Carolyn Barnes v. University Federal Credit Union and Government Employees Insurance Company/GEICO Insurance ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00147-CV
Carolyn Barnes, Appellant
v.
University Federal Credit Union and
Government Employees Insurance Company/GEICO Insurance, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-05-003010, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING
MEMORANDUM OPINION
This is the second appeal in this suit filed by appellant Carolyn Barnes, plaintiff in the
underlying proceeding, against appellees University Federal Credit Union (UFCU) and Government
Employees Insurance Company (GEICO). In our prior opinion, we affirmed the trial court’s severance
order and partial summary judgment in favor of UFCU and GEICO. Barnes’s remaining claims and
UFCU’s counterclaims proceeded to a jury trial. Barnes appeals from a final judgment, consistent
with the jury’s findings, denying her breach of contract and Deceptive Trade Practices Act (DTPA)
claims and awarding UFCU damages and attorneys’ fees. For the reasons set forth below, we affirm
the judgment conditioned on UFCU filing a remittitur reducing its award of attorneys’ fees for this
appeal to $15,000.
BACKGROUND
The factual and procedural background of this case is fully set forth in our prior
opinion. See Barnes v. University Fed. Credit Union, No. 03-09-00003-CV, 2010 WL 2133946
(Tex. App.—Austin May 27, 2010, no pet.) (mem. op.). Generally stated, however, Barnes obtained
two loans from UFCU for $14,066 using two personal vehicles as collateral. The loan agreements
required Barnes to obtain comprehensive and collision insurance coverage. After sending Barnes
numerous letters requesting a copy of the required insurance and not receiving the requested proof,
UFCU issued collateral protection insurance (CPI) and added the $1,600 premium to the loan
balance. On August 25, 2005, Barnes filed suit against UFCU and GEICO, her insurance carrier,
pleading numerous causes of action, including breach of contract against UFCU and DTPA claims
against GEICO—alleging that GEICO had misled her regarding the scope of her coverage.
On April 5, 2006, UFCU sent Barnes a settlement proposal stating that in return for
$8,000, UFCU would consider the relevant loans to be paid in full, release the liens on her vehicles,
and forego collection of any late fees, penalties, interest, or attorneys’ fees. The proposal further
states, “UFCU and Barnes will execute reasonable and mutually agreeable full releases and other
settlement documentation necessary to fully resolve and dismiss the current proceedings.” The letter
contained a signature line for Barnes to sign acknowledging that she “agreed and accepted” the
agreement. Barnes did not sign. Rather, she sent UFCU a cashier’s check for $8,000 accompanied
by a letter dated April 11, 2006, stating, “I am in receipt of your extortion demand with threats of
additional economic and financial terrorism if I do not comply with your demands. This ransom and
extortion money is being paid under extreme economic and financial duress and not because it is due
and owing.” The letter goes on to state that the funds were being tendered “with all rights reserved”
2
and asserting claims of over $400,000 against UFCU in damages and attorneys’ fees. UFCU sent
notice that it would not accept Barnes’s check unless she signed a release of all claims. Barnes did
not sign a release, and UFCU declined to negotiate the $8,000 check. Barnes filed UFCU’s letter
with the trial court as a Rule 11 agreement and amended her pleadings to add an additional breach
of contract claim against UFCU, alleging that UFCU had breached the parties’ Rule 11 agreement
by proceeding with litigation after receiving her cashier’s check for $8,000.
Eventually, all parties moved for summary judgment. The trial court granted summary
judgment in favor of UFCU and GEICO on all of Barnes’s claims except for her two breach of
contract claims against UFCU—one claim arising from the loan agreement and the other from
the alleged Rule 11 agreement—and her DTPA claims against GEICO. Prior to GEICO’s filing a
motion to sever the causes of action that had been decided on summary judgment, Barnes filed
supplemental pleadings adding new causes of action, including claims for breach of fiduciary duty
and breach of fair debt collection laws against UFCU (“supplemental claims”). The trial court
entered an order of severance, severing out those causes of action that had already been decided and
ordering Barnes to proceed only with her two breach of contract claims against UFCU and her DTPA
claims against GEICO. On appeal, we affirmed the summary judgment and order of severance.
Barnes’s remaining claims, as well as UFCU’s counterclaims, proceeded to a jury
trial. In addition, the trial court allowed her to proceed with her supplemental fair debt collection
claim against UFCU. The jury found that Barnes breached her loan agreements with UFCU, UFCU
did not breach the loan agreements, and Barnes’s breach was unexcused by her affirmative defenses.
The jury awarded UFCU damages of $11,022.33 and attorneys’ fees of $35,000 for preparation and
trial, $25,000 for an appeal to the court of appeals, and $15,000 for an appeal to the Supreme Court
3
of Texas. The jury further found against Barnes on her breach of contract claim arising from the
alleged Rule 11 agreement, finding that the parties had not entered into an enforceable settlement
agreement and against her DTPA claims against GEICO. But the jury did find in favor of Barnes
on her fair debt collection claim against UFCU and awarded her $1,049.96 in damages and $35,000
in attorneys’ fees.1 The trial court entered final judgment in accordance with the jury’s findings.
In five issues on appeal, Barnes argues the trial court erred by: (1) improperly severing
her supplemental claims and not submitting jury questions for those claims, (2) not enforcing the
alleged Rule 11 agreement as a matter of law, (3) assessing discovery sanctions against her in the
amount of $500, (4) granting summary judgment in favor of GEICO and UFCU, and (5) depriving
her of her right to a fair trial due to numerous complaints, including improper jury argument, improper
comment on the evidence, violation of the motion in limine, discovery abuse, and insufficient
evidence to support the jury’s findings.
ORDER OF SEVERANCE
In her first issue on appeal, Barnes argues the trial court erred by (1) improperly
severing her supplemental claims and (2) refusing to submit those claims to the jury. UFCU contends
that this Court has already determined and rejected Barnes’s argument in her prior appeal, and even
if we choose to revisit the issue, Barnes failed to preserve error by requesting jury questions for her
supplemental claims. We agree with UFCU that we already addressed the propriety of the severance
order in our prior opinion. With regard to the jury charge, we conclude the trial court submitted all
grounds of recovery supported by the evidence and properly requested by counsel.
1
UFCU does not appeal the jury’s finding on Barnes’s fair debt collection claim or the award
of damages and attorneys’ fees.
4
In her prior appeal before this Court, Barnes argued that the trial court’s severance
order improperly severed her supplemental claims. We concluded that, even if the order improperly
severed claims that had not been resolved on summary judgment, the issue was remedied because
the trial court permitted Barnes to proceed at trial on claims that were raised for the first time after
the summary judgment order. Indeed, Barnes obtained a favorable jury verdict on her supplemental
fair debt collection claim. “Under the law of the case doctrine, a court of appeals is ordinarily bound
by its initial decision if there is a subsequent appeal in the same case.” Briscoe v. Goodmark Corp.,
102 S.W.3d 714, 716-17 (Tex. 2003). Barnes has not presented new facts, legal analysis, or
argument that would change the disposition of this issue. Accordingly, the law of the case doctrine
bars its reconsideration.
With regard to the trial court’s submission of Barnes’s supplemental claims to the
jury, the trial court did submit—as previously noted—a jury question on Barnes’s supplemental fair
debt collection claim. For Barnes’s remaining supplemental claims, she only requested and obtained
a ruling on her supplemental claim for breach of fiduciary duty against UFCU. Trial courts are
required “to submit requested questions to the jury if the pleadings and any evidence support them.”
Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992); see also Tex. R. Civ. P. 278. But a fiduciary
relationship does not usually exist between a borrower and lender, and we cannot conclude
the evidence supported a claim against UFCU for breach of fiduciary duty. See Thigpen v. Locke,
363 S.W.2d 247, 253 (Tex. 1963) (debtor-creditor relationship alone insufficient to create fiduciary
relationship); see also Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 442 (Tex. App.—Houston
[14th Dist.] 1998, pet. denied).
5
When Texas courts have found a fiduciary relationship between a borrower and
creditor, “the findings have rested on extraneous facts and conduct, such as excessive lender control
or influence in the borrower’s business activities.” Bank One, Texas, N.A., 967 S.W.2d at 442. Upon
review of the record, we cannot find—nor does Barnes identify in her brief—evidence of extraneous
facts or conduct by UFCU creating a fiduciary relationship. Further, because Barnes had never done
business at UFCU before, there is no evidence of a long-standing relationship of trust that might
create a fiduciary relationship. See Thigpen, 363 S.W.2d at 253; Fleming v. Texas Coastal Bank of
Pasadena, 67 S.W.3d 459, 461 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). As there was
not sufficient evidence to support a breach of fiduciary duty claim, we conclude the trial court did
not abuse its discretion by omitting the requested ground of recovery from the jury charge.
We further conclude that Barnes has waived error as to all other supplemental claims.
During a discussion of the supplemental claims at pretrial conference, Barnes’s counsel expressly
advised the trial court that the only supplemental claim her client would pursue at trial was the fair
debt collection claim based on UFCU improperly reporting Barnes’s debt: “I’m just submitting a
jury issue about the unfair debt reporting.” At the charge conference, Barnes’s counsel additionally
sought a jury question on the breach of fiduciary duty claim. But Barnes did not timely request in
writing a jury question for any other supplemental claim.2 See Tex. R. Civ. P. 278. Further, Barnes’s
2
The record reflects Barnes filed proposed jury questions for some supplemental claims a
month after the jury returned its verdict but did not obtain a ruling on these untimely requests. See
Tex. R. Civ. P. 278 (“Failure to submit a question shall not be deemed a ground for reversal of the
judgment, unless its submission, in substantially correct wording, has been requested in writing and
tendered by the party complaining of the judgment . . . .”); Moffett v. Goodyear Tire & Rubber Co.,
652 S.W.2d 609, 612 (Tex. App.—Austin 1983, writ ref’d n.r.e.) (without indication in record that
requested jury question was presented and refused by trial court no error is preserved despite requested
issues inclusion in record).
6
brief does not contain a clear argument as to how she established any other supplemental claim
or appropriate citations to legal authority and the record to support such claims. See Tex. R. App.
P. 38.1(I). On appeal, all independent grounds of recovery “not conclusively established under the
evidence and no element of which is submitted or requested are waived.” Tex. R. Civ. P. 279.
Because Barnes failed to request jury questions on any other supplemental claims and has not
conclusively established those claims under the evidence, we conclude she has waived error.
ALLEGED RULE 11 AGREEMENT
Barnes also argues the trial court erred in denying her motions for directed verdict,
judgment notwithstanding the verdict, and new trial because she established as a matter of law:
(1) her breach of contract claim against UFCU arising from the alleged Rule 11 agreement, or in the
alternative, (2) her affirmative defense of accord and satisfaction to UFCU’s breach of contract
claim arising from the loan agreement.3 Barnes’s argument is twofold: first, she argues her $8,000
cashier’s check and accompanying letter, tendered in response to UFCU’s settlement proposal,
constituted a valid acceptance of UFCU’s offer creating an enforceable settlement agreement.4
3
Barnes also argues on appeal that the trial court erred by denying her three motions for
summary judgment seeking enforcement of the alleged Rule 11 agreement. Where a motion for
summary judgment is denied by the trial court and tried on its merits, the order denying the motion
for summary judgment is not reviewable on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362,
365 (Tex. 1966); Nuby v. Allied Bankers Life Ins. Co., 797 S.W.2d 396, 397 (Tex. App.—Austin
1990, no writ).
4
Texas Rule of Civil Procedure 11 requires all agreements between parties touching any
pending suit to be in writing, signed, and filed as part of the record. With her summary judgment
motion seeking enforcement of the alleged Rule 11 agreement, Barnes attached UFCU’s settlement
proposal letter signed by an attorney for UFCU, her signed responding letter, and a copy of the
$8,000 cashier’s check signed by a representative of the issuing bank. A series of letters between
parties may constitute a written settlement agreement enforceable under Rule 11. Padilla v. LaFrance,
907 S.W.2d 454, 460 (Tex. 1995).
7
The jury disagreed, finding that Barnes and UFCU did not enter into an enforceable settlement
agreement. In the alternative, Barnes argues she established the affirmative defense of accord and
satisfaction to UFCU’s breach of contract claim arising from the loan agreement. Specifically, she
argues her tender of the $8,000 cashier’s check and accompanying letter constituted a new agreement
between the parties that should operate as an accord and satisfaction, thereby discharging her
obligations under the original loan contract. The jury again disagreed, finding Barnes breached the loan
agreement and did not meet her burden of proof for the affirmative defense of accord and satisfaction.
Standard of Review
The substance of Barnes’s argument is a challenge to the legal sufficiency of the
jury’s findings.5 See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). Barnes had the
burden of proof both on her breach of contract claim against UFCU arising from the alleged Rule 11
agreement and on her affirmative defense of accord and satisfaction. When a party attacks the legal
sufficiency of an adverse finding on an issue on which she has the burden of proof, she must
5
Barnes also challenges the factual sufficiency of the jury’s findings but failed to preserve
error in her motion for new trial by adequately apprising the trial court of the alleged deficiency. See
Tex. R. Civ. P. 324(b). A point in a motion for new trial is a prerequisite to complain on appeal that
the evidence is factually insufficient to support a jury finding. Id. Embedded within a point in her
motion for new trial discussing deliberations and titled “Jury Misconduct,” Barnes generally alleges
that she established as a matter of law an accord and satisfaction “and, in any event, any opposite
findings would be contrary to the great weight and preponderance of the evidence.” In over thirty-
five pages of argument, Barnes provides no further support, authority, or evidence to apprise the
trial court that she was challenging the factual sufficiency of any jury findings. We conclude that
Barnes’s argument did not clearly identify that she was challenging the factual sufficiency of the
jury’s findings, nor was she specific enough to give the trial court proper notice of the matter at
issue; she has thus failed to preserve error. Tex. R. Civ. P. 321 (each point relied upon in motion
for new trial shall refer to complained of error in such a way that objection can be clearly identified
and understood by the court).
8
demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of
the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001); Sterner v. Marathon Oil
Co., 767 S.W.2d 686, 690 (Tex. 1989). A party attempting to overcome an adverse fact finding as
a matter of law must surmount two hurdles. Sterner, 767 S.W.2d at 690. First, the record must be
examined for evidence that supports the jury’s finding, while ignoring all evidence to the contrary. Id.
