In the Estate of Jose C. Montemayor v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 23, 2023
• Docket: 09-21-00054-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00054-CV __________________

IN THE ESTATE OF JOSE C. MONTEMAYOR, DECEASED

__________________________________________________________________

On Appeal from the County Court at Law No. 2 Brazos County, Texas Trial Cause No. 16,037-PC __________________________________________________________________

MEMORANDUM OPINION

Francisca Montemayor as Independent Executrix of the Estate of Jose C.

Montemayor (Francisca or Appellant) appeals the judgment in favor of Zane

Anderson (Anderson or Appellee) from a 2014 lawsuit filed by Anderson against

Jose Montemayor (Jose) and Jose’s guardians for specific performance of contracts

signed by Jose and Anderson in March 2013 for the sale of five parcels of real

property in Bryan, Texas.1 After Jose and his guardians were served with the lawsuit

1 This case was transferred to our Court from the Tenth Court of Appeals in Waco, Texas under an order issued by the Supreme Court of Texas. See Tex. Gov’t Code Ann. § 73.001. 1 and after his guardians filed an answer on his behalf, Jose died, and his sister,

Francisca, was appointed executrix of his estate and entered an appearance as the

defendant. The jury found in favor of Anderson, and the trial court entered a

judgment in accordance with the jury’s verdict.

Francisca appeals raising three issues. In her first two appellate issues,

Appellant challenges the sufficiency of the evidence supporting two of the jury’s

findings. In issue three, Appellant argues that, based on her arguments in issues one

and two, she should have been the prevailing party and awarded attorney’s fees.

Finding no error, we affirm.

Background

Anderson filed Plaintiff’s Original Petition (“Anderson’s Petition”) against

Jose and his guardians (Edmundo “Javier” Posadas, Karla Carrera, and Sergio

Carrera) claiming Jose and his guardians failed to perform under five real estate

contracts. Anderson sought specific performance of all five written contracts.

Anderson alleged that he had agreed to buy, and Jose had agreed to sell him, the five

pieces of property. Anderson and Jose executed the real estate contracts prior to a

guardianship proceeding over Jose which was later filed by Jose’s relatives.

According to Anderson’s Petition, Anderson and Jose entered into the

contracts on March 4, 2013, and the purchase price for all five properties was a total

of $535,000. On April 17, 2013, Javier, Karla, and Sergio filed an application for

2 Guardianship of the Person and Estate of Jose Montemayor. On May 24, 2013,

Javier, Karla, and Sergio were appointed as Temporary Guardians of the Person and

Estate of Jose Montemayor, and on August 27, 2013, they were appointed as

Permanent Guardians of the Person and Estate of Jose Montemayor. Anderson’s

Petition alleged that Anderson timely performed or tendered performance of all his

obligations under the contracts and he remains ready, willing, and able to complete

the contracts. Anderson alleged that Jose and the guardians have failed to fulfill their

obligations under the contracts. Anderson sought specific performance of the

contracts and reasonable and necessary attorney’s fees.

The guardians filed a general denial answer and asserted affirmative defenses

that Jose lacked capacity to contract, that Jose entered into the contracts as a result

of undue influence, and that the contracts were unenforceable. After Jose died,

Francisca, as executrix of Jose’s estate, entered her appearance as the defendant and

filed Defendant’s First Amended Original Answer and Counterclaim, generally

denying Anderson’s allegations and asserting that Jose was excused from complying

with the obligations under the contracts because he lacked sufficient mind and

memory to understand the nature and consequences of his acts and the business he

was transacting. The pleading also asserted a counterclaim for attorney’s fees against

Anderson if Francisca prevailed.

3 After a trial, the jury found (1) Jose failed to comply with the earnest money

contracts; (2) Anderson was ready, willing, and able to perform the contracts; (3)

Jose’s failure to comply was not excused because at the time he signed the contracts

he had sufficient mind and memory to understand the nature and consequences of

his acts and the business he was transacting; (4) the amount of reasonable fees for

the necessary services of Anderson’s attorney; and (5) the amount of reasonable fees

for the necessary services of the personal representative of the estate’s attorney.

Anderson filed a Motion for Judgment, Francisca filed a Motion for Judgment

Notwithstanding the Verdict, and Anderson filed a response. The trial court signed

a judgment for Anderson on the jury’s verdict, ordered specific performance of the

commercial real estate contracts, and awarded Anderson attorney’s fees. Francisca’s

post-judgment motions were overruled by operation of law, and she appealed the

trial court’s judgment. We affirm.

Evidence at Trial 2

Testimony of Zane Anderson

Zane Anderson testified that he had been a real estate broker since 2002 and

had “done a lot of redevelopment of downtown historic buildings, older property

redevelopment.” According to Anderson, he knew Jose because they lived down the

2 In this memorandum opinion, we only discuss evidence pertinent to our discussion of the issues on appeal. 4 street from each other when Anderson was a child, and he also knew Jose from

“being a downtown business person[]” that Anderson would see maybe once a year

at business association events, and Anderson knew Jose “[j]ust casually” from eating

at Jose’s restaurant and visiting with him there. Anderson testified that he regularly

ate at Jose’s restaurant with a friend, Sam Boggan. Boggan was a banker at Wells

Fargo where Jose banked, and one day Jose stopped by Boggan’s desk at the bank

and told him he wanted Boggan to put Anderson in contact with Jose because Jose

was interested in selling some property. Boggan contacted Anderson in August of

2012 and told him that Jose wanted to talk about selling a building. Anderson

testified that he did not initially call Jose because Anderson was involved in other

projects and did not really have the time or finances to jump into another project. In

October of 2012, after Jose had inquired again with Boggan, Anderson called Jose

and they set up a meeting.

Anderson testified that he and Jose met at Jose’s restaurant in October, they

sat at a table in the restaurant during business hours, and they discussed that Jose

wanted to sell some properties. Jose was leaving for Mexico the next day, so he

asked Anderson to call him in a couple of weeks so he could show Anderson the

properties. According to Anderson, during the meeting Jose was glad that Anderson

had finally contacted him and seemed “like himself; friendly and happy[,]”

Anderson had no concerns about Jose’s ability to understand their conversation or

5 about moving forward with a real estate contract with Jose, and no one at the

restaurant expressed concerns about Anderson visiting with Jose about real estate or

a business deal.

Later that month, Anderson called Jose and Jose showed him five downtown

properties that he was interested in selling to Anderson, and Jose said that his

motivation for selling the properties was that he was tired of paying property taxes

on them. Jose had other properties including his restaurant that he was not selling at

that time. Anderson testified that Gary McKinzie, whom Anderson had never met

before, was with Jose when Jose showed Anderson the five properties. Jose told

Anderson that McKinzie was Jose’s “trusted friend[]” and someone who helped Jose

with maintenance on his buildings. Jose brought with him a stack of cards from the

tax appraisal district for each property that he was wanting to sell, and the cards

showed basic details regarding each property such as the current value of the

building, square footage of the building, and the square footage of the land under the

building. When they left the meeting, Jose told Anderson that he and McKinzie

would talk things over, and later McKinzie would get back with Anderson regarding

the selling price for the buildings. Anderson testified that as Jose showed him the

properties, Jose seemed to know what he owned and understood the questions

Anderson asked him.

