COURT OF APPEALS

	SECOND DISTRICT OF TEXAS

	FORT WORTH

	NO. 2-02-212-CV

ED SKOOG AND PAULA SKOOG	APPELLANTS

	V.

MICHELE MARIE LONG CODY, KAREN 	APPELLEES

SUE CODY MALUF, JJONDE DEL CODY,

ANN DENISE CODY BOURAS, AND

ELIZABETH LOUISE CODY SCHMIDT

AND

MICHELE MARIE LONG CODY					        APPELLANT

V.

ED SKOOG AND PAULA SKOOG						 APPELLEES

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	FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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	OPINION

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	In this property rights dispute, Appellants Ed and Paylula Skoog appeal the trial court’s order denying their motion for new trial, contending that the jury’s verdict was factually and legally insufficient.  We affirm.  

Factual and Procedural Background

	Appellants are Paula and Ed Skoog.  Paula is the daughter of Appellee Michele Cody and the older sister to all other Appellees, Karen Maluf, Jjonde Cody, Ann Bouras, and Elizabeth Schmidt. [3RR 6, Ap. brief 1Ae. brief 4] Andrew Cody, Michele Cody’s husband and Paula Skoog’s father, died intestate in 1988. [PX 19, 28; 3RR 7-8]  Mrs. Cody filed an Affidavit of Heirship on December 27, 1988, listing two houses, a travel trailer, and two vehicles in the decedent’s community property estate. [PX 3, 2] One of the houses, located in Hurst, Texas, was the Cody’s’ residence since 1967. [7RR 22-23; PX2, 13] Mrs. Cody continued to live in the home alone after her husband’s death, but in 1990 her health began failing due to arthritis and what she believed was the beginning of Parkinson’s disease. [3RR 10-11; 7RR 23: 6-8, 17-22 (arthritis - PX 5, 22), home on Glenn Drive -] In light of Mrs. Cody’s medical problems, Appellants and Mrs. Cody agreed to combine households. [3RR 11; 7RR 25] Appellants sold their home and moved into Mrs. Cody’s home along with their two sons in December of 1991,  and eventually sold their homnme in November of 1992a. [3RR 11, 6-7; 3RR 34m 7-12] On December 17, 1991, Michelers. Cody signed a warranty deed conveying theher home to Appellants wherein she retained a life estate. [PX 2, 12-13]

	Kevin Kuenzli, a lawyer certified in tax law, and estate planning, and probate law, prepared the warranty deed that conveyed the property to Appellants.  [6RR 31] Mr. Kuenzli testified that he was not aware of any agreement that gave Appellants the right to live in the house for the rest of Mrs. Cody’s life. [6 RR 31] He further testified that such an agreement would be inconsistent with the deed because the right to live in the house was reserved and retained by Mrs. Cody. [6 RR 31]  The warranty deed states that Mrs. Cody “shall have the full possession, use and benefit of said property, as well as the rents, revenues and profits thereof, for and during my[her] natural life.” [PX 2, 13]\

	All parties concede that there was an agreement between Appellants and Mrs. Cody regarding their living arrangements and the warranty deed. [Paula - 3RR 16; Ed - 4RR 52, 4-11; Mcody - 7RR 27; Karen - 4RR 155, 1-20; Jjonde - 8RR 14; Ann - 7RR 76; Elizabeth 7RR 203]  The particulars of the agreement, however, are in dispute.  Appellants contend that it was agreed and understood by Mrs. Cody that as long as Appellants were willing to care for her, they could live in the house free of rent and would inherit the house upon Mrs. Cody’s death. [Ap brief p. 5] Appellants additionally claim that the agreement prohibited Mrs. Cody from evicting Appellants and vice versa. [Ap brief p. 6] Appellees claim the agreement was that in exchange for the remainder interest in the property, Appellants agreed to take care of Mrs. Cody for the rest of her life. [Ae brief p. 5; 7RR 25] Appellees argue that Mrs. Cody was not prohibited from evicting Appellants because the agreement was that Appellants could live in the home only as long as they actually took care of Mrs. Cody. [7RR 27-28] If Appellants ceased to take care of Mrs. Cody, Appellees claim that the agreement was for Appellants to leave the house and return the warranty deed to Mrs. Cody. [7RR 27-28; Ae brief p. 5]  Appellees concede that they do not contecst Appellant’s remainder interest in the properyty in the appeal.Appellees concede that they do not contest Appellant’s remainder interest in the property in the appeal.

