COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-18-00119-CV
EUSEBIO PALACIOS APPELLANT
V.
JAYABEN PATEL APPELLEE
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 048-262207-12
MEMORANDUM OPINION1
Eusebio Palacios (Palacios) appeals from a final judgment awarding
damages to Jayaben Patel (Patel). Patel had sued Palacios and several others to
establish title to a home and recover alleged damages. Per the final judgment, the
trial court ordered that “on the causes of action for Trespass to Real Property,
Conversion[,] Fraud, Negligence, Trespass to Try Title to Action, and Suit to Quiet
1 See Tex. R. App. P. 47.4. Title, . . . Patel shall have and recover JUDGMENT, jointly and severally, against
Defendants Herbert Harris, H&H Global, Vicki Young and Eusebio Palacios for the
total amount of $135,000.00 (No/100 Dollars).” So too did it award Patel
1) exemplary damages “against all Defendants, jointly and severally” in the amount
of $60,000 and 2) attorney’s fees, both through trial and on appeal. Palacios
asserts numerous issues in an effort to reverse the judgment or portions of it. 2
Upon considering them, we suggest a remittitur, the acceptance of which by Patel
will result in the reversal of portions of the trial court’s judgment. Should Patel
reject the suggestion of remittitur, we will not only reverse portions of the trial
court’s judgment but also remand for a new trial the civil conspiracy and conversion
causes of action. Regardless of whether Patel accepts the suggestion of remittitur,
we affirm the portion of the trial court’s judgment declaring Patel to be the
property’s owner.
Background
The dispute arose when Patel left her home for a trip to India. While gone,
Herbert Harris caused the home’s contents to be removed and ownership of the
realty to be placed in his name. None of this occurred with Patel’s knowledge or
2 Patel filed an appellee’s brief bereft of citation to the record and to legal authority. Needless to say, her effort did not comport with the briefing requirements imposed on appellees by the Texas Rules of Appellate Procedure. See Tex. R. App. P. 38.1(i) (stating that the brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record); Tex. R. App. P. 38.2(a) (stating that the appellee’s brief generally must conform to the requirements of Rule 38.1).
2 approval but rather through forged instruments purportedly notarized by Vicki
Young and Gloria Andrews. Thereafter, Harris purportedly sold the house to
Palacios for $75,000.
Patel eventually returned from India to discover what had occurred. Her
discovery caused her to initiate the lawsuit underlying this appeal. Through her
live pleading she alleged causes of action for “Trespass to Land,” “Conversion,”
“Fraud,” and “Negligence.” Furthermore, in her opening paragraph under the
heading “Facts,” she also stated that “[t]his action is one for Trespass to Try Title
under Chapter 22 of the Texas Property Code, and Rules 783 et seq., of the Texas
Rules of Civil Procedure.”
Patel later moved for a partial summary judgment declaring her to be the
owner of the property. The trial court granted her that limited relief and entered a
partial summary judgment ordering that she be “declared the lawful owner of” the
real estate.3 The remaining causes of action then were tried to the court. Palacios
was the only defendant to appear and participate in that proceeding. Once it
ended, the trial court executed its final judgment, resulting in this appeal.
Trespass to Try Title and Suit to Quiet Title
The first issues we address involve causes of action mentioned in Patel’s
motion for partial summary judgment but allegedly omitted from her live pleading,
i.e., her first amended petition. The causes of action were to quiet title and to try
3 This declaration was not manifested in the final judgment, though.
3 title. Because they were not alleged in the live pleading, Palacios contended that
they could not provide a basis for recovery. We overrule the issues.
Regarding the complaint about the trespass to try title cause of action, we
again note that it was mentioned in Patel’s live pleading. It appeared in the first
sentence of her opening paragraph under the category “Facts.” So, it cannot be
said that Palacios was denied notice of the action. And, assuming the allegation
was defective, he had the obligation to specially except to it to preserve his
complaint. See Swett v. At Sign, Inc., No. 02-08-00315-CV, 2009 WL 1425161, at
*3 (Tex. App.—Fort Worth May 21, 2009, no pet.) (mem. op.) (holding that pleading
defects are waived unless specifically mentioned in a written exception brought to
the attention of the trial court before the judgment is signed in a nonjury case).
Since no special exceptions were filed before the trial court granted summary
judgment, complaints pertaining to their sufficiency were waived. Id.
As for the action to quiet title, nothing was said in the first amended petition
about it. Yet, the cause of action was one of the two grounds upon which Patel
sought partial summary judgment. Furthermore, the partial summary judgment
motion was served upon counsel for Palacios along with notice of the hearing date.
Palacios filed nothing in response, though; nor did he otherwise object to Patel’s
effort to obtain judgment on the unpled claim. This omission was fatal given Rule
166a(c) of the Rules of Civil Procedure.
Per Rule 166a(c), “[i]ssues not expressly presented to the trial court by
written motion, answer[,] or other response shall not be considered on appeal as
4 grounds for reversal.” Tex. R. Civ. P. 166a(c); Margetis v. Frost Nat’l Bank, No. 02-
12-00027-CV, 2012 WL 4936611, at *2 (Tex. App.—Fort Worth Oct. 18, 2012, no
pet.) (mem. op.). Here, Palacios is not arguing that Patel failed to establish her
entitlement to summary judgment as a matter of law. Rather, he broached a
pleading deficiency about which he never complained to the trial court.
Consequently, that pleading deficiency may not serve as a basis for reversing the
partial summary judgment. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d
492, 495 (Tex. 1991) (holding that “[i]f the non-movant does not object to a
variance between the motion for summary judgment and the movant’s pleadings,
it would advance no compelling interest of the parties or of our legal system to
reverse a summary judgment simply because of a pleading defect”).
Negligence
Next, Palacios argued that “[a]lthough Patel did plead negligence, she did
not plead negligence against [him].” The claim allegedly encompassed only “Vicki
Young and Gloria Andrews.” Consequently, “[t]here is . . . no pleading to support
judgment as to negligence against Palacios[,] and the judgment should be
reversed.” We sustain the issue.
