William D. Abraham v. Ron Acton, Debbie Acton, AARK Investments, L.P., Federico Fernandez and Carol Fernandez ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
WILLIAM D. ABRAHAM, §
No. 08-22-00079-CV
Appellant, §
Appeal from the
v. §
243rd Judicial District Court
RON ACTON, DEBBIE ACTON, AARK §
INVESTMENTS, L.P., FEDERICO of El Paso County, Texas
FERNANDEZ and CAROL FERNANDEZ, §
(TC# 2016DCV2081)
Appellees. §
OPINION
This case regards the ownership of a house on El Paso’s westside (the Property). Appellant
William D. Abraham asserted causes of action against all Appellees for civil conspiracy and
adverse possession. Abraham further asserted causes of action against Federico Fernandez and
Carol Fernandez (the Fernandezes) for declaratory relief and to quiet title; against Ron Acton and
Debbie Acton (the Actons) for fraud and fraudulent inducement; and against AARK
Investments, L.P. (AARK) for trespass to try title and trespass to real property. Appellees
collectively counterclaimed against Appellant for filing a false claim of ownership of the Property.
Appellant raises ten issues in appealing the trial court’s summary judgments and final judgment in
Appellees’ favor following a jury trial.
BACKGROUND
A. Factual background
Appellant entered into an agreement with Ghulam Murtaza whereby the Property would
ultimately be transferred to him. Because Murtaza’s mortgages on the Property had due-on-sale
clauses, Murtaza’s attorney, Gregory Pine, structured the agreement with Appellant so as not to
transfer title until closing, once Appellant paid the entire purchase price. Appellant indicated that
he “had total leeway in how to structure the deal,” and he has over 40 years of real estate
experience. The purchase price was $380,000—with Appellant providing Murtaza a $10,000 down
payment and Murtaza financing the remaining $370,000 with 7% interest through a wraparound
note secured by “a vendor’s lien and superior title retained in a deed of even date herewith from
Ghulam Murtaza to Maker and by a deed of trust of even date from Maker to Gregory B. Pine,
Trustee[.]” In September 2001, Appellant and Murtaza finalized their arrangement by signing a
warranty deed with vendor’s lien (the 2001 deed). The 2001 deed specified “[t]he vendor’s lien
against and superior title to the property are retained” pending full payment, at which point “this
deed shall become absolute.” The 2001 deed was not delivered to Appellant or recorded. Instead,
Pine retained it and sent a copy to Appellant, which Appellant understood he could not file in the
deed records. Appellant was to pay $2,461.62 per month for three years before the principal
balance would come due. Appellant further agreed to pay property taxes. The Property was then
leased, and the tenant’s payments were applied to Appellant’s debt—first through Appellant then
directly to Murtaza. Appellant did not make the balloon payment in 2004. Appellant testified that
he had a conversation with Murtaza and they “agreed to continue to make the monthly payments”
but never modified their agreement. 1
1
Murtaza did not testify; in their briefing, Appellees indicated they were unable to locate Murtaza.
2
In the summer of 2008, the tenant stopped paying rent and Pine filed a complaint for
forcible detainer on Murtaza’s behalf. In September 2008, Appellant filed the affidavit at issue in
this case (the Affidavit) in the deed records of the El Paso County Clerk’s Office. In the Affidavit,
Appellant asserted he owned the Property. Appellant’s father, Sib Abraham (Sib), contacted Pine
to pay Appellant’s note in full and purchase the Property from Murtaza. Sib and Pine eventually
finalized an agreement in early 2009 to purchase the Property (at a different price than what
Appellant believed he owed Murtaza). The sale closed at the end of March 2009 with a payoff of
$408,546.89. To fund the sale, Sib borrowed $420,000 from the Actons pursuant to a note and lien
agreement. The 2009 warranty deed transferring the Property from Murtaza to Sib, which was filed
along with a deed of trust, security agreement, and assignment of rents, documented the Actons’
vendor’s lien on the Property. The Actons believed the Property was free of other encumbrances.
Appellant never withdrew the Affidavit, even after Sib purchased the Property. Over the next
several years, Sib and the Actons made changes to the note and recorded the same with the El Paso
County Clerk to modify the 2009 warranty deed. In the last modification in 2011, the Actons
loaned Sib an additional $100,000 and executed and filed another deed of trust, security agreement,
and financing statement evidencing the additional lien on the Property. Sib made the required
payments until his death in 2014.
After Sib’s death, the note payments stopped. The Actons’ attorney received court approval
to foreclose on the Property. The foreclosure was scheduled for December 1, 2015. On
November 30, 2015, Appellant filed a temporary restraining order to prevent foreclosure and
unsuccessfully attempted to purchase the Property. On December 1, 2015, the foreclosure sale took
place and the Actons became owners of the Property. After the foreclosure, Appellant continued
to attempt to buy the Property from the Actons. The Actons and Appellant never reached an
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agreement. On March 28, 2016, the Actons sold the Property to AARK. The Actons did not
become aware of the Affidavit before selling the Property.
After AARK purchased the Property, Albert Apodaca, a partner in AARK, became aware
of a lis pendens on the Property and a lawsuit against AARK. According to Apodaca, the lis
pendens referred to a lawsuit wherein “Appellant D. Abraham filed an affidavit of ownership” to
the Property. The original petition referred to the Affidavit as filed and recorded. Because the title
company informed Apodaca it would remove the cloud from the title, AARK began entertaining
offers to sell the Property.
AARK entered a contract with the Cowans to sell them the Property for a cash sum of
$500,000 and a closing date of April 15, 2017. The Cowans informed AARK they objected to
purchasing the Property without a release of the lis pendens. Apodaca met with Appellant about
the matter, but Appellant claimed the Property was his and refused to release the lis pendens.
Appellant told Apodaca he should sue the title company for failing to notify AARK of the cloud
on the title. On November 13, 2017, the Cowans terminated their purchase agreement because the
lis pendens remained.
AARK continued trying to sell the Property. It was unable to do so until 2019. Between
the Cowan contract termination and the 2019 sale, AARK paid $10,649.40 in property taxes on
the Property. On August 15, 2019, the Fernandezes purchased the Property from AARK for
$450,000. The Fernandezes paid a $10,000 down payment and AARK carried the $440,000 note,
maintaining a vendor’s lien on the Property. From the date of purchase to the time of trial, the
Fernandezes continued to make payments on the note.
