Leslie R. Pogue and Jeanette I. Pogue v. Elizabeth A. Williamson

• Court: Court of Appeals of Texas
• Decided: May 25, 2018
• Docket: 01-17-00844-CV
• Status: Published

Opinion

ACCEPTED 01-17-00844-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/25/2018 2:07 PM CHRISTOPHER PRINE CLERK

No. 01-17-00844-CV

IN THE COURT OF APPEALS FILED IN 1st COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS _____________________________________________ 5/25/2018 2:07:54 PM CHRISTOPHER A. PRINE Clerk LESLIE R. POGUE AND JEANNETTE I. POGUE, Appellants

VS.

ELIZABETH A. WILLIAMSON, Appellee. _____________________________________________

(On appeal from the 164th Judicial District Court of Harris County, Texas, Trial Court Cause No. 2012-56353) _____________________________________________

BRIEF OF APPELLANTS, LESLIE R. POGUE AND JEANNETTE I. POGUE _____________________________________________

DE LANGE, HUDSPETH, MCCONNELL & TIBBETS, L.L.P. BEN A. BARING, JR. STATE BAR NO. 01739050 bbaring@dhmtlaw.com R. TRAVIS PIPER STATE BAR NO. 24070421 tpiper@dhmtlaw.com 1177 WEST LOOP SOUTH, SUITE 1700 HOUSTON, TX 77027 PHONE: 713-871-2000 FAX: 713-871-2020

ATTORNEYS FOR APPELLANTS, LESLIE R. POGUE AND JEANNETTE I. POGUE

ORAL ARGUMENT REQUESTED Identities of Parties and Counsel PARTIES COUNSEL Appellants: Trial Counsel: Sharon E. Peebles Leslie R. Pogue and Attorney at Law Jeannette I. Pogue 1218 Potomac Dr., Unit A Houston, TX 77057 Phone: 713-289-4849 Fax: 713-583-6419 Email: peebleslaw@aol.com

Appellate Counsel De Lange, Hudspeth, McConnell & Tibbets, L.L.P. Ben A. Baring, Jr. Email: bbaring@dhmtlaw.com R. Travis Piper Email: tpiper@dhmtlaw.com 1177 W. Loop South, Ste. 1700 Houston, TX 77027 Phone: 713-871-2000 Fax: 713-871-2020

Appellee: Trial Counsel: Scarlett C. May Elizabeth A. Williamson The May Law Firm 5607 Spring Lodge, Ste. 200 Kingwood, TX 77345 Phone: 713-502-6806 Fax: 281-360-4296 Email: themaylawfirm@aol.com

Trial and Appellate Counsel Misty Hataway-Coné Spurlock & Associates 17280 West Lake Houston Pkwy. Humble, TX 77346 Phone: 281-548-0900 Fax: 281-446-5443 Email: MCone@spurlocklaw.com

ii Table of Contents PAGE

Identities of Parties and Counsel............................................................................... ii

Table of Contents ..................................................................................................... iii

Table of Authorities ..................................................................................................vi

Statement of the Case.................................................................................................x Statement Regarding Oral Argument .......................................................................xi Record References ....................................................................................................xi

Issues Presented ...................................................................................................... xii

1. The trial court erred in entering judgment against the Pogues for damages under the Texas Deceptive Trade Practices Act because Williamson clearly and unequivocally disclaimed reliance on any statements or representations by the Pogues regarding the condition of the property. ................................................................... xii

2. Because Williamson clearly and unequivocally disclaimed reliance on any statements or representations of the Pogues regarding the condition of the property, she cannot recover under common-law fraud, statutory fraud, or negligent misrepresentation theories of recovery. ............................................. xii

3. The trial court erred in entering judgment extinguishing and releasing the lien on the property contained in the deed of trust, which secured the payment of Williamson’s note to the Pogues for the purchase of the property. ........................................................ xii

4. The damages awarded by the trial court judgment under the Texas Deceptive Trade Practices Act were improper even if Williamson had not disclaimed reliance. ........................................... xii

5. The jury’s answers to the damage questions related to fraud and negligent misrepresentation—Questions Numbers 4 and 11— cannot support the trial court’s judgment........................................... xii

iii 6. The judgment awarding attorney’s fees should be reversed. ............. xii

Preliminary Statement ................................................................................................1 Statement of Facts ......................................................................................................2 Summary of the Argument.......................................................................................13

Argument………………………………………………………………………… 17 I. Williamson’s disclaimer-of-reliance agreement prevents her from recovering under all of her causes of action. (Issue Nos. 1 and 2). ..................................................................................................17

A. The disclaimer-of-reliance clause signed by Williamson is clear and unequivocal. ..............................................................23 B. The language was not boilerplate and the parties discussed the issue. ....................................................................................25 C. Williamson was represented by counsel in the transaction. ...................................................................................................29 D. Williamson and the Pogues dealt in an arm’s length transaction and Williamson was knowledgeable about business matters. .......................................................................30 E. Because of the disclaimer-of-reliance language, Williamson cannot recover under any of her tort theories as a matter of law. .....................................................................32 II. The trial court’s judgment extinguishing the Pogues’ deed of trust lien is a misapplication of Texas law and constitutes reversible error. (Issue No. 3)..............................................................33

A. Williamson’s debt to the Pogues has not been extinguished and currently exists. ..................................................................35 B. The Pogues’ right to foreclose is not barred by the applicable statute of limitations. ...............................................37 III. The DTPA damages awarded by the trial court were improper. (Issue No. 4). .......................................................................................39

A. The trial court erred in entering its judgment for additional damages of $327,500 because this award does not conform to the jury’s verdict. ..................................................................39

iv B. The trial court erred in awarding both loss of the benefit- of-the-bargain damages and out-of-pocket damages under the DTPA, as the award constitutes a double recovery. ...........41 C. The trial court erred in including future benefit-of-the- bargain and out-of-pocket damages in the actual damages awarded under the DTPA..........................................................43 D. The trial court erred in entering judgment awarding benefit-of-the-bargain damages under the DTPA because there was no evidence of the property’s value as it was received by Williamson. ...........................................................45 E. The trial court erred in entering judgment for future out- of-pocket damages, future expenses, and future lost time damages. ....................................................................................46 IV. The trial court’s judgment cannot be supported by the jury’s answers to the damages questions related to fraud and negligent misrepresentation—jury Question Nos. 4 and 11. (Issue No. 5) ........ 48

A. There is no evidence to support the benefit-of-the-bargain damages awarded for fraud and negligent misrepresentation. .....................................................................48 B. There is no evidence to support the jury’s award of future fraud and negligent misrepresentation damages. ......................50 C. There is no evidence to support the jury’s award of past remedial damages, mitigation expenses, and economic loss.............................................................................................52 V. Because the trial court erred in entering judgment against the Pogues, the court’s award of attorney’s fees should be reversed. (Issue No. 6) ........................................................................................57

Prayer for Relief .......................................................................................................58 Certificate of Service ...............................................................................................59

Certificate of Compliance ........................................................................................59

Appendix………………………………………………………………………….60

v Table of Authorities Page

CASES

Abry Partners V., L.P. v. F and W Acquisition, L.L.C., 891 A.2d 1032 (Del. 2006) ............................................................................22

Allen v. Devon Energy Holdings, LLC, 367 S.W.3d 355 (Tex. App.—Houston [1st Dist.] 2012, pet. granted, judgm’t vacated w.r.m.) .............................................................. 18, 21, 22, 25 Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997). ........................................................... 42, 44, 50 Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) ..........21 Bever Properties, LLC v. Jerry Huffman Custom Builder, L.L.C., No. 05-13-01519-CV, 2015 WL 4600347 (Tex. Civ. App.—Dallas, July 31, 2015, no pet.) .................................................................................................27

Boat Superstore v. Haner, 877 S.W.2d 376 (Tex. App.—Houston [1st Dist.] 1994, no pet.).................41 Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390 (Tex. App.—Houston [1st Dist.] 2013, no pet.).......... 44, 50 Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439 (Tex. 1991) .........................................................................55

FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84 (Tex. 2004) ...........................................................................53

Foley v. Parlier, 68 S.W.3d 870 (Tex. App.—Ft. Worth 2002, no pet.) ..................................43 Forest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008) ................................................................... passim

Goldfrank, Frank & Co. v. Young, 64 Tex. 432 (1885) ................................................................................. 36, 37

vi Gulf States Utilities Co. v. Low, 79 S.W.3d 561, 567 (Tex. 2002) ...................................................................57

Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) ..............22

Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. 2002) .........................................................................33 Holman Street Baptist Church v. Jefferson, 317 S.W.3d 540 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) .......37

Hong v. Nations Renovations, LLC, No. 05-15-01036-CV, 2016 WL 7473900, (Tex. Civ. App.—Dallas, Dec. 29, 2016, no pet.) ...........................................................................................27

Houston Lighting & Power Co. v. Fisher, 559 S.W.2d 682 (Tex. App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.) ....................................................................................... 46, 49

Houston v. Ludwick, No. 14-09-00600-CV, 2010 WL 4132215 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ..........................................................................................46

Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991) .........................................................................38 Huynh v. Phung, No. 01-04-00267-CV, 2007 WL 495023 (Tex. App.—Houston [1st Dist.] Feb. 16, 2007, no pet.) ...................................................................................43

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of America, 341 S.W.3d 323 (Tex. 2011) .................................................................. 21, 22 Jerry L. Starkey, TBDL, L.P. v. Graves, 448 S.W.3d 88, 112 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ........58

Lakewood Pipe of Texas, Inc. v. Conveying Techniques, Inc., 814 S.W.2d 553 (Tex. App.—Houston [1st Dist.] 1991, no writ) ......... 47, 51

Larsen v. Carlene Langford & Assocs., Inc., 41 S.W.3d 245 (Tex. App.—Waco 2001, pet. denied) .................................33

vii Latham v. Castillo, 972 S.W.2d 66 (Tex. 1988) ...........................................................................43

Leyendecker & Assocs. v. Wechter, 683 S.W.2d 369 (Tex. 1984) .................................................................. 44, 50

Martin v. McKee Realtors, 663 S.W.2d 446 (Tex. 1984) .........................................................................41

McGinty v. Hennen, 372 S.W.3d 625 (Tex. 2012) .................................................................. 46, 49

McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943) ........................................... 47, 51

McLernon v. Dynegy, Inc., 347 S.W.3d 315 (Tex. App.—Houston [14th Dist.] 2011, no pet.) . 21, 27, 28 Phillips v. Phillips, 820 S.W.2d 785 (Tex. 1991) .........................................................................40 Pioneer Bldg. & Loan Ass’n v. Johnston, 117 S.W.2d 556 (Tex. Civ. App.—Waco, 1938, writ dism’d) .....................39

Pjetrovic v. Home Depot, 411 S.W.3d 639 (Tex. App.—Texarkana 2013, no pet.) ..............................53 Prudential Ins. Co. of America v. Jefferson Assocs., Ltd., 896 S.W.2d 156 (Tex. 1995) .........................................................................33

Roth v. Law, 579 S.W.2d 949 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e.) ..47

Salomon v. Lesay, 369 S.W.3d 540 (Tex. App.—Houston [1st Dist.] 2012, no pet.).................40 Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997) ................................................................. passim Walker v. Hanes, 570 S.W.2d 534 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.) ..38

viii Williams v. Dardenne, 345 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2011, no pet.).................33

Woodyard v. Hunt, 695 S.W.2d 730 (Tex. App.—Houston [1st Dist.] 1985)....................... 44, 50

Wortham Bros., Inc. v. Haffner, 347 S.W.3d 356 (Tex. App.—Eastland 2011, no pet.)..................................53

STATUTES

TEX. BUS. & COM. CODE ANN. § 17.50(b)(1) ..........................................................40

TEX. BUS. & COM. CODE ANN. § 17.50(d) ...............................................................57 TEX. BUS. & COM. CODE ANN. § 27.01(d) ...............................................................57

TEX. BUS. & COM. CODE ANN. § 17.50(a) ...............................................................42 TEX. CIV. PRAC. & REM. CODE § 16.035(b) .............................................................34 OTHER AUTHORITIES RESTATEMENT (2ND) OF TORTS § 552B (1977) ........................................................55 RULES

TEX. R. APP. P. 9.4(i)(1). ..........................................................................................59 TEX. R. CIV. P. 301 ...................................................................................................39

ix Statement of the Case

Nature of the Case: Williamson bought a 33-year old vacant house and 4.5 acres from the Pogues for $235,000. Williamson agreed that she was taking the property “as is” with all latent and patent defects and that she was relying solely on her examination of the property, and not upon any representations by the Pogues regarding the property’s condition.

Two years after purchasing the property Williamson sued the Pogues, her real estate agent, and the agent’s firm alleging various tort theories of recovery related to misrepresentations regarding the property’s condition. I CR 4.

Trial Court: Hon. Alexandra Smoots-Thomas, 164th Judicial District Court of Harris County, Texas

Course of Proceedings The trial court granted the agent’s and real estate and Trial Court’s firm’s motion for summary judgment. II First Supp. Disposition: CR 435. The court also initially granted the Pogues’ motion for summary judgment but later vacated its order. III First Supp. CR 814, 830. Williamson’s claims against the Pogues were tried to a jury, and the jury answered questions favorable to Williamson. Tab A, III First Supp. CR 869. The trial court entered judgment against the Pogues for damages, prejudgment interest, and attorneys’ fees totaling $760,769.67. The judgment also extinguished the Pogues’ deed of trust lien that secured Williamson’s note for the property’s purchase. Tab B, III First Supp. CR 902.

x Statement Regarding Oral Argument Appellants request that the Court hear oral argument. Oral argument is desirable because the record is lengthy and there are numerous exhibits. Oral argument will assist the Court in clarifying the issues and explaining the facts.

Record References References to the record are denoted by the following:

Clerk’s Record [volume] CR [page(s)] Reporter’s Record [volume] RR [page(s)]

The Reporter’s Record contains two volumes designated “6 of 11”. To avoid confusion, in this brief the volume number for the testimony taken on May 9, 2017 is referred to as “6A”, and the volume number for the testimony taken on May 10, 2017 is referred to as “6B”.

Williamson trial exhibits PX [number] Pogues’ trial exhibits DX [number]

xi Issues Presented 1. The trial court erred in entering judgment against the Pogues for damages under the Texas Deceptive Trade Practices Act because Williamson clearly and unequivocally disclaimed reliance on any statements or representations by the Pogues regarding the condition of the property.

2. Because Williamson clearly and unequivocally disclaimed reliance on any statements or representations of the Pogues regarding the condition of the property, she cannot recover under common-law fraud, statutory fraud, or negligent misrepresentation theories of recovery.

3. The trial court erred in entering judgment extinguishing and releasing the lien on the property contained in the deed of trust, which secured the payment of Williamson’s note to the Pogues for the purchase of the property.

4. The damages awarded by the trial court judgment under the Texas Deceptive Trade Practices Act were improper even if Williamson had not disclaimed reliance.

5. The jury’s answers to the damage questions related to fraud and negligent misrepresentation—Questions Numbers 4 and 11—cannot support the trial court’s judgment.

6. The judgment awarding attorney’s fees should be reversed.

xii TO THE HONORABLE FIRST COURT OF APPEALS:

Preliminary Statement The Pogues appeal a $760,000 judgment holding them liable for

misrepresenting the condition of a thirty-three-year-old house that Williamson

purchased “as is” and with all patent and latent defects, and with an agreement that

she was relying solely on her own examination of the property and not on any

representations, statements, assertions, or non-assertions by the Pogues related to the

property’s condition.

The real basis of this dispute was the Pogues’ refusal to grant Williamson an

extension of time to make her final balloon payment on the owner-financed note that

Williamson owed to the Pogues. The Pogues, who are retired and now live in

Bellville, Texas, agreed to owner-finance Williamson’s purchase of the property, but

only for two years. Williamson made her regular monthly payments to the Pogues

during the two-year period and never complained to them about any problems with

the house, although she had every opportunity to do so.

But all of this changed several weeks before Williamson’s note came due.

Williamson asked for the Pogues to extend the date of her final payment (the balance

of the note) and when the Pogues wouldn’t agree, Williamson hired an attorney, who

sent a letter demanding that the Pogues grant the extension. For the first time, the

letter also notified the Pogues that there were problems with the house, and that

1 Williamson had been repairing it for two years. On the day Williamson’s final

payment was due, she sued the Pogues, alleging that they had defrauded Williamson.

