Grimm v. Grimm, 864 S.W.2d 160 (Tex. App. 1993). · Go Syfert
Grimm v. Grimm, 864 S.W.2d 160 (Tex. App. 1993). Cases Citing This Book View Copy Cite
44 citation events (41 in the last 25 years) across 2 distinct courts.
Strongest positive: Mable Lavell Redus, Individually and as the Personal Representative of the Estate of Cubie Beatrice Redus v. JP Morgan Chase Bank, N.A. (texapp, 2024-07-23)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (rule) Mable Lavell Redus, Individually and as the Personal Representative of the Estate of Cubie Beatrice Redus v. JP Morgan Chase Bank, N.A.
Tex. App. · 2024 · confidence medium
See Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009) (complaining party bears burden of showing harmful error on appeal to obtain reversal); Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“The burden of showing reversible error is on appellant as the complaining party.”); see also Tex. R.
discussed Cited as authority (rule) Ashley Nicole Schneider, Individually, and as Representative of the Estate of Justine James Schneider, and as Next Friend of Rebecca Lynn Mignon Schneider, Emily Nicole Dean Schneider, and Clara Jean Rose Schneider, All Minor Children v. Quintana Energy Services, LLC F/K/A Quintana Energy Services, LP Quintana Energy Services Inc. And Qes Pressure Control, LLC
Tex. App. · 2024 · confidence medium
Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009) (complaining party bears burden of showing harmful error on appeal to obtain reversal); Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex. App.—Houston [14th 21 Dist.] 1993, no writ) (“The burden of showing reversible error is on appellant as the complaining party.”); see Tex. R.
discussed Cited as authority (rule) Massage Heights Franchising, LLC v. Danette Hagman
Tex. App. · 2023 · confidence medium
The same is true of MH Franchising’s complaint of improper arguments and comments by Hagman’s counsel, in addition to MH Franchising’s failure to cite the record in support of its contention that Hagman’s counsel improperly used the word “rape.” See id.; see also San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that “parties asserting error on appeal still must put forth some 17 specific argument and analysis showing that the record and the law supports their contentions”); Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex.…
discussed Cited as authority (rule) Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Services, LLC (2×) also: Cited "see"
Tex. App. · 2023 · confidence medium
App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); Canton-Carter v. Baylor College of Med., 271 S.W.3d 928, 931 (Tex. App.— Houston [14th Dist.] 2008, no pet.) (“Failure to cite legal authority or to provide substantive analysis of the legal issues presented results in waiver of the complaint.”); Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“The burden of showing reversible error is on appellant as the complaining party.”).
discussed Cited as authority (rule) Marybeth Nelson, as Adminstrator of the Estate of Rachel Hargraves, Zachary Hargraves, Wayne Hargraves and Michelle Hargraves, as Next Friends of O.H and L.H, Tony King, as Next Friend of A.K, Zachary Dulevitz as Next Friend of R.D, Christopher Lowrey and Jessica McCuiston v. H & E Equipment Services, Inc.
Tex. App. · 2023 · confidence medium
