                                   NO. 07-03-0210-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                    MARCH 25, 2005

                          ______________________________


                     JIMMIE W ILLIAMSON, ET AL., APPELLANTS

                                            V.

                   BETTY COOK AND DENNIS COOK, APPELLEES


                        _________________________________

                 FROM THE DISTRICT COURT OF JASPER CO UNTY;

                NO. 21,314; HONORABLE JOE BOB GOLDEN, JUDGE

                         _______________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      Appellants Jim mie W illiam son, his wife Mary W illiamson, and Gary Gatlin, trustee

(collectively W illiamson) challenge the trial court’s judgment setting aside two trustee’s

deeds on private foreclosures dated June 1, 1999 and August 3, 1999, and awarding
W illiamson the sum of $125,000 and appellees Betty Cook and Dennis Cook $75,000 from

$200,000 in fire insurance proceeds tendered to the clerk of the court. By points one, two,

three, and four, W illiamson contends the trial court erred in submitting questions one, two,

and three. By his remaining points, he contends 5) the evidence was factually insufficient

to support the jury findings to all the points, 6) the trial court erred in refusing his requested

questions 1 through 6; 7) there was no evidence to show that he did not demand any

excessive amounts from the Cooks, 8) there was no evidence that he refused to accept the

pay-off amount of $122,104.57 in April or May 1999, and 9) there was no evidence for the

court to render judgment based upon the “fair” division of the $200,000 insurance proceeds.

W e affirm.


       On February 17, 1995, the Cooks executed a prom issory note in the amount of

$117,000 payable to Jim mie Elwin W illiam son and Mary Eilene W illiamson in m onthly

installments with a final balloon payment. Payment of the note was secured by a vendor’s

lien and deed of trust. W hen the Cooks were unable to make the payments, the parties

agreed they would sign a new note for $115,835.66. However, the Cooks defaulted on the

new note. After the posting of a notice of foreclosure and filing of bankruptcy by the Cooks,

W illiamson comm enced efforts to collect the balance by private foreclosure or otherwise.

During this phase, Dennis Cook converted his chapter 13 bankruptcy to a chapter 7

proceeding. On June 1, 1999, the trustee executed a deed upon private foreclosure

conveying the undivided interest of Dennis Cook to W illiamson. Then, on August 3, 1999,



                                                2
the trustee executed a deed upon private foreclosure conveying the undivided one-half

interest in the property of Betty Cook to W illiamson.


       After the August 3 trustee’s sale, the Cooks filed an original petition to set aside the

two trustee’s sales and sought a declaration that no default existed. Among other things,

they alleged the parties had agreed the Cooks would be given time to obtain other financing

and were not in default. Before W illiamson filed his answer, the residence on the property

was totally destroyed by a fire on October 17, 1999. Williamson answered by general denial

but did not seek affirmative relief nor allege any defenses. After a question of arson was

settled, the fire insurance company interplead $200,000 subject to judgm ent of the court. 1

Thereafter, neither party amended nor supplemented their pleadings to state claims for

relief or address the appropriate disposition of the insurance proceeds.


       After presentation of the evidence, the trial court denied W illiamson’s six requested

issues and submitted three questions to the jury. 2 The jury found (1) the am ounts claimed


       1
        The parties do not provide any information regarding the settlement with the
insurance company on the fire loss. Moreover, the record does not include the terms of the
settlement between the parties and the insurance company or any pleadings, orders, or
other information regarding the deposit of $200,000 into court or conflicting claims thereto.
       2
         Question One. W ere the amounts being claimed by W illiamson at the time of the
foreclosure sales on June 1, 1999 and August 3, 1999 excessive?

         Question Two. Did W illiamson refuse to accept the pay-off amount of $122,104.57
in April or May of 1999?

      Question Three. W hat is the fair division of the $200,000.00 insurance settlement
money?

                                              3
by W illiamson were excessive, (2) W illiamson refused to accept a pay-off of $122,104.57

in April or May 1999, and (3) disbursement of $75,000 to Betty Cook and $125,000 to

W illiamson would be “the fair division” of the $200,000. By its judgment, the trial court set

aside the trustee’s deeds of June 1, 1999 and August 3, 1999, and ordered that W illiamson

recover $125,000 plus accrued interest, and Betty Cook be awarded $75,000 plus accrued

interest.


       W e first note the rules applicable to our review of this appeal. As a court of appeals,

we may not reverse a trial court’s judgment in the absence of properly assigned error. See

San Jacinto River Authority v. Duke, 783 S.W .2d 209, 210 (Tex. 1990). It is well settled that

an appellate court should not decide a case on a theory different from that on which it was

plead and tried. American Mut. Liability Ins. v. Parker, 144 Tex. 453, 191 S.W .2d 844, 848

(1945) (on reh’g); El Paso Environ. Systems v. Filtronics, 609 S.W .2d 810, 813

(Tex.Civ.App.--El Paso 1980, writ ref’d n.r.e.).         Pleadings frame the issues for

determination. See Murray v. O & A Express, Inc., 630 S.W .2d 633, 636 (Tex. 1982). Thus,

we will consider the issues raised by written pleadings and in the context of the theory on

which the case was tried.


