Leslie R. Pogue and Jeanette I. Pogue v. Elizabeth A. Williamson

ACCEPTED
01-17-00844-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/25/2018 2:07 PM
CHRISTOPHER PRINE
CLERK
No. 01-17-00844-CV
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
_____________________________________________
5/25/2018 2:07:54 PM
CHRISTOPHER A. PRINE
Clerk
LESLIE R. POGUE AND JEANNETTE I. POGUE, Appellants
VS.
ELIZABETH A. WILLIAMSON, Appellee.
_____________________________________________
(On appeal from the 164th Judicial District
Court of Harris County, Texas,
Trial Court Cause No. 2012-56353)
_____________________________________________
BRIEF OF APPELLANTS,
LESLIE R. POGUE AND JEANNETTE I. POGUE
_____________________________________________
DE LANGE, HUDSPETH,
MCCONNELL & TIBBETS, L.L.P.
BEN A. BARING, JR.
STATE BAR NO. 01739050
bbaring@dhmtlaw.com
R. TRAVIS PIPER
STATE BAR NO. 24070421
tpiper@dhmtlaw.com
1177 WEST LOOP SOUTH, SUITE 1700
HOUSTON, TX 77027
PHONE: 713-871-2000
FAX: 713-871-2020
ATTORNEYS FOR APPELLANTS, LESLIE R. POGUE AND JEANNETTE I. POGUE
ORAL ARGUMENT REQUESTED
Identities of Parties and Counsel
PARTIES COUNSEL
Appellants: Trial Counsel:
Sharon E. Peebles
Leslie R. Pogue and Attorney at Law
Jeannette I. Pogue 1218 Potomac Dr., Unit A
Houston, TX 77057
Phone: 713-289-4849
Fax: 713-583-6419
Email: peebleslaw@aol.com
Appellate Counsel
De Lange, Hudspeth, McConnell
& Tibbets, L.L.P.
Ben A. Baring, Jr.
Email: bbaring@dhmtlaw.com
R. Travis Piper
Email: tpiper@dhmtlaw.com
1177 W. Loop South, Ste. 1700
Houston, TX 77027
Phone: 713-871-2000
Fax: 713-871-2020
Appellee: Trial Counsel:
Scarlett C. May
Elizabeth A. Williamson The May Law Firm
5607 Spring Lodge, Ste. 200
Kingwood, TX 77345
Phone: 713-502-6806
Fax: 281-360-4296
Email: themaylawfirm@aol.com
Trial and Appellate Counsel
Misty Hataway-Coné
Spurlock & Associates
17280 West Lake Houston Pkwy.
Humble, TX 77346
Phone: 281-548-0900
Fax: 281-446-5443
Email: MCone@spurlocklaw.com
ii
Table of Contents
PAGE
Identities of Parties and Counsel............................................................................... ii
Table of Contents ..................................................................................................... iii
Table of Authorities ..................................................................................................vi
Statement of the Case.................................................................................................x
Statement Regarding Oral Argument .......................................................................xi
Record References ....................................................................................................xi
Issues Presented ...................................................................................................... xii
1. The trial court erred in entering judgment against the Pogues for
damages under the Texas Deceptive Trade Practices Act because
Williamson clearly and unequivocally disclaimed reliance on
any statements or representations by the Pogues regarding the
condition of the property. ................................................................... xii
2. Because Williamson clearly and unequivocally disclaimed
reliance on any statements or representations of the Pogues
regarding the condition of the property, she cannot recover under
common-law fraud, statutory fraud, or negligent
misrepresentation theories of recovery. ............................................. xii
3. The trial court erred in entering judgment extinguishing and
releasing the lien on the property contained in the deed of trust,
which secured the payment of Williamson’s note to the Pogues
for the purchase of the property. ........................................................ xii
4. The damages awarded by the trial court judgment under the
Texas Deceptive Trade Practices Act were improper even if
Williamson had not disclaimed reliance. ........................................... xii
5. The jury’s answers to the damage questions related to fraud and
negligent misrepresentation—Questions Numbers 4 and 11—
cannot support the trial court’s judgment........................................... xii
iii
6. The judgment awarding attorney’s fees should be reversed. ............. xii
Preliminary Statement ................................................................................................1
Statement of Facts ......................................................................................................2
Summary of the Argument.......................................................................................13
Argument………………………………………………………………………… 17
I. Williamson’s disclaimer-of-reliance agreement prevents her
from recovering under all of her causes of action. (Issue Nos. 1
and 2). ..................................................................................................17
A. The disclaimer-of-reliance clause signed by Williamson is
clear and unequivocal. ..............................................................23
B. The language was not boilerplate and the parties discussed
the issue. ....................................................................................25
