                               NUMBER 13-11-00687-CV

                                 COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI – EDINBURG


GINA Y. QUINTANILLA,                                                            Appellant,

                                              v.

CONSUELO YBARRA,                                                                Appellee.


                     On appeal from the County Court at Law
                         of San Patricio County, Texas.


                           MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Benavides and Longoria
              Memorandum Opinion by Justice Longoria

          In three issues, which we will renumber and address as seven, appellant, Gina

Quintanilla, challenges the legal and factual sufficiency of the trial court’s verdict in favor

of appellee, Consuelo Ybarra, and of six of the supporting findings of fact, and argues

that the judgment does not conform to the pleadings. For the reasons stated below, we

affirm.

                                         I. BACKGROUND

          In 2001, Ybarra’s husband died of illnesses related to his exposure to asbestos.

The Ybarra family received a $41,000 settlement; all family members, including
Quintanilla, agreed in writing that Ybarra would receive 100% of the settlement. Ybarra

testified that when she received the settlement money, she “gave it to my daughter,

[Quintanilla] in her hands, and told her to save it for me in the bank so that when I

needed it, she would give me some.”1 Ybarra later filed suit alleging that Quintanilla

misappropriated $22,124.32 of the settlement money.2 The parties waived argument

and submitted proposals for the court’s ruling. The court heard testimony, primarily

regarding the nature and extent of Quintanilla’s expenditures out of the settlement

monies, and rendered judgment for Ybarra in the amount of $22,124.32.3

        Quintanilla admitted during her testimony that she paid her own property taxes

out of the settlement money. Quintanilla claimed that she paid the taxes with Ybarra’s

money because the two had agreed that Ybarra would be responsible for the taxes, but

Quintanilla did not produce any evidence of the agreement.4 Quintanilla argued during

her testimony that she spent over $60,000 on behalf of Ybarra and that she is actually

owed money. At Quintanilla’s request, the court issued findings of fact and conclusions

of law. Quintanilla also filed a motion for judgment notwithstanding the verdict and
        1
         Ybarra testified that she chose to entrust the settlement to Ybarra in this way because it would
allow Ybarra to pay Quintanilla’s bills “through the computer.” Ybarra has a first-grade education, does
not speak English, and is illiterate.
        2
           Ybarra also alleged that Quintanilla fraudulently induced her to transfer a 7.5 acre parcel of land
and home located in Sinton, Texas (the “Sinton Property”), and another home located in Odem, Texas
(the “Odem House”). The trial court dismissed Ybarra’s claims regarding title to the land for lack of
jurisdiction.
        3
         This figure is from the trial court’s amended judgment.          The trial court originally rendered
judgment for $28,368.93.
        4
           At one point prior to trial, Quintanilla’s attorney wrote to Ybarra’s attorney stating that the
property taxes had been “historically paid” by Ybarra, “as part of a life estate.” The issue of title to the two
parcels is not before us, but the deeds conveying the parcels to Quintanilla are in the record. The deed
for the Odem House is largely illegible, but the title contains the phrase “With Reservation of Life Estate.”
In any event, Quintanilla did not argue at trial that Ybarra was responsible for the property taxes because
she was a life tenant, but argued that there was “an agreement between all of us.” Quintanilla specifically
denied that the agreement was in writing because “I didn’t think I needed anything in writing from my
parents.” Quintanilla also does not assert on appeal that Ybarra was responsible for the property taxes
because she was a life tenant.
                                                       2
alternative motions to reconsider the judgment and for new trial. The court entered an

amended final judgment but did not expressly rule on Quintanilla’s motion. Quintanilla’s

motion was subsequently overruled by operation of law. See TEX. R. CIV. P. 329b. This

appeal followed.

                                         II. DISCUSSION

        In seven issues, Quintanilla challenges the legal and factual sufficiency of the

trial court’s judgment, six of the supporting findings of fact, and argues that the trial

court’s judgment did not conform to the pleadings. In an appeal from a bench trial in a

civil case, an attack on the sufficiency of the evidence must generally be directed at

specific findings of fact, rather than the judgment as a whole. Arrellano v. State Farm

Fire & Cas. Co., 191 S.W.3d 852, 855 (Tex. App.—Houston [14th Dist.] 2006, no pet.)

(citing Zagorski v. Zagorski, 116 S.W.3d 309, 319 (Tex. App.—Houston [14th Dist.]

2003, pet. denied)); see TEX. R. CIV. P. 299. Accordingly, we will consider Quintanilla’s

first and second issues together as six issues, one for each of the challenged findings of

fact.