6 Anderson testified that in December of 2012, McKinzie contacted him and

stated the selling price for all five properties was about $600,000. Anderson asked

for any leases on the properties so he could consider those when making a

counteroffer, and McKinzie told him that Jose had gone to Mexico again and it might

be a while until McKinzie could get the leases to Anderson. Anderson testified that

at that time he was familiar with the market price of downtown properties. In

February of 2013, McKinzie gave him copies of the leases for two of the properties

that were leased, and after considering the repairs and renovations that would be

required, Anderson met with McKinzie and counter-offered with what he believed

was a fair offer -- $515,000 for the five properties -- which was about twenty percent

over the appraised value. McKinzie called him and countered with $535,000, and

Anderson told him that they had a deal, and Anderson would have the contracts

drawn up. Anderson testified that McKinzie seemed to be knowledgeable, a “good

business person[,]” and “pretty astute at real estate contracts.” Anderson believed

that at the time the contracts were prepared in 2013 the total market value of the

properties was in the range of the contracted price of $535,000 and that neither he

nor Jose was getting a particular good or bad deal.

Anderson testified that he prepared the five contracts, that each contained

boilerplate contract language for commercial properties and promulgated by the

Texas Association of Realtors, and McKenzie picked them up from Anderson’s

7 office. According to Anderson, he was going to get bank financing for four of the

properties and he had asked Jose to owner finance the fifth property for two years so

that Anderson could reduce closing costs by avoiding paying for appraisals on the

four by using their tax appraised values and then the selling price of the fifth property

was the difference in the $535,000 total selling price. Anderson testified that each of

the contracts had a closing day of the later of May 31, 2013, or seven days after

objections to the title commitment had been cured, but since no objections were

made to the title commitment the closing date was May 31, 2013. McKinzie brought

the contracts back to Anderson and they were signed by Jose and then Anderson

signed them. Anderson took the contracts along with his $5000 earnest money check

to a title company.

Anderson testified that to prepare for closing on the contracts he took the

contracts to his bank to have his banker start the loan process, and he ordered surveys

on the properties the bank was financing because Jose did not have copies of the

surveys and the bank wanted them. According to Anderson, the bank ordered

appraisals done on the four properties to close the loan and the interest rate for the

four loans financed by the bank was “around four and a half percent.” Anderson

testified he did not anticipate a problem in closing the transaction until he received

a phone call from Chalon Jones on April 18, 2013. Jones identified himself as Jose’s

former attorney, told Anderson that he was aware of Jose’s real estate contracts with

8 Anderson, said that there was a 95% chance that they would not be able to close

because he believed Jose lacked capacity to sign the contracts or sell the properties,

and he stated that Jose did not understand the tax consequences of the sale. Anderson

testified that he knew Jones was a local lawyer but did not know him personally and

Jose had never mentioned him, and Anderson was shocked by Jones’s call “out of

nowhere.” When Jones asked Anderson what title company was being used,

Anderson realized Jones did not know much information and Anderson told him he

was not comfortable talking to him. Thereafter, Anderson called McKinzie and

McKinzie informed him that they were trying to “clear up” a problem, that Jones

was Jose’s former attorney that Jose had fired a year earlier, and that Jones and some

of Jose’s family had said he was incapacitated and had the court place him in a

temporary guardianship. McKinzie said that Jose was still at the restaurant and in

care of his family and that Anderson could go up to the restaurant and talk to Jose,

but that the family members had a temporary restraining order against McKinzie and

two of Jose’s employees. Anderson testified that the next day he went to the

restaurant and sat down and talked to Jose, the visit was similar to the other visits he

had with Jose, no one approached and told Anderson he could not do business with

Jose, it was apparent to Anderson that Jose understood who Anderson was and why

he was there, Jose seemed lucid, and it was Anderson’s impression that he and Jose

both still wanted to go forward with the contracts. Anderson testified that at the time

9 he did not have anything to do with or understand what was transpiring with the

guardianship.

Anderson testified that he had done everything required of him to close on the

contracts, and that based on the commitments, the appraisals, the surveys, and

arranging things with the bank, he was fully committed, fully prepared to close on

the properties on May 31, 2013. According to Anderson, Anderson sent Jose’s

attorney a letter stating Anderson was ready, willing, and able to still perform on the

contracts and was willing to close on May 31, 2013, under the agreed upon terms.

Anderson testified that at the time of trial he was still ready, willing, and able to

purchase the properties on the agreed upon terms (with a different closing date due

to the passage of time). Anderson testified about what needed to be done to close on

the properties, and Anderson stated, “[e]verything’s done really. It’s kind of been

done for years now.”

According to Anderson, at the time the contracts were signed and based on

his interactions with Jose over the preceding months before they signed the

contracts, Anderson had no concerns about Jose signing the contracts, Anderson had

no awareness that there was any problem with the contracts or with Jose signing

them, Anderson never got the sense that Jose did not understand the properties that

he owned or that he was selling the five properties and that he was going to receive

money and a note, and Anderson had no concerns whatsoever that Joe lacked

10 capacity. According to Anderson, he was asking the court and the jury to go forward

with the contracts that he agreed to in 2013.

Testimony of Sam Boggan

At trial, excerpts of the deposition of Sam Boggan were read into the record.

Boggan testified that he was a banker at Wells Fargo Bank from May of 2011 until

July of 2020. According to Boggan, he and Anderson had been friends for close to

ten years and Anderson owned many buildings downtown. Boggan had known Jose

since 2008 and would speak to Jose at Wells Fargo where Jose conducted his

banking business, and Boggan also spoke to Jose when he ate lunch at Jose’s

restaurant weekly, up until 2013 when Boggan began working at a different branch

and stopped eating lunch at Jose’s. Boggan would usually deal with Jose directly at

the bank and would help him if he was needing assistance that the tellers could not

provide, like if he needed a large amount of cash.

Boggan testified that he knew that Jose owned buildings downtown because

Jose would speak about having to make repairs, and Boggan remembered that

sometime in 2011 at Jose’s restaurant Jose mentioned having to repeatedly make

repairs to one of his buildings and he was frustrated. In late 2011, after Jose saw

Boggan having lunch with Anderson at Jose’s restaurant, Jose asked Boggan if he

could ask Anderson to call Jose about buying some of Jose’s buildings downtown

and Jose said he was tired of paying the taxes and having to make repairs on the

11 buildings. Boggan testified he told Jose he would talk to Anderson, Boggan called

Anderson and told him Jose wanted to speak to Anderson about buying some of

Jose’s buildings downtown, and Anderson seemed interested. Later, Jose called

Boggan at the bank to inquire if Boggan had spoken to Anderson, and Jose “stayed

on” Boggan for about a month until Anderson finally contacted Jose.

Boggan explained that Jose generally seemed to know what he was talking

about and did not seem in any way mentally disoriented. Boggan last saw Jose in

2012.

Testimony of Gary McKinzie

Gary McKinzie testified he owned an air conditioning business, he met Jose

when he fixed Jose’s restaurant’s air conditioning, and from there a long friendship

began. McKinzie testified he ate at Jose’s restaurant almost every day for lunch for

ten or twelve years. According to McKinzie, he did not initially know that Jose

owned other buildings besides the restaurant, but over time Jose began asking

McKinzie to make air conditioning or electrical or other repairs to all of Jose’s

buildings downtown.

McKinzie went to the tax office with Jose, a tax office employee gave Jose a

list of the total taxes he owed on his properties, and Jose complained about paying

the taxes for so long and mentioned wanting to sell his properties. According to

McKinzie, one day Jose mentioned that he had talked to his banker about seeing if

12 he knew anyone that would be interested in buying the properties, and then a couple

of days later Jose called McKinzie and asked him if he could meet a potential buyer

at one of the properties and then take him to look at the other properties because

McKinzie knew all about the properties. McKinzie met Jose and Anderson at the

first location along with one of McKinzie’s employees, and then they went to see

the other properties. McKinzie testified that the properties looked outdated and

needed repairs, and he explained the condition of the properties as he showed them

to Anderson so that Anderson could make a fair and accurate assessment of the

properties.

