Robert Burton v. Wayman L. Prince, Nafisa Yaqoob, Independent Management & Investment LLC and Leawood Homeowners Association, Inc. , 577 S.W.3d 280 ( 2019 )

Affirmed and Opinion filed March 7, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00181-CV
ROBERT BURTON, Appellant
V.
WAYMAN L. PRINCE, NAFISA YAQOOB, INDEPENDENT
MANAGEMENT & INVESTMENT LLC AND LEAWOOD
HOMEOWNERS ASSOCIATION, INC., Appellees
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 2015-59596
OPINION
This is a wrongful foreclosure case. After a bench trial, the trial court
rendered declaratory judgment in favor of Robert Burton and set aside foreclosures
on six condominium units (the Property) that Burton owned. But the trial court
found against Burton on various other claims he brought against his homeowners’
association, Leawood Homeowners Association, Inc. (the Association), the
Association’s attorney and trustee, Wayman L. Prince, property manager Nafisa
Yaqoob, and property management company Independent Management &
Investment LLC (collectively, Leawood). Burton appeals the trial court’s judgment
against him as to his claims for fraud under Civil Practice & Remedies Code
section 12.002, for unfair debt collections practices, and for deceptive trade
practices. Burton also challenges the trial court’s findings on “other claims denied
in the final judgment.” He further contends the trial court should have awarded him
prejudgment interest. We affirm.
Background
When Burton fell behind on his Association dues, the Association filed suit
against him in justice court.1 Burton was served with that lawsuit through his
property manager, Shannon Havard. The justice court rendered judgment against
Burton for the outstanding dues plus court costs, attorney’s fees, and post-
judgment interest.
Prince subsequently served Burton with notices of sale for the Property and
a demand for delinquent amounts owed. Burton alleged that the notices of sale did
not comply with requirements in the Texas Property Code.2 Prince purchased the
Property at the foreclosure sales on behalf of the Association on credit. No money
exchanged hands. Burton contended that the foreclosures were improperly
conducted and that the trustee’s deeds to the Property that were executed after
foreclosure were void. Despite this, Burton requested information regarding the
amount he owed to redeem the Property and received a deficiency letter. Burton
asserted that the amount referenced in the deficiency letter was excessive. Burton
1
Burton alleges that lawsuit was brought by Leawood HOA, Inc., “an entity that does not
exist.” Prince testified that the Association and Leawood HOA, Inc. are the same entity.
2
See Tex. Prop. Code §§ 51.0001-.016.
2
tendered his estimate of what was owed, which the Association rejected.
Burton brought the following claims against Leawood: (1) fraud in various
forms, (2) unfair debt collection practices, (3) deceptive trade practices,
(4) removal of cloud on title, (5) trespass to try title, and (6) tortious interference
with contract. Burton also sought a declaratory judgment that the foreclosures were
improper, setting aside the trustee’s deeds as void, and declaring that Leawood
“deliberately and fraudulently prevented Burton from exercising his [r]ight of
[r]edemption.” After a bench trial, the trial court rendered judgment declaring that
(1) the foreclosure sales “were improper and . . . a nullity,” (2) Prince had no
lawful power to sell the Property at the foreclosure sales, and (3) the trustee’s
deeds were void. The trial court awarded Burton attorney’s fees and post-judgment
interest, ordered that his claims for removal of cloud on title and trespass to try title
were denied as moot, and denied relief as to his other claims.
Discussion
On appeal, Burton contends in nine issues that the trial court erred in finding
against him on his fraud claims under section 12.002, unfair debt collection
practices and deceptive trade practices claims, and “other claims denied in the final
judgment.” Burton also complains of the trial court’s failure to award him
prejudgment interest.
Burton relies on evidence presented at trial to support his arguments that the
trial court should have found in his favor. Construing Burton’s appellate brief
liberally, we interpret these complaints as legal and factual sufficiency challenges.3
See Tello v. Bank One, N.A., 218 S.W.3d 109, 122 (Tex. App.—Houston [14th
Dist.] 2007, no pet.) (acknowledging that courts of appeals must construe appellate
3
Burton did not raise a sufficiency challenge below, but he was not required to do so to
preserve error after a bench trial. See Tex. R. App. P. 33.1(d).
3
briefs reasonably and liberally).
