Prac. & Rem. Code. Ann. § 12.002(a) (West Supp.
2011). 
Malena, as the party asserting a cause of action under
Section 12.002, had the burden to prove the elements in the statute.  Aland v. Martin, 271 S.W.3d 424, 430 (Tex. App.—Dallas 2008, no
pet.).  One of the essential
elements of a Section 12.002 claim is that the defendant used a document
or record despite knowing that it reflected a fraudulent lien or claim against
real property.  See Gordon v. W. Houston Trees, Ltd., 352 S.W.3d 32, 46 (Tex. App.—Houston
[1st Dist.] 2011, no pet.).  Moreover,
the Family Code, which provides the legal basis for imposing a child support
lien, states that the lien may be filed in a county where “the obligor is
believed to own nonexempt real or personal property.”  Tex.
Fam. Code Ann. § 157.314(a)(1) (West
2008).  Thus, Malena had the burden to
prove at trial that Lesay knew that the child support lien notice fraudulently misrepresented
the homestead status of the Spring property, and yet
she filed it anyway.  The fact that Lesay
might have filed a lien notice reflecting an incorrect statement about the
homestead status, without contemporaneous knowledge of its falsity or reckless
disregard for its truth, would not satisfy this essential element of
proof.  See Gordon, 352 S.W.3d at 46; Aland, 271 S.W.3d at 430.
          The
Salomons do not argue that that the evidence at trial conclusively showed that
Lesay knew that the child support lien notice reflected an incorrect statement
about the homestead status of their property. 
Rather, they argue that (1) Lesay admitted at trial that she determined
for herself the homestead status of the property, even though the homestead
status had never been officially adjudicated, and (2) the evidence
conclusively showed that the Salomons’ property was in fact their homestead, as
the jury found with respect to Malena Salomon. 
Neither of these propositions, even if taken as true, substitutes for
the requisite element of knowledge that the lien or claim is fraudulent.  See Tex. Civ. Prac. & Rem. Code. Ann. § 12.002(a)(1); Gordon, 352
S.W.3d at 46.
          Furthermore,
the evidence at trial showed that the Salomons had not formally designated the Spring property as their homestead prior to Lesay filing the
child support lien notice.  Lesay
testified based upon her personal investigation that when the lien notice was
filed, the Spring property was not designated as
homestead in the county records.  The Salomons’
own evidence similarly showed that they did not designate the Spring property as their homestead with the Harris County Clerk
until after Lesay had filed the lien notice. 
Although the Salomons can benefit from the constitutional homestead
exemption without any particular writing, see,
e.g., Dodd v. Harper, 670 S.W.2d
646, 649 (Tex. App.—Houston [1st Dist.] 1983, no writ), filing an official
designation of a homestead with the county clerk provides prima facie evidence
of intent to claim property as a homestead and puts the world on notice to that
effect.  See Sanchez v. Telles, 960 S.W.2d 762, 771 (Tex. App.—El Paso 1997,
writ denied); see also Tex. Prop. Code Ann. § 41.005(c) (West 2000) (providing process
for voluntarily designating property as a homestead with the county clerk).  Thus, the jury could reasonably conclude from
the evidence that Lesay, having found no homestead designation in the property
records, believed that the Salomons’ Spring property was not their homestead
and that her lien notice accurately reflected her belief in that regard.  Therefore, the jury’s finding on the
fraudulent lien question does not fall outside the zone of reasonable
disagreement, nor does it contradict the great weight and preponderance of the
evidence.  See Benavente, 312 S.W.3d 748;
City of Keller, 168
S.W.3d at 827.
          We
overrule the Salomons’ first issue.
II.           
Jury
instruction on fraudulent lien claim
The Salomons argue
that the trial court abused its discretion by refusing to submit Malena’s
proposed instruction to the jury on her fraudulent lien claim.  Malena proposed the following question and
instruction:
Did
ISABELLE LESAY make, present or use a document or other record with knowledge
that the document or other record was a fraudulent lien or claim against real
property or an interest in real property with the intent that the document be
given the legal effect of evidencing a valid lien or claim against real
property or an interest in real property with the intent to cause MALENA
SALOMON to suffer financial injury?
