ACCEPTED 01-14-00931-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 5/7/2015 2:50:05 PM CHRISTOPHER PRINE CLERK
01-14-00931-CV
FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST DISTRICT OF TEXAS 5/7/2015 2:50:05 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk
COUNTRY TITLE, L.L.C. Appellant, v.
MORENIKE JAIYEOBA Appellee.
On Appeal from the 268th Judicial District of Fort Bend County, Texas Cause No. 07-DCV-159705
APPELLANT’S BRIEF
LECLAIRRYAN James J. McConn, Jr. james.mcconn@leclairryan.com 1233 West Loop South, Suite 1000 Houston, Texas 77027 Telephone: 713-654-1111 Facsimile: 713-650-0027 ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED IDENTITY OF THE PARTIES
Appellant Counsel for Appellant Country Title, L.L.C. LeClairRyan James J. McConn, Jr. Bar No. 13439700 james.mcconn@leclairryan.com 1233 West Loop South, Suite 1000 Houston, Texas 77027 Telephone: 713-654-1111 Facsimile: 713-650-0027
Appellee Attorney for Appellee Morenike Jaiyeoba Teltschik-Grubbs PLLC L.T. Butch Bradt Bar No. 02841600 14015 Southwest Freeway Suite 4 Sugar Land, Texas 77478 Telephone: 281-201-0700 Facsimile: 281-201-1202
i TABLE OF CONTENTS
IDENTITY OF THE PARTIES .................................................................. i TABLE OF CONTENTS ........................................................................... ii TABLE OF AUTHORITIES .....................................................................iii STATEMENT OF THE CASE ................................................................. vi STATEMENT REGARDING ORAL ARGUMENT ................................ vii STATEMENT REGARDING THE RECORD ......................................... vii ISSUES PRESENTED ........................................................................... viii STATEMENT OF FACTS ......................................................................... 2 SUMMARY OF THE ARGUMENT ........................................................ 12 ARGUMENT ........................................................................................... 13 I. Standards of Review. ............................................................ 13 II. The Trial Court erred in entering judgment on Plaintiff’s gross-negligence claim. (Issue #1)........................ 14 A. There can be no finding of gross-negligence without an accompanying finding of ordinary negligence. ..................................................... 14 B. Plaintiff’s ordinary negligence claim was barred by the economic-loss rule. ................................ 15 C. Plaintiff waived her negligence claim by failing to move for a directed verdict or submit instructions on the issue.................................. 20 III. The Trial Court erred in allowing Plaintiff to introduce evidence of settlement negotiations. (Issue #2.) .............................................................................. 24 IV. The Trial Court erred in entering judgment on the jury’s award for credit-reputation damages. .................. 28 PRAYER .................................................................................................. 33 CERTIFICATE OF SERVICE................................................................. 34 CERTIFICATE OF COMPLIANCE ........................................................ 35
ii TABLE OF AUTHORITIES
Cases Arbor Windsor Court, Ltd. v. Weekley Homes, LP, 14-13- 00480-CV, 2015 WL 1245548 (Tex. App.—Houston [14th Dist.] Mar. 17, 2015, no. pet. h.) .......................................................... 13 Bank of Tex. v. VR Electric, Inc., 276 S.W.3d 671 (Tex.App.- Houston [1st Dist.] 2008, pet. denied) ................................................. 23 Barzoukas v. Found. Design, Ltd., 363 S.W.3d 829 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) ................................... 16 Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839 (Tex. App.—Austin 2003, no pet.) .................................... 24 Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716 (Tex. 2014) ........................................................................ 16 Citizens Nat'l Bank v. Allen Rae Investments, Inc., 142 S.W.3d 459 (Tex. App.—Fort Worth 2004, no pet.)............................. 31 Doe v. Messina, 349 S.W.3d 797 (Tex.App.–Houston [14th Dist.] 2011, pet. denied) ....................................................................... 15 EMC Mortgage Corp. v. Jones, 252 S.W.3d 857 (Tex. App. Dallas [5th Dist.] 2008, no pet.)........................................................... 17 First Franklin Fin. Corp. v. United Title Co., Inc., 08-CV- 01866-PAB-MEH, 2009 WL 3698526 (D. Colo. Nov. 5, 2009) ......................................................................................... 17, 18, 19 Gary E. Patterson & Associates, P.C. v. Holub, 264 S.W.3d 180 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) ...................... 20 Isenhower v. State, 261 S.W.3d 168 (Tex. App.—Houston [14th Dist.] 2008, no pet.) .................................................................... 13 Jones v. Blume, 196 S.W.3d 440 (Tex. App.—Dallas 2006) ................... 26 Ju v. Mark, 1:06CV320 (JCC), 2006 WL 1647266 (E.D. Va. June 13, 2006) .......................................................................... 17, 18, 19 LAN/STV v. Martin K. Eby Const. Co., Inc., 435 S.W.3d 234 (Tex. 2014). ........................................................................................... 15
iii LeBlanc v. Lange, 365 S.W.3d 70 (Tex. App.—Houston [1st Dist.] 2011, no pet.) .............................................................................. 27 Lehman Bros. Holdings, Inc. v. Hirota, 806CV2030T24MSS, 2007 WL 1471690 (M.D. Fla. May 21, 2007) ................................. 18, 19 Lerma v. Border Demolition & Envtl., Inc. ___ S.W.3d ___, 08-12-00105-CV, 2015 WL 737989 (Tex. App.—El Paso Feb. 20, 2015, pet. filed)....................................................................... 25 MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51 (Tex. App.—San Antonio 2005, pet. denied) .................................................................................................. 25 Murphy v. Gruber, 241 S.W.3d 689 (Tex. App.—Dallas 2007, pet. denied) ........................................................................................... 22 Nowzaradan v. Ryans, 347 S.W.3d 734 (Tex.App.–Houston [14th Dist.] 2011, no pet.) .............................................................. 14, 15 Physicians & Surgeons Gen. Hosp. v. Koblizek, 752 S.W.2d 657 (Tex. App.—Corpus Christi 1988, writ denied) ............................ 