The overarching issue is whether Williamson may recover any amount from

the Pogues, when Williamson affirmatively agreed to rely solely on her own

investigation of the property and not on any representations of the Pogues related to

the property’s condition.

Statement of Facts Leslie R. Pogue and Jeannette I. Pogue owned a thirty-three-year-old house

on 4.5 acres at 901 Indian Shores Road in Crosby, Texas. 2 RR 185. The Pogues

were the fifth or sixth owners of the property, having purchased it in 2000. 6B RR

180, 219. The property was fenced, included a pecan orchard, and had room for

horses and other animals to roam. 2 RR 185, 233-34. Here is a picture of the Indian

Shores property, for demonstrative purposes:

2 In September 2008, Hurricane Ike battered the Texas Gulf Coast. Many homes

were damaged, including the Pogues’ property, and the Pogues made an insurance

claim for $33,000. 6B RR 90. The Pogues received $25,0156 on this claim. 6B RR

206. They spent $18,700 to replace the roof, and had the house repainted, replaced

some sheetrock, and repaired some outside trim. 10 RR PX 20, 6B RR 89-90. Mr.

Pogue was his own general contractor and he testified that his subcontractors made

all the repairs required by the insurance company and that the insurance company

would not have paid the claims until they made sure the repairs had been completed.

6B RR 202.

The Pogues lived in the Indian Shores property until March 2009 when they

moved to Bellville, Texas. 6B RR 181. Shortly after moving, the Pogues put the

property up for sale, and at first attempted to sell the property without a realtor. 7

RR 45-46. The property didn’t sell, and in September 2009 they retained Gina Jones

as a realtor in an effort to sell the property. 2 RR 237. Ms. Jones helped the Pogues

with the property listing, took photos of the house, and suggested that the Pogues

repaint the inside. 7 RR 46-47.

The Indian Shores property was vacant for nearly a year and a half when

Lewis Walker, Elizabeth Williamson’s future husband, noticed that the property was

for sale. Walker wanted to buy the property, but because of his poor credit he

couldn’t qualify for a loan, and instead the Pogues agreed to rent the property to him.

3 Walker then moved boxes in the house. 2 RR 207, 218-19, 6A RR 71. Williamson,

who was Walker’s fiancée, went with Walker when he looked at the property before

he rented it. 6A RR 34, 257. Williamson was aware of the Indian Shores property

because she lived two streets over in a double-wide trailer. 6A RR 76-77.

She knew about the Pogues’ property and had always liked it because it was,

as she put it, an “iconic” property in the area. 6A RR 34-35. As Williamson testified:

“It wasn’t so much just the house. It was just—the land and everything, the way it

was set up. It was just a really nice property.” 2 RR 191. “Everybody always talked

about it [the property], the way it sat off the road, and the yard, the way—it had just

a really deep inset. The way that the property was set up, it just was really nice, and

the Pogues had added pecan trees, which really gave it a little bit of extra attraction”.

6A RR 35.

After the Pogues’ had rejected Walker’s offer to purchase the property (and

after the Pogues agreed to lease the property to Walker) Williamson decided to make

an offer to purchase the Indian Shores property herself. 6A RR 35. Before purchasing

it, Williamson was only at the property two times and the Pogues were not present

either time. The first time Williamson went to the property was when Walker was

interested in making an offer to purchase it. The second time was when Williamson

herself made the offer to purchase the property. 6A RR 257.

4 Williamson and the Pogues initially into an earnest money contract for the

sale of the Indian Shores property. 10 RR PX 2. The sales price was $235,000, and

the Pogues agreed to owner-finance $210,000 for two years. 10 RR PX 2, par. 4C.

Williamson agreed in the earnest money contract that she was accepting the property

in its present condition:

10 RR PX 2, ¶ D(1). The contract also provided that Williamson could have the

property inspected by inspectors she selected, but Williamson decided not to have

the property inspected. 6A RR 74, 215.

When Williamson looked at the house before she purchased it, the property

was vacant, as the Pogues had moved out nearly a year and a half before. 2 RR 255,

6B RR 181. When Williamson saw the property for the first time, it was filthy, and

the garage was full of debris. 6B RR 32-33. The yard was very overgrown to the

point that Williamson couldn’t even tell that there was any landscaping. 2 RR 255.

Although the house was vacant, it still had belongings in it and Williamson testified

that the barn on the property looked “Silence of the Lambs” scary as it had “needles

and syringes on the ground, and on tables”. 2 RR 256. Williamson also noticed that

the pool on the property was pitch black, like it had not been maintained for years,

to the point that you could not see the bottom of the pool. 2 RR 256. Inside the house,

5 Williamson testified that in addition to a lot of “stuff” still being in the house, the

carpet was “really disgusting and gross” and Williamson noted that the house had a

musty odor, which her realtor told her was because the air conditioners had been

stolen and because the property had been closed up. 2 RR 258.

Before purchasing the property, Williamson attempted to obtain property

insurance, during that process she learned from her insurance company that a wind

claim had previously been made on the property. 3 RR 156, 6A RR 78. In addition,

before Williamson closed on the purchase, she asked her realtor about insurance

claims and was told that the Pogues had replaced the roof on the house after

Hurricane Ike. 6A RR 82.

The closing on the property occurred on September 10, 2010. 10 RR PX 7.

Williamson signed a two-year note to the Pogues for $210,000, and the note

provided for a final balloon payment for the full amount in twenty-four months. 10

RR PX 5. So that there would be no question as to when the note came due, the note

included a bold, underlined notice to Williamson:

6 10 RR PX 5, p. 4.

Williamson also signed a deed of trust securing the Pogues’ note, showing a

final maturity date of September 25, 2012. 10 RR PX 6. The Pogues signed a

warranty deed with vendor’s lien, conveying the property to Williamson. 10 RR PX

7. Williamson also signed the deed as Grantee, agreeing to accept the deed and

consenting to its form and substance, and acknowledging that the terms of the deed

conformed with her intent. She further agreed to the obligations imposed on her by

7 the terms of the deed, the accompanying real estate lien note, and deed of trust. 10

RR PX 7, p. 5:

One paragraph in the deed is particularly important in this appeal. The deed

included a detailed paragraph, in which Williamson agreed that she purchased the

property “as is” and provided that Williamson was not relying on any

representations, statements, assertions or non-assertions by the Pogues with respect

to the property’s condition, and that she was instead relying solely on her own

examination of the property:

8 10 RR PX 7, p. 3.

Williamson also signed a document acknowledging that the attorney who

prepared the closing documents—Donna Heinlein—was instructed by Williamson

to refrain from doing nineteen specific actions, including ordering a title policy for

her, ordering a survey, ordering a title search, having a termite inspection, and/or

having experts inspect the premises and/or appliances, ascertaining whether or not

the property was in a 100-year flood zone, or ascertaining whether there were any

drainage problems or drainage easements. 10 RR PX 10, 10A-10D.

At closing, the Pogues paid $350 for a residential service contract for

Williamson. 6 RR 243-44, 10 RR PX 4, p. 2, ln. 1305.

Williamson and her husband moved into the Indian Shores property in mid-

October 2010. 2 RR 218. Shortly after they closed, Williamson began to discover

problems with the house. Williamson testified that they discovered that some of the

electrical outlets were not in working order and various light fixtures had switch

9 problems. 2 RR 219-20. She found wood rot under the hall bathroom carpet and

behind the bathroom cabinet wall. 2 RR 221-23, 6A RR 101-02, 6B RR 87.

Williamson testified that she then began to discover that there was mold in parts of

the walls in some of the rooms in the home, which she bleached, and wood rot in

many of the rooms behind the walls. 6A RR 105-27. There was also some termite

damage behind the bathtub in one of the bathrooms, but there were no live termites.

6A RR 105-06. Williamson also testified that she found out that one of the septic

tanks was improperly installed under the kitchen that caused some leakage. 6A RR

132-134. Williamson and Walker replaced the rotten wood that they found in the

rooms and put new sheetrock and insulation up where necessary, with Walker doing

the repair work himself. 6A RR 108-1545, 6B RR 124. Walker testified that he

repaired “almost the entire house.” 6B RR 144-45.

Despite Williamson knowing about the problems she found in the house

immediately after moving in (in October 2010), she never notified or complained to

the Pogues about these problems until two years later in 2012, when her final note

payment was due on September 25, 2012. 3 RR 155, 6B RR 87.

Shortly before this payment was due (and before mentioning any problems

existed in the house), Williamson contacted Mrs. Pogue by email and asked her if

she could have an extension on the final payment. 3 RR 157. After thinking about it,

the Pogues decided that they did not want to extend the payment. It was only then

10 that Williamson explained that “there were some problems” with the house that she

had been living in and repairing for two years. 3 RR 157-58. Williamson then hired

an attorney to send a letter to the Pogues complaining that (1) the Pogues did not

provide disclosures of the condition of the residence, (2) the septic tanks were not

up to code, (3) there was extensive bug infestation, including termites and (4) there

was mold throughout the residence. The letter indicated that Williamson could not

make the final note payment and requested an eighteen-month extension of the note,

at which time she would pay the note in full. II First Supp. CR 620, 10 RR PX 11.1

No agreement was reached between the parties and on the date that the final

balloon payment was due, Williamson sued the Pogues, along with Williamson’s

realtor, Gina Jones, and Alliance Properties, the real estate company. I CR 4. The

basis of Williamson’s complaint against the Pogues was her assertion that the Pogues

failed to disclose to her that there was wood rot, termite damage, and other water

damage in the home. I CR 4, ¶ 16. Williamson testified that her complaint was with

the representations that the Pogues made in the seller’s disclosure. 6B RR 114-15.

she testified that the Pogues never otherwise represented the property’s condition to

her, and she even denied that she relied on the Pogues. 6A RR 218, 6B RR 44.

______________________ 1 This exhibit admitted at trial is shown as being “retained by counsel” and therefore a copy is not in the reporter’s record on file as of the filing of this brief. (A copy is located in the First Supp. Clerk's Record, as cited above). A supplemental reporter’s record with this exhibit and all other exhibits retained by Williamson's counsel will be filed when all of the retained exhibits are compiled by the court reporter.

11 Williamson’s realtor and the real estate company filed a motion for summary

judgment, which the trial court granted. I First Supp. CR 143, II First Supp. CR 435.

Among the bases of the realtors’ motion for summary judgment was that the earnest

money contract and warranty deed both made it clear that Williamson purchased the

Indian Shores property “as is” and that she was relying solely on her own

examination, and not any other representations. I First Supp. CR 156-58.

The Pogues filed their own motion for summary judgment. II First Supp. CR

437. The Pogues asserted that all of Williamson’s causes of action were precluded

by the language in the purchase contract and deed. The court initially granted the

Pogues’ motion, but the court later vacated its order. III First Supp. CR 814, 830.

The case proceeded to trial in April 2017. After a day and a half of testimony,

the parties announced that a settlement had been reached. 3 RR 205. But before the

settlement documents were drafted and signed, the settlement was withdrawn, and

the trial court started another trial with a different jury. 6 RR 4.

After Williamson rested, she moved for a trial amendment, seeking a

declaratory judgment that the deed of trust lien granted by Williamson to secure her

indebtedness to the Pogues was extinguished. 7 RR 71. The court then granted a

directed verdict on Williamson’s trial amendment, and declared that the Pogues’ lien

was extinguished. 7 RR 71-73. This trial amendment and request for directed verdict

was based on Williamson’s claim that the Pogues had no right to enforce their lien

12 because they had waived and abandoned their breach of contract counterclaims,

where the Pogues sought to recover the amounts owing on the promissory note.

Williamson’s tort claims were submitted to the jury and the jury returned a

verdict in favor of Williamson. Tab A, III First Supp. CR 869-901. The court signed

a final judgment, awarding Williamson $496,250 in damages, exclusive of

attorney’s fees and prejudgment interest, $171,972.23 in trial attorney’s fees,

$80,297.44 in pre-judgment interest, and $12,250 in appellate attorney’s fees. Tab

B, III First Supp. CR 902-06.

Summary of the Argument Williamson agreed to purchase the Indian Shores property from the Pogues

“as is” and also agreed to a clear and unequivocal disclaimer-of-reliance provision

in her deed. Williamson agreed to rely solely on her own investigation of the

property’s condition, and she agreed not to rely on any representation, statement,

assurance, or non-assurance made by the Pogues. Williamson’s disclaimer-of-

reliance and her agreement to purchase the property “as is” prevents her from

recovering under any of her alleged causes of action—fraud, negligent

misrepresentation, or the Texas Deceptive Trade Practices Act.

Thus, the judgment against the Pogues—for in excess of $760,000—was

improper.

The portion of the judgment that voided the Pogues’ deed of trust lien on the

property that secured Williamson’s note to the Pogues was also improper. The court

13 improperly concluded that the waiver of the Pogues’ counterclaims on the note also

waived their right to foreclose on the deed of trust lien. Texas law is clear that even

if a suit on the debt is barred, this fact does not prevent the lienholder from non-

judicially foreclosing under the terms of the deed of trust. Here, the Pogues had

posted the property for foreclosure but they were enjoined from foreclosing on their

lien while this suit was pending. The judgment voiding their lien should be reversed

and judgment rendered dissolving this injunction, and allowing the Pogues to

enforce the terms of the deed of trust.

The damages awarded in the judgment—which were awarded under the

DTPA—have no support in the evidence. First, the judgment awards $327,500 in

“additional damages” based on the jury’s “knowing” finding. This was error because

the jury only awarded $2,500 in additional damages for the “knowing” conduct.

Furthermore, the trial court erred in granting $163,750 in actual damages, as this

total includes both benefit-of-the-bargain and out-of-pocket damages. An award of

both of these types of damages constitutes a double recovery, and under Texas law

a plaintiff may not recover both.

In addition, the court erred in awarding benefit-of-the-bargain damages that

Williamson would sustain in the future. This damage award was improper because

the damages are properly measured by comparing the value represented and received

at the time of sale, not at some future time. Moreover, there was no support for any

14 benefit-of-the-bargain damages because Williamson provided no evidence of the

property’s value as it was received in September 2010 when she purchased it.

Without such evidence there is no support for the benefit-of-the-bargain damages

awarded by the court.

Similarly, the court’s award of future out-of-pocket damages, future expenses,

and future lost time damages have no support in the evidence. Williamson provided

no evidence to support her claim to future damages, and instead she offered vague

testimony that some specified rooms in the house “haven’t been touched”. There

was no evidence of the time, expenses, or future out-of-pocket costs that she claimed

would be necessary in the future.

The damages that were awarded by the court were based on the DTPA, but

the jury also answered questions regarding fraud and negligent misrepresentation.

The trial court’s judgment cannot be supported by the jury’s answers on these

alternative theories for similar reasons to those that bar the recovery under the

DTPA.

First, Williamson’s fraud and negligent misrepresentation claims are barred

because of her agreement to purchase the property “as is” and her disclaimer-of-

reliance agreement. In addition, there was no evidence to support the loss of the

benefit-of-the-bargain damages for fraud or negligent misrepresentation because

Williamson presented no evidence of the value of the Indian Shores property on the

15 date she purchased it. The only evidence Williamson submitted was an HCAD

appraisal district statement that reflected a value in 2013, but this constitutes no

evidence of the property’s value in 2010, when Williamson purchased it.

Also, the future benefit-of-the-bargain damages awarded by the jury under the

fraud Question 4(2) cannot support a judgment these damages are properly measured

at the time of the purchase, not at some future time.

Similarly, all of the future damages awarded by the jury in Questions 4(2),

4(4) and 4(6), as well as the future economic loss damages awarded in Question 11

(negligent misrepresentation) are improper for the reason that there is no evidence

to support the future damages. Williamson provided no evidence as to the labor or

materials that would be necessary in order to complete any repairs and without such

evidence the damages awarded were based on pure speculation.

Finally, the award of past remedial damages in Question 4(3), the award of

past mitigation expenses in Question 4(5), and the award of past economic loss in

Question 11 are not supported by any evidence. These repairs were conducted over

the two-year period after Williamson purchased the property and involved

specialized or technical knowledge that require expert testimony. Williamson

admitted that she and her husband were not professionals and that they did all the

work themselves. As such, there is no competent evidence that the repairs were

necessary and reasonable. Williamson’s testimony regarding the labor costs incurred

16 was not competent evidence, as she testified that she obtained these labor costs from

a website that advertised what contractors charged in the area and that she only

charged the Pogues one-third of the contractors’ amount because she “thought that

would be fair”. Because there was no competent evidence to support these amounts,

the jury’s answers regarding future remedial damages, mitigation expenses, and

economic loss—Questions 4(3), 4(5), and 11—cannot support a judgment in

Williamson’s favor.