McKinzie testified that when Anderson made an initial offer, McKinzie told

Jose he felt like Jose could get a higher price and Jose “followed [McKinzie’s] lead

in making the counter[,]” and they felt like that price was the market price

considering the properties’ overall value, repairs that were needed, and any leases in

place. McKinzie testified that when Anderson brought him the contracts, McKinzie

and Jose went over them in the restaurant dining area, Jose signed all the documents,

and they spent approximately four hours talking about the contracts. McKinzie

testified that they reviewed one of the contracts “line by line[]” and then compared

the other four contracts to that one to see any differences.

McKinzie explained that Jose “sought the buyer[,]” and McKinzie believed

Jose understood that he was selling the five properties listed in the contracts, Jose

13 understood the prices he was getting per property, and how the owner financing was

set up on the one property. According to McKinzie, while they were meeting, none

of the employees or people around interrupted nor did they question Jose’s ability to

do business. At the time Jose signed the contracts, McKinzie had no concerns about

Jose not being “lucid.” McKinzie stated that “[a]t the time the contracts were signed,

there [was] no doubt in my mind that Jose knew what he was doing[.]” According

to McKinzie, “on that day that those [contracts] were signed, there was nothing

wrong with Jose.” If something had been wrong with Jose, McKinzie would have

been the first person to step in, and before Jose signed the contracts McKinzie never

saw anything whatsoever that gave him concern about Jose’s mental condition or his

cognitive abilities.

McKinzie said he had done business with Jose for sixteen years and Jose was

his friend, he did not charge Jose anything for helping him with the contracts, and

Jose did not pay him any kind of brokerage fee. According to McKinzie, once the

guardianship was in place, he would visit Jose at his mother’s house, but at some

point multiple family members made a point to be there when McKinzie came over,

McKinzie worried about “what it would put on Jose” and he told Jose that he thought

it was best that he not come by anymore. McKinzie testified that Jose said that he

understood, and that was the last time McKinzie saw or talked to Jose. According to

McKinzie, other than paying for his business services, over the years Jose had

14 occasionally tried to give McKinzie things, like some heirlooms from a storage unit

that Jose had paid McKinzie’s brother-in-law to clean out and some gold pieces in a

safe he had asked McKinzie to help him get open, but that McKinzie had declined

the gifts. McKinzie testified that at one time Jose owed him approximately $63,000

for work, and that often when Jose would come back from Mexico, he would pay

large portions to McKinzie towards the amount he owed. McKinzie agreed that over

the years it was possible that his company billed Jose for over $200,000 worth of air

conditioning and heating and electrical work, and that McKinzie had other individual

customers that gave him as much business as Jose. McKinzie testified that he took

Jose to Dr. Barrow to address his diabetes because his blood sugar was “400[,]” and

McKinzie was diabetic and knew that level of blood sugar was a concern. McKinzie

said he would not be surprised if there were medical records stating that Jose suffered

from memory loss, dementia, and possible Alzheimer’s. According to McKinzie, at

the time of Jose’s death, Jose owed McKinzie $10,000, and although McKinzie filed

a claim against the estate for that debt, he ultimately non-suited the claim.

Testimony of Edmundo Javier Posadas Montemayor

Edmundo Javier Posadas Montemayor (Javier) testified that he was Jose’s

oldest nephew and that his mother was representing Jose’s estate in this case.

According to Javier, he, his sister Karla, and his sister’s former husband, Sergio,

were the three co-applicants in the guardianship proceeding that started in April of

15 2013. Javier testified he was an accountant and lived in Houston where he works in

oil and gas, and he has worked for several companies for the past twenty-five years.

Javier testified that growing up he would spend time in College Station and work at

Jose’s restaurant and that he was close with Jose. Although Javier moved to Houston,

Karla and Sergio continued to live in College Station and would see Jose on the

weekends and every other day.

Javier testified that Chalon Jones had been Jose’s attorney for twenty or thirty

years for business transactions and for estate planning. According to Javier, in 2006

Jones did some estate planning for Jose that included a statutory durable power of

attorney naming Karla and Sergio as the family members in town to serve as Jose’s

agents in the event that Jose could not make decisions for himself in the future. Javier

testified that when the durable power of attorney was executed there were no

concerns about Jose’s capacity. Javier testified that prior to 2011, Jose successfully

ran his restaurant, owned multiple properties, traveled back and forth to Mexico, and

participated in community affairs, but in 2011 Jose’s family started to notice a

decline with Jose.

Javier testified in May of 2011 or 2012 when he visited the restaurant,

employees informed him, “you need to watch over your uncle because things are

happening[,]” but they never gave any details. In 2011 or 2012, Javier went to his

grandmother’s house where Jose stayed, and it was “ransacked” like it had been

16 broken into, but Jose did not have an explanation for it. Javier testified that Jose and

Javier’s grandmother would often go to Mexico and two of Jose’s restaurant

employees had access to the house to check on the property. Javier contacted Adult

Protective Services after the house had been “trashed” and because Jose had been

aggressive with family, and they were concerned about him being taken care of when

the family was away.

Javier testified that Jose was 70 or 71 years old when he began mentally

declining, and Jose seemed preoccupied, he lost credit cards, employees were

reporting that he was forgetting things, he was repetitive in his storytelling, and he

was getting notices from the State Comptroller’s Office relating to invoices from

McKinzie for which sales tax had not been charged. Raquel, the manager at Jose’s

restaurant for twenty years, would help Jose with health matters and would

communicate with the family about Jose’s health. Javier noticed charges appearing

on Jose’s credit card statements for cards he had lost, that two restaurant employees

had access to the cards, and when Jose was told about the charges, he did not seem

alarmed but said that he must have misplaced the cards. Javier testified that in 2012,

he was having dinner with Jose at Jose’s restaurant and Jose would not eat until

Javier told him to eat. Javier asked Jose if he could do an inventory on the restaurant

to see what was going on with the finances, and Jose agreed. When Javier began

looking into the restaurant’s finances, his and Raquel’s suspicion that the two

17 restaurant employees were taking advantage of Jose increased. Javier said he was

unable to complete the inventory because one of those two employees Javier was

suspicious of called Jose in Mexico, and then Jose called Javier and accused him of

stopping business at the restaurant and stealing from him. In 2012, Jose executed a

revocation of the prior power attorney, and around the same time, Jose ended his

business relationship with Jones, who had been Jose’s personal attorney for over

thirty years. According to Javier, Jose was also not collecting all the rent owed him,

tenants were complaining he was not making repairs, maintenance on the restaurant

was not being performed, there were cash flow problems and failure to pay vendors,

and the two restaurant employees Javier was suspicious of were running more and

more of the business.

Javier believed that by around 2012 Jose’s mental health had declined. Javier

testified that his belief was supported by the May 2012 letter of Dr. Thomas Ginn,

their family doctor, that was obtained by Jones in an effort to resolve the issue with

the State Comptroller’s Office, and the letter stated that Jose was suffering from

dementia and that Jose had been to see a neurologist. Javier believed Jose had seen

two neurologists and that by May 2012 both neurologists found Jose suffered from

dementia and possibly Alzheimer’s. According to Javier, in 2012, every time Javier

offered to help Jose, he would refuse help and then turn to McKinzie and the two

restaurant employees Javier was suspicious of. Jose gave one of the two employees

18 a truck in exchange for mowing Jose’s grass, gave the other employee’s child a

collection of gold coins, and his expensive furniture ended up at the two employees’

homes.