22 Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189 (Tex. 1998) ............................................................................................ 29 Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011) ..................................................................................... 16 St. Paul Surplus Lines Ins. Co., Inc. v. Dal-Worth Tank Co., Inc., 974 S.W.2d 51 (Tex. 1998) ..................................................... 29, 30 Stauffacher v. Coaduum Capital Fund 1, LLC, 344 S.W.3d 584 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) ............ 17, 21 Taylor v. Alonso, Cersonsky & Garcia, P.C., 395 S.W.3d 178 (Tex.App.– Houston [1st Dist.] 2012, pet. denied) .............................. 15 Texas Mut. Ins. Co. v. Morris, 287 S.W.3d 401 (Tex. App.— Houston [14th Dist.] 2009), rev'd on unrelated grounds, 383 S.W.3d 146 (Tex. 2012) ................................................................. 31 THPD, Inc. v. Cont'l Imports, Inc., 260 S.W.3d 593 (Tex. App.—Austin 2008, no pet.) ................................................................. 23
iv Victory Park Mobile Home Park v. Booher, 05-12-01057-CV, 2014 WL 1017512 (Tex. App.—Dallas Feb. 26, 2014, no pet.)....................................................................................................... 20 Yeng v. Zou, 407 S.W.3d 485 (Tex. App.—Houston [14th Dist.] 2013, no pet.) .............................................................................. 14 Other Authorities Restatement (Third) of Torts, Tent. Draft 1 § 5 cmt. A.......................... 16 Rules Tex. R. Civ. P. 279 ................................................................................... 23 Tex. R. Evid. 408 ..................................................................................... 24
v STATEMENT OF THE CASE
Nature of the Case Plaintiff contracted to purchase a home and and Parties: hired Country Title to serve as the escrow agent. Country Title failed to record the deeds properly and failed to transfer the loan payoff to the seller’s mortgagee. The seller’s mortgagee, in turn, foreclosed on the property. Plaintiff sued Country Title for breach of contract, negligence, gross negligence, and breach of fiduciary duty.
Trial Court: The Honorable Brady G. Elliott, 268th Judicial District Court of Fort Bend County, Texas.
Trial Court The parties stipulated to a breach of contract Disposition by Country Title, LLC, to repayment of closing costs of $1,300, and to lost rental of $1,800. The matter was tried to a jury. At the close of evidence, the trial court directed a verdict on Plaintiff’s breach-of-fiduciary-duty and negligence claims. The jury returned a verdict of $30,000 in credit-reputation damage. The jury also found that Country Title had been grossly negligent, necessitating a further trial on exemplary damages. After a separate trial, the jury returned a verdict of $100,000 for exemplary damages. The trial court entered final judgment for (1) actual damages of $32,800.00, (2) pre-judgment interest of $13,102.03, and (3) punitive damages of $100,000.
vi STATEMENT REGARDING ORAL ARGUMENT
Appellant respectfully requests that this Court grant oral
argument, which it believes will assist the Court in evaluating the legal
issues presented in this appeal.
STATEMENT REGARDING THE RECORD
The Reporters Record comprises eight volumes, which Appellant
will refer to as (1 RR) through (8 RR), respectively. Volume 8 of the
Reporter’s Record contains all exhibits that were admitted at trial. As
it is not paginated, Appellant will cite trial exhibits by exhibit number.
The Clerk’s Record comprises a single volume, which Appellant will
refer to as (CR). All references to documents in the Appendices will be
referenced as (App.)
vii ISSUES PRESENTED
Issue 1: Whether the Trial Court erred in entering judgment on the Jury’s award of $100,000 in punitive damages for gross negligence?
Sub-Issue A: Whether the economic-loss rule barred Plaintiff’s gross-negligence claim, where the allegedly breached duties were exclusively contractual in origin?
Sub-Issue B: Whether Plaintiff waived her negligence and gross-negligence claims by failing to request a ordinary-negligence charge before the jury retired to consider Country Title’s liability for gross negligence?
Issue 2: Whether the Trial Court erred in allowing Plaintiff to introduce evidence of settlement discussions, including evidence that Country Title had requested a release and indemnity from Plaintiff as part of a proposed settlement?
Issue 3: Whether the evidence was sufficient to support the jury’s award of $30,000 in credit-reputation damages where Plaintiff presented no evidence that the damage to her credit reputation caused her any financial injury and, a fortiori, presented no evidence to quantify that injury?
viii 01-14-00931-CV
IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
COUNTRY TITLE, L.L.C. Appellant, v.
MORENIKE JAIYEOBA Appellee.
On Appeal from the 268th Judicial District of Fort Bend County, Texas Cause No. 07-DCV-159705
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
Appellant Country Title, L.L.C. (“Country Title”), submits this
Appellant’s Brief and respectfully requests that this Honorable Court
reverse the judgment of the trial court and set aside the jury’s award of
$100,000 for exemplary damages and $30,000 for credit-reputation
damages.
1 STATEMENT OF FACTS
In this action, Plaintiff Morenike Jaiyeoba (“Plaintiff”) alleges that
Country Title, acting as escrow agent in a real estate transaction, failed
to discharge its obligation to record certain deeds and to transfer
certain funds. (CR 8-12.)
The property—a residential dwelling at 1626 Brookstone Lane in
Sugar Land, Texas (“Property”)—was formerly owned by Ayodeji and
Folashade Alli, who had rented it out to tenants (3 RR at 122:20; Pl.’s
Ex. 2.) In mid-2005, the Allis were seriously delinquent in their
payments to their lender and mortgagee, World Savings Bank, FSB
(“World Savings”). (3 RR at 123:21-124:3, 125:5-8.)
Plaintiff was interested in purchasing the Property as an
investment. (3 RR at 121:11-18; 4 RR at 48:17-20.) The Allis agreed to
sell it to her for $190,000. (Pl.’s Ex. 2.) Plaintiff borrowed money from
EMC Mortgage Corporation (“EMC”), to finance the purchase. (3 RR at
126:3-10.) Closing occurred on August 22, 2005. (Pl’s Ex. 2.)
Defendant Country Title served as title insurer and escrow agent
for the transaction. (CR 8-12; 4 RR at 391-5.) In its role as escrow
agent, Country Title agreed, among other things, to record the
2 necessary deeds and to deliver a payoff amount of $134,943.21 to the
Allis’ lender, World Savings. (Pl.’s Ex. 2; Pl.’s Ex. 6.)
