K. R. Playa VI, S. De R.L. De C v. v. Stewart Title Guaranty Company and Stewart Title Guaranty De Mexico, S.A. De C v. , 417 S.W.3d 592 ( 2013 )

Affirmed and Opinion filed October 2, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-00900-CV
CITIGROUP GLOBAL MARKETS REALTY CORP., Appellant
V.
STEWART TITLE GUARANTY COMPANY, Appellee
NO. 14-11-00901-CV
K.R. PLAYA VI, S. DE R.L. DE C.V., Appellant
V.
STEWART TITLE GUARATY COMPANY AND STEWART TITLE
GUARANTY DE MEXICO, S.A. DE C.V., Appellees
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Cause No. 2008-03256
OPINION
In this consolidated appeal regarding a dispute over payment on title
insurance claims to numerous properties in Mexico, appellants Citigroup Global
Markets Realty Group and K.R. Playa VI, S. de R.L. de C.V. (K.R. Playa)
challenge the trial court‘s take-nothing judgment in favor of appellees Stewart Title
Guaranty Company (Stewart U.S.) and Stewart Title Guaranty de Mexico, S.A. de
C.V. (Stewart Mexico).1 In four issues, Citigroup asserts (a) that the trial court
erred in admitting the expert testimony of Bruce Greenberg regarding property
valuation, (b) that there is legally insufficient evidence to support the jury‘s finding
that an exclusion to the title insurance policies issued to K.R. Playa and Citigroup
by Stewart Mexico and Stewart U.S. precludes coverage for ten of the sixteen
subject properties, (c) that the jury‘s damages award of zero for the six properties
to which the exclusion is not applicable is not supported by the evidence, and
(d) that the trial court erred by ―barr[ing] Citigroup from bringing claims under
Texas law for the insurer‘s violation of the Texas Insurance Code and its duty of
good faith and fair dealing.‖ K.R. Playa contends that (1) Stewart Mexico did not
prove that it was actually prejudiced by K.R. Playa‘s failure to comply with certain
conditions in its title insurance policy, which does not absolve Stewart Mexico of
liability under the policy; (2) Stewart Mexico had both constructive and actual
knowledge of the title defect at issue in this case; thus K.R. Playa had no duty to
provide Stewart Mexico with notice of this defect; and (3) both Stewart Mexico‘s
and Stewart U.S.‘s repeated violations of a pre-trial motion in limine order
1
Both Citigroup and K.R. Playa incorporated each others‘ briefs by reference. See Tex.
R. App. P. 9.7 (permitting any party to join in or adopt by reference all or any part of, as is
relevant here, a brief filed in an appellate court by another party in the same case). However, in
doing so, they have risked preserving error if they failed to identify the rulings in the record
preserving error on their own issues. See Tex. R. App. P. 33.1(a) (explaining that the record
must show that the complaining party preserved a complaint for appellate review).
2
―deceived‖ the jury into believing that K.R. Playa ―owned‖ the properties at issue
in this case, ―a misconception that poisoned the entire verdict.‖ After considering
those issues necessary to final disposition of this appeal, we affirm.
INTRODUCTION
K.R. Playa purchased sixteen properties in Mexico and obtained title
insurance from Stewart Mexico. K.R. Playa later obtained financing from
Citigroup for its purchases of these properties. Citigroup purchased lender‘s title
insurance policies for each property from Stewart Mexico, but also insisted that
Stewart U.S. contractually agree to ―assume the entire liability of [Stewart Mexico]
under‖ each policy and agree to ―pay any valid claim‖ under the policies to the
same extent as if the entire liability had been insured by Stewart U.S. policies.
These agreements provided Citigroup the right to enforce the policies against
Stewart U.S. in Texas courts.
The record reflects that, at the time of trial, the following claims remained
unresolved: (1) Citigroup‘s claims against Stewart U.S. for breach the lender‘s
title policies, breach of the duty of good faith and fair dealing, and violations of the
Texas Insurance Code;2 and (2) K.R. Playa‘s claims against Stewart Mexico for
breach of the owner‘s title policies.
2
Regarding the latter of these two, the trial court denied Citigroup‘s ―motion for
application of Texas law‖ to its claims against Stewart U.S.
3
BACKGROUND3
The Decree
On April 23, 1981, the president of Mexico issued an Expropriation Decree
(the Decree), pursuant to which the Mexican federal government took over six
million square meters of land to create the Tulum National Park (the Park).
According to the Mexican National Commission of Protected Natural Areas
(CONANP), the Park is federal property owned by the Mexican federal
government. But the Decree does not provide any guidance, on its face, showing
its application to any particular properties located in the Park. And
notwithstanding the Decree, at the time of this dispute, some private individuals
operated hotels and restaurants on land subject to the decree. Further, the Mexican
federal government had taken no steps to enforce the decree or evict the
commercial ventures.