See id.; San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that “parties asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law supports their contentions”); Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“The burden of showing reversible error is on appellant as the complaining party.”); see also Canton-Carter v. Baylor College of Med., 271 S.W.3d 928, 931 (Tex. App.— Houston [14th Dist.] 2008, no pet.) (“Failure to c…
cited Cited as authority (rule) in the Estate of Gus W. Riefler, Jr.
Tex. App. · 2020 · confidence medium
Grimm v. Grimm, 864 S.W.2d 160, 161 (Tex. App.—Houston [14th Dist.] 1993, no writ).
cited Cited as authority (rule) WCW International, Inc., and Chris Wilmot v. Jerry W. Broussard, Ronnie D. LaBorde, David M. Kernion, David O. Strickland, Craig M. Borel, Kevin J. Roussel, George A. Lowery and Carlos O. Giron
Tex. App. · 2014 · confidence medium
Grimm v. Grimm, 864 S.W.2d 160, 161 (Tex. App.—Houston [14th Dist.] 1993, no writ).
cited Cited as authority (rule) WCW International, Inc., and Chris Wilmot v. Jerry W. Broussard, Ronnie D. LaBorde, David M. Kernion, David O. Strickland, Craig M. Borel, Kevin J. Roussel, George A. Lowery and Carlos O. Giron
Tex. App. · 2014 · confidence medium
Grimm v. Grimm, 864 S.W.2d 160, 161 (Tex. App.—Houston [14th Dist.] 1993, no writ).
discussed Cited as authority (rule) James R. Winn, M.D. v. Spectrum Primary Care, Inc. (2×) also: Cited "see, e.g."
Tex. App. · 2008 · confidence medium
Corp. v. CAT Contracting , Inc. , 964 S.W.2d 276, 283 (Tex. 1998) (“A party seeking to recover under a contract bears the burden of proving that all conditions precedent have been satisfied.”); see also Grimm v. Grimm , 864 S.W.2d 160, 161-62 (Tex. App.—Houston [14th Dist.] 1993, no writ). 20: Grimm , 864 S.W.2d at 161-62 (“If a plaintiff pleads generally the performance or occurrence of conditions precedent, the plaintiff need only prove performance of those conditions specifically denied by the defendant.”). 21: See Tex. R.
discussed Cited as authority (rule) James R. Winn, M.D. v. Spectrum Primary Care, Inc. (2×) also: Cited "see, e.g."
Tex. App. · 2008 · confidence medium
Thus, Appellee’s failure to specifically deny Appellee’s satisfaction of conditions 20 … Grimm, 864 S.W.2d at 161-62 (“If a plaintiff pleads generally the performance or occurrence of conditions precedent, the plaintiff need only prove performance of those conditions specifically denied by the defendant.”). 21 … See T EX.
discussed Cited as authority (rule) Forrest T. Jones and Co. v. Variable Annuity Life Insurance Company (2×)
W.D. Mo. · 2006 · confidence medium
Grimm v. Grimm, 864 S.W.2d 160, 161 (Tex.App.1993).
cited Cited as authority (rule) in the Interest of N.L.A., a Child
Tex. App. · 2005 · confidence medium
Grimm v. Grimm , 864 S.W.2d 160, 161-62 (Tex. App.—Houston [14th Dist.] 1993, no writ).
cited Cited as authority (rule) Beard Family Partnership v. Commercial Indemnity Insurance Company
Tex. App. · 2003 · confidence medium
Grimm v. Grimm , 864 S.W.2d 160, 162 (Tex. App.--Houston [14th Dist.] 1993, no writ); Trevino , 651 S.W.2d at 11 .
cited Cited as authority (rule) Beard Family Partnership v. Commercial Indemnity Insurance Company
Tex. App. · 2003 · confidence medium
Grimm v. Grimm, 864 S.W.2d 160, 162 (Tex. App.—Houston [14th Dist.] 1993, no writ); Trevino, 651 S.W.2d at 11 .
discussed Cited as authority (rule) Beard Family Partnership v. Commercial Indemnity Insurance Co. (2×)
Tex. App. · 2003 · confidence medium
Grimm v. Grimm, 864 S.W.2d 160, 162 (Tex.App.Houston [14th Dist.] 1993, no writ); Trevino, 651 S.W.2d at 11 .
cited Cited "see" Broesche v. Jacobson
Tex. App. · 2007 · signal: see · confidence high