Second, if there is no evidence to support the fact finder’s answer, then the entire record must be
examined to see if the contrary proposition is established as a matter of law. Id. The point of error
will be sustained only if the contrary proposition is conclusively established. Dow Chemical Co.,
46 S.W.3d at 241.
Settlement Agreement
Reviewing the evidence supporting the jury’s finding that the parties did not enter
an enforceable settlement agreement, we conclude Barnes did not establish as a matter of law the
existence of a valid settlement agreement with UFCU. A settlement is a contract, and its construction
is governed by legal principles applicable to contracts generally. Rodriguez v. Villarreal, 314 S.W.3d
636, 641 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Like all contracts, a settlement requires
an offer, an acceptance, and a meeting of the minds. See Killeen v. Lighthouse Elec. Contractors,
248 S.W.3d 343, 349 (Tex. App.—San Antonio 2007, pet. denied).
UFCU’s letter to Barnes dated April 5, 2006 proposed settlement under the following
terms: (1) Barnes would pay UFCU $8,000 via cashier’s check or other certified funds before
April 13, 2006; (2) upon receipt of the settlement amount, UFCU would release the liens it possessed
9
on Barnes’s vehicles; (3) all parties would pay their own court costs, interest, attorney’s fees and
other costs; (4) UFCU would consider the loans paid in full; and (4) UFCU and Barnes would
execute reasonable and mutually agreeable full releases and other settlement documentation
necessary to fully resolve and dismiss the current proceedings.
While Barnes contends that she consented to the proposed settlement agreement by
providing UFCU with a cashier’s check in the proposed settlement amount, Barnes failed to sign the
settlement proposal acknowledging that she “agreed and accepted” the settlement terms. Moreover,
the cashier’s check was sent with an accompanying letter stating that it was tendered “under extreme
economic duress, under protest, and with all rights reserved” and asserting claims of over $400,000
against UFCU in damages and attorneys’ fees. We conclude this is some evidence that Barnes did
not accept UFCU’s proposal to fully settle the dispute and resolve the pending proceedings. United
Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360, 364 (Tex. 1968) (well settled that if an
acceptance changes or qualifies the terms of the offer, the offer is rejected); see also King v. Bishop,
879 S.W.2d 222, 223-24 (Tex. App.—Houston [14th Dist.] 1994, no writ) (economic duress may
be grounds to set aside a settlement agreement). As such, our inquiry with regard to this issue need
go no further.
Accord and Satisfaction
We further conclude that Barnes did not establish as a matter of law her affirmative
defense of accord and satisfaction. An accord and satisfaction exists when parties agree to discharge
an existing obligation in a manner other than in accordance with the terms of their original
10
contract. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969). The doctrine of accord
and satisfaction is based upon the creation of a new contract, express or implied, by which the parties
specifically and intentionally agree to the discharge of one of the parties’ existing obligations in
a manner otherwise than originally agreed. Id.; Pate v. McClain, 769 S.W.2d 356, 361-62 (Tex.
App.—Beaumont 1989, writ denied).
To prevail on appeal, Barnes must demonstrate that the evidence establishes as a
matter of law: (1) she in good faith tendered the cashier’s check to UFCU as full satisfaction of the
claim, (2) the amount of the claim was unliquidated or subject to a bona fide dispute, (3) UFCU
obtained payment of the instrument, and (4) the check or an accompanying written communication
contained a conspicuous statement to the effect that the instrument was tendered in full satisfaction
of the claim. Tex. Bus. & Com. Code Ann. § 3.311(a) & (b) (West 2002 & Supp. 2012) (Texas
Uniform Commercial Code provision governing accord and satisfaction by use of negotiable
instrument).6 If these elements are proven, the claim is discharged, subject to two exceptions
inapplicable to this case. See id. § 3.311(b) & (c).
We cannot conclude that Barnes established as a matter of law that UFCU obtained
payment of the cashier’s check. Reviewing the evidence in support of the jury’s verdict, UFCU
6
The cashier’s check at issue is a negotiable instrument to which the Texas Uniform
Commercial Code (“Code”) applies. See Tex. Bus. & Com. Code Ann. § 3.104(a) (West 2002 &
Supp. 2012). Because Section 3.311 of the Code—governing accord and satisfaction by use of a
negotiable instrument—does not conflict with the common law doctrine of accord and satisfaction,
we may use common law principles of accord and satisfaction to supplement the Code’s provisions.
See Milton M. Cooke Co. v. First Bank and Trust, 290 S.W.3d 297, 304 (Tex. App.—Houston
[1st Dist.] 2009, no pet.); Tex. Bus. & Com. Code Ann. § 1.103(b) (West 2009 & Supp. 2012).
11
retained but declined to negotiate the check for approximately six months until Barnes obtained a
refund from the issuing bank.7 Upon receipt of the check, UFCU immediately mailed Barnes a letter
stating UFCU “cannot accept/negotiate your check or proceed” until all of the settlement terms
are agreed to, including agreement to execute a full release “allowing this matter to be fully and
completely resolved.” Barnes never signed the settlement proposal or a release. During the six months
UFCU retained the check, it sent Barnes three more letters urging her to assent to the terms of the
settlement agreement—to no avail.8 Barnes admitted at trial that she never asked UFCU to return
the check.
Our sister courts have found that the retention of a cashier’s check for an
unreasonable length of time is the equivalent of an acceptance of the accord and satisfaction as
a matter of law. See Tarrant Wholesale Drug Co. v. Kendall, 223 S.W.2d 964, 966-67 (Tex. Civ.
App.—San Antonio 1949, no writ) (“[F]ailure to return a [cashier’s] check tendered in settlement
of a disputed claim within a reasonable time, must be regarded in law as an acceptance of the
compromise offer.”); Willis v. City Nat’l Bank of Galveston, 280 S.W. 270, 273 (Tex. Civ.
App.—Galveston 1926, writ ref’d) (holding long-continued retention of cashier’s check “without
7
The date of the refund is not revealed by the record, but the parties agree UFCU retained
the check for at least six months. Barnes testified that she obtained a refund by filling out a lost
cashier’s check form with the issuing bank.
8
The UFCU letters responding to Barnes’s tender are dated April 14, 2006; April 18, 2006;
June 13, 2006; and July 7, 2006. Barnes complains on appeal the trial court committed fundamental
error by admitting the letters into evidence, which she describes as “self-serving post-breach legal
opinions and completely irrelevant as to the formation of the contract.” As the letters were relevant
to proving or disproving the existence of a settlement agreement and Barnes’s breach of contract
claim, the trial court did not abuse its discretion.
12
in any way indicating its refusal to accept the terms of the settlement” constituted acceptance of
accord and satisfaction as a matter of law). But what is an unreasonable amount of time to retain a
check depends on the circumstances of the case. See Curran v. Bray Wood Heel Co., Inc., 68 A.2d
712, 718 (Vt. 1949) (“The cases recognize that what is a reasonable time depends upon the
circumstances of each case.”); 35 Am. Jur.2d Proof of Facts § 735 (2013) (“Many courts have held
that a creditor’s retention for an unreasonable length of time of a check tendered in full payment
of a debt, without cashing or making affirmative use of the check constitutes acceptance of the
check. . . . The question whether a particular period of time is unreasonable depends on the
circumstances of the individual case.”).