The K.R. Playa Purchases
In late 2005, Kor Realty Group, a Los Angeles-based real estate developer
specializing in building luxury hotels, sought to develop a stretch of beachfront
property in Tulum. This property was attractive to Kor because there were no
high-end luxury hotels in the area with direct beach access. Additionally, the
Mexican state of Quintana Roo, in which Tulum was located, was in the process of
improving its airport and infrastructure. Finally, Kor anticipated that Tulum would
be granted independence as a city in 2007, which would permit the local
government to increase density in the area as an ―urban zone‖ and manage the
zoning and development of this stretch of property.
3
Because of the voluminous record in this case, we provide a brief background section
here for context and provide more specific facts relevant to our disposition as we discuss the
issues in this appeal.
4
From early to mid 2006, Kor, through its Mexican subsidiary, appellant K.R.
Playa,4 purchased sixteen properties in the Tulum area (the ―Tulum Properties‖) for
a total of nearly $55 million. The first eleven purchases of the Tulum Properties
were handled by K.R. Playa managers Jim Reilly and David Lopez.5 Before the
closing of the purchase of each property, K.R. Playa obtained title insurance
commitments from Stewart Mexico.6 Stewart Mexico hired an agent to search
public title records in connection with its issuance of policies for K.R. Playa‘s
purchase of the first two Tulum Properties. This agent discovered a reference to
the Decree in its title search, but stated in its report, ―By a Map indicating the area
condemned by the Decree of April 23, 1981, to declare it the Tulum National Park,
[the owner] shows that the tracts owned by him were not affected by such
condemnation‖ (emphasis added). Stewart Mexico did not specifically list the
Decree as an exception from coverage in any of its title policies.
In June 2006, K.R. Playa obtained state government issued land-use
certificates showing the type of permitted use and the density (number of hotel
rooms permitted in a given area) for each of the Tulum Properties pursuant to
federal zoning law, the Programa de Ordenamiento Ecologico Teritorial (POET).
According to these POET certificates, the zoning designation of the properties was
4
K.R. Playa notes in its brief that ―Kor‖ and ―K.R. Playa‖ were used ―interchangeably‖
at trial. Accordingly, whenever we refer to ―K.R. Playa,‖ we are likewise referring to ―Kor‖ in
this opinion. Moreover, the reporter‘s record does not contain testimony from any individuals
who are employed or associated with K.R. Playa.
5
Reilly was K.R. Playa‘s general manager and Lopez was its administrative manager.
Both were appointed by K.R. Playa on September 30, 2005. Both were removed from their
positions on August 21, 2006. Neither Reilly nor Lopez testified at trial.
6
Although K.R. Playa‘s purchases of the Tulum Properties were initially financed by a
private equity group, it later obtained a loan, secured by the properties, from Citigroup for
approximately $41 million. As noted above, Citigroup obtained its own lender‘s title insurance
on each of the Tulum Properties through Stewart Mexico, with further contractual assurances
provided by Stewart U.S.
5
as follows: (1) Ecological Policy: Conservation; (2) Prevailing Use: Wildlife;
(3) Conditional Use: Infrastructure and Tourism. The density permitted for each
property was up to thirty hotel rooms per hectare.
Two months later, Kor hired a local environmental engineering firm, Kaiser-
GAIA, to assist with development plans. Kaiser-GAIA informed Kor that,
contrary to the POET land-use certificates, only parts of the Tulum Properties were
zoned for development—those properties in the southern part of the area.
According to Kaiser-GAIA, the northern portions of the Tulum Properties were all
zoned ―AN5,‖ meaning ―zero density‖ was permitted in this area. However,
Kaiser-GAIA informed Kor that Tulum officials had proposed an Urban
Development Plan (PDU) with zoning laws for Tulum that differed from the
federal zoning laws under POET.
Kor was interested in a greater density than permitted under either POET or
Tulum‘s proposed PDU. To that end, Kor hired the Mexico City law firm of Creel,
Garcia-Cuellar y Muggenburg (Creel) and retained as a lobbyist Jorge Montano,
the former Mexican ambassador to the United States and the United Nation. With
the assistance of Montano, Creel, and Kaiser-GAIA, Kor and K.R. Playa personnel
met with numerous Mexican government officials at federal and municipal levels
seeking support for its development plans. But on February 1, 2007, Creel
provided a memorandum to Stacy Shaw, Kor‘s general counsel, and the rest of
Kor‘s legal team involved in the Tulum development, informing them that
Kor/K.R. Playa could anticipate developing only a total of up to ninety-eight
rooms in the southern area of the Tulum Properties and no rooms in the northern
6
portion.7 Only camping and ecotourism would be permitted in the northern portion
of the property under the federal zoning laws applicable to the area.
Nonetheless, in early February 2007, Kor personnel, including Brad Korzen,
CEO of Kor, met with federal and local officials and presented detailed plans for
proposed development of the Tulum Properties. Korzen left these meetings ―pretty
optimistic that our plans would be positively received. Certainly no one said
‗You‘re approved,‘ because it was a long process to go through with an
environmental impact report and other applications still to be done.‖ But Montano
reported in an email to Korzen, Shaw, Jeff Smith—Kor Chief Operating Officer,
Jean Loup Ziegler—a member of the Kor legal team, and several others on
February 20, 2007 that:
President Calderon instructed his Cabinet that no development is permitted
in the Tulum National Park;
The Mayor of Tulum ―made a 180 degree change after a call from Pres.