Javier testified that in March of 2013, the same day the contracts were signed,

Jose was hospitalized with high diabetes, he was not taking his medications properly,

and was not addressing his dehydration. Jose stayed overnight and was released the

next day from the hospital. Javier testified that in April 2013, he received a call from

Raquel that Jose was at the restaurant with McKinzie and the two restaurant

employees, and McKinzie was having Jose sign documents. According to Javier,

Raquel also called Jones and Jones told her the family had “screwed up” because in

2012 they did not get a guardianship, and they should have listened to Jones’s advice

and should have filed for guardianship in 2012. Javier testified that after Raquel’s

call in April 2013 about Jose signing documents (which Javier agreed that based on

timing could not have been the contracts on the five properties), Javier “panicked”

and he and Karla and his former brother-in-law decided to act.

Javier, Karla, and Sergio filed a temporary guardianship application, a

temporary restraining order to keep the two employees and McKinzie away from

Jose’s finances, and a lis pendens on Jose’s property. The guardianship application

was file-stamped April 17, 2013. In April 2013, a temporary restraining order was

signed as to the two restaurant employees and McKinzie, and Javier testified that

19 they waited until 2013 to seek help from the court because the family was reluctant

to act because they did not want to cause Jose’s mental health to further decline.

According to Javier, over the next year after he qualified as temporary guardian,

Jose’s mental health further declined, and the cost for Jose’s monthly care was over

$3000 a month for caregivers.

Javier agreed that he was aware that Dr. Ginn’s records showed that Jose’s

Mini-Mental score from 2011 was a 25 out of 30 which indicated normal cognition,

that in August 2012 Jose signed a revocation of power of attorney before a notary

public, that in November 2012 Dr. Ginn noted that Jose was conversant and oriented

during an exam, that in January 2013 Dr. Ginn’s office allowed Jose to sign a HIPAA

release about his patient’s rights, and that in April 2013 Scott and White Hospital

allowed Jose to sign a similar release and consent to treatment.

Javier agreed that Jose was not selling all his properties (such as the restaurant

and the house where Javier’s grandmother lived), and that two of the properties Jose

was selling were vacant and had no cash flow but had expenses such as repairs and

property taxes. Javier admitted that in December of 2018, the Court removed Javier,

Karla, and Sergio as guardians because they failed to comply with the Texas Estates

Code by timely filing annual reports and annual accounts, failing to post a $500,000

bond, and failing to sell a property as ordered by the court. Javier agreed that when

the three family members were removed, the court replaced them with an attorney.

20 Javier agreed that he understood that those inheriting from a person’s estate could

benefit if the properties owned by that person are not sold until that person dies

because the capital gains tax created by a step-up basis are avoided. Javier testified

that he and those that had filed for the guardianship, along with other family

members who attended trial, would inherit from Jose’s estate. According to Javier,

however, in filing the guardianship plan and acting as guardian, he was not trying to

save the properties for himself and the other two family members who had filed the

application for guardianship. According to Javier, the estate was complicated, the

guardians of the estate were trying to keep it together the best that they could in their

roles as guardians, the attorney’s fees were expensive, and he gathered information

and presented it to the attorneys the entire time he served as co-guardian.

Testimony of Chalon Jones

Chalon Jones testified that he had known Jose since the early 1970’s, that Jose

was a good friend and good client, and that Jones knew Jose well. In 2006, Jones got

Jose to do a new power of attorney because he could see Jose had many rent

properties and that Jose would need help with them at some point as he got older.

Jones testified that as Jose’s lawyer and friend he felt it was his responsibility to look

out for Jose. For instance, on one occasion Jose started to buy property to put another

restaurant on, but Jones knew the property was restricted for residential purposes

21 only, so Jones explained to Jose that he could not build a restaurant on that property,

and Jones called the sellers and cancelled that purchase.

Jones testified that in the middle of 2011, Jose let his insurance lapse on his

rental property, Jones (who serviced the loan for another client who had loaned Jose

money) was notified by the insurance company, Jose did not have any explanation

for letting it lapse, and he almost let it lapse again later. According to Jones, Jose

would also regularly come in and pay the mortgage payments on that loan to Jones,

but in 2011 he started just paying with random and sometimes insufficient amounts

of cash from his pocket and refused Jones’s suggestion for Jose to set up a bank draft

to make the payments. Jones testified that this made him concerned that Jose could

be mentally declining. In late 2011 and early 2012, Raquel from Jose’s restaurant

would alert Jones about problems she was observing with Jose, like his driving. In

May of 2012, Jones heard Raquel’s concern about Jose’s driving, and Jones waited

in his car outside one of Jose’s properties and, once Jose came out and got in his own

car, Jones followed him. According to Jones, Jose ran two stop signs, ran red traffic

lights, almost had a collision, and repeatedly used his “blinker” but did not turn.

Jones talked with Jose’s family about it and they tried to take Jose’s keys from him,

but Jose would get more keys made so they finally took his license plates off his car.

Eventually, Jose allowed someone else to drive him everywhere.

22 Jones also found out that Jose purchased a home in a nice subdivision and

Jones investigated because it was a “giant” and expensive house for a single person

and a “long way out there[.]” Jones testified that when he looked into how Jose had

financed the purchase of the home by checking through the title company that had

handled the closing, Jones learned Jose had obtained the financing through a local

bank. According to Jones, he “wasn’t involved in the transaction and probably on

purpose. It was a realtor involved who wouldn’t want me around, and also Jose

probably didn’t either.” Jones also testified that on another occasion he learned that

Jose had taken out a $30,500 loan with a lien against his restaurant and when Jones

inquired about it to Jose, Jose responded, “I would never mortgage the restaurant.”

Jones testified that despite the fact that Jose had been coming to Jones’s office at

least monthly since 2007, Jose began missing appointments with Jones because Jose

could not find Jones’s office. Jones also learned that one of Jose’s tenants was in

serious arrears, and Jones had prepared the lease for that matter. When Jones

confronted Jose about it, Jose explained that the tenants were “having a hard time[,]”

but Jones felt like the tenant’s business was doing well and the tenant was taking

advantage of Jose.

Jones testified that he had concerns about Jose’s cognitive ability because it

seemed people close to him were taking advantage of him. Jones testified that he

believed that one of Jose’s employees that was close to Jose was “getting money

23 from Jose and he shouldn’t have been[,]” that a young man that was a “garden

hand[]” who mowed Jose’s yard and drove Jose around had a new $40,000 truck,

and that Jose was paying “way too much for his air conditioning bills.” Jones

testified he also thought Jose was having cognitive difficulties because sometimes

Jones had to explain things three times to Jose.

During the 2011 to 2012 timeframe Jones dealt with the State Comptroller’s

Office regarding Jose failing to file sales tax reports, he explained to the Comptroller

that Jose was “losing it mentally[,]” and Jones went to Dr. Ginn for Ginn to observe

Jose and write a letter indicating that Jose was having some mental problems.

According to Jones, when he suggested to Jose that he needed help, Jose responded

that he did not need help and that he was “just a little old and forgetful[,]” and that

he was “doing all right.” Jones testified that Jose would talk about how his sister was

“too pushy” and that he did not want his sister’s husband, Sergio, taking care of his

business. Jones volunteered to take over the management of Jose’s real estate, but

Jose did not want Jones to manage the properties. Jones worked with Jose’s family

members to try and get them to file a guardianship. Jose fired Jones as his attorney

on August 22, 2012, which surprised Jones. Later Jones learned that Kevin Bell from

Houston would be Jose’s new lawyer, Bell asked for Jose’s files, and McKinzie

picked the files up from Jones.