We cannot conclude, based on the record before us, that UFCU’s retention of the
check was for an unreasonable length of time as a matter of law when: (1) UFCU immediately
repudiated the offered accord, (2) UFCU informed Barnes it could not negotiate the check until a full
settlement could be reached, (3) Barnes acquiesced to UFCU’s retention of the check and did not
request the check be returned, and (4) there were continued settlement negotiations between the
parties. See Kelly v. Kowalsky, 442 A.2d 1355, 1357 (Conn. 1982) (“When creditor immediately
and fully explains the grounds for his retention of a conditional check, and when a debtor acquiesces
in that retention, there is no policy reason to support a finding that a creditor has agreed to an offer
of accord which he has expressly rejected.”); American Nat’l Bank v. Bradford, 188 S.W.2d 971,
978-79 (Tenn. App. 1945) (when “the parties continue to negotiate to reach an agreement to
compromise the claim, it can hardly be said that the offeree must at the same time elect to accept or
refuse the check, or that his holding it during such negotiations is unreasonable”). We hold that,
13
under the particular circumstances of this case, whether UFCU retained the check for an
unreasonable length of time presented a fact issue for the jury, and the evidence before the jury
permitted it to find that there was no basis upon which to base an accord and satisfaction. See 35
Am. Jur.2d Proof of Facts § 735 (2013) (“The reasonableness of the period of retention is ordinarily
a question for the jury.”).
Even if we were to conclude that UFCU’s retention of the cashier’s check was an
implied acceptance, we cannot conclude that Barnes established as a matter of law that the check or
her accompanying letter “contained a conspicuous statement to the effect that the instrument was
tendered in full satisfaction of the claim.” Tex. Bus. & Com. Code Ann. § 3.311(b). At the time
Barnes tendered the check, there were numerous claims and counterclaims9 between the parties and
there is no notation on the check as to what claims Barnes intended to settle by tendering the funds
or that the payment was tendered in full satisfaction of any claim. Further, the letter accompanying
the check did not explicitly state in clear and unmistakable terms that it was in full satisfaction of
any or all claims. Rather, Barnes tendered the funds with “all rights reserved” and stated that the
amount due should be offset by over $400,000 in damages and attorneys’ fees.
When the creditor’s assent to the creation of a new contract must be implied, as in
this case, “the facts proved must irresistibly point to such conclusion.” Jenkins, 449 S.W.2d at 455.
9
Barnes had pending claims against UFCU for fraud in the inducement, DTPA violations,
breach of contract, fraud, negligence, defamation, intentional infliction of emotional distress, invasion
of privacy, malice, and unconscionable contract of adhesion. UFCU had multiple counterclaims
pending against Barnes, including breach of contract, quantum meruit, unjust enrichment, and
conversion. Both parties sought to recover attorneys’ fees.
14
There must be “an unmistakable communication to the creditor that tender of the lesser sum is
upon the condition that acceptance will constitute satisfaction of the underlying obligation.” Id.
The “statement accompanying the tender of a sum less than the contract price must be so clear,
full and explicit that it is not susceptible of any other interpretation.” Id. “The condition that the
tender is in full settlement must be brought home to the creditor.” Roylex, Inc. v. S & B Eng’rs, Inc.,
592 S.W.2d 59, 60 (Tex. Civ. App.—Texarkana 1979, no writ).
We do not believe that Barnes’s letter accompanying the cashier’s check is so clear,
full, and explicit that it is not susceptible of any interpretation other than that it was in full
satisfaction of all pending claims. George Linskie Co. v. Miller-Picking Corp., 463 S.W.2d 170, 173
(Tex. 1971) (holding no accord and satisfaction as a matter of law when debtor “did not make known
in clear and unmistakable terms that the tender . . . would constitute full satisfaction of all pending
claims”). Barnes’s tender of the funds “with all rights reserved” while continuing to claim additional
damages is itself unclear as to what claims are settled by the accord, and the accord is susceptible
to multiple interpretations as to what claims were discharged. See id.
At best, any inferences to be drawn from the letter presented issues of fact properly
submitted to the jury. See Jenkins, 449 S.W.2d at 456 (holding whether payments by contractor to
subcontractor carried unequivocal notice that payments were tendered in full satisfaction of all
claims was question of fact when numerous amounts were disputed and alleged accord was
susceptible to multiple interpretations); Flowers v. Diamond Shamrock Corp., 693 F.2d 1146, 1153
(5th Cir. 1982) (“At most, any inferences to be drawn from the letter concerning . . . an accord
and satisfaction, were factual issues to be determined by the jury.”); see also George Linskie Co.,
15
463 S.W.2d at 172 (holding no accord and satisfaction as a matter of law when letter accompanying
tender was susceptible of multiple interpretations); Call of Houston, Inc. v. Mulvey, 343 S.W.2d 522,
525 (Tex. Civ. App.—Houston 1961, no writ) (holding whether parties mutually intended to enter
accord and satisfaction presented issue of fact when recital on check could have been misunderstood
by creditor). Based on the foregoing, we cannot conclude that Barnes established her affirmative
defense of accord and satisfaction as a matter of law.10 We therefore overrule Barnes’s second issue
on appeal.
DISCOVERY SANCTIONS
In her third issue, Barnes complains the trial court abused its discretion in sanctioning
her $500 in a discovery order dated July 5, 2006. The record reflects the trial court issued three
discovery orders against Barnes. The first order, entered on December 13, 2005 and not challenged
on appeal, granted UFCU’s motion to compel and ordered Barnes to respond to UFCU’s
discovery requests and pay $1,500 in attorneys’ fees as sanctions. The trial court issued a second
order on June 12, 2006, granting UFCU’s second motion to compel and ordering Barnes to produce
10
Barnes argues the trial court abused its ministerial duty by not enforcing the alleged Rule
11 agreement as an agreed judgment dismissing the suit. She also argues the trial court abused its
discretion by not issuing a declaratory judgment declaring the rights of the parties, as a matter of law,
under the Rule 11 agreement. Because Barnes’s breach of contract claim and accord and satisfaction
defense presented issues of fact, we conclude the trial court did not abuse its discretion by submitting
those issues to the jury. Tex. Civ. Prac. & Rem. Code Ann. § 37.007 (West 2008 & Supp. 2012) (if
declaratory judgment “involves the determination of an issue of fact, the issue may be tried and
determined in the same manner as issues of fact are tried and determined in other civil actions);
Staley v. Herblin, 188 S.W.3d 334, 336 (Tex. App.—Dallas 2006, pet. denied) (holding fact issues
as to the existence of a Rule 11 settlement agreement—when proposed settlement documents were
unsigned and agreement was evidenced only by series of letters, documents, and communications
between the parties—precluded entry of an agreed judgment).
16
documents responsive to several specific requests for production and overruling her objections to
such requests. UFCU filed a motion to enforce the June 12, 2006 order, and a hearing was held on
July 5, 2006. After the hearing, the trial court entered an order partially granting UFCU’s motion
to enforce—ordering that Barnes respond only to Request for Production 26 and awarding UFCU
$500 in attorneys’ fees.
On appeal, Barnes argues the trial court abused its discretion by sanctioning her $500
in attorneys’ fees. But UFCU’s motions to compel and enforce were not included in the record, and
the record does not otherwise reflect the questions posed by UFCU’s requests for production
or Barnes’s responses. Barnes had the burden “to supply us an appellate record demonstrating
the trial court abused its discretion.” University of Tex. at Austin v. Hinton, 822 S.W.2d 197, 202
(Tex. App.—Austin 1991, no writ). Without the requests for production and responses, we cannot
appraise whether the trial court abused its discretion and “must presume that the missing documents
would sustain the trial court’s ruling.” Id. (presuming interrogatories and answers missing from
record would sustain’s trial court’s discovery sanction); see also Christiansen v. Prezelski,
782 S.W.2d 842, 843 (Tex. 1990). We therefore overrule Barnes’s third issue on appeal.
SUMMARY JUDGMENT
In her fourth issue, Barnes argues the trial court erred in granting partial summary
judgment in favor of UFCU and GEICO. Barnes raised this identical issue in her previous appeal
in this case. Barnes, 2010 WL 2133946, at *3. After a careful and thorough review of the summary
judgment evidence, we held “the trial court did not err in granting summary judgment in favor of
UFCU and GEICO.” Id. at *8. Under the law of the case doctrine, “questions of law decided on
17
appeal to a court of last resort will govern the case throughout its subsequent stages.” Hudson v.
Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). Having already concluded as a matter of law that the
trial court did not abuse its discretion in granting partial summary judgment, we overrule Barnes’s
fourth issue on appeal.
RIGHT TO A FAIR TRIAL
In her final issue on appeal, Barnes alleges— in over thirty pages of argument—that
she was deprived of her right to a fair trial due to a multitude of complaints, including the following
as stated in the title of her issue: (1) bad faith litigation tactics employed by appellees, (2) incurable
jury argument, (3) incurable interjection of matters in violation of the motion in limine, (4) malicious
interjection of irrelevant and inadmissible matters to prejudice the jury, (5) perjury by Appellees’
witnesses, (6) false evidence, (7) misleading testimony by persons without personal knowledge,
(8) incompetent evidence, (9) intentional non-disclosure of pertinent evidence and witnesses with
knowledge of relevant facts, (10) misstatement of the law, (11) deliberately misleading the jury to
make them to believe there were two loans when there is no promissory note or other loan
agreement, (12) false testimony based on speculation, conjecture, and surmise, (13) introduction of
letters of UFCU without allowing letters and evidence from Barnes,11 (14) discovery abuse, and
(15) unfair comment on the evidence. In addition to the foregoing complaints, she challenges the
legal sufficiency of every unfavorable jury finding,12 and raises complaints regarding her trial
11
We concluded in our prior discussion of the alleged Rule 11 agreement that this was not
an abuse of discretion.
12
We have already concluded that Barnes did not establish as a matter of law her breach of
contract claim arising from the alleged Rule 11 agreement or her affirmative defense of accord and
satisfaction.
18
counsel’s withdrawal from the case after trial. Many of these complaints are encompassed in her
legal sufficiency challenges, and some complaints have been addressed—as noted— in other sections
of the opinion. After reviewing the legal sufficiency of the evidence, we will address any remaining
and adequately briefed complaints, and then address whether the cumulative affect of these alleged
errors caused an unfair trial.
Legal Sufficiency of Jury’s Findings
Barnes complains there is no evidence to support the jury’s findings in favor of
UFCU on its breach of contract claim and damages.13 Specifically, she argues there is no evidence
supporting the jury’s findings that (1) Barnes and UFCU entered into 2 loan agreements, (2) Barnes
failed to comply with the loan agreements, and (3) UFCU suffered $11,022.33 in damages as a result
of the breach.
When, as here, an appellant attacks the legal sufficiency of an adverse finding on an
issue for which she did not have the burden of proof, she must demonstrate that there is no evidence
to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). “We will
sustain a no evidence point of error when (1) the record discloses 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
13
Barnes additionally challenges the legal sufficiency of the jury’s finding that UFCU did
not breach the loan agreement. Barnes argues “there is no evidence to support this finding as a
matter of law because there was no evidence of the terms and conditions of the loan agreement.”
As Barnes had the burden of proof for her breach of contract claim, it is her burden on appeal to
establish as a matter of law that UFCU breached the terms of the agreement. See Sterner v.
Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). As she admits she did not establish as a matter
of law the terms of the agreement or how UFCU breached those terms, we conclude she did not meet
her burden of proof on appeal.
19
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.”
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). In reviewing a no evidence point, we
must “credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless
reasonable jurors could not.” City of Keller, 168 S.W.3d at 827. If more than a scintilla of evidence
supports the jury's finding, “the jury’s verdict . . . must be upheld.” Wal-Mart, Inc. v. Miller, 102
S.W.3d 706, 709 (Tex. 2003).
1. Is the Breach of Contract Finding Supported by Legally Sufficient Evidence?
In reviewing the evidence in the light most favorable to the jury’s findings, we
conclude there is more than a scintilla of evidence to support the jury’s findings in favor of UFCU
on its breach of contract claim. First, Question 1 of the jury charge asked whether UFCU and Barnes
had agreed for UFCU “to provide two loans” to Barnes.14 The jury answered affirmatively, but on
appeal, Barnes contends the parties only agreed to one loan and there is no evidence of a second loan.
In her live pleadings, however, Barnes pleaded that her negotiations with UFCU “culminated in two
separate loans being made.”15 Factual assertions in a party’s pleadings, not pled in the alternative,
are considered formal judicial admissions and conclusively establish the facts asserted without the
introduction of the pleadings or other evidence. Houston First Am. Sav. v. Musick, 650 S.W.2d 764,
767 (Tex. 1983). Accordingly, the fact that UFCU and Barnes entered into two loan agreements is
conclusively established in the case without the introduction of other evidence.
14
UFCU contends they provided Barnes with two loans—one loan in the amount of $4,900
and the other in the amount of $9,100.
15
See Plaintiff’s First Amended Petition and Plaintiff’s Supplemental Original Petition.
20
Second, Question 3 of the jury charge asked whether Barnes had failed “to comply
with her loan agreements.” The jury answered affirmatively, after UFCU presented evidence that
Barnes failed to comply with the loan agreements by not obtaining comprehensive and collision
insurance coverage for her vehicles securing the loans. UFCU admitted two documents, one for
each loan, titled “Agreement to Provide Insurance” signed by Barnes. The Agreement provides that
“I [Barnes] understand that one of the lender’s requirements is that I provide adequate insurance
coverage on the property securing my loan. This insurance must at least provide comprehensive
and collision coverage.” There is no evidence in the record that Barnes obtained the required
insurance coverage. Barnes’s insurance statements from the relevant time period indicate that she had
liability coverage on the vehicles but did not have comprehensive or collision coverage. As such, we
conclude there is more than a scintilla of evidence to support the jury’s finding that Barnes failed to
comply with the loan agreements.
We further conclude there is more than a scintilla of evidence to support the jury’s
award of damages in the amount of $11,022.33. A collection manager for UFCU testified that the
principal, interest, late fees, and collateral protection insurance for the first loan totaled $3,084.74
and for the second loan $7,937.59. The total for the two loans was $11,022.33—the exact amount
of damages found by the jury. As such, we conclude there is more than a scintilla of evidence
supporting the jury’s damages award.
21
2. Are the Jury’s Findings of Attorneys’ Fees Supported by Sufficient Evidence?
Barnes further complains the amount of attorneys’ fees awarded to UFCU was
excessive and not supported by sufficient evidence.16 The reasonableness of attorneys’ fees is a fact
question for the jury’s determination, and a reviewing court may not substitute its judgment for the
jury’s. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Barker v. Eckman, 213 S.W.3d 306, 314
(Tex. 2006). But a party seeking attorneys’ fees must prove the reasonableness and necessity of the
fees with competent evidence. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991).
The standard of review for remitting excessive damages, including excessive
attorneys’ fees, is factual sufficiency. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) (“Factual
sufficiency is the sole remittitur standard for actual damages. In determining whether damages are
excessive, trial courts and courts of appeals should employ the same test as for any factual sufficiency
question.”); Olin Corp. v. Smith, 990 S.W.2d 789, 798 (Tex. App.—Austin 1999, pet. denied); see
also Bocquet, 972 S.W.2d at 21(holding court of appeals erred in ordering remittitur of award of
attorneys’ fees without detailing all relevant evidence and explaining why evidence was factually
insufficient to support award). Under this standard, we must “examine all the evidence in the record
to determine whether sufficient evidence supports the damage award, remitting only if some portion
is so factually insufficient or so against the great weight and preponderance of the evidence as to be
manifestly unjust.” Pope, 711 S.W.2d at 624.