 
A lien is fraudulent if the
person who files it has actual knowledge that the lien was not valid at the
time it was filed.
Malena’s proposed instruction thus asked
whether Lesay made, presented, or used “a fraudulent lien or claim against real
property.”  At the charge conference, the
Salomons objected to Lesay’s proposed question because it only asked whether
Lesay had filed a fraudulent lien, rather than asking whether she had filed a
fraudulent lien “or claim.”  They
asserted that the child support lien notice, though it was for a valid debt,
reflected a fraudulent “claim” that the Spring property
identified by the lien was “non exempt” real property.  See Tex. Fam. Code. Ann.
§ 157.313(a)(9). 
The trial court, telling the Salomons’ counsel that they lacked “a
scintilla of evidence to get that question to the jury,” refused the Salomons’
proposed charge.  The actual question and
instruction was submitted to the jury as follows:
Did ISABELLE LESAY file the Notice
of Child Support Lien fraudulently?
You are
instructed that a person files a fraudulent lien if the document is filed with
knowledge that the document is fraudulent, with the intent that the record be
given the same legal effect as a valid lien, and with the intent to cause
another person to suffer (a) physical injury, (b) financial injury, or
(c) mental anguish or emotional distress. 
A lien is fraudulent if the person who files it has actual knowledge
that the lien was not valid at the time it was filed.  Filing notice of a valid debt is not fraudulent.
Answer “Yes” or “No.”
On appeal, the Salomons challenge the
jury instruction on two grounds.  They first
argue that the last statement in the jury instruction, “Filing notice of a valid
debt is not fraudulent,” was erroneous because Lesay could have a valid child
support debt yet still file a lien that fraudulently identifies that certain
property as nonexempt.  However, this
issue was not preserved for appellate review because no objection on that basis
was made in the trial court.  See Tex.
R. Civ. P. 274; Carousel’s Creamery, L.L.C v. Marble Slab Creamery,
Inc., 134 S.W.3d 385, 404–05 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d).  Their other
argument is that the jury instruction incorrectly referred only to “a
fraudulent lien” without reference to a fraudulent “claim,” when Malena’s cause
of action implicated “a fraudulent claim” insofar as Lesay’s child support lien
notice reflected a “claim” that the Salomons’ Spring property
was nonexempt.  In response, Lesay argues
that the question submitted to the jury closely tracked the language of
Section 12.002 of the Civil Practice and Remedies Code.
In a jury trial, the
trial court “shall submit such instructions
and definitions as shall be proper to enable the jury to render a
verdict.”  Tex. R. Civ. P. 277.  A valid instruction
(1) assists the jury, (2) accurately states the law, and
(3) finds support in the pleadings and evidence.  Union Pac. R.R. Co. v.
Williams, 85 S.W.3d 162, 166 (Tex. 2002).  The trial court has considerable discretion
in deciding whether a proposed instruction
is necessary and proper to submit to the jury. 
State Farm Lloyds v. Nicolau, 951
S.W.2d 444, 451–52 (Tex. 1997).  We will
not disturb the trial court’s decision on which instructions
to submit to the jury absent an abuse
of discretion.  McCarthy v. Wani Venture, A.S.,
251 S.W.3d 573, 584 (Tex. App—Houston [1st Dist.] 2007, pet. denied).
If the trial court
submits an incorrect jury instruction, we
reverse only if the record shows that the given instruction
was reasonably calculated to cause, and probably did cause, the rendition of an
improper judgment.  Bed,
Bath & Beyond, Inc. v. Urista, 211 S.W.3d
753, 757 (Tex. 2006); Tex. R. App. P. 44.1(a); see also Tex. R. App. P. 61.1(a).  “Charge
error is generally considered harmful if it relates to a contested, critical
issue.”  Columbia
Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009).  When determining whether an erroneous
instruction or definition probably caused an improper judgment, we examine the
entire record.  Transcon.
Ins. Co. v. Crump, 330 S.W.3d
211, 225 (Tex. 2010).  To reverse the judgment on the ground
that an improper jury instruction was given, we would have to find, after
examining the entire record, that the jury instruction
probably did result in an improper judgment. 