Palacios’s contention that judgments must conform to the pleadings is quite
accurate. See Tex. R. Civ. P. 301 (so requiring); Jackson v. Kisiah, No. 02-12-
00371-CV, 2013 WL 3064517, at *1 (Tex. App.—Fort Worth June 20, 2013, no
pet.) (mem. op.). Normally, a party may not obtain a judgment based upon a theory
he failed to plead. Jackson, 2013 WL 3064517, at *1. Furthermore, Patel
5 acknowledged that her allegation did not encompass Palacios but rather was
limited to Young and Andrews. However, she attempted to extricate herself from
the effect of Rule 301 by suggesting that 1) Palacios was responsible for the
negligence of Young and Andrews because he conspired with them, and 2) the
issue of Palacios’s negligence was tried by consent.
Whether one can conspire to be negligent was addressed by our supreme
court over twenty years ago in Juhl v. Airington, 936 S.W.2d 640 (Tex. 1996). It
held that they could not. Since negligence is not an intentional wrong and civil
conspiracy requires the specific intent to agree to accomplish an unlawful purpose
or to accomplish a lawful purpose by unlawful means, “one cannot agree or
conspire to be negligent.” Id. at 644; see Tri v. J.T.T., 162 S.W.3d 552, 557 (Tex.
2005) (reiterating that holding). And, as previously indicated, Patel cited us to no
authority, much less to authority contradicting the Texas Supreme Court, on this
matter.
Concerning her other means of evading Rule 301, this court has stated that
the theory of trial by consent is applicable “to exceptional cases where it clearly
appears from the record as a whole that the parties tried by consent an issue that
had not been pleaded.” Jackson, 2013 WL 3064517, at *2 (emphasis added). It
does not exist to “establish a general rule of practice” and, consequently, “should
be applied with care and never in a doubtful situation.” Id. And, in assessing
whether the issue was so tried, we “examine the record not for evidence of the
issue but rather for evidence of trial of the issue.” Id. In other words, we look for
6 evidence of circumstances “indicating [that] both parties understood the issue was
in the case” and had a “clear intent” to try it. City of The Colony v. N. Tex. Mun.
Water Dist., 272 S.W.3d 699, 744 (Tex. App.—Fort Worth 2008, pet. dism’d) (citing
Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—
Dallas 2005, pet. denied)). Excluded from the scope of trial by consent, though,
are situations wherein “evidence relevant to an unpleaded matter is also relevant
to a pleaded issue.” Case Corp., 184 S.W.3d at 771. This is so because the
“admission of the evidence would not be calculated to elicit an objection, and . . .
ordinarily would not demonstrate a ‘clear intent’ on the part of all parties to try the
unpleaded issue.” Id. With these caveats in mind, we turn to the appellate record.
Under the heading “Negligence” in her live pleading, Patel obviously alleged
a negligence cause of action. But, again, it encompassed only the misfeasance of
Young and Andrews. Moreover, the conduct attributed to Palacios in the same
pleading tended to involve intentional torts, such as forgery, fraud, and trespass.
The same is true of the evidence presented at trial; none tended to indicate that
he negligently breached some duty owed to Patel. Rather, it illustrated his
potential involvement with 1) intentional acts of forgery, 2) the intentional removal
of all the personalty from the Patel home while the family was in India, and 3) his
intentional entry onto the realty upon gaining purported title. In short, the evidence
of misconduct on his part generally pertained to Palacios’s commission of
intentional torts encompassed within the live pleading, which circumstance triggers
what was said in Case Corp. Trial by consent is not a means of trying an unpled
7 theory when the evidence purportedly relevant to that theory is also relevant to a
cause of action averred in the pleading.
In short, Patel neglected to include Palacios within the scope of her
negligence claim. Thus, the trial court erred in holding him liable for negligence,
which error resulted in the rendition of an improper judgment under Texas Rule of
Appellate Procedure 44.1(a).
Exemplary Damages
Next, Palacios contended that Patel failed to plead for and prove her
entitlement to exemplary damages. We sustain the issue.
One seeking special damages must specifically plead for same. See Tex.
R. Civ. P. 56 (stating that “[w]hen items of special damage are claimed, they shall
be specifically stated”). Punitive or exemplary damages are special damages.
In re Shaw, No. 13-10-00487-CV, 2010 WL 4264796, at *4 (Tex. App.—Corpus
Christi Oct. 27, 2010, orig. proceeding) (mem. op.) (stating that “[e]xemplary
damages are special damages that must be supported by express allegations of
willfulness, malice, or gross negligence that go beyond the allegations necessary
to recover compensatory damages”). So, one seeking exemplary damages must
specifically plead for them. W. Union Tel. Co. v. Sorenson, 56 S.W.2d 672, 672
(Tex. Civ. App.—San Antonio 1933, no writ).
Patel did not request exemplary damages either in her pleadings or at trial.
Indeed, no one broached the topic until it was first mentioned within a letter from
the trial court after the trial ended. Through the missive, the trial court informed
8 the parties that it “decided to grant Plaintiff judgment against all Defendants jointly
and severally in the amount of $135,000 in actual damages and $60,000 in
exemplary damages.”
Furthermore, the very evidence potentially subjecting a litigant to punitive
damages is generally quite relevant to whether the litigant committed the
underlying tort upon which those damages were based. See, e.g., Tex. Civ. Prac.
& Rem. Code Ann. § 41.011(a)(1)–(3) (West 2015) (stating that a trier of fact may
consider the nature of the wrong, the character of the conduct involved, and the
wrongdoer’s culpability in assessing punitive damages). For instance, punitive
damages may be available in cases involving malice, and malice covers intentional
torts where there existed a specific intent to cause substantial injury or harm.