	Appellants and Mrs. Cody lived harmoniously together in the home for the first four years. [3RR 61, 65, 66] During this time, Appellants and Mrs. Cody made significant improvements to the home. [3RR 54; 7RR 28-29] Appellants claim that they spent approximately $49,000 of their own money on the improvements and acknowledge that Mrs. Cody also contributed to the remodeling of the home. [Ap brief 6; PX 5, 22]

		Appellants contend that beginning in late 1995, Michelers. Cody began showing signs of early dementia and Paula Skoog’s siblings began making accusations that Appellants were stealing money from Mrs. Cody, causing tension between Appellants and Mrs. Cody. [Ap brief p. 7] Appellees contend that Mrs. Cody became increasingly uncomfortable living in the home and began taking extended vacations or staying overnight at her children’s homesson Jjonde’s home  to avoid contact with Appellants. [7RR 30-31, 175-176]  Appellees claim that: there was frequent yelling and arguing between Appellants; Paula Skoog was trying to have Mrs. Cody declared incompetent; Appellants brought in a large dog that scared Mrs. Cody; and Appellants owned exotic lizards that required them to keep live roaches and crickets in the home. [7RR 36, 40; 5RR 34]  Mrs. Cody testified at another trial that she was scared for her life after Paula twisted Mrs. Cody’sher arm and slapped Maluf during an argument. [7RR 39, 58 line 16]

	The relationship between Appellants and all of the Appellees continued to deteriorate, and in June 1997, Paula a Skoog wrote her mother and siblings a letter refusing to take further care of Michelers. Cody. \[DX 5] The letter, in pertinent part, stated: 

		If I am aware that mother is in need of emergency care, I will be responsible for getting her emergency care.  Immediately, I shall notify whichever one of you I can contact, and someone else will take over the arrangements for further care.  I will not be responsible for obtaining medications, making medical or dental appointments or transportation.  I will not be responsible for giving nursing care or making arrangements for it nor for providing her personal care in any capacity. [DX 5]	

In response, Mrs. Cody moved her furnishings out of the house and moved in with her son Jjonde oin July 4,of 1997. [3RR 107-109; 7RR 42] Shortly thereafter, Appellants changed the locks to the house and placed Mrs. Cody’s remaining belongings in garbage sacks and put them on the front porch. \[4RR 39; 7 RR 30; 7 RR 177-78; 8RR 86]   

	Mrs. Cody made attempts in the Justice Courts of Tarrant County to have Appellants evicted.  These cases were dismissed for lack of jurisdiction. [PX 1, pp 1-6].  On Monday, April 2, 1998, a Tarrant County Court at Law held a bench trial on Mrs. Cody’s forcible detainer claim and granted her a writ of possession allowing her to evict the Appellants from the home. [PX 1, 6] Appellants moved out of the home that weekend. [3RR 134-135]

	Appellants filed suit against Appellees for various causes of action including breach of contract, wrongful eviction, breach of warranty, tortious interference with contract, fraud, cloud on title, and mutual mistake. [CR 14-19]   Appellees denied Appellants’ causes of action and filed various affirmative defenses to Appellants’ claims, including res judicata, collateral estoppel, estoppel, quasi- estoppel, statute of frauds, statute of limitations, parol evidence rule, and anticipatory repudiation. [CR 22-23] Appellee Mrs. Cody asserted counterclaims against Appellants for injury to real property, rent, and conversion of certain personal property. [CR 25-27] Appellees Maluf, Jjonde Cody, Bouras, and Schmidt asserted a counterclaim seeking a declaratory judgment that no cloud on title exists with respect to the property and improvements. [CR 24]  After an eight-day trial [see sticky note on 1RR], issues for only two causes of action asserted by Appellants were submitted for consideration by the jury — breach of contract against Mrs. Cody and tortious interference by the siblings. [CR 32, 36]  All of Mrs. Cody’s counterclaims were submitted for consideration by the jury. [CR 45, 49, 50] 