C. Williamson was represented by counsel in the transaction.
...................................................................................................29
D. Williamson and the Pogues dealt in an arm’s length
transaction and Williamson was knowledgeable about
business matters. .......................................................................30
E. Because of the disclaimer-of-reliance language,
Williamson cannot recover under any of her tort theories
as a matter of law. .....................................................................32
II. The trial court’s judgment extinguishing the Pogues’ deed of
trust lien is a misapplication of Texas law and constitutes
reversible error. (Issue No. 3)..............................................................33
A. Williamson’s debt to the Pogues has not been extinguished
and currently exists. ..................................................................35
B. The Pogues’ right to foreclose is not barred by the
applicable statute of limitations. ...............................................37
III. The DTPA damages awarded by the trial court were improper.
(Issue No. 4). .......................................................................................39
A. The trial court erred in entering its judgment for additional
damages of $327,500 because this award does not conform
to the jury’s verdict. ..................................................................39
iv
B. The trial court erred in awarding both loss of the benefit-
of-the-bargain damages and out-of-pocket damages under
the DTPA, as the award constitutes a double recovery. ...........41
C. The trial court erred in including future benefit-of-the-
bargain and out-of-pocket damages in the actual damages
awarded under the DTPA..........................................................43
D. The trial court erred in entering judgment awarding
benefit-of-the-bargain damages under the DTPA because
there was no evidence of the property’s value as it was
received by Williamson. ...........................................................45
E. The trial court erred in entering judgment for future out-
of-pocket damages, future expenses, and future lost time
damages. ....................................................................................46
IV. The trial court’s judgment cannot be supported by the jury’s
answers to the damages questions related to fraud and negligent
misrepresentation—jury Question Nos. 4 and 11. (Issue No. 5) ........ 48
A. There is no evidence to support the benefit-of-the-bargain
damages awarded for fraud and negligent
misrepresentation. .....................................................................48
B. There is no evidence to support the jury’s award of future
fraud and negligent misrepresentation damages. ......................50
C. There is no evidence to support the jury’s award of past
remedial damages, mitigation expenses, and economic
loss.............................................................................................52
V. Because the trial court erred in entering judgment against the
Pogues, the court’s award of attorney’s fees should be reversed.
(Issue No. 6) ........................................................................................57
Prayer for Relief .......................................................................................................58
Certificate of Service ...............................................................................................59
Certificate of Compliance ........................................................................................59
Appendix………………………………………………………………………….60
v
Table of Authorities
Page
CASES
Abry Partners V., L.P. v. F and W Acquisition, L.L.C.,
891 A.2d 1032 (Del. 2006) ............................................................................22
Allen v. Devon Energy Holdings, LLC,
367 S.W.3d 355 (Tex. App.—Houston [1st Dist.] 2012, pet. granted,
judgm’t vacated w.r.m.) .............................................................. 18, 21, 22, 25
Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812 (Tex. 1997). ........................................................... 42, 44, 50
Atlantic Lloyds Ins. Co. v. Butler,
137 S.W.3d 199 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) ..........21
Bever Properties, LLC v. Jerry Huffman Custom Builder, L.L.C.,
No. 05-13-01519-CV, 2015 WL 4600347 (Tex. Civ. App.—Dallas, July 31,
2015, no pet.) .................................................................................................27
Boat Superstore v. Haner,
877 S.W.2d 376 (Tex. App.—Houston [1st Dist.] 1994, no pet.).................41
Fazio v. Cypress/GR Houston I, L.P.,
403 S.W.3d 390 (Tex. App.—Houston [1st Dist.] 2013, no pet.).......... 44, 50
Federal Land Bank Ass’n of Tyler v. Sloane,
825 S.W.2d 439 (Tex. 1991) .........................................................................55
FFE Transp. Servs., Inc. v. Fulgham,
154 S.W.3d 84 (Tex. 2004) ...........................................................................53
Foley v. Parlier,
68 S.W.3d 870 (Tex. App.—Ft. Worth 2002, no pet.) ..................................43
Forest Oil Corp. v. McAllen,
268 S.W.3d 51 (Tex. 2008) ................................................................... passim
Goldfrank, Frank & Co. v. Young,
64 Tex. 432 (1885) ................................................................................. 36, 37
vi
Gulf States Utilities Co. v. Low,
79 S.W.3d 561, 567 (Tex. 2002) ...................................................................57
Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) ..............22
Henry Schein, Inc. v. Stromboe,
102 S.W.3d 675 (Tex. 2002) .........................................................................33
Holman Street Baptist Church v. Jefferson,
317 S.W.3d 540 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) .......37
Hong v. Nations Renovations, LLC,
No. 05-15-01036-CV, 2016 WL 7473900, (Tex. Civ. App.—Dallas, Dec.