This did not happen. (Pl.’s Ex. 6; 3 RR at 134:4-7.) Although
Country Title sent the appropriate documents to the Fort Bend County
courthouse for recording, the courthouse refused to accept them. (5 RR
at 49:10-13.) And although Country Title attempted to wire the funds
to World Savings, the wire did not go through. (3 RR at 129:16-17, 5 RR
at 35:6-24; Pl.’s Ex. 6; Def.’s Ex. 10.)
The Allis’ former tenants remained in the Property after the
closing, with Plaintiff taking over the lease and accepting rental
payments from them. (3 RR at 129:24-130:8.) Meanwhile, however,
World Bank neither received the payoff amount for the Allis’ loan nor
received any further monthly payments on that loan. (Pl.’s Ex. 14.)
Unaware of the Allis’ sale to Plaintiff, World Bank instituted
foreclosure. (Pl.’s Ex. 6 & 14.) On December 6, 2005, World Bank
purchased the Property for itself at the foreclosure sale. (Pl.’s Ex. 6.)
A week after acquiring the Property, World Bank evicted the
tenants. (3 RR at 130:9-131:9; Pl.’s Ex. 4.) When the tenants alerted
Plaintiff to this, Plaintiff asked Country Title why they were being
3 evicted. (3 RR at 130:17-131:21.) Only then realizing its error, Country
Title recorded the warranty deed from the Allis and the deeds of trust
for Plaintiff’s lenders. (5 RR at 6:23-7:21) This was too late, and the
recordation complicated matters further. As noted above, the Property
already had been sold to World Savings. Having acquired the property,
World Savings was now trying to find a buyer. (Pl.’s Ex. 22.) The late
filing of the deeds—dead letters because neither Plaintiff nor the Allis
had title—impeded World Savings’ efforts to sell the home. (Id.) To
remove the cloud on the Property’s title, World Savings filed a quiet
title action against Plaintiff. (Pl.’s Ex. 26.)
Around this time, Plaintiff retained counsel, who demanded that
Country Title deliver clear title to the Property. (Pl.’s Ex. 8.) To that
end, Country Title contacted World Savings and offered to pay the
$134,943.21 it still held in escrow (representing the payoff amount on
the Allis’ loan). (Pl.’s Ex. 6.) But by then World Bank was entertaining
other offers for the Property for significantly more than that—around
$192,500. (Pl.’s Ex. 11; 5 RR at 18:7-11.) Country Title failed to acquire
the property from World Savings. (5 RR at 18:13-14.) Because the
transaction did not close, Country Title paid over $198,000 to Plaintiff’s
4 lender, EMC, to satisfy the loans that she had taken out to pay for the
Property. (4 RR at 52:5-8; 5 RR at 17:14-16; Pl. Ex. 39, 41.) So
although Plaintiff no longer owned the Property; she did not owe any
money on it, either.
Before Country Title paid off these loans, however, Plaintiff failed
to make certain of her monthly $1600 payments to EMC. (3 RR at
136:6-138:16.) This was because, after World Savings evicted her
tenants, she no longer was receiving rent payments. (3 RR at 137:23-
138:16.) Plaintiff’s repayment delinquency was reported to credit-
rating organizations. (Pl.’s Ex. 34.) At trial, Plaintiff claimed that
these missed payments impaired her credit reputation and prevented
her from obtaining a $197,000 loan. (Tr. 4 RR at 41:12-45:24.)
During the course of these events, Plaintiff’s counsel and Country
Title’s counsel exchanged correspondence in an unsuccessful attempt
resolve the matter. (Pl.’s Ex. 8, 11, 17, and 20.) One of the issues was
indemnification. (5 RR at 15:21-24.) As part of a settlement, Country
Title wanted Plaintiff to release it from all claims and to indemnify
Country Title against any future claims that might be brought against
5 it arising out of the incident. Id. The parties were unable to reach an
agreement, leading to the present litigation.
Evidence of Settlement Negotiations at Trial
Plaintiff’s Amended Petition asserts, inter alia, claims for breach
of contract, breach of fiduciary duty, negligence, and gross negligence.
(CR at 52.) The case was tried in late July 2014 on the issues of
negligence, gross negligence, breach of fiduciary duty, and damages.
Before trial, Country Title moved to exclude evidence of its
negotiations with Plaintiff to resolve the matter. (CR at 205.) Plaintiff
opposed this motion, arguing that the evidence was germane to her
breach-of-fiduciary-duty claim. In particular, Plaintiff claimed that:
(1) Country Title’s status as closing agent meant that it owed Plaintiff a
fiduciary duty, and (2) as a fiduciary, Country Title could not ask for
indemnity when negotiating a resolution to the dispute. (1 RR at 48:14-
52:1.) The Trial Court reserved ruling on the motion in limine, stating
that it wanted to “see how these facts play out” at trial. (1 RR at 52:22-
53:11; CR at 212.) At trial, it allowed Plaintiff to introduce extensive
evidence of the negotiations between her counsel and counsel for
Country Title. This included the following exhibits:
6 Pl’s Ex. 8: A January 27, 2006 demand letter from Plaintiff’s counsel, Steven Belzer, to Country Title. The letter discusses Country Title’s efforts to resolve the matter to date and demands additional action.
Pl’s Ex. 17: A February 14, 2006 letter from Country Title’s counsel, Jim McConn, to Belzer requesting information from Plaintiff to facilitate transfer of title to her.
Pl’s Ex. 20: A February 22, 2006 letter from Belzer to Country Title’s counsel, Jim McConn, demanding that Country Title purchase the Property from World Savings and demanding compensation for lost rental and attorney’s fees.
Plaintiff also introduced live testimony concerning the settlement
negotiations. She elicited testimony from Thomas Berry, Country
Title’s chief operating officer, that—as part of the negotiations to have
Country Title purchase the Property from World Savings—Country
Title asked for a release from Plaintiff:
Q Mr. Berry, you know that Country Title also requested a release from Ms. Jaiyeoba before it would purchase the property from World Savings Bank, don’t you
A I know we requested a release. I do not believe it was conditional.
