Brauss, Eric W, Christine Brauss v. Nixdorf Parties , 411 S.W.3d 614 ( 2013 )

Reversed and Rendered in Part and Affirmed; Opinion Filed August 13, 2013.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-00271-CV
W. ERIC BRAUSS; CHRISTINE MARTIN; TEXAS HORSESHOE;
DROEGE INVESTMENT GBR; WOLF HEIMERDINGER; SANDY
MARKS; T.H. SONG-WINKLER; MICHELE ROELCKE; AND SUSAN
BRAUSS, Appellants
V.
TRIPLE M HOLDING GMBH; 2 M GMBH; FRN PRODUCT
MARKETING GMBH; ASN IMMOBILIEN GMBH; RENATE NIXDORF
GMBH & CO. KG; MICHAEL NIXDORF VERWALTUNGS GMBH; SDI,
INC.; SDI GRAND CAYMAN, L.L.C.; SGC MANAGEMENT, L.L.C.; SDI
PARADISE ISLAND, L.L.C.; SPI MANAGEMENT, L.L.C.; NDF/TRA
GRAND CAYMAN, L.P.; WATERCREST PARTNERS, L.P.; AND RMB
INVESTMENTS, INC., Appellees
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-09-16465
OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion By Justice Moseley
This case results from the downfall of a real estate empire built by W. Eric Brauss
through a complex web of real estate limited partnerships involving hundreds of investors and
creditors. When some of the investors began to realize the empire was crumbling, Brauss fired
all the employees at his management company, Today Realty Advisors, Inc. (TRA), and left the
country. Several lawsuits were filed by various parties against the management company,
Brauss, and his former wife, Christine Martin. Brauss and Martin asserted their Fifth
Amendment right against self-incrimination in response to discovery requests in one of the other
lawsuits. Martin later withdrew her assertion of the privilege.
The structure of the real estate projects followed a similar pattern, consisting of multiple
layers of limited partnerships with corporate general partners. The real property would be owned
by limited partnership with a corporate general partner. The limited partners themselves were
also limited partnerships with a corporate general partner. This structure was then repeated with
the limited partner being owned by another limited partnership. Some of the projects involved
four or more levels of these limited partnerships. In general, Brauss and TRA owned and
controlled the general partners of each level of the limited partnerships involved in this lawsuit.
Brauss and Martin were not originally named as defendants in this lawsuit. Instead, a
group of eight investors claiming to be limited partners, on behalf of themselves, certain limited
partnerships, and “all other limited partners similarly situated,” filed this lawsuit against TRA
and several of the general partners controlling some of the real estate investment properties.1
The plaintiffs2 alleged claims for breach of contract, breach of fiduciary duty, alter ego and veil
piercing. They sought injunctive relief, damages, the appointment of a receiver, and declaratory
relief. The trial court granted a temporary restraining order and appointed a receiver for several
of the partnerships.
The plaintiffs later reached a settlement agreement with Brauss and Martin. In general,
the settlement provided that Brauss and Martin would agree to a judgment against themselves
and their interests in all the partnerships and corporations in exchange for an agreement not to
1
Although the petition purports to be filed on behalf of several limited partnerships and on behalf of all
other limited partners similarly situated, the plaintiffs did not seek and the trial court did not certify a class action
proceeding. The plaintiffs are described as limited partners, but the pleadings do not identify which partnership they
were partners in.
2
Only four of the original plaintiffs appeal and will be referred to as the Horseshoe Appellants.
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execute the judgment against them personally and an affidavit of non-prosecution. Brauss and
Martin indicated that all of their non-exempt North American assets would be subject to the
judgment. The receiver would administer the assets and pay the individual investors according to
a formula set out in the settlement agreement. After the settlement was reached, Brauss and
Martin, individually and on behalf of several partnerships and corporations in which Brauss had
an ownership interest, filed a petition in intervention in the lawsuit for purposes of effectuating
the settlement agreement.
The plaintiffs obtained approval from the trial court to send notice of the right to opt-in to
the settlement agreement to all investors in the various partnerships. Afterwards, a large group
of investors were granted leave to intervene as plaintiffs to join in the settlement.3 However, two
other groups (referred to as the Nixdorf Appellants and the Song-Winkler Appellants) objected
to the settlement and intervened as plaintiffs to assert claims for debt and return of capital against
the defendants and defendant-intervenors. On the receiver’s motion, the trial court later struck
the Song-Winkler Appellants’ intervention.
The claims of the Nixdorf Appellants against the defendants were tried to the court in a
bench trial. The damages for the plaintiffs were also tried to the court. The trial court rendered a
final judgment approving the settlement; awarding damages in excess of $65 million to the
plaintiffs against Brauss, Martin, TRA, and other entities; awarding damages in excess of $48
million to the Nixdorf Appellants against Brauss, Martin, TRA, and another entity; appointing a
permanent receiver; and declaring the ownership of certain general partnership interests and the
division of proceeds from a project known as Sugar Land. The trial court was not requested to
3
Actually, over 200 investors were granted leave to intervene for purposes of the settlement by the trial
court’s agreed interlocutory judgment. The record does not indicate that a pleading in intervention was actually
filed on behalf of these investors. However, counsel for the Horseshoe Appellants represented to the trial court that
those investors electing to participate in the settlement were listed on Exhibit A to the final judgment and they were
named in the caption of the final judgment.