See Crump,
330 S.W.3d at 225;
Bed, Bath & Beyond, 211 S.W.3d at 757; Tex. R.
App. P. 44.1(a).
Assuming that the
trial court erred by failing to instruct the jury that Lesay could be liable
for a fraudulent “claim,” on this record, we cannot conclude that Malena would
probably have prevailed had her proposed jury instruction been used.  As we explained with respect to the Salomons’
first issue, the evidence at trial showed that Lesay had filed her lien notice
before the Salomons formally designated the Spring
property as their homestead.  The jury
could have reasonably concluded that Lesay, relying upon the absence of any
homestead designation in the county records and the Salomons’ prolonged
absences from the Spring property, had a good faith basis for asserting that
the Spring property was nonexempt.  See Sanchez,
960 S.W.2d at 771. 
Thus, the Salomons cannot show that the jury charge probably resulted in
the rendition of an improper judgment. 
Accordingly, we hold that there was no reversible error with respect to
the omission of language in the jury instruction regarding a fraudulent “claim”
by Lesay.  Tex. R. App. P. 44.1(a).
We overrule the Salomons’
second issue.
III.        
Division
of homestead
The trial court’s
final judgment confirmed that the Spring property is
Malena’s homestead and that Lesay’s and Khalaf’s claimed interests in that
property are invalid.  The judgment also
purported to negate the Spring property’s homestead
status solely with respect to Michel’s interest in the property, thereby
validating Lesay’s and Khalaf’s claims as against Michel.  As a consequence of these rulings, the trial
court ultimately decreed that Khalaf owns the Spring
property as a joint tenant with Malena.
In their third issue,
the Salomons argue under both the Texas Constitution and the Rules of Civil
Procedure that the trial court abused its discretion by granting any relief in
favor of Lesay and Khalaf.  The Salomons
contend that the judgment impermissibly gave effect to a constitutionally void
lien on homestead property.  See Tex.
Const. art. XVI, § 50.  They also
object that the specific relief contained in the final judgment was not
permitted because it was not supported by the pleadings of any party.  See Tex. R. Civ. P. 301.  The Salomons made these same objections in
the trial court, first in their written objections to Lesay’s and Khalaf’s
proposed judgments, and later in their motions for new trial and to modify or
clarify the judgment.
Lesay relies upon the Civil
Practice and Remedies Code to defend the outcome.  She argues that Khalaf is deemed an innocent
purchaser without notice and that an owner can recover property seized pursuant
to a judicial writ only if the property has not already been sold.  See
Tex. Civ. Prac.
& Rem. Code Ann. §§ 34.021, .022, .046 (West 2008).  Thus because the property was sold, Lesay contends
that the Salomons have no means of recovering the Spring
property.  Khalaf argues that he
prevailed in his suit to quiet title and that the judgment appropriately
awarded him Michel’s one-half interest in the property since Michel had no
pleadings before the court. 
A.  
Conformity
of judgment to the pleadings
Before addressing the
constitutional aspects of the Salomons’ appellate challenge, we first consider
the suggestion that the judgment was defective under the Rules of Civil
Procedure.  See VanDevender v. Woods, 222 S.W.3d 430,
432 (Tex. 2007) (“when a case may be decided on a non-constitutional ground, we
should rest our decision on that ground and not wade into ancillary
constitutional questions”).  The Salomons
argue that because neither Lesay nor Khalaf specifically requested in their
pleadings that Khalaf be declared a joint tenant with Malena Salomon, the inclusion
of such relief in the final judgment was not supported by the pleadings.
Rule 301 of the Texas
Rules of Civil Procedure provides:
The judgment of
the court shall conform to the pleadings, the nature of the case proved and the
verdict, if any, and shall be so framed as to give the party all the relief to
which he may be entitled either in law or equity.  Provided, that upon motion and reasonable
notice the court may render judgment non obstante veredicto
if a directed verdict would have been proper, and provided further that the
court may, upon like motion and notice, disregard any jury finding on a
question that has no support in the evidence.  Only one final judgment shall be rendered in
any cause except where it is otherwise specially provided by law.  Judgment may, in a proper case, be given for
or against one or more of several plaintiffs, and for or against one or more of
several defendants or intervenors.
