DAP Financial Services, Inc. v. Temple Western Hills, Inc. and Dell Martin ( 1995 )

DAP TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00488-CV



DAP Financial Services, Inc., Appellant

v.

Temple Western Hills, Inc. and Dell Martin, Appellees



FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 143,385-B, HONORABLE RICK MORRIS, JUDGE PRESIDING

DAP Financial Services sued Temple Western Hills, Inc. and Dell Martin for the deficiency balance after foreclosure on a real estate lien note. DAP sought recovery from Martin under a personal guaranty agreement securing the note. Martin raised the affirmative defense of fraud in the procurement of the guaranty. Upon the jury's finding that Martin's signature on the personal guaranty had been fraudulently obtained, the trial court rendered a judgment in favor of DAP against Temple Western Hills and a take-nothing judgment in favor of Martin. DAP appeals the take-nothing judgment in favor of Martin, alleging that the evidence is factually insufficient to support the jury's finding that Martin's signature was fraudulently procured. We will affirm the trial court's judgment.

BACKGROUND

On May 31, 1989, Texas American Bank (the "Bank") sold Temple Western Hills two tracts of land from the Bank's inventory of foreclosed properties. As president and sole stockholder of Temple Western Hills, Martin executed a real estate lien note secured by a deed of trust in connection with the sale. Temple Western Hills is listed as the maker on the note and the grantor on the deed of trust.

During this same transaction, Martin allegedly signed a personal guaranty agreement on the note. The guaranty is similar in form to the note and deed of trust: "Temple Western Hills, Inc." appears at the top and the signature line was prepared for Martin's signature. However, the signature line was not prepared for Martin's signature as president of the company; the agreement identifies Temple Western Hills as the customer, with Martin's signature rendering him liable in his personal capacity as guarantor. Martin testified that the signature appears to be his, but denied seeing the guaranty agreement among the three or four documents he signed that day and testified that he would not have signed the agreement had he seen it. Although he is an experienced businessman and has served as a director of another bank in Temple, Martin admitted he did not read any of the documents he signed. Martin's files regarding this transaction do not contain a copy of the guaranty agreement.

Martin claimed that the Bank's officer who negotiated the transaction, Jim Cockrell, and the entire Temple banking community knew that Martin never personally guaranteed notes for Temple Western Hills. ⁽¹⁾ Martin had known Cockrell for three or four years before the transaction and considered Cockrell a friend. Martin and Cockrell had previously negotiated many notes, deeds, and real estate transactions together.

As additional evidence that the guaranty may not have been among the documents Cockrell presented for his signature, Martin observed that on both the original note and deed of trust the typed date of March 31, 1989 had been changed to May 31, 1989, requiring Martin to initial these changes. The guaranty contains no written changes and bears the date May 31, 1989. Martin testified that his address on the guaranty agreement is incorrect and that he would have corrected the error had he noticed it. The Bank produced from its file a copy of Martin's personal financial statement dated March 31, 1989. Martin admitted that he provided the financial statement, but indicated that he might have given the statement in connection with another transaction.

Shortly after this transaction, the Bank was declared insolvent and its assets seized by the Federal Deposit Insurance Corporation ("FDIC"). When Temple Western Hills defaulted on the loan, the FDIC foreclosed on the property securing the note. DAP subsequently purchased the note and the personal guaranty and attempted to collect the deficiency sum. Cockrell died a year and a half before the trial, leaving only Martin to testify regarding their transaction on May 31, 1989.

DISCUSSION

DAP alleges that the evidence is factually insufficient to support the jury's finding that the Bank's officers defrauded Martin. The jury answered "yes" to the following question:

Did Texas American Bank officials commit fraud against Dell Martin in procuring his signature on the personal guarantee without Dell Martin's knowledge of its true meaning or contents nor the reasonable opportunity to obtain knowledge of its character or its essential terms?

When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986). See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991). The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony; a reviewing court cannot substitute its opinion for that of the trier of fact. Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 271 (Tex. App.--Houston [1st Dist.] 1991, writ denied). We may not reverse merely because we conclude the evidence preponderates toward a particular answer; rather, reversal is warranted only when the great weight of the evidence requires a particular answer. Dellana v. Walker, 866 S.W.2d 355, 359 (Tex. App.--Austin 1993, writ denied).

