
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS



DOUG MILLER AND MILLER
CATTLE COMPANY,

                            Appellants,

v.

JIMMY D. MCNIEL, VERA
SELLERS, AND NIVERADO
JAVALERA,

                            Appellees.

§

§

§

§

§

No. 08-03-00188-CV

Appeal from the

143rd District Court

of Reeves County, Texas

(TC#02-08-17433-CVR)



 
O P I N I O N

           This is an appeal from the decision of the trial court entering a final judgment finding
that one Appellee
, is entitled to judgment.  For the reasons stated, we affirm the judgment
of the trial court.
                                       I.  SUMMARY OF THE EVIDENCE 
           This dispute involves responsibility for errors made during a business transaction for
the purchase of cattle.  Appellant Miller is a rancher who purchases and sells cattle on a
frequent basis.  During calendar year 2001, he purchased several thousand head of cattle
from Appellee Jimmy D. McNiel who functioned as a middle man for a Mexican national,
Niverado Javalera, who delivered the cattle to the United States border.  In January 2002,
Appellee informed Appellant that due to Appellee’s inability to advance funds to the
Mexican seller, he would no longer be able to sell cattle to Appellant.  Appellant proposed
a new financial arrangement agreeing to purchase the cattle directly from Mr. Javalera and
agreeing to make certain payments in advance as front money for the cattle sales.  Appellant
and Appellee had a side agreement whereby Appellant agreed to sell some of the Mexican
cattle to Appellee for a predetermined price.  None of the agreements were in writing.
           Vera Sellers, Appellee’s employee, had prepared invoices for payment for the cattle
sold by Appellee to Appellant under the 2001 arrangement.  Appellant and Appellee agreed
to allow Vera Sellers, Appellee’s employee, to prepare the daily invoices for the various
transactions which were then faxed to Appellant for payment in the same manner as Vera
Sellers had been handling the invoices in the past.  Sometime during February or March of
2002, the parties agreed that they would split the cost of Vera Sellers’s salary.  On March 18,
2002, Vera Sellers prepared an invoice reflecting the purchase of 96 head of cattle by
Appellant.  The invoice was  faxed to Appellant in the routine manner.  On March 19, 2002,
Vera Sellers prepared another invoice for 312 head of cattle which inadvertently included a
duplicate billing for the 96 head of cattle billed in the March 18, 2002 invoice.  The error in
the invoice, resulted in an overpayment to Niverado Javalera in the amount of $32,935.34. 
           The procedure established by the parties provided that backup information, which
consisted of brokerage sheets and sorting sheets, for the invoices would be faxed by Appellee
to Vera Sellers at the end of each day.  Vera Sellers would prepare an invoice and fax it to
Mrs. Miller and also fax a copy back to Appellee’s fax machine.  Appellant would pick up
the invoice at Appellee’s office and meet with Javalera.  Some payment of funds was made
on a daily basis though the record does not clearly describe the procedure followed nor does
it describe the details for determining the amount to be paid.  Appellant apparently had a very
complicated arrangement with Mr. Javalera which required that Appellant pay for some
additional costs as well as advance funds for the cattle actually delivered.  Neither Appellee
nor Ms. Sellers received the proceeds from the sale of the 96 head of cattle, those funds were
paid directly to Niverado Javalera.  The parties speculate that back-up information for the 96
head of cattle in dispute was faxed on two consecutive days resulting in the fee for the 96
head of cattle being invoiced twice.  The invoiced amount was included in a payment to
Niverado Javalera in the amount of four hundred two thousand six hundred forty-seven
dollars and fifty cents.
           After trial to the court, the judge entered a judgment finding that the Appellant had
non-suited Vera Sellers, that Appellant should take nothing from Appellee and finding
against Niverado Javalera in the amount of $32,935.34.  The Appellant appeals from this
judgment asserting five issues on review.
II.  DISCUSSION
           In five issues on review, Appellant complains of the findings of fact and conclusions
of law found and filed by the trial court below.  Issue Nos. One and Two complain that the
trial court erred in finding that there was no evidence or insufficient evidence that “Appellee
was negligent in regard to any duty he owed Appellant which proximately caused any
Damage to Appellant.”  Issue No. Three complains that the trial court erred because there is
“no evidence or insufficient evidence to support Trial Court’s finding that Appellant was
negligent and such negligence proximately caused Appellant’s Damages [sic].”  Issue No.
Four complains that the trial court erred because there is “no evidence or insufficient
evidence to support Trial Court’s finding that Vera Sellers was negligent and such negligence
proximately caused Appellant’s Damages [sic].”  In Issue No. Five, Appellant complains that