A judgment therefore must be supported
by the pleadings, and a party may not be granted relief in the absence of
pleadings to support such relief.  Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983); Tex. R. Civ. P. 301.  When,
as in this case, a special verdict is rendered by the jury, the trial court
shall render a judgment that conforms to the special verdict, unless the
special verdict is set aside, a new trial is granted, or judgment is rendered
notwithstanding the verdict.  See Tex.
R. Civ. P. 300.  The judgment must
also be framed so as to give all the relief to which the prevailing parties are
entitled in law or equity.  See Tex.
R. Civ. P. 301.  “A prayer for
general relief will support any relief raised by the evidence and consistent
with the allegations in the petition.”  Khalaf v. Williams, 814
S.W.2d 854, 858 (Tex. App.—Houston [1st Dist.] 1991, no writ).
Lesay’s counterclaim
sought a declaration of the parties’ rights with respect to the homestead
status of the Spring property and the validity of her
child support lien.  Khalaf’s counterclaim
to quiet title was an action in equity, and as such it sought an equitable
remedy.  See, e.g., Teledyne Isotopes, Inc. v. Bravenec, 640
S.W.2d 387, 390 (Tex. App.—Houston [1st Dist.] 1982, writ ref’d
n.r.e.). 
Both Lesay and Khalaf pleaded generally for “such other and further
relief” as to which they may have been entitled.  Although no party’s pleadings requested the
particular relief reflected in the final judgment—a declaration that Malena
owns a one-half homestead interest in the Spring
property, that Khalaf acquired Michel’s one-half non-homestead interest, and that
Khalaf and Malena are tenants in common—the judgment does not thereby fail to
“conform” to the pleadings as required by Rule 301.  The trial judge is not constrained to enter
judgment only in a form specified by one of the parties, because in addition to
conforming to the pleadings, the judgment must also reflect a correct
application of the law to determine the effect of the jury’s verdict.  Cf.
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (“A trial court has no
‘discretion’ in determining what the law is or applying the law to the
facts.”).  Accordingly, the trial court
is responsible for independently evaluating “the nature of the case proved and
the verdict, if any,” correctly applying the law, and entering a final judgment
that “conform[s] to the pleadings.”  Tex. R. Civ. P. 301.
In light of these
principles, to the extent there is any legal defect in the trial court’s final
judgment, it is not a failure by the trial court under Rule 301 to faithfully
memorialize its determination of the legal effect of the jury’s verdict, in
light of the pleadings on file and the evidence adduced at trial.  Viewing the pleadings “as a whole,” Khalaf, 814 S.W.2d at 858, we conclude
that the relief ordered by the trial court corresponds to the allegations in
the parties’ pleadings (a dispute about homestead rights and property
ownership), the evidence adduced at trial, and the jury’s special verdict.
B.  
Constitutional
homestead exemption
We now address the
Salomons’ argument that the relief granted by the trial court was
unconstitutional.  The Texas Constitution
provides that homestead property is exempt from forced sale to pay debts,
except for certain specified categories of debts.  See Tex. Const. art. XVI,
§ 50.  The constitutionally
allowed exceptions to the homestead exemption include debts for:
(1) purchase money of the property; (2) taxes due on the property;
(3) owelty of partition by court order or written
agreement; (4) refinance of a lien against the property; (5) certain work
and material to improve, renovate, or repair the property; (6) certain
extensions of credit; (7) reverse mortgages; and (8) conversion and
refinance of a personal property lien secured by a manufactured home to a lien
on real property.  See Tex. Const. art. XVI,
§ 50(a).  “No mortgage, trust
deed, or other lien on the homestead shall ever be valid unless it secures a
debt described” in the constitution as allowable against the homestead.  See Tex. Const. art. XVI,
§ 50(c).  The words not “ever
be valid” in article XVI, section 50(c) mean “void.”  Inge v. Cain, 65 Tex. 75, 79 (1885).