29, 2016, no pet.) ...........................................................................................27
Houston Lighting & Power Co. v. Fisher,
559 S.W.2d 682 (Tex. App.—Houston [14th Dist.] 1977,
writ ref’d n.r.e.) ....................................................................................... 46, 49
Houston v. Ludwick,
No. 14-09-00600-CV, 2010 WL 4132215 (Tex. App.—Houston [14th Dist.]
2010, pet. denied) ..........................................................................................46
Hughes v. Mahaney & Higgins,
821 S.W.2d 154 (Tex. 1991) .........................................................................38
Huynh v. Phung,
No. 01-04-00267-CV, 2007 WL 495023 (Tex. App.—Houston [1st Dist.]
Feb. 16, 2007, no pet.) ...................................................................................43
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of America,
341 S.W.3d 323 (Tex. 2011) .................................................................. 21, 22
Jerry L. Starkey, TBDL, L.P. v. Graves,
448 S.W.3d 88, 112 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ........58
Lakewood Pipe of Texas, Inc. v. Conveying Techniques, Inc.,
814 S.W.2d 553 (Tex. App.—Houston [1st Dist.] 1991, no writ) ......... 47, 51
Larsen v. Carlene Langford & Assocs., Inc.,
41 S.W.3d 245 (Tex. App.—Waco 2001, pet. denied) .................................33
vii
Latham v. Castillo,
972 S.W.2d 66 (Tex. 1988) ...........................................................................43
Leyendecker & Assocs. v. Wechter,
683 S.W.2d 369 (Tex. 1984) .................................................................. 44, 50
Mart. v. McKee Realtors,
663 S.W.2d 446 (Tex. 1984) .........................................................................41
McGinty v. Hennen,
372 S.W.3d 625 (Tex. 2012) .................................................................. 46, 49
McIver v. Gloria,
140 Tex. 566, 169 S.W.2d 710, 712 (1943) ........................................... 47, 51
McLernon v. Dynegy, Inc.,
347 S.W.3d 315 (Tex. App.—Houston [14th Dist.] 2011, no pet.) . 21, 27, 28
Phillips v. Phillips,
820 S.W.2d 785 (Tex. 1991) .........................................................................40
Pioneer Bldg. & Loan Ass’n v. Johnston,
117 S.W.2d 556 (Tex. Civ. App.—Waco, 1938, writ dism’d) .....................39
Pjetrovic v. Home Depot,
411 S.W.3d 639 (Tex. App.—Texarkana 2013, no pet.) ..............................53
Prudential Ins. Co. of America v. Jefferson Assocs., Ltd.,
896 S.W.2d 156 (Tex. 1995) .........................................................................33
Roth v. Law,
579 S.W.2d 949 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e.) ..47
Salomon v. Lesay,
369 S.W.3d 540 (Tex. App.—Houston [1st Dist.] 2012, no pet.).................40
Schlumberger Tech. Corp. v. Swanson,
959 S.W.2d 171 (Tex. 1997) ................................................................. passim
Walker v. Hanes,
570 S.W.2d 534 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.) ..38
viii
Williams v. Dardenne,
345 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2011, no pet.).................33
Woodyard v. Hunt,
695 S.W.2d 730 (Tex. App.—Houston [1st Dist.] 1985)....................... 44, 50
Wortham Bros., Inc. v. Haffner,
347 S.W.3d 356 (Tex. App.—Eastland 2011, no pet.)..................................53
STATUTES
TEX. BUS. & COM. CODE ANN. § 17.50(b)(1) ..........................................................40
TEX. BUS. & COM. CODE ANN. § 17.50(d) ...............................................................57
TEX. BUS. & COM. CODE ANN. § 27.01(d) ...............................................................57
TEX. BUS. & COM. CODE ANN. § 17.50(a) ...............................................................42