the trial court erred in denying the request for additional findings of fact and conclusions of
law.
           A “no evidence” or legal insufficiency point is a question of law which challenges the
legal sufficiency of the evidence to support a particular fact finding.  There are two separate
“no evidence” claims.  When the party having the burden of proof suffers an unfavorable
finding,
 the point of error challenging the legal sufficiency of the evidence should be that
the fact or issue was established as “a matter of law.”  When the party without the burden of
proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to
support the finding.”  In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.--El Paso
1999, no pet.); see Creative Manufacturing, Inc. v. Unik, Inc., 726 S.W.2d 207, 210
(Tex.App.--Fort Worth 1987, writ ref’d n.r.e.).
           When attacking the legal sufficiency of the evidence to support an adverse finding on
an issue for which he had the burden of proof, i.e., challenging the trial court’s finding as a
matter of law, the appellant must demonstrate on appeal that the evidence conclusively
established all the vital facts in support of the issue.  In re Estate of Livingston, 999 S.W.2d
at 879;  Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989);  Kratz v.
Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.--El Paso 1994, no writ); Chandler v.
Chandler, 842 S.W.2d 829, 832 (Tex.App.--El Paso 1992, writ denied).  A party attempting
to overcome an adverse fact finding as a matter of law must surmount two hurdles.  In re
Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690.  First, the record must
be examined for evidence that supports the finding, while ignoring all evidence to the
contrary.  In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz,
890 S.W.2d at 902.  Second, if there is no evidence to support the finding, then the entire
record must be examined to see if the contrary proposition is established as a matter of law.
In re Estate of Livingston, 999 S.W.2d at 879; Sterner, 767 S.W.2d at 690; Kratz, 890
S.W.2d at 902.  Only if the contrary position is conclusively established will the point of
error be sustained.  In re Estate of Livingston, 999 S.W.2d at 879-80; Kratz, 890 S.W.2d at
902;  Chandler, 842 S.W.2d at 832.
           In reviewing a factual sufficiency point of error, the appeals court must weigh all of
the evidence in the record.  Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).  Findings of
fact may be overturned only if they are so against the great weight and preponderance of the
evidence as to be clearly wrong and unjust. Id. In that event, the appeals court must state
clearly why the finding is factually insufficient or so against the great weight and
preponderance as to be manifestly unjust.  Id.
           An “insufficiency” point invokes a broader standard, requiring this Court to consider
all of the evidence and ascertain whether the evidence supporting the finding is so weak, or
the evidence to the contrary so overwhelming, that the finding should be set aside and a new
trial ordered.  Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
           After a trial to the court, the court entered findings of fact and conclusions of law. 
The Appellant complains only of the findings related to the negligence of Appellee,
Appellant, and Vera Sellers.  Finding number VII finds that there was “no evidence that
Defendant McNeil [sic] was negligent in regard to any duty he owed Plaintiff which
proximately cause[d] any damage to Plaintiff.”  Finding number VIII finds there was
“insufficient evidence that Defendant McNeil [sic] was negligent in regard to any duty he
owed Plaintiff which proximately caused any damage to Plaintiff.”  Finding IX finds
defendant Sellers negligent in preparation of the invoice.  Finding XII finds “Defendant
Sellers’s negligence was a proximate cause of Plaintiff’s Damages.”  Finding XIII finds
“Plaintiff’s negligence was a proximate cause of Plaintiff’s Damages.”
           The court made several other findings which were germane to the entry of a judgment
in this case against Appellant but about which Appellant does not complain.  Specifically
with regard to actionable conduct, the court found that:  (X) Vera Sellers was a borrowed
employee by Appellant from Appellee, (XI) Sellers’s negligence could not be attributed to
Appellee, and (XIV)  Sellers’s negligence constituted 40 percent and Appellant’s negligence
constituted 60 percent of the negligence which proximately caused Appellant’s damages. 
None of these findings are challenged on appeal.
           Appellant’s pleading originally asserted a cause of action against Appellee and Sellers
for fraud and conspiracy to overcharge Appellant.  During the trial of the case, Appellant
dictated an oral trial amendment claiming a cause of action on the basis of negligence. 
Appellee did not object to the trial amendment and it was granted by the court.  After hearing
the testimony of several witnesses including Appellant, Appellee, Mrs. Glenna Miller,
(Appellant’s wife), and Vera Sellers, and receiving copies of the relevant documents, the
court entered an Order entering judgment against Appellant and in favor of Appellee.  The