(5 RR at 16:21-17:1.) Later, Plaintiff’s counsel asked Berry whether
Country Title requested indemnity from Plaintiff in order to resolve the
matter:
7 Q: Do you know why Country Title asked for an indemnification from Ms. Jaiyeoba?
A Specifically, I do not.
Q But to your knowledge, they asked for one, didn’t they?
A To my knowledge, we did.
Q And a release?
A And a release, correct.
(5 RR at 19:3-10.) Again, the request for a release and indemnity
occurred during negotiations between Plaintiff’s counsel and Defense
counsel about how to resolve the matter.
Plaintiff’s counsel highlighted these facts during closing
argument. Thus, he used the request for a release and indemnity—a
common request in settlement negotiations—to portray Country Title as
indifferent to Plaintiff’s plight:
Country Title doesn’t care. Country Title wants a release. They want an indemnification. They want to be protected from Mr. Alli. They want Ms. Jaiyeoba to protect them, to reimburse their costs.
(5 RR at 72:13-16.) He repeats this later in his argument:
[N]ot only do they do it wrong up front, they do it wrong at the end. They go and record the deed, get Ms. Jaiyeoba sued. And, okay, so it’s going to damage her credit. We want a release and indemnification to—they’re really not entitled to.
8 (5 RR at 74:23-75:3.) And again in his rebuttal argument:
They’re a title company, and they know at the title company World Savings Bank is going to sue. They know that the tenant’s leaving, and they don’t do anything to stop it except ask for a release and indemnification.
(5 RR at 86:19-23.) The settlement negotiations were, in short, a key
part of Plaintiff’s jury arguments.
Findings of the Trial Court and the Jury
At the close of evidence, Plaintiff moved for a directed verdict on
her claim for breach of fiduciary duty. (5 RR at 51:8-11.) As grounds
for this motion, Plaintiff’s counsel cited the facts that (1) Country Title
had not properly recorded the deeds or transferred the funds to World
Savings, and (2) Country Title “ask[ed] for a release and an
indemnification,” thereby “putting their self-interest ahead of Ms.
Jaiyeoba’s.” (5 RR at 56:9-11.) The Trial Court granted Plaintiff’s
motion. (5 RR at 58:10.)
The Trial Court’s proposed charge included an instruction on gross
negligence but no corresponding instruction on ordinary negligence.
(5 RR at 62:2-5.) Country Title objected to this, arguing that there
could be no finding of gross negligence without a predicate finding of
ordinary negligence. (Id.) Plaintiff, however, argued that breach of
9 fiduciary duty could stand in for ordinary negligence as the basis for a
gross negligence finding: “the breach of fiduciary duty is sufficient to get
punitive damages.” (5 RR at 62:7-15.) The Trial Court agreed with
Plaintiff, and instructed the jury on gross negligence without first
giving an ordinary negligence instruction. (App. 2.)
Country Title also objected to Plaintiff’s instruction on credit-
reputation damages. It reiterated its pre-trial motion objection, which
noted that Plaintiff had not shown any documented loss resulting from
impaired credit. (5 RR at 61:19-20; CR 54-56.) And Country Title
objected to the content of Plaintiff’s credit-reputation instruction. (5 RR
61:1-8.) The Trial Court overruled these objections.
The charge to the jury asked them to answer three questions:
(1) the amount, if any, of Plaintiff’s credit-reputation damages,
(2) whether Country Title had acted with malice, and (3) whether
Country Title had acted with gross negligence. (App. 2.) The jury
awarded $30,000 in credit-reputation damages and found gross
negligence, but it did not find malice. (App. 2.) The matter then
proceeded to a trial on exemplary damages for gross negligence.
10 At this point, Country Title reiterated its objection to the jury’s
having been instructed on the gross negligence issue without a
corresponding negligence instruction. (5 RR at 94:23-24.; 6 RR at 9:7-
11.) Although the jury already had found liability on gross negligence,
the Trial Court formally reopened the evidence on negligence and found
that Plaintiff had established negligence as a matter of law. (6 RR at
17:9-10, 20:23-21:4.) Country Title objected to this, arguing that (1) it
was inappropriate to reopen evidence on that issue, and (2) any
negligence claim would be barred by the economic-loss rule. (6 RR at
16:10-18, 18:23-25.) After a trial on exemplary damages, the jury
awarded Plaintiff an additional $100,000. (App. 3.) The Trial Court
entered judgment on the jury’s verdicts. (App. 1.)
This appeal followed.
11 SUMMARY OF THE ARGUMENT
The Trial Court erred in entering judgment on the jury’s award of
$100,000 in exemplary damages because Plaintiff’s gross negligence
claim was barred by the economic-loss rule. This doctrine bars
negligence claims—and, hence, gross-negligence claims—where the
duties alleged to have been breached arise solely out of a contract
between the parties. In the present case, Plaintiff asserts that Country
Title breached its duty to record documents and transfer funds relating
to the sale of the Property. Those duties, however, arose solely out of
the parties’ oral contract for Country Title to perform closing services.
Accordingly, the breaches cannot support a gross negligence claim. So
the jury’s award of $100,000 for exemplary damages must be set aside.
The Trial Court further erred in allowing Plaintiff to introduce
evidence of settlement discussions between the parties—including
Country Title’s request for indemnity and a release. Under Rule of
Evidence 408, those discussions were inadmissible. The repeated
introduction of this evidence was prejudicial, as it formed one of the
cornerstones of Plaintiff’s closing arguments. By allowing evidence of
12 settlement negotiations into evidence, the Trial Court committed
reversible error.
Finally, the Trial Court erred in allowing the issue of credit-
reputation damages go to the jury. Although there was some evidence
that Plaintiff’ was later unable to obtain a loan, there was no evidence
that (1) the loan denial was caused by Country Title’s actions, or
(2) Plaintiff was economically harmed by being unable to obtain the
loan in question. Plaintiff’s evidence was insufficient as a matter of law
to support an award of damages for injury to credit reputation.