Because the judgment in Williamson’s favor is improper, the court’s judgment

awarding attorney’s fees is also improper.

Argument

I. Williamson’s disclaimer-of-reliance agreement prevents her from recovering under all of her causes of action. (Issue Nos. 1 and 2).

Williamson signed a broad disclaimer-of-reliance provision, agreeing that she

was not relying on any representation, statement, assertion or non-assertion by the

Pogues as to the property’s condition and that she was relying solely on her own

examination of the property. 2 10 RR PX 7. Texas courts, including the Supreme

Court, have enforced disclaimers of reliance that contain language virtually identical

to the disclaimer of reliance signed by Williamson. These cases all stand for the

______________________ 2 Williamson also agreed, in the earnest money contract she signed, to accept the property “as is”. Her agreement to purchase the property “as is” is repeated in the disclaimer-of-reliance paragraph contained in the deed. For purposes of this brief, the term “disclaimer-of-reliance” includes the “as is” language.

17 general proposition that parties to an agreement can prevent future claims of fraud,

negligent misrepresentation, or liability under the DTPA by including contract

language that clearly and unequivocally disclaims reliance. Allen v. Devon Energy

Holdings, LLC, 367 S.W.3d 355, 376 (Tex. App.—Houston [1st Dist.] 2012, pet.

granted, judgm’t vacated w.r.m.).

The Texas Supreme Court has discussed disclaimer-of-reliance clauses in two

cases: Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997) and

Forest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008). The threshold requirement

for an effective disclaimer of reliance is that the language must be “clear and

unequivocal” in its expression of the parties’ intent to disclaim reliance. See

Schlumberger, 959 S.W.2d at 179-80, Forest Oil, 268 S.W.3d at 62. This

requirement for precise language ensures that parties to a contract understand that

the contract’s terms disclaim reliance, such that the contract may be binding even if

it was induced by fraud. In both Schlumberger and Forest Oil, the Supreme Court

held that the language used was clear and unequivocal in disclaiming reliance.

In Schlumberger, Schlumberger and the Swansons agreed to a release of

claims in order to settle a dispute involving an underwater diamond-mining project

off the South African coast. The Swansons sold their interests in the venture to

Schlumberger for roughly $1 million, and the parties signed a settlement agreement

that included a disclaimer-of-reliance provision:

18 Each of us … expressly warrants and represents … that no promise or agreement which is not herein expressed has been made to him or her in executing this release, and that none of us is relying upon any statement or representation of any agent of the parties being released hereby. Each of us is relying on his or her own judgment….

959 S.W.2d at 180.

After learning that Schlumberger later sold the interests it acquired in the

settlement for about $4 million, the Swansons sued, claiming Schlumberger had

fraudulently induced them to accept the low-price buyout. They claimed that when

Schlumberger entered into the settlement it knew that the Swansons’ interest had far

higher value. Id.

For purposes of its decision, the Supreme Court assumed that Schlumberger

had misrepresented the project’s technological feasibility and commercial viability

and that such misrepresentations were actionable as fraud. Id. at 178. Nevertheless,

the Court concluded that the disclaimer of reliance that the Swansons gave

conclusively negated the element of reliance and prohibited their recovery. Id. at

180. The Court reasoned that the Swansons, in clear language, had unequivocally

disclaimed reliance upon Schlumberger’s representations and agreed that they were

relying on their own judgment. Id.

Eleven years later in Forest Oil, the Court again addressed whether an

unambiguous disclaimer-of-reliance provision precluded a fraudulent inducement

claim as a matter of law. The suit involved a dispute over oil and gas royalties, and

19 the case was settled at mediation. The settlement agreement in question expressly

stated that neither of the parties was relying on any statement or representation of

the other party and that each party was relying on their own judgment in signing the

document:

[We] expressly represent and warrant ... that no promise or agreement which is not herein expressed has been made to them in executing the releases contained in this Agreement, and that they are not relying upon any statement or representation of any of the parties being released hereby. [We] are relying upon [our] own judgment ….

268 S.W.3d at 54 n.4.

In reaching its conclusion that the disclaimer-of-reliance clause clearly and

specifically negated the plaintiff’s fraud claims, the Forest Oil court noted that the

Schlumberger decision was relatively similar and rested on the paramount principle

that Texas courts should uphold contracts that are negotiated at arms’ length and that

when parties elect to include a disclaimer-of-reliance provision in their agreement,

the Court will generally enforce it. 268 S.W.3d at 58.

After Schlumberger, the courts of appeals seemed to disagree over which facts

were most relevant in determining if a waiver-of-reliance provision was binding, and

the Forest Oil Court clarified the Court’s reasoning. Forest Oil identified five factors

as a part of the totality of the circumstances that courts should consider in

determining the validity of a contractual disclaimer: whether the disclaimer is “clear

and unequivocal”, and four extrinsic factors: (1) whether the terms of the contract

20 were negotiated, rather than boilerplate, and during the negotiations the parties

specifically discussed the issue which has become the topic of the subsequent

dispute; (2) the complaining party was represented by counsel; (3) the parties dealt

with each other in an arm’s-length transaction; and (4) the parties were

knowledgeable in business matters. 268 S.W.3d at 60; Italian Cowboy Partners, Ltd.

v. Prudential Ins. Co. of America, 341 S.W.3d 323, 337 n.8 (Tex. 2011) (holding

that if a clear and unequivocal disclaimer-of-reliance clause exists the analysis then

proceeds to the circumstances surrounding the contract’s formation).

This Court has determined that the four extrinsic factors that the Forest Oil

court described are not absolute requirements. Allen, 367 S.W.3d at 384. And the

Court has previously held that an agreement between two parties barred fraud claims

as a matter of law even when all of the Forest Oil factors were not present. See

Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 216-17 (Tex. App.—Houston

[1st Dist.] 2004, pet. denied) (disclaimer of reliance provision barred fraudulent

inducement claim when all factors later identified in Forest Oil were satisfied except

sophistication of parties); see also McLernon v. Dynegy, Inc., 347 S.W.3d 315, 333

(Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that Forest Oil

considerations are “facts…that guide our reasoning … and not elements that all must

be established before a disclaimer of reliance is enforceable.”). Thus, it is

21 unnecessary to satisfy each factor when the parties’ intent to preclude a claim is clear

and unequivocal and a sufficient number of factors are met. 367 S.W.3d at 384.

The courts have identified the underlying reasons why disclaimer-of-reliance

provisions such as those found in Forest Oil and Schlumberger should be enforced.

As this Court noted in Allen, the law favors granting parties the freedom to contract,

knowing that courts will enforce their contract’s terms, as well as the ability to

contractually resolve disputes between themselves fully and finally. 367 S.W.3d at

378; Italian Cowboy, 341 S.W.3d at 332; Gym-N-I Playgrounds, Inc. v. Snider, 220

S.W.3d 905, 912 (Tex. 2007); Forest Oil, 268 S.W.3d at 58. This Court in Allen

mentioned an additional reason why a party should not be permitted to claim fraud

when he represented in the parties’ contract that he did not rely on a representation:

After-the-fact protests of misrepresentation are easily lodged, and parties who contractually promise not to rely on extra-contractual statements—more than that, promised that they have in fact not relied upon such statements—should be held to their word. Parties should not sign contracts while crossing their fingers behind their backs.

Allen, 367 S.W.3d at 378, citing Forest Oil, 268 S.W.3d at 60.3

______________________ 3 This Court in Allen noted that similar to the concerns expressed in Forest Oil, a Delaware court has stated that non-reliance clauses should generally be enforced because a contrary rule would endorse “a lie made by one contracting party in writing—the lie that it was relying only on contractual representations and that no other representations had been made—to enable it to prove that another party lied orally or in writing outside the contract’s four corners.” Allen, 367 S.W.3d at 378 n.20; Abry Partners V., L.P. v. F and W Acquisition, L.L.C., 891 A.2d 1032, 1058 (Del. 2006). This has been described as “a ‘double liar’ scenario.” Id. In a double-liar scenario, the plaintiff—who claims to be the victim of a lie—was itself a liar when it promised not to rely on the alleged misrepresentation.

22 A. The disclaimer-of-reliance clause signed by Williamson is clear and unequivocal.

A side-by-side comparison of the language held by the Texas Supreme Court

to be clear and unequivocal in Schlumberger and Forest Oil conclusively illustrates

that the disclaimer-of-reliance clause in this case is clear and unequivocal and meets

the threshold requirement for enforcement. In fact, the clause in this case, although

strikingly similar to the provisions discussed in Schlumberger and Forest Oil, is

actually more clear and unequivocal than the language discussed and approved in

those cases.

The provisions in Schlumberger, Forest Oil, and in this case are reproduced

below for the Court’s convenience:

23 Schlumberger Forest Oil Williamson’s agreed-to disclaimer-of-reliance language Each of us expressly [We] expressly represent Grantee has accepted this warrants and and warrant … that no deed and purchased the represents … that no promise or agreement above-described Property, promise or agreement which is not herein premises and which is not herein expressed has been made improvements “AS IS.” expressed has been to them in executing the Grantor and Grantee agree made to him or her in releases contained in this that Grantee is taking the executing this release, Agreement, and that they Property “AS IS” with any and that none of us is are not relying upon any and all latent and patent relying upon any statement or defects, and that there is no statement or representation of any of warranty from Grantor that representation of any the parties being the Property is fit for a agent of the parties released hereby. [We] particular purpose. being released hereby. are relying upon [our] Grantee acknowledges that Each of us is relying on own judgment…. Grantee is not relying upon his or her own any representations, judgment…. statements, assertions or non-assertions by the Grantor with respect to the Property condition, but is relying solely upon Grantee’s examination of the Property.

As shown above, the disclaimer-of-reliance language that Williamson agreed

to closely tracks the language the Schlumberger and Forest Oil disclaimers. If

anything, the language is stronger than in Schlumberger and Forest Oil, as the

disclaimer explicitly states that Williamson was relying solely on her own

24 examination.4 The language is not a mere “as is” clause. Instead, as the Court

concluded in Schlumberger and Forest Oil, the language makes clear that

Williamson “unequivocally disclaimed reliance” by signing the agreement.

B. The language was not boilerplate and the parties discussed the issue.

In addition to being clear and unequivocal, the extrinsic factors mentioned by

Forest Oil support the enforcement of the disclaimer-of-reliance language.

The terms of the contract between Williamson and the Pogues were negotiated

rather than boilerplate. The terms of the earnest money contract were negotiated,

initially by Williamson’s then-boyfriend Lewis Walker—who made the first offer to

purchase the Pogues’ property. 6A RR 38, 10 RR PX 2E. The Pogues had originally

listed the Indian Shores property for $269,000. 6A RR 36. Walker’s first offer was

for $208,000, with the Pogues owner-financing $187,200. 6A RR 55. The Pogues

rejected this offer. Shortly thereafter, Williamson contacted Gina Jones, who was

the listing agent and who Williamson testified represented her as well in the

transaction. 6A RR 53. Williamson increased Walker’s previous offer to $235,000,

which the Pogues accepted. 6A RR 36. Williamson negotiated special terms in

which the Pogues would finance $210,000 of the purchase price for two years with

a balloon payment for the remaining balance at the end of the two-year period. 10

______________________ 4 This Court in Allen held that language making it clear that a party relied solely on his own investigation made the disclaimer clear and unequivocal. 367 S.W.3d at 379-80.

25 RR PX 2, 5. These special provisions were put in Paragraph 11 of the earnest money

contract that Williamson submitted, along with another provision that the mineral

rights would be withheld by the Pogues. 10 RR PX 2, ¶ 11. The parties also agreed

to a Seller Financing Addendum. The earnest money contract was later amended by

Williamson and the Pogues to include additional real property. 10 RR PX 2, p. 11.

Williamson herself acknowledged that she and the Pogues were negotiating an issue

in the contract but she couldn’t remember precisely what that issue was. 2 RR 199-

200.

Not only was the earnest money contract negotiated and not boilerplate, the

warranty deed the parties signed and which contained the disclaimer-of-reliance

language was also not boilerplate. The deed was prepared by an attorney—Donna

Heinlein. This was not a form deed. 10 RR PX 7. It contained the reservation of

minerals that was agreed to by Williamson in the earnest money contract, and a

waiver of surface rights for future exploration. 10 RR PX 7, p. 2. The deed further

included a reference to the wrap note that Williamson agreed to when she requested

that the Pogues owner-finance the property. 10 RR PX 7, p. 3.

Importantly, the disclaimer-of-reliance paragraph was inserted in a different

and larger type-font than the deed’s other provisions. This paragraph included the

agreement that Williamson made in the earnest money contract that the Pogues were

conveying the property to her “as is”. 10 RR PX 7, p. 3. Williamson stated that she

26 discussed the “as is” language with her realtor who told her it was “standard

contracting” but she never discussed the issue with Ms. Heinlein, who Williamson

thought was both her and the Pogues’ attorney, even though Williamson admitted

that she was advised by the terms of the contract to consult an attorney. 6A RR 225,

226, 2 RR 204, 10 RR PX 2, ¶ 23.

The terms of the earnest money contract and deed were negotiated, and not

boilerplate, because their terms, including the disclaimer-of-reliance provision, were

unique to the relationship between Williamson and the Pogues. See McLernon v.

Dynegy, Inc., 347 S.W.3d 315, 330 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

Williamson was free to include anything that she wanted in the earnest money

contract, and she could have contacted Heinlein, who she believed to be her attorney,

to discuss the deed’s provisions. See Hong v. Nations Renovations, LLC, No. 05-15-

01036-CV, 2016 WL 7473900, at *5 (Tex. Civ. App.—Dallas, Dec. 29, 2016, no

pet.); Bever Properties, LLC v. Jerry Huffman Custom Builder, L.L.C., No. 05-13-

01519-CV, 2015 WL 4600347, at *9-11 (Tex. Civ. App.—Dallas, July 31, 2015, no

pet.) (enforcement of disclaimer-of-reliance provision is not barred where parties

had access to an attorney but decided not to protect their interests by seeking advice

of counsel).

In addition, the parties discussed the issue that has now become the topic of

this dispute. The meaning of “the topic of the subsequent dispute” mentioned by

27 Forest Oil does not mean that the parties must have discussed the present fraud or

misrepresentation claims. 5 Instead of the allegations and the subsequent lawsuit, the

Forest Oil analysis of the enforceability of the contract concerns the terms of the

contract that the party is seeking to enforce. The significant point with respect to the

Forest Oil factors is that the party that signed the disclaimer-of-reliance provision

was aware of the representations concerning the topic of the present dispute yet

elected to disclaim reliance on those representations. McLernon, 347 S.W.3d at 331.

Here there is no question that Williamson was aware of the specific

representations concerning the topic of the present dispute. She admitted that she

received the Pogues’ Seller’s Disclosure Statement, which the Pogues had

completed when they listed the Indian Shores property for sale with Gina Jones. 6A

RR 38-89, 6B RR 107. All of Williamson’s claims in this suit are based on her

allegations regarding the Pogues’ representations contained in the disclosure.

Williamson claimed in her pleadings that in their disclosure, the Pogues failed to

disclose prior water damage, mold damage, and structural roof damage to the

property. III First Supp. CR 831, Pars. 12-19. At trial, Williamson asserted that

although the Pogues never represented the condition of the property to her, she

______________________ 5 As the courts have held, if the contracting parties had discussed the fraud claims and the complaining party was aware of the material misrepresentations before signing the agreement, there would be no such fraud claim because they would not have been deceived into signing the agreement. See McLernon v. Dynegy, Inc., 347 S.W.3d 315, 331 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

28 considered the seller’s disclosure a representation about the property. 6B RR 44,

114-15. Despite having received the disclosure and the representations the Pogues

made therein, Williamson elected to disclaim reliance on those representations.

Because Williamson was aware of the specific representations that she later made

the basis of her suit, the Forest Oil factor requiring the parties to have discussed the

matters disclaimed was met.