Because Martin alleged that the Bank fraudulently secured the personal guaranty as an affirmative defense to DAP's claim, Martin had the burden of proof at trial. Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 805 (Tex. App.--Houston [1st Dist.] 1987, writ ref'd n.r.e). The elements of fraud are: (1) that a material representation was made; (2) that the representation was false; (3) that the speaker made it knowing it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) that the speaker made it with the intention that it be acted upon by the party; (5) that the party acted in reliance upon it; (6) that the party thereby suffered injury. Stone v. Lawyers Title Ins. Co., 554 S.W.2d 183, 185 (Tex. 1977). The element at issue in Martin's case is whether a false material representation was made. The jury charge and the evidence introduced at trial support two possible theories of fraud by the Bank: (1) Cockrell's silence constituted fraud because he owed Martin a duty to inform him that he was signing a personal guarantee; or (2) Cockrell did not present the personal guaranty to Martin along with the other documents on May 31, 1989.

When the circumstances impose a duty to speak and a person deliberately remains silent, silence is equivalent to a false representation. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986); Chase Commercial Co. v. Datapoint Corp., 774 S.W.2d 359, 366 (Tex. App.--Dallas 1989, no writ). The existence of either a fiduciary or confidential relationship imposes a duty upon one party to disclose material facts to the other. Stephanz v. Laird, 846 S.W.2d 895, 904 (Tex. App.--Houston [1st Dist.] 1993, writ denied). A confidential relationship may arise not only from a technical fiduciary relationship but also from an informal relationship in which one person trusts in and relies upon another, whether the relationship is social, domestic, or purely personal. Page Airways Inc. v. Associated Radio Serv. Co., 545 S.W.2d 184, 193 (Tex. Civ. App.--San Antonio 1977, writ ref'd n.r.e.). The existence of a fiduciary or confidential relationship is a question of fact. Id. at 192; Adickes v. Andreoli, 600 S.W.2d 939, 946 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ dism'd).

Martin testified that he and Cockrell were friends, that they had transacted business together before, and that Cockrell and other officers of the Bank knew that Martin never personally guaranteed notes for Temple Western Hills. Based upon this relationship and Cockrell's knowledge of Martin's adamant policy against personally securing notes, the evidence supports the jury's finding of fraud. Although an on-going, arms-length business relationship does not usually create a confidential relationship, see Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1963), the existence of a confidential relationship is a question for the trier of fact. Adickes, 600 S.W.2d at 946; Page Airways Inc., 545 S.W.2d at 192. Moreover, DAP failed to object to the court's charge or request a definition of fraud or of confidential relationship. The failure to object to the lack of definitions or explanatory instructions waives any error. Tex. R. Civ. P. 278; City of Austin v. Hoffman, 379 S.W.2d 103, 110 (Tex. Civ. App.--Austin 1964, writ dism'd by agr.).

DAP argues that Martin would have discovered the existence of the guaranty if he had read the documents. However, if the Bank owed Martin a duty to disclose the existence of the personal guaranty, this fact will not defeat a finding of fraud. A person committing a fraud cannot defeat the claim based on a plea that the party defrauded might have discovered the truth by the exercise of proper care. Isenhower v. Bell, 365 S.W.2d 354, 357 (Tex. 1963).

The jury's affirmative answer to the question of fraud could also be founded on its belief that the Bank did not present Martin the guaranty on May 31, 1989, when he signed the note and deed of trust. Concealment of a document may constitute fraud. See Deep Oil Dev. Co. v. Cox, 224 S.W.2d 312, 318 (Tex. Civ. App.--Fort Worth 1949, writ ref'd n.r.e.); see also Commercial Jewelry Co. v. Braczyk, 277 S.W. 754, 755 (Tex. Civ. App.--Waco 1925, no writ).

The evidence established that the date on the guaranty agreement was inconsistent with the original date on the other two documents, suggesting that it was prepared later. Martin's address on the guaranty was incorrect, and Martin testified that he would have changed the mistake had he seen it. Although admitting that the signature on the document appeared to be his, Martin testified that did not see the guaranty the day he signed the note and deed of trust. Martin's file did not contain a copy of the guaranty agreement. Although the bank had obtained a copy of Martin's personal financial statement on March 31, 1989, it did not have a statement dated May 31, 1989.

Because of Cockrell's death, Martin's testimony regarding his transaction with the Bank is uncontroverted. DAP presented no evidence that the Bank regularly required personal guaranties or that it would not have agreed to the transaction absent the guaranty. There is sufficient evidence to support the jury's finding that Martin's signature was fraudulently procured either by Cockrell's silence or by concealment of the document. Concluding that the jury's finding of fraud is not so contrary to the evidence presented as to require a reversal, we overrule DAP's point of error and affirm the judgment of the trial court.

Bea Ann Smith, Justice

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: March 29, 1995

Do Not Publish

1. ¹  Evidence was introduced that Martin had personally guaranteed a note payable to NCNB Texas Bank on August 4, 1989. Martin explained at trial that this personal guaranty was temporary and not related to Temple Western Hills.