When, as here, a trial court does not make findings of fact and conclusions
of law to support its ruling after a bench trial, we infer all findings necessary to
support the judgment. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789,
795 (Tex. 2002). The judgment of the trial court must be affirmed if it can be
upheld on any legal theory that is supported by the evidence. In re W.E.R., 669
S.W.2d 716, 717 (Tex. 1984).
Because the appellate record includes the reporter’s and clerk’s records, the
trial court’s ‘implied findings are not conclusive and may be challenged for legal
and factual sufficiency. See BMC Software Belg., 83 S.W.3d at 795. We review the
trial court’s decision for legal sufficiency of the evidence using the same standards
applied in reviewing the evidence supporting a jury’s finding. Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994). We review the evidence in the light most
favorable to the challenged finding and indulge every reasonable inference that
would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We
credit favorable evidence if a reasonable factfinder could do so and disregard
contrary evidence unless a reasonable factfinder could not. Id. at 827. A party
attacking the legal sufficiency of an adverse finding on an issue on which he had
the burden of proof must demonstrate that the evidence conclusively establishes all
vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241
(Tex. 2001).
In reviewing factual sufficiency, we examine the entire record, considering
both the evidence in favor of and contrary to the challenged findings. 2900 Smith,
Ltd. v. Constellation NewEnergy, Inc., 301 S.W.3d 741, 746 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). When a party attacks the factual sufficiency of an
adverse finding on which he bore the burden of proof, he must establish that the
4
finding is against the great weight and preponderance of the evidence. In re Estate
of Parrimore, No. 14-14-00820-CV, 2016 WL 750293, at *5 (Tex. App.—Houston
[14th Dist.] Feb. 25, 2016, no pet.) (mem. op.). We may not pass judgment upon
the witnesses’ credibility or substitute our judgment for that of the factfinder, even
if the evidence would support a different result. 2900 Smith, 301 S.W.3d at 746. If
we determine the evidence is factually insufficient, we must detail the evidence
relevant to the issue and state in what regard the contrary evidence greatly
outweighs the evidence supporting the trial court’s judgment; we need not do so
when affirming the judgment. Id.I. Deference to Factfinder Required as to Intent
In five issues, Burton argues the trial court should have awarded him
damages against Leawood for filing or presenting the following purportedly
fraudulent documents: trustee’s deeds, redemption statements, and notices of sale.
Burton contends that such actions violated section 12.002 of the Civil Practice and
Remedies Code, which creates a private cause of action against a person who
makes, presents, or uses “a document or other record with . . . knowledge that the
document or other record is a fraudulent court record or a fraudulent lien or claim
against real or personal property or an interest in real or personal property.” Tex.
Civ. Prac. & Rem. Code § 12.002 (a)(1). We conclude that Burton did not meet his
burden on appeal to establish conclusively that Leawood violated every element of
section 12.002 or that the trial court’s findings were against the great weight and
preponderance of the evidence.
A. Finding on Intent in Filing Trustee’s Deeds Was Reasonable
In his first through third issues, Burton argues the trial court should have
awarded him damages against Leawood for filing fraudulent trustee’s deeds.
According to Burton, the trustee’s deeds are fraudulent documents that were filed
5
in violation of section 12.002.
To establish that the trial court’s finding against Burton was not supported
by legally sufficient evidence, Burton was required to conclusively establish that
Leawood not only made, presented, or used fraudulent trustee’s deeds but also
(1) knew they amounted to fraudulent claims against real property or an interest in
real property; (2) intended for the fraudulent trustee’s deeds to be given the same
legal effect as documents evidencing valid claims against real property or an
interest in real property; and (3) intended to cause financial injury, mental anguish,
or emotional distress to Burton.4 See id. § 12.002(a); Lance v. Robinson, 543
S.W.3d 723, 744 (Tex. 2018). As to his factual sufficiency challenge, Burton was
required to establish that the trial court’s finding is against the great weight and
preponderance of the evidence.
Burton argues he met these burdens by presenting evidence that Prince
“knowingly filed [trustee’s deeds] with false statements in them” that the
Association had paid the purchase price at the foreclosure sales. Burton contends
these are false statements because no money changed hands. Burton relies on
Prince’s admission that he purchased the Property on credit on behalf of the
Association. Burton also relies on testimony from the Association’s board
president and the property manager that they knew the Association purchased the
Property on credit.