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and did not file written findings of fact and conclusions of law.
Only a few of the parties to the trial court’s judgment have appealed to this Court. They
can be broken down into the following groups:
(1) appellants W. Eric Brauss and Christine Martin,4 intervening defendants in
the trial court;
(2) appellants Texas Horseshoe, Inc., Droege Investment Gbr, Wolf
Heimerdinger, and Sandy Marks (the Horseshoe Appellants), four of the
original plaintiffs in the trial court;
(3) appellants T.H. Song-Winkler, Michele Roelcke, and Susan Brauss (the
Song-Winkler Appellants), intervening plaintiffs who were stricken from
the suit;
(4) appellees and cross-appellants Triple M Holding GmbH, 2 M GmbH, FRN
Product Marketing GmbH, ASN Immobilien GmbH, Renate Nixdorf
GmbH & Co. KG,5 Michael Nixdorf Verwaltungs GmbH, SDI, Inc., SDI
Grand Cayman, L.L.C., SGC Management, L.L.C., SDI Paradise Island,
L.L.C., SPI Management, L.L.C., and NDF/TRA Grand Cayman, L.P.
(collectively the Nixdorf Appellants), intervening plaintiffs in the trial
court;
(5) appellee Watercrest Partners, L.P. (Watercrest), intervening plaintiff in the
trial court; and
(6) appellee RMB Investments, Inc. (RMB), the receiver appointed in the
final judgment.
With the exception of Watercrest and RMB, each of these groups has filed issues on
appeal. Those issues necessary for resolution of this appeal will be discussed below. See TEX.
R. APP. P. 47.1.
STANDARD OF REVIEW
On appeal from a nonjury trial without findings of fact and conclusions of law, it will be
implied that the trial court made all findings necessary to support its judgment. Holt Atherton
Indus., Inc. v. Heine, 835 S.W.2d 80, 83–84 (Tex. 1992). Without findings of fact and
4
Christine Martin is Brauss’s former wife and is referred to in the final judgment as Christine Brauss. We
will refer to her as Martin for the purpose of clarity.
5
Appellant Renate Nixdorf GmbH & Co. KG will be referred to as Renate Nixdorf where necessary.
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conclusions of law, the trial court’s judgment will be affirmed if it can be upheld on any legal
theory that finds support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)
(per curiam); In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (per curiam).
When a reporter’s record is brought forward, these implied findings may be challenged
on appeal by legal or factual sufficiency issues. Holt Atherton, 835 S.W.2d at 83. In a nonjury
trial, a complaint about the legal or factual sufficiency of the evidence may be made for the first
time on appeal. TEX. R. APP. P. 33.1(d); Office of Atty. Gen. of Tex. v. Burton, 369 S.W.3d 173,
175 (Tex. 2012) (per curiam).6
In evaluating the legal sufficiency of the evidence to support a finding, we credit
favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a
reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In
reviewing the factual sufficiency of evidence, we review all the evidence and will set aside the
finding only if the evidence is so weak or if the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. See Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
6
The Nixdorf Appellants assert that Brauss and Martin failed to preserve error on their sufficiency of the
evidence issues because their motion for new trial did not comply with TEX. R. CIV. P. 321 and 322. However, in a
nonjury trial, challenges to the sufficiency of the evidence need not be raised in a motion for new trial. Burton, 369
S.W.3d at 175; see also TEX. R. APP. P. 33.1(d); TEX. R. CIV. P. 324(a), (b).
The Nixdorf Appellants also assert that the Horseshoe Appellants failed to preserve error on their
sufficiency of the evidence issue. They assert that complaints about the trial court’s damage award must be
presented to the trial court in the form of a motion to modify the judgment or a motion for new trial, citing Arthur’s
Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 816 (Tex. App.—Dallas 1999, no pet.) and Ex-Change
Auto Sales v. KUT Auto Sales, 05-02-00307-CV, 2002 WL 31418038, at *1 (Tex. App.—Dallas Oct. 29, 2002, no
pet.) (not designated for publication).
In Arthur’s Garage, we stated the general rule for preservation of error and concluded the appellant had
properly raised a complaint about the award of attorney expenses as part of the award of attorney’s fees. 997 S.W.2d
at 816. Accordingly, the issue was properly raised on appeal and we did not need to discuss the exception for
preservation of sufficiency of the evidence challenges in nonjury trials. In Ex-Change Auto Sales, the appellant did
not challenge the sufficiency of the evidence, but argued on appeal for a statutory limit on the amount of damages
that had never been raised before the trial court. 2002 WL 31418038, at *1. Neither decision supports the argument
that sufficiency of the evidence challenges in a nonjury trial must be preserved in the trial court. See Burton, 369
S.W.3d at 175.
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1986) (per curiam). In a bench trial, the trial court is the sole judge of the credibility of the
witnesses and may believe one witness over another and resolve any conflicts or inconsistencies
in the testimony. Shaw v. County of Dallas, 251 S.W.3d 165, 169 (Tex. App.—Dallas 2008, pet.
denied); Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907, 917–18 (Tex. App.—Dallas 2008,
no pet.).
A. Sufficiency of the Evidence
1. The Nixdorf Appellants’ Judgment Against Brauss and Martin
In their second issue, Brauss and Martin challenge the sufficiency of the evidence to
support the judgment against them in favor of the Nixdorf Appellants.
