In the Estate of Jose C. Montemayor v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-21-00054-CV
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IN THE ESTATE OF JOSE C. MONTEMAYOR, DECEASED
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On Appeal from the County Court at Law No. 2
Brazos County, Texas
Trial Cause No. 16,037-PC
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MEMORANDUM OPINION
Francisca Montemayor as Independent Executrix of the Estate of Jose C.
Montemayor (Francisca or Appellant) appeals the judgment in favor of Zane
Anderson (Anderson or Appellee) from a 2014 lawsuit filed by Anderson against
Jose Montemayor (Jose) and Jose’s guardians for specific performance of contracts
signed by Jose and Anderson in March 2013 for the sale of five parcels of real
property in Bryan, Texas.1 After Jose and his guardians were served with the lawsuit
1
This case was transferred to our Court from the Tenth Court of Appeals in
Waco, Texas under an order issued by the Supreme Court of Texas. See Tex. Gov’t
Code Ann. § 73.001.
1
and after his guardians filed an answer on his behalf, Jose died, and his sister,
Francisca, was appointed executrix of his estate and entered an appearance as the
defendant. The jury found in favor of Anderson, and the trial court entered a
judgment in accordance with the jury’s verdict.
Francisca appeals raising three issues. In her first two appellate issues,
Appellant challenges the sufficiency of the evidence supporting two of the jury’s
findings. In issue three, Appellant argues that, based on her arguments in issues one
and two, she should have been the prevailing party and awarded attorney’s fees.
Finding no error, we affirm.
Background
Anderson filed Plaintiff’s Original Petition (“Anderson’s Petition”) against
Jose and his guardians (Edmundo “Javier” Posadas, Karla Carrera, and Sergio
Carrera) claiming Jose and his guardians failed to perform under five real estate
contracts. Anderson sought specific performance of all five written contracts.
Anderson alleged that he had agreed to buy, and Jose had agreed to sell him, the five
pieces of property. Anderson and Jose executed the real estate contracts prior to a
guardianship proceeding over Jose which was later filed by Jose’s relatives.
According to Anderson’s Petition, Anderson and Jose entered into the
contracts on March 4, 2013, and the purchase price for all five properties was a total
of $535,000. On April 17, 2013, Javier, Karla, and Sergio filed an application for
2
Guardianship of the Person and Estate of Jose Montemayor. On May 24, 2013,
Javier, Karla, and Sergio were appointed as Temporary Guardians of the Person and
Estate of Jose Montemayor, and on August 27, 2013, they were appointed as
Permanent Guardians of the Person and Estate of Jose Montemayor. Anderson’s
Petition alleged that Anderson timely performed or tendered performance of all his
obligations under the contracts and he remains ready, willing, and able to complete
the contracts. Anderson alleged that Jose and the guardians have failed to fulfill their
obligations under the contracts. Anderson sought specific performance of the
contracts and reasonable and necessary attorney’s fees.
The guardians filed a general denial answer and asserted affirmative defenses
that Jose lacked capacity to contract, that Jose entered into the contracts as a result
of undue influence, and that the contracts were unenforceable. After Jose died,
Francisca, as executrix of Jose’s estate, entered her appearance as the defendant and
filed Defendant’s First Amended Original Answer and Counterclaim, generally
denying Anderson’s allegations and asserting that Jose was excused from complying
with the obligations under the contracts because he lacked sufficient mind and
memory to understand the nature and consequences of his acts and the business he
was transacting. The pleading also asserted a counterclaim for attorney’s fees against
Anderson if Francisca prevailed.
3
After a trial, the jury found (1) Jose failed to comply with the earnest money
contracts; (2) Anderson was ready, willing, and able to perform the contracts; (3)
Jose’s failure to comply was not excused because at the time he signed the contracts
he had sufficient mind and memory to understand the nature and consequences of
his acts and the business he was transacting; (4) the amount of reasonable fees for
the necessary services of Anderson’s attorney; and (5) the amount of reasonable fees
for the necessary services of the personal representative of the estate’s attorney.
Anderson filed a Motion for Judgment, Francisca filed a Motion for Judgment
Notwithstanding the Verdict, and Anderson filed a response. The trial court signed
a judgment for Anderson on the jury’s verdict, ordered specific performance of the
commercial real estate contracts, and awarded Anderson attorney’s fees. Francisca’s
post-judgment motions were overruled by operation of law, and she appealed the
trial court’s judgment. We affirm.
Evidence at Trial 2
Testimony of Zane Anderson
Zane Anderson testified that he had been a real estate broker since 2002 and
had “done a lot of redevelopment of downtown historic buildings, older property
redevelopment.” According to Anderson, he knew Jose because they lived down the
2
In this memorandum opinion, we only discuss evidence pertinent to our
discussion of the issues on appeal.
4
street from each other when Anderson was a child, and he also knew Jose from
“being a downtown business person[]” that Anderson would see maybe once a year
at business association events, and Anderson knew Jose “[j]ust casually” from eating
at Jose’s restaurant and visiting with him there. Anderson testified that he regularly
ate at Jose’s restaurant with a friend, Sam Boggan. Boggan was a banker at Wells
Fargo where Jose banked, and one day Jose stopped by Boggan’s desk at the bank
and told him he wanted Boggan to put Anderson in contact with Jose because Jose
was interested in selling some property. Boggan contacted Anderson in August of
2012 and told him that Jose wanted to talk about selling a building. Anderson
testified that he did not initially call Jose because Anderson was involved in other
projects and did not really have the time or finances to jump into another project. In
October of 2012, after Jose had inquired again with Boggan, Anderson called Jose
and they set up a meeting.
Anderson testified that he and Jose met at Jose’s restaurant in October, they
sat at a table in the restaurant during business hours, and they discussed that Jose
wanted to sell some properties. Jose was leaving for Mexico the next day, so he
asked Anderson to call him in a couple of weeks so he could show Anderson the
properties. According to Anderson, during the meeting Jose was glad that Anderson
had finally contacted him and seemed “like himself; friendly and happy[,]”
Anderson had no concerns about Jose’s ability to understand their conversation or
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about moving forward with a real estate contract with Jose, and no one at the
restaurant expressed concerns about Anderson visiting with Jose about real estate or
a business deal.
Later that month, Anderson called Jose and Jose showed him five downtown
properties that he was interested in selling to Anderson, and Jose said that his
motivation for selling the properties was that he was tired of paying property taxes
on them. Jose had other properties including his restaurant that he was not selling at
that time. Anderson testified that Gary McKinzie, whom Anderson had never met
before, was with Jose when Jose showed Anderson the five properties. Jose told
Anderson that McKinzie was Jose’s “trusted friend[]” and someone who helped Jose
with maintenance on his buildings. Jose brought with him a stack of cards from the
tax appraisal district for each property that he was wanting to sell, and the cards
showed basic details regarding each property such as the current value of the
building, square footage of the building, and the square footage of the land under the
building. When they left the meeting, Jose told Anderson that he and McKinzie
would talk things over, and later McKinzie would get back with Anderson regarding
the selling price for the buildings. Anderson testified that as Jose showed him the
properties, Jose seemed to know what he owned and understood the questions
Anderson asked him.