Bennett v. Reynolds, 315 S.W.3d 867, 871 n.13 (Tex. 2010). So, in proving the
intentional tort of conversion, the evidence may be relevant to both the cause of
action and the topic of punitive damages. Contrary to Patel’s suggestion, we
cannot say that the evidence she presented in an attempt to establish her
accusations involving intentional torts necessarily informed Palacios that
exemplary damages were in play for purposes of establishing that the matter was
tried by consent. At the very least, application of the doctrine of trial by consent
would appear doubtful here given the underlying circumstances, and that prevents
us from applying it. See Case Corp., 184 S.W.3d at 771.
In sum, exemplary damages were not recoverable against Palacios since
Patel never requested them. This was and is another instance of the judgment
9 failing to conform to the pleadings which resulted in the rendition of an improper
judgment under appellate rule 44.1(a)(1).
Attorney’s Fees
Palacios also attacked the trial court’s award of attorney’s fees to Patel and
did so via several grounds.4 We need only address one for it is dispositive. The
ground we address concerns the absence of legal authority authorizing such fees.
It has long been true in Texas that one may not recover attorney’s fees
unless same are authorized by statute or contract. Dudley Constr., Inc. v. ACT
Pipe & Supply, Inc., No. 16-0651, 2018 WL 1660176, at *7 (Tex. Apr. 6, 2018)
(citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006)).
Patel sued upon no contract between her and Palacios, much less one authorizing
the recovery of attorney’s fees. Moreover, such fees were not recoverable via a
claim of 1) fraud, see Tony Gullo Motors I, L.P., 212 S.W.3d at 304 (stating that
“[f]or fraud, [Chapa] could recover economic damages, mental anguish, and
exemplary damages, but not attorney’s fees”); 2) negligence, see Gulf States Utils.
Co. v. Low, 79 S.W.3d 561, 568 (Tex. 2002); 3) quieting title, see Starbranch v.
Crowell, No. 01-15-00429-CV, 2016 WL 796836, at *2 (Tex. App.—Houston [1st
Dist.] Mar. 1, 2016, no pet.) (mem. op.); 4) trespass to try title, see Biltex Enters.,
Inc. v. Myers, No. 02-13-00465-CV, 2015 WL 1967285, at *3 (Tex. App.—Fort
4 The trial court awarded Patel attorney’s fees of $5,000 through trial and a total of $20,000 if the judgment was appealed to the Texas Supreme Court.
10 Worth Apr. 30, 2015, no pet.) (mem. op.); 5) trespass, see Wilen v. Falkenstein,
191 S.W.3d 791, 805 (Tex. App.—Fort Worth 2006, pet. denied) (involving a claim
of trespass and striking the award of attorney’s fees because the action was not
founded on the interpretation of a contract and attorney’s fees were not authorized
by statute); 6) conversion, Quality Hardwoods v. Midwest Hardwood Corp., No. 02-
05-00311-CV, 2007 WL 1879797, at *5–6 (Tex. App.—Fort Worth June 28, 2007,
no pet.) (mem. op.); or 7) civil conspiracy, see Great N. Energy, Inc. v. Circle Ridge
Prod., 528 S.W.3d 644, 677–78 (Tex. App.—Texarkana 2017, pet. denied)
(remanding the cause for the reassessment of recoverable attorney’s fees
because Circle Ridge alleged tort claims for which attorney’s fees were not
recoverable such as negligence in forging documents and civil conspiracy for
forgery and it did not segregate the recoverable fees from unrecoverable ones).
Given that these were the very causes of action Patel urged and attorney’s fees
were authorized for none, the trial court had no legal basis to award them. So it
erred, and the mistake resulted in the rendition of an improper judgment. We
sustain the issue.5
5 To the extent that Patel opined that the matter also was tried by consent, she failed to cite us to authority holding that the doctrine applies to situations wherein the law itself bars the recovery of fees. Indeed, applying the doctrine here would be akin to upholding a recovery upon a nonexistent cause of action. We eschew her invitation to journey down that road at this time.
11 Joint and Several Liability
Palacios also questioned whether the trial court erred in holding him jointly
and severally liable for all the damages awarded. His complaint was based upon
the absence of pleadings seeking such. In response, Patel again raised the
spectre of trial by consent, and this time we agree with her.
During trial of the cause, Palacios’s attorney told the trial court: “[s]o what
I’m trying to figure out is what the potential liability here which the plaintiffs seek to
impose upon my client jointly and severely [sic] with Mr. Harris.” [Emphasis
added.] If nothing else, this passage illustrates that Palacios not only knew his
opponent was pursuing the concept of joint and several liability but also attempted
to defend against it in some respect. More importantly, he did not object. Given
this, we can safely conclude that the parties clearly intended to try the issue by
consent. See Case Corp., 184 S.W.3d at 771. We overrule the issue.
Sufficiency of the Evidence
We now turn to Palacios’s assertions regarding the legal sufficiency of the
evidence underlying various trial court findings. In doing so, we address each
under the standard of review recently discussed by the Texas Supreme Court in
Hill v. Shamoun & Normand, LLP, No. 16-0107, 2018 WL 1770527, at *7 (Tex.
Apr. 13, 2018). That is, evidence is legally insufficient to support a jury finding
when 1) the record discloses a complete absence of evidence of a vital fact, 2) the
court is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, 3) the evidence offered to prove a vital fact
12 is no more than a mere scintilla, or 4) the evidence conclusively establishes the
opposite of a vital fact. Id. When determining whether there is no evidence of
probative force to support a jury’s finding, we consider all the record evidence in
the light most favorable to the party in whose favor the verdict has been rendered.
Id.
Furthermore, because the suit was tried to the court and no findings of fact
and conclusions of law were requested or filed, we note our obligations to imply
the existence of those findings necessary to support the judgment and uphold that
judgment on any legal theory supported by the evidence. See Burley v. Burley,
No. 02-16-00119-CV, 2017 WL 4542854, at *4 (Tex. App.—Fort Worth Oct. 12,
2017, no pet.) (mem. op.) (so requiring).
Conspiracy
We begin with another unpled cause of action, that of civil conspiracy.
