1

Ex-Chief Justice Philip Johnson originally sat on the panel that heard oral argument on this case.

However, he did not participate in this opinion.

2

The recovery consisted of $60,000 in damages and a 33% interest in O & G Management, Ltd.

NO. 07-04-0020-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

OCTOBER 11, 2005

______________________________

O & G MANAGEMENT, LTD., McCLELLAND CREEK PROPERTIES, INC.,

D.L. PORTER, JANICE PORTER, RALPH R. HIPKINS 

and KATHLEEN HIPKINS,

Appellants

v.

DAN HIPKINS, 

Appellee

_________________________________

FROM THE 223rd DISTRICT COURT OF GRAY COUNTY;

NO. 31,237; HON. H. BRYAN POFF, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and REAVIS, J.1

O & G Management, Ltd., McClelland Creek Properties, Inc., D.L. Porter, Janice

Porter, Ralph R. Hipkins, and Kathleen Hipkins (collectively referred to as O&G) appeal

from a judgment awarding Dan Hipkins (Hipkins) recovery against them.2 O&G’s sole
3

The question read: “Find from a preponderance of the evidence the amount of distributions derived

from their ownership interest in O & G Companies, if any, made by Kathleen Hipkins, to or on behalf of Dan

Hipkins, Cathy Burrell, and their heirs.” The jury replied: “$560,000.” Furthermore, the “O & G Com panies”

consisted of “O & G Managem ent, Ltd. and McClelland Creek Properties, Inc.” 

2

issue, which contains several subparts, concerns the authority of the trial court to enter a

judgment that allegedly contradicted the jury’s verdict. The reporter’s record before us is

partial in scope. O&G merely requested the reporter to transcribe that portion of the trial

concerning “the [trial] court’s receipt of the jury verdict, and the polling of the jury, if any.”

That and the clerk’s record, posits O&G, illustrate that the trial court 1) failed to setoff

against the jury award to Hipkins a sum of $560,000, and 2) improperly found O & G

Management and McClelland Creek jointly and severally liable to Hipkins though the issue

of their liability was omitted from the jury charge. We overrule each issue and affirm the

judgment.

Setoff

We address the matter of the alleged setoff first. According to O&G, it was entitled

to same because the jury found, via its answer to issue 22 of the charge, that Kathleen

Hipkins had “made” distributions “to or on behalf of . . . Hipkins, Cathy Burrell, and their

heirs” of $560,000.3 So, that amount should have been offset against not only the $60,000

in damages the jury determined Hipkins had suffered but also the 33% interest in O & G

Management, Ltd. it gave him, the argument goes. We disagree for several reasons.

First, assuming that the $60,000 award to Hipkins was subject to setoff, we are left

to wonder what amount to offset against it. As revealed by the wording of issue 22, the jury

was asked to determine the amount of distributions made to three or more people, i.e.

Hipkins, Cathy Burrell and their heirs, not simply to Hipkins. Furthermore, in concluding
3

that $560,000 had been distributed, the factfinder did not designate who received what

portion of that sum. Nor was it asked to. So, we have no idea what portion, if any, was

paid to Hipkins. Arguably none, some, most, or all could have been allotted to Cathy and

the heirs while, none, some, most, or all could have been delivered to Hipkins. Simply put,

we do not know, and the partial record before us does not address the topic. And, this is

fatal to O&G since it had the burden to provide us with a record sufficient to establish its

claim of reversible error. Dominguez v. Gilbert, 48 S.W.3d 789, 794 (Tex. App.–Austin

2001, no pet.) (holding that the appellant has the burden to provide the appellate court with

a record sufficient to establish reversible error).

Second, setoff connotes competing liabilities. That is, each party must have an

existing debt or claim against the other which may be setoff. See Sommers v. Concepcion,

20 S.W.3d 27, 35 (Tex. App.–Houston [14th Dist.] 2000, pet. denied) (stating that the right

of setoff allows entities “that owe each other money to apply their debts to each other”).

Logic therefore dictates that if a party has no claim or debt against the other, then he has

nothing to offset. And, that appears to be the circumstance here, in view of the wording

of jury question 22. Again, the trial court asked the jury to determine the amount of

distributions that had been “made” by Kathleen. The jury was not asked to decide what

amount of money was due Kathleen or any other defendant from Hipkins. Nor did it find

that Hipkins owed the $560,000 to anyone. Similarly absent is any contention on appeal

that O&G had some debt or claim due from Hipkins. In view of this, we see no opposing

debts with which to offset against each other. 
4

According to Texas Rule of Appellate Procedure 34.6(c), we “must presum e that the partial reporter’s

record designated by the parties constitutes the entire record for purposes of reviewing the stated points or

issues . . . .” TEX. R. APP. P. 34.6(c)(4). Since O&G secured only an abbreviated reporter’s record, per

appellate rule 34.6(c), we must presume that the portion supplied was all that addressed the question of

whether issues of fact existed regarding the liability of O & G Management as well as McClelland Creek . 

4

No Liability Finding

Next, O&G contends that the trial court could not have held O & G Management and

McClelland Creek jointly and severally liable to Hipkins since no liability issue submitted

to the jury included a reference to either entity. We overrule the issue.

A trial court need not submit to a jury non-disputed factual matter. Star Enterprise

v. Marze, 61 S.W.3d 449, 459 (Tex. App.–San Antonio 2001, pet. denied). Here, O&G

does not assert in its brief that the liability of O & G Management and McClelland Creek

was subject to factual dispute. Moreover, the partial reporter’s record requested by O&G

and provided us does not address this matter one way or the other.4 So, without illustrating

that the topic was subject to factual dispute, we cannot say that the trial court was

obligated to first submit a liability issue addressing the responsibility of either entity before

holding each entity liable in its judgment. In short, O&G failed to carry its burden of

establishing that the trial court committed reversible error.

Accordingly, we affirm the judgment.

Brian Quinn

 Chief Justice