          The
purpose of the homestead exemption is to provide a secure home for the family
against creditors.  See Jones v. Goff, 63 Tex. 248, 254 (1885); Ball, Hutchings & Co. v. Lowell, 56 Tex. 579, 583 (1882); see also Franklin v. Coffee, 18 Tex.
413, 415–16 (1857).  This protection from
creditors advances the stability and the welfare of the State.  See
Andrews v. Sec. Nat’l Bank of Wichita Falls, 50 S.W.2d
253, 256 (Tex. 1932).  The
constitutional homestead exemption is liberally construed to further its purposes.  Inwood N. Homewoners’ Ass’n, Inc. v. Harris, 736 S.W.2d 632, 635 (Tex. 1987);
Andrews, 50 S.W.2d at 256.
          “It
is well settled in Texas that in order to establish homestead rights, there
must be proof of concurrence of usage and intent on the part of the owner to
claim the land as a homestead.”  Dodd, 670 S.W.2d at
649.  “No specific writing is
needed to claim a homestead.  By the mere
act of using and enjoying a property as a home, a person qualifies for the
protections mandated by the Texas Constitution.”  Id.;
accord Denmon v. Atlas Leasing, L.L.C., 285 S.W.3d 591, 595 (Tex. App.—Dallas
2009, no pet.).  Once a property has been
dedicated as a homestead, it can lose such designation only by abandonment,
alienation, or death.  Denmon, 285 S.W.3d at 595; Intertex, Inc. v. Kneisley, 832 S.W.2d 136, 138 (Tex. App.—Houston [14th
Dist.] 1992, writ denied).
          The
forced sale of a homestead property for a debt not specifically allowed by the
constitution is void, and it confers upon the purchaser no rights in the
property.  See Heggen v. Pemelton,
836 S.W.2d 145, 148 (Tex. 1992); Cline v.
Niblo, 8 S.W.2d 633, 639 (Tex. 1928); Toler v. Fertitta,
67 S.W.2d 229, 230–31 (Tex. Comm’n App. 1934, judgm’t adopted); Hayes
v. Taylor, 43 S.W. 314, 314–15 (Tex. Civ. App.—Fort Worth 1897, no writ).  Even if real property has been sold pursuant
to a foreclosed lien, this fact does not preclude a person claiming homestead
status from litigating that question in a collateral proceeding, so long as the
existence of the homestead was not previously adjudicated.  Cline, 8 S.W.2d at 638; Tate
v. McGraw, 70 S.W.2d 467, 469 (Tex. Civ. App.—Dallas 1934, no writ).  “A judgment ordering a sale is vulnerable to
collateral impeachment on the theory that the property was a homestead not only
when this fact is revealed by the record but also when the record is silent on
the issue.”  Curtis Sharp Custom Homes, Inc. v. Glover,
701 S.W.2d 24, 27 (Tex. App.—Dallas 1985, writ ref’d n.r.e.).
          Historically,
the constitutional homestead exemption extended its protection only to the family,
although since a 1973 amendment, its protection also extends to a “single adult
person.”  See Tex. Const. art. XVI § 50(a); Moray Corp. v. Griggs, 713 S.W.2d 753,
754 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d);
see also Tex. Prop. Code Ann. § 41.002 (defining homestead for families and single adult
persons).  When a
married couple asserts homestead status, the homestead exemption may attach
either to community property or to the separate property of either spouse.  Crowder v. Union Nat’l Bank of Houston, 261 S.W. 375, 377 (Tex.
1924); Wheatley v. Griffin, 60 Tex.
209, 211 (1883); Lowell, 56 Tex. at
583; Denmon, 285 S.W.3d at 595.  However, a family is not entitled to two
homesteads at the same time.  See Silvers v. Welch, 91 S.W.2d 686, 687
(Tex. 1936) (citing Tex. Const. art. XVI, § 51); Achilles v.
Willis, 16 S.W. 746, 746 (Tex. 1891).  Also, because the constitutional homestead
exemption is given to the family, not to either spouse individually, the wife
cannot have one homestead and the husband another.  Crowder, 261 S.W. at 377; Marler v. Handy,
31 S.W. 636, 639 (Tex. 1895); Slavin v. Wheeler,
61 Tex. 654, 659 (1884).  It is
possible for one spouse to abandon the homestead and his corresponding rights
while the other spouse retains her homestead rights.  See, e.g., Fairfield Fin.