ARGUMENT
I. Standards of Review.
Issue #1 presents a pure question of law, which this Court reviews
de novo. Arbor Windsor Court, Ltd. v. Weekley Homes, LP, 14-13-00480-
CV, 2015 WL 1245548, at *3 (Tex. App.—Houston [14th Dist.] Mar. 17,
2015, no. pet. h.). Issue #2 concerns the admissibility of evidence, which
this Court reviews for abuse of discretion. Isenhower v. State, 261
S.W.3d 168, 178 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Issue
#3 concerns the sufficiency of evidence, during the consideration of
which this Court views the facts in the light most favorable to the
challenged finding and indulges every reasonable inference that would
13 support it. Yeng v. Zou, 407 S.W.3d 485, 489 (Tex. App.—Houston [14th
Dist.] 2013, no pet.)
II. The Trial Court erred in entering judgment on Plaintiff’s gross-negligence claim. (Issue #1)
The jury’s $100,000 exemplary-damages verdict was predicated on
its finding of gross negligence. But, as detailed below, Plaintiff’s gross
negligence claim fails as a matter of law. Thus, the Trial Court should
not have submitted the issue of exemplary damages to the jury and
should not have entered judgment on the jury’s $100,000 in exemplary
damages.
A. There can be no finding of gross-negligence without an accompanying finding of ordinary negligence.
Plaintiff’s gross-negligence claim fails because it lacks a necessary
predicate—Plaintiff does not have a viable underlying claim for
ordinary negligence. “‘[N]egligence and gross negligence are not
separable causes of action but are inextricably entwined.’”
Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex.App.–Houston [14th
Dist.] 2011, no pet.) (quoting Ford Motor Co v. Miles, 967 S.W.2d 377,
390 (Tex. 1998)). Gross negligence is not a freestanding claim; it is a
measure of the extent to which the defendant breached the duty of care.
14 Id. at 740. It follows that a gross negligence claim cannot stand in the
absence of an established claim for ordinary negligence. See Taylor v.
Alonso, Cersonsky & Garcia, P.C., 395 S.W.3d 178 (Tex.App.– Houston
[1st Dist.] 2012, pet. denied) (“Texas law is well settled that, in order to
prevail on a claim for gross negligence, a plaintiff must first show
ordinary negligence.”); Doe v. Messina, 349 S.W.3d 797 (Tex.App.–
Houston [14th Dist.] 2011, pet. denied) (agreeing that “a finding of
ordinary negligence is prerequisite to a finding of gross negligence”)
In the present case, Plaintiff cannot establish ordinary negligence
because: (1) the economic-loss rule bars this claim, and (2) she waived it
by failing to request a charge (or a directed verdict) on the matter before
the jury retired to consider Country Title’s liability.
B. Plaintiff’s ordinary negligence claim was barred by the economic-loss rule.
Take, first, the economic-loss rule. “Texas courts of appeals have
uniformly applied the economic-loss rule to deny recovery of purely
economic losses in actions for negligent performance of services.”
LAN/STV v. Martin K. Eby Const. Co., Inc., 435 S.W.3d 234, 243 (Tex.
2014). This is because “courts prefer, in general, that economic losses
be allocated by contract where feasible.” Id. at 248 (quoting
15 Restatement (Third) of Torts, Tent. Draft 1 § 5 cmt. A). In cases
involving a “failure to perform a contract,” the “parties’ economic losses
[are] more appropriately addressed through statutory warranty actions
or common law breach of contract suits than tort claims.” Sharyland
Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 418 (Tex. 2011).
A critical consideration in applying the economic-loss rule is the
source of the duty alleged to have been breached. There can be no tort
claim where the economic losses result from a breach of a contractual
duty: “The economic-loss rule . . . forecloses a negligence claim
predicated on a duty created under a contract to which the plaintiff is a
party when tort damages are sought for an injury consisting only of
economic loss to the subject of the contract.” Barzoukas v. Found.
Design, Ltd., 363 S.W.3d 829, 835 (Tex. App.—Houston [14th Dist.]
2012, pet. denied) (citing Sharyland, 354 S.W.3d at 417-18). In other
words, “the economic-loss rule generally precludes recovery in tort for
economic losses resulting from a party's failure to perform under a
contract when the harm consists only of the economic loss of a
contractual expectancy.” Chapman Custom Homes, Inc. v. Dallas
Plumbing Co., 445 S.W.3d 716, 718 (Tex. 2014). Where the losses flow
16 entirely from a contract breach, plaintiff is limited to a claim for breach
of contract. Stauffacher v. Coaduum Capital Fund 1, LLC, 344 S.W.3d
584, 591 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
An escrow agreement is a contract between the escrow agent and
the contracting parties; an escrow agent’s failure to act in accordance
with its terms is a breach of contract. See EMC Mortgage Corp. v.
Jones, 252 S.W.3d 857, 867-68 (Tex. App. Dallas [5th Dist.] 2008, no
pet.). So the economic-loss rule bars a negligence claim against an
escrow agent where, as here: (1) the action is based on the agent’s
failure to act in accordance with the escrow agreement, and (2) the
plaintiff suffered only economic injuries. First Franklin Fin. Corp. v.
United Title Co., Inc., 08-CV-01866-PAB-MEH, 2009 WL 3698526, at *5
(D. Colo. Nov. 5, 2009) (economic-loss rule barred negligence and
breach-of-fiduciary-duty claims brought against closing agent); Ju v.
Mark, 1:06CV320 (JCC), 2006 WL 1647266, at *3 (E.D. Va. June 13,
2006) (holding that economic-loss rule barred tort claims against escrow
agent, and observing that the complaint “alleges conduct that is more
appropriately addressed under contract law.”); Lehman Bros. Holdings,
17 Inc. v. Hirota, 806CV2030T24MSS, 2007 WL 1471690, at *3 (M.D. Fla.
May 21, 2007).
In First Franklin, for example, the plaintiff sued a closing agent,
claiming that the agent failed to comply with the closing instructions.