C. Williamson was represented by counsel in the transaction.

The next factor Forest Oil considered was whether the complaining party was

represented by counsel. Forest Oil, 268 S.W.3d at 60. Here, the evidence is that

Donna Heinlein was the attorney that closed the transaction and prepared all of the

closing documents. 6A RR 66. Whether or not Heinlein actually represented the

parties in connection with the closing, Williamson believed that she represented her.

Williamson testified on two separate occasions that she assumed and thought that

Heinlein was representing both her and the Pogues in connection with the contract.

2 RR 204, 6B RR 104. Williamson testified she believed Heinlein was her attorney

as well as the Pogues because both parties paid a portion of the attorney’s fees owing

to Heinlein’s law firm, as shown by the settlement statement, where Williamson is

shown paying $600 in attorney’s fees to Heinlein. 10 RR PX 4, ln. 1303, 6B RR 106.

Williamson was familiar with using attorneys for real estate matters, as she

testified that she had an attorney representing her when she sold her Reidland

29 property, which she owned before buying the Indian Shores property. 6B RR 104.

Williamson admitted that she was sure she could have asked Heinlein a question

about the draft closing documents that the attorney sent to her, but Williamson never

did. 6B RR 106. Instead, Williamson asked Gina Jones, the realtor, about the “as is”

clause, and relied on her and the Seller’s Disclosure before signing the documents,

even though the record shows that Williamson and Heinlein communicated on a

regular basis before and after the closing. 6B RR 105-06, 2 RR 203, 243, 252, 273,

275, and 277-78.

Thus, Williamson was either represented by an attorney in this transaction or

had access to an attorney who she thought represented her.

D. Williamson and the Pogues dealt in an arm’s length transaction and Williamson was knowledgeable about business matters.

The final two factors mentioned by Forest Oil are that the parties dealt with

each other in an arm’s length transaction and the parties were knowledgeable in

business matters. Forest Oil, 268 S.W.3d at 60.

There is no dispute that Williamson and the Pogues dealt with each other in

an arm’s length transaction. The Pogues listed the property for sale with a realtor

and Williamson made an offer through her realtor. 10 RR PX 2, 6A RR 30. The

purchase price that Williamson offered was less than the Pogues’ asking price, and

the terms were negotiated, since instead of a cash deal, Williamson asked the Pogues

to owner-finance for twenty-four months with a balloon payment due at the end of

30 the two-year term. 10 RR PX 2. In addition, the contract included a financing

addendum, and the contract was amended twice, once in order to modify the real

property description and again to change the closing date. 10 RR PX 2, pp. 9, 11-12.

Williamson was advised in the earnest money contract that she should consult an

attorney before signing the agreement if she did not understand its effect. 10 RR PX

2, ¶ 23. There was no prior relationship between Williamson and the Pogues,

although she had met Mr. Pogue when Williamson was younger and worked in the

local feed store where Mr. Pogue purchased feed. 2 RR 259, 6B RR 42-43.

As to whether the parties were knowledgeable in business matters, it appears

that while both parties were fairly unsophisticated, Williamson was knowledgeable

in business matters generally. She testified that she had worked in the retail industry

most of her life and, at the time of trial she worked at a marine and boat repair

company where she had been the office manager for ten years. 2 RR 184-86. In her

job as office manager, she testified that she handled “pretty much anything that

comes through the office”, including invoicing, ordering, estimating, handling the

phones, and filing paperwork. 2 RR 187, 6A RR 26-27.

In connection with the property, Williamson contacted the realtor and worked

with her to put together a non-standard offer to purchase the Indian Shores property

at a reduced price, and with a wrap-note and a two-year balloon payment. After the

contract was signed, Williamson reviewed the Seller’s Disclosure and the closing

31 documents, and asked the realtor about the “as is” language, and had numerous

communications with the attorney about the closing documents. 6B RR 105-06, 2

RR 203, 243, 252, 273, 275, and 277-78. Williamson knew that she had to obtain

insurance on the property, and she researched and located an insurance company that

would insure the property, found out about a previous “wind claim”, and after

reviewing the closing documents, signed all of them.

Thus, Williamson was knowledgeable in business matters and this Forest Oil

factor does not prevent the enforcement of the disclaimer-of-reliance language that

Williamson agreed to.

In sum, the disclaimer-of-reliance language was clear and unequivocal and is

in fact more clear and certain than similar language approved by the Texas Supreme

Court. In addition, the remaining Forest Oil factors support the enforcement of the

disclaimer-of-reliance language.

E. Because of the disclaimer-of-reliance language, Williamson cannot recover under any of her tort theories as a matter of law.

The question whether disclaimer-of-reliance language negates a cause of

action is a question of law that is reviewed de novo. Forest Oil, 268 S.W.3d at 55.

The jury charge submitted questions related to the following causes of action:

common law and statutory fraud, negligent misrepresentation, and Texas Deceptive

Trade Practices Act (false, misleading, or deceptive act or practice and

unconscionable action). Tab A, III First Supp. CR 869. The jury answered the

32 questions favorable to Williamson and the court awarded damages under the DTPA.

Tab B, III First Supp. CR 902.

Reliance is an element of Williamson’s causes of action for fraud, negligent

misrepresentation, as well as the DTPA claim. See Henry Schein, Inc. v. Stromboe,

102 S.W.3d 675, 693 (Tex. 2002); Williams v. Dardenne, 345 S.W.3d 118, 124 (Tex.

App.—Houston [1st Dist.] 2011, no pet.); Larsen v. Carlene Langford & Assocs.,

Inc., 41 S.W.3d 245, 253 (Tex. App.—Waco 2001, pet. denied). Specifically, the

Court has held that under the DTPA—which only requires a producing cause of

damages—a contractual disavowal of reliance on representations precludes a

plaintiff from proving that an act was a producing cause of the damages. Prudential

Ins. Co. of America v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995).

Here, Williamson, as a matter of law, cannot recover for any of the damages

found by the jury for fraud, negligent misrepresentation, or DTPA violations because

of the disclaimer-of-reliance provision. This Court should therefore reverse the

judgment of the trial court and render judgment that Williamson take nothing for any

of the damages found by the jury on these causes of action.

II. The trial court’s judgment extinguishing the Pogues’ deed of trust lien is a misapplication of Texas law and constitutes reversible error. (Issue No. 3)

As stated above, Williamson’s obligation to buy the property from the Pogues

was secured by a deed of trust lien. 10 RR PX 6. The deed of trust granted the Pogues

33 a non-judicial power of sale, allowing the Pogues to foreclose their lien without first

obtaining a court’s permission. 10 RR PX 6, pg. 3. According to current Texas law,

the Pogues retained the right to exercise their non-judicial power of sale for a period

of four years after the accrual of a cause of action—in this case, nonpayment of the

debt by Williamson. TEX. CIV. PRAC. & REM. CODE § 16.035(b). On July 15, 2013,

less than a year after Williamson’s default (which occurred on September 25, 2012)

and well-within the limitations period, the Pogues posted the property for foreclosure

in accordance with the terms of the deed of trust. I CR 53.

A few weeks later, the court issued an “Amended Agreed Temporary

Injunction Order” which directed the Pogues to refrain from “taking any actions that

would initiate, continue or complete a process of foreclosure…until such time as all

issues in this matter have been fully litigated or resolved.” Second Supp. CR 3. This

temporary injunction became a permanent one when the trial court signed its final

judgment on July 28, 2017:

[A] Permanent Mandatory Injunction is hereby issued against Defendants Leslie R. Pogue and Jeannette I. Pogue, and their agents, servants, representatives, employees, independent contractors, officers, directors, partners, successors and assigns, who are permanently ENJOINED from and ORDERED to refrain from foreclosing upon the secondary lien filed on 901 Indian Shores Road, Crosby, Texas 77532, contained within the Deed of Trust Security Agreement-Financing Statement, 20100443760, filed in the Harris County Real Property Records on October 15 2010, as that lien has been extinguished or released.”

I CR 75.

34 The court’s order rests on the premise that because the Pogues waived their

counterclaims—including the breach of contract claim made in response to

Williamson’s failure to make all her payments under the note—and because four

years had passed since the default when the final judgment was signed, not only has

the Pogues’ lien been extinguished, but the underlying debt has been extinguished,

as well. 7 RR 71-76. This was error. Under Texas law the Pogues’ non-judicial

power of sale survives their waiver of judicial remedies and the statute of limitations

that governs the period during which they have the right to exercise that power of

sale is tolled by the pendency of these very legal proceedings.

A. Williamson’s debt to the Pogues has not been extinguished and currently exists.

There is no question that the Pogues waived their counterclaims before trial

got underway. 3 RR 13-15. But there can also be no question that the Pogues’ non-

judicial power of sale contained in the deed of trust—a power they exercised within

the applicable limitations period and are currently enjoined from pursuing—survives

their decision to waive their right to pursue judicial remedies.

It is a fundamental principle of Texas property law that liens can be foreclosed

through two different processes: (a) a suit for the recovery of real property brought

in a Texas court; or (b) a sale of real property under a power of sale in a mortgage

or deed of trust that creates a real property lien. TEX. CIV. PRAC. & REM. CODE §

35 16.035(a-b). It is no accident that these two remedies are given separate treatment in

the statute’s text despite being governed by the same limitations period—they often

have little or nothing to do with one another.

This was the issue facing the Supreme Court of Texas in Goldfrank, Frank &

Co. v. Young, 64 Tex. 432 (1885). In Goldfrank, the Supreme Court made one thing

abundantly clear: there is a distinction between “actions or suits” and other

mechanisms by which a creditor may enforce a debt:

In reference to the operation of the statutes of limitation in any matter in which the recovery of money is sought, the statute itself limits it to “actions or suits in courts”, and it provides within what time “actions or suits” in the different classes of cases may be brought, but it does not attempt to determine within what period anyone must enforce a right which the debtor has placed in … the creditor to enforce otherwise than by an “action or suit in court.”

That the legislature might fix a period within which steps must be taken to enforce rights otherwise than through the courts, when such right and power have been given, by contract, by one person to another, as may it prescribe a period within which actions or suits must be brought in courts, there is no doubt; but the declaration that persons must institute “suits or actions in courts” within a fixed period to enforce their claims, which can be enforced only in that manner, is not equivalent to declaring that a creditor who has been given, by contract, a right and means by which he may enforce his claim otherwise than through the courts, shall not enforce it after the time at which he might institute an action or suit, without subjecting himself to the bar which could be urged by a plea of limitation.

It is not always true that rights which cannot be enforced through the courts are valueless, nor that contracts which the courts cannot enforce are invalid.”

Id. at 436.

36 Goldfrank is still good law. See Holman Street Baptist Church v. Jefferson,

317 S.W.3d 540, 547 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (citing

Goldfrank for the proposition that a bar from collecting a debt personally from the

debtor does not prevent a lender from using the collateral to repay the debt).

Because the Pogues’ deed of trust contains a provision that expressly allows

them to enforce their claim “otherwise than through the courts”—that is, through the

exercise of a non-judicial power of sale—as Goldfrank makes clear, the fact that the

Pogues’ judicial enforcement of Williamson’s debt is no longer possible has no

bearing on the exercise of their non-judicial power of sale. Thus, the trial court’s

declaration that the deed of trust lien is extinguished and released constitutes

reversible error. The Williamson debt still exists, as does the Pogues’ right to

foreclose on the property.

B. The Pogues’ right to foreclose is not barred by the applicable statute of limitations.

In Texas, a sale of real property under a power of sale in a mortgage or deed

of trust that creates a real property lien—precisely the debt-enforcement tool

acquired by the Pogues—must be made not later than four years after the day the

cause of action accrues. TEX. CIV. PRAC. & REM. CODE § 16.035(b). The Pogues’

cause of action accrued on September 25, 2012 when Williamson’s balloon payment

was due. 7 RR 74, lns. 9-11, 10 RR PX 5. Less than a year later, effective July 22,

2013, the Pogues were enjoined by the trial court from pursuing their non-judicial

37 remedies. Second Supp. CR 3, ¶ 6. This temporary injunction became permanent

when the trial court issued its final judgment on July 28, 2017. III First Supp. CR

902. As a result of these injunctions, the Pogues have been unable to exercise their

right to conduct a non-judicial foreclosure sale for nearly five years. But because

these pending legal proceedings have barred any such sale, the statute of limitations

has been, and continues to be, tolled until such time that the Pogues may freely

exercise the right afforded them under their deed of trust.

Where “a person is prevented from exercising his legal remedy by the

pendency of legal proceedings, the time during which he is thus prevented should

not be counted against him in determining whether limitations have barred his right.”

Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991) (quoting Walker

v. Hanes, 570 S.W.2d 534, 540 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d

n.r.e.)). This principle has even been specifically applied to injunctions which, like

those issued by the trial court in this case, bar a party from exercising their power of

sale: “[i]t appears, however, that the creditor has been continuously restrained from

the exercise of such powers of sale since the accrual of the right thereto by an

injunction wrongfully procured by the debtors…. [I]t is generally held that where

the exercise of a lawful right is restrained by injunction, the statute of limitations is

tolled during the period of such restraint on the theory that the party who has

obtained the injunction has…obtained an unconscionable advantage which he ought

38 not be permitted to enjoy.” Pioneer Bldg. & Loan Ass’n v. Johnston, 117 S.W.2d

556, 559 (Tex. Civ. App.—Waco, 1938, writ dism’d).

As mentioned above, Williamson’s debt to the Pogues survives these legal

proceedings, no matter what the outcome. And because the Pogues’ deed of trust

contains a non-judicial power of sale, they still possess a tool by which to enforce

that debt, even though their judicial remedies have been waived. Further, because

the Pogues have been barred by trial court injunctions from exercising their power

of sale, the statute of limitations governing such an exercise has been, and will be,

tolled until such time that the injunctions are no longer in effect. Because Pogues’

deed of trust affords them a non-judicial remedy for enforcing the Williamson debt,

this Court should reverse that portion of the trial court’s judgment that prevents the

Pogues from exercising this remedy and render judgment allowing the Pogues to go

forward with foreclosure proceedings.

III. The DTPA damages awarded by the trial court were improper. (Issue No. 4).

Even if Williamson had not disclaimed reliance, the trial court erred in

entering judgment for the DTPA damages it awarded.

A. The trial court erred in entering its judgment for additional damages of $327,500 because this award does not conform to the jury’s verdict.

In a case tried to a jury, the judgment rendered after the jury’s verdict must

conform to that verdict. TEX. R. CIV. P. 301; Phillips v. Phillips, 820 S.W.2d 785,

39 787 n.2 (Tex. 1991) (“as a rule, however, the judgment in a case tried by a jury must

conform to the verdict”). The judgment must also reflect a correct application of the

law to determine the effect of the jury’s verdict. Walker v. Packer, 827 S.W.2d 833,

840 (Tex. 1992) (“a trial court has no ‘discretion’ in determining what the law is or

applying the law to the facts”); Salomon v. Lesay, 369 S.W.3d 540, 553 (Tex. App.—

Houston [1st Dist.] 2012, no pet.).

Here, the trial court awarded damages under the Texas Deceptive Trade

Practices Act instead of the fraud or negligent misrepresentation claims submitted

to the jury. This fact is clear from the court’s judgment which, on page two, recites

that the actual damages awarded total $163,750—the amount of actual damages

found by the jury in response to Question 15, which is related to the DTPA Questions

12 and 13. Tab A, III First Supp. CR 892. 6

The DTPA provides that if a jury finds that a party engaged in the conduct in

question knowingly, then the trier of fact may award additional damages of up to

three times the amount of economic damages. TEX. BUS. & COM. CODE ANN.

§ 17.50(b)(1).

In a jury trial, it is the jury, and not the judge, that acts as the trier of fact. Only

in the absence of a jury is an award of discretionary damages under the DTPA a

______________________ 6 The fraud and negligent misrepresentation damages found by the jury totaled $174,950, not $163,750. III First Supp. CR 877, 887.

40 question for the court. Martin v. McKee Realtors, 663 S.W.2d 446, 448 (Tex. 1984);

Boat Superstore v. Haner, 877 S.W.2d 376, 379 (Tex. App.—Houston [1st Dist.]

1994, no pet.) (“the amount of additional damages to award after finding a violation

of the DTPA is within the discretion of the trier of fact”).

In answer to Question 17, the jury found that because the conduct was

committed knowingly, additional damages of $2,500 should be awarded to

Williamson. III First Supp. CR 896. But the trial court ignored this finding and

instead awarded $327,500 in additional damages based on the “knowing” finding.