B. Procedural history
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On June 1, 2016, Appellant filed his original petition against the Actons and AARK,
attaching a copy of the 2001 deed, the Affidavit, and the lis pendens. On October 15, 2020,
Appellant added the Fernandezes as defendants. On January 25, 2021, Appellees counterclaimed
alleging Appellant fraudulently asserted a claim on the Property by the 2001 deed and the Affidavit
in violation of Texas Civil Practices and Remedies Code Chapter 12.
In February 2021, Appellant filed a traditional summary judgment motion on his adverse
possession claim against Appellees and a no-evidence summary judgment motion on Appellees’
counterclaim and affirmative defenses. In March 2021, Appellees filed a motion for traditional and
no-evidence summary judgment on Appellant’s claims: to quiet title, trespass to try title, trespass
to real property, fraud, and fraudulent inducement. Appellees also sought a no-evidence summary
judgment on Appellant’s civil conspiracy claim and traditional summary judgment on Appellant’s
adverse possession and declaratory judgment claim. The trial court granted Appellees’ motions for
traditional and no-evidence summary judgment and denied Appellant’s motions for summary
judgment, which dismissed all of Appellant’s causes of action against Appellees. Appellant filed
a motion for new trial, which the trial court denied.
In October 2021, the parties went to trial on Appellees’ Texas Civil Practices and Remedies
Code Chapter 12 counterclaim.
C. The trial
At the jury trial, Appellant presented evidence to show that after the 2001 deed was signed,
he, not Murtaza, rented the Property to various tenants. Alexis Acosta, a former tenant, testified
that he rented the Property from Appellant and lived there from 2001 to 2008. 2 According to
Acosta, Appellant undertook major repairs on the Property, including replacing the carpet,
2
The residential lease dated February 2005 reflects Murtaza as the landlord and Acosta as the tenant.
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replacing appliances, repairing the swimming pool, and painting. Acosta made payments directly
to Murtaza because that was more convenient for him and Appellant. In 2008, Acosta received
eviction documents from Murtaza and contacted Appellant for help.
Ray Ruz, a property manager, testified that he helped find tenants and manage the Property
for Appellant, who paid him to do so. According to Ruz, Appellant continued to maintain and
improve the Property during the next tenant’s lease. Although Ruz could not recall exactly when
he assisted Appellant, he was certain it was after 2009 and while Sib was still alive.
Appellant testified at trial as follows. Appellant believed he had purchased the Property
from Murtaza on September 11, 2001. Appellant agreed the original deed was to remain unfiled
because Murtaza’s underlying debt contained a due-on-sale clause. Appellant was not concerned
about recording the 2001 deed because the recording was not necessary to consummate the
purchase but “would only put the world on notice.” He paid Murtaza a $10,000 downpayment and
executed a note to Murtaza with monthly payments and a balloon payment after three years, which
obligated Appellant to pay Murtaza the full $380,000. When the balloon payment came due,
Appellant met with Murtaza, and they agreed to continue the monthly payments, increasing them
to $3150 going forward to account for the tax escrow payments, yet they did not modify their
contract. Appellant had also paid the tax escrow shortages from time to time with company checks
from two sole proprietorships.
Appellant was surprised when Murtaza sent Acosta an eviction notice because Appellant
believed he owned the Property. Appellant filed the Affidavit to protect his interest in the Property
until the matter was resolved. He believed any subsequent purchaser would be protected by his
filing, and he did not intend to harm anyone. At the time of his filing, Appellant was not aware of
and did not contemplate the Actons, Apodaca, or the Fernandezes “ever being involved with this
property.”
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Appellant instructed Acosta to speak with Sib to resolve the ownership issue and the
eviction notice. Appellant informed Sib that he owned the Property and had been making payments
for eight years. Appellant asked Sib for help with the situation. At trial, Appellant testified that Sib
used Appellant’s money to purchase the Property:
And I knew my dad was going to be the spearhead on this matter. And so what I
took the opportunity to do was I borrowed against one of my other properties, and
I borrowed $500,000.
And my dad and I were look [sic] brothers. What was mine was his and what was
his was mine, and I had total confidence in him. So what I did was I borrowed this
money on the piece of property, and I gave that to my dad. And I knew that it was
over the amount that I owed [on the Property] . . . and I said, “Handle it because
I’m moving on with my next project.”
He said, “I got it handled.”
. . .
At that point in time, I basically exited the steering of any activity there.
Appellant did not produce any documentation showing he borrowed $500,000 against another
property or gave that money to Sib. Appellant stated that he was not involved in negotiations over
the Property thereafter, except to clarify the balance he owed in a letter to Pine, which was different
from the purchase price Sib paid. According to Appellant, he did not learn of the deed to Sib or
the $420,000 loan from the Actons used to purchase the Property until Sib died. Appellant asserted
that Sib had to have been aware Appellant owned the Property when Sib obtained a loan secured
by the Property.
Appellant testified that when he learned of the deed to Sib, he informed the Actons’
attorney that he owned the Property. According to Appellant, he filed suit to satisfy the note the
Actons had paid, to make everyone whole, and to protect his interest in the Property. In addition
to the lawsuit, Appellant filed the lis pendens to prevent the Property from being conveyed without
addressing his ownership interest.
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Ultimately, the jury returned a verdict against Appellant, finding that he perpetuated a
fraudulent lien or claim against the Property or an interest in the Property with the knowledge that
the document or records were fraudulent and with the intent that the document would be given the
same effect as a valid document or record. The jury further found that the Appellees were injured
by Appellant’s filing of the Affidavit. The jury awarded the Actons $60,000 in exemplary
damages; awarded AARK $60,649.40 in actual damages and $120,000 in exemplary damages; and
awarded the Fernandezes $30,000 in exemplary damages. The jury also awarded Appellees costs
and attorney’s fees.
The trial court entered a final take-nothing judgment against Appellant and ordered the
expunction of the Affidavit and the lis pendens from the county’s records. In addition to the
amounts awarded by the jury, the trial court awarded Ron Acton, Debbie Acton, Federico
Fernandez, and Carol Fernandez each $10,000 in statutory damages. This appeal followed.
Appellant did not file a supersedeas bond or otherwise supersede the judgment.