As in the present case, the plaintiff asserted a negligence claim and
breach-of-fiduciary-duty claim alongside its contract claim. The
defendant moved for summary judgment on the negligence and breach-
of-fiduciary-duty claims, arguing that they were barred by the
economic-loss rule. The federal district court agreed. After “examining
the nature and source of the alleged duty,” the court found that “it is
clear that First Franklin’s tort claim is not supported by a duty
independent of contractual obligations.” Id. at *5. Instead, the plaintiff
was “simply restating its breach of contract claim.” Id. at *5 (internal
quotation marks omitted). Accordingly, it found that the claims were
“barred by the economic-loss rule.” Id.
Ju v. Mark was much to the same effect. There, too, the
defendant was a closing agent. 2006 WL 1647266, at *3. There, too,
the plaintiff alleged a breach of a duty arising out of the parties’
agreements concerning the closing of a house refinancing. Id. And
18 there, too, the Court held that the economic-loss rule barred the
plaintiffs’ tort claims. Id. See also Lehman Bros., 2007 WL 1471690
(finding that the plaintiff’s tort and breach-of-fiduciary-duty were
indistinguishable from its contract claims and so were barred by the
economic-loss rule).
In the present case, as in First Franklin, Ju, and Lehman
Brothers, the gist of Plaintiff’s action is that Country Title failed to
honor its obligations under the parties’ escrow agreement. Country
Title, Plaintiff contends, neither recorded the deeds nor paid off the
Allis’ mortgagee, World Savings. This is what led Home Savings to
institute foreclosure proceedings on the property, to purchase the
property at the foreclosure sale free and clear of Plaintiff’s ownership
interest in the property, and to evict Plaintiff’s tenants. And those
events, in turn, were what led to Plaintiff’s alleged economic injuries
(i.e., losing her tenants, defaulting on her loan obligations to EMC, and
damaging her credit). Thus, all of Plaintiff’s claimed damages can be
traced back to Country Title’s failure to perform its contractual duties
19 under the escrow agreement.1 Because the breached duties arose out of
the parties’ contract—and not any tort duty of care—the economic-loss
rule bars Plaintiff’s negligence claim.
Without a viable claim for ordinary negligence, however,
Plaintiff’s claim for gross negligence fails as a matter of law. And as
gross negligence was the sole basis for the jury’s award of $100,000 in
exemplary damages, the entry of judgment on that verdict must be
vacated and the damages reduced by $100,000.
C. Plaintiff waived her negligence claim by failing to move for a directed verdict or submit instructions on the issue.
Even if Plaintiff otherwise had a viable negligence claim—and she
does not—she waived that claim by failing to request a jury charge on
1 It is true that, in addition to contractual duties, Country Title owed certain fiduciary duties vis-à-vis the buyer and the seller. See Gary E. Patterson & Associates, P.C. v. Holub, 264 S.W.3d 180, 203 (Tex. App.— Houston [1st Dist.] 2008, pet. denied). But those are irrelevant because Plaintiff’s injuries did not result from a breach of any of those fiduciary duties. See Victory Park Mobile Home Park v. Booher, 05-12-01057-CV, 2014 WL 1017512, at *4 (Tex. App.—Dallas Feb. 26, 2014, no pet.) (existence of fiduciary duties between partners irrelevant for economic- loss-rule purposes where the breached duty was contractual). Instead, Plaintiff’s damages arose out of Country Title’s breach of its contractual obligations under the escrow arrangement.
20 negligence at any time before the jury retired to consider liability
issues.
As noted above, Plaintiff’s proposed jury charge omitted
negligence instructions. Country Title objected to this omission, noting
that the jury could not consider gross negligence without first finding
ordinary negligence. The Trial Court overruled this objection and
submitted the liability issues to the jury without a negligence
instruction. The Trial Court reasoned that its prior finding—as a
matter of law—that Country Title had breached its fiduciary duty was
tantamount to a finding of negligence, thereby obviating the need for
the jury to make a finding on negligence.
This was error. To begin with, the trial court erred in finding a
breach of fiduciary duty. As noted above, the duties that Plaintiff
alleged Country Title breached were purely contractual in nature. This
limits Plaintiff to a claim for breach of contract. Stauffacher, 344
S.W.3d at 591 (fiduciary duty claim barred by economic-loss rule).
Yet even if there had been a breach of fiduciary duty, this still
would not have established Country Title’s negligence. Texas law
carefully distinguishes between negligence and breach of fiduciary duty;
21 the two causes of action are not coextensive. See Murphy v. Gruber, 241
S.W.3d 689, 693 (Tex. App.—Dallas 2007, pet. denied) (“Texas courts do
not allow plaintiffs to convert what are really negligence claims into
claims for fraud, breach of contract, breach of fiduciary duty, or
violation of the DTPA.”) (collecting cases). Thus, contrary to the Trial
Court’s reasoning, a breach-of-fiduciary claim cannot serve as a stand-
in for a negligence claim to support a gross-negligence finding.
As noted above, the trial court later attempted to fix this missing-
negligence-claim problem by “reopening” the negligence issue. But the
Trial Court did so only after the jury had returned its verdict on
liability. That was too late. Where, as here, a case is submitted to a
jury without the parties having requested that the jury be charged on
an issue, the party waives that issue. Physicians & Surgeons Gen.
Hosp. v. Koblizek, 752 S.W.2d 657 (Tex. App.—Corpus Christi 1988,
writ denied) (trial court erred in interposing finding on “issue which
was never requested by plaintiffs or presented to the jury”).
Rule 279 provides that any issues excluded from the jury charge
that are “not conclusively established under the evidence and no
element of which is submitted or requested are waived.” Tex. R. Civ. P.
22 279. See also THPD, Inc. v. Cont'l Imports, Inc., 260 S.W.3d 593, 607
(Tex. App.—Austin 2008, no pet.) (“[I]f a party seeking relief fails to
submit any element of his affirmative claim to the jury, it waives that
ground of recovery.”). While there is an exception to this rule when the
evidence conclusively establishes the necessary elements of a claim,
Bank of Tex. v. VR Electric, Inc., 276 S.W.3d 671, 677 (Tex.App.-
Houston [1st Dist.] 2008, pet. denied), such is not the case here. At
most, the evidence established “conclusively” that Country Title
breached its escrow agreement with Plaintiff. But as noted above, the
economic-loss rule forbids a contract breach from serving as the basis
for a tort claim. There was no other duty of care whose breach the
evidence conclusively established. Thus, by failing to request
instructions on the issue, Plaintiff waived her claim for negligence
* * *
Because Plaintiff’s ordinary negligence claim was both
substantively barred (by the economic-loss rule) and procedurally
waived (because she failed to request a negligence instruction), and
because a finding of gross negligence requires a corresponding finding of
ordinary negligence, Plaintiff’s claim for gross negligence fails as a
23 matter of law. As the gross negligence claim was the sole basis for the
entry of exemplary damages, this Court should reverse with
instructions that the Trial Court set aside those damages.