TEX. CIV. PRAC. & REM. CODE § 16.035(b) .............................................................34
OTHER AUTHORITIES
RESTATEMENT (2ND) OF TORTS § 552B (1977) ........................................................55
RULES
TEX. R. APP. P. 9.4(i)(1). ..........................................................................................59
TEX. R. CIV. P. 301 ...................................................................................................39
ix
Statement of the Case
Nature of the Case: Williamson bought a 33-year old vacant house and
4.5 acres from the Pogues for $235,000. Williamson
agreed that she was taking the property “as is” with
all latent and patent defects and that she was relying
solely on her examination of the property, and not
upon any representations by the Pogues regarding
the property’s condition.
Two years after purchasing the property Williamson
sued the Pogues, her real estate agent, and the
agent’s firm alleging various tort theories of
recovery related to misrepresentations regarding the
property’s condition. I CR 4.
Trial Court: Hon. Alexandra Smoots-Thomas, 164th Judicial
District Court of Harris County, Texas
Course of Proceedings The trial court granted the agent’s and real estate
and Trial Court’s firm’s motion for summary judgment. II First Supp.
Disposition: CR 435. The court also initially granted the Pogues’
motion for summary judgment but later vacated its
order. III First Supp. CR 814, 830. Williamson’s
claims against the Pogues were tried to a jury, and
the jury answered questions favorable to
Williamson. Tab A, III First Supp. CR 869. The trial
court entered judgment against the Pogues for
damages, prejudgment interest, and attorneys’ fees
totaling $760,769.67. The judgment also
extinguished the Pogues’ deed of trust lien that
secured Williamson’s note for the property’s
purchase. Tab B, III First Supp. CR 902.
x
Statement Regarding Oral Argument
Appellants request that the Court hear oral argument. Oral argument is
desirable because the record is lengthy and there are numerous exhibits. Oral
argument will assist the Court in clarifying the issues and explaining the facts.
Record References
References to the record are denoted by the following:
Clerk’s Record [volume] CR [page(s)]
Reporter’s Record [volume] RR [page(s)]
The Reporter’s Record contains two volumes designated “6 of 11”. To avoid
confusion, in this brief the volume number for the testimony taken on May 9, 2017
is referred to as “6A”, and the volume number for the testimony taken on May 10,
2017 is referred to as “6B”.
Williamson trial exhibits PX [number]
Pogues’ trial exhibits DX [number]
xi
Issues Presented
1. The trial court erred in entering judgment against the Pogues for damages
under the Texas Deceptive Trade Practices Act because Williamson clearly
and unequivocally disclaimed reliance on any statements or representations
by the Pogues regarding the condition of the property.
2. Because Williamson clearly and unequivocally disclaimed reliance on any
statements or representations of the Pogues regarding the condition of the
property, she cannot recover under common-law fraud, statutory fraud, or
negligent misrepresentation theories of recovery.
3. The trial court erred in entering judgment extinguishing and releasing the lien
on the property contained in the deed of trust, which secured the payment of
Williamson’s note to the Pogues for the purchase of the property.
4. The damages awarded by the trial court judgment under the Texas Deceptive
Trade Practices Act were improper even if Williamson had not disclaimed
reliance.
5. The jury’s answers to the damage questions related to fraud and negligent
misrepresentation—Questions Numbers 4 and 11—cannot support the trial
court’s judgment.