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Anderson testified that in December of 2012, McKinzie contacted him and
stated the selling price for all five properties was about $600,000. Anderson asked
for any leases on the properties so he could consider those when making a
counteroffer, and McKinzie told him that Jose had gone to Mexico again and it might
be a while until McKinzie could get the leases to Anderson. Anderson testified that
at that time he was familiar with the market price of downtown properties. In
February of 2013, McKinzie gave him copies of the leases for two of the properties
that were leased, and after considering the repairs and renovations that would be
required, Anderson met with McKinzie and counter-offered with what he believed
was a fair offer -- $515,000 for the five properties -- which was about twenty percent
over the appraised value. McKinzie called him and countered with $535,000, and
Anderson told him that they had a deal, and Anderson would have the contracts
drawn up. Anderson testified that McKinzie seemed to be knowledgeable, a “good
business person[,]” and “pretty astute at real estate contracts.” Anderson believed
that at the time the contracts were prepared in 2013 the total market value of the
properties was in the range of the contracted price of $535,000 and that neither he
nor Jose was getting a particular good or bad deal.
Anderson testified that he prepared the five contracts, that each contained
boilerplate contract language for commercial properties and promulgated by the
Texas Association of Realtors, and McKenzie picked them up from Anderson’s
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office. According to Anderson, he was going to get bank financing for four of the
properties and he had asked Jose to owner finance the fifth property for two years so
that Anderson could reduce closing costs by avoiding paying for appraisals on the
four by using their tax appraised values and then the selling price of the fifth property
was the difference in the $535,000 total selling price. Anderson testified that each of
the contracts had a closing day of the later of May 31, 2013, or seven days after
objections to the title commitment had been cured, but since no objections were
made to the title commitment the closing date was May 31, 2013. McKinzie brought
the contracts back to Anderson and they were signed by Jose and then Anderson
signed them. Anderson took the contracts along with his $5000 earnest money check
to a title company.
Anderson testified that to prepare for closing on the contracts he took the
contracts to his bank to have his banker start the loan process, and he ordered surveys
on the properties the bank was financing because Jose did not have copies of the
surveys and the bank wanted them. According to Anderson, the bank ordered
appraisals done on the four properties to close the loan and the interest rate for the
four loans financed by the bank was “around four and a half percent.” Anderson
testified he did not anticipate a problem in closing the transaction until he received
a phone call from Chalon Jones on April 18, 2013. Jones identified himself as Jose’s
former attorney, told Anderson that he was aware of Jose’s real estate contracts with
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Anderson, said that there was a 95% chance that they would not be able to close
because he believed Jose lacked capacity to sign the contracts or sell the properties,
and he stated that Jose did not understand the tax consequences of the sale. Anderson
testified that he knew Jones was a local lawyer but did not know him personally and
Jose had never mentioned him, and Anderson was shocked by Jones’s call “out of
nowhere.” When Jones asked Anderson what title company was being used,
Anderson realized Jones did not know much information and Anderson told him he
was not comfortable talking to him. Thereafter, Anderson called McKinzie and
McKinzie informed him that they were trying to “clear up” a problem, that Jones
was Jose’s former attorney that Jose had fired a year earlier, and that Jones and some
of Jose’s family had said he was incapacitated and had the court place him in a
temporary guardianship. McKinzie said that Jose was still at the restaurant and in
care of his family and that Anderson could go up to the restaurant and talk to Jose,
but that the family members had a temporary restraining order against McKinzie and
two of Jose’s employees. Anderson testified that the next day he went to the
restaurant and sat down and talked to Jose, the visit was similar to the other visits he
had with Jose, no one approached and told Anderson he could not do business with
Jose, it was apparent to Anderson that Jose understood who Anderson was and why
he was there, Jose seemed lucid, and it was Anderson’s impression that he and Jose
both still wanted to go forward with the contracts. Anderson testified that at the time
9
he did not have anything to do with or understand what was transpiring with the
guardianship.
Anderson testified that he had done everything required of him to close on the
contracts, and that based on the commitments, the appraisals, the surveys, and
arranging things with the bank, he was fully committed, fully prepared to close on
the properties on May 31, 2013. According to Anderson, Anderson sent Jose’s
attorney a letter stating Anderson was ready, willing, and able to still perform on the
contracts and was willing to close on May 31, 2013, under the agreed upon terms.
Anderson testified that at the time of trial he was still ready, willing, and able to
purchase the properties on the agreed upon terms (with a different closing date due
to the passage of time). Anderson testified about what needed to be done to close on
the properties, and Anderson stated, “[e]verything’s done really. It’s kind of been
done for years now.”
According to Anderson, at the time the contracts were signed and based on
his interactions with Jose over the preceding months before they signed the
contracts, Anderson had no concerns about Jose signing the contracts, Anderson had
no awareness that there was any problem with the contracts or with Jose signing
them, Anderson never got the sense that Jose did not understand the properties that
he owned or that he was selling the five properties and that he was going to receive
money and a note, and Anderson had no concerns whatsoever that Joe lacked
10
capacity. According to Anderson, he was asking the court and the jury to go forward
with the contracts that he agreed to in 2013.
Testimony of Sam Boggan
At trial, excerpts of the deposition of Sam Boggan were read into the record.
Boggan testified that he was a banker at Wells Fargo Bank from May of 2011 until
July of 2020. According to Boggan, he and Anderson had been friends for close to
ten years and Anderson owned many buildings downtown. Boggan had known Jose
since 2008 and would speak to Jose at Wells Fargo where Jose conducted his
banking business, and Boggan also spoke to Jose when he ate lunch at Jose’s
restaurant weekly, up until 2013 when Boggan began working at a different branch
and stopped eating lunch at Jose’s. Boggan would usually deal with Jose directly at
the bank and would help him if he was needing assistance that the tellers could not
provide, like if he needed a large amount of cash.
Boggan testified that he knew that Jose owned buildings downtown because
Jose would speak about having to make repairs, and Boggan remembered that
sometime in 2011 at Jose’s restaurant Jose mentioned having to repeatedly make
repairs to one of his buildings and he was frustrated. In late 2011, after Jose saw
Boggan having lunch with Anderson at Jose’s restaurant, Jose asked Boggan if he
could ask Anderson to call Jose about buying some of Jose’s buildings downtown
and Jose said he was tired of paying the taxes and having to make repairs on the
11
buildings. Boggan testified he told Jose he would talk to Anderson, Boggan called
Anderson and told him Jose wanted to speak to Anderson about buying some of
Jose’s buildings downtown, and Anderson seemed interested. Later, Jose called
Boggan at the bank to inquire if Boggan had spoken to Anderson, and Jose “stayed
on” Boggan for about a month until Anderson finally contacted Jose.
Boggan explained that Jose generally seemed to know what he was talking
about and did not seem in any way mentally disoriented. Boggan last saw Jose in
2012.
Testimony of Gary McKinzie
Gary McKinzie testified he owned an air conditioning business, he met Jose
when he fixed Jose’s restaurant’s air conditioning, and from there a long friendship
began. McKinzie testified he ate at Jose’s restaurant almost every day for lunch for
ten or twelve years. According to McKinzie, he did not initially know that Jose
owned other buildings besides the restaurant, but over time Jose began asking
McKinzie to make air conditioning or electrical or other repairs to all of Jose’s
buildings downtown.
McKinzie went to the tax office with Jose, a tax office employee gave Jose a
list of the total taxes he owed on his properties, and Jose complained about paying
the taxes for so long and mentioned wanting to sell his properties. According to
McKinzie, one day Jose mentioned that he had talked to his banker about seeing if
12
he knew anyone that would be interested in buying the properties, and then a couple
of days later Jose called McKinzie and asked him if he could meet a potential buyer
at one of the properties and then take him to look at the other properties because
McKinzie knew all about the properties. McKinzie met Jose and Anderson at the
first location along with one of McKinzie’s employees, and then they went to see
the other properties. McKinzie testified that the properties looked outdated and
needed repairs, and he explained the condition of the properties as he showed them
to Anderson so that Anderson could make a fair and accurate assessment of the
properties.