Though not expressly mentioned by Patel in her live pleading, it is clear that the
matter was part of the suit. We so conclude for several reasons. First, establishing
a civil conspiracy results in the actors becoming jointly and severally liable for the
damages caused by the conspirators in furtherance of the agreement. See
LandAm. Commonwealth Title Co. v. Wido, No. 05-14-00036-CV, 2015 WL
6545685, at *11 (Tex. App.—Dallas Oct. 29, 2015, no pet.) (mem. op. on reh’g).
As shown above, Palacios knew Patel sought to impose upon him such liability.
Second, counsel for Patel expressly broached the topic at trial, as
exemplified in an exchange with the trial court. During the exchange, the trial court
13 attempted to determine the relevance of questions being asked a particular
witness. In response, Patel’s attorney said: “[y]our Honor, it’s my theory of the
case that [Palacios] jointly conspired with Mr. Harris to create this.” [Emphasis
added.] Palacios uttered nothing in return; he neither objected or otherwise
complained about Patel’s failure to mention the claim in her pleadings.
Third, Patel offered evidence throughout the trial purporting to establish
more than a fortuitous relationship between Palacios and Harris. Examples of
such include a detective opining that Palacios and spouse were “complicit in
forging” the deed with Harris and that he “believed that there was some complicity
between the sale of the house to the Palacios[es] and Harris.” [Emphasis added.]
This occurred early in the proceeding. Other evidence indicated that the spouses
of Palacios and Harris had “a mutual address . . . off of MD Love in Dallas.”
Fourth, and most telling, is a statement uttered by counsel for Palacios
during his closing argument. He began by asserting that: “the plaintiff bears the
burden of establishing a conspiracy[ and] . . . failed to do that.” [Emphasis added.]
Palacios knew of Patel’s intent to hold him jointly and severally liable for the
acts of others. He was present and sat silently when Patel’s legal counsel declared
in open court that his theory of the case evolved around Harris and Palacios jointly
conspiring. So too was he present and remained quiet when Patel’s counsel
offered evidence supporting the allegation of complicity. And, counsel for Palacios
expressly addressed the topic of conspiracy in his closing. Such is enough to
reveal that all the litigants clearly knew the theory of civil conspiracy was in play
14 and being tried. And, most importantly, no one objected. So, it is quite easy to
imply a finding that the trial court found the presence of a civil conspiracy in opting
to hold Palacios jointly and severally liable for the actions of others. See Case
Corp., 184 S.W.3d at 771.
Despite knowing that the cause of action was being tried, Palacios did not
attack the implied finding that he engaged in a civil conspiracy. Little was said
about the theory in his initial brief. When Patel mentioned it in her rather
conclusory appellee’s brief, Palacios simply responded by suggesting that we
should ignore her contentions due to deficient briefing. Yet, it was his obligation
to attack the finding on appeal before we could set aside its relevance, and he did
not. So, in effect, the finding must stand, and we see no reason to negate it given
the quantum of evidence within the record underlying it.
Per the record, we see that Patel bought the home and surrounding realty
in question during 2009. It consisted of a 10,600-square-foot house sitting on
seven acres of land within a community deemed rather affluent. Its purchase price
was $600,000, and it had a like value on the local tax rolls. Upon acquiring it, she
and her family also began remodeling the abode and its environs. They also
bought furnishings to place in it.
Several years later (on December 5, 2011), Patel left for India to attend
several weddings. Her husband and daughter followed her on January 15, 2012.
They returned to the house on February 2, 2012, to find it stripped of its contents
and listed in the deed records as being owned by Palacios.
15 The paper trail leading to Palacios began with a “residential contract” he
executed on January 7, 2012. Next to his signature appeared what supposedly
was that of Patel. Both signatures were notarized by Young, purportedly on
January 7, 2012, and while Patel was thousands of miles away in India. Various
initials were also written at the bottom of each page of the agreement. The initials
represented the names of Palacios, Patel, and Harris. Needless to say, Patel
disavowed the signature as hers at trial. So too did she deny knowing Palacios,
agreeing to sell him the house, or receiving payment for it.
Two other matters involving the “residential contract” are of interest. The
first is the date on which the sales transaction was to close, that date being
January 7, 2012, or the day the contract was executed. The second is the amount
Palacios agreed to pay for a home appraised at $600,000, that amount being
$75,000.
Accompanying the “residential contract” was a “receipt” dated January 7,
2012, illustrating that Patel was the recipient of $75,000 in cash. The alleged
signatures on the “receipt” were those of Harris, Palacios, and Patel, which Young
also happened to notarize.
One other document was notarized by Young on January 7, 2012. Entitled
a "warranty deed," it purported to convey the house and land in question from
Patel. Yet, the grantee was not Palacios but rather Harris. Furthermore, this
document also carried what was alleged to be Patel’s signature and markings that
16 indicated it was filed of record with the local county clerk on January 9, 2012. The
residential contract carried a like file-mark, although dated January 30, 2012.
Interestingly, we encountered in the appellate record no written instrument
purporting to convey title to Palacios. There is a “deed of trust” executed on
January 27, 2012, not only naming him as grantor and Harris as beneficiary but
also describing the execution by Palacios of a note payable to Harris. The amount
of the note was $66,000. There is also a “warranty deed with vendor’s lien” naming
Harris as “maker” and Palacios as “payee.” It too alludes to a $66,000 note
payable to Harris by Palacios. Both instruments also contain a legal description of
the realty involved here, and both carry a county clerk’s stamp of January 30, 2012.
Yet, neither expressly convey title of the Patel realty to Palacios.
Other evidence before us disclosed that individuals began entering the Patel
home and removing property from it before Mr. Patel and his daughter actually
landed in India. Their neighbor informed them of same via email. She also
contacted the police. Those found removing the personalty included Harris, who
told both the neighbor and police that he had recently bought the home. Having
evidence of title, he continued taking the furnishings.
