Rickey Fontenot v. Land America Commonwealth Title of Houston, Inc. ( 2014 )

Opinion issued August 28, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00506-CV
———————————
RICKEY FONTENOT, Appellant
V.
LAND AMERICA COMMONWEALTH TITLE OF HOUSTON, INC.,
Appellee
On Appeal from the 253rd District Court
Chambers County, Texas
Trial Court Case No. 25162
MEMORANDUM OPINION
This appeal arises from a dispute over a sale of land. Rickey Fontenot, the
seller, appeals an adverse jury verdict on his causes of action for fraud and breach
of fiduciary duty against the title company, Land America Commonwealth Title of
Houston, Inc. In three issues, Fontenot challenges the sufficiency of the evidence
to support the jury’s verdict, and in a fourth issue he challenges the trial court’s
decision to overrule his motion for new trial, which was also based on the
sufficiency of the evidence.
We affirm.
Background
Rickey Fontenot owned approximately 141 acres of land in Chambers
County. John Kelly was the managing partner of the Maverick Group, LLP, and he
was the sole manager of Summerfield Partners, GP, LLC, which was the general
partner of Summerfield Partners. In November 2005, Kelly approached Fontenot
about purchasing the property in Chambers County. Fontenot understood that
Kelly was in the business of creating residential developments and that he intended
to develop this property for such use. On January 5, 2006, Fontenot entered into an
“Unimproved Property Contract” for the purchase of the land by “Maverick Group,
LLP or Assigns.”
This contract was prepared on a form promulgated by the Texas Real Estate
Commission. It provided for the sale of approximately 138 of Fontenot’s 141 acres
for a total sales price of $2,070,000, with $500,000 payable in cash at the closing,
and with seller financing as evidenced by a promissory note in the amount of
$1,570,000 (the non-cash portion of the sales price), “secured by vendor’s and
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deed of trust liens, and containing the terms and conditions described in the
attached TREC Seller Financing Addendum.” The contract provided that “Seller
shall furnish to Buyer at . . . Buyer’s expense an owner policy of title insurance . . .
issued by LandAmerica Commonwealth Title, San Felipe Houston,” and that “[i]f
an owner policy of title insurance is furnished, Buyer shall furnish Seller with a
mortgagee policy of title insurance.” It also included certain “special provisions”
that were handwritten into the contract, including that “Seller agrees to subordinate
entire 141± acres as collateral (security) to lender.” The buyer’s lender ultimately
was International Bank of Commerce (IBC). The form contract’s final paragraph
stated, “READ THIS CONTRACT CAREFULLY. If you do not understand the
effect of this contract, consult an attorney BEFORE signing.” Fontenot and Kelly
initialed each page and signed the last page of the contract. Kelly signed on behalf
of Maverick Group, indicating that its attorney was Keith Lain. No name was listed
in a blank provided on the form for identification of the seller’s attorney.
The parties amended the contract in August 2006, but the special provision
whereby Fontenot agreed “to subordinate the entire 141 acres as collateral
(security) to lender” was unchanged. The Maverick Group paid Fontenot $100,000
as partial payment for the land purchase, and then it assigned the contract to
Summerfield Partners.
3
The parties went to closing on November 8, 2006. That day, there was a
discussion regarding amending the agreement to convey the entire 141 acres of
Fontenot’s land. Fontenot did not want to sell the entire tract: he testified that he
wished to retain approximately 5 acres of highway frontage on the Kilgore
Parkway, a road that was under construction. He testified that Kelly and his
business partner “kept trying to force” him to “subordinate the whole 141 acres.”
They told him that the frontage would eventually be worth nearly $200,000 an
acre. In exchange for Fontenot’s agreement to convey the entire tract of land,
Summerfield Partners, as buyer, increased the purchase price by $75,000 and
agreed to sell the five acres fronting on the Kilgore Parkway back to Fontenot for
$10.00 after repayment of the IBC loan. Fontenot later testified that an employee
of Land America praised him on his “good haggling” in negotiating this deal.
Fontenot agreed to this modification of their agreement and to allow Keith Lain,
the attorney who represented Summerfield Partners, to draft an amendment
reflecting this new agreement. Fontenot, Kelly, and others left for lunch, while
Lain prepared the paperwork needed for the closing.