DISCUSSION
Appellant raises ten issues on appeal: (1) the trial court erred in granting the Actons’
summary judgment motion on the trespass to try title claim; (2) the trial court erred in granting the
Fernandezes’ summary judgment motion on the suit to quiet title; (3) the trial court erred in
granting AARK’s summary judgment motion on the trespass to real property claim; (4) the trial
court erred and abused its discretion in granting the Actons’ summary judgment motion on the
trespass to try title claim; (5) the trial court erred in denying Appellant’s summary judgment
motion on the Actons’ counterclaim; (6) the Actons and AARK lacked standing under Chapter 12
and the court thus lacks jurisdiction; (7) there was no evidence Appellant intended to injure the
Actons by filing the Affidavit; (8) any injuries the Actons suffered were not the result of Appellant
8
filing the Affidavit; (9) the exemplary damages are excessive as a matter of law and must be
eliminated or substantially reduced; and (10) summary judgment error infected the trial.
Appellant’s sixth issue regarding the Actons’ and AARK’s standing and the court’s
jurisdiction is addressed first. The remaining issues are addressed in the following categories:
mooted issues, summary judgments, legal sufficiency, exemplary damages, and whether summary
judgment error infected the jury trial.
STANDING
In his sixth issue, Appellant argues Appellees lack standing for the following reasons:
(1) neither the Actons nor AARK were authorized to sue under Texas Civil Practice and Remedies
Code § 12.003 because they did not have “any interest in the property, nor were either obligors or
debtors with respect thereto[] at the time the counterclaim was filed”; and (2) none of the Appellees
pleaded or proved any legally cognizable injury. Appellant asserts that because the parties lacked
standing to bring their Chapter 12 counterclaim, the trial court lacked subject matter jurisdiction
to hear the case.
Subject matter jurisdiction is essential to a court’s authority to decide a case. SCI Texas
Funeral Servs., Inc. v. Hijar, 214 S.W.3d 148, 153 (Tex. App.—El Paso 2007, pet. denied)
(op. on reh’g). Standing relates to subject matter jurisdiction because a court has no jurisdiction
over a claim where a plaintiff does not have standing. Vee Bar, Ltd. v. BP Amoco Corp., 361
S.W.3d 128, 131 (Tex. App.—El Paso 2011, no pet.). The issue of standing may be properly raised
for the first time on appeal and cannot be waived by the parties. Texas Ass’n of Bus. v. Texas Air
Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Whether a party has standing is a question of law
subject to de novo review. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004).
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When a statute confers standing, “the analysis is a straight statutory construction of the
relevant statute to determine upon whom the Texas Legislature conferred standing and whether
the claimant in question falls in that category.” In re Sullivan, 157 S.W.3d 911, 915 (Tex. App.—
Houston [14th Dist.] 2005, orig. proceeding [mand. denied]). Under Texas Civil Practice and
Remedies Code§ 12.003, “the obligor or debtor, or a person who owns an interest in the real or
personal property” may bring an action to recover damages under Chapter 12 for another’s
perpetrating a fraudulent interest in the property. TEX. CIV. PRAC. & REM. CODE ANN.
§ 12.003(a)(8).
A. No interest in the Property required at time of Chapter 12 counterclaim filing
Here, all of the Appellees argue Appellant violated Texas Civil Practice and Remedies
Code Chapter 12 by maintaining a fraudulent interest in the Property during a time they “were
each the owners of the Property.” And, citing a Fifth Circuit case regarding Chapter 12, they
contend “[n]othing in the language of the statute limits the right to sue to the current owners of the
subject property.” They further argue the Chapter 12 cause of action “is to provide a remedy for
the acts constituting a violation of the Statute” to a person who has an ownership interest in
property and “[t]here is no reason why a party that subsequently sells the property should lose this
remedy.” Appellant, on the other hand, contends that because the statutory language is present-
tense, and based on a plain-language reading of the statute, a Chapter 12 suit may be filed only by
a person who is an obligor or debtor or owns an interest in the Property at the time the suit is filed.
And Appellant argues that only the Fernandezes owned an interest in the Property at the time
Appellees filed the counterclaim.
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(1) AARK’s interest in the Property
AARK owned the Property from the time it purchased the Property from the Actons in
2016 to the time it sold the Property to the Fernandezes in 2019. And when it sold the Property to
the Fernandezes, AARK maintained a vendor’s lien on the Property to secure its $440,000 loan.
AARK maintained this interest in the Property through the time of trial.
(2) Actons’ interest in the Property
In 2009, the Actons acquired their interest in the Property through their $420,000 loan to
Sib secured by the Property, which they foreclosed on in December 2015. The Actons then sold
the Property to AARK in 2016 and did not retain an interest in the Property thereafter. Appellees
filed their Chapter 12 counterclaim in 2021.
(3) Analysis
While this particular issue regarding Chapter 12 standing is a matter of first impression in
Texas courts, the Fifth Circuit squarely considered and rejected the argument that a claimant must
be a present obligor, debtor, or interest-holder to file and maintain a Chapter 12 suit. 3 Vanderbilt
Mortg. & Fin., Inc. v. Flores, 692 F.3d 358 (5th Cir. 2012). In Vanderbilt, a fraudulent lien was
released before a previous property-interest holder intervened with Chapter 12 claims against the
purported lienholders. Id. at 362. The purported lienholders argued that the previous property-
interest holder did not have standing to sue under Chapter 12 because (1) the lien “against them
was released before they intervened, such that they were no longer ‘obligor[s] or debtor[s]’ under
the fraudulent lien, and (2) they had already conveyed their interests in the property before they
intervened, such that they were no longer ‘person[s] who own[] an interest in the real . . .
3
The Vanderbilt court also acknowledged that “Texas courts have rejected the argument that a Chapter 12 damages
claim is mooted when a defendant unilaterally releases an allegedly fraudulent lien after the claim was filed but before
trial or final judgment.” See Esau v. Robinson, No. 13-06-00484-CV, 2008 WL 2375861, at *1-2 (Tex. App.—Corpus
Christi June 12, 2008, no pet.) (mem. op.).