To the foregoing we add other bits of evidence. One reveals the nature of
Palacios’s business. He bought homes, repaired them, and subsequently sold the
repaired units. Additionally, while pursuing that endeavor, he became familiar with
the home in question. That was in 2007. Palacios viewed it with a realtor,
determined it needed extensive repairs, and considered the price too high to
17 warrant purchasing it at the time. Another bit of evidence concerns the testimony
imparted by the investigating detective. As previously mentioned, he indicated that
the wives of Harris and Palacios had a “mutual address.” The final bit meriting
comment revealed that Harris and Palacios discussed the acquisition of the home
around the end of 2011 or first week of 2012.
It is a rare case where defendants accused of conspiring to commit tortious
conduct admit it at trial. Thus, circumstantial evidence plays an important role in
proving the claim. And, despite the popular television clichés about the worth of
circumstantial evidence, it indeed has legal, probative value. Circumstantial
evidence, along with reasonable inferences therefrom, may well be enough to
support a factfinder’s decision. See In re Lipsky, 411 S.W.3d 530, 549 (Tex.
App.—Fort Worth 2013, orig. proceeding) (stating that a “civil conspiracy claim
may be proved by circumstantial evidence and reasonable inferences from parties’
actions”), mand. denied, 460 S.W.3d 579 (Tex. 2015). It does here.
Viewing the evidence in a light most favorable to the judgment per Hill, we
find evidence of 1) a pre-existing relationship between the wives of Palacios and
Harris; 2) Palacios’s pre-existing, unfulfilled interest in the Patel home and
acreage; 3) Palacios’s pre-existing knowledge of the high price of the home and
acreage; 4) Palacios’s relative sophistication and experience in the real estate
market given the nature of his business; 5) Harris’s discussing the home and
acreage with Palacios; 6) the short period between Patel leaving for and returning
from India; 7) Harris and Palacios’s executing and filing of record instruments
18 memorializing an agreement to convey and allegedly conveying the highly valued
home and acreage for what one could reasonably call a nominal sum; 8) the
placement of Patel’s signature on those documents at a time when she could not
have been present; 9) the rapidity with which the purported sale was completed;
10) Palacios’s avowed disinterest in seeing the home prior to the transaction’s
completion; 11) the attempt to structure the conveyance in a way suggesting
Palacios was a bona fide purchaser; 12) the rapidity with which the home’s
furnishings were removed by Harris and in which Palacios gained entry; and
13) the coordination of purpose and effort needed to complete the entire process
before the Patels returned home.
Admittedly, there exists evidence of record contradicting the presence of a
scheme and suggesting that Palacios fell prey to the deceit of Harris. Much of it
came from Mrs. Palacios and other defense witnesses. Each could be viewed as
potentially biased given their familial or working relationship with him, though.
Moreover, Mrs. Palacios’s credibility actually came into dispute when she was
directed by Palacios’s attorney to forego answering particular questions about her
commission of potential criminal acts while performing duties as a notary public.
That alone would entitle the factfinder to discredit her honesty. See In re M.L.C.,
No. 04-17-00459-CV, 2017 WL 6597828, at *4 (Tex. App.—San Antonio Dec. 27,
2017, pet. denied) (mem. op.) (stating that “a fact finder may draw an adverse
inference against a parent who pleads the Fifth Amendment”). Consequently, the
19 trial court, as factfinder, was free to disbelieve the defense witnesses and credit
the circumstantial evidence alluded to above.6
In sum, the foregoing is some evidence enabling a factfinder to rationally
infer the existence of a plan to which Palacios and Harris agreed and which
involved the commission of overt and unlawful acts resulting in Patel’s injury. See
First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222
(Tex. 2017) (identifying the elements of civil conspiracy as 1) a combination of two
or more people; 2) who seek to accomplish an object or course of action; 3) who
reach a meeting of the minds on the object or course of action; 4) who undertake
one or more unlawful, overt acts in pursuit of the object or course of action; and
5) who proximately cause damage to the complainant as a result of the
combination). So, the implied finding of conspiracy does have the support of
legally sufficient evidence. See Hill, 2018 WL 1770527, at *7. And, again, because
Palacios did not attack that finding, it must stand.
Sufficient Evidence of Trespass and Damage?
We now address Palacios’s next sufficiency complaint. It concerns the tort
of trespass, and he argued that there was no evidence that his entry onto the realty
“on January 30, 2012[,] caused any damage to the Property” since it was
“undisputed that the personal property was removed before [he] took possession
6 Moreover, Palacios’s failure to also attack the evidence as factually insufficient to support the decision prevents us from deviating from the rather lax standard of review implicit in attacking a verdict as legally insufficient.
20 of the Property and was not removed by [him].” It may be that the personalty within
the home was removed before Palacios physically appeared on the land. Yet, as
we said earlier, there was a conspiracy to displace Patel and of one or more co-
conspirators removing her property. That conspiracy permitted the factfinder to
conclude that Palacios was jointly and severally responsible for damage caused
to the property under the theory of trespass, and we overrule the issue. See id.
Sufficient Evidence of Conversion?
Next, Palacios contended that the evidence was insufficient to illustrate that
he converted Patel’s personalty. This allegedly was so because the conversion
occurred before he stepped foot into the house. In overruling the contention, we
refer the parties to the immediately preceding paragraph. Simply put, the
conspiracy rendered Palacios liable for the acts of those who did remove the items.
See id.
Sufficient Evidence of Fraud?
Next, Palacios asserted that the evidence was insufficient to prove he
committed actual fraud. With that, we agree, given the nature of the fraud
allegation.
Patel based her claim of fraud upon misrepresentations intentionally made
to induce third-parties to act to her detriment. Again, the misrepresentations in
question were not made to Patel but instead to police officers about who owned
the house or to other unspecified third-parties who may have been influenced by
them. This poses problems.
21 A claim of actual fraud encompasses, among other things, a material
misrepresentation upon which the complainant relied to his or her detriment. See
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337
(Tex. 2011) (describing the elements of fraud as including a material
representation made with the intent that the other party act upon it, the party acted
in reliance on it, and the party suffered injury). We find no evidence of Patel’s
relying upon a misrepresentation of Palacios or his compatriots to her detriment.7
So, the evidence is legally insufficient to support the trial court’s decision to allow
Patel to recover damages for actual fraud. See Hill, 2018 WL 1770527, at *7.
