                                   NO. 07-03-0086-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                      APRIL 27, 2005

                          ______________________________


                    KATHY CHRISTIAN, INDIVIDUALLY AND D/B/A
                      ALL SEASONS INSURANCE, APPELLANT

                                             v.

                            BRANDON TAYLOR, APPELLEE


                        _________________________________

              FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                      NO. 02-108; HON. RON ENNS, PRESIDING

                          _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1

                                 Memorandum Opinion

       Appellant Kathy Christian (Christian), individually and d/b/a All Seasons Insurance,

brings this appeal from a judgment in favor of appellee Brandon Taylor (Taylor) in a suit in

which Taylor sought damages related to the loss of his black-eyed pea crop. For reasons

we later explain, we affirm the judgment of the trial court.



       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005).
                                       Background

       Taylor obtained an insurance policy covering his 2001 crops through Christian. One

of the crops that Taylor grew in 2001 was black-eyed peas. In the suit underlying this

appeal, Taylor contended that in his initial meeting with Christian concerning the crop

policy, he informed her that he was a first time grower of black-eyed peas. His first time

grower status was significant because the insurance coverage for a first time grower in the

event of loss is 100 percent of the average per acre yield of the crop in the county (“the

guaranteed amount”), rather than the standard 65 percent coverage otherwise applicable.

       When Taylor lost his black-eyed pea crop and submitted his claim to the insurance

company, he was only able to recover 65 percent of his loss because the insurance policy

obtained by Christian did not designate him as a first time grower. Christian admits that

she knew that Taylor had never grown black-eyed peas before but averred that she did not

know that Taylor had actually decided to grow black-eyed peas until after she had

submitted the crop insurance application to the company that ultimately issued the

insurance policy.

       Because he could not recover the full amount of his black-eyed pea loss under the

policy, Taylor filed suit against Christian alleging breach of contract, breach of the

agreement to obtain first time grower coverage, and breach of the duty of good faith and

fair dealing. Christian filed a general denial of these allegations and the case proceeded

to a bench trial.

       At trial, Taylor testified that Christian was aware that he was a first time grower of

black-eyed peas in 2001 and that his agreement with Christian was that she would obtain

first time grower coverage for him. Christian averred that Taylor could have recovered as

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a first time grower, but as we have noted, she said she was not aware that Taylor had

decided to plant the peas in time to obtain a first time grower’s policy. However, she also

testified that she was not aware that the policy was not one for a first time grower until two

days after Taylor submitted his claim. Although each party acknowledged the existence

of the crop insurance policy, a copy of it was never introduced into evidence and,

consequently, we have no copy of the policy in the record.

       After the conclusion of the bench trial, the trial court rendered judgment in favor of

Taylor for $26,500 in actual damages, $1,800 in attorney’s fees, court costs and post-

judgment interest at the rate of ten percent per year.

                                         Discussion

       In challenging the trial court’s judgment, Christian presents three issues for our

decision. In those issues, Christian contends: 1) she was not afforded the 45-day notice

of the first trial setting as required by Texas Rule of Civil Procedure 245; 2) the arbitration

clause contained in the insurance contract and the Code of Federal Regulations (CFR)

made arbitration a prerequisite to filing suit; and 3) the limitation of damages clause

contained in the contract and the CFR prohibits the trial court from awarding extra-

contractual damages such as attorney fees. Taylor responds that Christian waived each

of her three appellate issues by failing to timely assert them and additionally asks us to

assess the damages for a frivolous appeal as provided under Texas Rule of Appellate

Procedure 45.




                                              3
       We will initially consider Christian’s second and third issues. In doing so, we note

there are no written findings of fact and conclusions of law before us.2 In the absence of

written findings of fact and conclusions of law, we imply fact findings necessary to support

a trial court’s legal conclusions. See Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980).

When the implied findings of fact are supported by the evidence, it is the duty of the

appellate court to uphold the judgment on any theory of law applicable to the case. See

Lassiter v. Bass, 559 S.W.2d 353, 358 (Tex. 1977), overruled on other grounds by Cherne

Industries, Inc. v. Magallanes, 763 S.W.2d 768 (Tex. 1989). When a separate and

independent ground that supports a judgment is not challenged on appeal, the appellate

court must affirm the lower court’s judgment. See San Antonio Press, Inc. v. Custom Bilt

Machinery, 852 S.W.2d 64, 65 (Tex. App.–San Antonio 1993, no writ); Herndon v. First

Nat’l Bank of Tulia, 802 S.W.2d 396, 400 (Tex. App.–Amarillo 1991, writ denied).

       Christian does not challenge the implied finding that she and Taylor agreed that she

would obtain first time grower insurance for Taylor. Moreover, there is sufficient evidence

to justify a finding that Christian breached that agreement. Additionally, Taylor’s cause of

action for Christian’s breach of the agreement to obtain first time grower crop insurance

existed independently of the insurance contract and, therefore, cannot be defeated by

references to provisions of the crop insurance contract itself.

       Accordingly, because the breach of the agreement to obtain first time grower

insurance constitutes a separate and independent ground supporting the trial court’s

judgment, we must, and do, overrule Christian’s second and third issues.


       2
       Christian did request findings of fact and conclusions of law but the request was
untimely filed.

                                             4
       In her first issue, Christian argues that the trial court erred in rendering judgment

because it had not provided her with 45 days notice of the first trial setting as required by

Texas Rule of Civil Procedure 245. However, the record reveals that when the case was

called for trial, Christian announced that she was ready and made no objection to

proceeding to trial. Any error resulting from a trial court’s failure to provide proper notice

under Rule 245 is waived if the complaining party proceeds to trial without objecting to the

lack of such notice. In re J.(B.B.)M., 955 S.W.2d 405, 408 (Tex. App.–San Antonio 1997,

no pet.); State Farm Fire and Casualty Co. v. Price, 845 S.W.2d 427, 432 (Tex.

App.–Amarillo 1992, writ dism’d by agr.). Because Christian proceeded to trial without

objection, she has waived any error there might have been in the notice of the trial setting.

Christian’s first issue is overruled.

       Having overruled Christian’s issues, it now becomes necessary for us to consider

Taylor’s contention that the appeal is frivolous and that damages should be assessed

against Christian for that frivolous appeal. See Tex. R. App. P. 45. In considering that

request, it is established that the award of damages under Rule 45 is discretionary, must

be done with prudence, and only after careful consideration. See Casteel-Diebolt v. Diebolt,

912 S.W.2d 302, 306 (Tex. App.–Houston [14th Dist.] 1995, no writ); Dyson Descendant

Corp. v. Sonat Exploration Co., 861 S.W.2d 942, 952 (Tex. App.–Houston [1st Dist.] 1993,

no writ). In deciding whether such damages should be awarded, we must review the record

from appellant’s point of view at the time she filed her appeal and decide whether she had

any reasonable grounds upon which to believe the case would be reversed. Bledsoe v.

Kuczek, No. 02-02-255-CV, 2003 Tex. App. LEXIS 5458 at 10 (Tex. App.–Fort Worth June



                                              5
26, 2003, no pet.); Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.–Houston [1st Dist.]

2001, pet. denied).

      In the instant case, although we disagree that Christian showed any reversible error,

we cannot say that she pursued her appeal in bad faith or that she had no reasonable

expectation of reversal.   Accordingly, we deny Taylor’s request for assessment of

damages.

      In summary, all of Christian’s issues are overruled, Taylor’s request for assessment

of damages is denied, and the judgment of the trial court is affirmed.



                                                John T. Boyd
                                                Senior Justice




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