The Nixdorf Appellants asserted claims for breach of contract, fraud, fraudulent
inducement, and breach of fiduciary duty. The judgment awards the Nixdorf Appellants
damages against Brauss and Martin, jointly and severally, relating to four projects known as
Grand Cayman, Paradise Island, Riverwalk, and Pelican Point. The damages represent the
equity invested by the Nixdorf Appellants in each of these projects and the principal balance of
several loans made by some of the Nixdorf Appellants on the projects.
a. Damages
Brauss and Martin argue there is no evidence to support the damage award in favor of the
Nixdorf Appellants because they relied on a single page summary as evidence. However, the
underlying documents supporting the amounts shown in the summary were also admitted in
evidence. Those documents included the partnership agreements showing the Nixdorf
Appellants’ initial investments; a Renate Nixdorf letter to Brauss attaching a project summary
showing total capital contributions on each project including additional capital calls;7 several
7
The total of the equity shown on the Nixdorf Appellants’ summary, plaintiff-intervenor exhibit 114, for
the four projects is the same as the total of the capital contribution for those projects shown on the attachment to the
Renate Nixdorf letter, plaintiff-intervenor exhibit 43.
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promissory notes;8 and guaranties signed by Brauss. The testimony of the Nixdorf Appellants’
representative, Gary Hunter, also supports the numbers shown in the exhibit. Hunter testified
that all of the capital amounts for the four projects had been funded by the Nixdorf Appellants
and none had been repaid. He testified that the principal amount of all of the loans to the
projects also had been funded by the Nixdorf Appellants and none had been repaid.9
b. Fraud
Brauss next argues there was no evidence his conduct caused the Nixdorf Appellants’
damages or that he made any misrepresentation on which he intended the Nixdorf Appellants to
act. We discuss these arguments in the context of the Nixdorf Appellants’ fraud claim.
To prevail on a claim of fraud, the Nixdorf Appellants must show: (1) a material
representation was made; (2) the representation was false; (3) when the representation was made,
the defendants knew it was false or made it recklessly without any knowledge of the truth; (4)
the defendant made the representation intending that the plaintiff act on it; (5) the plaintiff
actually relied on it; and (6) the plaintiff incurred damages. Forney 921 Lot Dev. Partners I, L.P.
v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 270 (Tex. App.—Dallas 2011, pet. denied) (citing
Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.
1998)); see also Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001) (silence is equivalent to
false representation where there is duty to disclose and party deliberately remains silent).
Fraudulent inducement is a species of fraud that arises in the context of a contract; the elements
of fraud must be established as they relate to a contract between the parties. Haase v. Glazner,
8
The total of the principal amounts of the promissory notes relating to the Grand Cayman and Riverwalk
projects (plaintiff-intervenor exhibits 79, 80, 82, 86, 88, 89, and 90) is the same as the total amount of loans on those
projects shown on plaintiff-intervenor exhibit 114.
9
Because the underlying documents and Hunter’s testimony support the information in the summary, we
conclude the trial court did not abuse its discretion by admitting the summary. Assuming the issue was preserved
and the Horseshoe Appellants were adversely affected by the ruling, we overrule the Horseshoe Appellants’ third
issue, which asserts error in admitting the exhibit.
–7–
62 S.W.3d 795, 798–99 (Tex. 2001).
There is evidence Brauss owned and controlled TRA, and made all decisions on its behalf
for the various partnerships in which TRA was a general or a limited partner.10 As Hunter put it,
“TRA is Eric Brauss.” Hunter testified Brauss failed to disclose that he (Brauss) was not
investing his or TRA’s money in the partnerships. Hunter said the Nixdorf Appellants did not
know at the time of their investments that there would be investors other than Brauss or TRA-
owned entities.
Hunter explained that while TRA was in control of the Paradise Island project, a $2
million judgment was taken against the Paradise Island property. On the Pelican Point project,
Hunter testified that TRA and Brauss failed to disclose to the Nixdorf Appellants that the U. S.
Army Corps of Engineers had determined that a water channel necessary for development could
not be improved. When the Nixdorf Appellants confronted Brauss with these facts in 2007,
Brauss admitted the deception and agreed to make them whole from money he was going to
make from other projects. On the Grand Cayman project, at the time the Nixdorf Appellants
invested, Brauss and TRA failed to disclose to them that there were already two to three years’
worth of condominiums on the market to be sold and that a lawsuit had been filed to prevent
further condos being built on the beach. (The lawsuit was later overturned, but by then there
was no market for additional condos.)
Hunter also testified about accounting irregularities in the books of the four projects.
After their investments, the Nixdorf Appellants discovered several different types of fees on the
records—that had never been disclosed to them. Some of those fees went to Brauss. Hunter also
10
It is well established that “a corporate agent is personally liable for his own fraudulent or tortious acts.”
Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002) (citing Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369,
375 (Tex. 1984); Restatement (Second) of Agency § 348 (1958)). Liability is based on the agent’s own actions, not
his status as an agent. Miller, 90 S.W.3d at 717 (quoting Light v. Wilson, 663 S.W.2d 813, 815 (Tex. 1983) (Spears,
J., concurring)). Thus, a corporate agent is personally liable for his own tortious conduct even without piercing the
corporate veil. See Walker v. Anderson, 232 S.W.3d 899, 918 (Tex. App.—Dallas 2007, no pet.).