Calderon to the Governor. His statement doesn‘t leave any doubts. Zero
density in the National Park. That is the opposite to what he said months ago
to Stacy [Shaw, Kor‘s general counsel] and 10 days ago to Brad [Korzen].‖
According to the Mexican National Institute of Anthropology & History
(INAH), ―it is clear that those who sold land after the 1981 expropriation
made the operation against the law.‖
In response to this email, Kor hired another Mexico City law firm to
investigate the Decree. This firm, Gonzalez Calvillo, researched the Decree and
opined that, if the Tulum Properties fell within the expropriated area, the Mexican
7
According to this memo, POET regulations defined ―room‖ as
the lodging space destined to the rent [sic] per night operation, of which space
allows to offer guest sanitary services, sleeping area for two, luggage storing
room, and a lounge; it shall not include sites for the preparation or storage of
foods or drinks; the total number of rooms for a tourism project includes the
necessary rooms for service personnel without these increasing the total room
number count.
7
federal government had title to them. At the suggestion of Gonzalez Calvillo, Kor
hired a surveyor to plot the metes and bounds of each property. The surveys,
which Gonzalez Calvillo received on April 18, 2007, showed that the properties
were within the expropriated area; thus, the firm concluded that the federal
government had title to the Tulum Properties. Shortly thereafter, Gonzalez
Calvillo filed title insurance claims on behalf of K.R. Playa with Stewart Mexico.
On April 26, Kor informed Citigroup that it had ―recently been made aware of the
possibility that all or a substantial part of the real property located in Tulum,
Quintana Roo, Mexico and serving as collateral for [Citigroup‘s loan] may be
subject to a title encumbrance that was not previously disclosed‖ to Kor/K.R. Playa
by Stewart Mexico. Citigroup filed its own title insurance claims thereafter. All
title insurance claims were denied by both Stewart Mexico and Stewart U.S.
The Litigation
Citigroup filed suit against Stewart U.S. in January 2008; K.R. Playa was
later brought in as a third-party defendant and in turn, filed its own claims against
Stewart Mexico and Stewart U.S. (collectively, the ―Stewart Companies‖). Prior to
trial, as noted above, the trial court denied Citigroup‘s pre-trial motion for
application of Texas law to its claims against Stewart U.S. Additionally, the trial
court conducted extensive pre-trial hearings on Mexican law, ultimately deciding
that the Decree was ―valid and enforceable‖ and, through it, ―the Mexican
government took or acquired the 16 Tulum lots‖ at issue in this case. However, the
trial court explicitly declined to determine who ―owned‖ the properties or to
instruct the jury that K.R. Playa did not ―own‖ the properties.
A jury trial began in mid-February 2011 and continued until April 28, 2011,
when the jury returned its verdict. As is relevant to our disposition of this appeal,
8
the jury answered ―Yes‖ to the following question for ten out of the sixteen Tulum
Properties:
Did K.R. Playa know of a defect, lien, encumbrance, adverse
claim or other situation of fact or law and intentionally assume or
agree to that defect, lien, encumbrance, adverse claim or other
situation of fact or law as of the date of purchase of the 16 Tulum
lots?
You are instructed that ―a defect, lien, encumbrance, adverse
claim, or other situation of fact or law‖ means the 1981 Expropriation
Decree as defined in the Definitions section of the Charge of the
Court.
Answer ―Yes‖ or ―Nor‖ for each Property[.]
The Stewart Companies bore the burden of proof on this question. Regarding the
six properties that the jury found K.R. Playa did not know of the Decree and
―assume or agree‖ to its effect at the time of purchase, the jury was asked the
following question, on which Citigroup bore the burden of proof:
What sum of money if paid now in cash would fairly and
reasonably compensate Citigroup for its damages under the Lender
policies?
In considering damages, consider the actual monetary loss or
damage sustained or incurred by Citigroup, and select the lease of:
(i) the Amount of Insurance stated in Schedule ―A‖ of the
Lender Polcies;
(ii) the difference between the value of the insured estate or
right as insured and the value of the insured estate or right subject to
the lien or encumbrance or other situation of fact or law insured
against by the Lender Policies at the date Citigroup ascertained the
facts giving rise to the loss or damage.
(emphasis added). As to each of the six properties, the jury found zero dollars in
damages. The jury was asked a nearly identical question regarding the amount of
money that would ―fairly and reasonably compensate K.R. Playa for its damages
9
under the Owner Policies,‖ and found zero dollars in damages for all of the
properties.8
On June 30, 2011, the trial court entered a final take-nothing judgment in
favor of the Stewart Companies. After Citigroup‘s and K.R. Playa‘s post-verdict
motions were denied, this appeal timely followed.9
SUFFICIENCY
We address Citigroup‘s and K.R. Playa‘s challenges to the sufficiency
of the evidence issues first. In reviewing the legal sufficiency of the evidence, we
view the evidence in the light most favorable to the finding, crediting favorable
evidence if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827
(Tex. 2005). When the appellant attacks the legal sufficiency of a finding on
which it did not have the burden of proof, it must demonstrate that there is no
evidence to support the finding. Id. at 810. We may not sustain a legal
sufficiency, or ―no evidence‖ point unless the record demonstrates that: (1) there
is a complete absence of a vital fact; (2) the court is barred by the rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact; (3)
the evidence to prove a vital fact is no more than a scintilla; or (4) the evidence
established conclusively the opposite of the vital fact. Id.