Sufficient Evidence to Support Trespass to Try Title?
We next address Palacios’s contention that the evidence was legally
insufficient to support judgment on the claim of trespass to try title. He believed
this was so because “Patel presented no evidence at trial to establish her superior
title” and “such proof was required to prevail on her pleaded claim of trespass to
land.” We overrule the issue.
To be honest, we are not quite sure what Palacios is actually arguing. It
seems as though he suggests that the claim of trespass to try title and the action
to quiet title had to be re-adjudicated at trial despite being resolved via a partial
7 Patel did urge in her brief that “a cause of action for fraud may also be sustained if the Plaintiff can show that the Defendant’s actions caused a third party to reasonably rely to the Plaintiff’s detriment.” Yet, she neither provided us with explanation nor legal authority supporting that terse comment.
22 summary judgment. To the extent that he so suggests, he is wrong. See
Thompson v. Curtis, 127 S.W.3d 446, 449–50 (Tex. App.—Dallas 2004, no pet.).
A legitimately entered partial summary judgment adjudicates the matters
encompassed within summary judgment; we know of no authority mandating that
they be re-litigated in a trial subsequently convened to resolve the remaining
issues. More importantly, he cited us to no legal authority so holding.
On the other hand, he may be suggesting that Patel failed to establish her
entitlement, as a matter of law, to summary judgment on the two claims, and
because she did, it was encumbent upon her to establish superior title at trial. The
problem with that concerns Palacios’s utter lack of briefing targeted at the partial
summary judgment. That is, he failed to provide us with either substantive
argument or legal authority purporting to illustrate why or how the trial court erred
in entering a partial summary judgment declaring Patel “the lawful owner of” the
“improved residential real estate” at issue. And, it is not our obligation to provide
the missing argument or authority for him. Nat. Gas Clearinghouse v. Midgard
Energy Co., 113 S.W.3d 400, 416 (Tex. App.—Amarillo 2003, pet. denied) (stating
that an appellant has the duty to analyze and explain his contentions and that the
reviewing court has no duty to create argument where none is provided). So, in
effect, his notion that summary judgment was inappropriate was inadequately
briefed and, therefore, waived. See id.
23 Sufficient Evidence to Support Action to Quiet Title?
Turning to Palacios’s argument concerning the action to quiet title, Palacios
told us that such an action “is essentially the equivalent to a trespass-to-try-title
action” and that it “is equitable in nature and does not contemplate an award of
damages.” Presumably, he used these contentions as a means of attacking the
trial court’s award of damages upon the claim. We sustain the issue.
The judgment provides that “[w]ith respect to the following causes of action;
Trespass to Real Property, Conversion[,] Fraud, Negligence, Trespass to Try Title
to Action, and Suit to Quiet Title asserted by Plaintiff . . . the Court finds in favor
of said Plaintiff, and Plaintiff . . . Patel is entitled to recover the following amounts
. . . actual and/or economic damages in the amount of $135,000.00.” [Emphasis
added.] As written, the decree can be read as possibly awarding damages to Patel
upon her action to quiet title. This is problematic given that “a suit to quiet title will
not support a recovery of damages.” Luce v. Singdahlsen, 636 S.W.2d 571, 574
(Tex. App.—Fort Worth 1982, writ ref’d n.r.e.). So, to the extent that the trial court
awarded Patel damages upon her suit to quiet title, it erred.
Sufficient Evidence to Support Joint and Several Liability
Palacios next asserted that “the lack of pleading is fatal to Patel’s recovery
of a judgment holding [him] jointly and severally liable,” and “[t]he lack of legally
sufficient evidence to support imposing joint and several liability is also fatal” under
chapter 33 of the Texas Civil Practice and Remedies Code. We overrule the issue.
24 As previously discussed, the issue of joint and several liability was tried by
consent. So too did the trial court impliedly find that Palacios engaged in a civil
conspiracy. Establishing that the defendants engaged in a civil conspiracy
rendered each conspirator responsible for all acts done by any conspirator in
furtherance of the conspiracy. Lipsky, 411 S.W.3d at 549. In other words, they
are jointly and severally liable for the actual damages caused in furtherance of the
conspiracy. LandAm. Commonwealth Title Co., 2015 WL 6545685, at *11.
Consequently, there is sufficient evidence to impose joint and several liability upon
Palacios. See Hill, 2018 WL 1770527, at *7.
Sufficient Evidence to Support Damages
Next, we address the contention that the evidence was legally insufficient to
support the amount of actual damages awarded, that is, $135,000. Palacios
believed the evidence legally insufficient because 1) there is no evidence that the
cost estimates were reasonable, and 2) the evidence conclusively established that
Palacios’s conduct did not proximately cause the alleged damages. We sustain
the issue in part.
Regarding causation, the argument is premised on the allegation that
Palacios did not personally convert any personalty or damage any realty. This,
however, does not take into consideration his joint and several liability as a
conspirator. As such, he is responsible for the acts of any other conspirator done
in furtherance of the conspiracy. So, it is inconsequential that the evidence may
fail to illustrate that he did any damage or took any personalty himself.
25 As for the amount of damages awarded, we begin with observing the various
causes of action for which damages may be awarded and the measure applicable
to each. The first is conversion. Generally, the measure applicable to it is the fair
market value of the property at the time of conversion, with legal interest. Henson
v. Reddin, 358 S.W.3d 428, 436 (Tex. App.—Fort Worth 2012, no pet.).
Alternatively, the measure of damages may be the actual value of the property to
the owner at the time of loss if the converted personalty has no readily
ascertainable fair market value. Id. Should that measure apply, then the purchase
price of the items taken is probative evidence, even though it may not be enough
to withstand a factual sufficiency attack. Id. at 437 (stating that “[t]estimony and
evidence regarding purchase price, however, standing alone, is not factually
sufficient to support a fair-market-value damages award or an actual-value
damages award”). Incidentally, used or second-hand home furnishings (like those
at bar) have been held to fall within the category of property having no readily
ascertainable fair market value. See Espronceda v. Espronceda, No. 13-15-
00081-CV, 2016 WL 3225860, at *5–6 (Tex. App.—Corpus Christi June 9, 2016,
no pet.) (mem. op.) (so noting); Wutke v. Yolton, 71 S.W.2d 549, 551–52 (Tex. Civ.