	Jury Question Number 1 asked the jury to determine if there was an oral agreement between Mrs. Cody and Appellants whereby Appellants could not be evicted from Mrs. Cody’s home if they agreed to care for Mrs. Cody. [CR 32]  The jury answered “no” to this question. [CR 32] Because all subsequent questions regarding Appellants’ claims were conditioned on a finding of the existence of that specific agreement, Appellants were denied relief for all of their claims.  The jury also answered the issues submitted by Mrs. Cody on her counterclaims in the negative.  The trial court rendered judgment on the verdict on March 21, 2002.  [CR 88-89] That judgment provided that all parietiesAppellants take nothing for their claims. against Appellees,  Mrs. CodyAppellees take nothing by thheir counterclaims against Appellants, and that each party bear their own costs of court. [CR 88-89]   The court did not grant the declaratory judgment requested by Appellees. [CR 89]

	In Appellants’ sole pointissue, they argue that the jury’s answer to Question Number 1 was both factually and legally insufficient.  [Ap brief p.i.i.] AppelleesMrs. Cody filed cross- issues claiming legal insufficiency to support the jury’s findings in favor of Appellants regarding Appellees’Mrs. Cody’s’s  claims and the denial of attorneys’ fees. [Ae brief p4]  Appellees Mrs. Cody asks us to consider these cross-issues only in the event that we reverse this case based upon the issue and argument raised by Appellants. [Ae brief p4]  Otherwise, AppelleesMrs. Cody requests that we affirm the trial court’s final judgment. [Ae brief p4]

Discussion

	Appellants’ sole issue on appeal is based upon a challenge of the legal and factual sufficiency of the evidence.  

Legal Sufficiency

	Appellants assert that there is no evidence to support the jury’s answer to Question Number 1. [Ap brief p. 15]  When the party having the burden of proof on a fact question appeals from an adverse answer, the issue or point challenging the legal sufficiency of the evidence should be that the matter was established “as a matter of law.”  Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).  Nonetheless, the Texas Supreme Court’s practice is to liberally construe the issues or points contained in appellate briefs.  Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex. 1986) (op. on reh'g).  Thus, if a party with the burden of proof incorrectly phrases the issue or point and contends there was “no evidence” to support the jury's answer, the party has still invoked this court's appellate jurisdiction to consider the contention that the opposite of the answer was established as a matter of law.  Id.; Croucher, 660 S.W.2d at 58. 

	If an appellant is attacking the legal sufficiency of an adverse answer to an issue on which he had the burden of proof, the appellant must overcome two hurdles.  Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex. 1991).  First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary.  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.  Id.; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

	Appellants claimed in the lower court that their agreement with Mrs. Cody gave them an equal right of possession to the property and challenged the validity of the warranty deed that gave Mrs. Cody the sole right to possess or use the property during her lifetime. [CR 19] Appellants, as plaintiffs in this case, bore the burden of proof at trial.  Thus, Appellants’ challenge to the legal sufficiency of the jury’s answer to qQuestion nNumber 1 must begin with an examination of the evidence that supports the jury’s findings, while ignoring the controverting evidence.  Marathon Oil, 767 S.W.2d at 690.     

	The reservation by Mrs. Cody of a life estate in the warranty deed is strong evidence in support of the jury’s finding that there was no oral agreement between Appellants and Mrs. Cody whereby Appellants could not be evicted from the home.  The warranty deed states that Mrs. Cody “shall have the full possession, use and benefit of said property, as well as the rents, revenues and profits thereof, for and during [her] natural life.” [PX 2, 13] Standing alone, the deed’s reservation of Mrs. Cody’s right to full possession, use, and benefit of the property defeats any argument that Appellants could not be evicted from the home.  