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testified the balance sheets did not make sense; for example, the funds shown in a construction
cost account were later found to never have existed. There is also evidence in the record that the
real property for each of the four projects had or was about to be foreclosed upon by the lenders
on the projects.
Hunter testified his summary showed the principal amount of loans made by members of
the Nixdorf Appellants at the request of Brauss or TRA for the Grand Cayman and Riverwalk
projects. The record indicates Brauss personally guaranteed several of the promissory notes.
Hunter testified all the loans were funded by the Nixdorf Appellants and nothing had been
repaid.
In addition to the evidence in the record, the Nixdorf Appellants rely on the negative
inferences arising from Brauss’s invocation of his right against self-incrimination. Through
counsel, Brauss refused to appear for deposition and invoked his constitutional right against
compelled self-incrimination. The Nixdorf Appellants argue the negative inferences arising from
this support the trial court’s judgment.
In a civil case, a fact finder may draw negative inferences from a party’s assertion of the
privilege against self-incrimination. See TEX. R. EVID. 513(c); Wilz v. Flournoy, 228 S.W.3d
674, 677 (Tex. 2007) (per curiam); Tex. Dep’t of Pub. Safety Officers Ass’n v. Denton, 897
S.W.2d 757, 760 (Tex. 1995). In Baxter v. Palmigiano, the United States Supreme Court stated:
“the Fifth Amendment does not forbid adverse inferences against parties to civil actions when
they refuse to testify in response to probative evidence offered against them.” Baxter, 425 U.S.
308, 318 (1976). However, without some probative evidence of the elements of a party’s claim,
any negative inference that might be drawn from the invocation of the “privilege against self-
incrimination cannot rise beyond mere suspicion.” Webb v. Maldonado, 331 S.W.3d 879, 883
(Tex. App.—Dallas 2011, pet. denied).
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There is evidence from which a reasonable fact finder could infer that Brauss
misrepresented and withheld material information about the projects in order to induce the
Nixdorf Appellants to make their original investment; to continue investing in response to capital
calls; to loan additional money to the partnerships and TRA; and to forbear collection on those
loans. There is evidence Brauss admitted making misrepresentations and intended to induce
action by the Nixdorf Appellants. The Nixdorf Appellants relied on these representations to their
ultimate detriment when the projects were foreclosed. This constitutes probative evidence of the
elements of the Nixdorf Appellants’ claim. See id. Thus, the trial court was also free to draw
negative inferences from Brauss’s invocation of the privilege against self-incrimination.
Considering the evidence in the light most favorable to the trial court’s judgment, we
conclude there is more than a scintilla of evidence to support the trial court’s implied finding of
fraud against Brauss. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex. 2002) (plurality
op.). Looking at all the evidence, it is not so weak that the trial court’s implied findings are
clearly wrong or unjust. See Cain, 709 S.W.2d at 176. Accordingly, we overrule Brauss’s
second issue. Because we conclude the evidence is sufficient on the fraud and fraudulent
inducement claims to support all of the complained-of damages awarded to the Nixdorf
Appellants against Brauss, we do not discuss the other causes of action against him.11
c. Claims Against Martin
Martin contends the Nixdorf Appellants presented no evidence against her at trial. The
record shows Martin was neither a party to nor a guarantor of any of the promissory notes on the
Nixdorf Appellants’ projects. The Nixdorf Appellants identify no other contract with Martin that
would support the judgment. (We discuss the judgment for Watercrest against Martin below.)
11
Brauss does not complain about or challenge the award of attorney’s fees to the Nixdorf Appellants.
However, there is evidence he breached his personal guaranties of several of the loans, which is some evidence to
support the award of attorney’s fees under the theory of breach of contract.
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The evidence shows that Brauss controlled the businesses and dealt directly with the
investors. There is no evidence Martin had any direct dealings with or made any representations
to the Nixdorf Appellants. There is no evidence Martin was an agent of TRA or any of the
entities dealing with the Nixdorf Appellants’ projects. Although there is evidence Martin was
the owner of other entities, CDB Holdings, L.P. and Buckingham Financial, LLC, neither entity
was connected to the four projects on which the Nixdorf Appellants recovered damages. Nor is
there any evidence Martin was a partner in any of the partnerships relating to those projects. The
Nixdorf Appellants argue Martin breached her fiduciary duties by not discovering or acting to
prevent Brauss’s fraud, but there is no evidence she owed any fiduciary duty to any of the
Nixdorf Appellants.
The Nixdorf Appellants contend that by entering into an agreed judgment in this case
imposing liability on several real estate partnerships, Brauss and Martin breached their fiduciary
duties. The Nixdorf Appellants refer to an agreed final judgment, signed by Brauss, Martin, and
their attorney, that the Horseshoe Appellants tendered to the trial court at the beginning of trial.
This proposed judgment does not appear in the record on appeal. Therefore, we cannot
determine what that document provided. Nevertheless, the actual judgment rendered by the trial
court does not impose liability against any of the partnerships the Nixdorf Appellants invested in.