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property.’” Id. at 370 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 12.003(a)(8)). The court
explained: “Generally, there is standing once a plaintiff has suffered a legally cognizable injury or
wrong for which the law provides a cause of action to seek redress.” Id. And although the court
generally evaluates standing when a party files a lawsuit, “standing for a party complaining of a
concrete past violation of a statutory right does not evaporate merely because the defendant has
since ceased to violate that right.” Id.; see also Bowers v. Matula, 943 S.W.2d 536, 539
(Tex. App.—Houston [1st Dist.] 1997, no pet.). Instead, the court made clear that “a live
controversy continues as to whether the [party’s] actions constituted a violation of Chapter 12,
entitling the [other party] to recover statutory damages.” Id. at 371 (emphasis added). Accordingly,
we conclude that all three Appellees—each of whom was an obligor, debtor, or property-interest
holder during the time of the alleged fraudulent claim on the Property—had standing to bring
Chapter 12 claim against Appellant, and the court therefore had subject matter jurisdiction over
the counterclaim. 4
B. No actual injury required to maintain a Chapter 12 cause of action
The Texas Legislature has created several statutory schemes that allow for statutory
damages without evidence of actual damages. See Vanderbilt Mortg. & Fin., 692 F.3d at 372 n.12
(giving examples of such statutory schemes). Chapter 12 is one such statutory scheme that provides
recovery for the greater of fixed statutory damages or actual damages. TEX. CIV. PRAC. & REM.
CODE ANN. § 12.002(b)(1) (providing for recovery of the greater of $10,000 or actual damages
caused by the violation); see also Roman v. Ramirez, 573 S.W.3d 341, 351 (Tex. App.—El Paso
2019, pet. denied) (holding Chapter 12 allows statutory damages without evidence of actual
damages). TEX. CIV. PRAC. & REM. CODE ANN. § 12.002.
4
Appellant did not raise limitations as an affirmative defense; therefore, we do not address it as a bar to the Chapter 12
counterclaim in the present case.
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For the reasons set forth above, we hold that all of the Appellees had statutory standing to
sue under Chapter 12, and none were required to plead or prove an actual injury to have a
cognizable legal claim. We therefore overrule Appellant’s sixth issue.
MOOTED ISSUES
A case is moot if a controversy no longer exists between the parties. In re Kellogg Brown
& Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005). A case can become moot at any stage of the legal
proceedings, including on appeal. Id. Courts of appeal are prohibited from deciding moot cases.
Nat. Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) (“This prohibition is rooted
in the separation of powers doctrine in the Texas and United States Constitutions that prohibits
courts from rendering advisory opinions.”). Subject matter jurisdiction, essential to a court’s power
to decide a case, is implicated by the mootness doctrine because the court has no jurisdiction over
moot cases. See Dominguez v. Dominguez, 583 S.W.3d 365, 370 (Tex. App.—El Paso 2019,
pet. denied) (where the appellant’s challenge to a judgment against him on a trespass to try title
claim was mooted by sale); see also State v. Naylor, 466 S.W.3d 783, 791-92 (Tex. 2015)
(discussing the jurisdictional scope of a court of appeals). In a cause of action involving property,
the sale of the subject property may render related issues moot. See F.D.I.C. v. Nueces County,
886 S.W.2d 766, 767 (Tex. 1994) (where the controversy between competing lienholders was
mooted by foreclosure); Estate Land Co. v. Wiese, 546 S.W.3d 322, 326 (Tex. App.—Houston
[14th Dist.] 2017, pet. denied) (where the appellant’s challenge in a partition case was mooted by
sale); Moss-Schulze v. EMC Mortg. Corp., 280 S.W.3d 876, 877 (Tex. App.—El Paso 2008, pet.
denied) (where appeal arising out of attempted foreclosure was mooted by foreclosure).
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A. Appellant’s trespass to try title claim is moot
In his first issue, Appellant argues the trial court erred in granting Appellees’ summary
judgment motion on his trespass to try title claim. Appellees argue the claim has become moot
because the Fernandezes have sold the Property.
A trespass to try title claim is the method to determine who has superior title among parties.
TEX. PROP. CODE ANN. § 22.001; Brumley v. McDuff, 616 S.W.3d 826, 831-32 (Tex. 2021). In a
trespass to try title claim, the plaintiff seeks the right to present possession of the property in
question. Lance v. Robinson, 543 S.W.3d 723, 736 (Tex. 2018). Here, Appellant’s trespass to try
title claim sought a permanent injunction, writ of possession, and that the Fernandezes be
permanently enjoined from using and possessing the Property.
The trial court granted Appellees’ summary judgment motion on this claim. After a jury
trial on Appellees’ counterclaim, the trial court entered a final take-nothing judgment against
Appellant. Appellant appealed the summary and final judgments but did not post a supersedeas
bond or otherwise supersede the judgment. The Fernandezes thereafter sold the Property to a third
party. In this case, the sale of the Property renders Appellant’s first issue moot due to the nature
of the relief requested. See Dominguez, 583 S.W.3d at 372 (where the appellant’s challenge to a
judgment against him on a trespass to try title claim was mooted by sale).
B. Appellant’s suit to quiet title is moot
In his second issue, Appellant argues the trial court erred in granting Appellees’ motion for
summary judgment on his suit to quiet title. Appellees argue the claim has become moot because
the Fernandezes have sold the Property. A suit to quiet title is an equitable remedy to remove a
cloud on a property’s title. Vernon v. Perrien, 390 S.W.3d 47, 61 (Tex. App.—El Paso 2012, pet.
denied). In a suit to quiet title, the plaintiff seeks to declare the defendant’s title invalid or
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ineffective. Id. Here, Appellant’s suit to quiet title sought an order stating he owned one hundred
percent of the Property and the Fernandezes’ claim was void.
The trial court granted Appellees’ motion for summary judgment on Appellant’s suit to
quiet title. After a jury trial on Appellees’ counterclaim, the trial court entered a final judgment
against Appellant. Appellant appealed the summary and final judgments but did not post a
supersedeas bond. For the same reason as articulated above, the Fernandezes’ sale of the Property
to a third party renders Appellant’s second issue moot due to the nature of the relief requested.
Therefore, without reference to the merits, we overrule Appellant’s first and second issues
because they are moot.
SUMMARY JUDGMENT ISSUES
In his third, fourth, and fifth issues, Appellant argues the trial court erred in granting
Appellees’ no-evidence motions for summary judgment and denying Appellant’s no-evidence
motions for summary judgment.