The “Amendment to Earnest Money Contract” that Lain drafted specified
that Fontenot’s lien would be subordinated to a lien given by the buyer’s lender,
and that the proceeds of the bank loan would be used to purchase the property:
As security for the Note, Buyer will give Seller a deed of trust secured
by the Property, the lien of which deed of trust will be subordinated to
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the lien of the deed of trust which Buyer has given to International
Bank of Commerce to secure a loan (the “Bank Loan”) for the
purchase of the Property.
Lain also drafted a deed of trust, which he later admitted mistakenly failed to
include both Fontenot’s name and the amount of the indebtedness owed by
Summerfield Partners. But he explained that the deed of trust was not ineffective,
saying that it nevertheless “impressed a lien against this piece of property” because
it referenced the promissory note which identified Fontenot, the money owed, and
the same piece of property as described in the deed of trust, and because both the
deed of trust and promissory note bore the same general file number. Like the
original contract and two amendments, the deed of trust stated that Fontenot had a
second lien, which was subordinated to the bank’s first lien. Lain named himself as
trustee of the deed of trust as a matter of convenience and in accordance with
industry custom, but the deed of trust gave Fontenot the right to change the trustee
at any time.
Fontenot testified that he felt rushed during the closing:
All the paperwork was just—came back and was stretched out on the
table and, you know, after everybody got settled down it was—she—
one of the ladies up at the title company just started saying, well, this
is your deed of trust. This is this. This is the real estate lien, and this
and that, which some of the paperwork I didn’t have to sign. But
[Kelly] and [Kelly’s partner] were sitting right across from me and
whatever I had to sign, well, she explained me just briefly what it was.
And, you know, you just had—you have to glance at it pretty quick
because they were ready to pick that paper up and pass you another
paper. And John was in somewhat of a hurry because he had a
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Pearland subdivision that he had to go check on. And then he had an
airplane that was sitting waiting at Hobby Airport to take him back to
Baton Rouge. So by 1:30 we were all gone.
Fontenot signed the documents at closing without reading them, including the
contract amendment, even though he knew it was imprudent and unreasonable to
do so. He testified that he had misgivings during the closing but did not stop the
proceedings to ask questions. For example, he testified that he was not given an
opportunity to read the papers at closing because Kelly kept telling him he was
running late. Though he said he felt that he was forced to close the deal, Fontenot
acknowledged that nobody physically forced him, and that he had the power to
stop the closing.
As to whether the title company, Land America, pressured him into
proceeding with the closing, he said that there were not “any words spoken” but
that “the appearance of them” indicated to him that they “were behind” Kelly. He
also testified that his communications with Land America were limited to the
comment that he did some “good haggling,” exchanging greetings, and
communications during the closing in which the escrow agent identified the
documents and pointed where to sign. He did not ask anyone at Land America if he
could read the documents. Fontenot lamented, “I thought I was dealing with honest
people.”
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But Fontenot had done no due diligence, aside from “word of mouth,”
before entering into or closing this transaction. He did not: investigate Kelly; ask
for financial information from Kelly, the Maverick Group, or Summerfield
Partners; secure a promise that the purchaser would in fact develop the land or a
personal guarantee for the indebtedness; or review a budget or loan documents
between Summerfield Partners and the bank.
Summerfield Partners ultimately defaulted on the bank loan, and in
December 2008 it filed for bankruptcy. Fontenot filed suit against Kelly and a
separate suit against IBC and the bankruptcy trustee. IBC sued Kelly. Summerfield
Partners and Fontenot filed adversary proceedings against each other in the
bankruptcy litigation. As a result of proceedings in the bankruptcy court, IBC,
Fontenot, and Kelly entered into a “Compromise Settlement and Release
Agreement.” Among other things, IBC agreed not to foreclose on the property for a
period of 20 months, during which time Summerfield Partners and then Fontenot
could seek a purchaser. In addition, Fontenot’s deed of trust was reformed to
include the information that previously had been omitted. Neither Summerfield
Partners nor Fontenot found a buyer for the property, and IBC later foreclosed.
When the property was sold at a foreclosure sale, the proceeds fell short of the
money owed to IBC by approximately $100,000.