The final judgment renders judgment for the plaintiffs and plaintiff-intervenors for settlement
purposes against each of the entities on exhibit B to the judgment for the respective amounts
shown on exhibit A for the respective plaintiff or plaintiff-intervenor. None of the partnerships
the Nixdorf Appellants invested in are listed on exhibit B to the final judgment.12
We conclude there is no evidence to support the Nixdorf Appellants’ causes of action as
12
Renate Nixdorf was a limited partner in the following partnerships: NDF/TRA Grand Cayman, L.P.,
NDF/TRA Paradise Island, L.P., NDF/TRA Riverwalk, L.P., NDF/TRA Pelican, L.P., NDF/TRA Arts District, L.P.,
and NDF/TRA Sugar Land, L.P. None of these partnerships is listed on exhibit B to the final judgment.
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to Martin. We sustain her second issue. Because we conclude there is no evidence to support
Martin’s liability on any of the Nixdorf Appellants’ causes of action, we do not address her first
issue.13
2. Sufficiency Issues of The Horseshoe Appellants and The Nixdorf Appellants
Both the Nixdorf Appellants and the Horseshoe Appellants obtained money judgments
against some of the same defendants. The Horseshoe Appellants challenge the sufficiency of the
evidence supporting the Nixdorf Appellants’ damage award. Likewise, The Nixdorf Appellants
challenge the sufficiency of the evidence to support the damage award to the Horseshoe
Appellants.
The Horseshoe Appellants claim the Nixdorf Appellants lack standing to appeal the
damage award favoring the Horseshoe Appellants because they—the Nixdorf Appellants—are
not adversely affected by that portion of the judgment. We agree. We also agree that the
Horseshoe Appellants do not have standing to complain of the award of damages in favor of the
Nixdorf Appellants.
The record does not show that the money judgment in favor of one of these two groups
adversely affects any of the interests of the other. Texas courts have long held that an appealing
party may not complain of errors that do not injuriously affect it or that merely affect the rights
of others. Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000); Tex. Workers’
Compensation Ins. Fund v. Mandlbauer, 988 S.W.2d 750, 752 (Tex. 1999) (per curiam);
Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex. 1982); Jackson v. Fontaine’s
Clinics, Inc., 499 S.W.2d 87, 92 (Tex. 1973); Shell Petroleum Corp. v. Grays, 131 Tex. 515, 114
S.W.2d 869, 870 (1938); Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 893 (Tex.
13
Martin’s first issue argued that the Nixdorf Appellants did not file a pleading asserting a cause of action
against her.
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App.—Dallas 2004, pet. denied).
We recognize a party seeking to obtain a judgment against a defendant may desire to
reduce the number or amount of other claims against the same defendant. But that alone does
not give one party a justiciable interest concerning the claims of another party against the
common defendant. See Jackson, 499 S.W.2d at 92 (appealing defendant could not complain of
alleged error in judgment against non-appealing co-defendants).
We conclude the Nixdorf Appellants are not injuriously affected by the judgment in favor
of the Horseshoe Appellants and have no standing to appeal that portion of the judgment. For
the same reasons, the Horseshoe Appellants do not have standing to complain of the judgment
awarding damages to the Nixdorf Appellants against the defendants. We overrule the Nixdorf
Appellants’ second issue and the Horseshoe Appellants’ third and fourth issues.
B. Summary Judgment on Martin’s Guaranty
Martin appeals the trial court’s summary judgment against her in favor of Watercrest
Partners, L.P. on her personal guaranty. Watercrest moved for summary judgment to collect on a
$300,000 promissory note and the personal guaranties of Brauss and Martin. Martin did not file
a response to the motion for summary judgment and did not raise any affirmative defenses. The
trial court granted the summary judgment motion and incorporated that judgment into the final
judgment.
On appeal, Martin argues the summary judgment was erroneous because the maturity
date of the promissory note was extended without her consent as guarantor. However, material
alteration of the underlying debt that discharges a guarantor is an affirmative defense. Frost
Nat’l Bank v. Burge, 29 S.W.3d 580, 588 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Fed.
Deposit Ins. Corp. v. Attayi, 745 S.W.2d 939, 944 (Tex. App.—Houston [1st Dist.] 1988, no
writ); see also Futerfas Family Partners v. Griffin, 374 S.W.3d 473, 478–79 (Tex. App.—Dallas
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2012, no pet.) (“To be entitled to discharge from liability on the guaranty, the guarantor must
prove (1) a material alteration of the underlying contract; (2) made without the guarantor’s
consent; (3) which is to the guarantor’s detriment.”).
Martin never raised this affirmative defense in an answer to Watercrest’s claim or in a
response to the motion for summary judgment. “Issues not expressly presented to the trial court
by written motion, answer or other response shall not be considered on appeal as grounds for
reversal.” TEX. R. CIV. P. 166a(c); see also Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.
1984) (party opposing summary judgment based on an affirmative defense must come forward
with summary judgment evidence sufficient to raise an issue of fact on each element of the
defense to avoid summary judgment); Hewitt v. Biscaro, 353 S.W.3d 304, 308 (Tex. App.—
Dallas 2011, no pet.).
Because Martin did not raise the issue of her affirmative defense in a written response to
the motion for summary judgment, we will not consider it as a ground for reversal. We overrule
Martin’s third issue.
C. Partnership Assignments; Arts District Partnerships
The Horseshoe Appellants’ first and second issues complain of the trial court’s
declaration that SDI Arts District, L.L.C. is the general partner of NDF/TRA Arts District, L.P.
and Arts District, L.P.14 None of these entities is a party to this appeal. The Horseshoe
Appellants do not explain how their interests are adversely affected by the trial court’s
declaratory judgment.