App.—Beaumont 1934, writ ref’d) (so noting).
As for trespass, the damages recoverable reflect the sum necessary to
make the victim whole or place him in the position he would have been but for the
trespass. Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 921
(Tex. 2013). That sum includes the cost to repair any damage to the property, the
26 loss of use of the property, and the loss of any expected profits from the property’s
use. Id. When the trespass is knowing and intentional or malicious, other forms
of damage may be recoverable. Id. at 922. For example, the victim may be
awarded damages to recompense emotional distress or mental anguish when the
trespass is willful and causes actual property damage. Id. Exemplary damages
may also be awarded under certain circumstances. Id.
A similar measure to that of trespass applies in suits involving trespass to
try title. Id. at 921. The damages available include lost rents and profits, damages
for use and occupation of the premises, and damages for any special injury to the
property. Id.
Having described the pertinent measures of damage, we turn to Palacios’s
argument concerning conversion. In making it, he referred to the evidence utilized
by Patel to establish her loss, acknowledged that it consisted of what the items
cost her two years earlier, and concluded that because she “presented no
evidence that any of those costs were reasonable,” the evidence was insufficient
to establish her damages. Yet, as discussed above, the applicable measure of
damages is not the reasonableness of an item’s purchase price but either its fair
market or actual value. About those actual, applicable measures, Palacios says
nothing.
Instead, he would have us apply a measure utilized when recovering the
cost of repairing damaged property. His references to the supreme court’s opinion
in McGinty v. Hennen, 372 S.W.3d 625 (Tex. 2012), and this court’s opinion in Fort
27 Worth Hotel Ltd. Partnership v. Enserch Corp., 977 S.W.2d 746 (Tex. App.—Fort
Worth 1998, no pet.), illustrate as much. See, e.g., McGinty, 372 S.W.3d at 627–
28 (discussing whether the evidence was legally sufficient to sustain an award of
remedial damages arising from a breach of a construction contract and specifying
that, under the circumstances, the damages should be measured by the cost to
complete or repair less the unpaid balance on the contract price); Fort Worth Hotel
Ltd. P’ship, 977 S.W.2d at 762 (stating that “[a] party seeking recovery for the cost
of repairs must prove their reasonable value”). We find no evidence of record
suggesting that Patel recovered any of the stolen property, repaired it, and sought
to recover damages for those repairs. She sought damages for the utter loss of
her property. So, Palacios’s effort to apply the wrong measure of damages to
illustrate that they lacked sufficient evidentiary support is of no moment.
Regarding the damages relating to the claims of trespass and trespass to
try title, the record indicates that two exhibits were offered into evidence purporting
to illustrate the costs of repairing the damage to the home. Yet, neither exhibit was
actually admitted into evidence by the trial court. Thus, neither may be considered
by us in gauging the sufficiency of the evidence. See Barnard v. Barnard, 133
S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. denied) (stating that “[a]s a
general rule, documents not admitted into evidence are not considered by an
appellate court”); see also Williams v. Williams, No. 02-08-00033-CV, 2008 WL
5194227, at *6 (Tex. App.—Fort Worth Dec. 11, 2008, no pet.) (mem. op.) (holding
that because the inventory and appraisement was not admitted into evidence, the
28 value of the horse named “Pflamenco” mentioned in it could not be considered as
evidence of its value).
Nonetheless, Mr. Patel testified, without objection, to the cost of repairing
the home and provided the trial court with a range of those costs. That range
began at $85,000 and ended at $180,000. A building contractor also testified
about the cost for repairing aspects of the house and the estimate he provided
Patel. That estimate was $85,000. Other evidence revealed that the repairs
encompassed repainting the entire interior of the home, repainting the home’s
exterior soffits and facia, repairing or replacing broken windows, repairing electrical
outlets, repairing a bar, replacing 9,500 square feet of flooring, repairing sheetrock,
and repairing the stairs. The contractor also stated that the repairs were
“necessary” to make the house habitable. So too did he later reveal that 1) with
regard to the flooring he was “talking about . . . updating what [he] think[s] needs
to be replaced because of the age” or “obsolescence,” and 2) his bid included the
replacement of marble flooring that was in “good condition” or “pretty good shape”
for about $2,800. But other than for the marble flooring none of the aforementioned
repairs were assigned a particular repair or replacement cost. They were simply
lumped into a general $85,000 estimate.
Mention was also made of replacing all seventy-three windows in the house
and the possibility of obtaining replacements of like kind and quality as those
initially installed. The cost of doing that approximated $60,000. From the context
of what the contractor said, the replacement included more than just the glass; it
29 encompassed substituting entire windows—frame and all. Why each of the
seventy-three needed replacement went unmentioned, though. Whether each
was broken and, if so, whether Palacios or any of his compatriots broke them
garnered no attention at trial.
As can be seen, a hodgepodge of repairs was being undertaken and for
which Patel sought payment. Nothing indicated that Palacios and his compatriots
damaged every item purportedly necessitating repair or replacement, though. For
instance, no one described how they damaged the home’s exterior soffits and facia
or how their conduct required the replacement of all seventy-three windows and
frames. Nor does any evidence indicate that their actions damaged all the interior
walls or the paint on every interior wall and piece of molding.
More importantly, though, is the absence of evidence regarding the
reasonableness of the costs involved. Admittedly, the contractor opined that the
repairs were “necessary,” but more was required. As said in Hernandez v.
Lautensack, 201 S.W.3d 771 (Tex. App.—Fort Worth 2006, pet. denied), the
claimant must “present sufficient evidence to justify a . . . finding that the costs
were reasonable and the repairs necessary.” Id. at 776–77 (emphasis added).