See Grimm v. Grimm, 864 S.W.2d 160, 161-62 (Tex.App.Houston [14th Dist.] 1993, no writ).
cited Cited "see" Rebecca L. Broesche F/K/A Rebecca L. Jacobson v. John Daniel Jacobson and Texas Independent Exploration, Inc.
Tex. App. · 2007 · signal: see · confidence high
See Grimm v. Grimm , 864 S.W.2d 160 , 161 B 62 (Tex. App. C Houston [14th Dist.] 1993, no writ).
cited Cited "see" Louis Pearson and Deborah Pearson v. Patricia Fullingim D/B/A \Awesome Air & Heat Service\""
Tex. App. · 2006 · signal: see · confidence high
Corp. v. CAT Contr., Inc. , 964 S.W.2d 276, 283 (Tex. 1998); see Grimm v. Grimm , 864 S.W.2d 160, 161-62 (Tex. App.--Houston [14th Dist.] 1993, no writ).
cited Cited "see" Louis Pearson and Deborah Pearson v. Patricia Fullingim D/B/A \Awesome Air & Heat Service\""
Tex. App. · 2006 · signal: see · confidence high
Corp. v. CAT Contr., Inc., 964 S.W.2d 276, 283 (Tex. 1998); see Grimm v. Grimm, 864 S.W.2d 160, 161-62 (Tex. App.—Houston [14th Dist.] 1993, no writ).
discussed Cited "see" Mohammad Lidawi and Zeina Mohamad v. Progressive County Mutual Insurance Company
Tex. App. · 2003 · signal: see · confidence high
See Grimm v. Grimm , 864 S.W.2d 160, 161 (Tex. App. C Houston [14th Dist.] 1993, no writ). [5] Appellants’ point of error two rests in part on their belief they “have fully complied with the proof of loss requirements.” As we held under point of error one, Progressive can require separate, segregated EUOs.
discussed Cited "see" Lidawi v. Progressive County Mutual Insurance Co.
Tex. App. · 2003 · signal: see · confidence high
See Grimm v. Grimm, 864 S.W.2d 160, 161 (Tex.App.-Houston [14th Dist.] 1993, no writ). 5 Appellants’ point of error two rests in part on their belief they “have fully complied with the proof of loss requirements.” As we held under point of error one, Progressive can require separate, segregated EUOs.
cited Cited "see" S.H. v. National Convenience Stores, Inc.
Tex. App. · 1996 · signal: see · confidence high
See Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex.App.—Houston [14th Dist.] 1993, no writ); Galvin, 759 S.W.2d at 173 .
discussed Cited "see, e.g." Franci Neely v. Isaiah Derrick Allen and Kelyn Anja Allen, Individually and as Next Friend of A.R.A.
Tex. App. · 2021 · signal: see also · confidence medium
See TCPA § 27.005(b) (movant’s burden to show applicability of TCPA); see also Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“The burden of showing reversible error is on appellant as the complaining party.”).
discussed Cited "see, e.g." Illas Giannakopulos v. Bill Eris
Tex. App. · 2010 · signal: see also · confidence medium
See Wingate v. Acree , No. 14-01-00851-CV, 2003 WL 1922569 , at *6 (Tex. App.—Houston [14th Dist.] Apr. 24, 2003, no pet.) (mem. op.); Cook Composites, Inc. v. Westlake Styrene Corp. , 15 S.W.3d 124, 138 (Tex. App.—Houston [14th Dist.] 2000, pet. dism’d); see also Grimm v. Grimm , 864 S.W.2d 160, 162 (Tex. App.—Houston [14th Dist.] 1993, no writ) (explaining generally that when a plaintiff fails to plead performance of conditions precedent she may nevertheless obtain judgment on her claim if she proves all essential elements of the claim, including the performance of any conditions pre…
Retrieving the full opinion text from the archive…
John Halladay GRIMM, Appellant,
v.
Patricia Ann GRIMM, Appellee
B14-91-01085-CV.
Court of Appeals of Texas.
Oct 14, 1993.
864 S.W.2d 160
1993 Tex. App. LEXIS 2759
1993 WL 406325
Harry Herzog, Houston, for appellant., Keith Remels, Houston, for appellee.
Murphy, Sears, Draughn.
Cited by 29 opinions  |  Published