The Horseshoe Appellants and the plaintiff-intervenors for settlement purposes in the
trial court appear to be remote limited partners of other limited partnerships that, in turn, owned
14
The final judgment declared that members of the Nixdorf Appellants were general partners in nine
partnerships. The partnership interests were assigned by Brauss and TRA to members of the Nixdorf Appellants
pursuant to a July 15, 2009 forbearance agreement. At oral argument, the Nixdorf Appellants and the Horseshoe
Appellants conceded that only the two Arts District partnerships were at issue.
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limited partnership interests in the assigned partnerships. Indeed, the various partnership
agreements in the record show that none of the Horseshoe Appellants is named as a limited
partner in any of the partnership agreements at issue.15 For example, the limited partnership
agreement for Today Arts District, L.P. shows that TRA is the general partner, the Class A
limited partner, and the Class B limited partner. No other partners are shown in that agreement.16
Thus, we conclude the Horseshoe Appellants lack standing to complain of this portion of
the trial court’s judgment. See Mandlbauer, 988 S.W.2d at 752 (appealing party may not
complain of errors that do not injuriously affect it or that merely affect the rights of others). We
overrule the Horseshoe Appellants’ first and second issues.
D. Sugar Land Partnerships
The Nixdorf Appellants’ first issue concerns the trial court’s declaration regarding the
distribution of the proceeds from the sale of the property involved in the Sugar Land project. As
a result of the sale of that property, a distribution was due to the partners of NDF/TRA Sugar
Land, L.P. The limited partners in NDF/TRA Sugar Land, L.P. are Renate Nixdorf and Today
Sugar Land Investment, L.P. The trial court declared that Renate Nixdorf was entitled to a 50
percent share of the distribution and that Today Sugar Land Investment, L.P. was entitled to a 49
percent share of the distribution. This allocation is consistent with the terms of the NDF/TRA
15
Texas Horseshoe, Inc. is shown on exhibit A to the final judgment as holding a debt claim and as an
investor in six limited partnerships, including Today Sugar Land Investment, L.P. However, Texas Horseshoe, Inc.
is not named as a limited partner in the limited partnership agreement for Today Sugar Land Investment, L.P. The
partnership agreement merely lists “Other Limited Partners” on the schedule showing the initial capital contributions
of the partners.
Wolf Heimerdinger is listed on exhibit A to the final judgment as to a partnership not involved in any
dispute on appeal. Droege Investment Gbr is not listed on any of the exhibits to the final judgment. Sandy Marks is
not mentioned by name in exhibits to judgment. However, a Sandy Haymann is listed several times and appears to
be only “Sandy” in the list. Haymann is shown as an investor in Today Arts District, L.P., but the Today Arts
District, L.P. partnership agreement does not list this person as a limited partner.
16
Exhibit A to the final judgment allocates certain sums to identified investors, including Sandy Haymann,
as to Today Arts District, L.P., but there is no evidence in the record showing those investors were actually limited
partners in Today Arts District, L.P.
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Sugar Land, L.P. limited partnership agreement.
The Nixdorf Appellants argue the distribution of the sale proceeds must be modified
because accounting records show that part of Today Sugar Land Investment, L.P.’s capital
contribution was booked by the general partner in the form of an account payable of over
$800,000. They contend that because the partnership agreement required the initial capital
contribution of the limited partners to be in cash, Today Sugar Land Investment, L.P.’s relative
Capital Contribution is only $1.1 million instead of $1.9 million.17
The limited partnership agreement required the two limited partners to contribute $1.9
million each for their limited partnership interests in NDF/TRA Sugar Land, L.P. The agreement
also provided that distributions to the limited partners would be made pro rata, “according to
their relative Capital Contributions.”
The accounting records for NDF/TRA Sugar Land, L.P. and Today Sugar Land
Investment, L.P. were maintained by employees of TRA at its offices. Those records show the
initial capital contribution of Renate Nixdorf was wired to an account for TRA and then
deposited in the account of Today Sugar Land Investment, L.P. (the other limited partner of
NDF/TRA Sugar Land, L.P.) along with the funds of the investors in Today Sugar Land
Investment, L.P. This was done because an account had not yet been opened for NDF/TRA
Sugar Land, L.P.
The receiver testified the books and records show that Today Sugar Land Investment,
L.P. made its $1.9 million capital contribution to NDF/TRA Sugar Land, L.P. through a transfer
of cash, payment of expenses directly to and on behalf of the developer, and the booking of an
account payable of more than $800,000 to NDF/TRA Sugar Land, L.P.
17
The Nixdorf Appellants contend the proceeds should be distributed approximately 65% to them and 35%
to Today Sugar Land Investment, L.P. This distribution would result in about $830,000 more to Renate Nixdorf
than the distribution in the trial court’s judgment.
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There is evidence that the Today Sugar Land Investment, L.P. account had sufficient
funds to acquire its limited partnership interests in NDF/TRA Sugar Land, L.P. However, only a
portion of those funds were actually transferred to a new account established for NDF/TRA
Sugar Land, L.P. Over $800,000 was shown on Today Sugar Land Investment, L.P.’s books as
an account payable to NDF/TRA Sugar Land, L.P. A similar amount is shown as an asset of
Today Sugar Land Investment, L.P. in escrow to another Brauss entity. The receiver testified
these escrow funds were transferred to another account and he does not know where the money
is today.