7
Fontenot sued Land America and Lain, alleging causes of action including
breach of fiduciary duty, fraud, and conspiracy. At trial Fontenot contended that he
had been harmed by nondisclosure of the “true facts” of the transaction prior to the
closing. For example, he said that if he had known that the $1,450,000 loan from
the bank was not going to be used to develop the property, he “would have never
subordinated it to the bank.” He said that Kelly never told him that he would be
getting a “bank loan” in connection with the purchase of the property. Rather,
Fontenot testified that Kelly always represented that he would be getting a
“development loan,” and that as early as 2006, Kelly had shown him plans for the
subdivision he allegedly intended to build. Fontenot said he was deceived into
signing the closing papers on the basis that the bank loan would be specifically for
development of the property.
In addition, Fontenot contended that nobody told him that the deed of trust
prepared by Lain was “incorrect” and did not reserve a “vendor’s lien.” He
testified that he was harmed by the omission of certain information from the deed
of trust. He testified that he was damaged as a result of not obtaining a valid lien or
title insurance. He requested approximately $2,000,000 in damages.
However, Fontenot acknowledged that Land America had nothing to do with
his decision to enter into the contracts with Maverick Group or Summerfield
Partners. Though he did not read the documents at closing, he knew that he was
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selling the full 141 acres of land in Chambers County and that his security would
be subordinate to the bank’s. In fact, he testified multiple times that he knew as
early as January 2006 that the agreement was for his lien to be subordinate to a
bank lien and that he understood what that meant: that is, if Summerfield Partners
defaulted, the bank would foreclose and he could be left without recourse. He
conceded that if he had read the deed of trust at closing he would have seen that his
name and the amount of the Summerfield Partners note were omitted and that he
was entitled to appoint a new trustee.
At trial, Everett Williams testified on Fontenot’s behalf as an expert on title
insurance and real estate law. He testified that the deed of trust was defective
because it did not reserve a vendor’s lien as provided by the pre-printed general
provisions of the parties’ contract and that Land America had a duty to provide
Fontenot with a mortgagee’s policy of title insurance. He also opined that everyone
other than Fontenot understood the true nature of the transaction as it actually
closed:
I think that there’s no question that everybody in the room knew that
Fontenot was—had relied on the promise of the buyer that the loan
would be a development loan. That’s my opinion. And I think that
everybody in the room knew that that wasn’t the way the deal was
being closed.
Williams also testified that it was not the job of an escrow agent to comment
on the source of funds delivered to the seller at closing, that Land America had no
9
obligation to inform Fontenot that the $398,000 he received at closing came from
the bank loan, and that a title company cannot advise a party regarding the contents
of a document. He also acknowledged that Fontenot bargained for a second-lien
position and that he was damaged as a result of IBC’s foreclosure. He testified that
if Kelly and Summerfield Partners had either developed the property or paid its
debt to Fontenot, Fontenot would not have suffered damages. He explained that if
Fontenot had been able to foreclose before IBC, he would have retaken the
property subject to IBC’s lien.
On cross-examination, Williams testified that Land America was not a party
to the contract that formed the basis of this transaction, and he was aware of no
evidence that it had made any representations to Fontenot or intended to defraud
him. With respect to the deed of trust and contract amendment, Williams said that
Fontenot had all the information he needed before him, but he did not read it. As to
the title insurance, Williams testified that Fontenot could have, but did not provide
any instructions to Land America with regard to closing, including requesting
issuance of a mortgagee’s title insurance policy.
John Bushnell Nielson, author of Title and Escrow Claims Guide, testified
on behalf of Land America as an expert in real estate and escrow. He testified that
an escrow officer should identify the documents at closing, invite the party to read
them, and show the party where to sign, but not go further and comment on the
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merits of the parties’ agreement or identify certain information as particularly
important. He testified that Land America did not act improperly by not speaking
about whether the bank loan would be used for development. He said:
It is my opinion as an expert witness, to a reasonable degree of
certainty, based on my experience in this business, that the decision
not to give that kind of information or advice to Mr. Fontenot was
correct and was the industry standard, and the giving of such advice
would have been wrong according to the industry standards and the
way it understands the fiduciary duties that it has.