III. The Trial Court erred in allowing Plaintiff to introduce evidence of settlement negotiations. (Issue #2.)
The Trial Court also erred in allowing Plaintiff to introduce
evidence of the efforts of the parties’ attorneys to settle the matter.
Rule of Evidence 408 bars the use of evidence of settlement discussions
to establish the existence or extent of liability:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount.2
Tex. R. Evid. 408. Such evidence may be “admitted for another purpose,
however, such as proving bias or prejudice or negating a contention of
undue delay.” Beard Family P'ship v. Commercial Indem. Ins. Co., 116
S.W.3d 839, 849 (Tex. App.—Austin 2003, no pet.).
2The wording of the rule has been changed, effective April 1, 2015. The quoted language is from the version in effect at the time of trial.
24 “The purpose of Rule 408 is to encourage settlement of disputed
claims.” MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc.,
179 S.W.3d 51, 61 (Tex. App.—San Antonio 2005, pet. denied).
Settlement negotiations would be chilled if parties knew that the
communications could be used against them at trial. For purposes of
Rule 408, a settlement offer is a proposal that “create[s] a quid pro quo
situation purporting to resolve the dispute in its entirety.” Lerma v.
Border Demolition & Envtl., Inc. ___ S.W.3d ___, 08-12-00105-CV, 2015
WL 737989, at *3 (Tex. App.—El Paso Feb. 20, 2015, pet. filed).
In the present case, the Trial Court allowed Plaintiff to introduce
extensive evidence of communications between Plaintiff’s counsel and
Country Title’s counsel regarding how to resolve the present dispute—
including evidence that that Country Title demanded a release and
indemnity as part of such a deal. Allowing Plaintiff to present these
materials to the jury was an abuse of discretion. At trial, however,
Plaintiff argued that the use of this evidence was warranted because it
supported her claim of breach of fiduciary duty. She argued that, while
attempting to resolve the dispute, Country Title continued to owe
Plaintiff a fiduciary duty to act in her best interests. And she claimed
25 that Country Title breached its duty during the negotiations by
requesting indemnity and a release.
Not so. An escrow agent is not a general agent. The scope of its
agency is narrow, encompassing only those acts necessary to carry out
the obligations under the escrow agreement. Jones v. Blume, 196
S.W.3d 440, 448 (Tex. App.—Dallas 2006) (“ An escrow agent's duties
are strictly limited to those set forth in the escrow agreement.”). By the
time the parties were negotiating over how to resolve the present
dispute, however, the time for Country Title to have performed its
obligations under the escrow agreement had long since passed. Indeed
it no longer was possible for Country Title to comply with its obligations
under the agreement—the Property was now legally owned by a third
party. So any fiduciary duties that Country Title once may have owed
to Plaintiff vis-à-vis transferring title to her had long since lapsed.
Nor would it make any sense for Country Title to owe a fiduciary
duty to Plaintiff during settlement negotiations. Both sides were
represented by counsel. And they both were engaged in arms-length
negotiations about how to remedy the situation brought about by
Country Title’s failure to comply with the terms of the escrow
26 arrangement. No fiduciary duty exists between parties engaged in
arms-length settlement negotiations. LeBlanc v. Lange, 365 S.W.3d 70,
84 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding that plaintiff’s
former attorney and business partner did not owe him fiduciary duty
where the parties were engaged in arms-length settlement negotiations
and both were represented by counsel).
At trial, Plaintiff’s counsel argued that Country Title had a
fiduciary obligation to buy back the property from World Savings.
Again, this is not so. As escrow agent, Country Title’s obligations
regarding title to the Property were simply: (1) to properly record the
deeds, and (2) to forward payment to the appropriate entities. Country
Title’s failure to do so—coupled with World Savings’ actions that
rendered belated recording and delivery impossible—transformed
Plaintiff’s inchoate contractual rights vis-à-vis Country Title into a
cause of action for breach of contract. At that point, the issue just
became one of damages: how best to repair the problems created by
Country Title’s breach. Country Title did not owe—and could not owe—
Plaintiff a fiduciary duty while negotiating how best to resolve her
claim against it.
27 The Trial Court's error in allowing Plaintiff to introduce evidence
of settlement negotiations was not harmless. During closing argument,
Plaintiff’s counsel emphasized the fact that Country Title had requested
a full release and indemnity from Plaintiff during negotiations to
resolve the present dispute. He insinuated that Country Title’s
insistence upon such terms demonstrated its indifference to Plaintiff’s
situation. He sounded this theme repeatedly.
Allowing parties to introduce evidence of these sorts of
communications would have a chilling effect on settlements. It is
routine for a defendant to request a waiver and indemnity as part of a
settlement agreement—indeed, this often is a make-or-break issue. But
if such a request could be turned against a defendant at trial, he may
opt not to negotiate at all. This is exactly the result that Rule 408 is
intended to prevent. Accordingly, the Trial Court erred in allowing
Plaintiff to introduce evidence of settlement negotiations.
IV. The Trial Court erred in entering judgment on the jury’s award for credit-reputation damages.
Finally, the trial court erred in entering judgment on the jury’s
$30,000 award for injury to Plaintiff's credit reputation. Although
parties may, in an appropriate case, recover damages for injury to
28 credit, they must present sufficient evidence: (1) to show a loss flowing
from the injured credit reputation, and (2) to quantify that loss. See St.
Paul Surplus Lines Ins. Co., Inc. v. Dal-Worth Tank Co., Inc., 974
S.W.2d 51, 53 (Tex. 1998) (to recover loss-of-credit damages, there must
be a showing that it “resulted in injury and proof of the amount of that
injury.”); Provident American Ins. Co. v. Castaneda, 988 S.W.2d 189,
199 (Tex. 1998) (absent proof of injury from loss of credit, damages are
only nominal).