6. The judgment awarding attorney’s fees should be reversed.
xii
TO THE HONORABLE FIRST COURT OF APPEALS:
Preliminary Statement
The Pogues appeal a $760,000 judgment holding them liable for
misrepresenting the condition of a thirty-three-year-old house that Williamson
purchased “as is” and with all patent and latent defects, and with an agreement that
she was relying solely on her own examination of the property and not on any
representations, statements, assertions, or non-assertions by the Pogues related to the
property’s condition.
The real basis of this dispute was the Pogues’ refusal to grant Williamson an
extension of time to make her final balloon payment on the owner-financed note that
Williamson owed to the Pogues. The Pogues, who are retired and now live in
Bellville, Texas, agreed to owner-finance Williamson’s purchase of the property, but
only for two years. Williamson made her regular monthly payments to the Pogues
during the two-year period and never complained to them about any problems with
the house, although she had every opportunity to do so.
But all of this changed several weeks before Williamson’s note came due.
Williamson asked for the Pogues to extend the date of her final payment (the balance
of the note) and when the Pogues wouldn’t agree, Williamson hired an attorney, who
sent a letter demanding that the Pogues grant the extension. For the first time, the
letter also notified the Pogues that there were problems with the house, and that
1
Williamson had been repairing it for two years. On the day Williamson’s final
payment was due, she sued the Pogues, alleging that they had defrauded Williamson.
The overarching issue is whether Williamson may recover any amount from
the Pogues, when Williamson affirmatively agreed to rely solely on her own
investigation of the property and not on any representations of the Pogues related to
the property’s condition.
Statement of Facts
Leslie R. Pogue and Jeannette I. Pogue owned a thirty-three-year-old house
on 4.5 acres at 901 Indian Shores Road in Crosby, Texas. 2 RR 185. The Pogues
were the fifth or sixth owners of the property, having purchased it in 2000. 6B RR
180, 219. The property was fenced, included a pecan orchard, and had room for
horses and other animals to roam. 2 RR 185, 233-34. Here is a picture of the Indian
Shores property, for demonstrative purposes:
2
In September 2008, Hurricane Ike battered the Texas Gulf Coast. Many homes
were damaged, including the Pogues’ property, and the Pogues made an insurance
claim for $33,000. 6B RR 90. The Pogues received $25,0156 on this claim. 6B RR
206. They spent $18,700 to replace the roof, and had the house repainted, replaced
some sheetrock, and repaired some outside trim. 10 RR PX 20, 6B RR 89-90. Mr.
Pogue was his own general contractor and he testified that his subcontractors made
all the repairs required by the insurance company and that the insurance company
would not have paid the claims until they made sure the repairs had been completed.
6B RR 202.
The Pogues lived in the Indian Shores property until March 2009 when they
moved to Bellville, Texas. 6B RR 181. Shortly after moving, the Pogues put the
property up for sale, and at first attempted to sell the property without a realtor. 7
RR 45-46. The property didn’t sell, and in September 2009 they retained Gina Jones
as a realtor in an effort to sell the property. 2 RR 237. Ms. Jones helped the Pogues
with the property listing, took photos of the house, and suggested that the Pogues
repaint the inside. 7 RR 46-47.
The Indian Shores property was vacant for nearly a year and a half when
Lewis Walker, Elizabeth Williamson’s future husband, noticed that the property was
for sale. Walker wanted to buy the property, but because of his poor credit he
couldn’t qualify for a loan, and instead the Pogues agreed to rent the property to him.
3
Walker then moved boxes in the house. 2 RR 207, 218-19, 6A RR 71. Williamson,
who was Walker’s fiancée, went with Walker when he looked at the property before
he rented it. 6A RR 34, 257. Williamson was aware of the Indian Shores property
because she lived two streets over in a double-wide trailer. 6A RR 76-77.
She knew about the Pogues’ property and had always liked it because it was,
as she put it, an “iconic” property in the area. 6A RR 34-35. As Williamson testified:
“It wasn’t so much just the house. It was just—the land and everything, the way it
was set up. It was just a really nice property.” 2 RR 191. “Everybody always talked
about it [the property], the way it sat off the road, and the yard, the way—it had just
a really deep inset. The way that the property was set up, it just was really nice, and
the Pogues had added pecan trees, which really gave it a little bit of extra attraction”.
6A RR 35.