McKinzie testified that when Anderson made an initial offer, McKinzie told
Jose he felt like Jose could get a higher price and Jose “followed [McKinzie’s] lead
in making the counter[,]” and they felt like that price was the market price
considering the properties’ overall value, repairs that were needed, and any leases in
place. McKinzie testified that when Anderson brought him the contracts, McKinzie
and Jose went over them in the restaurant dining area, Jose signed all the documents,
and they spent approximately four hours talking about the contracts. McKinzie
testified that they reviewed one of the contracts “line by line[]” and then compared
the other four contracts to that one to see any differences.
McKinzie explained that Jose “sought the buyer[,]” and McKinzie believed
Jose understood that he was selling the five properties listed in the contracts, Jose
13
understood the prices he was getting per property, and how the owner financing was
set up on the one property. According to McKinzie, while they were meeting, none
of the employees or people around interrupted nor did they question Jose’s ability to
do business. At the time Jose signed the contracts, McKinzie had no concerns about
Jose not being “lucid.” McKinzie stated that “[a]t the time the contracts were signed,
there [was] no doubt in my mind that Jose knew what he was doing[.]” According
to McKinzie, “on that day that those [contracts] were signed, there was nothing
wrong with Jose.” If something had been wrong with Jose, McKinzie would have
been the first person to step in, and before Jose signed the contracts McKinzie never
saw anything whatsoever that gave him concern about Jose’s mental condition or his
cognitive abilities.
McKinzie said he had done business with Jose for sixteen years and Jose was
his friend, he did not charge Jose anything for helping him with the contracts, and
Jose did not pay him any kind of brokerage fee. According to McKinzie, once the
guardianship was in place, he would visit Jose at his mother’s house, but at some
point multiple family members made a point to be there when McKinzie came over,
McKinzie worried about “what it would put on Jose” and he told Jose that he thought
it was best that he not come by anymore. McKinzie testified that Jose said that he
understood, and that was the last time McKinzie saw or talked to Jose. According to
McKinzie, other than paying for his business services, over the years Jose had
14
occasionally tried to give McKinzie things, like some heirlooms from a storage unit
that Jose had paid McKinzie’s brother-in-law to clean out and some gold pieces in a
safe he had asked McKinzie to help him get open, but that McKinzie had declined
the gifts. McKinzie testified that at one time Jose owed him approximately $63,000
for work, and that often when Jose would come back from Mexico, he would pay
large portions to McKinzie towards the amount he owed. McKinzie agreed that over
the years it was possible that his company billed Jose for over $200,000 worth of air
conditioning and heating and electrical work, and that McKinzie had other individual
customers that gave him as much business as Jose. McKinzie testified that he took
Jose to Dr. Barrow to address his diabetes because his blood sugar was “400[,]” and
McKinzie was diabetic and knew that level of blood sugar was a concern. McKinzie
said he would not be surprised if there were medical records stating that Jose suffered
from memory loss, dementia, and possible Alzheimer’s. According to McKinzie, at
the time of Jose’s death, Jose owed McKinzie $10,000, and although McKinzie filed
a claim against the estate for that debt, he ultimately non-suited the claim.
Testimony of Edmundo Javier Posadas Montemayor
Edmundo Javier Posadas Montemayor (Javier) testified that he was Jose’s
oldest nephew and that his mother was representing Jose’s estate in this case.
According to Javier, he, his sister Karla, and his sister’s former husband, Sergio,
were the three co-applicants in the guardianship proceeding that started in April of
15
2013. Javier testified he was an accountant and lived in Houston where he works in
oil and gas, and he has worked for several companies for the past twenty-five years.
Javier testified that growing up he would spend time in College Station and work at
Jose’s restaurant and that he was close with Jose. Although Javier moved to Houston,
Karla and Sergio continued to live in College Station and would see Jose on the
weekends and every other day.
Javier testified that Chalon Jones had been Jose’s attorney for twenty or thirty
years for business transactions and for estate planning. According to Javier, in 2006
Jones did some estate planning for Jose that included a statutory durable power of
attorney naming Karla and Sergio as the family members in town to serve as Jose’s
agents in the event that Jose could not make decisions for himself in the future. Javier
testified that when the durable power of attorney was executed there were no
concerns about Jose’s capacity. Javier testified that prior to 2011, Jose successfully
ran his restaurant, owned multiple properties, traveled back and forth to Mexico, and
participated in community affairs, but in 2011 Jose’s family started to notice a
decline with Jose.
Javier testified in May of 2011 or 2012 when he visited the restaurant,
employees informed him, “you need to watch over your uncle because things are
happening[,]” but they never gave any details. In 2011 or 2012, Javier went to his
grandmother’s house where Jose stayed, and it was “ransacked” like it had been
16
broken into, but Jose did not have an explanation for it. Javier testified that Jose and
Javier’s grandmother would often go to Mexico and two of Jose’s restaurant
employees had access to the house to check on the property. Javier contacted Adult
Protective Services after the house had been “trashed” and because Jose had been
aggressive with family, and they were concerned about him being taken care of when
the family was away.
Javier testified that Jose was 70 or 71 years old when he began mentally
declining, and Jose seemed preoccupied, he lost credit cards, employees were
reporting that he was forgetting things, he was repetitive in his storytelling, and he
was getting notices from the State Comptroller’s Office relating to invoices from
McKinzie for which sales tax had not been charged. Raquel, the manager at Jose’s
restaurant for twenty years, would help Jose with health matters and would
communicate with the family about Jose’s health. Javier noticed charges appearing
on Jose’s credit card statements for cards he had lost, that two restaurant employees
had access to the cards, and when Jose was told about the charges, he did not seem
alarmed but said that he must have misplaced the cards. Javier testified that in 2012,
he was having dinner with Jose at Jose’s restaurant and Jose would not eat until
Javier told him to eat. Javier asked Jose if he could do an inventory on the restaurant
to see what was going on with the finances, and Jose agreed. When Javier began
looking into the restaurant’s finances, his and Raquel’s suspicion that the two
17
restaurant employees were taking advantage of Jose increased. Javier said he was
unable to complete the inventory because one of those two employees Javier was
suspicious of called Jose in Mexico, and then Jose called Javier and accused him of
stopping business at the restaurant and stealing from him. In 2012, Jose executed a
revocation of the prior power attorney, and around the same time, Jose ended his
business relationship with Jones, who had been Jose’s personal attorney for over
thirty years. According to Javier, Jose was also not collecting all the rent owed him,
tenants were complaining he was not making repairs, maintenance on the restaurant
was not being performed, there were cash flow problems and failure to pay vendors,
and the two restaurant employees Javier was suspicious of were running more and
more of the business.
Javier believed that by around 2012 Jose’s mental health had declined. Javier
testified that his belief was supported by the May 2012 letter of Dr. Thomas Ginn,
their family doctor, that was obtained by Jones in an effort to resolve the issue with
the State Comptroller’s Office, and the letter stated that Jose was suffering from
dementia and that Jose had been to see a neurologist. Javier believed Jose had seen
two neurologists and that by May 2012 both neurologists found Jose suffered from
dementia and possibly Alzheimer’s. According to Javier, in 2012, every time Javier
offered to help Jose, he would refuse help and then turn to McKinzie and the two
restaurant employees Javier was suspicious of. Jose gave one of the two employees
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a truck in exchange for mowing Jose’s grass, gave the other employee’s child a
collection of gold coins, and his expensive furniture ended up at the two employees’
homes.