While the contractor said that the repairs were necessary to make the home
habitable, he said nothing about the reasonableness of his charges. And though
neither he nor anyone else was obligated to utter the words “‘reasonable and
necessary,’” id. at 777, the evidence nevertheless had to be sufficient to enable
one to rationally infer that the proposed costs were reasonable. We found no
30 evidence supporting such an inference. Mr. Patel simply alluded to a range of
costs represented by estimates he received. So too did the contractor express an
estimate of what he would charge for performing the repairs. From where either
obtained their respective figures went unmentioned, as did whether the sums
reflected costs normally charged by others for like repairs.
To the extent that Patel suggested the contractor’s use of the phrase “like
and kind” quality somehow filled the void, we note that the passage was used
solely in reference to replacing all seventy-three windows by having them custom
built. Those are the very windows to which we alluded when discussing the
absence of evidence pertaining to causation.8 That the contractor sought to
replace entire windows that Palacios may not have damaged with windows of “like
and kind” quality hardly permits one to rationally infer that whatever costs were
attributed to replacing all flooring, repainting every wall within the home, repainting
exterior fascia and soffits, and replacing sheet rock and the like were reasonable.
What we have here is little more than evidence of the amount a contractor
would charge to perform repairs. But, proof of the amounts charged is not
evidence that the amounts were reasonable. See McGinty, 372 S.W.3d at 627.
Without more, we are unable to conclude that legally sufficient evidence appears
8 Interestingly, the contractor also neglected to explain the basis underlying his estimate indicating that it would cost $60,000 to replace each window. Apparently, they would have to be custom built but whether that figure was related in any way to the cost of custom built windows or what custom builders would generally charge to make them is unknown.
31 of record to support an award of damages for trespass to try title and general
trespass.
The problem before us now likens to what some would call a Casteel
situation, that is, a situation wherein an award is comprised of both valid and invalid
components. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000)
(op. on reh’g) (recognizing the presence of possible error when the jury is
submitted a broad-form liability question incorporating both valid and invalid
theories of liability), abrogated on other grounds by Sky View at Las Palmas, LLC
v. Mendez, No. 17-0140, 2018 WL 2449349, at *7–8 (Tex. June 1, 2018). Though
Casteel involved a jury trial, its reasoning also encompasses non-jury trials
wherein the damage award commingled recovery under valid and invalid theories.
Nugent v. Estate of Ellickson, 543 S.W.3d 243, 268 (Tex. App.—Houston [14th
Dist.] 2018, no pet.) (op. on reh’g). Furthermore, when such situations arise, they
normally require reversal unless the reviewing court can be reasonably certain that
the factfinder’s decision was not significantly influenced by the inclusion of invalid
grounds of recovery. Id.; see also Romero v. KPH Consol., Inc., 166 S.W.3d 212,
227–28 (Tex. 2005) (involving a Casteel situation and holding that “unless the
appellate court is ‘reasonably certain that the jury was not significantly influenced
by issues erroneously submitted to it,’ the error is reversible” (footnote omitted)).
Here, we cannot but conclude that the trial court’s cumulative damage award
was significantly influenced by the assessment of damages unsupported by the
evidence. For instance, the record contains evidence describing both the
32 particular household furnishings that were converted and the price Patel paid for
each. As said in Henson, that price is some evidence of the actual value of the
item taken. Adding them together gives us a sum approximating $26,633.86. The
latter is obviously much less than the $135,000 awarded by the trial court “on the
causes of action for Trespass to Real Property, Conversion[,] Fraud, Negligence,
Trespass to Try Title to Action, and Suit to Quiet Title.” So, we are reasonably
certain that the trial court’s damage finding was greatly influenced by the decision
to award damages for which there was no evidentiary basis.
When there exists some evidence of damages but not enough to support
the entire award, we may not render judgment. See Akin, Gump, Strauss, Hauer
& Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 124 (Tex. 2009).
The usual course of action in such situations is to assess the possibility of remittitur
or remand for a new trial. Id. The circumstances leading us to conclude with
reasonable certainty that harmful error occurred also indicates that the suggestion
of remittitur is a viable course of action.
Thus, we suggest, under Texas Rule of Appellate Procedure 46.3, that the
$135,000 award for damages be remitted by $108,366.14. Should the suggestion
be accepted by Patel, the trial court’s judgment will be modified by 1) reversing the
sums awarded for both attorney’s fees and exemplary damages; 2) denying the
recovery of damages upon the causes of action for trespass to real property, fraud,
negligence, trespass to try title, and suit to quiet title; 3) allowing recovery of
damages upon the cause of action for conversion; 4) awarding “actual and/or
33 economic damages” for said conversion in the amount of $26,633.86; 5) awarding
$2,774.36 as “prejudgment interest on such damages measured from
November 17, 2012, at the rate of 5% per annum”; and 6) declaring Patel to be the
true and sole owner of the realty in question. If the suggestion of remittitur is
rejected by Patel, we will modify the judgment by 1) reversing the awards for
attorney’s fees, exemplary damages, “actual and/or economic damages,” and
prejudgment interest; 2) denying the recovery of damages upon the causes of
action for trespass to real property, fraud, negligence, trespass to try title, and suit
to quiet title; 3) declaring Patel to be the sole and true owner of the realty in
question; and 4) reversing and remanding for new trial the causes of action of civil
conspiracy and conversion.9
/s/ Brian Quinn
BRIAN QUINN CHIEF JUSTICE
PANEL: SUDDERTH, C.J.; PITTMAN, J.; QUINN, C.J. (Sitting by Assignment).
SUDDERTH, C.J., filed a concurring opinion.
PITTMAN, J., concurs without opinion.
DELIVERED: June 7, 2018
9 We cannot reverse for a new trial on damages when liability is disputed. See Tex. R. App. P. 44.1(b) (so stating). Palacios disputed his liability for conversion. And, because we determined that his liability for conversion was founded upon the theory of civil conspiracy and evidence of record indicates that he defended himself against all allegations of misconduct, that cause of action must also be retried upon rejection of remittitur.