We review a trial court’s granting of summary judgment de novo. Lujan v. Navistar, Inc.,
555 S.W.3d 79, 84 (Tex. 2018); Chau v. Select Med. Corp., 582 S.W.3d 413, 419 (Tex. App.—
Eastland 2018, pet. denied). “When, as here, the trial court does not specify the grounds upon
which it grants summary judgment, ‘we must affirm the summary judgment if any of the theories
presented to the trial court and preserved for appellate review are meritorious.’” Haynes v. DOH
Oil Co., 647 S.W.3d 793, 798 (Tex. App.—Eastland 2022, no pet.) (quoting Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003)). “If summary judgment could have
been rendered, properly or improperly, on a ground not challenged, the judgment must be
affirmed.” Moore v. City of Wylie, 319 S.W.3d 778, 782 (Tex. App.—El Paso 2010, no pet.).
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A. Any error in granting Appellees’ no-evidence summary judgment motion on
Appellant’s trespass to real property claim was harmless
Here, Appellees moved for both a traditional and no-evidence summary judgment on
Appellant’s trespass to real property claim. The trial court granted the motion for summary
judgment in its entirety without specifying its grounds. On appeal, Appellant argues the trial court
erred when it granted the no-evidence motion for summary judgment on his trespass to real
property claim but does not raise any issue challenging the ruling on his traditional summary
judgment motion. Even if we were to construe Appellant’s general language asking this court to
reverse the trial court’s grant of summary judgment on both grounds, we decline to do so. The first
element of trespass to real property requires evidence showing he owned or had a lawful right to
possess the Property. Salazar v. Sanders, 440 S.W.3d 863, 876 (Tex. App.—El Paso 2013, pet.
denied.) And our analysis below concludes the opposite.
Therefore, we overrule Appellant’s third issue.
B. The substance of Appellant’s fourth issue relates to the trespass to real property
claim and any error was harmless
In his fourth issue, Appellant asserts the trial court erred in granting Appellees’ no-
evidence summary judgment motion on his trespass to try title claim. However, in his argument,
Appellant refers to the elements of the trespass to real property claim instead. Regardless, we have
disposed of both arguments. In our mootness analysis, we determined that the claim for trespass
to try title has been mooted by the Property sale.
Therefore, we overrule Appellant’s fourth issue.
C. We do not review the trial court’s denial of Appellant’s summary judgment
motion because of the jury trial on the merits
In his fifth issue, Appellant argues the trial court erred by denying his motion for no-
evidence summary judgment on Appellees’ counterclaim. Appellate courts do not review a trial
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court’s denial of summary judgment when there was a trial on the merits and a judgment entered
on the same issues. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966); Casa
Palmira, LP v. Taylor Child Care, LP, 632 S.W.3d 11, 22 (Tex. App.—El Paso 2020, no pet.)
(citing Gem Homes, Inc. v. Contreras, 861 S.W.2d 449, 453 (Tex. App.—El Paso 1993, writ
denied)). Here, a jury trial followed on Appellees’ counterclaim and the jury returned a verdict.
The trial court issued a final judgment rendering damages to Appellees and a take-nothing
judgment against Appellant. Accordingly, we are precluded from reviewing the trial court’s
summary judgment determination on this issue.
We overrule Appellant’s fifth issue.
LEGAL SUFFICIENCY
In his seventh and eighth issues, Appellant argues that no evidence supports the jury’s
implied findings Appellant intended to injure Appellees; and even if they were injured, the
Affidavit did not cause the injury.
A no-evidence challenge is essentially a challenge to the legal sufficiency. Pearl Resources
LLC v. Charger Services, LLC, 622 S.W.3d 106, 114 (Tex. App.—El Paso 2020, pet. denied). In
a legal-sufficiency challenge, the party challenging an adverse finding on which he did not have
the burden of proof must demonstrate that no evidence supports the vital fact at issue. Graham
Cent. Station, Inc v. Pena, 442 S.W.3d 261, 263 (Tex. 2014). We will overrule a legal-sufficiency
challenge if more than a scintilla of evidence is offered to prove the vital fact at issue. Id. “In
conducting our review, ‘we credit evidence that supports the verdict if reasonable jurors could
have done so and disregard contrary evidence unless reasonable jurors could not have done so.’”
Id. (quoting Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299
S.W.3d 106, 115 (Tex. 2009)). Ultimately, the test for legal sufficiency must be “whether the
17
evidence at trial would enable reasonable and fair-minded people to reach the verdict under
review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
A. More than a scintilla of evidence supported the jury’s implied finding that
Appellant intended to injure another
In this legal-sufficiency challenge, Appellant’s argument has two parts. First, he argues the
jury was not asked and did not find that Appellant intended to injure Appellees. Second, he argues
there is no evidence supporting a finding that he intended to harm Appellees. We address each
portion of the argument in turn.
(1) Jury question
Under Texas Rule of Civil Procedure 279, when a ground of recovery involves multiple
elements and at least one element is “submitted to and found by the jury, and one or more of [the
remaining] elements are omitted from the charge, without request or objection, and there is
factually sufficient evidence to support a finding thereon . . . [and] no such written findings are
made, such omitted element or elements shall be deemed found by the court in such manner as to
support the judgment.” TEX. R. CIV. P. 279. To prevail on a Chapter 12 claim, a plaintiff must
show the defendant made, presented, or used a record with (1) knowledge that the record is a
fraudulent lien or claim against the real property, (2) intent that the record be given the same legal
effect as a valid interest in the real property, and (3) intent to cause another person to suffer physical
injury, financial injury, or mental anguish. TEX. CIV. PRAC. & REM. CODE ANN. § 12.002(a)(1)-(3).
Here, on the record, Appellant’s counsel requested that the intent element be added to
Question 1. The trial court and Appellant’s counsel edited Question 1. The trial court then read the
edited Question 1 aloud, and Appellant’s counsel did not raise an objection or issue with submitting
the edited version of Question 1 to the jury. The version of Question 1 read by the court and
approved by Appellant’s counsel was ultimately the version submitted to the jury:
18
In response to Question 1, the jury found Appellant violated the first two elements of Chapter 12.
The jury also found that the Appellees were injured by Appellant’s filing. The jury was not asked
to determine whether Appellant intended to cause another person injury. Because Question 1
contained two of the required elements for a Chapter 12 claim, we determine the omitted third
element will be deemed found if it is supported by factually sufficient evidence.
We therefore examine the factual and legal sufficiency of the evidence supporting a finding
that Appellant intended to cause harm to another.
