1 Ex-Chief Justi ce Phil ip John son ori ginal ly sat on t he pan el that heard or al argument on thi s case. However, h e did not par ti cipat e in thi s opini on. 2 The recovery

consist ed of $60, 000 in damages and a 33% inter est i n O & G M anagement, Lt d.

NO. 07-04-0020-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL C OCTOBER 11, 2005

______________________________ O & G MANAGEM ENT, LTD., McC LELLAND CREE K PROPERTIES, IN C.,

D.L. PORTER, J ANICE PORTER, RALPH R. H IPKINS

and KATHLEEN HIPK INS, Appellants

v. DAN HIPKIN S, Appellee

_________________________________ FROM THE 223 rd DISTRIC T COURT O F GRAY COUNT Y; NO. 31,237; HON. H. BRYAN POFF, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS, J. 1 O & G Management , L td., McClelland Creek Properties, Inc., D.L. Porter, Jan ice Porter, Ralph R. H ipkins, and Kat hleen Hipkin s (collec tively referred to as O&G) appeal from a judgment awarding Dan Hipkins (Hi pkins ) recover y ag ainst

them. 2 O&G’s sole3 The questi on read: “Fi nd from a preponder ance of t he evi dence the amount of di stri buti ons deri ved

from the ir ownershi p int erestin O & G Com panies, if any, made by Kathl een Hipki ns, to or on behal f of Dan Hipkin s, Ca thy Bu rrell, and their he irs.” The jury replied: “$560,000.” Furtherm ore, the “O & G Com panies” consisted of “O & G M anagem ent, Ltd. and McC lell and C reek P roperties, Inc.” 2 issue, which contains several subparts, concerns the authority of the trial court to ente r a judgment

thatallegedlycontradicted the jury’s verdict. The reporter’s record befo re us is partial in scope. O&G merely r equested the r

eporter to tr

anscribe that portion of the trial concerning “the [trial ] court’s r eceipt of the jur

y ver dict, and the pol ling of the jury, if any.” Thatand t he cl erk ’s r

ecor d, po sits O& G, i llu str

ate t hat t he trial cour

t 1)fail ed toset off against the jury award to Hipkins a sum of $560,000, an d 2) impro perl y found O & G Management

and McClel land Creek j ointly and severall y liableto Hipkinsthough the is sue of their liability was omitted from the jury charge. We overrule each iss ue and affirm the judgment. Setoff We address the matte r of the alleg ed setoff first. Acco rding toO&G, it was entitled to same b ecause the jury found, via its answer to issue 22 of the c harge, that Ka thlee n Hipkinsh ad “made” di stributions “to or on behalf of . . . Hipkins, Cathy Burrell, and their heirs” of $560,000. 3 So, that amount shoul d have been offset ag ainst not only the $60, 000 in damages the j ury determi ned Hipkinshad suffered but also the 33% interest i n O & G Management, Ltd. it gave him, the argume nt goes. W e disagree for several reasons. First, assuming that

the $60,000 awa rd to Hipki ns was sub ject to se tof f, we are left to wonder w hat amount to offset against i t. As revealed by the wording of issue 22, the jury
was asked to determi ne the amount of distr ibutions made to t hree or more peopl e, i.e
. Hipkins, Cathy Burrell and their heirs, not simply to Hipkins. Furthermore, in concludin g3

tha t $560,00 0 had been distri buted, the factfinder di d not designate who recei ved what portion of

that sum. No r was i t 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 C athy and the heirs w hile, none, some, most, or all could have been de livered to Hipkins. Simplyput,
we do not know, and the partial record bef ore us does not address the topic. And, this is fatal to O&G since it had the burde n to provi de us with a record sufficie nt to establis h its claim o f reversi ble error. Dominguez v. Gilbert

, 48 S.W .3d 789, 794 (Tex. App.– Austin 2001, no pet.) (hol ding that the appellant hasthe burden to provide t he appellate cour t with a record sufficient to e stablish reversible error). Secon d, set off

connotes competing liabilit ies. That is, each party must have an existing debt or

cla im ag ains t theothe r w hic h may be s etoff. See Somm ers v. Concepcion , 20 S.W.3d 27, 35 (Tex. App.–Houston [14 th Dist.] 2000, pet. denied) (stating that the rig ht of seto f f allows entities “that owe each other mone y to apply their debts to each other”). Logictherefore dictates that if a party h as no claim or debt against the other, then he has nothing to offset. And, that appear s to be the cir

cumstance here, in view of the wording of jury q uestion 22. Again, the trial court asked the j ury to determine the amount of di stributionsthat had been “made”by Kathleen. The jury w as not asked to decide wha t amount of money wa s due Kathleen or any other defendant from Hipkins. Nor did it find thatHipkins ow

ed the $560,000 to any one. Similarly

absent is any

contention on appeal thatO&G had some debt or claim due from Hi pkins. In v iew of this, we see no opposing debts with which to offset against each other.4 Accordi ng to T exa s R ule of App ellate Procedu re 34 .6( c) , we “m us t pr es um e th at th e p ar tial r ep or ter ’s

record design ated by the par ti es consti tut es the entire r eco rd fo r pur pos es o f revie wing the s tated points or issues

. . . .” T EX
. R. A PP
. P. 34.6(c)( 4). Since O&G secured onl y an a bbrevi ated r eport er’ s record, per app ellate rul e 34.6( c), we mu st presume that the por ti on suppl ied was a ll that addressed t he questi on of whe ther is sue s of f act e xiste d reg ardin g the liability of O & G Ma nag em ent a s we ll as M cC lelland C reek

. 4 No Liability Finding Next, O&G contends that the trial court could not have held O & G Management and McClell and Creek joi ntly and severall y liableto Hipkins since no li ability issue submitted to the jury

included a r

eference to either

entity. We overrule the issue. Atrial court need not submit to a jury non-disputed factual matter. Star Enterprise
v. Marz e, 61 S.W .3d 449, 459 (Tex. App.– San Antonio 2001, pet. denied). Here, O& G does not assert i n its brief that the liabili ty of O & G M anagement and McC lelland Cr eek
was subject to factual disput e. Moreover, the partial reporter’s record req uested by O&G and provided u s does not address this matter one way or the other. 4 So, wit hout illustr ating thatthe topic was subject to factual dispute, w e cannot

say that

the trial court was obligated to first submit a liabili ty issueaddressing the responsibility of either entity bef ore holding each entity

liable in i ts judgment. In short, O &G failed to car ry its burden of establishing that the trial court committ ed reversible error. Accordingl y, we affirm the judgment.

Brian Quinn Chief Justice