	Although Mrs. Cody was incompetent to testify as a witness at trial, portions of her previous testimony at the forcible detainer trial were read into the record. [PX38, 2; 7RR 21] Mrs. Cody testified that she had an agreement with Appellants that if they took care of her for the rest of her life, they would receive the house after she died. [7RR 26] When asked what was to happen if Appellants stopped taking care of her, Mrs. Cody replied that they would give her back the warranty deed and leave the house. [7RR 28] The jury heard evidence regarding Mrs. Cody’s attempts to evict Appellants and the county court’s writ of possession granting Mrs. Cody full possession of the property.  [PX 1, 9] This is further evidence that the parties did not have an agreement that prevented them from evicting one another from the home.  

	The testimony of the remaining Appellees also supports the jury’s finding that there was no agreement whereby Appellants could not be evicted from the home.  Bouras stated that her understanding of the agreement was that “for taking care of my mother,, . . .  Paula would receive the house at Glenn Drive.” [7RR 76]  Schmidt, Cody, and Maluf alsol testified that the agreement between Appellants and Mrs. Cody was that in exchange for taking care of Mrs. Cody, Appellants would get the house when Mrs. Cody died. [7RR 203, 8RR 83, 4RR 155]  When Jjonde Cody was asked if he understood the agreement to be that neither party could evict the other from the house, heJjonde Cody replied that Mrs. Cody did not explain the agreement in that way. [8RR 17]  Further, Maluf testified that the agreement did not grant Appellants the right to live in the house. [4RR 154]  

	Disregarding all evidence to the contrary, the evidence supports the jury’s finding that there was no agreement between Appellants and Mrs. Cody whereby Appellants could not be evicted from the home in exchange for their agreement to care for her.  Therefore, we find that Appellants failed to establish, as a matter of law, that Mrs. Cody entered into an agreement that prevented her from evicting Appellants from the home. 

Factual Sufficiency

	The issue or point challenging the factual sufficiency of the evidence should be that the finding was “against the great weight and preponderance of the evidence.” Croucher, 660 S.W.2d at 58. In reviewing an issue asserting that an answer is “against the great weight and preponderance” of the evidence, we must consider and weigh all of the evidence, both the evidence that tends to prove the existence of a vital fact as well as evidence that tends to disprove its existence.  Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex. 1989), cert. denied, 494 U.S. 1080 (1990); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  So considering the evidence, if a finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the issue should be sustained, regardless of whether there is some evidence to support it.  Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959) (op. refusing writ n.r.e.); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

	The only evidence that there was an agreement whereby Mrs. Cody could not evict Appellants from the home derives from Paula Skoog’s testimony at the trial.   Paula Skoog  testified that when she receivedMrs. Cody gave her the warranty deed to the house, Mrs. Cody she said, “Hhere’s . . . the deed where I’m giving you the house, and here’s the part on this other page where you can’t throw me out, that I get to keep the right to live in it.”  [3RR 48] Paula Skoog additionally stated that essentially, Mrs. Cody told her “I can’t kick you out; you can’t kick me out.” [3RR 48]

	Appellants argue that “[i]t was clearly wrong for the jury to find there was no oral agreement allowing [Appellants] to live in the [house] when the only evidence presented at trial indicates there was such an agreement.” [Ap brief p. 18] However, the jury did not find, and Appellees do not contend, that Mrs. Cody did not allow Appellants to move into her home. [Ae brief p. 5, 10; tab 2 p. 4] The question to the jury asked whether there was an oral agreement whereby Appellants could not be evicted from the home in exchange for their agreement to care for Mrs. Cody.  Appellants admit that Mrs. Cody agreed to and understood that only as long as Appellants agreed to care for her could they could live in the house free of rent until Mrs. Cody passed away. [Ap brief, p. 5] It is undisputed that Paula Skoog sent a letter to Appellees stating that she would not be responsible for “providing [Mrs. Cody] personal care in any capacity.” [DX 5] 

	 After reviewing and weighing both the evidence that tends to prove the existence of such an agreement as well as the evidence that tends to disprove its existence, we concludefind that the jury’s finding was not contrary to the great weight and preponderance of the evidence as to be manifestly unjust.  

Conclusion

	We overrule Appellants’ sole issue and affirm the trial court’s judgment.  

								DIXON W. HOLMAN

								JUSTICE

PANEL B:	LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

DELIVERED: MONTH   ONovember 6, 2003DAY, 2003