After the Pogues’ had rejected Walker’s offer to purchase the property (and
after the Pogues agreed to lease the property to Walker) Williamson decided to make
an offer to purchase the Indian Shores property herself. 6A RR 35. Before purchasing
it, Williamson was only at the property two times and the Pogues were not present
either time. The first time Williamson went to the property was when Walker was
interested in making an offer to purchase it. The second time was when Williamson
herself made the offer to purchase the property. 6A RR 257.
4
Williamson and the Pogues initially into an earnest money contract for the
sale of the Indian Shores property. 10 RR PX 2. The sales price was $235,000, and
the Pogues agreed to owner-finance $210,000 for two years. 10 RR PX 2, par. 4C.
Williamson agreed in the earnest money contract that she was accepting the property
in its present condition:
10 RR PX 2, ¶ D(1). The contract also provided that Williamson could have the
property inspected by inspectors she selected, but Williamson decided not to have
the property inspected. 6A RR 74, 215.
When Williamson looked at the house before she purchased it, the property
was vacant, as the Pogues had moved out nearly a year and a half before. 2 RR 255,
6B RR 181. When Williamson saw the property for the first time, it was filthy, and
the garage was full of debris. 6B RR 32-33. The yard was very overgrown to the
point that Williamson couldn’t even tell that there was any landscaping. 2 RR 255.
Although the house was vacant, it still had belongings in it and Williamson testified
that the barn on the property looked “Silence of the Lambs” scary as it had “needles
and syringes on the ground, and on tables”. 2 RR 256. Williamson also noticed that
the pool on the property was pitch black, like it had not been maintained for years,
to the point that you could not see the bottom of the pool. 2 RR 256. Inside the house,
5
Williamson testified that in addition to a lot of “stuff” still being in the house, the
carpet was “really disgusting and gross” and Williamson noted that the house had a
musty odor, which her realtor told her was because the air conditioners had been
stolen and because the property had been closed up. 2 RR 258.
Before purchasing the property, Williamson attempted to obtain property
insurance, during that process she learned from her insurance company that a wind
claim had previously been made on the property. 3 RR 156, 6A RR 78. In addition,
before Williamson closed on the purchase, she asked her realtor about insurance
claims and was told that the Pogues had replaced the roof on the house after
Hurricane Ike. 6A RR 82.
The closing on the property occurred on September 10, 2010. 10 RR PX 7.
Williamson signed a two-year note to the Pogues for $210,000, and the note
provided for a final balloon payment for the full amount in twenty-four months. 10
RR PX 5. So that there would be no question as to when the note came due, the note
included a bold, underlined notice to Williamson:
6
10 RR PX 5, p. 4.
Williamson also signed a deed of trust securing the Pogues’ note, showing a
final maturity date of September 25, 2012. 10 RR PX 6. The Pogues signed a
warranty deed with vendor’s lien, conveying the property to Williamson. 10 RR PX
7. Williamson also signed the deed as Grantee, agreeing to accept the deed and
consenting to its form and substance, and acknowledging that the terms of the deed
conformed with her intent. She further agreed to the obligations imposed on her by
7
the terms of the deed, the accompanying real estate lien note, and deed of trust. 10
RR PX 7, p. 5:
One paragraph in the deed is particularly important in this appeal. The deed
included a detailed paragraph, in which Williamson agreed that she purchased the
property “as is” and provided that Williamson was not relying on any
representations, statements, assertions or non-assertions by the Pogues with respect
to the property’s condition, and that she was instead relying solely on her own
examination of the property:
8
10 RR PX 7, p. 3.
Williamson also signed a document acknowledging that the attorney who
prepared the closing documents—Donna Heinlein—was instructed by Williamson
to refrain from doing nineteen specific actions, including ordering a title policy for
her, ordering a survey, ordering a title search, having a termite inspection, and/or
having experts inspect the premises and/or appliances, ascertaining whether or not
the property was in a 100-year flood zone, or ascertaining whether there were any
drainage problems or drainage easements. 10 RR PX 10, 10A-10D.
At closing, the Pogues paid $350 for a residential service contract for
Williamson. 6 RR 243-44, 10 RR PX 4, p. 2, ln. 1305.