8
The question relating to K.R. Playa‘s damages was not limited to only those properties
that Citigroup‘s damages question was; it covered all sixteen of the Tulum Properties.
9
Specifically, K.R. Playa‘s notice of appeal states that it is appealing from: the trial
court‘s September 12, 2011 order denying its motion for judgment notwithstanding the verdict
(JNOV) or alternatively for new trial; the final judgment; and the trial court‘s January 30, 2011
order applying Texas law to and dismissing its claims against Stewart U.S. Citigroup noticed its
appeal from the June 30, 2011 final judgment, the February 8, 2011 order on motion for
application of Texas law and motion for summary judgment, and the September 12, 2011 order
denying its motion for JNOV and motion for new trial.
10
To evaluate the factual sufficiency of the evidence, we consider all the
evidence and will set aside the finding only if the evidence supporting the finding
is so weak or so against the overwhelming weight of the evidence that the finding
is clearly wrong and unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–
07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
A. K.R. Playa’s Knowledge of the Decree
In Citigroup‘s second issue, it asserts that there is legally and factually
insufficient evidence to support the jury‘s verdict that ―K.R. Playa ‗assumed‘ or
‗agreed‘ to a total failure of title.‖ This issue is a challenge to the jury‘s findings
that K.R. Playa assumed or agreed to the Decree‘s effect as to ten of the sixteen
Tulum Properties at the time it purchased these properties. Further, although
Citigroup states that this issue encompasses a factual sufficiency challenge, in the
argument of this issue, Citigroup focuses solely on legal sufficiency. Thus, we
only address the legal sufficiency of the jury‘s finding.
As noted above, the jury found that, as of the purchase date of ten of the
sixteen Tulum Properties, K.R. Playa knew about the Decree and assumed or
agreed to its effect. Again, where, as here, a party attacks the legal sufficiency of
the evidence to support an adverse jury finding on an issue for which it did not
have the burden of proof at trial, it must show that no evidence supports the jury‘s
adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194,
215 (Tex. 2011).
The following evidence supports the jury‘s finding that K.R. Playa ―knew‖
about the Decree and ―assumed or agreed‖ to its effect when it purchased these
properties. Raul Negrete was a real estate appraiser in Mexico hired by K.R. Playa
in early 2006 to evaluate two properties in the Park it was interested in purchasing.
Negrete testified that he spoke with Lopez and Reilly before he provided the
11
appraisals to K.R. Playa. He stated that he told Lopez that ―the zone that they were
thinking about investing in was in a special position because a decree had been
issued in that zone.‖10 According to Negrete, Reilly and Lopez informed him that
―they were going to deal with the SEMARNAT authorities on this matter and that
they were going to try to find a way to resolve the matter.‖ The record reflects that
SEMARNAT refers to the Environmental and Natural Resources Ministry of
Mexico.
Further, Raymond J. Thoman, III, the sales broker for one of the Tulum
Properties, Playa Pamela, acknowledged in his testimony that, in Tulum, the terms
―Tulum National Park‖ and ―Decree‖ were virtually synonymous. He stated that
he had participated in two sales of land in the Park, including the sale of Playa
Pamela to K.R. Playa. According to Thoman, he dealt with Reilly and Lopez in
this land sale. Reilly and Lopez told him that they were ―well aware‖ that the
property was in the Park. Thoman explained that they ―didn‘t seem too concerned
about . . . anything as long as they bought the land.‖ Thoman testified that they
discussed the zero density issue within the Park and that Reilly and Lopez were
aware of the risk that K.R. Playa might not be able to build anything on the land
because of zoning and archeological restrictions. In fact, Thoman explained that
Reilly and Lopez seemed to know about the Solidaridad/Tulum PDU. Importantly,
this PDU was admitted into evidence and contains the text of the Decree, 11 as well
10
Negrete also informed Lopez that people in the region believed the decree ―was invalid
and did not apply to the zone.‖
11
The language of the Decree makes clear that the Mexican federal government is taking
the described property to protect and preserve it as a national park ―allowing the entrance to
visitors but, but in a controlled manner.‖ It declares it a National Park named ―Tulum.‖ Finally,
the Decree states that the federal government ―shall take possession of the expropriated surface
area.‖
12
as the metes and bounds description of the National Park. Kor CEO Brad Korzen
testified that Reilly reviewed this PDU.
From this evidence, jury could reasonably have concluded that Reilly and
Lopez (a) knew the lots were within the Tulum National Park, (b) knew the Park
was created by the Decree that expropriated the area within its boundaries, and
(c) intentionally ―assumed and agreed‖ to the Decree when they purchased the ten
Tulum Properties at issue.