Javier testified that in March of 2013, the same day the contracts were signed,
Jose was hospitalized with high diabetes, he was not taking his medications properly,
and was not addressing his dehydration. Jose stayed overnight and was released the
next day from the hospital. Javier testified that in April 2013, he received a call from
Raquel that Jose was at the restaurant with McKinzie and the two restaurant
employees, and McKinzie was having Jose sign documents. According to Javier,
Raquel also called Jones and Jones told her the family had “screwed up” because in
2012 they did not get a guardianship, and they should have listened to Jones’s advice
and should have filed for guardianship in 2012. Javier testified that after Raquel’s
call in April 2013 about Jose signing documents (which Javier agreed that based on
timing could not have been the contracts on the five properties), Javier “panicked”
and he and Karla and his former brother-in-law decided to act.
Javier, Karla, and Sergio filed a temporary guardianship application, a
temporary restraining order to keep the two employees and McKinzie away from
Jose’s finances, and a lis pendens on Jose’s property. The guardianship application
was file-stamped April 17, 2013. In April 2013, a temporary restraining order was
signed as to the two restaurant employees and McKinzie, and Javier testified that
19
they waited until 2013 to seek help from the court because the family was reluctant
to act because they did not want to cause Jose’s mental health to further decline.
According to Javier, over the next year after he qualified as temporary guardian,
Jose’s mental health further declined, and the cost for Jose’s monthly care was over
$3000 a month for caregivers.
Javier agreed that he was aware that Dr. Ginn’s records showed that Jose’s
Mini-Mental score from 2011 was a 25 out of 30 which indicated normal cognition,
that in August 2012 Jose signed a revocation of power of attorney before a notary
public, that in November 2012 Dr. Ginn noted that Jose was conversant and oriented
during an exam, that in January 2013 Dr. Ginn’s office allowed Jose to sign a HIPAA
release about his patient’s rights, and that in April 2013 Scott and White Hospital
allowed Jose to sign a similar release and consent to treatment.
Javier agreed that Jose was not selling all his properties (such as the restaurant
and the house where Javier’s grandmother lived), and that two of the properties Jose
was selling were vacant and had no cash flow but had expenses such as repairs and
property taxes. Javier admitted that in December of 2018, the Court removed Javier,
Karla, and Sergio as guardians because they failed to comply with the Texas Estates
Code by timely filing annual reports and annual accounts, failing to post a $500,000
bond, and failing to sell a property as ordered by the court. Javier agreed that when
the three family members were removed, the court replaced them with an attorney.
20
Javier agreed that he understood that those inheriting from a person’s estate could
benefit if the properties owned by that person are not sold until that person dies
because the capital gains tax created by a step-up basis are avoided. Javier testified
that he and those that had filed for the guardianship, along with other family
members who attended trial, would inherit from Jose’s estate. According to Javier,
however, in filing the guardianship plan and acting as guardian, he was not trying to
save the properties for himself and the other two family members who had filed the
application for guardianship. According to Javier, the estate was complicated, the
guardians of the estate were trying to keep it together the best that they could in their
roles as guardians, the attorney’s fees were expensive, and he gathered information
and presented it to the attorneys the entire time he served as co-guardian.
Testimony of Chalon Jones
Chalon Jones testified that he had known Jose since the early 1970’s, that Jose
was a good friend and good client, and that Jones knew Jose well. In 2006, Jones got
Jose to do a new power of attorney because he could see Jose had many rent
properties and that Jose would need help with them at some point as he got older.
Jones testified that as Jose’s lawyer and friend he felt it was his responsibility to look
out for Jose. For instance, on one occasion Jose started to buy property to put another
restaurant on, but Jones knew the property was restricted for residential purposes
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only, so Jones explained to Jose that he could not build a restaurant on that property,
and Jones called the sellers and cancelled that purchase.
Jones testified that in the middle of 2011, Jose let his insurance lapse on his
rental property, Jones (who serviced the loan for another client who had loaned Jose
money) was notified by the insurance company, Jose did not have any explanation
for letting it lapse, and he almost let it lapse again later. According to Jones, Jose
would also regularly come in and pay the mortgage payments on that loan to Jones,
but in 2011 he started just paying with random and sometimes insufficient amounts
of cash from his pocket and refused Jones’s suggestion for Jose to set up a bank draft
to make the payments. Jones testified that this made him concerned that Jose could
be mentally declining. In late 2011 and early 2012, Raquel from Jose’s restaurant
would alert Jones about problems she was observing with Jose, like his driving. In
May of 2012, Jones heard Raquel’s concern about Jose’s driving, and Jones waited
in his car outside one of Jose’s properties and, once Jose came out and got in his own
car, Jones followed him. According to Jones, Jose ran two stop signs, ran red traffic
lights, almost had a collision, and repeatedly used his “blinker” but did not turn.
Jones talked with Jose’s family about it and they tried to take Jose’s keys from him,
but Jose would get more keys made so they finally took his license plates off his car.
Eventually, Jose allowed someone else to drive him everywhere.
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Jones also found out that Jose purchased a home in a nice subdivision and
Jones investigated because it was a “giant” and expensive house for a single person
and a “long way out there[.]” Jones testified that when he looked into how Jose had
financed the purchase of the home by checking through the title company that had
handled the closing, Jones learned Jose had obtained the financing through a local
bank. According to Jones, he “wasn’t involved in the transaction and probably on
purpose. It was a realtor involved who wouldn’t want me around, and also Jose
probably didn’t either.” Jones also testified that on another occasion he learned that
Jose had taken out a $30,500 loan with a lien against his restaurant and when Jones
inquired about it to Jose, Jose responded, “I would never mortgage the restaurant.”
Jones testified that despite the fact that Jose had been coming to Jones’s office at
least monthly since 2007, Jose began missing appointments with Jones because Jose
could not find Jones’s office. Jones also learned that one of Jose’s tenants was in
serious arrears, and Jones had prepared the lease for that matter. When Jones
confronted Jose about it, Jose explained that the tenants were “having a hard time[,]”
but Jones felt like the tenant’s business was doing well and the tenant was taking
advantage of Jose.
Jones testified that he had concerns about Jose’s cognitive ability because it
seemed people close to him were taking advantage of him. Jones testified that he
believed that one of Jose’s employees that was close to Jose was “getting money
23
from Jose and he shouldn’t have been[,]” that a young man that was a “garden
hand[]” who mowed Jose’s yard and drove Jose around had a new $40,000 truck,
and that Jose was paying “way too much for his air conditioning bills.” Jones
testified he also thought Jose was having cognitive difficulties because sometimes
Jones had to explain things three times to Jose.
During the 2011 to 2012 timeframe Jones dealt with the State Comptroller’s
Office regarding Jose failing to file sales tax reports, he explained to the Comptroller
that Jose was “losing it mentally[,]” and Jones went to Dr. Ginn for Ginn to observe
Jose and write a letter indicating that Jose was having some mental problems.
According to Jones, when he suggested to Jose that he needed help, Jose responded
that he did not need help and that he was “just a little old and forgetful[,]” and that
he was “doing all right.” Jones testified that Jose would talk about how his sister was
“too pushy” and that he did not want his sister’s husband, Sergio, taking care of his
business. Jones volunteered to take over the management of Jose’s real estate, but
Jose did not want Jones to manage the properties. Jones worked with Jose’s family
members to try and get them to file a guardianship. Jose fired Jones as his attorney
on August 22, 2012, which surprised Jones. Later Jones learned that Kevin Bell from
Houston would be Jose’s new lawyer, Bell asked for Jose’s files, and McKinzie
picked the files up from Jones.