He also testified that Fontenot’s failure to receive a mortgagee’s title insurance
policy had no effect on him because the deed of trust was always valid and
enforceable. He testified that Fontenot did not receive a title insurance policy
because he never requested one and that he saw nothing wrong in the closing.
Lain denied that any act or omission on his part harmed Fontenot. He
explained that that even if he had not omitted Fontenot’s name or the amount of the
indebtedness on the deed of trust, he would have been in no better position: his lien
would still have been secondary to IBC’s, he would not have been entitled to return
of the property, and he would not have received full payment from Summerfield
Partners. He further testified that it was the bank’s foreclosure and sale of the
property for less than the amount owed that “extinguished” Fontenot’s lien against
the property.
Gerald Mark Creighton, a licensed escrow officer, testified as an expert
witness on behalf of Lain. He testified that despite the omissions of Fontenot’s
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name and the amount of the indebtedness, the deed of trust prepared by Lain
created a valid lien because it identified the property and mortgagor, and it was
signed and recorded. He testified that Lain did not act improperly in naming
himself as trustee, and that Fontenot’s damages were caused by his initial
agreement to subordinate his lien.
At trial, the defendants twice moved for directed verdict, which the trial
court denied. The case was submitted to the jury on theories of breach of fiduciary
duty, fraud, and conspiracy. As to Lain, the breach of fiduciary duty question was
predicated on the jury’s answer to a question that asked if he was Fontenot’s
attorney. The jury found in favor of the defendants on all questions, and Fontenot
moved for a new trial arguing that the evidence was insufficient to support the
verdict. The trial court denied Fontenot’s motion for new trial and rendered
judgment that he take nothing by way of his lawsuit. Fontenot appealed.
Analysis
I. Fiduciary duty
In his first issue, Fontenot challenges the legal and factual sufficiency of the
evidence to support the jury’s verdict that Land America did not proximately cause
him harm by breaching a fiduciary duty.
When an appellant challenges the legal sufficiency of the evidence
supporting an adverse finding on an issue as to which he had the burden of proof,
12
he must show that the evidence establishes, as a matter of law, all vital facts in
support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001)
(per curiam). We first examine the record for evidence supporting the finding, and
we next examine the entire record to determine if the contrary proposition is
established as a matter of law. Id. We sustain the issue only if the contrary position
is conclusively established. Id. “When a party attacks the factual sufficiency of an
adverse finding on an issue on which he has the burden of proof, he must
demonstrate on appeal that the adverse finding is against the great weight and
preponderance of the evidence.” Id. at 242. A “court of appeals must consider and
weigh all of the evidence, and can set aside a verdict 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.” Id.
The fact-finder is the sole judge of the witnesses’ credibility and the weight
to be given their testimony, and the fact-finder may choose to believe one witness
and disbelieve another. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
We assume that the fact-finder resolved all evidentiary conflicts in accordance with
its decision if a reasonable person could have done so. See id. An appellate court
may not impose its own opinion contrary to the fact-finder’s implicit credibility
determinations. Id.
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The gravamen of Fontenot’s theory of the case against Land America, the
title company, is that it failed to explain the substance of the deal that was closed
on November 8, 2006. He contends that the escrow officers understood, but failed
to explain to him, that the bank loan to Summerfield Partners was not restricted for
use only to develop the land. He argues that as a fiduciary, Land America had a
duty to explain the nature of the transaction, and it failed to do so. He further
contends that Land America also should have told him: the deed of trust was
defective because his name was not listed therein; he did not get a vendor’s lien in
the deed of trust; the escrow agents did not read the entirety of the closing
document; the $500,000 cash portion of the sales price for his property was
withdrawn from “his” improvement loan; he was not receiving valid liens; and he
was not named as the beneficiary in the deed of trust. In addition, he faults Land
America for not providing him with a mortgagee policy of title insurance.
Because Fontenot did not object to the court’s charge, we measure the
sufficiency of the evidence against that standard. Osterberg v. Peca, 12 S.W.3d 31,
55 (Tex. 2000). With respect to fiduciary duty, the charge asked:
Did the breach of fiduciary duty, if any, of those named below
proximately cause harm to Fontenot?