Applying the appropriate standard of review, we conclude that Citigroup has
not established that there is no evidence to support the jury‘s finding. See id.
Stated differently, there is legally sufficient evidence to support the jury‘s finding
that, at the time K.R. Playa purchased the ten properties at issue, it knew and
assumed or agreed to the effects of the Decree.12 Accordingly, we overrule
Citigroup‘s second issue.
12
In K.R. Playa‘s briefing, it challenges the jury‘s answers to questions three and four.
In these questions, the jury answered ―yes‖ to the following questions:
Did K.R. Playa fail to notify Stewart Mexico promptly in writing within thirty
(30) business days from the date K.R. Playa knew of [the Decree‘s effect on the
Tulum Properties] that might cause loss or damage for which Stewart Mexico
may be obligated under the Owner policies with the intent to prevent prompt
verification of the circumstances of the claim?
***
Do you find that, in response to Stewart Mexico‘s request for information related
to [the Decree], K.R. Playa concealed or made a false declaration of fact with the
intent to cause Stewart Mexico to make an error that may exclude or reduce its
obligations under the Owner Policies?
Our determination that sufficient evidence supports the jury‘s finding that K.R. Playa knowingly
purchased these ten properties subject to the Decree, coupled with our discussion infra regarding
the jury‘s zero damages findings as to those properties the jury determined K.R. Playa did not
purchase subject to the Decree, fully supports the trial court‘s take nothing judgment in favor of
the Stewart Companies. See Tex. R. App. P. 47.1 (―The court of appeals must hand down a
written opinion that is as brief as practicable but that addresses every issue raised and necessary
to final disposition of the appeal.‖). Accordingly, we overrule K.R. Playa‘s first and second
issues as moot.
13
C. The Jury’s Award of Zero Damages
In issue three, Citigroup asserts that, as to the six of the Tulum Properties the
jury found that K.R. Playa did not know about the Decree and assume or agree to
its effect as of the date of purchase, the jury‘s findings of zero damages lacks
sufficient evidentiary support. Citigroup challenges only the factual sufficiency of
the evidence to support the jury‘s damages findings. As noted above, when
evaluating the factual sufficiency of the evidence, we consider all the evidence and
will set aside the finding only if the evidence supporting it is so weak or so against
the overwhelming weight of the evidence that the finding is clearly wrong and
unjust. Mar. Overseas Corp., 971 S.W.2d at 406–07; Cain, 709 S.W.2d at 176.
Citigroup asserts that the jury‘s verdict on damages represents a ―significant
departure‖ from the range of evidence presented at trial and thus cannot stand,
citinge Lieber v. Tex. Mun. Power Agency, 667 S.W.2d 206, 209 (Tex. App.—
Houston [14th Dist.] 1983, writ ref‘d n.r.e.), disapproved of on other grounds by
Callejo v. Brazos Elec. Power Coop., Inc., 755 S.W.23 73, 75 (Tex. 1988). Lieber,
however, involved a condemnation action in which the primary issue was the
depreciated market value of property. Id.
Here, however, the jury was asked to determine damages by selecting the
lesser of (a) the amount for which the properties were insured or (b) the difference
between the value of the insured estate or right as insured and the value of the
insured estate or right subject to the Decree. The jury clearly determined that
option (b) resulted in the lesser amount and made its findings based on that
calculation. Thus, we must determine if there is factually sufficient evidence to
support the jury‘s findings. And Citigroup bore the burden of proof on this issue
for its question.
14
Importantly, this question did not ask the jury to consider the amount that
K.R. Playa paid for the properties, the market value of the properties, or the value
that K.R. Playa or Citigroup believed these properties to be worth. Rather, it
simply asked the jury to consider the value of the insured properties as insured.
And, as noted above, the jury was instructed that the April 23, 1981 Decree was
valid and enforceable and that the Mexican Federal Government ―took or
acquired‖ each of these lots through this Decree.13 Under the language of the
charge, as insured, the properties were already ―taken or acquired‖ by the valid and
enforceable Decree. K.R. Playa‘s knowledge or lack thereof regarding the Decree
or its effect was simply not something that the jury was asked to consider in
answering the damages question.14 Thus, the jury, based on the charge given and
the court‘s instructions,15 could have determined that the value of the properties as
insured was identical to the value of the properties subject to the Decree because,
the properties as insured, were already subject to the Decree.
13
The jurors took oaths to render their verdict according to the law as it was given to
them in the charge. See Tex. R. Civ. P. 236. The charge instructed the jurors that if they failed
to follow the instructions, they would be guilty of juror misconduct. The jury is presumed to
have followed the court‘s instructions. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284
S.W.3d 851, 861–62 (Tex. 2009).
14
Although K.R. Playa adopted Citigroup‘s brief, Citigroup confined its argument on
damages to its own damages question. As noted above, the jury found zero damages for only six
of the ten properties as to Citigroup, but as to K.R. Playa, the jury found zero damages for all
sixteen properties. Thus, K.R. Playa has waived any issues relating to the jury‘s zero damages
findings, except to the extent that it is relevant to any of the issues that K.R. Playa properly
preserved and addressed in its own briefing. See Tex. R. App. P. 33.1(a), 38.1(i). However, we
note that, for the same reason that factually sufficient evidence supports the jury‘s finding of zero
damages in response to the question regarding Citigroup‘s damages, factually sufficient evidence
likewise supports the jury‘s finding of zero damages in response to the similar question posed to
the jury regarding K.R. Playa‘s damages.