24
Regarding the five commercial real estate contracts, Jones testified that Jose
never talked to Jones about the contracts. Jones expressed the opinion that someone
suffering from dementia would be unable to understand the nature and consequences
of those contracts, that at the time Jose signed the contracts Jose did not understand
that he was selling the five properties for the prices indicated on the contracts and
that one would be owner financed and one purchased through financing through a
third party, and Jones believed that Jose did not have sufficient mental capacity and
memory to understand all the alternatives to selling the property. Jones also believed
that in 2013 Jose was not capable of analyzing and understanding capital gains issues
with sales of property and he would not have understood that if the purchaser
defaulted on the note for the property that was owner financed that it could end up
in litigation even if Jones had explained it to him. Jones did believe that Jose could
have possibly understood that he was not getting all of the purchase price up front,
and that money would be paid later.
Jones testified that he learned about the contracts on August 16, 2013, that he
called Anderson and told Anderson he did not think the contracts were going to
close, but he did not tell him he was Jose’s former attorney. According to Jones, later
that same day Raquel called and told Jones that McKinzie, Anderson, and Jose were
about to close the deal that day at Jose’s restaurant, but Jones acknowledged at trial
that the contracts involved a title company that would handle closing and that when
25
Jones went to the restaurant that day, Anderson was not there. Jones testified he
believed Anderson was somehow in a conspiracy with either the employees of the
restaurant or McKinzie.
Jones filed a claim against Jose’s estate for approximately $45,000 for legal
services rendered July 2011 and past the date that Jose fired him. According to Jones,
he helped Jose’s family file the guardianship action after he had been fired by Jose,
but he did not have Jose sign a waiver of attorney-client privilege that would allow
Jones to disclose information to Jose’s family members. When asked if he
remembered, as part of the claim he filed against Jose’s estate, making a statement
that “we need to sue Gary McKinzie to get that mud on Zane Anderson’s skirt
because McKinzie is the one who got Anderson on Jose’s trail?” Jones answered,
“Sounds like something I might have said.” Jones admitted not knowing who
initiated contact with respect to the sale of the properties, and he did not know
whether McKinzie and Anderson had ever met prior to this deal.
Testimony of Gregory Burr
Gregory Burr testified that he was a co-owner of a building next door to one
of Jose’s old restaurants, and Burr was a busboy at that restaurant when he was
thirteen. Burr testified that when he got into the family business around 1990, he
would see Jose on a regular basis, and Jose was a friend and “like family” to Burr.
According to Burr, in the couple of years prior to 2013, Burr “could see that [Jose]
26
had dementia/Alzheimer’s[]” and “shaking in the hands and [] Parkinson’s disease.”
Burr explained that he had watched his mother’s decline with Alzheimer’s, and he
observed a similar decline in Jose. Burr testified that several times when Jose would
collect the rent from the tenant in the building next door, Jose would get confused
and come into Burr’s building because Jose was unable find his vehicle.
Burr testified that in March of 2013, he was alarmed when he saw Jose at
Jose’s restaurant greeting tables like he always did, but this time “[h]e went to a
couple of tables more than once, more than twice, three times[]” and then went to a
wall and started scratching it. Burr told some of the employees and asked them to
bring Jose to his table so that Burr could talk to him. After they spoke, Burr told one
of the employees that Jose did not need to be staying by himself. Burr admitted that
he was aware that Jose was diabetic, that a person can get lightheaded and dizzy
from being diabetic, and that Jose was not good about taking his medication, but
Burr was not aware if Jose ended up seeing a doctor or whether he had “sky high
blood sugar.” Based on what people told him, Burr believed this incident in the
restaurant happened before the five contracts were signed, and Burr testified that he
thought that Jose “was ill[]” at the point in time the contracts were signed.
Testimony of Raquel Mata Martinez
Raquel Mata Martinez testified that she had worked for Jose since 1999 at his
restaurants (his old restaurant and the more recent one) and later her other family
27
members also worked at Jose’s restaurant. Martinez worked her way up and
eventually handled payroll for Jose’s restaurants. Martinez described Jose as “an
outstanding person[]” who was “very friendly.”
According to Martinez, in mid-2011, there was a change in Jose’s behavior
and he would wear the same shirt, which was out of character for him as he was
always dressed “very sharp, very clean.” On one occasion he had his shoes on the
wrong feet, many occasions he would have his shirt or pants not completely fastened,
he more than once was incontinent at work, he drove erratically, and more than once
she found personal items such as his credit card, Social Security card, and Medicaid
card in the restaurant office trash can. Martinez testified that he was forgetting to
pay a lot of bills and forgetting the time of day, and “the pile of bills kept getting
bigger and bigger by the week[.]” According to Martinez, Jose was also taking $300
cash daily out of the cash register (that was not part of his salary) and buying “bigger
items” and “nonsense stuff[,]” although she admitted she did not know whether or
not he had always done that because she did not start working the cash register until
2011. Martinez testified that the day after her wedding in September of 2011, Jose
told customers at the restaurant that he fell dancing at the wedding and that he saw
underneath Martinez’s dress, which she said never happened.
Martinez testified she knew Chalon Jones was Jose’s attorney and she and
Jones would keep in contact about changes they were noticing with Jose. Martinez
28
also told Jose’s sister, Esthela, as well as Karla, and Sergio that they needed to check
on Jose. According to Martinez, McKinzie helped Jose get a new attorney in 2012
and McKinzie brought her an invoice for her to pay for legal work the attorney had
done for Jose. Martinez testified that she told McKinzie then that Jose’s condition
was declining, and that McKinzie smiled in response. Martinez testified that she felt
like McKinzie was overcharging him and she questioned McKinzie’s invoices to
Jose. In Martinez’s opinion, in late February or early March of 2013, Jose would not
have understood the five contracts. Martinez testified that on the day she called Jones
to tell him people were at the restaurant closing a real estate transaction, she saw
McKinzie there, but she never saw Anderson that day.
Testimony of Dr. Mark Kunik
A video recording of Dr. Mark Kunik’s deposition was played at trial. Dr.
Kunik testified that he is a geriatric psychiatrist, he evaluated Jose on May 4, 2013,
and he then completed a report based on his evaluation. Dr. Kunik testified he spent
over an hour with Jose. Dr. Kunik administered a Montreal Cognitive Assessment,
which assesses a person’s cognition and is widely used in geriatric psychology, and
which Kunik has used thousands of times.
According to Dr. Kunik, on the assessment Jose was unable to draw a clock
face, identify certain animals, remember certain objects, words, numbers, letters, and
sentences during the assessment, unable to make associations between objects,
29
unable to provide the correct day of the month or month, and he told Kunik he
believed it was 1980. Dr. Kunik testified that if Jose was having severe
hypoglycemia during the assessment Kunik would have been able to pick up on that,
and if someone had high blood glucose sugars for a long time it might not change
their thinking but if they “had pretty well-controlled sugars and they’ve bumped up
to 400,” then it could impact their cognitive functioning. Dr. Kunik completed a
Physician’s Certificate of Medical Examination form based on his assessment of
Jose, and it was admitted into evidence. On the form for “Evaluation of the Proposed
Ward’s Mental Function” he noted “Mental Diagnosis: Probably Alzheimer’s
dementia[]” and listed the severity as moderate. On the form, Dr. Kunik indicated
his opinion, based on his assessment, that Jose did not have sufficient capacity to
give informed consent to the administration of dementia medications, Jose was
unable to make or communicate reasonable decisions concerning contract and
incurring obligations, and that Jose was totally incapacitated. Dr. Kunik also testified
that he wrote a letter as requested from the attorney handling the guardianship
regarding his opinion on how far back Jose’s incapacity would have gone based on
reasonable medical probability, and Dr. Kunik wrote in the letter his opinion that
Jose’s incapacity would have gone back six months prior to his evaluation on May
4, 2013. In Dr. Kunik’s opinion and based on his review of Jose’s medical records,
Jose lacked sufficient mind or memory in the February 2013 to March 2013 time
30
frame to understand the nature and consequences of signing five contracts to sell
commercial real estate in downtown Bryan or to understand real estate contracts.