court acknowledged and accepted the non-suit against Vera Sellers  filed by Appellant in his
letter brief of January 22, 2003.
           The evidence at trial was essentially undisputed.  Both sides agreed that the parties
had an oral agreement governing the purchase and sale of cattle among them.  Approximately
twenty-two thousand head of cattle were purchased and sold by the parties in a short time
frame.  The transactions occurred on a daily basis and involved a very informal method of
tracking and documenting the sales.  It is clear from the evidence that Vera Sellers agreed
to prepare invoices for the transactions between Appellant and Niverado Javalera, the seller
of the cattle, as an employee of Appellant.  Appellant admitted that he paid half her salary
and agreed to allow her to perform the service for him of preparing the invoices for payment. 
 It is also clear that Appellant had an extremely informal arrangement with Mr. Javalera that
involved daily contacts and negotiations which involved the payment of funds.  The exact
terms of the agreement was not described but seemed to be subject to change on a daily basis
and ultimately often required Appellant to pay funds on behalf of Mr. Javalera to various
entities.  Appellant is an experienced cattle rancher, well familiar with the buying and selling
of cattle, and was dealing in several hundred thousand dollars worth of cattle in a very
“frantic” manner yet had no written agreement with any party to the transactions.  Appellant
admitted that the payment of over four hundred thousand dollars to Mr. Javalera was an
estimation of the amount owed based on various invoices and deductions to which  Appellant
and Mr. Javalera agreed.  This payment ostensibly includes the payments for the 96 head of
cattle which were double billed.
           The parties are not certain how the error occurred but it is admitted by Appellant,
Appellee, and Vera Sellers that 96 head of cattle were included in two invoices and,
therefore, Appellant was doubled billed for the cattle.  Appellant paid Mr. Javalera for the
cattle directly, neither Appellee nor Vera Sellers received any proceeds from the transaction.
           Based upon the totality of the record presented, there is no evidence to establish
exactly why or how Vera Sellers double invoiced Appellant for the 96 head of cattle. 
Because the court made a finding that Vera Sellers was a borrowed servant of Appellant, and
such finding is not challenged on appeal, any negligence in her actions was properly
attributed to Appellant.  A review of the record also establishes that there is no evidence to
establish any negligence on the part of Appellee that caused Vera Sellers to invoice
Appellant twice.  Further, there is ample evidence in the record that Appellant was negligent
in his review and processing of the paperwork and in negotiating the payments to Mr.
Javalera.  Appellant did not  implement additional safeguards to insure that the payments
made were for cattle delivered nor did he personally review the back-up documentation
available each day prior to paying any invoice.  The payments involved daily negotiations
between Appellant and Mr. Javalera and in no way involved Appellee.  Because of his
decisions with regard to the informal manner of processing the paperwork for the cattle, the
large number of cattle sold and purchased, and the general environment surrounding the
transactions, the court had ample evidence to support its findings.
           In sum, there is ample evidence in the record to support the court’s finding that
Appellee was not negligent, there is ample evidence in the record to find that Appellant was
negligent, and there is ample evidence in the record to establish that Vera Sellers was
negligent and that her negligence should be imputed to Appellant.  Accordingly, Issue Nos.
One through Four are overruled in their entirety.
           In Issue No. Five, Appellant  complains of the trial court’s denial of the request for
additional findings of fact and conclusions of law.  Though Appellant makes a vague
reference to this point in his argument, he does not brief the issue.  Because the issue is not
properly briefed or argued, the point is not preserved for appeal.  When a party fails to
include any citation of authority or discussion of relevant facts to support its sufficiency
contention, “we will not perform an independent review of the record and applicable law to
determine whether the error complained of occurred.”  Happy Harbor Methodist Home, Inc.
v. Cowins, 903 S.W.2d 884, 886 (Tex.App.--Houston [1st Dist.] 1995, no writ).  Thus, we
consider appellant’s challenge regarding the court’s failure to file additional facts and
conclusions of law to be waived.  See, e.g., Rendleman v. Clarke, 909 S.W.2d 56, 59
(Tex.App.--Houston [14th Dist.] 1995, writ dism’d as moot).  Issue No. Five is overruled. 
           Having overruled each of Appellant’s issues on review, we affirm the judgment of the
trial court.
 
                                                                  RICHARD BARAJAS, Chief Justice
March 31, 2005

Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.
Larsen, J., not participating