       Addressing W illiamson’s issues in a logical rather than sequential order, we first

consider points four and nine,3 by which he asserts error in the submission of question three




       3
           Issue nine is the same as issue four.

                                               4
and point six, by which he asserts trial court error in denying his requested six issues.4

W illiamson suggests that question three should have been submitted as per his question

six, to-wit: what sum of money is owed to W illiamson by the Cooks on the note in question.

W e disagree.


       Under Rules 277 and 278 of the Texas Rules of Civil Procedure, the trial court shall

subm it the questions to the jury upon broad form questions which are raised by the written

pleadings and the evidence. Submission of questions is a matter within the discretion of

the trial court and its discretion is subject only to the requirement that the questions

submitted must (1) control the disposition of the case, (2) be raised by the pleadings and

the evidence, and (3) properly submit the disputed issues for the jury’s determination. See

Lee-W right, Inc. v. Hall, 840 S.W .2d 572, 577 (Tex.App.--Houston [1 st Dist.] 1992, no writ);

Lesser v. Allums, 918 S.W .2d 81, 87 (Tex.App.--Beaumont 1996, no writ).


       Because the am ount owing on the promissory note was not raised by the written

pleadings of either party, the trial court did not err in denying the six issues requested by

W illiamson. Dion v. Ford Motor Co., 804 S.W .2d 302, 310 (Tex.App.--Eastland 1991, writ

denied).   W illiam son does not present any legal authority governing the allocation of


       4
      Six issues summarized as
             1. Do you find that the Cooks were not in default?
             2. and 3. Do you find that the Cooks were not in default of any obligation or
covenant owed to W illiamson at the time of the two foreclosures?
             4. and 5. Did W illiamson make an excessive demand on August 3, 1999 and
May 1999?
             6.W hat sum of money is owed to W illiamson by the Cooks?

                                              5
insurance proceeds in this type situation. Moreover, in the absence of evidence to show

the terms of the settlement agreement with the insurance company upon which the funds

were tendered into court and the absence of pleadings stating the claims of the parties, we

are unable to hold the trial court abused its discretion in submitting question three as

submitted. Points of error four, six, and nine are overruled.


       By point five, Williamson contends the trial court erred in entering judgment based

upon the jury’s findings to special issues because the evidence is factually insufficient to

support the jury’s findings to all of the issues submitted. Although the point was presented,

it is not developed nor argued in the body of the brief. Accordingly, his contention is waived.

W arehouse Partners v. Gardner, 910 S.W .2d 19, 26 (Tex.App.--Dallas 1995, writ denied);

Howell v. T S Com munications, Inc., 130 S.W .3 515, 518 (Tex.App.--Dallas 2004, no pet.).

Point of error five is overruled.


       By his remaining points one, two, three, seven, and eight, W illiamson contends there

was no evidence, or alternatively, the finding was against the great weight and

preponderance of the evidence that he claim ed excessive dem ands in connection with the

private foreclosures sales in June and August 1999, or that he refused to accept the pay-off.


       W illiamson did not, by special exception or otherwise, challenge the sufficiency of

the Cooks’ pleading to raise sufficient grounds, which according to substantive law, would




                                              6
be sufficient to authorize the trial court to set aside the trustee’s deeds.5 Here, W illiamson

does not challenge the trial court’s action in setting aside the trustee’s deeds nor submit any

legal authority to support any argument that the trial court erred in doing so. Accordingly,

since question three was not conditionally submitted, the answers to questions one and two

do not have any application to the division of the $200,000.


       Moreover, before we may reverse a judgment and order a new trial we must find that

the error complained of amounted to such a denial of W illiamson’s rights as was reasonably

calculated to cause and probably did cause the rendition of an improper judgment or

prevented him from presenting the case on appeal. Tex. R. App. P. 44.1. In Dennis v.

Hulse, 362 S.W .2d 308, 309 (Tex. 1962), the Court held that an appellant must show the

error probably did cause the rendition of an improper judgm ent. See also Knight v. Hicks,

505 S.W .2d 638, 644 (Tex.App.--Amarillo 1974, writ re’fd n.r.e.); Aquamarine Associates

v. Burton Shipyard, 645 S.W .2d 477, 482 (Tex.App.--Beaumont 1982), aff’d, 659 S.W .2d

820 (Tex. 1983). In Lorusso v. Mem bers Mut. Ins. Co., 603 S.W .2d 818, 820 (Tex. 1980),

the Court held that the harmless error rule applies to all errors in that it draws no distinction

as to the type of errors involved in its requirement for reversal. Notwithstanding Rule 44.1

and the applicable cases, W illiamson does not present a challenge to the trial court’s action

in setting aside the trustee’s deeds or otherwise demonstrate that any alleged error was

reversible. Accordingly, points one, two, three, seven, and eight are overruled.


       5
         Because the record does not show that any exceptions were brought to the attention
of the trial judge per Tex. R. Civ. P. 90, any defects in the pleadings were waived.

                                               7
       Having overruled all of W illiamson’s points, the judgment of the trial court is affirmed.


                                                    Per Curiam


Johnson, C.J., not participating.




                                               8