24 Regarding the five commercial real estate contracts, Jones testified that Jose

never talked to Jones about the contracts. Jones expressed the opinion that someone

suffering from dementia would be unable to understand the nature and consequences

of those contracts, that at the time Jose signed the contracts Jose did not understand

that he was selling the five properties for the prices indicated on the contracts and

that one would be owner financed and one purchased through financing through a

third party, and Jones believed that Jose did not have sufficient mental capacity and

memory to understand all the alternatives to selling the property. Jones also believed

that in 2013 Jose was not capable of analyzing and understanding capital gains issues

with sales of property and he would not have understood that if the purchaser

defaulted on the note for the property that was owner financed that it could end up

in litigation even if Jones had explained it to him. Jones did believe that Jose could

have possibly understood that he was not getting all of the purchase price up front,

and that money would be paid later.

Jones testified that he learned about the contracts on August 16, 2013, that he

called Anderson and told Anderson he did not think the contracts were going to

close, but he did not tell him he was Jose’s former attorney. According to Jones, later

that same day Raquel called and told Jones that McKinzie, Anderson, and Jose were

about to close the deal that day at Jose’s restaurant, but Jones acknowledged at trial

that the contracts involved a title company that would handle closing and that when

25 Jones went to the restaurant that day, Anderson was not there. Jones testified he

believed Anderson was somehow in a conspiracy with either the employees of the

restaurant or McKinzie.

Jones filed a claim against Jose’s estate for approximately $45,000 for legal

services rendered July 2011 and past the date that Jose fired him. According to Jones,

he helped Jose’s family file the guardianship action after he had been fired by Jose,

but he did not have Jose sign a waiver of attorney-client privilege that would allow

Jones to disclose information to Jose’s family members. When asked if he

remembered, as part of the claim he filed against Jose’s estate, making a statement

that “we need to sue Gary McKinzie to get that mud on Zane Anderson’s skirt

because McKinzie is the one who got Anderson on Jose’s trail?” Jones answered,

“Sounds like something I might have said.” Jones admitted not knowing who

initiated contact with respect to the sale of the properties, and he did not know

whether McKinzie and Anderson had ever met prior to this deal.

Testimony of Gregory Burr

Gregory Burr testified that he was a co-owner of a building next door to one

of Jose’s old restaurants, and Burr was a busboy at that restaurant when he was

thirteen. Burr testified that when he got into the family business around 1990, he

would see Jose on a regular basis, and Jose was a friend and “like family” to Burr.

According to Burr, in the couple of years prior to 2013, Burr “could see that [Jose]

26 had dementia/Alzheimer’s[]” and “shaking in the hands and [] Parkinson’s disease.”

Burr explained that he had watched his mother’s decline with Alzheimer’s, and he

observed a similar decline in Jose. Burr testified that several times when Jose would

collect the rent from the tenant in the building next door, Jose would get confused

and come into Burr’s building because Jose was unable find his vehicle.

Burr testified that in March of 2013, he was alarmed when he saw Jose at

Jose’s restaurant greeting tables like he always did, but this time “[h]e went to a

couple of tables more than once, more than twice, three times[]” and then went to a

wall and started scratching it. Burr told some of the employees and asked them to

bring Jose to his table so that Burr could talk to him. After they spoke, Burr told one

of the employees that Jose did not need to be staying by himself. Burr admitted that

he was aware that Jose was diabetic, that a person can get lightheaded and dizzy

from being diabetic, and that Jose was not good about taking his medication, but

Burr was not aware if Jose ended up seeing a doctor or whether he had “sky high

blood sugar.” Based on what people told him, Burr believed this incident in the

restaurant happened before the five contracts were signed, and Burr testified that he

thought that Jose “was ill[]” at the point in time the contracts were signed.

Testimony of Raquel Mata Martinez

Raquel Mata Martinez testified that she had worked for Jose since 1999 at his

restaurants (his old restaurant and the more recent one) and later her other family

27 members also worked at Jose’s restaurant. Martinez worked her way up and

eventually handled payroll for Jose’s restaurants. Martinez described Jose as “an

outstanding person[]” who was “very friendly.”

According to Martinez, in mid-2011, there was a change in Jose’s behavior

and he would wear the same shirt, which was out of character for him as he was

always dressed “very sharp, very clean.” On one occasion he had his shoes on the

wrong feet, many occasions he would have his shirt or pants not completely fastened,

he more than once was incontinent at work, he drove erratically, and more than once

she found personal items such as his credit card, Social Security card, and Medicaid

card in the restaurant office trash can. Martinez testified that he was forgetting to

pay a lot of bills and forgetting the time of day, and “the pile of bills kept getting

bigger and bigger by the week[.]” According to Martinez, Jose was also taking $300

cash daily out of the cash register (that was not part of his salary) and buying “bigger

items” and “nonsense stuff[,]” although she admitted she did not know whether or

not he had always done that because she did not start working the cash register until

2011. Martinez testified that the day after her wedding in September of 2011, Jose

told customers at the restaurant that he fell dancing at the wedding and that he saw

underneath Martinez’s dress, which she said never happened.

Martinez testified she knew Chalon Jones was Jose’s attorney and she and

Jones would keep in contact about changes they were noticing with Jose. Martinez

28 also told Jose’s sister, Esthela, as well as Karla, and Sergio that they needed to check

on Jose. According to Martinez, McKinzie helped Jose get a new attorney in 2012

and McKinzie brought her an invoice for her to pay for legal work the attorney had

done for Jose. Martinez testified that she told McKinzie then that Jose’s condition

was declining, and that McKinzie smiled in response. Martinez testified that she felt

like McKinzie was overcharging him and she questioned McKinzie’s invoices to

Jose. In Martinez’s opinion, in late February or early March of 2013, Jose would not

have understood the five contracts. Martinez testified that on the day she called Jones

to tell him people were at the restaurant closing a real estate transaction, she saw

McKinzie there, but she never saw Anderson that day.

Testimony of Dr. Mark Kunik

A video recording of Dr. Mark Kunik’s deposition was played at trial. Dr.

Kunik testified that he is a geriatric psychiatrist, he evaluated Jose on May 4, 2013,

and he then completed a report based on his evaluation. Dr. Kunik testified he spent

over an hour with Jose. Dr. Kunik administered a Montreal Cognitive Assessment,

which assesses a person’s cognition and is widely used in geriatric psychology, and

which Kunik has used thousands of times.

According to Dr. Kunik, on the assessment Jose was unable to draw a clock

face, identify certain animals, remember certain objects, words, numbers, letters, and

sentences during the assessment, unable to make associations between objects,

29 unable to provide the correct day of the month or month, and he told Kunik he

believed it was 1980. Dr. Kunik testified that if Jose was having severe

hypoglycemia during the assessment Kunik would have been able to pick up on that,

and if someone had high blood glucose sugars for a long time it might not change

their thinking but if they “had pretty well-controlled sugars and they’ve bumped up

to 400,” then it could impact their cognitive functioning. Dr. Kunik completed a

Physician’s Certificate of Medical Examination form based on his assessment of

Jose, and it was admitted into evidence. On the form for “Evaluation of the Proposed

Ward’s Mental Function” he noted “Mental Diagnosis: Probably Alzheimer’s

dementia[]” and listed the severity as moderate. On the form, Dr. Kunik indicated

his opinion, based on his assessment, that Jose did not have sufficient capacity to

give informed consent to the administration of dementia medications, Jose was

unable to make or communicate reasonable decisions concerning contract and

incurring obligations, and that Jose was totally incapacitated. Dr. Kunik also testified

that he wrote a letter as requested from the attorney handling the guardianship

regarding his opinion on how far back Jose’s incapacity would have gone based on

reasonable medical probability, and Dr. Kunik wrote in the letter his opinion that

Jose’s incapacity would have gone back six months prior to his evaluation on May

4, 2013. In Dr. Kunik’s opinion and based on his review of Jose’s medical records,

Jose lacked sufficient mind or memory in the February 2013 to March 2013 time

30 frame to understand the nature and consequences of signing five contracts to sell

commercial real estate in downtown Bryan or to understand real estate contracts.