        A. Legal and Factual Sufficiency

               1. Standard of Review

        We review a trial court’s findings of fact for legal and factual sufficiency with the

same deference and under the same standards as jury verdicts. Ortiz v. Jones, 917

S.W.2d 770, 772 (Tex. 1996) (per curiam); Arrellano, 191 S.W.3d at 857.

“[U]nchallenged findings of fact are binding on an appellate court unless the contrary is

established as a matter of law or no evidence supports the finding.” Arrellano, 191

S.W.3d at 855.



                                              3
      We will sustain a legal sufficiency issue (also called a no-evidence issue), when:

             (1) the record discloses a complete absence of evidence of a vital
             fact; (2) the court is barred by rules of law or 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.

Marathon Corp v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003) (per curiam); see Brockie v.

Webb, 244 S.W.3d 905, 909 (Tex. App.—Dallas 2008, pet. denied); Arrellano, 191

S.W.3d at 856. More than a scintilla of evidence exists if the “evidence rises to a level

that would enable reasonable and fair-minded people to differ in their conclusions.”

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (citing Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)); see City of Keller v. Wilson,

168 S.W.3d 802, 812 (Tex. 2005). Evidence is less than a scintilla if “it is so weak as to

do no more than create a mere surmise or suspicion of its existence.” Ford Motor Co,

135 S.W.3d at 601. We must review “the evidence in a light that tends to support the

finding of the disputed fact and disregard all evidence and inferences to the contrary.”

Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001) (citing Weirich v. Weirich, 883

S.W.2d 942, 945 (Tex. 1992)); see City of Keller, 168 S.W.3d at 819–20.

      In contrast, when an appellant challenges the factual sufficiency of the trial

court’s findings, we consider and weigh all the evidence in the record. City of Pharr v.

Boarder to Boarder Trucking Serv., Inc., 76 S.W.3d 803, 807 (Tex. App.—Corpus

Christi 2002, pet. denied).    We set aside the verdict only if it “is so against the

overwhelming weight of the evidence as to be clearly wrong and unjust.” Arrellano, 191

S.W.3d at 856 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)); see City of Pharr,

76 S.W.3d at 807; Brockie, 244 S.W.3d at 909.

                                            4
               2. Analysis

       In her first issue, Quintanilla challenges the trial court’s second finding: “[t]hat

[Quintanilla] promised [Ybarra] that the approximate sum of $41,000.00 [Ybarra]

received from her [sic] husband’s Asbestos settlement would be kept by [Quintanilla]

and used solely for the benefit of [Ybarra].” Quintanilla argues that “there is absolutely

no evidence to support the existence of a ‘promise’ or anything similar.” However,

Ybarra testified regarding the settlement money, stating, “I gave it to my daughter, in her

hands, and told her to save it for me in the bank so that when I needed it, she would

give me some.” During her own testimony, Quintanilla admitted that 100% of the money

was to go to her mother, and never contradicted Ybarra’s allegation that she promised

to use the settlement money only to pay Ybarra’s own bills.5                    Instead, Quintanilla

maintained that her expenditures were, in fact, on Ybarra’s behalf. In a “summary”

requested by the trial court after the trial, Quintanilla stated that the testimony that

“[Quintanilla] was given $41,000 to manage on behalf of [Ybarra]” was “uncontroverted.”

Based on the foregoing, we conclude that the evidence is legally sufficient because

there is more than a scintilla of evidence that Quintanilla promised Ybarra that

Quintanilla would only pay Ybarra’s bills from the settlement money.                    Furthermore,

because the finding is not so contrary to the overwhelming weight of the evidence as to

be unjust, we conclude that the evidence is factually sufficient to support the trial court’s

finding. We overrule Quintanilla’s first issue.

       In her second issue, Quintanilla challenges the trial court’s tenth finding, that “all

other payments [Quintanilla] claims were made for the benefit of [Ybarra] were either


       5
            Much of the dispute between Quintanilla and Ybarra appears to be the result of Quintanilla’s
failure to keep the settlement money separate from her personal funds.
                                                   5
not made by [Ybarra] or were made to benefit [Quintanilla] only.”6 Quintanilla argues

that this finding “is not supported by either testimony or documents.” However, although

Quintanilla held title to both the Sinton Property and the Odem House at the time,

Quintanilla admitted that she paid the property taxes for both parcels out of the

settlement money. Property taxes are generally the responsibility of the record owner of

the property. See TEX. TAX CODE ANN. § 32.07(a) (West 2008); Peoples Gas, Light, and

Coke Co. v. Harrison Cent. Appraisal Dist., 273 S.W.3d 208, 212 (Tex. App.—

Texarkana 2008, pet. denied). Quintanilla testified that she and Ybarra agreed that

Ybarra would be responsible for the property taxes even though Quintanilla held legal

title to both properties. We conclude that the evidence is legally sufficient because there

is more than a scintilla of evidence to support the trial court’s finding that Quintanilla’s

other expenditures out of the settlement funds, such as paying the taxes due on

Quintanilla’s real property, were not made for Ybarra’s benefit. We conclude that the

evidence is also factually sufficient because it is supported by the majority of the

evidence that was before the trial court. Quintanilla’s second issue is overruled.