(2) Standard of review and statutory construction
In a factual-sufficiency challenge, an appellate court must weigh all the evidence in the
record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Wolf v. Starr, 617 S.W.3d 898, 903
(Tex. App.—El Paso 2020, no pet.). Because Appellant challenges the jury’s findings of fact on
issues where the Appellees had the burden of proof, he must demonstrate there is insufficient
evidence to support the jury’s award. Wolf, 617 S.W.3d at 903. “Only where the evidence
supporting the finding is so weak ‘as to be clearly wrong and unjust,’ will we set aside a trial
court’s judgment on the issue.” Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).
Appellant argues the Chapter 12 intent-to-harm element requires Appellees to allege and
prove he intended to harm them specifically. Before we analyze the factual and legal sufficiency,
we construe Chapter 12’s intent-to-harm element.
19
We review issues of statutory construction de novo. El Paso Indep. Sch. Dist. v. Kell, 465
S.W.3d 383, 386 (Tex. App.—El Paso 2015, pet. denied). As articulated above, our primary
objective when construing the statute is to give effect to the Legislature’s intent by focusing on the
statutory text. Id. Each word and phrase must be read as if it were deliberately chosen. Id. “The
plain meaning of the text is the best expression of legislative intent unless a different meaning is
apparent from the context or the plain meaning leads to absurd or nonsensical results.” Molinet v.
Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011).
The element at issue in this case requires the plaintiff to prove the defendant intended “to
cause another person to suffer” injury. TEX. CIV. PRAC. & REM. CODE ANN. § 12.002(a)(3). The
portion of the statute enumerating damages states that a defendant “is liable to each injured person
for” the greater of $10,000 or the actual damages caused by the violation, court costs, attorney’s
fees, and exemplary damages. Id. § 12.002(b). The difference in identifying the plaintiff as an
“injured person” in the damages portion and the use of “another person” in the intent portion,
implies that the Legislature did not necessarily intend for these persons to have to be the same. Id.
§ 12.002.
(3) Analysis
In support of the element regarding intent to harm another, the Appellees presented
evidence that Appellant had owned and operated real estate for over 40 years. Pursuant to the
contract between Appellant and Murtaza, Appellant agreed to pay a $10,000 downpayment and
finance the remainder through Murtaza. The form of agreement between Murtaza and Appellant
was disputed at trial.
According to Pine, Murtaza would not deliver the title and sell the Property to Appellant
until the balance of the note was paid. Pine therefore retained the deed to the Property and did not
deliver the original, which could have been filed, to Appellant. Appellant did not pay off the note.
20
Murtaza continued to treat the Property as his own—evicting a tenant and eventually selling the
property to Sib.
In contrast, Appellant testified he believed he had purchased the Property from Murtaza in
2001. He believed the reason the 2001 deed was not given to him was to prevent Murtaza’s
mortgages on the Property from becoming due. Appellant believed that physical delivery of the
2001 deed was not necessary, and his property interest was protected nonetheless. Appellant also
presented evidence that he treated the Property as his own—renting it, making improvements, and
filing the Affidavit.
When Murtaza began evicting the tenant, Sib stepped in to purchase the Property.
Appellant filed the Affidavit during the time Sib was negotiating with Murtaza and Pine. When
asked about the purpose of filing the Affidavit, Appellant testified he intended to “notify the world
that [he] felt in [his] heart that [he] owned that property and to preclude there being any potential
problems down the road.” Appellant testified he believed any subsequent purchaser would be
protected by his filing. Appellant averred that he did not learn that Sib had purchased the Property
as his own until Sib died. Appellant testified his father must have been aware of the Affidavit and
Appellant’s purported ownership of the Property when he purchased it from Murtaza.
Apodaca testified he learned of the Affidavit after his company, AARK, purchased the
Property. Apodaca stated he asked Appellant to withdraw the lis pendens, and Appellant refused.
Further, Appellant allegedly told Apodaca that he should sue the title company for failing to inform
him of Appellant’s claim.
We hold there is sufficient evidence in the record that would enable reasonable and fair-
minded individuals to find Appellant intended to harm another. Jurors heard testimony regarding
Appellant’s years of experience in real estate and could therefore reasonably determine Appellant,
in entering this arrangement where he did not receive the original deed or subsequently pay off the
21
note pursuant to the written contract terms, knew he did not own the Property. The jury could have
considered Appellant’s filing the Affidavit while around the same time asking Sib to purchase the
Property from Murtaza an intent to fraudulently cloud the Property’s title. Finally, Appellant’s
testimony that he contemplated subsequent purchasers would have to negotiate with him before
purchasing the Property could lead a reasonable juror to conclude Appellant intended to harm
others when he filed the Affidavit. Therefore, we hold that factually sufficient evidence supports
the element regarding intent to harm another and deem that element found in accordance with Rule
279.
Next, we turn to Appellant’s legal-sufficiency challenge. Considering all evidence in
support of the element and disregarding any evidence to the contrary, we hold Appellees presented
more than a scintilla of evidence that reasonable and fair-minded people could find Appellant
intended to harm another. Specifically, Appellees presented the following evidence: (1) Pine’s
testimony that the agreement between Murtaza and Appellant was for Murtaza to retain ownership
of the Property until Appellant fully paid the note, which he never did; (2) testimony that Appellant
filed the Affidavit and asked Sib to negotiate with Murtaza for the Property purchase during the
same time period; and (3) Appellant’s testimony that he contemplated subsequent purchasers
would be protected by the Affidavit, taken together with the jury’s finding that Appellant knew he
did not own the Property, could lead a jury to reasonably conclude the Affidavit was intended to
force potential purchasers to negotiate with him. Therefore, legally sufficient evidence existed to
support that Appellant intended to harm another.
We overrule Appellant’s seventh issue.
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B. More than a scintilla of evidence supports the jury’s finding that AARK’s injury
was caused by the Affidavit
In his eighth issue, Appellant argues that no evidence exists to support the jury’s findings
that AARK, the Actons, and the Fernandezes were injured by the Affidavit. As we discussed in
our standing analysis, Chapter 12 does not require parties to prove actual injury. Therefore, we
overrule this issue as it relates to the Fernandezes and the Actons, whose recovery was for statutory
damages. We do, however, analyze the legal sufficiency of the evidence supporting AARK’s
actual damages award.