On cross-examination, Dr. Kunik agreed that there are different types and

levels of mental capacity for legal purposes, like testamentary capacity, donative

capacity, and contractual capacity. Dr. Kunik acknowledged that if a real estate

transaction was entered into and the seller initiated the sale, the seller wanted to sell

five of their properties but not sell others, the seller was able to take the buyer on a

tour of the properties and describe their condition, the seller pulled tax appraisal

value records and set a sales price higher than those values for the five values, the

seller had a desire to sell based on continuing property tax expenses and an intent to

sell the properties for liquidity, there was a consistent tenor to the transaction over

time, those facts would suggest a normal and reasonable real estate deal and would

not raise “a red flag” regarding the seller’s capacity. Dr. Kunik agreed that the court-

ordered evaluation did not ask him to specifically weigh in on the contracts between

Jose and Anderson. Dr. Kunik testified that testamentary capacity and contractual

capacity have different thresholds and that there are varying degrees of dementia.

Dr. Kunik agreed that the medical records he reviewed were from Dr. Ginn dated

May 17, 2012, and Scott and White dated April 23, 2013 and April 29, 2013, that he

did not remember who gave him the records, and that he did not review Jose’s

medical records from earlier in 2013 or in 2012 or 2011 or any mini-mental exams

31 performed on Jose in the two or three years prior to Kunik’s evaluation. Dr. Kunik

acknowledged that a score of a 25 out of 30 on the Mini-Mental State Examination

would indicate a normal cognitive level. Dr. Kunik testified that his intention for

filling out the Physician’s Certificate of Medical Examination was that it would be

used for assisting the court in determining whether Jose needed a guardian, not

whether the five contracts Jose entered into should be nullified.

Testimony of Charles Randall “Randy” Michel

A video recording of Charles Randall “Randy” Michel’s deposition was

played at trial. Michel testified that he knew Jose because Michel frequented Jose’s

two restaurants, and in 2013, he served as the attorney ad litem for Jose in the

guardianship case. According to Michel, he was asked to serve as Jose’s attorney ad

litem on either April 18 or 19, 2013. Michel testified that after he was appointed, he

visited with Jose several times and that his role was to advocate for what Jose

wanted. Michel testified that it was very clear that Jose did not want a guardianship.

According to Michel, other relatives besides Javier, Karla, and Sergio were seeking

guardianship. Michel testified that at the time the court signed the order appointing

the temporary guardians on May 21, 2013, Dr. Kunik’s report had been provided to

the court. Michel testified that he filed the motion to have Kunik examine Jose and

that he helped arrange a time to meet with and evaluate Jose at Jose’s home, and that

Michel believed Jose understood that he was being evaluated.

32 Michel testified that the effect of the TRO against McKinzie and the two

employees was to prohibit them from selling, transferring, assigning, or disbursing

any of Jose’s assets, and that the judge signed an order on April 29, 2019, extending

the TRO and setting a hearing for May 7, 2013. Michel testified that in the court

order appointing Javier, Karla, and Sergio as permanent co-guardians of Jose and

his estate signed on August 27, 2013, the trial court found that Jose was totally

incapacitated and totally incapable of maintaining his person and handling his

finances, and the order stated that the determination was based on evidence of

recurring acts or occurrences within the preceding six-month period and not isolated

instances of negligence or bad judgment.

According to Michel, based on his dealings with Jose from April 18, 2013,

and for a few months after and until his role as Jose’s attorney ad litem ended, he

did not believe that as of April 2013 that Jose had sufficient mind and memory to

understand real estate contracts.

Michel acknowledged that generally the legal obligations of Jose’s pre-

guardianship would become the legal obligations of the post-guardianship, and

assuming the validity of any contracts from pre-guardianship, the guardians “step

into the shoes” of the ward and would be obligated under those contracts. Michel

also agreed that Texas law presumes someone has capacity and that there are no

presumptions that somebody is incapacitated just because of their age or because

33 they have been diagnosed with dementia. Michel testified that testamentary capacity

and contractual capacity have different standards, and to have contractual capacity,

a person would have to understand the nature and effect of the contract and the

business being conducted. Michel testified that he heard “over and over” about the

capital gains tax consequences of the five contracts from Jones and Javier, and

Michel testified that if a person sells property prior to their death, they may have

capital gains but if instead a future beneficiary inherits the property and it is sold

instead after death then the capital gains tax is “wiped out.” When asked if he would

agree that there might be some competing interests among beneficiaries of Jose’s

estate about why they might want him to not sell property because it would not be

in their own best interest from a tax perspective, Michel answered, “Oh, I am sure

there are competing interests.”

Michel agreed that dementia is a medical condition that is progressive in

nature and that it generally manifests itself in early stages with forgetfulness. When

showed an exhibit that was part of a neurological report done by Texas A&M on

November 28, 2011, Michel testified that the report showed that Jose had scored a

25 out of 30 on a mini-mental status exam. Michel testified that he was not aware

that Jose had another medical visit where he was described by the doctor as being

conversant, calm, and oriented and was not aware that in June of 2013 Jose was at a

doctor’s visit where the doctor noted Jose may have mild dementia, and the doctor

34 prescribed a low dose of Aricept. Michel agreed that Jose did not do well on the

cognitive assessment administered by Dr. Kunik, but admitted that he was not aware

that those types of assessments had been criticized, that the contacts regarding the

five contracts went back to August of 2012, that Jose initiated the contact with

Anderson for Jose to sell the properties, that at Jose’s urging he met with Anderson

to take him through the properties in October 2012, and that negotiations took place

between Jose and Anderson from October 2012 until April 2013 when the contracts

were signed. Michel acknowledged that the court’s rulings about Jose’s mental

capacity were not made on the day the contracts were signed, that Michel was not

with Jose when he signed the contracts and to Michel’s knowledge neither was Dr.

Kunik, and there was nothing about the five contracts that on their face raised

questions about Jose’s capacity.

Other Evidence

The contracts for the five properties, the surveys of the properties for which

Anderson was seeking financing, the title commitments from the title company for

each of the five properties, and the appraisal reports ordered by the bank on

Anderson’s behalf to close on the four properties were all admitted into evidence.

Among other evidence, the jury had before it legal documents related to Jose’s

revocation of his power of attorney, the TRO, and the guardianship proceeding.

35 Applicable Law and Standard of Review

A party seeking specific performance must plead and prove (1) compliance

with the contract including the tender of performance unless excused by the

defendant’s breach or repudiation and (2) the readiness, willingness, and ability to

perform at relevant times. DiGiuseppe v. Lawler, 269 S.W.3d 588, 593-94, 601 (Tex.

2008); see also Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d

882, 890 (Tex. 2019). If the plaintiff’s ability to perform depended on third-party

financing, the plaintiff must show that he had “a firm commitment for financing[.]”

Luccia v. Ross, 274 S.W.3d 140, 146-47 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied).