Group, Inc. v. Synnott, 300 S.W.3d 316, 321 (Tex.
App.—Austin 2009, no pet.).  The
party asserting abandonment must plead and prove it by competent evidence.  Sullivan v. Barnett, 471 S.W.2d 39, 43 (Tex. 1971).  Thus, so long as real property is a family
homestead by virtue of one spouse’s intention and use, that property is
protected by the homestead exemption, unless abandonment is pleaded and proved.  See Denmon, 285 S.W.3d at 596 (concluding that property
occupied as homestead by one spouse was family homestead even though other
spouse lived apart).
          The
trial court’s final judgment declared that Malena has a homestead interest in
the property, and that her husband, Michel, has a non-homestead interest in the
property.  However, if Malena has a
homestead interest in the property, as the jury found, then that property must
be a family homestead, because as a married person with a living spouse, she
cannot have the only other kind of homestead, that of a “single adult
person.”  See Tex. Const. art. XVI,
§ 50; Denmon,
285 S.W.3d at 596.  Being Malena’s
husband, Michel presumptively possesses a homestead interest in the property,
and they together enjoy the benefits of the family homestead exemption.  See Denmon, 285 S.W.3d at 596. 
Lesay and Khalaf did not plead abandonment of the homestead by Michel.  See Fairfield
Fin. Group, 300 S.W.3d at 321; Sullivan, 471 S.W.2d at 43.  In the absence of a pleaded and proven
abandonment by one spouse, the treatment of the same piece of property as a
homestead with respect to one spouse but as non-homestead property with respect
to the other spouse is legally impossible, because the homestead exemption
belongs to the family, not to the husband or wife individually.  See Crowder,
261 S.W. at 377; Marler,
31 S.W. at 639; Denmon,
285 S.W.3d at 596.
          Given
that the property is the homestead of the Salomon family, it is exempt from
liens and forced sales, except those specifically allowed by the
constitution.  See Tex. Const. art. XVI
§ 50; Heggen,
836 S.W.2d at 148.  Yet, by
declaring Lesay’s lien to be valid against Michel’s property interest—and by
further declaring that Khalaf had acquired Michel’s one-half undivided interest
in the property as tenant in common with Malena—the trial court’s final
judgment gave effect to an unconstitutional lien and forced sale of homestead
property.  Lesay’s lien on the Salomons’ residential
property for child support arrearages does not fall under any of the constitutional
categories of debt for which a lien may attach to homestead property.  See Tex. Const. art. XVI,
§ 50(a); Eggemeyer
v. Eggemeyer, 623 S.W.2d 462, 466 (Tex. App.—Waco
1981, no writ).  Therefore, the
lien is void.  See Heggen, 836 S.W.2d
at 148; Eggemeyer,
623 S.W.2d at 466.  Because the lien is
void, the constable’s sale foreclosing on the lien and transferring title to
Khalaf is also void and subject to challenge in a collateral proceeding, like
the one the Salomons initiated.  See Cline, 8 S.W.2d at
638; Curtis Sharp, 701 S.W.2d
at 27.
C.  
Statutory
limits for wrongful execution
          Lesay
argues that the Civil Practice & Remedies Code allows a person to recover
property seized through a writ of execution only when the property has not
already been sold.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 34.021,
.022.  Section 34.021 of the Code
provides:
A person is entitled to recover
his property that has been seized through execution of a writ issued by a court
if the judgment on which execution is issued is reversed or set aside and the
property has not been sold at execution.
Id.
§ 34.021. 
Lesay argues that because the Salomons’ property has been sold to
Khalaf, the Code prevents the Salomons from reversing the sale after the
fact.  Lesay contends that the Salomons
could recover, at most, money damages for their lost equity under Section 34.022,
but the Salomons proved no monetary damages at trial and therefore cannot
obtain this recovery either.  See id. § 34.022.