Tab B, III First Supp. CR 903. This was clear error.

The DTPA allows the factfinder to award additional damages of not more than

three times the amount of actual damages if the conduct is committed knowingly.

Here, the jury found $2,500 and it was improper for the trial court to unilaterally

ignore the jury’s finding and award additional damages of a different amount.

The trial court erred in entering judgment for additional damages of $327,500

and the Court should reverse this portion of the judgment.

B. The trial court erred in awarding both loss of the benefit-of-the- bargain damages and out-of-pocket damages under the DTPA, as the award constitutes a double recovery.

The trial court’s judgment awarded Williamson $496,250 in damages,

exclusive of attorney’s fees and prejudgment interest. Tab B, III First Supp. CR 904.

This sum was computed by totaling the actual damages of $163,750 and “treble

41 damages” in the amount of $327,500. Tab B, III First Supp. CR 903. The trial court

then apparently awarded an additional $5,000 in damages to these amounts for the

$496,250 total. 7

As argued above, it was clear error for the trial court to award the additional

damages of $327,500 under the DTPA for “knowing” conduct, because the jury

found only $2,500 for this conduct.

But this was not the only error in the trial court’s calculation of the damages

awarded. The $163,750 in actual damages constitutes a double recovery, as the

amount includes both loss of benefit-of-the-bargain damages and out-of-pocket

damages found by the jury.

Under § 17.50(a), a DTPA plaintiff may recover “economic damages”. TEX.

BUS. & COMM. CODE ANN. § 17.50(a). Economic damages consist of either benefit-

of-the-bargain damages or out-of-pocket damages. See Arthur Andersen & Co. v.

Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997). Out-of-pocket damages

measure the difference between the value the buyer has paid and the value of what

he has received; benefit-of-the-bargain damages measure the difference as

represented and the value received. Id. Under the DTPA, a plaintiff may recover

______________________ 7 It is unclear exactly how the trial court arrived at the total amount of the judgment (exclusive of attorneys’ fees and pre-judgment interest) of $496,250. Tab B, III First Supp. CR 904. If one totals the amount of actual damages awarded of $163,750 and the additional damages of $327,500 awarded as additional damages, these amounts total only $491,250. The court may have awarded another $2,500 against Mr. Pogue and $2,500 against Mrs. Pogue based on the jury’s answer to Question 17—for “knowing” conduct.

42 under the damage theory that provides the greater recovery, but these damages are

alternatives. A plaintiff may not recover both. Latham v. Castillo, 972 S.W.2d 66,

70 (Tex. 1988) (“a plaintiff may recover either the out-of-pocket or the benefit-of-

the-bargain damages, whichever is greater”); Foley v. Parlier, 68 S.W.3d 870, 885

(Tex. App.—Ft. Worth 2002, no pet.); Huynh v. Phung, No. 01-04-00267-CV, 2007

WL 495023 at *7 (Tex. App.—Houston [1st Dist.] Feb. 16, 2007, no pet.).

In answer to Question No. 15 related to the DTPA liability questions, the jury

found a total of $163,750 in damages. Tab A, III First Supp. CR 892-93. This total

included both loss of benefit-of-the-bargain damages and out-of-pocket damages.

Instead of awarding damages under one or the other theories, the court awarded both

benefit-of-the-bargain and out-of-pocket damages. This is error, as it constitutes a

double recovery, and the court’s award of these damages should be reversed.

C. The trial court erred in including future benefit-of-the-bargain and out-of-pocket damages in the actual damages awarded under the DTPA.

In addition, the award of actual damages of $163,750 awarded in the judgment

under the DTPA included future benefit-of-the-bargain and out-of-pocket damages.

Tab A, III First Supp. CR 892, Question 15(2) and (4). This was improper.

As above noted, under the DTPA (as well as Texas common law) the direct

damages that the plaintiff may recover for misrepresentations are either out-of-

pocket damages or benefit-of-the-bargain damages. Under the DTPA, a plaintiff may

43 recover under the damage theory that provides the greater recovery, but both

measures of damages are determined at the time of sale induced by the fraud. Arthur

Andersen, 945 S.W.2d at 817; Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d

369, 373 (Tex. 1984); Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 395

(Tex. App.—Houston [1st Dist.] 2013, no pet.).

Here, Question 15(2) and (4) allowed the jury to award benefit-of-the-bargain

damages and out-of-pocket damages that Williamson would sustain in the future. III

First Supp. CR 892. The jury’s answers included an award of future benefit-of-the-

bargain damages of $58,000 and future out-of-pocket damages of $11,800. Both of

these amounts were included in the $163,750 awarded by the court.

This Court has consistently held that it is error to award future loss of benefit-

of-the-bargain or out-of-pocket damages. See Woodyard v. Hunt, 695 S.W.2d 730,

733 (Tex. App.—Houston [1st Dist.] 1985) (“Even if the jury had known the

measure of damages, it could not have made a proper award because damages are

measured by comparing values represented and received at the time of sale, not at

some future time.”); Fazio, 403 S.W.3d at 396. (“direct damages for fraud, including

out-of-pocket damages are properly measured at the time of the sale …not at some

future time”).

Because the damages found by the jury in answer to Questions 15(2) and (4)

are, as a matter of law, an improper measure of damages, the trial court erred in not

44 disregarding these damage awards and in entering judgment against the Pogues for

these amounts.

D. The trial court erred in entering judgment awarding benefit-of-the- bargain damages under the DTPA because there was no evidence of the property’s value as it was received by Williamson.

Questions 15(1) and (2) asked the jury the amount of the loss of the benefit-

of-the-bargain damages that should be awarded to Williamson in the past, and in the

future. The jury awarded $17,000 for loss of benefit-of-the-bargain damages in the

past and $58,000 in loss of benefit-of-the-bargain damages in the future. III First

Supp. CR 892. The jury was instructed that the loss of the benefit-of-the-bargain was

“the difference, if any, in the value of the Property as it was received, and the value

it would have had if it had been as represented. The difference in value, if any, shall

be determined at the time and place the Property was sold to Liz Williamson.” Id.

While there was evidence of the purchase price or value given by

Williamson—the purchase price she agreed to pay was $235,000—Williamson

provided no evidence of the value of the Indian Shores property as it was received

by her in September 2010 when she purchased it. In other words, there was no

evidence that the property was valued at $17,000 less (in the past) or would be valued

$58,000 less (in the future) than the purchase price of $235,000.

The only evidence regarding the value of the property was a Harris County

Appraisal District statement showing a value of $123,000 as of January 1, 2013. 6

45 RR 183, 10 RR PX 14. But this HCAD value constitutes no evidence of the value of

the property as Williamson received it in 2010, when she purchased the property.

See McGinty v. Hennen, 372 S.W.3d 625, 628 (Tex. 2012) (holding that testimony

as to the value of a home at the time of trial was no evidence of the difference in

value at the time of closing).

In addition, evidence of an appraisal district value is no evidence of property

value in any event. Tax assessment values placed upon real property are no evidence

of the property’s value for any purposes other than taxation. See Houston Lighting

& Power Co. v. Fisher, 559 S.W.2d 682, 686 (Tex. App.—Houston [14th Dist.]

1977, writ ref’d n.r.e.); Houston v. Ludwick, No. 14-09-00600-CV, 2010 WL

4132215 at *8 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Because there

was no testimony as to the value of the property as it was received in 2010, there is

no evidence to support the jury’s answers to Questions 15(1) and (2) regarding the

benefit-of-the-bargain damages.

E. The trial court erred in entering judgment for future out-of-pocket damages, future expenses, and future lost time damages.

In answer to Questions 15(4), (6) and (8) the jury awarded a total of $88,750,

over one-half of the $163,750 in actual damages the judgment awarded under the

DTPA. III First Supp. CR 892-93, 903. There is no evidence to support the jury’s

answers to these questions.

46 It is well-established that the plaintiff has the burden of proving with some

degree of certainty a factual basis to support the amount of damages awarded.

Lakewood Pipe of Texas, Inc. v. Conveying Techniques, Inc., 814 S.W.2d 553, 556

(Tex. App.—Houston [1st Dist.] 1991, no writ). And the damages awarded must be

based on some competent evidence and not on mere conjecture. Id.; McIver v.

Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). In other words, the recovery of

damages cannot be based on pure speculation. Lakewood Pipe, 814 S.W.2d at 556,

Roth v. Law, 579 S.W.2d 949, 956 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d

n.r.e.).

There is no evidence to support the jury’s damage awards under Questions

15(4), (6), or (8). Williamson testified regarding the cost of repairs and renovations

she made to the home for the two years she owned it before she filed suit, but when

she was asked by her attorney about future “things [that] still need to be done on the

home” Williamson’s response was simply that “we still don’t have a master

bathroom, and the kitchen, the dining room and the living room walls haven’t been

touched”. 6A RR 177. There is no evidence whatsoever of the amount of time,

expenses, or out-of-pocket costs that will be necessary in the future. More

specifically, there is no testimony as to the future costs to replace the “things” that

Williamson claims to still be necessary. In sum, there is simply no evidence to

support the future damages found by the jury in response to Question 15 and the

47 court erred in failing to disregard the answers to these damage findings, and erred in

entering judgment for these amounts.

IV. The trial court’s judgment cannot be supported by the jury’s answers to the damages questions related to fraud and negligent misrepresentation—jury Question Nos. 4 and 11. (Issue No. 5)

Although the trial court’s judgment awarded damages under the DTPA theory

and not for fraud or negligent misrepresentation, in the event that Williamson

attempts to rely on the damages found by the jury under these alternative theories,

such reliance would be misplaced. First, no award would be proper under these

theories because of the disclaimer-of-reliance provision. Second, no evidence

supports these damage awards.

A. There is no evidence to support the benefit-of-the-bargain damages awarded for fraud and negligent misrepresentation.

In Question 4(1) the jury awarded $40,000 for loss of the benefit-of-the-

bargain damages that Williamson sustained in the past. III First Supp. CR 877. The

jury was instructed that the loss of the benefit-of-the-bargain meant the difference,

if any, between the value of the property agreed to between Williamson and the

Pogues, and the value of the property as is. Id.

There is no evidence to support the $40,000 awarded for loss of the benefit-

of-the-bargain because Williamson presented no evidence of the value of the Indian

Shores property on the date she purchased it, i.e., the value of the property the Pogues

sold as is.

48 There was evidence of one element of the benefit-of-the-bargain measure—

the purchase price of the property was $235,000—but there was no evidence of the

value of the property sold by the Pogues as it was when Williamson purchased it,

and specifically, no evidence that the Indian Shores property was valued at $40,000

less than the purchase price on the date Williamson bought it.

As noted above, the HCAD appraisal district statement reflected a value of

$123,000 as of January 1, 2013, but this was no evidence of the property’s value in

2010, when Williamson purchased it. 6A RR 183, 10 RR PX 14, see McGinty, 372

S.W.3d at 628.

In addition, and as argued above regarding the DTPA damages, an appraisal

district value is no evidence of property value, as tax assessment values are no

evidence of the property’s value for any purpose other than tax purposes. See

Houston Lighting & Power Co., 559 S.W.2d at 686; Ludwick, 2010 WL 4132215, at

*8.

A similar question was answered by the jury in response to Question No. 11

related to negligent misrepresentation damages. In the first sub-part of Question 11,

the jury awarded $40,000 in negligent misrepresentation damages, being the

difference between the value of what Liz Williamson received in the transaction and

the purchase price or value given. III First Supp. CR 887. For the same reasons that

the DTPA and fraud damages for loss of benefit-of-the-bargain have no support in

49 the evidence, the jury’s answer to this negligent misrepresentation question also has

no support in the evidence because there is no evidence of what Williamson received

in the transaction and therefore no evidence of the difference between that value and

the purchase price.

B. There is no evidence to support the jury’s award of future fraud and negligent misrepresentation damages.

Under Question 4(2) (fraud), the jury awarded Williamson $50,000 in future

benefit-of-the-bargain damages. III First Supp. CR 877.

As argued above in connection with the future loss of benefit-of-the-bargain

damages awarded under the DTPA, these damages are determined at the time of the

sale that was allegedly induced by the fraud, not at some future time. Arthur

Andersen, 945 S.W.2d at 817; Leyendecker & Associates, 683 S.W.2d at 373; Fazio,

403 S.W.3d at 395. As noted above, this Court has held that it was error to award

future loss of benefit-of-the-bargain damages. See Woodyard, 695 S.W.2d at 733;

Fazio, 403 S.W.3d at 396.

In addition, there is no evidence to support the jury’s answer to Questions

4(4), and 4(6). In Question 4(4), the jury awarded Williamson $4,000 in future

remedial damages and in Question 4(6) the jury awarded $4,000 in future mitigation

expenses. Similarly, in answer to the third subpart of Question 11 (negligent

misrepresentation) the jury awarded Williamson $58,000 in future economic losses.

III First Supp. CR 877-78, 887.

50 For the same reasons that there is no evidence to support the future DTPA

damages awarded by the jury, there is no evidence to support the future damages

awarded by the jury for fraud and negligent misrepresentation.

Williamson did not even attempt to provide any evidence for the jury to

determine any future damages. Williamson testified regarding the repairs she had

completed, but she provided no testimony upon which the jury could award any

amounts for future damages. When asked about the future repairs that would be

needed, Williamson testified in general terms that “we still don’t have a master

bathroom, and the kitchen, the dining room and the living room walls haven’t been

touched”. 6A RR 177. Williamson provided no evidence as to the materials and labor

that would be necessary in order to complete any future repairs. Also, there was no

testimony regarding the property’s value after Williamson completed the repairs and

renovations. Thus, there is no evidence of future damages based on the sale of the

property at some future time.

Because there is no evidence of future damages, they cannot support a

judgment. See Lakewood Pipe, 814 S.W.2d at 556. The damages awarded by the

jury were based on conjecture and speculation, and not on competent evidence and

are therefore improper. Id., McIver, 169 S.W.2d at 712.

Because the record contains legally insufficient evidence to support the future

damages awarded by the jury in Questions 4(2), (4), (6) and the third sub-part of

51 Question 11, they cannot support a judgment against the Pogues. The trial court

therefore erred in failing to disregard the jury’s answers to these questions and this

Court should render a take-nothing judgment in the Pogues’ favor on the damages

found under these issues.

C. There is no evidence to support the jury’s award of past remedial damages, mitigation expenses, and economic loss.

In Question 4(3) the jury awarded $39,000 to Williamson for past remedial

damages, which the charge defined as the reasonable and necessary costs to repair

the property. III First Supp. CR 877. In answer to Question 4(5), the jury awarded

$37,950 in past mitigation expenses, defined as the reasonable and necessary

expenses in attempting to have the property repaired. III First Supp. CR 878. There

is no competent evidence to support these damage awards of past costs to repair or

attempt to have the property repaired.

No construction expert testified regarding the renovations Williamson made

to the property. Williamson herself testified, describing the problems she detected

after they moved in. 6A RR 111-176. Of course, all of these repairs were conducted

over the two-year period after Williamson purchased the property, and the repairs

were completed before she ever notified the Pogues about any problems. 3 RR 155,

6B RR 92-93.

In general terms, Williamson testified about the rooms that were painted, the

insulation and sheetrock that was replaced in the affected rooms, the damage to a

52 portion of the roof, and the repairs to one of the septic tanks. Williamson admitted

that some of the renovations were done not because they were necessary to repair

damage, but because they wanted to change items such as the flooring in part of the

house, and the fireplace, which they remodeled. 6A RR 123, 155.

Williamson also admitted that she and her husband were not construction or

repair professionals. 6A RR 156. But expert testimony of repair costs is required in

order to recover these damages, and the lay testimony of Williamson therefore does

not support the jury’s verdict. As a general rule, matters involving specialized or

technical knowledge require expert testimony. See FFE Transp. Servs., Inc. v.

Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004). And Texas courts have held that

evidence pertaining to the necessity and reasonableness of repair costs falls within

the exclusive domain of an expert. Pjetrovic v. Home Depot, 411 S.W.3d 639, 649

(Tex. App.—Texarkana 2013, no pet.); Wortham Bros., Inc. v. Haffner, 347 S.W.3d

356, 360 (Tex. App.—Eastland 2011, no pet.).

Here, the repairs were of a technical and specialized nature, and required

expert testimony. Williamson testified at length regarding purported mold damage

that she remediated, wood rot that she diagnosed and repaired, the necessity for

insulation to be replaced and sheetrock to be removed and repaired, and repair or

replacement of certain exterior walls and ceiling repair in several rooms. 6A RR 111-

176.