Mental incapacity is a common law defense to the formation of a contract. In

re Morgan Stanley & Co., 293 S.W.3d 182, 187 (Tex. 2009) (orig. proceeding); see

also Kinsel v. Lindsey, 526 S.W.3d 411, 419 (Tex. 2017) (documents executed by

one who lacks sufficient legal or mental capacity may be avoided). Texas law

presumes that a person executing a contract or instrument had sufficient mental

capacity at the time of its execution to understand his legal rights. Bradshaw v.

Naumann, 528 S.W.2d 869, 873 (Tex. App.—Austin 1975, writ dism’d); see also

Hall v. Hall, 352 S.W.2d 765, 767 (Tex. App.—Houston 1962, no writ) (mental

capacity to contract must be determined as of contract execution date). Accordingly,

the burden rests on the person seeking to set aside a contract or instrument to show

36 the lack of mental capacity of the contracting party at the time the contract or

instrument was made. Bradshaw, 528 S.W.2d at 873. To establish lack of mental

capacity to contract in Texas, the evidence must show that, at the time of contracting,

the person could not have “‘appreciated the effect of what [he] was doing and

understood the nature and consequences of [his] acts and the business [he] was

transacting.’” See Kinsel, 526 S.W.3d at 419 (quoting Mandell & Wright v. Thomas,

441 S.W.2d 841, 845 (Tex. 1969)). The proper inquiry is whether the person had

capacity on the days he executed the documents at issue. Id. Generally, the question

of whether a person, at the time of contracting, knows or understands the nature and

consequences of his actions is a question of fact. See Fox v. Lewis, 344 S.W.2d 731,

739 (Tex. App.—Austin 1961, writ ref’d n.r.e.).

In a legal sufficiency challenge, we credit evidence that favors the finding, if

a reasonable factfinder could, and we disregard evidence contrary to the challenged

finding unless a reasonable factfinder could not disregard it. City of Keller v. Wilson,

168 S.W.3d 802, 819 (Tex. 2005). When a party challenges the legal sufficiency of

the evidence on an issue for which it did not have the burden of proof, the appellant

must show there is no evidence to support the adverse finding. See Croucher v.

Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In reviewing a no-evidence challenge,

we view the evidence in the light most favorable to the verdict. Weirich v. Weirich,

37 833 S.W.2d 942, 945 (Tex. 1992). We cannot sustain a legal insufficiency, or no-

evidence point, unless the record shows:

(1) . . . 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 is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact.

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); see also

Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016). As

the sole judges of the credibility of the witnesses and the weight to be given their

testimony, the jurors may choose to believe one witness and disbelieve another. City

of Keller, 168 S.W.3d at 819. “The final test for legal sufficiency must always be

whether the evidence at trial would enable reasonable and fair-minded people to

reach the verdict under review.” Id. at 827.

In contrast, when the party that had the burden of proof at trial complains on

appeal of the legal insufficiency of the adverse finding, that party must demonstrate

that the evidence establishes conclusively, i.e., as a matter of law, all vital facts in

support of the finding sought. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.

2001). A matter is conclusively established only if reasonable people could not

differ as to the conclusions to be drawn from the evidence. See City of Keller, 168

S.W.3d at 816.

38 When challenging the factual sufficiency of the evidence supporting an

adverse finding on which the appellant did not have the burden of proof at trial, the

appellant must demonstrate that there is no or insufficient evidence to support the

adverse finding. Croucher, 660 S.W.2d at 58; Am. Interstate Ins. Co. v. Hinson, 172

S.W.3d 108, 120 (Tex. App.—Beaumont 2005, pet. denied). When reviewing the

factual sufficiency challenge, we consider and weigh all the evidence in support of

and contrary to the jury’s finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402,

406-07 (Tex. 1998). We only set aside a finding for factual insufficiency if it “is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust.” Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). However, when a

party attacks the factual sufficiency of an adverse finding on which it carried the

burden of proof at trial, that party must demonstrate on appeal that the “adverse

finding is against the great weight and preponderance of the evidence.” Dow Chem.

Co., 46 S.W.3d at 242.

Jury’s Finding as to Question No. 2

In issue one, Appellant argues there was no evidence or, alternatively,

factually insufficient evidence to support the jury’s answer to Question No. 2.

Question No. 2 asked whether Appellee was ready, willing, and able to perform the

contracts, and the jury answered “yes.” Specifically, Appellant argues that there was

39 no evidence that Anderson had either the cash required or the loan commitments

necessary to purchase the properties.

The jury heard Zane Anderson testify that he had done everything required of

him to be in a position to close on the contracts, and that based on the commitments,

the appraisals, the surveys, arranging things with the bank, he was fully committed

and fully prepared to close on the properties on May 31, 2013. The jury heard

Anderson testify that he sent a letter to Jose’s counsel stating he was ready, willing,

and able to still perform on the contracts and was willing to close on May 31, 2013,

under the agreed upon terms. Anderson testified that he was still ready, willing, and

able to purchase the properties on the agreed upon terms (with a different closing

date due to the passage of time). Anderson testified he was still willing to purchase

the properties and that, that as to what needed to be done to close on the properties,

Anderson stated, “[e]verything’s done really. It’s kind of been done for years now.”

No evidence was presented by Appellant otherwise, and Appellant presented no

contrary evidence that Anderson did not have either the cash required or the loan

commitments necessary to purchase the properties.

The issue of whether a party to a contract is “ready, willing, and able” to

perform is a question of fact. DiGiuseppe, 269 S.W.3d at 596. Here, the jury, found

that Anderson was “ready, willing, and able” to perform the contracts. As the

factfinder, the jury was entitled to rely on Anderson’s testimony. See Peters v.

40 Young, No. 11-18-00008-CV, 2019 Tex. App. LEXIS 11243, at *16 (Tex. App.—

Eastland Dec. 31, 2019, pet. denied) (mem. op.) (factfinder could rely upon seller’s

testimony that they were ready, willing, and able to perform under the contract)

(citing Mustang Amusements, Inc. v. Sinclair, No. 10-07-00362-CV, 2009 Tex. App.

LEXIS 8338, at **12-14 (Tex. App.—Waco Oct. 28, 2009, no pet.) (mem. op.)

(same)). To the extent Appellant argues that there was no evidence that Anderson

had “a firm commitment for financing,” we note that Anderson testified that he had

done all that was necessary to close on the properties, and that following the

execution of the contracts, he took all of the steps he needed to do in order to close

on the properties, he delivered the contracts to his bank to begin the loan process, he

agreed to an interest rate on loans with his bank on the four contracts that required

third-party financing, he obtained title commitments, he obtained and paid for

surveys, he obtained and paid for the appraisals requested by his bank, and he had

financing in place to close the transactions. Anderson also testified he was

committed to paying off the owner-financed note for the purchase of the fifth

property.

As the sole judge of the credibility of the witnesses and the weight to be given

to their testimony, it was the jury’s province to determine what the underlying facts

were at the time the real estate contracts were executed and also whether Anderson

was ready, willing, and able to perform. The jury reasonably could have credited

41 Anderson’s evidence over conflicting evidence, if any, presented by Appellant.

Viewing the evidence and inferences in the light most favorable to the jury’s finding,

we conclude there is more than a scintilla of evidence supporting the jury’s finding

that Anderson was ready, willing, and able to perform under the contracts. See City

of Keller, 168 S.W.3d at 827. Given the record before us, we cannot say that the

evidence conclusively established that Anderson was not ready, willing, and able to

perform. See Hathaway v. General Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986)

(stating an element is not conclusively established when evidence is conflicting). We

conclude a reasonable factfinder could have found that Anderson was ready, willing,

and able to perform the contracts to buy the five properties at issue in the case. See

Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299

S.W.3d 106, 115 (Tex. 2009); Merrell Dow. Pharm., Inc. v. Havner, 953 S.W.2d

706, 711 (Tex. 1997); see also DiGiuseppe, 269 S.W.3d at 593-94, 601. Considering

all the evidence, the jury’s finding was not so contrary to the overwhelming weight

of the evidence as to be clearly wrong and unjust. See Dyson, 692 S.W.2d at 457.