15
See, e.g., Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate
court should review sufficiency of evidence based on charge given); Hirschfield Steel Co. v.
Kellogg Brown & Root, Inc., 201 S.W.3d 272, 283–86 (Tex. App.—Houston [14th Dist.] 2006,
no pet.) (reviewing sufficiency of evidence based on unobjected-to jury instruction).
15
Accordingly, after considering all the evidence, the jury‘s finding of zero
damages is not so weak or so against the overwhelming weight of the evidence that
it is clearly wrong and unjust.16 Mar. Overseas Corp., 971 S.W.2d at 406–07;
Cain, 709 S.W.2d at 176. We overrule Citigroup‘s third issue.
EXPERT TESTIMONY
In Citigroup‘s first issue, it argues that the trial court erred in admitting the
testimony of the Stewart Companies‘ expert Bruce Greenberg because his
testimony was unreliable and caused harmful error. A decision to admit or exclude
evidence rests within the sound discretion of the trial court. Bay Area Healthcare
Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam). A trial
court abuses its discretion when it acts without regard for guiding rules or
principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). But
even if the trial court abuses its discretion in admitting certain evidence, we only
reverse if the error was harmful—in other words, if it probably resulted in an
improper judgment. Id.
16
Further, the jury‘s zero damages award could be regarded as a simple failure of K.R.
Playa‘s proof on this issue. Accord Kormanik v.Seghers, 362 S.W.3d 679, 689–90 (Tex. App.—
Houston [14th Dist.] 2011, pet denied) (explaining that a jury‘s award of zero damages award
may, in some contexts, result from a failure of proof under the measure of damages submitted by
the trial court). Although there was expert testimony in this case, the two experts provided
widely disparate testimony regarding the hypothetical market value of the subject properties if
the Decree were not in effect. For example, Randall Bell, Kor/K.R. Playa‘s expert, testified that
the hypothetical market value of Tulum lots 10, 11, and 17, if they were not subject to the
Decree, would be approximately $7.1 million, $6.8 million, and $1.6 million. Bruce Greenberg,
the Stewart Companies‘ expert, testified that the hypothetical market value of these same
properties would be approximately $3.2 million, $1.8 million and $246,000 if they were not
subject to the Decree. Finally, Adam Miller with Starwood Ceruzzi, testified that he worked
with Kor on the Tulum acquisitions. He stated that he did not recall how Kor determined the
value of the Tulum Properties before making offers and that he could not recall being presented
with any appraisals for any of the Tulum Properties or having any discussions regarding the
value of the properties before Kor/K.R. Playa purchased them. Based on this evidence, the jury
may have determined that K.R. Playa failed to establish, by a preponderance of the evidence, any
value for these properties. See id.
16
Here, as discussed above, the evidence is sufficient to support the jury‘s
findings that K.R. Playa knew about the Decree and purchased the ten Tulum
Properties subject to it. The evidence is further sufficient to support the jury‘s zero
damages findings regarding the six Tulum Properties that K.R. Playa purchased
with no knowledge of the Decree. None of these findings turn on Greenberg‘s
testimony. Accordingly, even if the trial court abused its discretion in admitting
Greenberg‘s testimony—a question we need not determine—we cannot say that his
testimony probably resulted in an improper judgment. See id.; Tex. R. App. P.
44.1.
Indeed, Citigroup acknowledges in its briefing that the jury‘s zero damages
findings were not supported by Greenberg‘s testimony because Greenberg valued
its damages at nearly $4 million for the six lots at issue. Thus, Citigroup
essentially concedes that the jury ignored Greenberg‘s testimony on the basis for
which it was proffered—calculating damages. See Bayer Corp. v. DX Terminals
Ltd., 214 S.W.3d 586, 609 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)
(―Because the jury‘s damages award is supported by a calculation and related
evidence not specifically relied upon by DX‘s expert, it cannot be shown that the
ensuing judgment turned on the expert‘s testimony.). Accordingly, we overrule
Citigroup‘s first issue.
CITIGROUP’S STATE LAW CLAIMS
In Citigroup‘s fourth issue, it asserts that its ―Texas law claims should be
restored.‖ As noted above, Citigroup brought claims against Stewart U.S. based on
Stewart U.S.‘s alleged bad faith and Texas Insurance Code violations. Citigroup
claims that the ―district court barred Citigroup from urging these claims by holding
that Mexican law governed instead of Texas law.‖ In support of this issue,
17
Citigroup directs us to a trial court order denying its motion for the application of
Texas law to its claims against Stewart U.S.17
17
This order, signed on February 8, 2011, states:
After considering Citi‘s Motion for the Application of Texas Law to Citi‘s Claims
Against Stewart Title Guaranty Co. as well as Stewart Title Guaranty Co. and
Stewart Title Guaranty de Mexico‘s motions for summary judgment, the
pleadings, the response, the affidavits, and other evidence on file, the Court
DENIES Citi‘s Motion for the Application of Texas Law to Citi‘s Claims Against
Stewart Title Guaranty Co.