        In her third issue, Quintanilla challenges the trial court’s finding that

“[Quintanilla]’s promise was false.”7           Proof that a declarant made a statement with

knowledge of its falsity can be established by direct or circumstantial evidence.

Burleson State Bank v. Punkett, 27 S.W.3d 605, 613 (Tex. App.—Waco 2000, pet.

denied). There is uncontested evidence in the record that Quintanilla agreed that the
        6
           Ybarra admitted that certain expenditures, (like insurance, phone, water, electric and medical
bills) were for her benefit. The trial court found to that effect in its seventh, eighth and ninth findings,
which are unchallenged by either party.
        7
            The trial court designated this and the finding on damages, considered below, as conclusions
of law. It is a finding of fact, and we will treat it as such. See Clay v. Mercado, 224 S.W.3d 277, 283 n.1
(Tex. App.—El Paso 2005, no pet.) (“The trial court’s designation of a ‘finding of fact’ or a ‘conclusion of
law,’ however, is not controlling, and we may treat a conclusion of law as a finding of fact when
appropriate.”).
                                                     6
entire settlement belonged to Ybarra, but Quintanilla used the settlement money to pay

the property taxes on Quintanilla’s own property. Quintanilla also provided no further

proof of the agreement she testified existed between her and Ybarra. As we discussed

above, Quintanilla never denied in the trial court that she had promised to pay Ybarra’s

bills with the settlement money. Quintanilla instead attempted to prove that payments

Quintanilla made out of the settlement monies were Ybarra’s own bills.                Rose

Samaniego, one of Quintanilla’s sisters, further testified that during a “family meeting”

Quintanilla refused to give the remainder of the settlement money to Ybarra because

she was saving it for Ybarra’s future nursing home expenses. In short, there is more

than a scintilla of evidence in the record from which the fact-finder could infer that

Quintanilla’s promise was false at the time it was made. Because the finding is also not

so contrary to the great weight of the evidence, we hold that the evidence is factually

sufficient to support this finding. We overrule Quintanilla’s third issue.

       In her fourth issue, Quintanilla challenges the sufficiency of the evidence to

support the trial court’s twelfth finding of fact that: “[Quintanilla] never introduced bank

statements to prove $18,000 was withdrawn from [Quintanilla]’s bank account to give to

[Ybarra].” Quintanilla argues that “[t]his finding suggests, but does not state, that such

evidence did not exist. [Quintanilla]’s testimony is clear, however, that those monies

were withdrawn.” This finding refers to several sums of money that were withdrawn by

Quintanilla and delivered to Ybarra for various miscellaneous purposes such as upkeep

of properties.   Quintanilla and Ybarra dispute the amount and purpose of these

withdrawals. Quintanilla interprets this finding as impliedly stating that she did not

withdraw that money and deliver it to Ybarra. We interpret it merely as the trial court’s

finding that although Quintanilla stated on direct examination in reference to these
                                              7
monies that “[t]he withdrawals are in the bank statements I gave you,” Quintanilla did

not produce any bank statements showing withdrawals in those amounts from her

accounts.8      We have reviewed the record, and we found no bank statements

referencing these withdrawals. Quintanilla does not explain where they can be found in

the record. Furthermore, even if this finding is a comment on the existence of this

evidence, the trial court, as the finder of fact, could disbelieve any part of all of

Quintanilla’s testimony regarding the withdrawals. See City of Keller, 168 S.W.3d at

819. Accordingly, we conclude that the evidence is legally and factually sufficient to

support this finding. We overrule Quintanilla’s fourth issue.

        In her fifth issue, Quintanilla challenges the trial court’s finding that Ybarra

suffered $24,236.56 in damages. Quintanilla argues only that this finding is “at variance

with both the evidence produced at trial and the pleadings before the court.” Quintanilla

does not provide any citation to evidence in the record supporting this contention.