The NDF/TRA Sugar Land, L.P. partnership agreement states that the partners will
contribute cash and, when contributed, those amounts will constitute the initial capital accounts
of the partners. The agreement also provides for the making of non-cash capital contributions
and that those contributions are to be valued at gross fair market value as determined by the
contributing partner and the general partner. This was the manner by which the partnership
operated for several years. The partnership filed tax records based on the 50 percent and 49
percent relative partnership interests and there is evidence that other distributions to partners
were made on this basis.
The Nixdorf Appellants argue the account receivable had no value and was never valued
at fair market value by the general partner and contributing partner according to the terms of the
partnership agreement. However, the receivable was carried on the books at face value as part of
Today Sugar Land Investment, L.P.’s capital contribution. The books formed the basis for tax
returns and distributions made by the partnership before TRA ceased operating. This is some
evidence of the value of the receivable.
Because capital contributions can include non-cash property, there is no reason under the
agreement that the account receivable from Today Sugar Land Investment, L.P. could not be
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considered as a capital contribution.18 We conclude the evidence is sufficient to support the trial
court’s declaratory judgment regarding the Sugar Land proceeds. We overrule the Nixdorf
Appellants’ first issue.
E. Brauss’s Authority to Settle for Certain Partnerships
The Nixdorf Appellants’ third issue claims that Brauss lacked authority to consent to
judgment on behalf of those entities where the general partnership interest had been assigned to
the Nixdorf Appellants. The Nixdorf Appellants cite to the caption of the final judgment in
support of their argument, but not to the substantive portions of the judgment. As discussed in
connection with the breach of fiduciary duty claim against Martin, the final judgment does not
reflect any adverse judgment against those entities. We conclude the Nixdorf Appellants’ issue
presents nothing for review. We overrule the Nixdorf Appellants’ third issue.
F. Song-Winkler Intervention
In three issues, the Song-Winkler Appellants complain the trial court erred by striking
their intervention, rendering judgment on an illegal settlement agreement, and denying their
motion for new trial. We discuss the issues together because they all depend on the Song-
Winkler Appellants’ intervention in this lawsuit.
1. Mootness
First, we address whether the Song-Winkler Appellants’ appeal of the order striking their
intervention is now moot because of subsequent developments.
The Horseshoe Appellants contend that these issues are moot because the Song-Winkler
Appellants subsequently pursued their claims in separate lawsuits and have now settled those
claims or obtained judgments. In general, an appeal is moot when the trial court’s action on the
18
We further note the receiver for the general partner of NDF/TRA Sugar Land, L.P., testified that when
the distribution is made to Today Sugar Land Investment, L.P. he will also collect the account receivable on behalf
of NDF/TRA Sugar Land, L.P. before making any further distribution of assets of that entity.
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merits cannot affect the rights of the parties. See Trulock v. City of Ducanville, 277 S.W.3d 920,
924 (Tex. App.—Dallas 2009, no pet.). A case on appeal is moot if: (1) there is no live
controversy between the parties; and (2) any decision rendered by the appellate court would be
an advisory opinion. Id.
In their live plea in intervention, the Song-Winkler Appellants sought a judgment for the
amounts due on promissory notes made by CDB Holdings, L.P., CDBGP-1, LLC, Today Texas
Fund 2, L.P., and Today Six Flags GP, Inc. and a declaratory judgment regarding security
agreements securing those notes. They requested a judgment holding Brauss, Martin, TRA, and
other Brauss entities jointly and severally liable for those claims under theories of fraud,
conspiracy, alter ego and piercing the corporate veil. They also alleged claims for fraudulent
transfers and securities fraud. And they argued the trial court had to determine the percentage of
responsibility of certain partnerships under chapter 33 of the civil practice and remedies code.
See TEX. CIV. PRAC. & REM. CODE ANN. § 33.003 (West 2008).
In response to the Horseshoe Appellants’ supplemental brief as to mootness, the Song-
Winkler Appellants filed a brief attaching a sworn copy of an agreed final judgment in their
separate lawsuit against CDB Holdings, L.P. and CDBGP-1, LLC. Pursuant to that agreed
judgment, the Song-Winkler Appellants were awarded judgment on the promissory notes on
which they sought judgment in their plea in intervention in this suit. As part of that agreed final
judgment, the Song-Winkler Appellants agreed never to pursue any claim or judgment against
Martin arising out of her ownership CDB Holdings, L.P. or CDBGP-1, LLC.19
The Song-Winkler Appellants also attached sworn copies of a settlement agreement and
an agreed order of dismissal with prejudice in another lawsuit filed by the Song-Winkler
19
The Song-Winkler Appellants did reserve the right to pursue an in rem action against Martin to recover
any property transferred in violation of the fraudulent transfer statues.
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Appellants against Today Six Flags GP, Inc., and others. The settlement agreement recites that
the Song-Winkler Appellants brought claims against the defendants for securities fraud,
conspiracy, fraud, statutory fraud, and claims against Today Texas Fund 2, L.P. for recovery on
certain promissory notes. The settlement agreement provided for a release by the Song-Winkler
Appellants of all existing claims, liabilities, and causes of action of any kind whatsoever against
the defendants, including Today Six Flags, L.P., Today Texas Fund 2, L.P., and the receiver.