To prove that Land America breached a fiduciary duty to Fontenot,
Fontenot must prove that:
1. The transaction in question was not fair and equitable to
Fontenot;
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2. Land America failed to make reasonable use of the
confidence that Fontenot placed in it;
3. Land America failed to act in the utmost good faith or
exercise the most scrupulous honesty toward Fontenot;
4. Land America failed to place the interests of Fontenot
before its own, used the advantage of its position to gain
a benefit for itself at the expense of Fontenot, or placed
itself in a position where its self-interest might conflict
with its obligations as a fiduciary; or
5. Land America failed to fully and fairly disclose all
important information to Fontenot concerning the
transaction in question.
Fontenot’s appellate argument focuses on the five alternative theories of a breach
of fiduciary duty that were identified in the court’s charge. However, the jury
question did not merely ask if Land America breached a fiduciary duty: it
specifically asked whether the breach of fiduciary duty, if any, harmed Fontenot.
The evidence at trial did not establish the element of causation. For example,
Fontenot said he felt pressured by Kelly to renegotiate the sale on the day of
closing to include the full tract of land. But he also testified that Land America did
not exert any such pressure on him. Fontenot testified that he believed he was
misled and harmed because Kelly had represented to him that he would use the
funds from a bank loan to develop the property and later return the highway
frontage to him, after it increased in value. But there was no evidence that Land
America played any role whatsoever in those representations. In fact, Fontenot
15
testified that aside from a few casual pleasantries, the only communication he had
with anyone from Land America consisted of the words spoken during closing
when the escrow agent identified the closing documents for him.
Fontenot testified that he entered into the contract without performing any
due diligence about the buyer except for “word of mouth,” and that he signed the
closing papers without reading them. Texas law has long held that a party who
signs a contract is presumed to have read it and understood it unless he was
prevented from doing so by fraud. See, e.g., In re Int’l Profit Assocs., Inc., 286
S.W.3d 921, 923 (Tex. 2009) (holding that party who signs document is presumed
to know its contents); Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex.
1996) (same); Indem. Ins. Co. of N. Am. v. W. L. Macatee & Sons, 101 S.W.2d
553, 556 (Tex. 1937); Womack v. W. Union Tel. Co., 58 Tex. 176, 179 (1882)
(“The sound and practical rule of law in such cases is, that, in the absence of fraud
or imposition, a party to a contract, which has been voluntarily signed and
executed by him, with full opportunity for information as to its contents, cannot
avoid it on the ground of his own negligence or omission to read it.”). Fontenot
testified that Land America had nothing to do with his decision to enter into the
original contract with the Maverick Group, as buyer, or the amended contract with
Summerfield Partners.
16
Fontenot also testified multiple times that from the inception of his deal with
Kelly, beginning in January 2006, he understood his lien would be inferior to a lien
to be held by a bank lender, and that if the buyer defaulted and the bank foreclosed,
he could have no recourse. Under well-established Texas law, “if, after a valid
foreclosure of a senior lien, a junior lien is not satisfied from the proceeds of a sale,
then the junior lien is extinguished.” Kothari v. Oyervidez, 373 S.W.3d 801, 807
(Tex. App.—Houston [1st Dist.] 2012, pet. denied); accord Diversified Mortg.
Investors v. Lloyd D. Blaylock Gen. Contractor, Inc., 576 S.W.2d 794, 808 (Tex.
1978); Nat’l W. Life Ins. Co. v. Acreman, 425 S.W.2d 815, 817 (Tex. 1968); Jones
v. Bank United of Tex., FSB, 51 S.W.3d 341, 344 (Tex. App.—Houston [1st Dist.]
2001, pet. denied).
Fontenot’s own expert witness, Williams, testified that Fontenot was injured
as a result of IBC’s foreclosure of its lien, and that had Summerfield Partners either
developed the land or paid the bank loan, he would not have been harmed. Lain’s
expert, Creighton, similarly testified that it was Fontenot’s original agreement to
subrogate his lien and IBC’s later foreclosure that caused his damages.
Accordingly, we conclude that the evidence does not conclusively establish that a
breach of fiduciary duty by Land America, if any, caused Fontenot harm or that the
jury’s verdict in that regard is so against the great weight and preponderance of the
17
evidence that it is clearly wrong and unjust. See Francis, 46 S.W.3d at 241–42. We
overrule Fontenot’s first issue.