We assume, without
deciding, that Lesay’s interpretation and application of the relevant statutes is
correct.  Even so, Lesay’s proposed
application of the Civil Practice and Remedies Code would contravene the
recognized constitutional right of homestead claimants to resort to collateral
proceedings to void unconstitutional liens and forced sales of their homestead
property.  See Cline, 8 S.W.2d at 638; Curtis
Sharp, 701 S.W.2d at 27.  We must presume
the constitutionality of an act of the Legislature.  Texas Pub. Bldg. Auth. v. Mattox, 686 S.W.2d
924, 927 (Tex. 1985). 
Nonetheless, when the proposed application of a state statute would abridge
rights enshrined the Texas Constitution, the statute must yield.  See
Weiner v. Wasson, 900 S.W.2d 316, 318–19 (Tex.
1995).  Because the Texas Constitution
must take precedence over state statutes, we refuse Lesay’s proposed
application of the Civil Practice and Remedies Code.  See
Tate, 70 S.W.2d at 468 (construing statute allowing good title to vest in
purchaser of foreclosed property to not apply to sales consummated in violation
of homestead exemption).
          In
light of the foregoing analysis, we conclude that the trial court erroneously
declared and ordered in the final judgment that (1) the property is not
the homestead of Michel Salomon and is not exempt from forced sale, (2) Michel
Salomon owns a non-homestead interest in the property, (3) Lesay’s child
support lien is valid against Michel Salomon’s property interest, and Lesay shall
not release the lien, (4) Khalaf’s deed is not void and is valid, and
Khalaf shall not release liens and claims by reason of the deed, and (5) Khalaf
is entitled to Michel Salomon’s interest in the property as a joint tenant with
Malena Salomon.  These declarations and
orders reflect a misapplication of the law to the jury’s determination that the
property is the homestead of Malena Salomon, and therefore the trial court erred
by granting relief to Lesay and Khalaf that is forbidden by the Texas
Constitution.  See Walker, 827 S.W.2d at 840; Tex.
R. Civ. P. 301.
          We
sustain the Salomons’ third issue.
IV.         
“Death
penalty” sanctions
In their fourth and
final issue, the Salomons argue that the trial court abused its discretion when
it struck Michel’s pleadings for failure to appear at court-ordered depositions.  Specifically, the Salomons argue that the
sanction was unjust because there was no nexus between Michel’s conduct and the
sanction, less stringent sanctions were available to rectify the allegedly disobedient
conduct, and Michel offered to participate in and pay for a deposition by
telephone.  Lesay argues that given
Michel’s repeated refusals to appear for court-ordered depositions, the trial
court did not abuse its discretion in striking his pleadings, and that the
complications of conducting a telephonic deposition made that option impracticable.  Khalaf makes similar arguments, asserting
that Michel had ample opportunity to appear for deposition but failed to do so.
The legitimate
purposes of discovery sanctions are: (1) to secure compliance with
discovery rules; (2) to deter other litigants from similar misconduct; and
(3) to punish violators.  Chrysler Corp. v. Blackmon,
841 S.W.2d 844, 849 (Tex. 1992). 
The sanction imposed by the court must be “just.”  TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913, 917 (Tex. 1991); Tex. R. Civ. P. 215.2(b).  “Two factors mark the bounds of the trial
court’s discretion in order for sanctions to be just: first, a direct
relationship between the offensive conduct and the sanction imposed must exist;
and second, the sanction imposed must not be excessive.”  Chrysler,
841 S.W.2d at 849.
Rule 215.2 of the
Texas Rules of Civil Procedure allows a trial court to sanction a party for
failure to comply with a discovery order or request.  See Tex. R. Civ. P. 215.2; Cire v. Cummings,
134 S.W.3d 835, 839 (Tex. 2004).  Among the sanctions available under Rule
215.2 are orders “striking out pleadings or parts thereof,” “dismissing with or
without prejudice the actions or proceedings or any part thereof,” and “rendering
a judgment by default against the disobedient party.”  Tex.