On cross-examination, Dr. Kunik agreed that there are different types and
levels of mental capacity for legal purposes, like testamentary capacity, donative
capacity, and contractual capacity. Dr. Kunik acknowledged that if a real estate
transaction was entered into and the seller initiated the sale, the seller wanted to sell
five of their properties but not sell others, the seller was able to take the buyer on a
tour of the properties and describe their condition, the seller pulled tax appraisal
value records and set a sales price higher than those values for the five values, the
seller had a desire to sell based on continuing property tax expenses and an intent to
sell the properties for liquidity, there was a consistent tenor to the transaction over
time, those facts would suggest a normal and reasonable real estate deal and would
not raise “a red flag” regarding the seller’s capacity. Dr. Kunik agreed that the court-
ordered evaluation did not ask him to specifically weigh in on the contracts between
Jose and Anderson. Dr. Kunik testified that testamentary capacity and contractual
capacity have different thresholds and that there are varying degrees of dementia.
Dr. Kunik agreed that the medical records he reviewed were from Dr. Ginn dated
May 17, 2012, and Scott and White dated April 23, 2013 and April 29, 2013, that he
did not remember who gave him the records, and that he did not review Jose’s
medical records from earlier in 2013 or in 2012 or 2011 or any mini-mental exams
31
performed on Jose in the two or three years prior to Kunik’s evaluation. Dr. Kunik
acknowledged that a score of a 25 out of 30 on the Mini-Mental State Examination
would indicate a normal cognitive level. Dr. Kunik testified that his intention for
filling out the Physician’s Certificate of Medical Examination was that it would be
used for assisting the court in determining whether Jose needed a guardian, not
whether the five contracts Jose entered into should be nullified.
Testimony of Charles Randall “Randy” Michel
A video recording of Charles Randall “Randy” Michel’s deposition was
played at trial. Michel testified that he knew Jose because Michel frequented Jose’s
two restaurants, and in 2013, he served as the attorney ad litem for Jose in the
guardianship case. According to Michel, he was asked to serve as Jose’s attorney ad
litem on either April 18 or 19, 2013. Michel testified that after he was appointed, he
visited with Jose several times and that his role was to advocate for what Jose
wanted. Michel testified that it was very clear that Jose did not want a guardianship.
According to Michel, other relatives besides Javier, Karla, and Sergio were seeking
guardianship. Michel testified that at the time the court signed the order appointing
the temporary guardians on May 21, 2013, Dr. Kunik’s report had been provided to
the court. Michel testified that he filed the motion to have Kunik examine Jose and
that he helped arrange a time to meet with and evaluate Jose at Jose’s home, and that
Michel believed Jose understood that he was being evaluated.
32
Michel testified that the effect of the TRO against McKinzie and the two
employees was to prohibit them from selling, transferring, assigning, or disbursing
any of Jose’s assets, and that the judge signed an order on April 29, 2019, extending
the TRO and setting a hearing for May 7, 2013. Michel testified that in the court
order appointing Javier, Karla, and Sergio as permanent co-guardians of Jose and
his estate signed on August 27, 2013, the trial court found that Jose was totally
incapacitated and totally incapable of maintaining his person and handling his
finances, and the order stated that the determination was based on evidence of
recurring acts or occurrences within the preceding six-month period and not isolated
instances of negligence or bad judgment.
According to Michel, based on his dealings with Jose from April 18, 2013,
and for a few months after and until his role as Jose’s attorney ad litem ended, he
did not believe that as of April 2013 that Jose had sufficient mind and memory to
understand real estate contracts.
Michel acknowledged that generally the legal obligations of Jose’s pre-
guardianship would become the legal obligations of the post-guardianship, and
assuming the validity of any contracts from pre-guardianship, the guardians “step
into the shoes” of the ward and would be obligated under those contracts. Michel
also agreed that Texas law presumes someone has capacity and that there are no
presumptions that somebody is incapacitated just because of their age or because
33
they have been diagnosed with dementia. Michel testified that testamentary capacity
and contractual capacity have different standards, and to have contractual capacity,
a person would have to understand the nature and effect of the contract and the
business being conducted. Michel testified that he heard “over and over” about the
capital gains tax consequences of the five contracts from Jones and Javier, and
Michel testified that if a person sells property prior to their death, they may have
capital gains but if instead a future beneficiary inherits the property and it is sold
instead after death then the capital gains tax is “wiped out.” When asked if he would
agree that there might be some competing interests among beneficiaries of Jose’s
estate about why they might want him to not sell property because it would not be
in their own best interest from a tax perspective, Michel answered, “Oh, I am sure
there are competing interests.”
Michel agreed that dementia is a medical condition that is progressive in
nature and that it generally manifests itself in early stages with forgetfulness. When
showed an exhibit that was part of a neurological report done by Texas A&M on
November 28, 2011, Michel testified that the report showed that Jose had scored a
25 out of 30 on a mini-mental status exam. Michel testified that he was not aware
that Jose had another medical visit where he was described by the doctor as being
conversant, calm, and oriented and was not aware that in June of 2013 Jose was at a
doctor’s visit where the doctor noted Jose may have mild dementia, and the doctor
34
prescribed a low dose of Aricept. Michel agreed that Jose did not do well on the
cognitive assessment administered by Dr. Kunik, but admitted that he was not aware
that those types of assessments had been criticized, that the contacts regarding the
five contracts went back to August of 2012, that Jose initiated the contact with
Anderson for Jose to sell the properties, that at Jose’s urging he met with Anderson
to take him through the properties in October 2012, and that negotiations took place
between Jose and Anderson from October 2012 until April 2013 when the contracts
were signed. Michel acknowledged that the court’s rulings about Jose’s mental
capacity were not made on the day the contracts were signed, that Michel was not
with Jose when he signed the contracts and to Michel’s knowledge neither was Dr.
Kunik, and there was nothing about the five contracts that on their face raised
questions about Jose’s capacity.
Other Evidence
The contracts for the five properties, the surveys of the properties for which
Anderson was seeking financing, the title commitments from the title company for
each of the five properties, and the appraisal reports ordered by the bank on
Anderson’s behalf to close on the four properties were all admitted into evidence.
Among other evidence, the jury had before it legal documents related to Jose’s
revocation of his power of attorney, the TRO, and the guardianship proceeding.
35
Applicable Law and Standard of Review
A party seeking specific performance must plead and prove (1) compliance
with the contract including the tender of performance unless excused by the
defendant’s breach or repudiation and (2) the readiness, willingness, and ability to
perform at relevant times. DiGiuseppe v. Lawler, 269 S.W.3d 588, 593-94, 601 (Tex.
2008); see also Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d
882, 890 (Tex. 2019). If the plaintiff’s ability to perform depended on third-party
financing, the plaintiff must show that he had “a firm commitment for financing[.]”
Luccia v. Ross, 274 S.W.3d 140, 146-47 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied).
Mental incapacity is a common law defense to the formation of a contract. In
re Morgan Stanley & Co., 293 S.W.3d 182, 187 (Tex. 2009) (orig. proceeding); see
also Kinsel v. Lindsey, 526 S.W.3d 411, 419 (Tex. 2017) (documents executed by
one who lacks sufficient legal or mental capacity may be avoided). Texas law
presumes that a person executing a contract or instrument had sufficient mental
capacity at the time of its execution to understand his legal rights. Bradshaw v.