Apodaca testified AARK purchased the Property from the Actons, who were unaware
Appellant had filed the Affidavit and the lis pendens. AARK then contracted to sell the Property
to the Cowans for $500,000, which contract was produced at trial. The title search uncovered the
lis pendens and directed the Cowans to the Affidavit. The Cowans required AARK to remove the
cloud on the title in order to complete the purchase. Apodaca asked Appellant to withdraw the lis
pendens and the Affidavit, but Appellant refused and instead told Mr. Apodaca to sue the title
company. Apodaca testified that the Cowans indicated they were going to terminate the contract
because Appellant refused to lift the encumbrance. And the Cowans, in fact, terminated the
contract. AARK paid $10,649.40 in taxes on the Property thereafter for the time it retained the
Property. Ultimately, in 2019, AARK was able to sell the Property to the Fernandezes for
$450,000. The difference in purchase price along with the taxes AARK had to pay due to the
Cowan contract failure totaled $60,649.40, the amount the jury awarded in actual damages.
Appellant argues AARK’s damages were caused by the lis pendens, and the claim that the
Affidavit caused the damages is too attenuated. However, the lis pendens referred to a lawsuit
wherein “Appellant D. Abraham filed an affidavit of ownership” to the Property. The original
petition referred to the Affidavit as filed and recorded. And the statement on the notice of lis
23
pendens merely reiterated the Affidavit claim that Appellant was the true owner of the Property.
Because more than a scintilla of evidence supports the conclusion that a reasonable and fair-
minded person could find the Affidavit caused AARK’s damages, we hold that legally sufficient
evidence supported this element.
We overrule Appellant’s eighth issue.
EXEMPLARY DAMAGES
In his ninth issue, Appellant argues the awarded exemplary damages are excessive as a
matter of law and are therefore unconstitutional. The Fernandezes and the Actons concede that
they are not entitled to exemplary damages absent an award of actual damages and ask that we
reverse and render a final judgment removing their exemplary damages award. See TEX. CIV.
PRAC. & REM. CODE ANN. § 41.004; see also Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751,
753-54 (Tex. 1984) (“Under Texas law, punitive damages are not recoverable as a general rule in
the absence of actual damages.”); Texas Builders v. Keller, 928 S.W.2d 479, 482 (Tex. 1996)
(reversing punitive damages award due to lack of basis upon which trial court awarded actual
damages). We therefore sustain Appellant’s ninth issue with respect to the Fernandezes and the
Actons. Next, we turn to the question of whether the exemplary damages awarded to AARK are
excessive.
A. Applicable law and standard of review
Exemplary damages are available to punish conduct and deter its repetition, but they must
comply with procedural and substantive constitutional limits. State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 416 (2003); Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520
S.W.3d 848, 873 (Tex. 2017). When reviewing exemplary damages, we consider “(1) the degree
of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential
24
harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the
punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable
cases.” Campbell, 538 U.S. at 418. “[E]xemplary damages may be awarded only if the claimant
proves by clear and convincing evidence that the harm with respect to which the claimant seeks
recovery of exemplary damages results from . . . fraud.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 41.003(a)(1).
On review, we examine the evidence in a light most favorable to the findings to determine
whether legally and factually sufficient evidence supports the jury’s finding that Appellant’s fraud
caused AARK harm. See, e.g., Jang Won Cho v. Kun Sik Kim, 572 S.W.3d 783, 810 (Tex. App.—
Houston [14th Dist.] 2019, no pet.). In terms of the clear and convincing evidence standard, we
ascertain whether, based on the record before us, a reasonable juror could have formed a firm belief
that the harm to AARK resulted from Appellant’s fraud. Id. And we review de novo the
constitutionality of an exemplary damage award, as to whether it is excessive as Appellant
contends. Horizon Health Corp., 520 S.W.3d at 874.
B. Reprehensibility of defendant’s conduct
The reprehensibility of a defendant’s conduct is “the most important indicium of the
reasonableness of a punitive damages award[.]” BMW of North America, Inc. v. Gore, 517 U.S.
559, 575 (1996).
Courts determine the reprehensibility of a defendant’s conduct by considering
whether: (1) the harm caused was physical as opposed to economic; (2) the tortious
conduct demonstrated an indifference to or a reckless disregard of the health or
safety of others; (3) the target of the conduct had financial vulnerability; (4) the
conduct involved repeated actions or was an isolated incident; and (5) the harm was
the result of intentional malice, trickery, or deceit, or mere accident.
Horizon Health Corp., 520 S.W.3d at 875 (citing Gore, 517 U.S. at 576-77). An exemplary damage
is “suspect” in the absence of any reprehensibility factor, and, depending on the circumstances,
25
“[o]ne factor alone ‘may not be sufficient to sustain a punitive damages award[.]’” Bennett v.
Reynolds, 315 S.W.3d 867, 874 (Tex. 2010) (citing Campbell, 538 U.S. at 419). Here, the harm
caused by Appellant’s actions was economic; there is no allegation the health or safety of others
was put at risk. Therefore, the first two reprehensibility factors are absent.
As to the third factor, AARK asserts it was financially vulnerable because Appellant’s
conduct would have completely deprived it of the Property. We disagree with AARK’s assessment
of financial vulnerability in this context. According to Apodaca’s testimony, he was a licensed
CPA and a real estate investor. He and his family ran AARK as a real estate investment business,
and he has been investing in real estate for 33 years. Apodaca and AARK’s financial condition is
like that of the plaintiffs in Jang Won Cho, where the court determined that the targets of the
fraudulent conduct were not financially vulnerable because the evidence suggested they had
experience with financial transactions, real estate business, and one party was a licensed CPA
operating his own office. Jang Won Cho, 572 S.W.3d at 812. We agree with this reasoning and
hold that AARK was not financially vulnerable in this context due to its experience in real estate
investments and Apodaca’s qualifications as a CPA. Therefore, the third reprehensibility factor is
absent.
“[T]he Supreme Court and Texas courts have clearly stated that Campbell’s fourth
reprehensibility factor is about recidivism, not the course of conduct giving rise to the plaintiff’s
ultimate harm or the wrongdoers attempts to conceal his wrongdoing.” Horizon Health Corp., 520
S.W.3d at 875 (citing Gore, 517 U.S. at 577; Bennett, 315 S.W.3d at 874). The evidence presented
by AARK regarding Appellant’s actions did not include any past fraudulent filings or Chapter 12
violations. Since the record contains no evidence of any repeated similar conduct from Appellant,
the fourth recidivism factor is also absent.