We recognize that the trial court as factfinder might conclude this was some
circumstantial evidence of intent under the statute because the Association did not
pay the purchase price at the foreclosure sales in cash, but we must defer to the
factfinder even when the evidence might support a different result. See 2900 Smith,
4Burton does not allege that Leawood intended to cause him physical injury. See Tex.
Civ. Prac. & Rem. Code § 12.002(a)(3)(A).
6
301 S.W.3d at 746. On appeal, Burton was required to demonstrate he presented
the trial court with conclusive proof of intent to cause Burton financial injury,
mental anguish, or emotional distress. See Dow Chem. Co., 46 S.W.3d at 241.
Leawood argues that Burton failed to establish intent under the statute
because the Association never sought to sell the Property but instead urged Burton
to redeem the Property or pay the arrearages on the Association dues. The trustee’s
deeds state that at the foreclosure sales, Prince, as trustee for the Association,
acquired the Property “in consideration of” certain dollar amounts for each
condominium unit. At trial, Prince conceded that he did not receive cash at the
foreclosure sales but testified that he received “consideration” in the form of a
credit. Prince further stated:
The [A]ssociation’s goal in any foreclosure is never to take anyone’s
property from them, but to try as best as they can to be equitable and
fair to get them to pay the amount that they owe. The object and the
goal of [the Association] at all times was from day one to have . . .
Burton become current on his assessments. That’s always been the
goal and still is the goal. We never wanted it and we still don’t want
[the P]roperty.
In finding against Burton on his section 12.002 claims, the trial court
implicitly found that Leawood did not intend to cause financial injury, mental
anguish, or emotional distress to Burton. However, the trial court concluded that
the foreclosure sales were improperly conducted. Based on the evidence presented,
the trial court, as the sole judge of credibility of the witnesses and the weight to be
given their testimony, reasonably could have concluded that despite the fact that
the foreclosure sales were not conducted properly, the Association was seeking
only payment from Burton for delinquent dues and fees and did not intend to cause
Burton financial injury, mental anguish, or emotional distress. The trial evidence
does not conclusively prove all of the required elements to establish a section
7
12.002 claim. See Dow Chem. Co., 46 S.W.3d at 241. Our review of the entire
record similarly demonstrates that the trial court’s implied findings are not against
the great weight and preponderance of the evidence.
We accordingly conclude that the trial court did not err in finding against
Burton on his section 12.002 claims. We overrule issues one through three.5
5
Burton cites numerous cases in support of his argument, but none of them involve
sufficiency challenges on issues for which the party attacking the finding had the burden of
proof. See Pitre v. Sharp, No. 05-15-00173-CV, 2016 WL 2967826, at *3 (Tex. App.—Dallas
May 13, 2016, no pet.) (mem. op.) (affirming summary judgment involving deemed admissions
that party who filed deed did not have a legal interest in the subject property); Roberts v. Dixon,
No. 12-15-00181-CV, 2016 WL 900205, at *1 (Tex. App.—Tyler Mar. 9, 2016, no pet.) (mem.
op.) (overruling factual sufficiency challenge to trial court’s finding that fraudulent lien was
filed); Bernard v. Bank of Am., N.A., No. 04-12-00088-CV, 2013 WL 441749, at *4 (Tex.
App.—San Antonio Feb. 6, 2013, no pet.) (mem. op.) (affirming summary judgment in which
fraudulent “Substitution of Trustee” document was filed to prevent bank from foreclosing);
Brewer v. Green Lizard Holdings, L.L.C. Series SR, 406 S.W.3d 399, 403-04 (Tex. App.—Fort
Worth 2013, no pet.) (affirming summary judgment when plaintiff presented evidence of
fraudulent filing and defendant did not present evidence showing a legitimate interest in
property); Gray v. Entis Mech. Servs., LLC, No. 01-11-00129-CV, 2012 WL 1454485, at *5
(Tex. App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem. op.) (overruling legal-sufficiency
challenge to trial court’s finding that defendant filed affidavit he knew was false); Gordon v. W.