OPINION

SEARS, Justice.

John Halladay Grimm appeals from a judgment awarding actual damages and attorney’s fees on appellee’s cause of action for breach of a marital and property settlement agreement. Appellant limited his appeal to the issue of whether appellee pleaded and proved the occurrence of all conditions precedent to enforcement of the agreement. Appellant also filed a partial statement of facts containing the testimony of one witness and the objections to the charge. We affirm.

Appellee filed suit alleging breach of a marital and property settlement agreement signed by the parties on December 7, 1979. This agreement was incorporated by reference into the Decree of Divorce entered on December 10, 1979. [1] Specifically, appellee claimed that appellant had breached the agreement by refusing to pay the costs of defending appellee against a deficiency in federal income tax liability for the years 1974, and 1977-79. Appellee also claimed that appellant did not pay the tax deficiency for those years as assessed by the Internal Revenue Service, and for 1979 as determined by the United States Tax court. Appellee alleged that these deficiencies amounted to more than $650,000.00.

Trial was to a jury. Because appellant has brought forward only the testimony of one witness, we are unable to elaborate on the testimony presented at trial. Following the conclusion of evidence, the jury found that appellant had failed to comply with the agreement regarding tax liability, and awarded appellee $385,411.94 in actual damages and $23,359.06 in attorney’s fees. The trial court entered judgment on the verdict.

In his first point of error, appellant contends the trial court erred in granting judgment for appellee since the appellee failed to plead that the conditions precedent to enforcement of the marital and property settlement agreement had been met. The agreement contained the following clause:

Enforceability and Consideration
1.01. If the contemplated divorce is not granted on Monday, December 10, 1979, this Agreement shall be null and void and of no further force and effect. If the contemplated divorce is granted on such date and this Agreement is approved by the court, then this Agreement shall survive the action for divorce and decree of divorce and shall forever be binding and conclusive on the Parties, and independent legal action may be brought to enforce the terms of the Agreement by either Husband or Wife until it shall have been fully satisfied and performed, [emphasis added].

Appellant argues that the italicized portions constitute two conditions precedent to enforceability of the agreement. These conditions are: (1) that the contemplated divorce be granted on December 10, 1979; and (2) that the agreement be approved by the court. Appellant maintains that since appellee failed to allege in her petition that all conditions precedent to performance had been met, it was error to enter judgment in her favor.

If a contract contains conditions precedent, there must be some allegation by the plaintiff that the conditions have been met. See Texas Int’l Airlines v. Wits Air Freight, 608 S.W.2d 828, 831 (Tex.Civ.App.—Dallas 1980, no writ). Performance of any condition precedent is an essential element of the plaintiffs case. Trevino v. Allstate Ins. Co., 651 S.W.2d 8,11 (Tex.App.—Dallas 1983,[*162] writ ref'd n.r.e.). Under Rule 64, if a plaintiff pleads generally the performance or occurrence of conditions precedent, the plaintiff need only prove performance of those conditions specifically denied by the defendant. Tex.R.Civ.P. 54. However, if a plaintiff fails to plead performance of the conditions precedent, she may nevertheless obtain judgment on her cause of action if she meets her burden of proving all essential elements of the cause, including the performance of any conditions precedent. Cf. Trevino, 661 S.W.2d at 12.

Appellee’s amended petition does include attachments which clearly reveal that the conditions precedent to performance were met. The conditions precedent are found in the marital and property settlement agreement, which is attached as exhibit “B” to the petition. The divorce decree, attached as exhibit “A” to the petition, shows compliance with those conditions because the date of entry of the decree is December 10, 1979, and the decree approves the agreement in the following statement:

IT IS DECREED that the agreement of Petitioner and Respondent for the division of their estate be and is approved and incorporated into this decree by reference as if it were recited herein verbatim.

Furthermore, appellant answered by general denial and did not allege failure of consideration or that conditions precedent had not been met.