Williamson and her husband moved into the Indian Shores property in mid-
October 2010. 2 RR 218. Shortly after they closed, Williamson began to discover
problems with the house. Williamson testified that they discovered that some of the
electrical outlets were not in working order and various light fixtures had switch
9
problems. 2 RR 219-20. She found wood rot under the hall bathroom carpet and
behind the bathroom cabinet wall. 2 RR 221-23, 6A RR 101-02, 6B RR 87.
Williamson testified that she then began to discover that there was mold in parts of
the walls in some of the rooms in the home, which she bleached, and wood rot in
many of the rooms behind the walls. 6A RR 105-27. There was also some termite
damage behind the bathtub in one of the bathrooms, but there were no live termites.
6A RR 105-06. Williamson also testified that she found out that one of the septic
tanks was improperly installed under the kitchen that caused some leakage. 6A RR
132-134. Williamson and Walker replaced the rotten wood that they found in the
rooms and put new sheetrock and insulation up where necessary, with Walker doing
the repair work himself. 6A RR 108-1545, 6B RR 124. Walker testified that he
repaired “almost the entire house.” 6B RR 144-45.
Despite Williamson knowing about the problems she found in the house
immediately after moving in (in October 2010), she never notified or complained to
the Pogues about these problems until two years later in 2012, when her final note
payment was due on September 25, 2012. 3 RR 155, 6B RR 87.
Shortly before this payment was due (and before mentioning any problems
existed in the house), Williamson contacted Mrs. Pogue by email and asked her if
she could have an extension on the final payment. 3 RR 157. After thinking about it,
the Pogues decided that they did not want to extend the payment. It was only then
10
that Williamson explained that “there were some problems” with the house that she
had been living in and repairing for two years. 3 RR 157-58. Williamson then hired
an attorney to send a letter to the Pogues complaining that (1) the Pogues did not
provide disclosures of the condition of the residence, (2) the septic tanks were not
up to code, (3) there was extensive bug infestation, including termites and (4) there
was mold throughout the residence. The letter indicated that Williamson could not
make the final note payment and requested an eighteen-month extension of the note,
at which time she would pay the note in full. II First Supp. CR 620, 10 RR PX 11.1
No agreement was reached between the parties and on the date that the final
balloon payment was due, Williamson sued the Pogues, along with Williamson’s
realtor, Gina Jones, and Alliance Properties, the real estate company. I CR 4. The
basis of Williamson’s complaint against the Pogues was her assertion that the Pogues
failed to disclose to her that there was wood rot, termite damage, and other water
damage in the home. I CR 4, ¶ 16. Williamson testified that her complaint was with
the representations that the Pogues made in the seller’s disclosure. 6B RR 114-15.
she testified that the Pogues never otherwise represented the property’s condition to
her, and she even denied that she relied on the Pogues. 6A RR 218, 6B RR 44.
______________________
1 This exhibit admitted at trial is shown as being “retained by counsel” and therefore a copy is
not in the reporter’s record on file as of the filing of this brief. (A copy is located in the First
Supp. Clerk's Record, as cited above). A supplemental reporter’s record with this exhibit and
all other exhibits retained by Williamson's counsel will be filed when all of the retained exhibits
are compiled by the court reporter.
11
Williamson’s realtor and the real estate company filed a motion for summary
judgment, which the trial court granted. I First Supp. CR 143, II First Supp. CR 435.
Among the bases of the realtors’ motion for summary judgment was that the earnest
money contract and warranty deed both made it clear that Williamson purchased the
Indian Shores property “as is” and that she was relying solely on her own
examination, and not any other representations. I First Supp. CR 156-58.
The Pogues filed their own motion for summary judgment. II First Supp. CR
437. The Pogues asserted that all of Williamson’s causes of action were precluded
by the language in the purchase contract and deed. The court initially granted the
Pogues’ motion, but the court later vacated its order. III First Supp. CR 814, 830.
The case proceeded to trial in April 2017. After a day and a half of testimony,
the parties announced that a settlement had been reached. 3 RR 205. But before the
settlement documents were drafted and signed, the settlement was withdrawn, and
the trial court started another trial with a different jury. 6 RR 4.