Naumann, 528 S.W.2d 869, 873 (Tex. App.—Austin 1975, writ dism’d); see also
Hall v. Hall, 352 S.W.2d 765, 767 (Tex. App.—Houston 1962, no writ) (mental
capacity to contract must be determined as of contract execution date). Accordingly,
the burden rests on the person seeking to set aside a contract or instrument to show
36
the lack of mental capacity of the contracting party at the time the contract or
instrument was made. Bradshaw, 528 S.W.2d at 873. To establish lack of mental
capacity to contract in Texas, the evidence must show that, at the time of contracting,
the person could not have “‘appreciated the effect of what [he] was doing and
understood the nature and consequences of [his] acts and the business [he] was
transacting.’” See Kinsel, 526 S.W.3d at 419 (quoting Mandell & Wright v. Thomas,
441 S.W.2d 841, 845 (Tex. 1969)). The proper inquiry is whether the person had
capacity on the days he executed the documents at issue. Id. Generally, the question
of whether a person, at the time of contracting, knows or understands the nature and
consequences of his actions is a question of fact. See Fox v. Lewis, 344 S.W.2d 731,
739 (Tex. App.—Austin 1961, writ ref’d n.r.e.).
In a legal sufficiency challenge, we credit evidence that favors the finding, if
a reasonable factfinder could, and we disregard evidence contrary to the challenged
finding unless a reasonable factfinder could not disregard it. City of Keller v. Wilson,
168 S.W.3d 802, 819 (Tex. 2005). When a party challenges the legal sufficiency of
the evidence on an issue for which it did not have the burden of proof, the appellant
must show there is no evidence to support the adverse finding. See Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In reviewing a no-evidence challenge,
we view the evidence in the light most favorable to the verdict. Weirich v. Weirich,
37
833 S.W.2d 942, 945 (Tex. 1992). We cannot sustain a legal insufficiency, or no-
evidence point, unless the record shows:
(1) . . . a complete absence of evidence of a vital fact; (2) the court is
barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact; (3) the evidence offered to prove
a vital fact is no more than a mere scintilla; or (4) the evidence
establishes conclusively the opposite of the vital fact.
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); see also
Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016). As
the sole judges of the credibility of the witnesses and the weight to be given their
testimony, the jurors may choose to believe one witness and disbelieve another. City
of Keller, 168 S.W.3d at 819. “The final test for legal sufficiency must always be
whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review.” Id. at 827.
In contrast, when the party that had the burden of proof at trial complains on
appeal of the legal insufficiency of the adverse finding, that party must demonstrate
that the evidence establishes conclusively, i.e., as a matter of law, all vital facts in
support of the finding sought. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001). A matter is conclusively established only if reasonable people could not
differ as to the conclusions to be drawn from the evidence. See City of Keller, 168
S.W.3d at 816.
38
When challenging the factual sufficiency of the evidence supporting an
adverse finding on which the appellant did not have the burden of proof at trial, the
appellant must demonstrate that there is no or insufficient evidence to support the
adverse finding. Croucher, 660 S.W.2d at 58; Am. Interstate Ins. Co. v. Hinson, 172
S.W.3d 108, 120 (Tex. App.—Beaumont 2005, pet. denied). When reviewing the
factual sufficiency challenge, we consider and weigh all the evidence in support of
and contrary to the jury’s finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402,
406-07 (Tex. 1998). We only set aside a finding for factual insufficiency if it “is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust.” Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). However, when a
party attacks the factual sufficiency of an adverse finding on which it carried the
burden of proof at trial, that party must demonstrate on appeal that the “adverse
finding is against the great weight and preponderance of the evidence.” Dow Chem.
Co., 46 S.W.3d at 242.
Jury’s Finding as to Question No. 2
In issue one, Appellant argues there was no evidence or, alternatively,
factually insufficient evidence to support the jury’s answer to Question No. 2.
Question No. 2 asked whether Appellee was ready, willing, and able to perform the
contracts, and the jury answered “yes.” Specifically, Appellant argues that there was
39
no evidence that Anderson had either the cash required or the loan commitments
necessary to purchase the properties.
The jury heard Zane Anderson testify that he had done everything required of
him to be in a position to close on the contracts, and that based on the commitments,
the appraisals, the surveys, arranging things with the bank, he was fully committed
and fully prepared to close on the properties on May 31, 2013. The jury heard
Anderson testify that he sent a letter to Jose’s counsel stating he was ready, willing,
and able to still perform on the contracts and was willing to close on May 31, 2013,
under the agreed upon terms. Anderson testified that he was still ready, willing, and
able to purchase the properties on the agreed upon terms (with a different closing
date due to the passage of time). Anderson testified he was still willing to purchase
the properties and that, that as to what needed to be done to close on the properties,
Anderson stated, “[e]verything’s done really. It’s kind of been done for years now.”
No evidence was presented by Appellant otherwise, and Appellant presented no
contrary evidence that Anderson did not have either the cash required or the loan
commitments necessary to purchase the properties.
The issue of whether a party to a contract is “ready, willing, and able” to
perform is a question of fact. DiGiuseppe, 269 S.W.3d at 596. Here, the jury, found
that Anderson was “ready, willing, and able” to perform the contracts. As the
factfinder, the jury was entitled to rely on Anderson’s testimony. See Peters v.
40
Young, No. 11-18-00008-CV, 2019 Tex. App. LEXIS 11243, at *16 (Tex. App.—
Eastland Dec. 31, 2019, pet. denied) (mem. op.) (factfinder could rely upon seller’s
testimony that they were ready, willing, and able to perform under the contract)
(citing Mustang Amusements, Inc. v. Sinclair, No. 10-07-00362-CV, 2009 Tex. App.
LEXIS 8338, at **12-14 (Tex. App.—Waco Oct. 28, 2009, no pet.) (mem. op.)
(same)). To the extent Appellant argues that there was no evidence that Anderson
had “a firm commitment for financing,” we note that Anderson testified that he had
done all that was necessary to close on the properties, and that following the
execution of the contracts, he took all of the steps he needed to do in order to close
on the properties, he delivered the contracts to his bank to begin the loan process, he
agreed to an interest rate on loans with his bank on the four contracts that required
third-party financing, he obtained title commitments, he obtained and paid for
surveys, he obtained and paid for the appraisals requested by his bank, and he had
financing in place to close the transactions. Anderson also testified he was
committed to paying off the owner-financed note for the purchase of the fifth
property.
As the sole judge of the credibility of the witnesses and the weight to be given
to their testimony, it was the jury’s province to determine what the underlying facts
were at the time the real estate contracts were executed and also whether Anderson
was ready, willing, and able to perform. The jury reasonably could have credited
41
Anderson’s evidence over conflicting evidence, if any, presented by Appellant.
Viewing the evidence and inferences in the light most favorable to the jury’s finding,
we conclude there is more than a scintilla of evidence supporting the jury’s finding
that Anderson was ready, willing, and able to perform under the contracts. See City
of Keller, 168 S.W.3d at 827. Given the record before us, we cannot say that the
evidence conclusively established that Anderson was not ready, willing, and able to
perform. See Hathaway v. General Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986)
(stating an element is not conclusively established when evidence is conflicting). We
conclude a reasonable factfinder could have found that Anderson was ready, willing,
and able to perform the contracts to buy the five properties at issue in the case. See
Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299
S.W.3d 106, 115 (Tex. 2009); Merrell Dow. Pharm., Inc. v. Havner, 953 S.W.2d
706, 711 (Tex. 1997); see also DiGiuseppe, 269 S.W.3d at 593-94, 601. Considering
all the evidence, the jury’s finding was not so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust. See Dyson, 692 S.W.2d at 457.
