stating that representations to others, or “holding out,” may be established by parties’ conduct and actions that are sufficient to constitute representation to public that marriage exists
How later courts described this case
- stating that representations to others, or “holding out,” may be established by parties’ conduct and actions that are sufficient to constitute representation to public that marriage exists
- noting that even by putative wife’s testimony, marriage was “largely a secret marriage” only known to few relatives and acquaintances of putative wife
- holding conduct of parties is relevant; acknowledging representations as spouses relevant to analysis but not required
- concluding evidence of cohabitation sufficient when man only spent about 100 days with woman in two years
Written by the judges who cited it.
The opinion
OPINION ON MOTION FOR REHEARING
On motion for rehearing, David Winfield argues that, once we sustained point one, we were required to render judgment in his favor, not remand for retrial. Winfield contends when a cause of action is submitted to the jury with a missing element, and the party who did not have the burden objects that the element is missing, the trial judge may not deem the issue found in favor of the judgment. We agree. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829, 834 (Tex.1967). Winfield goes on to argue that when a disputed and essential issue is omitted over the objection of a party, the appellate court must find that the party waived that element and by so doing did not meet the burden placed on him by law. Again, we agree. Glendon Invest., Inc. v. Brooks, 748 S.W.2d 465, 468 (Tex.App.—Houston [1st Dist.] 1988, writ denied); Dittberner v. Bell, 558 S.W.2d 527, 534 (Tex.App.—Amarillo 1977, writ ref'd n.r.e.). Winfield claims that when an issue is submitted with a missing element, and the party who did not have the burden of proof objects, the appellate court must reverse and render, not reverse and remand for new trial. Once again, we agree. Physicians and Surgeons Gen. Hosp. v. Koblizek, 752 S.W.2d 657, 660 (Tex.App.—Corpus Christi 1988, writ denied); Cameron County v. Velasquez, 668 S.W.2d 776, 781 (Tex.App.—Corpus Christi 1984, writ ref’d n.r.e.); see also Walker v. Comdata Network, Inc., 730 S.W.2d 769,771 (Tex.App.—Dallas 1987, writ granted). Winfield claims that “in Texas” was a missing and disputed element that cannot be deemed against him, and on which we must render judgment for him. On this, we do not agree.
We hold that the omission of the phrase "in Texas” was not the omission of an entire element. The entire element was that the parties represented to others in Texas that they were married. We hold that the element was submitted, albeit in a *658 defective condition. The cases cited by Winfield do not hold that when a party objects to a defective element (as opposed to a missing element), we must render. In each of the cases, an essential element was omitted; here, an essential element was merely defective.
In Koblizek , a premise liability case, the plaintiff did not request an issue asking if the floor presented an unreasonable risk of harm. Koblizek, 752 S.W.2d at 659 . In Glendon Investments, a suit to establish the liability of an undisclosed agent, the plaintiff did not request an issue asking if the agent failed to disclose his agency. This Court said no other issue was sufficient to constitute a submission of disclosure. Glendon Investments, 748 S.W.2d at 467 . In Walker , a suit for fraud, the plaintiff did not request an issue asking if the officers of the corporation knew at the time they made their representations that those representation were false. Walker, 730 S.W.2d at 771 . In Velasquez , a personal injury suit for damages under Texas Tort Claims Act, 1 the plaintiff did not submit an element asking if the County owned the land on which the injury occurred. Velasquez, 668 S.W.2d at 781 . In Dittbemer, a suit on a note, the plaintiff did not submit an issue on defendant’s knowledge of the falsity of his representation. Dittberner, 558 S.W.2d at 534 .
None of the cases cited by Winfield supports his conclusion that a defective question which was submitted over an objection, requires that we render of judgment in his favor.
We overrule Winfield’s motion for rehearing.
. Tex.Prac. & Rem.Code § 101.002 (Vernon Supp. 1986)