We overrule issue one.

Jury’s Finding as to Question No. 3

In issue two, Appellant challenges the legal and factual sufficiency of the

evidence supporting the jury’s answer to Question No. 3 regarding whether Jose’s

failure to comply was excused due to his mental capacity. The jury answered “no”

42 to this question. According to Appellant, testimony from Jose’s nephew (Javier),

Jose’s attorney (Jones), Jose’s long-time employee (Martinez), Jose’s friend

(Michel) and Dr. Kunik, as well as the medical records from Jose’s treating doctors,

established that Jose suffered from dementia and lacked sufficient mental capacity

and memory to understand the nature and consequences when he signed the five

earnest money contracts in March 2013. Appellant further contends that the evidence

from Anderson and McKinzie regarding Jose’s competence “would not allow

reasonable and fair-minded jurors to determine that Jose was competent in March

2013.”

As the person seeking to set aside the contracts based on Jose’s alleged lack

of mental capacity at the time the contracts were made, it was Appellant’s burden to

present evidence that, at the time of contracting, Jose could not have “appreciated

the effect of what [he] was doing and understood the nature and consequences of

[his] acts and the business [he] was transacting.” See Kinsel, 526 S.W.3d at 419;

Mandell & Wright, 441 S.W.2d at 845. The jurors were the sole judges of the

credibility of the witnesses and the weight to be given their testimony, and the jurors

could choose which witnesses, and which portions of their testimony, to believe or

disbelieve. See City of Keller, 168 S.W.3d at 819.

The jury heard Anderson’s testimony that he knew Jose because they lived

down the street from each other when Anderson was a child, he would see Jose at

43 the business association events, and Anderson knew him from eating at Jose’s

restaurant. The jury heard Anderson testify that when he met with Jose that Jose

seemed “like himself; friendly and happy[,]” that Anderson had no concerns about

Jose’s ability to understand their conversation or about moving forward with the real

estate contracts with Jose, and that no one at the restaurant expressed concerns about

Anderson visiting with Jose about real estate or a business deal. The jury could have

considered Anderson’s testimony that at the time the contracts were signed and

based on his interactions with Jose over those preceding months, Jose seemed to

understand what he was doing and Anderson had no concerns about Jose signing the

contracts, Anderson explained he believed Jose understood the properties that he

owned, that he was selling the five properties, and that he was going to receive

money and a note, and Anderson had no concerns whatsoever that Jose lacked

capacity. Also, the jury heard Anderson’s testimony that as Jose showed him the

properties, Jose seemed to know about the properties and understood and responded

to the questions Anderson asked him. Anderson agreed that after he received the call

from Jones that the sales may not close, Anderson visited Jose at the restaurant to

discuss the contracts, the visit was similar to the other visits he had with Jose, no one

approached and told Anderson he could not do business with Jose, it was apparent

to Anderson that Jose wanted to move forward and understood who Anderson was

44 and why he was there, Jose seemed lucid, and it was Anderson’s impression that he

and Jose both still wanted to proceed with the sales as stated in the contracts.

The jury could have given weight to Boggan’s testimony that Jose approached

him about putting Jose in touch with Anderson, and that Jose told Boggan he wanted

to sell several properties because Jose was tired of paying taxes on them and making

repairs. Further, Boggan frequently interacted with Jose at his restaurant and at the

bank, and that at the time Jose was wanting to sell the properties Jose generally

seemed to know what he was talking about and did not seem in any way mentally

disoriented.

The jury heard McKinzie’s testimony that he ate at Jose’s restaurant almost

every day for lunch for ten or twelve years, was friends with Jose, and had done

business with Jose for sixteen years. McKinzie testified that Jose complained about

having to have paid the taxes for so long and mentioned wanting to sell his

properties. The jury could have considered McKinzie’s testimony that while they

were meeting in April 2013 to go through the contracts at the restaurant, none of the

employees or people around interrupted questioning Jose’s ability to do business,

and that at the time Jose signed the contracts, McKinzie felt Jose was lucid. The jury

also heard McKinzie, who had been Jose’s long-time friend, testify that “[a]t the

time the contracts were signed, there [was] no doubt in my mind that Jose knew what

he was doing[,]” and that “on that day that those [contracts] were signed, there was

45 nothing wrong with Jose.” McKinzie also testified that if something had been wrong

with Jose he would have stepped in, and that prior to Jose signing the contracts

McKinzie never saw anything whatsoever that gave him concern about Jose’s mental

condition or his cognitive abilities.

The jury could have considered Javier’s testimony that he and the two other

family members did not seek the guardianship until April 2013, after Jose had

already pursued Anderson to sell the properties and after Jose had executed the

commercial real estate contracts, that the family members were removed from the

guardianship for failing to file accountings with the court, that Javier was a

beneficiary of the estate, that the estate beneficiaries could benefit from setting aside

the sales and trying to sell the property later after Jose’s death, and that Jose had cash

flow problems and may have needed to sell the properties, and Javier never thought

it was a good idea for Jose to sell his properties. The jury heard Javier testify that he

was aware that Dr. Ginn’s records showed that Jose’s Mini-Mental score from 2011

was a 25 out of 30, which indicated normal cognition, that in August 2012 Jose

signed a revocation of power of attorney before a notary public, in November 2012

Dr. Ginn noted that Jose was conversant and oriented during an exam, that in January

2013 Dr. Ginn’s office allowed Jose to sign a HIPAA release about his patient’s

rights, and that in April 2013 Scott and White Hospital allowed Jose to sign a similar

release and consent to treatment. The jury could have weighed the testimony of

46 Javier, Jones, Burr, Michel, and Dr. Kunik and given some or no weight to some,

all, or none of the testimony. See City of Keller, 168 S.W.3d at 819. The jury could

have weighed all the testimony and evidence and believed that the evidence did not

establish that Jose lacked sufficient mental capacity and memory to understand the

nature and consequences of his actions and the business he was transacting at the

time he signed the contracts. See id. After considering evidence favorable to the

adverse finding and disregarding all contrary evidence unless a reasonable factfinder

could not, as we must, we conclude that Appellant failed to demonstrate that the

evidence presented at trial established as a matter of law that Jose lacked sufficient

mind and memory to understand the nature and consequences of his act and the

business he was transacting. See Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767

S.W.2d at 690; see also Kinsel, 526 S.W.3d at 419 (quoting Mandell & Wright, 441

S.W.2d at 845). We conclude that Appellant has failed to demonstrate on appeal that

the jury’s finding was against the great weight and preponderance of the evidence.

See Dow Chem. Co., 46 S.W.3d at 242. We overrule issue two.

Award of Attorney’s Fees

In issue three, Appellant argues the judgment and award of attorney’s fees in

the amount found by the jury in Question No. 4 should be reversed and the attorney’s

fees found by the jury in Question No. 5 should be awarded to Francisca. According

to Appellant, because Jose was not competent when he signed the contracts and

47 because the evidence does not support the finding that Appellee was ready, willing,

and able to perform the contracts, Appellant should recover the attorney’s fees as the

prevailing party. Because we have overruled issues one and two, we also overrule

issue three. Having overruled Appellant’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

_________________________ LEANNE JOHNSON Justice

Submitted on May 13, 2022 Opinion Delivered February 23, 2023

Before Golemon, C.J., Johnson and Wright, JJ.