Houston Trees, Ltd., 352 S.W.3d 32, 46 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding
trial court erred in granting summary judgment because plaintiff failed to prove “as a matter of
law” that defendant knew filed documents were fraudulent). See also L’Amoreaux v. Wells
Fargo Bank, N.A., 755 F.3d 748, 751 (5th Cir. 2014) (affirming dismissal of section 12.002
claim because it was “not plausible” that defendant “knowingly made or presented a document
with a false interest or claim against real property”); Downs v. BAC Home Loans Servicing, LP,
No. 4:10-CV-096-A, 2011 WL 1576352, at *1, 5 (N.D. Tex. Apr. 26, 2011) (granting summary
judgment because undisputed evidence established each element of liability under section
12.002).
Burton also argues Leawood violated two Penal Code sections in filing the trustee’s
deeds. See Tex. Penal Code §§ 31.03 (theft), and 32.45(b) (misapplication of fiduciary property).
We note that each of these sections includes an intent element, which is within the province of
the factfinder to determine. See id. Neither of these criminal offenses has the same elements as
Burton’s section 12.002 claims.
8
B. Finding on Intent in Serving Erroneous Redemption
Statements Was Reasonable
Burton argues in his fourth issue that the trial court also should have
awarded him damages under section 12.002 because he contends Leawood
presented him with redemption payoff statements for the Property that included
inflated payoff amounts exceeding the amounts he was required to pay under the
Property Code. To redeem each condominium unit that the Association purchased
at a foreclosure sale, Burton had to pay the Association the following amounts no
later than the ninetieth day after the date of the foreclosure sale:
 all amounts due the Association at the time of the foreclosure sale;
 interest from the date of the foreclosure sale to the date of redemption;
 reasonable attorney’s fees and costs incurred by the Association in
foreclosing the lien;
 any assessment levied against the unit by the Association after the
foreclosure sale; and
 any reasonable cost incurred by the Association as owner of the unit,
including costs of maintenance and leasing.
See Tex. Prop. Code § 82.113(g) (setting forth redemption requirements as to
condominium units).
Burton complains that the redemption statements served by the Association
totaled $203,479, which he contends improperly included (1) the purchase price for
the Property because it was purchased on credit, (2) attorney’s fees the Association
paid to a New York attorney in another lawsuit filed by Burton, (3) fees for labor
purportedly done on the units, and (4) “numerous other false claims.” 6 Burton
6
Property manager Yaqoob admitted at trial that work was not done on all six units. She
testified that the fees for the work on three units were divided up among the six units. Burton
also challenges the amount of work that was purportedly done on the units.
9
contends this evidence “conclusively documented” that Leawood “made, used
and/or presented” false redemption statements. Burton also contends that Leawood
filed the redemption statements as an exhibit in support of its counterclaims against
Burton in this lawsuit and in so doing, also violated section 12.002.
Burton relies on an opinion issued by our sister court that was withdrawn
because the parties settled their dispute after Burton filed his appellate brief. See
402 Lone Star Prop., L.L.C. v. Bradford, No. 04-16-00721-CV, 2017 WL 5759379(Tex. App.—San Antonio Nov. 29, 2017), opinion withdrawn and superseded sub
nom. 402 Lone Star Prop., LLC v. Bradford, No. 04-16-00721-CV, 2018 WL
1935576 (Tex. App.—San Antonio Apr. 25, 2018, no pet.). In that case, the
plaintiff presented evidence of the amounts required to redeem his home as set
forth in the Property Code. Id. at *5 (citing Tex. Prop. Code § 209.011(e) (listing
amounts to redeem residential property “purchased at the foreclosure sale by a
person other than the property owners’ association, the lot owner or lienholder”)).
The redemption statement exceeded that amount, particularly as to “taxable costs”
referenced in the statute. Id. The defendant’s representative testified that he did not
know that “taxable costs” in the statute referred only to taxable court costs. Id. In
concluding that the jury could have disbelieved this testimony from the
representative, the court of appeals noted that “[i]ntent is a fact question uniquely
within the realm of the trier of fact because it so depends upon the credibility of the
witnesses and the weight to be given to their testimony.” Id. (quoting Spoljaric v.
Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986)).
We presume without deciding that each redemption statement the
Association sent to Burton is a court record, lien, or claim against real property or
an interest in real property for section 12.002 purposes. See Tex. Civ. Prac. &
Rem. Code § 12.002(a)(1). We turn to the evidence presented.
10
Prince testified at trial that there was a 90-day deadline to redeem the
property and that he sent the redemption statements a few hours before the
deadline. He also admitted that the redemption statements included amounts for
which the Association purportedly purchased the Property based on credit bids.