R. Civ. P. 215.2(b)(5).  These sanctions are often referred to as
“death penalty” sanctions.  See generally Cire, 134 S.W.3d at 840–41.  “When a trial court strikes a party’s
pleadings and dismisses its action or renders a default judgment against it for
abuse of the discovery process, the court adjudicates the party’s claims
without regard to their merits but based instead upon the parties’ conduct of
discovery.”  TransAmerican, 811
S.W.2d at 918.
Before imposing death
penalty sanctions, the trial court ordinarily must consider and test lesser
sanctions that would promote compliance with the rules.  Cire, 134 S.W.3d at 842.  That said, the trial
court may impose death penalty sanctions as a first resort when the offending
party demonstrates “egregious conduct and blatant disregard for the discovery
process.”  Id.  Moreover, for death
penalty sanctions to be just, the trial court “must determine that ‘a party’s
hindrance of the discovery process justifies a presumption that its claims or
defenses lack merit.’”  GTE Comm. Sys. Corp. v. Tanner, 856 S.W.2d 725, 730
(Tex. 1993) (quoting TransAmerican,
811 S.W.2d at 918).
Thirty-two months
passed between the date that the trial court first ordered Michel to appear for
deposition and the date that the trial court struck his pleadings.  Fourteen months before striking Michel’s
pleadings, the trial court imposed a $1,000 fine for his prior failures to comply
with court orders that he appear for deposition.  Michel’s counsel was warned in open court
that the pleadings were subject to being struck.  Thus, the court allowed for ample opportunity
to test whether the sanction of a $1,000 fine and warning would compel Michel to
appear for the ordered depositions.  Cf. In
re Malone, 336 S.W.3d 860, 865 (Tex. App.—Beaumont 2011, pet. denied)
(affirming death penalty sanctions when litigant refused to answer questions at
depositions despite court’s multiple orders and warnings that his pleadings
were subject to being struck); Hernandez
v. Mid-Loop, Inc., 170 S.W.3d 138, 144 (Tex. App.—San Antonio 2005, no
pet.) (same, when plaintiff was uncooperative and
belligerent in depositions).
Michel points out that
he offered on several occasions to appear by telephone and pay for the related
costs, but the trial court was not required to acquiesce to Michel’s proposal
that his deposition be taken by telephone. 
Although depositions by telephone are permitted, see Tex. R. Civ. P.
199.1(b) & 201.1(g), it is within the trial court’s discretion to disallow
them.  See Tex. R.
Civ. P. 192.4 (permitting trial court to
limit discovery methods that are unreasonably cumulative, inconvenient,
burdensome, or expensive).
Given Michel’s
repeated failures, without valid excuse, to appear for court-ordered depositions,
the trial court could have reasonably concluded that Michel’s pleadings lacked
merit when it struck them.  See GTE, 856 S.W.2d at
730; Malone, 336 S.W.3d at
865; Hernandez, 170 S.W.3d at 144.  Given also that the trial court allowed
Michel ample opportunity to appear for deposition after testing a lesser
sanction, the trial court had the discretion to impose death penalty
sanctions.  See Cire, 134 S.W.3d at
842.  On this record, we conclude
that there was a direct relationship between the death penalty sanctions and
Michel’s refusal to be deposed, and that the sanctions were not excessive.  See
Chrysler, 841 S.W.2d at 849.  The order striking Michel’s pleadings was
therefore just, and the trial court did not abuse its discretion.  Tex. R. Civ. P. 215.2(b).
We overrule the Salomons’
fourth issue.
Conclusion
          Because the trial court’s judgment was
internally inconsistent with respect to the Salomons’ family homestead, we
reverse those portions of the judgment pertaining to Michel’s pleadings that awarded
relief inconsistent with Malena’s continuing homestead interest.  The Salomons have also asked that we award
them statutory damages, costs of court, and attorney’s fees, but they have
provided no legal argument to support that request.  We therefore deny the Salomons’ requests for
additional relief, without prejudice to those arguments being presented to the
trial court on remand.  The case is
remanded for such further proceedings as may be necessary with respect to such
requests and the entry of a final judgment consistent with this opinion.
 
 
 
                                                                      Michael
Massengale
                                                                      Justice

 
Panel
consists of Justices Jennings, Bland, and Massengale.