16
Barnes also argues the trial court abused its discretion by not segregating the award of
attorneys’ fees. The jury question on fees did not segregate the amount of fees as to specific claims,
and Barnes did not object. If there is no objection “to the fact that the attorney’s fees are not segregated
as to specific claims, then the objection is waived.” Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389
(Tex. 1997). Accordingly, we conclude Barnes has waived this issue on appeal.
22
Reviewing the evidence in light of this standard, we conclude there is sufficient
evidence to support the $35,000 award of attorneys’ fees through trial but hold there is insufficient
evidence to support the $25,000 award of attorneys’ fees to UFCU for an appeal to this Court. With
regard to the attorneys’ fees incurred through trial, UFCU’s attorney of record testified that his firm
had expended 353 hours on the case and would require approximately sixty-five additional hours for
trial work, that the billable rates for the lawyers at his firm were between $150 to over $300 an hour,
that those rates were reasonable compared to other law firms of similar size, and that his client had
accrued approximately $63,888.59 in attorneys’ fees in preparing the case and would incur an
additional $10,000 to $12,000 trying the case. UFCU’s attorney further testified that the amount of
attorneys’ fees was reasonable and not unusual “considering what’s gone on for four and half
years”—including numerous pretrial hearings and motions. Barnes testified that she had incurred
over $60,000 in fees representing herself in pretrial motions and hearings and that her trial counsel
had incurred another $25,000 in fees. Although UFCU’s total recovery in the case is less than the
amount of attorneys’ fees awarded, we conclude there is sufficient evidence to support the jury’s
award of attorneys’ fees through trial based on the testimony regarding attorneys’ fees, the amount
of time the case was pending, and the number of hearings and pre-trial filings. See USAA Cnty. Mut.
Ins. Co. v. Cook, 241 S.W.3d 93, 102-103 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (award
of fees greatly exceeding actual damages factually sufficient); Bundren v. Holly Oaks Townhomes
Ass’n, Inc., 347 S.W.3d 421,441 (Tex. App.—Dallas 2011, pet. denied) (“[T]here is no rule that fees
cannot be more than actual damages.”).
We do not conclude, however, that there was sufficient evidence to support the full
amount of attorneys’ fees awarded to UFCU for an appeal to this Court. At trial, UFCU’s lawyer
23
testified that his client would incur an additional $10,000 to $15,000 in attorneys’ fees if the case
were appealed to this Court. The lawyer’s testimony regarding appellate attorneys’ fees was not
challenged on cross-examination or otherwise contradicted by the record. Nevertheless, the jury
found UFCU should be awarded $25,000 for this appeal, and the trial court rendered judgment
accordingly. The attorneys’ fees awarded to UFCU for this appeal clearly exceed the upper amounts
to which its attorney testified. Because there is no evidence to support the jury’s full award of $25,000,
the award is excessive.17 See Valley Coca-Cola Bottling, Inc. v. Molina, 818 S.W.2d 146, 149 (Tex.
App.—Corpus Christi 1991, writ denied) (appellate attorneys’ fees excessive where amount awarded
exceeded attorney’s testimony at trial).18
A court of appeals may exercise its power to suggest a remittitur when an appellant
complains that there is insufficient evidence to support an award, and the court of appeals agrees but
finds that there is sufficient evidence to support a lesser award. Tex. R. App. P. 46.3; Akin, Gump,
Strauss, Hauer & Feld, L.L.P., v. National Dev. & Research Corp., 299 S.W.3d 106, 123-24 (Tex.
2009); Bechtel Corp. v. CITGO Prods. Pipeline Co., 271 S.W.3d 898, 922 (Tex. App.—Austin
2008, no pet.). In this case, the evidence is sufficient to support a finding of attorneys’ fees for this
17
UFCU appears to concede this point in its brief by agreeing that there was evidence to
support an award of appellate fees for $15,000 but mistakenly asserting that the trial court awarded
UFCU $15,000 for this appeal instead of the $25,000 actually awarded: “Mr. Donley also testified
that if the matter was appealed it would take approximately another $15,000 to $10,000 in order to
handle that appeal at the Court of Appeals. . . . This evidence provides more than a scintilla of
evidence upon which the jury could have based its verdict in this case, and upon which the Trial
Court could have relied in signing the judgment in this case awarding University $35,000 in
attorneys’ fees, with an additional $15,000 in case of an appeal to this Court.”
18
Because UFCU’s attorney testified that an appeal to the Supreme Court of Texas would
cost between $10,000-$15,000, we do not conclude that the $15,000 award of attorneys’ fees for an
appeal to the Supreme Court of Texas was excessive.
24
appeal in the amount of $15,000 but is insufficient to support the entire amount the jury found.
Accordingly, we condition our affirmance on UFCU filing a remittitur in the trial court, within thirty
days of the date of this opinion, decreasing the award of appellate attorneys’ fees to $15,000 for this
appeal. Tex. R. App. P. 46.3; see Dillard Dep’t Stores, Inc. v. Owens, 951 S.W.2d 915, 920 (Tex.
App.—Corpus Christi 1997, no pet.) (suggesting remittitur of excess appellate attorneys’ fees when
amount awarded clearly exceeded the upper amounts to which attorney testified); see also Valley
Coca-Cola Bottling, Inc., 818 S.W.2d at 149.
3. Did Barnes Establish as a Matter of Law Her DTPA Claim Against GEICO?
The jury found against Barnes on her DTPA claims against GEICO. On appeal,
Barnes alleges there is no competent evidence to support the finding because GEICO’s sole witness
committed “aggravated perjury” and “did not have personal knowledge and only engaged in rank
speculation, conjecture, and surmise and rendered nothing but bare legal opinions and conclusions
that were not relevant or reliable.” When a party attacks the legal sufficiency of an adverse finding
on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence
establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co., 46 S.W.3d at
241-42.
Barnes makes no attempt on appeal to explain how the evidence established all vital
facts in support of her DTPA claims. Her brief does not contain a clear argument as to how she
established her DTPA claims, appropriate citations to authorities supporting her DTPA claims, or
citations to the record establishing the evidence in support of her DTPA claims. See Tex. R. App.
P. 38.1(I); see also G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 546 (Tex.
25
App.—Dallas 2005, no pet.) (appellate court has no duty to search through the record without
guidance from appellant to determine whether its assertion of reversible error is valid). Further,
Barnes cites to no evidence—other than her own contrary testimony—of perjury, and Barnes did not
object to the testimony on the grounds she now asserts on appeal.19 See Tex. R. App. P. 33.1(a). For
these reasons, we conclude Barnes has waived this issue on appeal.
Incurable Jury Argument
Barnes contends that opposing counsel engaged in numerous incurable jury
arguments during opening and closing statements. Barnes made two objections during opening and
closing statements, which we will review below. Barnes, however, did not preserve error as to her
additional complaints by including incurable jury argument as a point in her motion for new trial and
has thus waived error for those complaints not objected to at trial. See Tex. R. Civ. P. 324(b)(5)
(point in a motion for new trial prerequisite to complaint on appeal of incurable jury argument if not
otherwise ruled on by trial court); Clark v. Bres, 217 S.W.3d 501, 509 n.1 (Tex. App.—Houston
[14th Dist.] 2006, pet. denied) (“While no contemporaneous objection required in order to raise
incurable jury argument on appeal, a party must include incurable jury argument as a point in a
motion for new trial.”).