II. Fraud
In his second issue, Fontenot contends that there is no evidence or
insufficient evidence to support the jury’s negative answer to the fraud question,
which asked “did the fraud, if any” of Land America “proximately cause harm” to
him. In his brief, Fontenot argues that whether an act of fraud has been committed
is a question of law for the court. His brief provides a single citation to the record,
referencing the entirety of his motion for new trial and quoting Bradford v. Vento,
48 S.W.3d 749 (Tex. 2001), which was cited therein. Appellant’s Br. 27–28. In his
motion for new trial, Fontenot relied on Bradford for the proposition that, in the
context of a claim for fraud based on a party’s failure to disclose a material fact,
the existence of a duty to speak is a question of law. See Bradford, 48 S.W.3d at
755; Appellant’s Br. 27–28. We have already explained that the gravamen of
Fontenot’s case against the title company is that Land America failed to explain the
substance of his underlying transaction with Summerfield Partners. However,
under Texas law, Land America had no obligation to do so. See Home Loan Corp.
v. Tex. Am. Title Co., 191 S.W.3d 728, 733 (Tex. App.—Houston [14th Dist.]
2006, pet. denied); Shoalmire v. U.S. Title of Harrison Cnty., No. 06-09-00034-
18
CV, 2010 WL 271302, at *5 (Tex. App.—Texarkana Jan. 26, 2010, no pet.) (mem.
op.).
Fontenot further states that he “submits that this Court has the power and
authority to determine from the facts presented whether or not fraud by non-
disclosure by Appellee, LAND AMERICA, has been committed,” reasoning that
“[s]uch a finding by this Court from the record would not invade the province of
the jury verdict.” Appellant’s Br. 28. His reply brief adds little more. Appellant’s
Reply Br. 17–19. In it, he reiterates his contention that the question of whether
fraud has been committed is a legal inquiry, not a factual one. Id. at 17–18. He
renews his request “that this Court review the record and determine as a matter of
law that Appellee, LAND AMERICA owed a duty to Appellant, FONTENOT as a
matter of law and fraudulently breached this duty in remaining silent when it had a
duty to speak.”
The Rules of Appellate Procedure require the appellant’s brief to contain “a
clear and concise argument for the contentions made, with appropriate citations to
authorities and the record.” TEX. R. APP. P. 38.1(i). We interpret this requirement
reasonably and liberally. See Republic Underwriters Ins. Co. v. Mex-Tex., Inc., 150
S.W.3d 423, 427 (Tex. 2004) (citing Verburgt v. Dorner, 959 S.W.2d 615, 616–17
(Tex. 1997)). “Nonetheless, parties asserting error on appeal still must put forth
some specific argument and analysis showing that the record and the law supports
19
their contentions.” San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). “Additionally, appellate courts are not
required to sift through the record without guidance from the party to find support
for a party’s bare assertion of error.” Crider v. Crider, No. 01-10-00268-CV, 2011
WL 2651794, at *5 (Tex. App.—Houston [1st Dist.] July 7, 2011, pet. denied)
(mem. op.); see Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex. App.—Houston
[14th Dist.] 2002, no pet.) (“This Court has no duty to search a voluminous record
without guidance from Nguyen to determine whether an assertion of reversible
error is valid.”). “[E]rror may be waived by inadequate briefing.” Fredonia State
Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994).
Fontenot’s brief does not contain a clear or concise basis for his contention
that the record would show as a matter of law that Land America committed fraud
against him or that the great weight and preponderance of the evidence would
compel such a conclusion. Rather than providing citations to the record or
supporting authority, he requests that the court search the record of a five-day trial
for evidence to support his broad assertion of reversible error. We decline this
request and overrule this issue as inadequately briefed. See TEX. R. APP. P. 38.1(i);
Crider, 2011 WL 2651794, at *5; San Saba Energy, 171 S.W.3d at 338.