We hold that the documents attached to the petition were part of the pleading and also established the conditions precedent. The attached divorce decree shows that the decree was granted and entered on December 10, 1979, and it further shows that the agreement of the parties was approved and incorporated into the divorce decree. Appellant argues that the failure to -plead the occurrence of conditions precedent to performance is fundamental error, and that proof of the occurrence of the conditions absent any pleading is insufficient to support the judgment. No case law supports appellant’s assertion [2] and we find no merit to this argument. Appellant also questions whether the divorce decree entered on December 10,1979 was the one “contemplated.” We note there is no allegation or proof that more than one divorce was “contemplated” by the parties, or that more than one “agreement” was executed by the parties.

To determine whether appellee proved the occurrence of the two conditions precedent, we look to the statement of facts. This resolves appellant’s second and third points of error, in which appellant claims the trial court erred in granting judgment for appellee because there was no evidence, or insufficient evidence, of compliance with the conditions precedent to performance of the agreement. Appellant, however, has brought forward a limited record. The statement of facts contains only the testimony of one witness and the objections to the jury charge. More than one person testified at trial; therefore, there was testimony and evidence presented to the court and jury that is not a part of the record on appeal. We have no way of knowing the nature or content of the excluded testimony, therefore, we cannot say it is insufficient.

The Texas Supreme Court has held that when an appellant challenges the legal or factual sufficiency of the evidence supporting a trial court finding, the appellant cannot discharge his burden of showing error in the absence of a complete or an agreed statement of facts. Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968). Rule 60(d) of the Texas Rules of Appellate Procedure places the burden on the appellant to present a sufficient record to show error on appeal. Tex.R.App.P. 50(d).

Appellant claims the limited record is sufficient because: (1) his motion to file a limited statement of facts complies with Rule 53(d) entitling him to a presumption that nothing omitted from the record is relevant to dispo[*163] sition of the appeal; (2) the testimony in the limited statement of facts is the only evidence appellee claimed was proof of the occurrence of the conditions; and (3) appellee could have brought forward any other portions of the record that established the occurrence of the conditions. We find no merit to any of appellant’s arguments.

The presumption afforded by compliance with Rule 53(d) only means that providing a partial statement of facts does not automatically defeat appellant’s point of error; it does not provide that anything appellant omits can be presumed to sustain appellant’s point of error. Galvin v. Gulf Oil Corp., 759 S.W.2d 167, 172 (Tex.App.—Dallas 1988, writ denied). The burden of showing reversible error is on appellant as the complaining party. Tex.R.App.P. 81(b)(1). If appellant wishes to show that there was no evidence or insufficient evidence of compliance with the conditions precedent, he must present the entire record. Englander, 428 S.W.2d at 807. If we were to require appellee to present additional portions of the record, we would be shifting the burden of proof on appeal to appellee. See Galvin, 759 S.W.2d at 173.

Because appellant has not brought forth a complete record, appellant has not presented a sufficient record to show error by the trial court. We overrule all points of error.

We affirm the trial court’s judgment.

1

. In oral argument, appellant claimed that the divorce decree, incorporating the marital and property settlement agreement, was not attached to appellee’s first amended original petition. The transcript, however, contains appellee’s amended petition, referencing the decree and the agreement attached as exhibits, and the two exhibits are attached.

2

. Appellant cites three cases in support of his assertion that failure to plead occurrence of the conditions precedent is fatal: Stoner v. Thompson, 578 S.W.2d 679 (Tex.1979); Texas Int'l Airlines v. Wits Air Freight, 608 S.W.2d 828 (Tex.Civ.App.—Dallas 1980, no writ); and Great Southwest Life Ins. Co. v. Camp, 464 S.W.2d 702 (Tex.Civ.App.—Fort Worth 1971, no writ). None of these cases hold that absence of pleading of compliance with conditions precedent, even when there is trial by consent, requires reversal.