53 Not only did no expert testify regarding the cost of repairs as being reasonable

and necessary, the “proof” that Williamson offered was not competent evidence.

Williamson testified that she and her husband were charging for personal labor costs

for the repairs. 6A RR 155, 10B RR, PX 35Q — “Assessment of Personal Labor

Charges at 901 Indian Shores”. In Exhibit 35Q, Williamson purported to itemize

room-by-room labor charges that she and her husband claimed. When asked where

she came up with the hourly rate for the personal labor charges, Williamson testified

that she got it from an internet website, Homewise.com, which supposedly listed

prices for contractors in her area. 6A RR 155-56. Williamson testified she used one-

third of the contractor’s amount because she and her husband were “not

professionals” and she “thought that would be fair”. 6A RR 156.

The total amount of Williamson’s estimated “labor costs” was $37,950, the

amount the jury awarded under Question 4(5) as past mitigation expenses. 6A RR

168, III First Supp. CR 878. But because the amounts of labor costs are simply

Williamson’s estimate of a discounted labor rate based on a website, there is no

competent evidence of the labor costs, even if expert testimony was not required.

Williamson’s testimony regarding the items purchased to repair the property

was also not competent. Williamson summarized the list of items that were used to

54 repair the home. 6A RR 168-175; 10B RR PX 35R. The total of the items Williamson

claimed they purchased was $43,724.45. 6A CR 176. 8

As above indicated, there was no testimony from anyone other than

Williamson that the items she purchased for repair were reasonable and necessary in

order to repair the home. And because there was no competent evidence, the jury’s

answer to Questions 4(3) (remedial damages) and (5) (mitigation expenses) should

have been disregarded by the court and cannot support a judgment in favor of

Williamson.

The jury, in answer to question number 11, also awarded damages to

Williamson for economic losses suffered in the past. III First Supp. CR 887. These

damages—$76,950—cannot support any judgment because there is no evidence to

support the jury’s findings.

The damages recoverable for negligent misrepresentation include the

pecuniary loss suffered as a consequence of the plaintiff’s reliance upon the

misrepresentation. Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439,

442-43 (Tex. 1991); RESTATEMENT (2ND) OF TORTS § 552B (1977).

______________________ 8 It appears from the extensive list of the items that Williamson purchased that she gutted and renovated the entire house before she ever told the Pogues about any problems. Light fixtures, electrical wall receptacles, showers, tubs, sinks, and mirrors were listed among the items purchased and replaced. Incredibly, Williamson even charged $2,300 for a new stove-top and $2,400 for air-conditioning repair, which she admitted would have been covered under the home warranty that the Pogues paid for but that she didn’t use. 6A RR 175. She also charged $3,500 to replace the carpet, which she knew from her first visit was stained and dirty. 6B RR 35.

55 Here there is no competent evidence to support the amount found by the jury

for past economic loss. In answer to the second subpart of Question Number 11, the

jury awarded $76,950 for past economic loss based on the misrepresentations. III

First Supp. CR 887. This total is the same as the total of the past remedial damages

and past mitigation expenses found by the jury under the fraud questions. III First

Supp. CR 877-78.

For the same reasons that the past remedial damages and mitigation expenses

have no support in the evidence, there is no competent evidence to support the jury’s

answer to the second subpart of Question 11.

As above argued, Williamson and her husband made the repairs themselves.

Williamson admitted that they were not professional contractors and Texas law is

clear that homeowner’s testimony about repair costs is not competent evidence.

Moreover, as above explained, even if Williamson was competent to testify about

the reasonableness and necessity of the repairs, the jury’s award for economic loss

for negligent misrepresentation is based on conjecture and speculation. Williamson

testified that she and her husband charged for labor expense based on an internet

website and that she charged what she “thought would be fair” based on her opinion

of how much that contractor rate should be discounted. 6A RR 156.

Finally, as above explained, Williamson’s testimony regarding the items

purchased to repair the property constitutes no competent evidence of the economic

56 loss suffered. No expert testified that the items purchased were reasonable and

necessary in order to repair the home. And because there was no competent evidence,

the jury’s answer to the second subpart of Question 11 regarding the past economic

loss should have been disregarded by the court and cannot support a judgment in

V. Because the trial court erred in entering judgment against the Pogues, the court’s award of attorney’s fees should be reversed. (Issue No. 6)

In addition to awarding $576,547.44 in actual damages and pre-judgment

interest, the court awarded Williamson trial attorney’s fees of $171,972.23 and

additional $12,250 in contingent appellate attorney’s fees, for a total attorney’s fee

award of $184,222.23. III First Supp. CR 904.

The DTPA allows a prevailing party to recover reasonable and necessary

attorney’s fees. TEX. BUS. & COM. CODE ANN. § 17.50(d). But because Williamson

is not entitled to recover any damages under the DTPA, she is not entitled to recover

any attorney’s fees, and the award should be reversed. Gulf States Utilities Co. v.

Low, 79 S.W.3d 561, 567 (Tex. 2002).

Moreover, although the damages were not awarded for statutory fraud, in the

event that Williamson would seek to rely on the jury’s finding of statutory fraud

(Jury Question No. 2) this finding would not support any award of attorney’s fees.

TEX. BUS. & COM. CODE ANN. § 27.01(d)—the statutory fraud statute—

provides that attorney’s fees are available to the prevailing party. But as with the

57 DTPA, if the party is not entitled to recover on the statutory fraud claim, the party

cannot recover attorney’s fees. Jerry L. Starkey, TBDL, L.P. v. Graves, 448 S.W.3d

88, 112 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Because Williamson is not entitled to recover a judgment against the Pogues

for any amount, the court should reverse the judgment awarding attorney’s fees.

Prayer for Relief

The judgment should be reversed and judgment rendered that Williamson take

nothing against the Pogues and that the deed of trust is enforceable against the

property securing Williamson’s note. In the alternative, the judgment should be

reversed and the case remanded for a new trial.

Respectfully submitted,

DE LANGE, HUDSPETH, MCCONNELL & TIBBETS, L.L.P.

By: /s/ Ben A. Baring, Jr. BEN A. BARING, JR. State Bar No. 01739050 bbaring@dhmtlaw.com R. Travis Piper State Bar No. 24070421 tpiper@dhmtlaw.com 1177 West Loop South, Suite 1700 Houston, TX 77027 Phone: 713-871-2000 Fax: 713-871-2020

ATTORNEYS FOR APPELLANTS, LESLIE R. POGUE AND JEANNETTE I. POGUE

58 Certificate of Service

I certify that on May 25, 2018, a true and correct copy of Appellants’ Brief has been served on counsel for Appellee by electronic service pursuant to Rule 9.5 of Texas Rules of Appellate Procedure:

Misty Hataway-Coné Spurlock & Associates 17280 West Lake Houston Pkwy. Humble, TX 77346 email: MCone@spurlocklaw.com Attorneys for Appellee

/s/ Ben A. Baring, Jr. BEN A. BARING, JR.

Certificate of Compliance

I certify that this brief contains 13,915 words (excluding the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).

59 NO. 1-17-00844-CV

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS _____________________________________________

LESLIE R. POGUE AND JEANNETTE I. POGUE, Appellants

ELIZABETH A. WILLIAMSON, Appellee. _____________________________________________

(On Appeal from the 164th Judicial District Court of Harris County, Texas, Trial Court Cause No. 2012-56353) _____________________________________________

APPENDIX TO APPELLANTS' BRIEF

_____________________________________________

Tab A—Jury Charge. Tab B—Final Judgment. Tab A I \

* -J

NO.. 2012 CAUSE NO CdGlM /M-. / - -56353 2012-56353 1 d 3 0 - A. WILLIAMSON ELIZABETH A. § IN THE DISTRICT COURT OF F:c X ~ § 0 )::0: o 3: .. ~ _ ..... r-w aa.0- \I)

a? ~~:!' II

v. v. § COUNTY,, TEXAS i HARRIS COUNTY --. § § §$15_ -'" «::!.(il!!l!lilll 1 .. r-.:> ~CII L - R. POGUE and LESLIE R. § i O ~"'" N po O(\9-~ 'g~ 21 im'G JEANETTE II.. POGUE § 164 TH JUDICIAL DISTRICT 164TH |I0 2 5E :::::;j;'!!. t:J

CHARGE OF THE COURT

MEMBERS OF THE JURY JURY::

arguments,, you will go to the jury room to decide the case After the closing arguments case,, answer the verdict.. You may discuss the case with other jurors only attached,, and reach a verdict questions that are attached - room. when you are all together in the jury room.

instructions:: Do not discuss the case with anyone else Remember my previous instructions else,, either in means.. Do not do any independent investigation about the case or conduct person or by any other means research. Do not look up any words in dictionaries or on the Internet any research. Internet.. Do not post Internet.. Do not use your phone or any other electronic device information about the case on the Internet reason.. I will give you a number where others may contact you during your deliberations for any reason emergency.. of an emergency in case of

Any notes you have taken are for your own personal use use.. You may take your notes back into the jury room and consult them during deliberations deliberations,, but do not show or read your notes to your fellow jurors during your deliberations Your notes are not evidenceevidence.. Each of of you should rely on your independent recollection of of the evidence and not be influenced by the fact that notes.. another juror has or has not taken notes

You must leave your notes with the bailiff deliberating.. The bailiff bailiff when you are note deliberating bailiff will give your notes to me promptly after collecting them from you you.. I will make sure your notes safe,, secure location and riot are kept in a safe anyone.. After you complete your not disclosed to anyone deliberations deliberations,, the bailiff notes. When you are released from jury duty bailiff will collect your notes. duty,, the bailiff bailiff will promptly destroy your notes so that nobody can read what you wrotewrote..

Here are the instructions for answering the questions questions..

11.. bias, prejudice, Do not let bias, decision.. prejudice, or sympathy play any part in your decision

1 RECORDER'S RECORDER ’S MEMORANDUM This instrument is of poor quality at the time of imaging Imaging 869 il *-<.,' J i 1 r

22.. Base your Base your answers only on answers only evidence admitted the evidence on the in court admitted in and on court and the law on the law that is in these instructions and questions that is in these instructions and questions.. Do not not consider consider or or discuss discuss any any evidence evidence that that admitted in not admitted was not courtroom.. in the courtroom

33.. are to make up your own You are own mind about facts.. You are the sole about the facts sole of the credibility judges of of the witnesses and credibility of testimony.. But weight to give their testimony and the weight But on on law,, you must follow all of of law matters of instructions.. of my instructions

44.. If my instructions use a word in a way that is different from its ordinary If meaning,, use the meaning I give you meaning definition.. you,, which will be a proper legal definition

55.. important.. No one should All the questions and answers are important shoul~ say that any important.. questions or answer is not important

66.. yes” or “"no" Answer “"yes" otherwise.. A no” to all questions unless you are told otherwise yes” answer must be based on a preponderance of “"yes" evidence.. Whenever a question of the evidence no,” your answer must be based on a yes” or “"no," requires an answer other than “"yes" evidence.. of the evidence preponderance of

preponderance of The term “"preponderance evidence"” means the greater weight of of the evidence of credible If you do not find that a preponderance of case.. If evidence presented in this case of the evidence supports a “"yes" no.” A preponderance of answer,, then answer “"no." yes” answer of the evidence is not measured by the number of of witnesses or by the number of of documents admitted in evidence.. For a fact to be proved by a preponderance of evidence evidence,, you must find that of the evidence true.. the fact is more likely true than not true

7. 7. Do not decide who you think should win before you answer the questions decision.. Answer each question and then just answer the questions to match your decision win. Do not discuss or consider the effect your carefully without considering who will win. have. answers will have.

8.. 8 chance. Do not answer questions by drawing straws or by any method of chance.

9. 9. amount. Do not agree in Some questions might ask you for a dollar amount. advance advance to decide on a dollar amount by adding up to decide figuring juror’s amount and then figuring up each juror's the the average. average .

10.. 10 answers. For example, Do not trade your answers. “ I will answer this example, do not say "I way.” question your way if you answer another question my way."

11. 11. to the answers to The answers the questions the decision of at least ten based on the questions must be based the twelve of the jurors. The twelve jurors. jurors must agree same ten jurors The same answer. Do agree on every answer. Do not agree toto be bound by a vote vote of anything jurors, even if it would be less than ten jurors, anything less majority. be a majority.

870 I i. /1if I ' <. ~

As II have As have said said before before, , ififyou you do do not these instructions follow these notfollow you will instructions,, you be guilty will be ofjuror guilty of juror misconduct, misconduct and IImight , and might have have toto order newtrial orderaa new this process startthis andstart trial and overagain process over . This would again. This would waste your time and the parties' waste your time and the parties’ money money, , and and would would require require the the taxpayers taxpayers of ofthis this countyto county to pay payfor for ,another trial another trial.. IfIfaa juror juror breaks breaks anyany of these rules of these , tell rules, person to that person tell that to stop and report it to stop and report it to me me immediately. immediately.

\

871 < t

AND INSTRUCTION DEFINITIONS AND DEFINITIONS S INSTRUCTIONS

Definitions: Definitions:

“"Liz Williamson" Liz Williamson means Plaintiff ” means Elizabeth A Plaintiff,, Elizabeth Williamson.. A.. Williamson

“"Defendants" means Defendants Defendants” means R.. Pogue Leslie R Defendants Leslie Jeannette II.. Pogue and Jeannette Pogue and Pogue..

“"Leslie Pogue" Leslie Pogue means Defendant ” means Leslie R Defendant Leslie Pogue.. R.. Pogue

“"Jeannette Pogue" Jeannette Pogue Defendant Jeannette means Defendant ” means Pogue.. Jeannette Pogue

The “"Property" The that certain Property” means that property in certain property Harris County in Harris as 901 described as County described Indian Shores 901 Indian Shores County,, Crosby Road,, Harris County Road Crosby,, Texas 77532.. Texas 77532

Instructions:: Instructions

A fact may be established by direct evidence or by circumstantial evidence or both both.. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw spoken.. A fact is established by circumstantial evidence when it the act done or heard the words spoken proved.. may be fairly and reasonably inferred from other facts proved

872 <( .. l

QUESTION NO .1 NO.1

Williamson?? of those named below commit fraud against Liz Williamson Did any of

Fraud occurs when when- — 11.. A party fails to disclose a material fact within the knowledge of party;; and of that party

22.. of the fact and does not have an The party knows that the other party is ignorant of truth;; and equal opportunity to discover the truth

33.. The party intends to induce the other party to take some action by failing to fact,, and disclose the fact

44.. of acting without knowledge of The other party suffers injury as a result of of the fact.. undisclosed fact

"- No.55 Yes” or “"No." Answer “"Yes"

A. A. Leslie Pogue

Answer: _'--,~-,--e_~ Answer: ife_____ ' ?©

B.. B Jeannette Pogue

Answer: Answer: ~

873 X , ,

QUESTION NO QUESTION .2 NO.2

Did any Did any of ofthose named below those named commit statutory below commit fraud against statutory fraud Liz Williamson against Liz ? Williamson?

Fraud occurs Fraud occurs when when-— 11.. There is aa false There is representation of false representation past or ofaa past existing material or existing fact,, and material fact and

22.. false representation The false person for representation is made to aa person inducing that of inducing for the purpose of that person person to enter into aa contract enter into contract,, and and

33.. false representation is relied on The false person in entering on by that person contract.. entering into that contract

Answer “"Yes" No. Yes” or “"No." 95

A.. A Leslie Pogue

Answer:: _'f.i"--'e==-----~"__ _ _ Answer

t

874 .- • i .

If you If you answered answered “"Yes" Nos.. 11 or Question Nos Yes” to Question or 22 for for more than one of than one below,, then named below of those named then answer the following answer question.. Otherwise following question Otherwise,, do not answer do not question.. following question the following answer the

Assign percentages only Assign found caused only to those you found contributed to cause or contributed caused or harm.. The cause the harm The percentages you find find must total 100 percent.. The percentages must be expressed 100 percent expressed in whole numbers.. The percentage of numbers of responsibility attributable to any one named below is not necessarily anyone measured measured by the number of acts of acts or omissions found found..