Ybarra put on evidence that Quintanilla paid at least $13,031.05 in property taxes out of

the settlement monies and spent at least $10,000 in other bills, which were not Ybarra’s

bills, out of the settlement monies. Although Quintanilla and Ybarra disagree on the

precise details of the non-tax expenditures, we conclude that this evidence is both

legally and factually sufficient to support the trial court’s finding of damages.

Quintanilla’s fifth issue is overruled.

        In her sixth issue, Quintanilla challenges the sufficiency of the evidence with

respect to the trial court’s fourteenth finding of fact, that “[t]he testimony of [Quintanilla],

and the testimony of her witnesses was not credible.”                   Quintanilla argues that this


        8
         The “you” in this statement refers to Quintanilla’s lawyer. Quintanilla appears to be referring to
the bank statements that she supplied her lawyer before trial.
                                                    8
finding “pretends to cloak an opinion in the garb of fact,” and that no reasonable trier of

fact would have regarded Quintanilla’s testimony and that of her other witnesses as

“less than truthful.” However, the finder of fact, in this case the trial court judge, is the

sole judge “of the credibility of the witnesses and the weight to give to their testimony.”

Id. The fact finder “may choose to believe one witness and disbelieve another.” Id. We

may only overturn the trial court’s findings if no reasonable person could find to the

contrary. Id. at 820. Quintanilla argues that no rational factfinder could regard her

testimony and that of her witnesses “as less than truthful,” but she does not provide any

argument in support of this contention. Because we must give almost total deference to

the trial court’s determination of the credibility of a witness that testified before it, and

since Quintanilla does not explain why the trial court could not rationally decide that the

testimony she offered was not credible, we conclude that Quintanilla has not

demonstrated that the evidence is legally or factually insufficient to support the

challenged finding. See id. We overrule Quintanilla’s sixth issue.9

        B. Judgment Conformed to the Pleading

        In her seventh issue, Quintanilla argues that Ybarra never actually alleged in her

pleadings to the trial court that “[Quintanilla] acted to defraud [Ybarra] with respect to

the Asbestos settlement.” Any judgment of the trial court “must be supported by the

pleadings, and a party may not be granted relief in the absence of pleadings to support

such relief.” Salomon v. Lesay, 369 S.W.3d 540, 553 (Tex. App.—Houston [1st Dist.]

2012, no pet.); see TEX. R. CIV. P. 301. However, issues not pleaded may be tried by

the express or implied consent of both parties. TEX. R. CIV. P. 67. Quintanilla reminds

        9
          Quintanilla also challenges the trial court’s eleventh finding of fact, which relates to whether
Quintanilla’s father ever transferred his interest in either the Odem House or the Sinton Property to
Quintanilla. We will not address this issue because, as we noted above, the trial court dismissed all of
Ybarra’s claims relating to title to the lands.
                                                    9
us that “issues are not tried merely by the hearing of testimony thereon,” and we instead

look to whether the issue was actually tried. Sage Street Assoc. v. Northdale Const.

Co, 863 S.W.2d 438, 446 (Tex. 1993); see also Ingram v. Deere, 288 S.W.3d 886, 893

(Tex. 2009). Other than citing to Sage Street, Quintanilla does not directly argue that

the theory of fraud was not tried by consent. Quintanilla only argues that “[v]irtually the

entire case presented by [Ybarra] at trial involved whether or not the funds were

distributed for [Quintanilla]’s versus [Ybarra]’s benefit” and because there is no proof

that “any of the questioned expenditures benefitted [Quintanilla] to the exclusion of

[Ybarra],” there is a variance between the pleadings and proof at trial that requires

reversal. We note that paragraph nine of Ybarra’s first amended petition stated that

“[Ybarra] would show that [Quintanilla] has misappropriated to [Quintanilla’s] benefit the

sum of $22,124.32,” and details Quintanilla’s specific expenditures with the settlement

money, but does not discuss the elements of fraud. In any event, Quintanilla did not

raise this issue with the trial court, and argues it for the first time on appeal. We will not

consider this issue because as a general rule we will not review the actions of a trial

court on an issue that was not presented to it at the time. Barnard v. Barnard, 133

S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. denied); Methodist Hospitals of

Dallas v. Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.) (“It is

axiomatic that an appellate court reviews actions of a trial court based on the materials

before the trial court at the time it acted.”); Brown Services, Inc. v. Fairbrother, 776

S.W.2d 772, 774 (Tex. App.—Corpus Christi 1989, writ denied).                  We overrule

Quintanilla’s seventh issue.




                                             10
                                       III. CONCLUSION

          We affirm the judgment of the trial court.




                                                 _______________________
                                                 NORA L. LONGORIA
                                                 Justice

Delivered and filed the
16th day of May, 2013.




                                            11