In St. Paul Surplus Lines, for example, the plaintiff sued its
insurer after the insurer had failed to provide the plaintiff with a
defense in a claim brought by a third party. In that earlier suit, the
plaintiff had suffered a default judgment, which it claimed impaired its
credit. As in the present case, however, the plaintiff failed to present
any evidence that it was financially harmed by the inability to obtain
credit—it just presented evidence that it had a lower credit rating.
Despite this absence of evidence, the jury returned a verdict of $500,000
for lost-credit damages, which the Court of Appeals upheld.
29 On further appeal, however, the Supreme Court of Texas reversed.
It held that being unable to obtain a loan is not, by itself, sufficient
proof of loss-of-credit damages:
A plaintiff does not suffer actual damage merely from the inability to obtain a loan. There must be a showing that such inability resulted in injury and proof of the amount of that injury.
Id. (emphasis added). Because there was “no evidence that the decline
[in the plaintiff’s credit rating] injured Dal-Worth in any way,” the court
reversed the $500,000 award for lost credit reputation.
In addition to being controlling law, the holding in St. Paul
Surplus Lines makes good sense. After all, a loan rejection can—in
some instances—be a blessing in disguise. Suppose, for example, that a
party is turned down for a loan to purchase stock. Suppose, further,
that immediately thereafter the stock’s value plummets. In such a
circumstance, the party was helped, not hurt, by his inability to obtain
the loan. The impaired credit prevented him from obtaining the very
rope with which to hang himself. This example shows why a plaintiff
alleging damages resulting from a credit injury must do more than
merely show that he was turned down for a loan. He make the further
showing of how being turned down for the loan affected him financially.
30 See Texas Mut. Ins. Co. v. Morris, 287 S.W.3d 401, 429 (Tex. App.—
Houston [14th Dist.] 2009), rev'd on unrelated grounds, 383 S.W.3d 146
(Tex. 2012) (reversing damages award for injury to credit reputation
because “neither Morris, nor any witness in his behalf, put a dollar
amount on the injury he claimed to have sustained because of his
inability to obtain the washing-machine loan or to have his name on his
home mortgage.”).
In the present case, Plaintiff presented no evidence to connect her
allegedly impaired credit to any financial loss. It is true that Plaintiff
testified that she was denied a $197,000 loan in 2007. But there was no
evidence as to why the bank declined the loan. See Citizens Nat'l Bank
v. Allen Rae Investments, Inc., 142 S.W.3d 459, 482 (Tex. App.—Fort
Worth 2004, no pet.) (holding that plaintiff failed to establish credit-
injury damages where no evidence that damaged credit rating was
reason for the declined loan). Moreover, the denial might have been a
blessing in disguise. As in the above example, the house price may have
plummeted soon after Plaintiff was turned down for the loan, resulting
in an underwater mortgage. Plaintiff, however, failed to present any
31 evidence connecting her loan denial to any financial loss.3 So there was
no basis for the jury to find that the damage to Plaintiff’s credit
reputation caused her any financial injury.
The jury, however, awarded Plaintiff $30,000 for impaired credit.
It is unclear how the jury came up with this number—neither Plaintiff
nor Country Title suggested this as an amount. More to the point, the
$30,000 award is not supported by any evidence of actual loss. For all
the record shows, Plaintiff might have benefitted from her impaired
credit, as it may have prevented her from entering into an inadvisable
loan for an overpriced investment. If so, the $30,000 constitutes a
windfall. Plaintiff bore the burden of showing financial injury, yet
failed to do so. Accordingly, the Trial Court erred in entering judgment
on the jury’s $30,000 award for injury to credit.
3At trial, Plaintiff’s counsel argued that the measure of the loss should be the amount of the loan: $197,000. (5 RR at 73:16-24.) This is a non- starter. The amount of the loan cannot be an appropriate measure of damages because even if Plaintiff had been able to take out the loan, she still would have had to pay it back, with interest.
32 PRAYER
For the reasons stated above, Appellant Country Title prays that
this Court reverse the Trial Court’s judgment, vacate the $100,000
punitive damages award, vacate the $30,000 award for injury to
Plaintiff’s credit reputation, and order such further relief as it deems
appropriate.
Respectfully submitted,
LECLAIRRYAN
By: /s/ James J. McConn, Jr. JAMES J. MCCONN, JR. Bar No. 13439700 james.mcconn@leclairryan.com 1233 West Loop South, Suite 1000 Houston, Texas 77027 Telephone: 713-654-1111 Facsimile: 713-650-0027 ATTORNEY FOR APPELLANT
33 CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b),
(d), and (e), I certify that I have served this document on all other
parties, who are listed below, on May 7, 2015.
/s/ James J. McConn, Jr. James J. McConn, Jr.
L.T. Butch Bradt Teltschik-Grubbs PLLC Bar No. 02841600 14015 Southwest Freeway Suite 4 Sugar Land, Texas 77478
34 CERTIFICATE OF COMPLIANCE
As required by Texas Rule of Appellate Procedure 9, I certify that
this document complies with the typeface requirements of Tex. R. App.
P. 9.4(e) because it has been prepared in a convention al typeface no
smaller than 14-point for text and 12-point for footnotes. This
document also complies with the word-count limitations of Tex. R. App.
9.4(i) because it contains 6,242 words, excluding those parts exempted
by Tex. R. App. P. 9.4(i)(1).
/s/ James J. McConn, Jr. James J. McConn, Jr.
35 01-14-00931-CV
IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
COUNTRY TITLE, L.L.C. Appellant, v.
MORENIKE JAIYEOBA Appellee.
On Appeal from the 268th Judicial District of Fort Bend County, Texas Cause No. 07-DCV-159705
INDEX OF APPENDIX
APPENDIX DESCRIPTION RECORD CITE NUMBER
1 Final Judgment CR 435-37
2 Jury Charge (Initial) CR 415-22
3 Jury Charge (Exemplary CR 426-28 Damages)
36 Appendix 1 Appendix 2 Appendix 3