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III. Motion for new trial
In his third issue, Fontenot argues that the trial court erred by overruling his
Amended Motion for New Trial. He argues about the adequacy of the jury charge,
but he does not provide citations to the record or any legal authority in support of
this issue. His entire argument on this issue comprises one paragraph which states:
In retrospect, Appellant, FONTENOT, submits to this Court the
instructions and definitions were ambiguous and difficult to
understand which led to an improper verdict in this case. This is
evident by the fact that the jury in its deliberations spent
approximately fifteen (15) minutes before returning with a verdict.
This is not sufficient time for the jury to have read the charge. In
addition, the jury returned insufficient answers to the questions
proposed in the charge. The Court permitted the jury with the
approval of counsel to reconvene in the jury room to correct the
flawed questions. Appellant, FONTENOT, submits that the jury did
not discuss a single page of evidence to reach its verdict in this case.
Appellant’s Br. 28. “Our procedural rules state that a complaint to a jury charge is
waived unless specifically included in an objection.” Cruz v. Andrews Restoration,
Inc., 364 S.W.3d 817, 829 (Tex. 2012) (citing TEX. R. CIV. P. 274 and TEX. R. APP.
P. 33.1(a)(1)). At the formal charge conference, Fontenot’s counsel affirmatively
stated that he had no objections to the court’s charge. To the extent this issue
pertains to the court’s charge, it is waived. To the extent that Fontenot intended to
challenge some other aspect of the court’s ruling denying his motion for new trial,
the issue is inadequately briefed. See TEX. R. APP. P. 38.1(i); Crider, 2011 WL
21
2651794, at *5; San Saba Energy, 171 S.W.3d at 338. We overrule Fontenot’s
third issue.
IV. Factual sufficiency of the evidence
In his fourth issue, Fontenot contends that the “jury finding in this case is
factually insufficient and against the weight and preponderance of the evidence as
to be manifestly unjust and shocks the conscience.” Appellant’s Br. 28. In
particular, he argues that Land America’s expert witness, John Bushnell Nielson,
was “biased and prejudice[d].” He urges the court to find as a matter of law that
Land America “fraudulently breached” a duty by “remaining silent when it had a
duty to speak.” Appellant’s Br. 30.
To the extent that Fontenot rests his argument on the insufficiency of
Nielson’s testimony, we note first that he did not challenge Nielson’s credentials as
an expert witness. When Land America tendered Nielson as an expert witness on
escrow relationships in the title insurance industry, the trial court asked if Fontenot
had any objection. Fontenot’s attorney responded, “I have no objections. I suspect
he’s done what he said.”
Second, we note that a witness’s alleged bias or prejudice are matters that
factor into the fact-finder’s credibility determination. See Adams v. Petrade Int’l,
Inc., 754 S.W.2d 696, 711 (Tex. App.—Houston [1st Dist.] 1988, writ denied)
(“Generally, a party has the right to cross-examine an adverse party to show
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interest, bias, or prejudice that would affect the witness’ credibility.”); Hammond
v. Stricklen, 498 S.W.2d 356, 362 (Tex. App.—Tyler 1973, writ ref’d n.r.e.) (“On
cross-examination of an adverse witness, anything may be shown which might
affect the witness’ credibility, such as bias, interest and prejudice and a wide
latitude is allowed in such matters.”).
Fontenot bases his argument that Nielson’s testimony was biased or
prejudiced, in part, on an exchange during cross-examination when he professed an
inability to identify any facts that would weigh in favor of Fontenot’s theory of the
case. Appellant’s Br. 29. But the jury did not hear this singular response in
isolation. Nielson testified about his credentials and experience. He testified that as
between the parties, Fontenot was entitled to a title insurance policy to be provided
by the purchaser, Summerfield Partners. He also testified that Land America did
not have a duty to provide him with a policy of title insurance without a request or
any payment of the premium. The jury was entitled to credit or disregard his
testimony, and we may not overturn a fact-finder’s implicit credibility
determination when, as here, a reasonable person could have believed the
testimony. See Wilson, 168 S.W.3d at 819.
In addition, we have already explained that the evidence does not
conclusively establish the necessary element of causation, nor is the jury’s verdict
that Land America did not harm Fontenot against the great weight and
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preponderance of the evidence such that it is clearly wrong and unjust. See
Francis, 46 S.W.3d at 241–42. Accordingly, we overrule this issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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