Preston Reserve LLC, Arthur A. Lancaster, Jr., Lacy C. Howe & Robert S. Peek, Jr. v. Compass Bank

373 S.W.3d 652, 2012 WL 1564014, 2012 Tex. App. LEXIS 3151
CourtCourt of Appeals of Texas
DecidedApril 24, 2012
Docket14-11-00045-CV
StatusPublished
Cited by28 cases

This text of 373 S.W.3d 652 (Preston Reserve LLC, Arthur A. Lancaster, Jr., Lacy C. Howe & Robert S. Peek, Jr. v. Compass Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Preston Reserve LLC, Arthur A. Lancaster, Jr., Lacy C. Howe & Robert S. Peek, Jr. v. Compass Bank, 373 S.W.3d 652, 2012 WL 1564014, 2012 Tex. App. LEXIS 3151 (Tex. Ct. App. 2012).

Opinions

OPINION

WILLIAM J. BOYCE, Justice.

This is a suit to recover a deficiency remaining after a foreclosure sale of land securing a promissory note. Preston Reserve, L.L.C., Arthur A. Lancaster, Jr., Lacy C. Howe, and Robert S. Peek, Jr. (“Borrowers”) appeal a judgment in favor of Compass Bank, contending that the trial court (1) erred by concluding that there was a deficiency after a foreclosure sale because there was no legally sufficient evidence to support a fair market value finding of less than $2.7 million; and (2) should have entered a take nothing judgment against Compass Bank. We reverse the trial court’s deficiency judgment and render a take nothing judgment against Compass Bank.

Background

Compass Bank loaned $2.4 million to Preston Reserve LLC on January 31, 2008, evidenced by a promissory note. The promissory note was guaranteed by Lancaster, Howe, and Peek, and secured by a deed of trust on a 12.75 acre tract of land located in Frisco, Texas.

Preston Reserve bought the 12.75 acre tract in February 2008 for $3.2 million to construct an apartment complex. Compass Bank then committed to loaning Preston Reserve $22 million to build an apartment complex. Preston Reserve worked on getting engineering and architectural plans and obtained all permits to move forward with construction. In May 2008— before Preston Reserve received all final permits — Compass Bank modified its loan commitment and agreed to loan Preston Reserve 15 percent less than originally committed. Preston Reserve put its building plans on hold; obtained an extension on the $2.4 million loan; and attempted to raise additional money.

Preston Reserve could not raise enough money to go forward with construction and defaulted on the $2.4 million loan on November 30, 2008. Compass Bank, through “loan workout officer” Carl Scott, started working with Preston Reserve’s three guarantors in October 2008 to salvage the loan. After a few months, Scott decided the loan no longer was salvageable. The property was sold at a foreclosure sale on May 5, 2009. Compass Bank, the sole bidder at the foreclosure sale, bought the property for $1.2 million.

Compass Bank sued the Borrowers on July 30, 2009 to recover a deficiency of $1,242,153.85 that remained after the foreclosure sale, plus accrued interest of $87,018.79. The Borrowers answered and challenged the deficiency; they also filed a motion pursuant to Texas Property Code Section 51.003 requesting that the trial court determine the fair market value of the property as of the date of foreclosure.

A bench trial was held on November 11, 2010. Scott testified on behalf of Compass Bank that the property’s fair market value at the time of the foreclosure sale was $1 million. Howe testified as a timely designated property valuation expert on behalf of the Borrowers; according to Howe, the property’s value was between $2.7 and 2.8 million at the time of the foreclosure sale. After trial, Compass Bank and the Borrowers filed motions for entry of judgment. The trial court signed a final judgment on December 9, 2010, finding that the fair market value of the property was $2.4 million on May 5, 2009, and that the Borrowers, jointly and severally, owed Compass Bank a deficiency of $129,172.64 [657]*657and attorney’s fees. The Borrowers timely appealed.

Analysis

The Borrowers raise two issues on appeal. First, they argue that no deficiency existed because “there was no legally sufficient evidence to support the trial court’s finding of a fair market value as of May 5, 2009, of less than $2,700,000.” Second, they contend that, because there is legally insufficient evidence to support a finding that “the fair market value of the 12.75 acre tract on May 5, 2009, was less than $2,700,000, the trial court should have entered a judgment that Compass Bank take nothing.”

I. Standard of Review and Applicable Law

The Borrowers and Compass Bank did not request findings of fact or conclusions of law pursuant to Texas Rule of Civil Procedure 296, and the trial court filed none. When no findings of fact or conclusions of law are filed or requested in a bench trial, it is implied that the trial court made all necessary findings to support its judgment. Mays v. Pierce, 203 S.W.3d 564, 571 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). We must affirm the trial court’s judgment on any legal theory that finds support in the evidence. Treadway v. Shanks, 110 S.W.3d 1, 5 (Tex.App.-Dallas 2000), aff'd, 110 S.W.3d 444 (Tex.2003). A party’s failure to request findings of fact or conclusions of law does not waive his right to challenge the legal sufficiency of the evidence on appeal. See Tex.R.App. P. 33.1(d); Pruet v. Coastal States Trading, Inc., 715 S.W.2d 702, 704 (Tex.App.-Houston [1st Dist.] 1986, no writ).

When conducting a legal sufficiency review, we credit favorable evidence if a reasonable factfinder could do so and disregard contrary evidence unless a reasonable factfinder could not do so. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We consider the evidence in the light most favorable to the finding under review and indulge every reasonable inference that would support it. Id. at 822. The factfinder is the only judge of witness credibility and the weight to give to testimony. See id. at 819. We sustain a legal insufficiency challenge only if: (1) the record reveals a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810; Niche Oilfield Servs., LLC v. Carter, 331 S.W.3d 563, 569 (Tex.App.-Houston [14th Dist.] 2011, no pet.).

Opinion testimony, even when uncontroverted, does not necessarily bind the trier of fact. “[T]he judgments and inferences of experts or skilled witnesses, even when uncontroverted, are not conclusive on the jury or trier of fact, unless the subject is one for experts or skilled witnesses alone, where the [trier of fact] cannot properly be assumed to have or be able to form correct opinions of their own based upon evidence as a whole and aided by their own experience and knowledge of the subject of inquiry.’ ” Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex.1998) (quoting McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986)).

As trier of fact, a trial court is not bound by the testimony of an interested witness merely because it is uncontradicted. Ex parte Rosser, 899 S.W.2d 382, 386 (Tex.App.-Houston [14th Dist.] 1995, no writ). Instead, testimony by an interested witness may establish a fact as a [658]*658matter of law only if the testimony could readily be contradicted if untrue, and is clear, direct and positive, and there are no circumstances tending to discredit or impeach it. Lofton v. Tex. Brine Corp.,

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Cite This Page — Counsel Stack

Bluebook (online)
373 S.W.3d 652, 2012 WL 1564014, 2012 Tex. App. LEXIS 3151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/preston-reserve-llc-arthur-a-lancaster-jr-lacy-c-howe-robert-s-texapp-2012.