26
The fifth and final factor is whether the harm AARK suffered was a result of Appellant’s
intentional malice, trickery, or deceit, instead of mere accident. Campbell, 538 U.S. at 418. Here,
the Chapter 12 counterclaim itself is rooted in deceit, i.e., a fraudulent claim against the Property.
See TEX. CIV. PRAC. & REM. CODE ANN. § 12.003(a)(8). At trial, evidence was presented that the
agreement between Murtaza and Appellant was to transfer Property ownership once Appellant
fully paid the note. Appellant did not fully pay the note. Appellant asked Sib to address the
ownership issue between him and Murtaza, while around the same time filing the Affidavit
claiming he owned the Property. Sib ended up purchasing the Property from Murtaza, with title
transferring in March 2009, after paying the purchase price with a loan from the Actons, who
retained a vendor’s lien on the Property. Even after Sib purchased the Property, Appellant did not
withdraw the Affidavit from the county records. When AARK became aware of the Affidavit,
Apodaca asked Appellant to withdraw it, but he refused and told Apodaca to sue the title company.
Appellant asserts he believed he owned the Property since 2001 and acted consistently with
his belief. According to Appellant, he filed the Affidavit to protect his interests, and his father,
whom Appellant asked to step in and resolve the situation, “had to know” about Appellant’s claim
of ownership. Appellant claims he gave Sib $500,000 to purchase the Property. Nothing in the
record corroborated this claim, and in fact, the well-documented record shows Sib borrowed
money from the Actons to purchase the Property. Appellant, a real estate investor, developer, and
operator with over 40 years of experience buying and selling real estate, and who has been involved
in over 100 lawsuits, indicated he was “perplexed” to learn, only after Sib died, that the deed was
in Sib’s name rather than Appellant’s because “I know that I didn’t sign any documents conveying
it to anybody else.” When asked about blaming Sib for taking title when Appellant claims to have
had it, Appellant responded “my father is an honorable man. I think it was the title company screw
up.”
27
Based on the record, we conclude there is legally and factually sufficient evidence upon
which a reasonable jury, the fact-finder charged with assessing weight and credibility of the
evidence, could have formed a firm belief Appellant acted with malice, trickery, or deceit, causing
harm to AARK. Therefore, the last factor of the element assessing the reprehensibility of
Appellant’s behavior weighs in favor of exemplary damages.
C. Disparity between exemplary and actual damages
The remaining elements reviewing whether the exemplary damages are constitutionally
excessive are one in the same here: one is the difference between exemplary damages and actual
damages suffered and the other is “the disparity between the punitive damages award and the ‘civil
penalties authorized or imposed in comparable cases.’” 5 Campbell, 538 U.S. at 428 (quoting Gore,
517 U.S. at 575). In Campbell, the U.S. Supreme Court declined “to impose a bright-line ratio
which a punitive damages award cannot exceed.” Campbell, 538 U.S. at 425. The Court did,
however, confirm that awards exceeding a single digit ratio between the exemplary and actual
damages will rarely satisfy due process. Id. The Texas Supreme Court has found that a ratio of
4.33 to 1 is constitutionally excessive in a case where only one reprehensibility factor was present.
See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 309-10 (Tex. 2006); see also Horizon
Health Corp., 520 S.W.3d at 877 (finding that a 4:1 ratio of exemplary to actual damages was
excessive where only the fifth reprehensibility factor was present).
In the present case, the jury awarded AARK $120,000 in exemplary damages and
$60,649.40 in actual damages—a ratio of 1.98 to 1. Exemplary damages are to deter future
unlawful conduct and serve as retribution, as opposed to actual damages, which serve as redress
for concrete losses. See Bennett v. Grant, 525 S.W.3d 642, 650 (Tex. 2017) (“As an overarching
5
Because Chapter 12 authorizes the civil penalty in this case, we turn to the statute, which provides a civil penalty
of the greater of $10,000 or the actual damages. TEX. CIV. PRAC. & REM. CODE ANN. § 12.002(b).
28
premise, exemplary damages further the state’s interest in punishing and deterring unlawful
conduct. But this punishment should not be so grossly excessive as to ‘further[] no legitimate
purpose and constitute[] an arbitrary deprivation of property.’” (citing Bennett I, 315 S.W.3d 867,
873 (Tex. 2010))). Here, Appellant fraudulently clouded title to the Property, the value of which
hovered around half a million dollars. While AARK did not lose the sale altogether, we hold that
a ratio of approximately 2:1 in this case where AARK’s actual damages were $60,649.40 does not
offend due process even considering only one reprehensibility factor exists.
We hold that the jury’s award of exemplary damages to AARK in the amount of $120,000
was not constitutionally excessive. Therefore, we overrule Appellant’s ninth issue as it relates to
AARK.
WHETHER SUMMARY JUDGMENT ERROR INFECTED THE JURY TRIAL
In his tenth issue, Appellant posits that if we agree the trial court’s summary judgment was
in error, then that error infected the jury trial because the trial court excluded evidence as a result
of the summary judgment grant. Based on the discussion above, we have determined that these
issues have either been mooted or are harmless. “After an interlocutory, partial summary judgment
is granted, the issues it decides cannot be litigated further, unless the trial court sets the partial
summary judgment aside or the summary judgment is reversed on appeal.” Trevino & Assocs.
Mech., L.P. v. Frost Nat’l Bank, 400 S.W.3d 139, 144 (Tex. App.—Dallas 2013, no pet.). For this
reason, the trial court appropriately excluded evidence and prevented the relitigation of the
summary judgment issues.
Therefore, we overrule Appellant’s tenth issue.
CONCLUSION
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We sustain Appellant’s ninth issue as it relates to the exemplary damages awards to the
Fernandezes and to the Actons. We overrule Appellant’s ninth issue as it relates to AARK. We
overrule all of Appellant’s remaining issues.
Accordingly, we reverse and render a final judgment that removes the Fernandezes’
$30,000 exemplary damages award, removes the Actons’ $60,000 exemplary damages award, and
affirms the trial court’s judgment in all other respects.
LISA J. SOTO, Justice
August 14, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
Rodriguez, C.J., dissenting
30