The trial court asked him how the Association could charge this amount when the
Association had not paid it. Prince responded,
Burton was not being required to pay [the purchase amount], but there
had to be a total breakdown of the total cost per unit associated with
it . . . even if the [A]ssociation had not in cash paid for [the particular
unit] . . . . Because of these other . . . costs in there, that’s what the
goal was, to attempt to get that money back.
The trial court then asked Prince, “So your position is he would have had to pay
the money and then you would have turned around and given the money back?” to
which Prince responded, “It would have been refunded.”
Prince conceded at several points that he did not recall or did not know how
some of the amounts in the redemption statements were calculated. He testified
that he relied on financial transaction reports and events reported to him from the
Association for the itemized amounts. He also could not remember whether he
gave Burton a credit for rent received by the Association, which the Association
was required to do. Prince agreed that he, as the trustee on the deeds of trust, was
required to “act with absolute impartiality and with fairness to all concerned in
conducting [the] foreclosure[s].” He testified that he did so “[u]nequivocally and
absolutely.” He “tr[ied] to be impartial and fair at all times” when handling the
redemption.
Prince agreed that he did not receive the purchase price for the Property
from the Association at the foreclosure sales. He also admitted that attorney’s fees
in the New York lawsuit had not been awarded to the Association. He further
11
conceded that some fees were erroneously included in the redemption statements
because they pertained to a foreclosed unit that did not belong to Burton.
During her testimony, Yaqoob conceded that labor fees for work done on
only three units were divided equally among all six units. She also testified that the
work was done after hours by the Association’s maintenance person. Burton’s
counsel cross-examined Yaqoob thoroughly about the work that was done and how
it was billed. Yaqoob testified that if Burton wanted to redeem only certain units,
he “probably” would not have been required to pay for repairs not made to those
units.
As discussed, the trial court found that the foreclosure sales were improperly
conducted and set them aside, along with the trustee’s deeds, but implicitly
concluded that Leawood did not intend to cause financial injury, mental anguish,
or emotional distress to Burton. We emphasize—consistent with our sister court—
that the factfinder is the sole judge of credibility of the witnesses and the weight to
be given their testimony. See 402 Lone Star Prop., 2017 WL 5759379, at *3, 5.
With these principles in mind, we conclude that based on the evidence
presented, the trial court, as the sole judge of credibility of the witnesses and the
weight to be given their testimony, reasonably could have concluded that Leawood
was negligent in its preparation of the redemption statements but did not intend to
cause financial injury, mental anguish, or emotional distress to Burton. Burton thus
did not conclusively establish that Leawood, by presenting him with erroneous
redemption statements, intended to injure him. Our review of the entire record
similarly demonstrates that the trial court’s finding is not against the great weight
and preponderance of the evidence. We accordingly overrule issue four.
12
C. Finding on Intent in Serving Erroneous Notices of Sale Was
Reasonable
Burton argues in issue five that the trial court should have awarded him
damages under section 12.002 because in serving Burton with notices of the
foreclosure sale, Leawood “sought to recover for a second time upon claims . . .
that [the Association] had previously . . . reduced to judgment” in the justice court.
The trial court agreed during trial that “given the fact that the notice of foreclosure
embeds in it costs that were awarded per the judgment, we have got some blending
of the two. And so I have to say I am perplexed.”7 As discussed, the trial court set
aside the foreclosure sales and trustee’s deeds, but as the factfinder, it was entitled
to decide the fact question of intent. The trial court thus could have concluded that
although the notices of sale improperly included costs that were awarded and
reduced to judgment in another lawsuit, Leawood nevertheless did not intend to
cause financial injury, mental anguish, or emotional distress to Burton in serving
the notices. We accordingly overrule issue five.
II. Wrongful Debt Collection Not Established
Burton challenges the trial court’s finding against him on his claims for
violations of the Texas Debt Collection Act (TDCA) in issue eight. See Tex. Fin.
Code §§ 392.001-.404. In this issue, Burton asserts only that Leawood violated the
TDCA by knowingly filing false trustee’s deeds to transfer ownership of the
Property to the Association and by serving erroneous redemption statements.