Citigroup further directs us to this colloquy in the Reporter‘s Record between its trial
counsel and the court:
MR. BILLECK: Your Honor, one thing -- I just want to make sure the
record is clear. And I know we‘re doing this in very summary fashion; but when
we talk about ruled in Stewarts‘ favor with respect to the insurance code claim,
the bad faith claim --
THE COURT: Well, I ruled that Texas law did not apply and Mexican law
applies, and there is no such cause of action under Mexican law.
MR. BILLECK: That‘s right. There’s no summary judgment as a matter of
the failure to prove the element. It’s only you find Mexican law applies, so you do
not believe those claims belong in this case. If it‘s later determined Texas law
applies, we‘re not prevented from saying there was no ruling on the merits. We
now get to prove our damages and recover under those.
THE COURT: I did not go through the analysis under Texas law of the
validity of your bad faith claims because I determined that Texas law did not
apply, Mexican law applies. So because of that there is no such cause of action
under Mexican law; and so, therefore, that will not be a part of this case.
MR. BILLECK: Understood.
THE COURT: I think probably the proper way for me to say it on the
record is if another court disagrees with me, you have not waived your argument
with regard to those causes of action from an evidentiary standpoint. My ruling
was based on a finding that Texas law did not apply.
(emphasis added).
After oral argument of this appeal, Citigroup filed a letter brief directing us to a reporter‘s
record reference where the trial court stated, ―However, whether the company did a good or a
bad investigation is not an issue in this case because I granted the Stewarts‘ summary judgment
on those points.‖ But Citigroup has not directed us to, nor have we found, any ruling by the trial
court other than these recollections of alleged previous rulings definitively stating that, as to
Citigroup’s state-law claims against Stewart U.S., Mexican law applies.
18
Citigroup is correct that choice of law is decided as a matter of law and
reviewed by this court de novo. See Sonat Exploration Co. v. Cudd Pressure
Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008). However, Citigroup failed to
preserve this issue by obtaining any adjudication of these claims. Although the
trial court denied its motion for the application of Texas law, Citigroup has not
directed us to any order denying, dismissing, or otherwise adjudicating its bad faith
and unfair settlement claims against Stewart U.S.18 These claims were thus still at
issue at the time of trial, and Citigroup should have formally sought submission of
them to the jury. Its failure to do so resulted in waiver of those claims. See Tex.
R. Civ. P. 279 (―Upon appeal all independent grounds of recovery or of defense
not conclusively established under the evidence and no element of which is
submitted or requested are waived.‖); Gulf States Utils. Co. v. Low, 79 S.W.3d
561, 565 (Tex. 2002) (explaining that a party waives an entire theory of recovery
or defense by not objecting to its omission from the charge, pursuant to Rule 279).
Because the record does not reflect that the trial court expressly ruled on
these claims and Citigroup failed to submit these claims to the jury, this issue
presents nothing for our review. Accordingly, it is overruled.
VIOLATIONS OF LIMINE ORDER
In K.R. Playa‘s third issue, it asserts that it is entitled to a new trial because
―Stewart[ Mexico]‘s numerous violations of orders on motions in limine deceived
the jury into believing that K.R. Playa owned the properties, a misconception that
poisoned the entire verdict.‖ But a motion in limine does not preserve any issue
18
In its briefing, Citigroup relies on Sonat Exploration Co., a summary-judgment case
from the Supreme Court of Texas, and suggests that we should construe all fact questions against
Stewart U.S. See Sonat Exploration Co., 271 S.W.3d at 231 (―As the trial court made its
decision here by summary judgment, we construe all fact questions against the movant . . . .‖).
Thus it appears that Citigroup was under the mistaken impression that a summary-judgment
motion had been granted adjudicating its state-law claims against Stewart U.S.
19
for appellate review. To preserve error as to an improper question asked in
contravention of a sustained motion in limine, a timely objection is necessary.
Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986); see Tex. R. App. P.
33.1(a); Tex. R. Evid. 103(a)(1). Otherwise, a trial court is denied the opportunity
to make a curative instruction or mistrial ruling. Pool, 715 S.W.2d at 637. Where
a trial court‘s order on a motion in limine is violated, we review the violations to
see if they are curable by instructions to the jury to disregard them. E.g., Dove v.
Dir., State Emps. Workers’ Comp. Div., 857 S.W.2d 577, 580 (Tex. App.—
Houston [1st Dist.] 1993, writ denied) (providing that prejudicial questions by
appellee, which violated order on motion in limine, to which motions for mistrial
were requested by appellant and denied by trial court, probably caused the
rendition of an improper judgment). We will only reverse if these violations
probably caused the rendition of an improper judgment. Cf. id.; see also Tex. R.
App. P. 44.1(a).