19
Barnes only twice objected that the witness lacked personal knowledge—objecting that
the witness lacked personal knowledge to testify regarding an insurance policy from another carrier
and objecting to the witness testifying to GEICO’s document production. The trial court sustained
the former objection and overruled the latter. Neither objection is the basis for Barnes’s current
appeal. Barnes made no objection on the grounds that the testimony constituted “bare legal opinions
and conclusions that were not relevant or reliable.”
26
During opening statements, UFCU’s trial counsel violated the motion in limine by
informing the jury that Barnes had sought a temporary restraining order in the case. At a bench
conference out of the hearing of the jury, Barnes objected but did not request that the trial court give
the jury an instruction to disregard. The trial court instructed UFCU’s counsel to not discuss the
temporary restraining order but did not give the jury an instruction to disregard. When evidence is
placed before the jury in violation of a motion in limine, an instruction to disregard is generally
sufficient to cure error. See Barney v. State, 698 S.W.2d 114, 125 (Tex. Crim. App. 1985); Lusk v.
State, 82 S.W.3d 57, 60-61 (Tex. App.—Amarillo 2002, pet. denied). In situations where the
potential harm can be cured by an instruction to disregard, the complainant must ask the court to so
instruct the jury to preserve error—unless the objectionable testimony was so inflammatory that it
would be impossible to remove the harmful impression from the jury’s mind. Lusk, 82 S.W.3d at
60-61; Jones v. State, 825 S.W.2d 470, 473 (Tex. App.—Corpus Christi 1991, writ ref’d). Barnes
did not request an instruction to disregard, and after reviewing the statement at issue, we cannot
conclude that it was so inflammatory that an instruction would not have cured the error. Indeed,
Barnes herself testified on cross-examination that she had filed a lawsuit and “got a TRO to restrain
ya’ll from doing what you did.” Based on the foregoing, we conclude Barnes has waived error.
Barnes also objected to UFCU’s stating during closing arguments that Barnes had
threatened violence in the event UFCU attempted to repossess her vehicles. During a preliminary
hearing in the case, the following testimony occurred and was introduced into evidence at the jury trial:
Barnes: This is going to lead to violence. I came here. I’ve
already talked to them about that. They –
27
Court: Ms. Barnes, what do you mean this is going to lead to
violence? I’m not sure I’m understanding that.
Barnes: These people are stealing. They’re going to –
Court: In what way do you mean – you’re an officer of the court.
Barnes: Yes. It’s going to lead – you cannot come out and
physically remove my transportation when I have two
children to get to school, and that’s what they’re
saying they’re going to do. I don’t owe the money. I
have full coverage right now. There’s no reason for
them to keep–
Court: You’re anticipating that they are going to use violence?
Barnes: Yes.
Court: You’re not telling the Court that you intend to use violence?
Barnes: If they use violence against me, you bet I am. I have
a right to self defense. If they come after me, I have
a right to defend myself and I will.
Court: Okay. Well, I’m going to counsel you, Ms. Barnes, to be very
careful. You’re an officer of the court.
Barnes: I don’t care.
During closing arguments, UFCU’s counsel stated: “Ms. Barnes has talked about how she tried to
surrender the vehicles, say I’ll just give them up, you know, you guys just take them. Well, we read
into evidence at the first hearing in this matter where Ms. Barnes threatens violence if anybody tries
to take those.” Barnes’s counsel then objected on the grounds that Barnes’s statement was
misrepresented—that she had actually stated that UFCU would commit violence. The trial court did
not make an express ruling on the objection but instructed the jury: “Once again, ladies and
28
gentlemen, as I told you a while ago, you heard the evidence and we’ll go from there.” Barnes did
not request an express ruling or an instruction to disregard.
Based on the foregoing testimony, we conclude the jury argument was not improper
because there was direct evidence, as well as inferences from the evidence which supported the
argument. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839-40 (Tex. 1979); Tex. R. Civ.
P. 269; see also Gorman v. Life Ins. Co. of N. Am., 859 S.W.2d 382, 389 (Tex. App.—Houston
[1st Dist.] 1993, no writ) (closing argument accusing other party’s agents of “bald-faced lies” not
improper where there was evidence from which jury could deduce agents misrepresented facts).
“Whether by cross-examination or advocacy, the jury may be encouraged to weigh, evaluate, and
test the evidence before it.” Gorman, 850 S.W.2d at 389. Our review of the record reveals evidence
from which the jury could conclude that Barnes threatened violence if UFCU attempted to repossess
her vehicles, and therefore the jury argument was not improper.
Even if the argument could be regarded as improper, we do not regard it as so
inflammatory or erroneous that proper instruction to the jury would not have cured it. Otis Elevator
Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968) (“If the argument is of a ‘curable’ nature, an objection
to it must be promptly made and an instruction requested or the error is waived.”). Accordingly, we
conclude UFCU’s argument was not improper, and Barnes waived error, if any, by not obtaining a
ruling on her objection and requesting an instruction to disregard. Id.; see also PopCap Games, Inc.
v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied) (appellant
waived error by not obtaining express ruling on objection to jury argument where trial court stated:
“Well, ladies and gentlemen, what was in evidence and what was not in evidence, you heard it,
you’re the ultimate deciders as to what was said and what was not.”).
29
Improper Comments on the Evidence
Barnes was the plaintiff in this suit, but she argues on appeal that she did not have the
burden of proof for all questions submitted to the jury, and the trial court improperly placed the
entire burden of proof on her by (1) improperly commenting on the weight of the evidence, and
(2) jury charge error. We conclude Barnes waived error as to both complaints by not making a
timely, specific objection. See Tex. R. App. P. 33.1(a).
Barnes cites to two instances in the record where the trial court informed the jury that
Barnes, as the plaintiff having the burden of proof at trial, would be allowed to proceed first during
opening and closing arguments. But the record does not demonstrate that Barnes objected to the
trial court’s comments. A party waives appellate review when it fails to object to a trial judge’s
comments and request an instruction to disregard unless the comment could not have been rendered
harmless by an instruction. Exxon Mobil Corp. v. Kinder Morgan Operating L.P., 192 S.W.3d 120,
129 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also Capellen v. Capellen, 888 S.W.2d
539, 547 (Tex. App.—El Paso 1994, writ denied) (“Unless the comment by the judge is so blatantly
and obviously prejudicial that it cannot be cured, an objection and request for instruction must be
made in order to preserve error.”). Upon proper objection and request for instruction, the trial court
could have easily negated error, if any, as to its comments concerning the burden of proof. We
cannot conclude that its comment was so blatantly and obviously prejudicial that an instruction
would not have cured it. Accordingly, we conclude Barnes waived error, if any, as to this point.
Barnes further argues the trial court improperly placed the burden of proof on her for
all questions in the jury charge. Reviewing the transcript from the charge conference, Barnes did
30
not object to any question on the grounds that the question improperly placed the burden of proof
on the wrong party or request an appropriate instruction on the burden of proof. Our procedural rules
provide that any complaint to a jury charge is waived unless specifically included in an objection.
Tex. R. Civ. P. 274; Tex. R. App. P. 33.1(a)(1); see also In re B.L.D., 113 S.W.3d 340, 349 (Tex.