QUESTION NO QUESTION .3 NO.3

Williamson,, find For each person you found caused or contributed to cause the harm to Liz Williamson each:: of responsibility attributable to each the percentage of

11.. Leslie Pogue J3? _97=---- _____ % 22.. Jeannette Pogue t;"~ --~--------- %

Total 100 --------"'--'''-'''----- %

875 ( ( ..

If you If you answered answered “"Yes" Question Nos Yes” to Question answer the following or 22 then answer Nos.. 11 or question.. Otherwise following question Otherwise,, question.. do not answer the following question

876 4* "

QUESTION NO .4 NO.4

What sum of money,, if of money any,, if if any cash,, would fairly and reasonably compensate Liz if paid now in cash harm, if , Williamson for her harm, any,, that were proximately caused by such fraud if any fraud??

Proximate cause “"Proximate event,, and cause"” means a cause that was a substantial factor in bringing about an event occurred.. In order to be a without which such event would not have occurred proximate cause, cause, the act or omission complained ofof must be such that a person using the degree of of him of care required of event,, or some similar event would have foreseen that the event therefrom. event,, might reasonably result therefrom. There may be more than one proximate cause of event.. of an event

Consider the following elements of damages,, if any of damages other.. any,, and none other

A.. Loss of the benefit of the bargain A — The difference bargain-The difference,, if any,, between the value of if any of the Property agreed to between Liz Williamson and the Defendants Defendants,, and the value of the ofthe is.. Property sold as is

B.. Remedial damages B — Property.. The reasonable and necessary costs to repair the Property damages-The

C.. Mitigation expenses C — expenses-TheThe reasonable and necessary expenses incurred in attempting repaired . to have the Property repaired.

D.. Incidental damages D — The reasonable and necessary expenses incurred while the damages-The repaired. Property was being repaired.

In answering questions about damages separately.. Do not increase or damages,, answer each question separately reduce the amount in one answer because of of the instructions in or your answers to any other damages.. Do not speculate about what any party questions about damages ’ s ultimate recovery may party's or mayor be. Any recovery will be determined by the court when it applies the law to your may not be. answers at the time of judgment. Do not add any amount for interest on damages of judgment. damages,, if any.. if any

Answer separately in dollars and cents for damages damages,, if any.. if any

11.. Loss of of the benefit of past.. of the bargain damages Liz Williamson sustained in the past 4 !$ Answer:: Answer -40"c::::l::>o 7

22.. Loss of of the benefit of of the bargain damages Liz Williamson will will,, in reasonable future.. probability, sustain in the future probability,

Answer:: Answer -. ~ r" * ^ r;2::>/,a::::o 33.. past. Remedial damages Liz Williamson sustained in the past.

Answer

4 ^ Answe~~", coD Ir

Remedial damages Liz Williamson will, 4.. will, in reasonable probability, probability, sustain in the future.. future

877 Jt Answer: Answer

55.. ^ 4.1COO # r:t::X:J Mitigation expenses Mitigation expenses Liz Liz Williamson sustained in Williamson sustained past.. the past in the

66.. ^ Answer;4' ."",..., J Q5"O , Mitigation expenses Mitigation future.. future expenses Liz will,, in Williamson will Liz Williamson in reasonable sustain in probability,, sustain reasonable probability in the the

” Answer * ~.I, AnsweFf' OOQ ()()O

77.. Incidental damages Incidental sustained in Williamson sustained Liz Williamson damages Liz past.. the past in the

Answer:: Answer O (:)

88.. damages Liz Williamson will Incidental damages probability,, sustain in the in reasonable probability will,, in future.. future

Answer:: Answer o (!)

10 10

878 Answer the following Answer following question question regarding only if defendant only regarding aa defendant you unanimously answered if you Yes” answered “"Yes" to Question to . 1 regarding that No.1 Question No defendant.. Otherwise that defendant Otherwise,, do following question the following answer the do not answer question defendant.. that defendant regarding that

of the following question Yes” to any part of To answer “"Yes" unanimous.. You question,, your answer must be unanimous answer “"No" may answer any part No” to any of the following part of of ten or only upon a vote of following question only jurors.. or more jurors Otherwise,, you must not answer Otherwise part of answer that part question.. following question ofthe following

QUESTION NO .5 NO.5

Do you find by clear and convincing evidence that the harm to Liz Williamson resulted from any fraud found by you in Question No . 1? No.1?

evidence"” means the measure or degree of Clear and convincing evidence “"Clear proof that produces a firm of proof belief belief or conviction ofthe of the truth of of the allegations sought to be established . established.

No.” Yes” or “"No." Answer “"Yes"

Answer:: __):e7--J--=L-__ Answer

Answer: Answer: - - - - - - -

11 11

879 · . (

IfIf you you unanimously unanimously answered answered “"yes" yes” to Question No to Question . 2, then No.2, answer the then answer question.. following question the following Otherwise do not Otherwise,, do not answer answer the the following question.. following question

12 12

880 QUESTION NO QUESTION NO.6.6 Did any of below have named below Did any of those named of the falsity awareness of actual awareness have actual of the representation falsity of representation or promise you or you found found to to be Question No in Question fraud in be fraud . 2? No.2?

Actual awareness may be inferred where objective manifestations indicate a person acted with actual awareness.. actual awareness

Yes” or Answer “"Yes" Answer No.” or “"No."

Answer:: _~~_S____ Answer

Answer:: Answer Ye~

13 13

881 c

Answer the Answer the following question regarding following question Leslie Pogue Defendant Leslie regarding Defendant you unanimously only ifif you Pogue only unanimously answered “"Yes" answered No.. 55 or Question No to Question Yes” to regarding Leslie or 66 regarding Pogue.. Otherwise Leslie Pogue Otherwise,, do not answer do not answer the the following question regarding following question regarding Leslie Leslie Pogue Pogue. .

You must You must unanimously agree on unanimously agree amount of the amount on the any award ofany exemplary damages ofexemplary award of damages..

QUESTION NO QUESTION .7 NO.7

What sum What sum of money,, if of money any,, if if any if paid now in paid now cash,, should in cash be assessed should be against Leslie assessed against Pogue and Leslie Pogue and awarded to Liz Williamson as exemplary damages if awarded to Liz Williamson as exemplary damages, , if any, any, for for the the conduct cond~uct found found in in response response to to Question No Question No.5. 5 or or 66? ?

“"Exemplary damages" Exemplary damages means an ” means that you amount that an amount may in you may your discretion in your award as discretion award penalty or as aa penalty or punishment.. of punishment by way of

Factors to consider Factors consider in in awarding awarding exemplary damages,, if exemplary damages any,, are if any are- — 11.. The nature of wrong.. of the wrong

22.. The character of involved.. of the conduct involved

33.. of culpability of The degree of Pogue.. of Leslie Pogue

44.. of the parties concerned The situation and sensibilities of concerned..

55.. The extent to which such conduct offends a public sense of propriety. of justice and propriety.

66.. Pogue.. The net worth of Leslie Pogue

any.. cents,, if any Answer in dollars and cents

Answer~ ',~?D Answer ^ ty *2*

14 14

882 Answer the following question regarding Defendant Jeannette Pogue only if if you unanimously Yes” to Question No answered “"Yes" No.5 Pogue.. Otherwise . 5 or 6 regarding Jeannette Pogue Otherwise,, do not answer the Pogue.. following question regarding Jeannette Pogue

of any award of You must unanimously agree on the amount of damages.. of exemplary damages

QUESTION NO .8 NO.8

What sum of money,, if of money any,, if if any cash,, should be assessed against Jeannette Pogue and if paid now in cash awarded to Liz Williamson as exemplary damagesdamages,, if any,, for the conduct found in response to if any Question No. 5 or 66?? No.5

damages"” means an amount that you may in your discretion award as a penalty or Exemplary damages “"Exemplary punishment.. of punishment by way of

damages,, if Factors to consider in awarding exemplary damages any,, are if any are- — 11.. The nature of wrong.. of the wrong

33.. The degree of Pogue.. of Jeannette Pogue of culpability of

44.. The situation and sensibilities of concerned.. of the parties concerned

55.. propriety.. of justice and propriety The extent to which such conduct offends a public sense of

66.. The net worth of Pogue. of Jeannette Pogue.

cents,, if Answer in dollars and cents any.. if any ji. Answer: Answer: II "2- '5'e;..

883 QUESTION NO.9 NO.9

Did any ofof those named below make a negligent misrepresentation on which Liz relied? Williamson justifiably relied?

Negligent misrepresentation occurs when when- — 11.. of his business or in a transaction in A party makes a representation in the course of interest,, and which he has a pecuniary interest

22.. The representation supplies false information for the guidance of of others in their business, and business,

33.. The party making the representation did not exercise reasonable care or information.. competence in obtaining or communicating the information

Answer “"Yes" “ No.” Yes” or "No."

Answer: Answer: ~ B.. B Jeannette Pogue T Answer: - -© Answer: 4» -----

16 16

/ 884 If you answered “"Yes" If Yes” to Question No No.9 question.. Otherwise . 9 then answer the following question Otherwise,, do not question.. answer the following question

885 £

IfIfyou you answered answered “"Yes" Yes” to Question No to Question . 9 for No.9 one of than one more than for more those named ofthose then answer below,, then named below answer the following the question.. Otherwise following question Otherwise,, do do not the following answer the not answer question following question..

Assign percentages Assign percentages only only to to those found caused you found those you caused or to cause contributed to or contributed cause the harm.. The the harm The percentages you percentages you find find must total 100 must total percent.. The 100 percent percentages must The percentages expressed in be expressed must be in whole whole numbers.. The numbers The percentage percentage of attributable to responsibility attributable ofresponsibility to any anyone below is named below one named not necessarily is not necessarily measured by measured by the the number ofacts number of or omissions acts or found.. omissions found

QUESTION NO QUESTION NO.. 10 10 For each person For each person you you found found caused caused or or contributed contributed to to cause cause the harm to the harm to Liz Williamson,, find Liz Williamson find responsibility attributable of responsibility the percentage of each:: attributable to each

cp 9 11.. Leslie Pogue Leslie Pogue ^ % %

22.. Jeannette Pogue ~ %

Total 100 100 % %

18 18

886 ·' •’ *,

NO.. 11 QUESTION NO 11

money,, if of money What sum of if any cash,, would fairly and reasonably compensate Liz if paid now in cash any,, if damages,, if Williamson for her damages any,, that were proximately caused by such negligent if any misrepresentation?? misrepresentation

“"Proximate cause" Proximate cause event,, and ” means a cause that was a substantial factor in bringing about an event cause,, the act or occurred.. In order to be a proximate cause without which such event would not have occurred of must be such that a person using the degree of omission complained of of care required of of him event,, or some similar event would have foreseen that the event thereform.. event,, might reasonably result thereform There may be more than one proximate cause of event.. of an event

Consider the following elements of if any damages,, if of damages other.. Do not add any amount for any,, and none other damages,, if interest on past damages any.. if any

damages,, if Answer separately in dollars and cents for damages any.. if any

. if any difference,, if The difference . the purchase price or value given. jf A Answer:: Answer 40 ,~ Q &t0? (;;N!::,) of what Liz Williamson received in the transaction and any,, between the value of

loss,, if The economic loss any,, otherwise suffered in the past as a consequence of if any Williamson’ s of Liz Williamson's misrepresentation. reliance on the misrepresentation. tAo 4 HCa,l? 5't:> ,G=a Answer:: " Answer ^ loss,, if The economic loss any,, that in reasonable probability will be sustained in the future as a if any consequence of of Liz Williamson's misrepresentation.. Williamson’ s reliance on the misrepresentation ~ Answer: Answer: IgB ,ooe> ~/OO(:::) •

887 ,-,

NO.. 12 QUESTION NO 12

of those named below engage in a false Did any of misleading,, or deceptive act or practice false,, misleading that Liz Williamson relied on to her detriment and that was a producing cause of of damages to Liz Williamson?? Williamson

“"Producing cause"” means a cause that was a substantial factor in bringing about the Producing cause damages if any damages,, if occurred.. There may be more any,, and without which the damages would not have occurred cause.. than one producing cause

“"False, misleading,, or deceptive act or practice False, misleading practice"” means means::

Failing to disclose information about the property that was known at the time of of the transaction with the intention to induce Liz Williamson into a transaction she otherwise would disclosed.. if the information had been disclosed not have entered into if

Answer:: -~-4-'=-~---- Answer

B.. B JJeannette eannette Pogue

JJ

888 NO.. 13 QUESTION NO 13

of those named below engage in any unconscionable action or course of Did any of of action of damages to Liz Williamson that was a producing cause of Williamson??

Producing cause “"Producing ” means a cause that was a substantial factor in bringing about the cause" damages,, if damages if any occurred.. There may be more any,, and without which the damages would not have occurred cause.. than one producing cause

An unconscionable action or course of that,, to a consumer of action is an act or practice that ’s consumer's detriment,, takes advantage of detriment of knowledge of the lack of experience,, or capacity of ability,, experience knowledge,, ability of the degree.. consumer to a grossly unfair degree

Answer:: Answer --reS B B.. Jeannette Pogue

Answer: '(e:~ Answer: ----=------

21 21

889 If you answered “"Yes" If Nos. 12 or 13 Yes” to Question Nos. question.. 13,, then answer the following question question.. Otherwise,, do not answer the following question Otherwise

Assign percentages only to those you found caused or contributed to cause the harm. harm. The percent.. The percentages must be expressed in whole percentages you find must total 100 percent numbers.. The percentage of numbers of responsibility attributable to any one named below is not necessarily anyone of acts or omissions found measured by the number of found..

NO.. 14 QUESTION NO

Williamson,, find For each person you found caused or contributed to cause the harm to Liz Williamson each:: of responsibility attributable to each the percentage of

11.. Leslie Pogue ;;0 %

22.. Jeannette Pogue ~O %

Total 100 %

890 No. 12 or 13 for more than one of Yes” to Question No. If you answered “"Yes" below, then of those named below, question.. Otherwise answer the following question question.. Otherwise,, do not answer the following question

891 7

NO.. 15 QUESTION NO

What sum of money, if of money, any,, if if any cash,, would fairly and reasonably compensate Liz if paid now in cash Williamson Willi'!illson for her damages if any damages,, if any,, that from such conduct conduct??

Consider the following elements of damages,, if of damages if any other.. any,, and none other

A.. Loss of the benefit of the bargain A — The difference bargain-The if any difference,, if any,, in the value of of the Property as it was received and the value it would have had if if it had been as represented. The difference in value, represented. value, if any,, shall be determined at the time and if any Williamson.. place the Property was sold to Liz Williamson

B.. Out of pocket B — The difference pocket-The difference,, if any,, in the value of if any of the Property as it was received and the price Liz Williamson paid for it it.. The difference difference,, if any,, shall be if any Williamson.. determined at the time and place the Property was sold to Liz Williamson

C.. Expenses C — Property.. The reasonable and necessary cost to repair the Property Expenses-The

D.. Lost time D — The reasonable value of time----The of the time spent by Liz Williamson correcting Property.. or attempting to correct the problems with the Property

In answering questions about damages separately.. Do not increase or damages,, answer each question separately reduce the amount in one answer because of of the instructions in or your answers to any other damages.. Do not speculate about what any party's questions about damages party’s ultimate recovery may or mayor be. Any recovery will be determined by the court when it applies the law to your may not be. answers at the time of judgment. Do not add any amount for interest on damages of judgment. any.. if any damages,, if

damages,, if Answer separately in dollars and cents for damages any.. if any

11.. Loss of of the benefit of past. of the bargain damages Liz Williamson sustained in the past. ~ Answer: Answer: n1~,, ooo \ c)()o

2 . Loss of 2. of the benefit of will, in reasonable of the bargain damages Liz Williamson will, future.. probability, sustain in the future probability, !I Answer: Answer: ~/CbO . 33.. Out of past. of pocket damages Liz Williamson sustained in the past.

Answer: Answer: ^^~ 0

44.. Out of of pocket damages Liz Williamson will probability, sustain in the will,, in reasonable probability, future.. future

Answer~ Answer ! 4 l \ J eco I

892 5. Expenses Liz Williamson sustained in the past. 5. past.

Answer: llnsvver: JJt c:> O 6. Expenses Liz Williamson vvill, 6. will, in reasonable probability, future. probability, sustain in the future.

Answer ^ llnsvver~ ~OOO Q&O

7. Lost time damages Liz Williamson sustained in the past. 7. past.

Answer: llnsvver: O ~

88.. Lost time damages Liz Williamson vvill, probability, sustain in the will, in reasonable probability, future. future.