The TDCA provides remedies for wrongful debt collection practices used by
a debt collector in debt collection. See id.; Ford v. City State Bank of Palacios, 44
7
Leawood argues that Burton failed to challenge the justice court judgment. The
enforceability of that judgment is not at issue in this case. Leawood seems to be complaining that
Burton did not challenge the trial court’s findings as to Burton’s claims for removal of cloud on
title and trespass to try title. Burton was not required to challenge these findings to challenge the
trial court’s findings on his other claims.
13
S.W.3d 121, 135 (Tex. App.—Corpus Christi 2001, no pet.). Debt collection under
the TDCA is “an action, conduct, or practice in collecting, or in soliciting for
collection, consumer debts that are due or alleged to be due a creditor.” Tex. Fin.
Code § 392.001(5). A consumer is “an individual who has a consumer debt.” Id.
§ 392.001(1). Consumer debt is “an obligation, or an alleged obligation, primarily
for personal, family, or household purposes and arising from a transaction or
alleged transaction.” Id. § 392.001(2). A creditor is “a party, other than a
consumer, to a transaction or alleged transaction involving one or more
consumers.” Id. § 392.001(3). And, a debt collector is “a person who directly or
indirectly engages in debt collection.” Id. § 392.001(6). The TDCA also applies to
entities attempting to collect their own debts. Monroe v. Frank, 936 S.W.2d 654,
660 (Tex. App.—Dallas 1996, writ dism’d w.o.j.).
The Association filed trustee’s deeds after foreclosure and, at Burton’s
request, served him with the redemption statements. Prince testified that the
Association did not want to take the Property and merely intended to collect the
outstanding balance. Burton has not shown on this record how the filing of the
trustee’s deeds or the serving of the redemption statements was done during “debt
collection” as defined in the TDCA.
Burton’s assertions that Leawood violated the TDCA are based on the filing
of the trustee’s deeds and on service of the erroneous redemption statements.
Burton has not asserted that Leawood violated the TDCA in any other way. See
Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 326 n.2 (Tex. App.—Houston
[14th Dist.] 2009, pet. denied) (noting appellate court will not address an issue that
is not raised on appeal by an appellant). Burton has failed to establish conclusively
that the trial court erred in finding against him on his TDCA claims. Furthermore,
the trial court’s finding is not against the great weight and preponderance of the
14
evidence. We overrule Burton’s eighth issue.
III. Burton Not a “Consumer” under Deceptive Trade Practices Act
Burton complains in his seventh issue of the trial court’s finding against him
on his Texas Deceptive Trade Practices Act (DTPA) claim. See Tex. Bus. & Com.
Code §§ 17.41-.63. Leawood counters that Burton is not a consumer, and thus he
lacks standing to bring suit under the DTPA.
In his live petition, Burton alleged that Leawood violated the DTPA by
(1) engaging in an unconscionable action by “demanding payment for improper
charges, fees, expenses and attorney’s fees”, and (2) violating two tie-in statutes to
the DTPA—the TDCA and section 27.01 of the Texas Business & Commerce
Code (“Fraud in Real Estate and Stock Transactions”). See id. §§ 17.50(a),
27.015(b) (“A violation of [s]ection 27.01 that relates to the transfer of title to real
estate is a false, misleading, or deceptive act or practice as defined by [s]ection
17.46(b) [of the DTPA].”); Tex. Fin. Code § 392.404(a) (“A violation of this
chapter is a deceptive trade practice under [the DTPA].”). These DTPA claims
required Burton to establish, among other things, that he is a consumer. See Doe v.
Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995) (citing Tex.
Bus. & Com. Code § 17.50(a)(1)); see also Hunt v. City of Diboll, No. 12-17-
00001-CV, 2017 WL 7663041, at *15 (Tex. App.—Tyler Nov. 8, 2017, pet. filed)
(holding that one must be a consumer to maintain a cause of action for violations
of tie-in statutes actionable under the DTPA); Dodeka, L.L.C. v. Garcia, No. 04-
11-00016-CV, 2011 WL 4825893, at *2 (Tex. App.—San Antonio Oct. 12, 2011,
no pet.) (mem. op.) (“[T]he DTPA ‘tie-in’ statute does not exempt a plaintiff from
proving consumer status.”).
Whether a party is a consumer is a question of law. Ortiz v. Collins, 203
S.W.3d 414, 424 (Tex. App.—Houston [14th Dist.] 2006, no pet.). To be a
15
consumer, the claimant must have sought or acquired goods or services by
purchase or lease, and those goods or services must form the basis of the
complaint. Id. Consumer status depends on the plaintiff’s relationship to the
transaction, not the contractual relationship between the parties. Id. Therefore, the
plaintiff must show that the defendant’s deceptive conduct occurred in connection
with a consumer transaction. Id. at 424-25.