2003) (“A party must make the trial court aware of the complaint, timely and plainly, and obtain a
ruling.”). As Barnes did not make the trial court aware of her complaint to the jury charge, she has
waived the issue on appeal.
Jury Misconduct
Barnes argues on appeal that the trial court abused its discretion by denying her
motion for new trial on the grounds of jury misconduct. Barnes alleges a juror, during deliberations,
improperly construed her credit report and shared this mistaken analysis with other jurors.
Specifically, she alleges in her motion for new trial and accompanying affidavit, that one juror
“who claimed to have experience in reading credit bureau reports . . . stated as fact that Barnes’s
credit rating was the same before and after the bad faith reporting.” The credit report was admitted
during Barnes’s case-in-chief. Barnes’s sole evidence supporting her claims is her own affidavit.
We conclude that Barnes has failed to conclusively establish jury misconduct.
We review a trial court’s refusal to grant a motion for new trial for abuse of
discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). “To warrant a
new trial for jury misconduct, the movant must establish (1) that the misconduct occurred, (2) it was
material, and (3) probably caused injury.” Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362,
372 (Tex. 2000). Whether misconduct occurred and caused injury is a question of fact for the trial
31
court. Id. Absent findings to the contrary, we assume that the trial court made all findings in support
of its decision to deny the motion for new trial. Id. Consequently, Barnes had the burden to
conclusively establish jury misconduct. Id.
We cannot conclude, based on the record before us, that Barnes conclusively
established jury misconduct. First, an affidavit of a party or counsel is insufficient to establish jury
misconduct during deliberations because it must be presumed, because of the secretive nature of
jury deliberations, that the affidavit could not be based on personal knowledge. Pabich v. Kellar,
71 S.W.3d 500, 510 (Tex. App.—Fort Worth 2002, pet. denied); Clancy v. Zale Corp., 705 S.W.2d
820, 828 (Tex. App.—Dallas 1986, writ ref’d n.r.e.). Further, when the ground for a motion for new
trial is jury misconduct, the trial court may not admit—unless an outside influence was improperly
brought to bear upon any juror—juror testimony regarding statements made during deliberations or
“evidence of any statement” by a juror which would otherwise be precluded. Tex. R. Civ. P. 327;
Tex. R. Evid. 606(b). We cannot conclude that the juror’s alleged analysis of Barnes’s properly
admitted credit report, based on the juror’s own experience or expertise, was misconduct resulting
from an outside influence. See Golden Eagle Archery, Inc., 24 S.W.3d at 370 (“The rules contemplate
that an ‘an outside influence’ originates from sources other than the jurors themselves.”); Soliz v.
Saenz, 779 S.W.2d 929, 932 (Tex. App.—Corpus Christi 1989, writ denied) (juror’s interjection of
personal experience or expertise into discussion not an “outside influence”). As such, Barnes has
failed to present competent, admissible evidence of jury misconduct.
Finally, even if we had competent evidence to support Barnes’s allegations, we could
not conclude the juror engaged in misconduct by construing a credit report properly admitted into
evidence. Even if the juror misunderstood the evidence in the credit report, a “[j]uror’s deductions,
32
inferences from the evidence, and reasoning, though faulty, illogical, arbitrary or bizarre, do not
constitute misconduct.” Griffith v. Hudspeth , 378 S.W.2d 153, 156 (Tex. Civ. App.—San Antonio
1964, no writ). Accordingly, we conclude the trial court did not abuse its discretion by denying the
motion for new trial.
Discovery Abuse
Barnes argues GEICO engaged in discovery abuse by failing to disclose the identity
of an employee who spoke with Barnes regarding her insurance coverage. We cannot appraise the
merit of Barnes’s claim because the relevant discovery questions and answers are not included in the
record. See Hinton, 822 S.W.2d at 202. Further, Barnes does not point to anything in the record
showing the trial court overruled a motion, objection, or request for relief regarding the alleged
discovery abuse. A complaint not presented to the trial court by a timely, specific objection is not
preserved for appeal. Tex. R. App. P. 33.1(a); Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d 888,
890 (Tex. 1985) (“A party cannot wait until the trial is finished, then seek to reverse an unfavorable
verdict by complaining of an error which the trial court could have corrected had it been timely
informed of the error.”); see also Warrantech Corp. v. Computer Adapters Servs. Inc., 134 S.W.3d 516,
530-31 (Tex. App.—Fort Worth 2004, no pet.) (denial of motion for new trial on grounds of
discovery abuse not abuse of discretion where complaining party failed to seek prior relief from trial
court). Accordingly, we conclude Barnes has waived error, if any, regarding GEICO’s discovery
responses.
Motion to Withdraw
Barnes complains the trial court abused its discretion by permitting her trial counsel
to “withdraw after trial before the judgment was ever signed and entered.” Her trial counsel’s
33
motion to withdraw and the trial court’s order granting such motion are not included in the record.
It is the burden of the appellant to bring forward a sufficient record to show the error committed by
the trial court. Christiansen, 782 S.W.2d at 843. Barnes does not include sufficient facts, argument,
or authority for us to render judgment on this issue without reviewing the motion to withdraw and
the trial court’s order. We do, however, note that Barnes herself is an attorney with over twenty-five
years’ experience who represented herself in this matter up until trial and adequately perfected
her own appeal. Accordingly, based on the record before us, we cannot conclude that counsel’s
withdrawal probably caused the rendition of an improper judgment or probably prevented Barnes
from presenting her own case on appeal. Tex. R. App. P. 44.1(a).
False Accusations and Inflammatory Statements, Comments, and Arguments
Barnes makes numerous complaints regarding statements made by witnesses and
attorneys at trial referring to her credit history, driving record, and occupation as a lawyer. To the
extent Barnes objected to these comments, we conclude the evidence was relevant, and the trial court
could have concluded the probative value of the evidence was considerable compared to its potential
to unfairly prejudice Barnes. See Tex. R. Evid. 403. First, Barnes herself testified at trial during
direct examination that she was an attorney practicing law for over twenty-five years, and the fact
that she was an attorney was relevant as she had represented herself during much of the litigation.
In addition, Barnes’s credit history prior to her loan with UFCU was relevant to the type of loan
UFCU offered and the terms of such loan, and her driving record was relevant to the type of
insurance policy offered by GEICO and the cost of such policy—all contested issues at trial.
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Right to a Fair Trial
In her final complaint, Barnes argues that the cumulative effect of the aforementioned
alleged errors deprived her of the right to a fair trial under the United States and Texas Constitutions.
A number of errors may be found harmful in their cumulative effect. See Strange v. Treasure City,
608 S.W.2d 604, 609 (Tex. 1980). However, in the multitude of issues Barnes presented in this
appeal, we concluded the trial court committed only one error by rendering excessive attorneys’ fees
to UFCU. Such error will be remedied by this Court through a suggestion of remittitur. As such,
we cannot conclude that Barnes was deprived of her right to a fair trial.
CONCLUSION
We affirm the trial court’s judgment conditioned on UFCU’s filing a remittitur in the
trial court decreasing its award of attorneys’ fees for this appeal to $15,000 and notifying this Court
of the filing. If the remittitur is filed within thirty days of the date of this opinion, we will reform
the judgment and affirm as modified. Otherwise, we will reverse the trial court’s judgment as to
attorneys’ fees for this appeal and remand this cause for redetermination of attorneys’ fees for this
appeal. See Tex. R. App. P. 46.3.
__________________________________________
Scott K. Field, Justice
Before Chief Justice Jones, Justices Pemberton and Field
Conditionally Affirmed
Filed: April 18, 2013
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