We overrule issue one.
Jury’s Finding as to Question No. 3
In issue two, Appellant challenges the legal and factual sufficiency of the
evidence supporting the jury’s answer to Question No. 3 regarding whether Jose’s
failure to comply was excused due to his mental capacity. The jury answered “no”
42
to this question. According to Appellant, testimony from Jose’s nephew (Javier),
Jose’s attorney (Jones), Jose’s long-time employee (Martinez), Jose’s friend
(Michel) and Dr. Kunik, as well as the medical records from Jose’s treating doctors,
established that Jose suffered from dementia and lacked sufficient mental capacity
and memory to understand the nature and consequences when he signed the five
earnest money contracts in March 2013. Appellant further contends that the evidence
from Anderson and McKinzie regarding Jose’s competence “would not allow
reasonable and fair-minded jurors to determine that Jose was competent in March
2013.”
As the person seeking to set aside the contracts based on Jose’s alleged lack
of mental capacity at the time the contracts were made, it was Appellant’s burden to
present evidence that, at the time of contracting, Jose could not have “appreciated
the effect of what [he] was doing and understood the nature and consequences of
[his] acts and the business [he] was transacting.” See Kinsel, 526 S.W.3d at 419;
Mandell & Wright, 441 S.W.2d at 845. The jurors were the sole judges of the
credibility of the witnesses and the weight to be given their testimony, and the jurors
could choose which witnesses, and which portions of their testimony, to believe or
disbelieve. See City of Keller, 168 S.W.3d at 819.
The jury heard Anderson’s testimony that he knew Jose because they lived
down the street from each other when Anderson was a child, he would see Jose at
43
the business association events, and Anderson knew him from eating at Jose’s
restaurant. The jury heard Anderson testify that when he met with Jose that Jose
seemed “like himself; friendly and happy[,]” that Anderson had no concerns about
Jose’s ability to understand their conversation or about moving forward with the real
estate contracts with Jose, and that no one at the restaurant expressed concerns about
Anderson visiting with Jose about real estate or a business deal. The jury could have
considered Anderson’s testimony that at the time the contracts were signed and
based on his interactions with Jose over those preceding months, Jose seemed to
understand what he was doing and Anderson had no concerns about Jose signing the
contracts, Anderson explained he believed Jose understood the properties that he
owned, that he was selling the five properties, and that he was going to receive
money and a note, and Anderson had no concerns whatsoever that Jose lacked
capacity. Also, the jury heard Anderson’s testimony that as Jose showed him the
properties, Jose seemed to know about the properties and understood and responded
to the questions Anderson asked him. Anderson agreed that after he received the call
from Jones that the sales may not close, Anderson visited Jose at the restaurant to
discuss the contracts, the visit was similar to the other visits he had with Jose, no one
approached and told Anderson he could not do business with Jose, it was apparent
to Anderson that Jose wanted to move forward and understood who Anderson was
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and why he was there, Jose seemed lucid, and it was Anderson’s impression that he
and Jose both still wanted to proceed with the sales as stated in the contracts.
The jury could have given weight to Boggan’s testimony that Jose approached
him about putting Jose in touch with Anderson, and that Jose told Boggan he wanted
to sell several properties because Jose was tired of paying taxes on them and making
repairs. Further, Boggan frequently interacted with Jose at his restaurant and at the
bank, and that at the time Jose was wanting to sell the properties Jose generally
seemed to know what he was talking about and did not seem in any way mentally
disoriented.
The jury heard McKinzie’s testimony that he ate at Jose’s restaurant almost
every day for lunch for ten or twelve years, was friends with Jose, and had done
business with Jose for sixteen years. McKinzie testified that Jose complained about
having to have paid the taxes for so long and mentioned wanting to sell his
properties. The jury could have considered McKinzie’s testimony that while they
were meeting in April 2013 to go through the contracts at the restaurant, none of the
employees or people around interrupted questioning Jose’s ability to do business,
and that at the time Jose signed the contracts, McKinzie felt Jose was lucid. The jury
also heard McKinzie, who had been Jose’s long-time friend, testify that “[a]t the
time the contracts were signed, there [was] no doubt in my mind that Jose knew what
he was doing[,]” and that “on that day that those [contracts] were signed, there was
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nothing wrong with Jose.” McKinzie also testified that if something had been wrong
with Jose he would have stepped in, and that prior to Jose signing the contracts
McKinzie never saw anything whatsoever that gave him concern about Jose’s mental
condition or his cognitive abilities.
The jury could have considered Javier’s testimony that he and the two other
family members did not seek the guardianship until April 2013, after Jose had
already pursued Anderson to sell the properties and after Jose had executed the
commercial real estate contracts, that the family members were removed from the
guardianship for failing to file accountings with the court, that Javier was a
beneficiary of the estate, that the estate beneficiaries could benefit from setting aside
the sales and trying to sell the property later after Jose’s death, and that Jose had cash
flow problems and may have needed to sell the properties, and Javier never thought
it was a good idea for Jose to sell his properties. The jury heard Javier testify that he
was aware that Dr. Ginn’s records showed that Jose’s Mini-Mental score from 2011
was a 25 out of 30, which indicated normal cognition, that in August 2012 Jose
signed a revocation of power of attorney before a notary public, in November 2012
Dr. Ginn noted that Jose was conversant and oriented during an exam, that in January
2013 Dr. Ginn’s office allowed Jose to sign a HIPAA release about his patient’s
rights, and that in April 2013 Scott and White Hospital allowed Jose to sign a similar
release and consent to treatment. The jury could have weighed the testimony of
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Javier, Jones, Burr, Michel, and Dr. Kunik and given some or no weight to some,
all, or none of the testimony. See City of Keller, 168 S.W.3d at 819. The jury could
have weighed all the testimony and evidence and believed that the evidence did not
establish that Jose lacked sufficient mental capacity and memory to understand the
nature and consequences of his actions and the business he was transacting at the
time he signed the contracts. See id. After considering evidence favorable to the
adverse finding and disregarding all contrary evidence unless a reasonable factfinder
could not, as we must, we conclude that Appellant failed to demonstrate that the
evidence presented at trial established as a matter of law that Jose lacked sufficient
mind and memory to understand the nature and consequences of his act and the
business he was transacting. See Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767
S.W.2d at 690; see also Kinsel, 526 S.W.3d at 419 (quoting Mandell & Wright, 441
S.W.2d at 845). We conclude that Appellant has failed to demonstrate on appeal that
the jury’s finding was against the great weight and preponderance of the evidence.
See Dow Chem. Co., 46 S.W.3d at 242. We overrule issue two.
Award of Attorney’s Fees
In issue three, Appellant argues the judgment and award of attorney’s fees in
the amount found by the jury in Question No. 4 should be reversed and the attorney’s
fees found by the jury in Question No. 5 should be awarded to Francisca. According
to Appellant, because Jose was not competent when he signed the contracts and
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because the evidence does not support the finding that Appellee was ready, willing,
and able to perform the contracts, Appellant should recover the attorney’s fees as the
prevailing party. Because we have overruled issues one and two, we also overrule
issue three. Having overruled Appellant’s issues, we affirm the trial court’s
judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on May 13, 2022
Opinion Delivered February 23, 2023
Before Golemon, C.J., Johnson and Wright, JJ.
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