First, we note that K.R. Playa has failed to identify any specific order on a
motion in limine signed by the trial court. Rather, it directs us to an unsigned order
in the clerk‘s record. However, prior to opening argument, the parties were
cautioned by the trial court to refrain from putting any evidence before the jury that
Citigroup could foreclose on the Tulum Properties. The trial court further stated
that, should any party suggest
directly or indirectly, by questioning or testimony or other evidence,
that this expropriation decree is not valid, that these properties are not
included within that expropriation decree and that, actually, therefore,
there is no loss of title that‘s the basis of this lawsuit, meaning the
basis of the insurance claim,
then the court would provide ―some sort of instruction‖ to the jury. The trial court
further agreed that that the Stewart Companies should refrain from suggesting that
20
K.R. Playa could convey title to the Tulum Properties. The court noted that the
title companies could present evidence of how the properties were ―otherwise
marketable‖ because of (a) a provision in the title insurance policies concerning
such marketability, (b) certain ―hope contracts‖ that are apparently specific to
property acquisitions in Mexico, and (c) the issue of property valuation with the
encumbrance, i.e., the value of the Tulum Properties notwithstanding the effect of
the Decree. The trial judge clarified, however, that there should not be any
suggestion that Citigroup or K.R. Playa could validly sell the property with good
title.
K.R. Playa identifies numerous alleged violations of the trial court‘s
instructions. K.R. Playa or Citigroup objected to several of these violations and
the trial court instructed counsel for the Stewart Companies outside the presence of
the jury to refrain from making reference to certain matters. Additionally, because
of the Stewart Companies‘ violations of the trial court‘s orders, the trial court twice
verbally instructed the jury that the Decree was ―valid and enforceable.‖ Finally,
in the jury charge, the trial court instructed the jury ―that the April 23, 1981
Expropriation Decree is a valid and enforceable decree.‖ The Decree was defined
in the charge as ―the April 23, 1981 Expropriation Decree by which the Mexican
Federal Government took or acquired the 16 Tulum lots.‖
Several other alleged violations of the limine order identified by K.R. Playa,
however, were unobjected-to or objected-to well after the alleged violation
occurred. Further, many of the alleged violations identified in K.R. Playa‘s
briefing on this issue resulted in an unspecified objection by either Citigroup or
K.R. Playa, followed by a discussion off the record, with the trial court then
sustaining the unspecified objection. Finally, K.R. Playa identifies several
unobjected-to alleged violations of the court‘s orders that occurred during Stewart
21
Mexico‘s closing argument. None of these alleged violations preserved any error
for our review, either because no objection was made or we cannot determine from
the record the nature of the objection and ruling. See Pool, 715 S.W.2d at 637;
Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1).
Moreover, K.R. Playa does not identify anywhere in the record that either it
or Citigroup sought a mistrial for the Stewart Companies‘ alleged violations of the
court‘s orders. See, e.g., Dove, 857 S.W.2d at 580 (motion for mistrial made after
limine order violated and denied by trial court); Kendrix v. S. Pac. Transp. Co.,
907 S.W.2d 111, 114 (Tex. App.—Beaumont 1995, writ denied) (same). In fact, in
at least one instance on the record, Citigroup‘s counsel specifically stated that it
did not want a mistrial.19
Here, as noted above, the trial court provided two verbal instructions during
trial that the Decree was valid and enforceable. It further instructed the jury in its
charge to that effect as well as providing a definition in the charge that the
Mexican Federal Government ―took or acquired the 16 Tulum lots‖ through the
Decree. As noted above, we presume that the jury followed the trial court‘s
instructions. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 861–62.
Under these circumstances, K.R. Playa has failed to establish that any properly
preserved violations of the trial court‘s orders probably caused the rendition of an
improper judgment. See Tex. R. App. P. 44.1(a). Accordingly, we overrule K. R.
Playa‘s third issue.
19
Rather, in support of its argument that the Stewart companies‘ ―repeatedly‖ violated
the trial court‘s ―orders on motions in limine,‖ K.R. Playa focuses on the jury‘s findings that it
assumed or agreed to the Decree and the jury‘s award of zero damages to it. But we have
already determined that both of these findings are supported by sufficient evidence.
22
CONCLUSION
In summary, we have determined that there is legally sufficient evidence to
support the jury‘s finding that, at the time K.R. Playa purchased ten of the sixteen
Tulum Properties at issue, it knew and assumed or agreed to the effects of the
Decree. For the remaining six properties, there is sufficient evidence to support the
jury‘s finding of zero damages as to each of them. We have further concluded that
the admission of Bruce Greenberg‘s testimony, if erroneous, probably did not
cause the rendition of an improper judgment and that Citigroup failed to preserve
its complaints regarding its state-law claims. Finally, K.R. Playa has not
established that any of the properly preserved violations of the trial court‘s orders
probably caused the rendition of an improper judgment. Our disposition of these
issues supports the trial court‘s take-nothing judgment in favor of the Stewart
Companies.
Accordingly, we overrule all four of Citigroup‘s issues and all three of K.R.
Playa‘s issues. See Tex. R. App. P. 47.1. The judgment of the trial court is
affirmed.
/s/ Sharon McCally
Justice
Panel consists of Justices Brown, Jamison, and McCally.
23