The order of dismissal dismissed with prejudice all claims brought by the parties.
The Song-Winkler Appellants sought to intervene in this lawsuit to obtain a judgment
against the makers of certain promissory notes. They have in a separate proceeding obtained that
judgment against CDB Holdings, Inc. and their claim against Today Texas Fund 2, L.P. has been
settled and the lawsuit dismissed with prejudice. Clearly the Song-Winkler Appellants’ appeal
of the order striking their intervention seeking a judgment on these promissory notes is now
moot. See Trulock, 277 S.W.3d at 924.
2. Abuse of Discretion
To the extent the Song-Winkler Appellants’ other claims seeking to extend liability on
the notes to other parties are not moot, we cannot say the trial court abused its discretion by
striking the Song-Winkler Appellants’ intervention.
We review the ruling on a motion to strike a plea in intervention for an abuse of
discretion. See Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.
1990). A trial court abuses its discretion if it acts without reference to any guiding rules and
principles, or acts in an arbitrary and unreasonable fashion. Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Rule 60 permits any party with a justiciable interest
in a pending lawsuit to intervene in the suit, subject to being stricken upon the motion of another
party. See TEX. R. CIV. P. 60; In re Union Carbide Corp., 273 S.W.3d 152, 154–55 (Tex. 2008)
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(per curiam); Guar. Fed. Sav. Bank, 793 S.W.2d at 657. The “justiciable interest” requirement is
“of paramount importance: it defines the category of non-parties who may, without consultation
with or permission from the original parties or the court, interject their interests into a pending
suit to which the intervenors have not been invited.” Union Carbide, 273 S.W.3d at 155. Once a
motion to strike is filed, the intervenors have the burden to show a justiciable interest in the
pending suit. Id.
As creditors holding notes made by CDB Holdings and Today Texas Fund 2, the Song-
Winkler Appellants did not show they could have brought the same claim for fraud, alter ego,
and breach of fiduciary duty as the Horseshoe Appellants. The Horseshoe Appellants did not
bring any claims on the Song-Winkler Appellants promissory notes and all of the Song-Winkler
Appellants’ causes of action arise out of those promissory notes. The Song-Winkler Appellants
have not shown they had a justiciable interest in this lawsuit. See Union Carbide, 273 S.W.3d at
155.
Moreover, the trial court was within its discretion to conclude that the intervention would
have unnecessarily complicated the issues and that the Song-Winkler Appellants could protect
their interests through other means. See Guar. Fed. Sav. Bank, 793 S.W.2d at 657. For example,
the Song-Winkler Appellants sought to interject new and unique claims into a massively
complex case. The Song-Winkler Appellants alleged a claim against Brauss and Martin for
fraudulent transfer based on the settlement agreement with the Horseshoe Appellants.
Obviously, this was not a claim that had been brought by the Horseshoe Appellants. The Song-
Winkler Appellants also brought claims for securities fraud. No other party had asserted claims
for securities fraud in this litigation.
The Song-Winkler Appellants have not shown the trial court abused its discretion by
striking their intervention. Accordingly, we overrule the Song-Winkler Appellants’ three issues.
–21–
CONCLUSION
For the reasons discussed herein, we reverse that part of the trial court’s judgment
awarding the Nixdorf Appellants damages jointly and severally against Martin. We render
judgment that the Nixdorf Appellants take nothing against Martin.
In all other respects, we affirm the trial court’s judgment.
/JimMoseley/
JIM MOSELEY
JUSTICE
110271F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
W. ERIC BRAUSS; CHRISTINE MARTIN; On Appeal from the 116th Judicial District
TEXAS HORSESHOE; DROEGE Court, Dallas County, Texas
INVESTMENT GBR; WOLF Trial Court Cause No. DC-09-16465.
HEIMERDINGER; SANDY MARKS; T.H. Opinion delivered by Justice Moseley.
SONG-WINKLER; MICHELE ROELCKE; Justices Fillmore and Myers participating.
AND SUSAN BRAUSS, Appellants
No. 05-11-00271-CV V.
TRIPLE M HOLDING GMBH; 2 M
GMBH; FRN PRODUCT MARKETING
GMBH; ASN IMMOBILIEN GMBH;
RENATE NIXDORF GMBH & CO. KG;
MICHAEL NIXDORF VERWALTUNGS
GMBH; SDI, INC.; SDI GRAND
CAYMAN, L.L.C.; SGC MANAGEMENT,
L.L.C.; SDI PARADISE ISLAND, L.L.C.;
SPI MANAGEMENT, L.L.C.; NDF/TRA
GRAND CAYMAN, L.P.; WATERCREST
PARTNERS, L.P.; AND RMB
INVESTMENTS, INC., Appellees
In accordance with this Court’s opinion of this date, that portion of the trial court’s final
judgment awarding damages to the Nixdorf Parties against Christine Brauss (now Christine
Martin), jointly and severally (page 26 of the final judgment), is REVERSED and judgment is
RENDERED that the Nixdorf Parties take nothing against Christine Brauss (now Christine
Martin).
In all other respects, the trial court’s final judgment is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
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Judgment entered this 13th day of August, 2013.
/Jim Moseley/
JIM MOSELEY
JUSTICE
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