Accordingly, at trial, Burton was required to establish that he sought or
acquired goods or services from Leawood by purchase or lease and that such goods
or services form the basis of this lawsuit. Burton asserts on appeal that “the DTPA
includes real estate related claims” and his “real estate relationships with
[Leawood] ‘form the basis of’ his . . . DTPA claims.” Generally, a wrongful
foreclosure claim does not qualify as a consumer transaction under the DTPA. See,
e.g., Everson v. Mineola Cmty. Bank, No. 12–05–00334–CV, 2006 WL 2106959,
at *2 (Tex. App.—Tyler July 31, 2006, pet. denied) (mem. op.) (holding that
homeowners were not consumers on the basis of their forced purchase of private
mortgage insurance when their DTPA claim had nothing to do with the insurance
itself but rather an allegedly wrongful foreclosure); Ortiz, 203 S.W.3d at 425(holding that negotiations over repurchase of home after foreclosure did not qualify
as a consumer transaction under the DTPA). Burton complains about conduct
relating to the foreclosures and his attempted redemption of the Property but has
not alleged a violation of the DTPA emanating from his purchase of the Property.
Accordingly, he is not a consumer under the DTPA. See Resolution Tr. Corp. v.
Westridge Court Joint Venture, 815 S.W.2d 327, 332 (Tex. App.—Houston [1st
Dist.] 1991, writ denied) (holding parties that were not purchasers at foreclosure
sale were not consumers under the DTPA and lacked standing to complain of
conduct relating to foreclosure). We overrule issue seven.
16
IV. Waiver of Remaining Issues
Burton argues in his sixth issue that the trial court should have awarded him
prejudgment interest “in accordance with [this court’s] decision in” Garden Ridge,
L.P. v. Clear Lake Center, L.P., 504 S.W.3d 428 (Tex. App.—Houston [14th Dist.]
2016, no pet.). In that case, the defendant conceded on appeal that the plaintiff was
entitled to prejudgment interest, and we noted that a successful claimant is entitled
to prejudgment interest on “a breach of contract claim that accrues before suit is
filed.” Id. at 452.
Here, Burton did not bring a breach-of-contract claim and presents no
argument for why he is entitled to prejudgment interest other than to cite our
Garden Ridge opinion. Although we construe briefs liberally and require only
substantial compliance with briefing rules, see Texas Rule of Appellate Procedure
38.9, if an appellant’s issues are unsupported by clear and concise legal argument
with appropriate citations to authorities, the appellant waives error. Bentley v.
Peck, No. 14-17-00561-CV, 2018 WL 4869484, at *2 (Tex. App.—Houston [14th
Dist.] Oct. 9, 2018, pet. denied) (mem. op.); Canton-Carter v. Baylor Coll. of
Med., 271 S.W.3d 928, 931–32 (Tex. App.—Houston [14th Dist.] 2008, no pet.). It
is not our duty to fashion a legal argument for a party. See Canton-Carter, 271
S.W.3d at 931-32; see also Smith v. Smith, 541 S.W.3d 251, 260-61 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). A party must not only cite relevant authority
and the record but must also provide substantive legal analysis. Smith, 541 S.W.3d
at 260-61. Burton failed to do so. This issue is waived.
In his ninth and final issue, Burton argues that the case should be remanded
for reconsideration “of all other claims denied” in the final judgment and of the
DTPA claim. This issue is similarly waived because Burton did not cite any
authority or the record in support of his argument and did not include any analysis.
17
See id. We overrule issues six and nine.
Conclusion
Having construed Burton’s appellate brief liberally as a legal-and-factual-
sufficiency challenge to the trial court’s findings, we conclude that Burton failed to
establish that the trial court’s findings are not supported by legally sufficient
evidence. We also conclude that Burton has not shown that the trial court’s
findings are against the great weight and preponderance of the evidence such that
they would not be supported by factually sufficient evidence. We further conclude
as a matter of law that Burton is not a consumer for purposes of the DTPA with
regard to the foreclosure sales. Burton’s remaining issues are waived. Accordingly,
we affirm the judgment of the trial court.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.
18