^ ^17, '5'Z> * Answer: "":!a jJ llnswer:!;

893 NO.. 16 QUESTION NO 16

of those named below engage in such conduct knowingly Did any of knowingly??

awareness,, at the time of Knowingly” means actual awareness “"Knowingly" conduct,, of of the conduct of the falsity falsity,, of the conduct in question or actual awareness of deception,, or unfairness of deception of the conduct warranty.. Actual awareness may be inferred where constituting a failure to comply with a warranty awareness.. objective manifestations indicate that a person acted with actual awareness

question,, consider only the conduct that you have found was a In answering your question producing cause of Williamson.. of damages to Liz Williamson

Answer “"Yes" No.” Yes” or “"No."

Answer:: Answer :ri::c; B.. B Jeannette Pogue

Answer:: - - - - - - - Answer

894 >

you answered If you If Yes” to Question answered “"Yes" No.. 16 Question No then answer 16 then question.. Otherwise following question answer the following Otherwise,, do do answer the following not answer not question.. following question

v

27 27

895 iJ '• . . ..

NO.. 17 QUESTION NO 17

money,, if of money What sum of if any damages,, should be awarded to Liz Williamson any,, in addition to actual damages because Defendant’ s conduct was committed knowingly Defendant's ? knowingly?

cents,, if Answer in dollars and cents any.. if any $ Answer:: Answer ~/'S'bC>

896 *

If you If you answered answered “"Yes" 12,, then Question 12 Yes” to Question answer the following then answer question.. Otherwise following question Otherwise,, do do not answer not answer the following question.. following question .

QUESTION 18 QUESTION 18

By what date By should Liz Williamson date should diligence,, have of reasonable diligence Williamson,, in the exercise of false,, misleading discovered all the false of Defendants misleading,, or deceptive acts or practices of Defendants??

below.. Answer with a date in the blank below

(l>} M P¥\ "'),.0 2^ 1II * 7 Answer:: Answer ^

29 29

897 1

If you answered “"Yes" Nos. 12 or 13 then answer the following question Yes” to Question Nos. question.. question.. Otherwise,, do not answer the following question Otherwise

898 « ) } • ' . . * II I I

QUESTION NO NO.. iJI What is a reasonable fee for the necessary services of of Liz Williamson’ s attorneys in this Williamson's case,, stated in dollars and cents case cents??

Answer with an amount for each of following:: of the following

11.. of proceedings in the trial For preparation through trial and the completion of court. court.

l ~7 q?2. ~~ Answer le' Answt!:

22.. For representation through appeal to the court of appeals.. of appeals :j, 4 St'O Answer: Answer:

33.. ^ • ~ -:; y

For representation at the petition for review stage in the Supreme Court of of Texas.. Texas ~"2 ,~~ -- Answer: Answer: , 44.. For representation at the merits briefing stage in the Supreme Court of of Texas.. Texas

Answer~ +1"' ~ Answer:* 55.. For representation through oral argument and the completion of of proceedings in the Supreme Court of Texas.. of Texas

Answer Answe;l ~~t!)

899 • ,orr

. -; • * »' * ", ~ *

juror. The first thing room, you will select your own presiding juror. After you retire to the jury room, the presiding juror will do is to have this complete charge read aloud and then you will deliberate asked.. upon your answers to the questions asked

It is the duty of juror— of the presiding juror-

11.. to preside during your deliberations deliberations;;

22.. to see that your deliberations are conducted in an orderly manner and in accordance with the instructions in this charge charge;;

33.. to write out and hand to the bailiff bailiff any communications concerning the case that you desire to have delivered to the judge; judge;

44.. to vote on the questions questions;;

55.. to write your answers to the questions in the spaces provided; provided; and

66.. to certify to your verdict in the space provided for the presiding juror's juror’ s signature or to obtain the signatures ofof all the jurors who agree with the verdict if unanimous. if your verdict is less than unanimous.

You should not discuss the case with anyone anyone,, not even with other members of the jury, jury, unless all of of you are present and assembled in the jury roomroom.. Should anyone attempt to talk to you about the case before the verdict is returned, courthouse,, at your home, returned, whether at the courthouse home, or elsewhere elsewhere,, please inform the judge of fact.. of this fact '

When you have answered all the questions you are required to answer under the instructions of of the judge and your presiding juror has placed your answers in the spaces provided and signed the verdict as presiding juror or obtained the signatures signatures,, you will inform the bailiff bailiff at the door of of the jury room that you have reached a verdict, w' -jeturn verdict, and then you wili eturn into court verdict.. with your verdict

i

^ ^7X _ DGEPRESIMMG

900 Tab B Pgs -5 Pgs-5 NO. . NO 2012 56353 2012-56353 - CRLPX A,. WILLIAMSON ELIZABETH A WrLLIAl\lS0N § IN THE DISTRICT COURT C01JRT MPIJX Plaintiff,, Plaintiff § ATFEX § 8 S 9 9AA v.. V § 164TH JUDICIAL DISTRICT 1641'11 § LESLIE R POGUE LESLll<: R, . POGUE,, JEANNETTE ,JEANNETTE L § POG UE, CROSBY ASSETS POGUE~ INC. D ASSETS~, INC /B/A DIB/A § ALLIANCE PROPERTIES PROPERTl)j:S AND 8 § S c Q GEORG GEORGIANAI AN A JONES A/ KJA GINA ,JONES .A/KIA § Ic3t: zg z~ JONES § CD ~ .... Defendants Defendants.. § COUNTY,, TEXAS OF HARRIS COUNTY H^ o O«M o < "",- COI-" 0:::: .!:::! "d" ". U') D..l:; ,...~~ .....ifi !:!! 't ££ ":;O:::N «~c 35 $....2 CIll,... 0 h* FINAL JUDGMENT JUOGMEN"( . ~"':'~ou:io J. © ow

- ©

^55 - 5 ^ C! .. ® csJ J C1I CZ...lN N'-:::l wr;:: c 0 © uJs On May 88,, 2017 Plaintiff,, Elizabeth Williamson 2017,, Plaintiff R. Pogue and Defendants,, Leslie R. Wiliiamson,, and Defendants h=w .P C1I-N ,...C ^ g a so..zr;:: ..... ,!:!!u .

0.... NIIIIII- 0«C " £ = ~ >-~ Jeannette IL Pogue ~ ~.~ jjj j Soxuimil r;::U:I:WIllu.. > camt~ to be heard in pt~rson Pogue,, came , of record in the above styled and person and by attorneys of

cause,. numbered cause

introduced,, Defendants Before the jury was impaneled and before any evidence was introduced

Leslie R R.. Pogue and Jeannette 1. I. Pogue announced to this Court that they were dismissing their

counter-claims counter-claims against . Plaintiff tor Plaintiff I!Jr brt~ach breach of contract of contract,, statutory fraud fraud,, negligent

misrepresentation misrepresentation,, filing of record,, and declaratory judgment with prejudice to of a fraudulent court record

the right to re-file or reinstate their claims re-file claims..

Because a jury was previously demanded of twelve was duly impaneled and the demanded,, a jury of

triaL. After the jury case proceeded to trial evidemx~ from both sworn,, it heard evidence jury' was impaneled and sworn

parties, and the trial proceeded from May 88,, 2017 until May 11 parties, , 2017. The Court submitted this 11,2017.

case to the jury on May J'vlay 11 , 2017 pursuant to the Court 11,2017 Charge,, including all jury questions and ’ s Charge Court's

instructions by the Court Comt., A verdict was rendered on May 11 :00pm . , 2017 on or about 44:00pm. 11,2017

It appears to the Court from the verdict of it of the jury and the law applicable thereto thereto,, that the

following:: Defendants Leslie R. Pogue and Jeannette jury determined the following Jemmette IL. Pogue are liable to

902 Plaintift~. Elizabeth A. Williamson for fraud Plaintiff fraud,, negligent misrepresentation fraud,, statutory fraud misrepresentation,, and

violations of t11t: Texas of the Tt:xas Deceptive Trade Practices Act unconscionability.. The jury Act,, including unconseionabiiity

returned a verdict awarding actual damages to Plaintiff /,\,. Williamson Plaintiff Elizabeth A WHliarnson totaling

163,750.00 and attorney $$163,750.00 ’ s fees totaling $$171,972.23, attorney's 340,722 , 23, of $$340,722.23, 171,972.23, for a total judgment of

including exemplar damages.. }' damages exemplary jury’ s affirmative finding that Defendants Based upon the jury's Detendants

violated the Texas Deceptive Trade Practices Act “"knowingly" knowingly” the Court awards treble damages

in the amount of $327,500.00 , 01'$327,500.00.

Plaintiff Plaintiff orally requested judgment be entered on the verdict and the t11t: Court granted the

request. request

By virtue of of a trial amendment pied for the Court make several Plaintiff has additionally pled arnendrnent,, Plaintiff

declarations as a matter of law: 11)) Defendants of laws hen filed on 901 Defendants'’ secondary lien 901 Indian Shores Road Road,,

Crosby,, Texas 77532 Crosby 77532,, contained within the Deed of of Trust Security Agreement -Financing Agreement~Financing

Statement,, 20100443760 Statement 20100443760,, filed in the Harris County Real Property Records on October 15 , 2010, 15,2010,

securing payment of note,, has been extinguished and released of a purchase money note released;; and 2 2)) the

secondary !len hen tiled fj[ed on 901 901 Indian Shores Road 77532,, contained within the Crosby,, Texas 77532 Road,, Crosby

of Trust Security Agreement Deed of - Financing Statement Agreement-Financing 20100443760,, filed in the Harris Statement,, 20100443760

County Real Property Records on October 15 voided.. , 2010, is voided 15,2010,

The Court Plaintiff's request for a trial amendment and it is therefore Court. granted Plaintiffs ,

ORDERED ORDERED,, ADJUDGED Defendants'’ secondary lien filed on 901 ADJUDGED,, AND DECREED that Defendants 901 Indian

Shores Road Crosby,, Texas 77532 Road,, Crosby Agreement-- of Trust Security Agreement 77532,, contained within the Deed of

Financing Statement Statement,, 20100443760 20100443760,, filed in the Harris County Real Property Records on

October 15 2010,, securing payment of 15,, 2010 of a purchase money note note,, has been extinguished and

released released;; and the secondary Hen lien filed on 901 Crosby,, Texas 77532 Road,, Crosby 901 Indian Shores Road 77532,,

903 contained within the Deed of of Trust Security Agreement -Financing Statement Agreement~Financing Statement,, 20100443760 20100443760,,

filed in the Hams Han-Is County Real Property Records on October 15 voided.. 2010,, is voided IS,, 2010

IT IS IS,, FURTHER FURTHER,, ORDERED ORDERED,, ADJUDGED ADJUDGED,, AND DECREED that Defendants Defendants'’ claims

against Plaintiff Plaintiff for breach of of contract contract,, statutory fraud rnisrepresentatl0n,, filing fraud,, negligent misrepresentation flUng of of a

fraudulent court record prejudice. record,, and declaratory judgment are hereby dismissed with prejudice.

lT IS FURTHER ORDERED IT ORDERED,, ADJUDGED AND DECREED that Plaintiff A.. Plaintiff:, Elizabeth A

~Williamson,, is entitled to judgment against Defendants Leslie R Williamson K. Pogue and Jeannette IL. Pogue in

the amount of of $496,250.00, exclusive of $496,250.00, of attorneys aiiorneys'’ fees interest. lees and prejudgment interest

IT IS FURTHER ORDERED Plaintiff:; Elizabeth A ORDERED,, ADJUDGED AND DECREED that Plaintiff A..

Williamson Williamson,, is entitled to attorneys attomeys'’ fees paid and incurred prior to t.o this Judgrnent judgment being rendered rendered,,

in the amount of $171,972.23. of$171,972.23.

IT IS FURTHER ORDERED FF P!aintlff,, Elizabeth A. ORDERED,, ADJUDGED AND DECREED that Plaintiff

Williamson Williamson,, is entitled ent.itled prejudgment interest on the damages awarded herein,, measured from a\.varded herein

September 25 , 2012, at the rate of 25,2012, % per annum of 5sty(; annum,, in the sum of of $80,297 , 44. $80,297,44,

IT IS FURTHER ORDERED FF Plaintiff,, Elizabeth A. ORDERED,, ADJUDGED AND DECREED Plaintiff

Williamson Williamson,, is entitled entWed to post postjudgment judgment interest on the total amount of of the judgment and any

pr~judgment prejudgment hereinabove,, at the rate of 5S~''O interest awarded hereinabove % per annum from the dale this

judgm(.~nt judgment paid. is signed until paid.

IT IS FURTHER ORDERED ORDERED,, ADJUDGED AND DECREED that in the event either

Defendant appeals this Judgment to the intermediate of appeals intennediat.e court of Plaintiff:, Elizabeth A. appeals,, Plaintiff

Williamson Williamson,, is entitled to the sum of of $3,500.00, as attorneys 33,500.00, fees.. attorney's fees

IT IS FURTHER ORDERED ORDERED,, ADJUDGED AND DECREED that in the event either

Defendant Def(.;ndant files a petition for tor review of of this Judgment Judgment,, with the Texas Supreme Court,, Plaintiff Suprel11€.: Court PlaintilT,,

3 3

904 Elizabeth A. Williamson WilLimnson,, is entitled to the following following:: ((a) of $ Sllm of a) the sum 3,500.00 for representation $3,500,00

at the petition for review b) the sum of review;; ((b) 4,925.00 for representation at the merit of $54,925,00 rnerit;; and ((c) e)

325.00 for representation through oral argument and the completion of $$325,00 of proceedings in the

Supreme Court of Texas,. of Texas

IT IS FURTHER FURTHER ORDERED ORDERED,, ADJUDGED AND DECREED that costs of . court,, totaling of court

$$737.25 737.25 are hereby taxed against Defendants Defendants..

IS,, FURTHER IT IS ORDERED,, ADJUDGED FURTHER,, ORDERED ADJUDGED,, AND DECREED that a Permanent

R,. Pogue and Jeannette I1.. Mandatory Injunction is hereby issued against Defendants Leslie R

Pogue,, and their agents Pogue agents,, servants servants,, representatives employees,, independent contractors representatives,, employees contractors,, officers officers,,

directors partners, successors and assigns directors,, pminers, assigns,, who are permanently ENJOINED from and

ORDERED to refrain from foreclosing upon the secondary lien filed 901 Indian Shores Road t1Ied on 901 Road,,

Crosby,, Texas 77532 Crosby 77532,, contained within the Deed of of Trust Security Agreement-Financing Agreement-Financing

Statement Statement,, 20100443760 20100443760,, filed in the Harris County Real Property Records on October 15, 2010 15,201 0,,

released.. as that lien has been extinguished and released

Failure to comply with this Permanent Mandatory Injunction will be a violation of of this

Order and contempt of Court. This Permanent of Court Pennanent Mandatory Injunction is effective immediately

and permanently attaches to the Property Propeliy and runs nms with the lamL. tht: land

IS,, FURTHER IT IS ORDERED,, ADJUDGED FURTHER,, ORDERED Plaintiff Elizabeth ADJUDGED,, AND DECREED that Plaintiff

A,, Williamson A \ViHiamson shall have all appropriate and necessary writs process, as many writs,, execution and process, rnany

and as often as are necessary to accomplish the execution and enforcement of of this judgment, judgment,

including the enforcement of Injunction.. of the incorporated Permanent Mandatory Injunction

IS,, FURTHER IT IS FURTlIER,, ORDERED ORDERED,, ADJUDGED ADJUDGED,, AND DECREED that the Notice of of Lis

Pendens Pendens,, dated July 22 22,, 2013 2013,, and filed flIed in the Official of Real Property of Oflicial Public Records of of Harris

905 County County,, Texas Texas,, under Harris Hanis County Clerk 20130364005,, is hereby cancelled ’ s File Number 20130364005 Clerk's cancelled,,

declared null and void and removed from the property described in the Notic(: Pendens.. of Lis Pendens Notice of

All AU other relief relief requested in this cause and 110t not expressly granted herein is DENIED to the isDENIFJ)

party' seeking the same party same,, This judgment is final final,, disposes of of all claims and all parties parties,, and is

appealable,. appealable

SIGNED on this _ _ dav of _ _~_ _., 2017 day of 2017,.

Signed Signed:: 7/28/2017 7/28/2017

JUDGE PRESIDING