After Williamson rested, she moved for a trial amendment, seeking a
declaratory judgment that the deed of trust lien granted by Williamson to secure her
indebtedness to the Pogues was extinguished. 7 RR 71. The court then granted a
directed verdict on Williamson’s trial amendment, and declared that the Pogues’ lien
was extinguished. 7 RR 71-73. This trial amendment and request for directed verdict
was based on Williamson’s claim that the Pogues had no right to enforce their lien
12
because they had waived and abandoned their breach of contract counterclaims,
where the Pogues sought to recover the amounts owing on the promissory note.
Williamson’s tort claims were submitted to the jury and the jury returned a
verdict in favor of Williamson. Tab A, III First Supp. CR 869-901. The court signed
a final judgment, awarding Williamson $496,250 in damages, exclusive of
attorney’s fees and prejudgment interest, $171,972.23 in trial attorney’s fees,
$80,297.44 in pre-judgment interest, and $12,250 in appellate attorney’s fees. Tab
B, III First Supp. CR 902-06.
Summary of the Argument
Williamson agreed to purchase the Indian Shores property from the Pogues
“as is” and also agreed to a clear and unequivocal disclaimer-of-reliance provision
in her deed. Williamson agreed to rely solely on her own investigation of the
property’s condition, and she agreed not to rely on any representation, statement,
assurance, or non-assurance made by the Pogues. Williamson’s disclaimer-of-
reliance and her agreement to purchase the property “as is” prevents her from
recovering under any of her alleged causes of action—fraud, negligent
misrepresentation, or the Texas Deceptive Trade Practices Act.
Thus, the judgment against the Pogues—for in excess of $760,000—was
improper.
The portion of the judgment that voided the Pogues’ deed of trust lien on the
property that secured Williamson’s note to the Pogues was also improper. The court
13
improperly concluded that the waiver of the Pogues’ counterclaims on the note also
waived their right to foreclose on the deed of trust lien. Texas law is clear that even
if a suit on the debt is barred, this fact does not prevent the lienholder from non-
judicially foreclosing under the terms of the deed of trust. Here, the Pogues had
posted the property for foreclosure but they were enjoined from foreclosing on their
lien while this suit was pending. The judgment voiding their lien should be reversed
and judgment rendered dissolving this injunction, and allowing the Pogues to
enforce the terms of the deed of trust.
The damages awarded in the judgment—which were awarded under the
DTPA—have no support in the evidence. First, the judgment awards $327,500 in
“additional damages” based on the jury’s “knowing” finding. This was error because
the jury only awarded $2,500 in additional damages for the “knowing” conduct.
Furthermore, the trial court erred in granting $163,750 in actual damages, as this
total includes both benefit-of-the-bargain and out-of-pocket damages. An award of
both of these types of damages constitutes a double recovery, and under Texas law
a plaintiff may not recover both.
In addition, the court erred in awarding benefit-of-the-bargain damages that
Williamson would sustain in the future. This damage award was improper because
the damages are properly measured by comparing the value represented and received
at the time of sale, not at some future time. Moreover, there was no support for any
14
benefit-of-the-bargain damages because Williamson provided no evidence of the
property’s value as it was received in September 2010 when she purchased it.
Without such evidence there is no support for the benefit-of-the-bargain damages
awarded by the court.
Similarly, the court’s award of future out-of-pocket damages, future expenses,
and future lost time damages have no support in the evidence. Williamson provided
no evidence to support her claim to future damages, and instead she offered vague
testimony that some specified rooms in the house “haven’t been touched”. There
was no evidence of the time, expenses, or future out-of-pocket costs that she claimed
would be necessary in the future.
The damages that were awarded by the court were based on the DTPA, but
the jury also answered questions regarding fraud and negligent misrepresentation.
The trial court’s judgment cannot be supported by the jury’s answers on these
alternative theories for similar reasons to those that bar the recovery under the
DTPA.
First, Williamson’s fraud and negligent misrepresentation claims are barred
because of her agreement to purchase the property “as is” and her disclaimer-of-
reliance agreement. In addition, there was no evidence to support the loss of the
benefit-of-the-bargain damages for fraud or negligent misrepresentation because
Williamson presented no evidence of the value of the Indian Shores property on the
15
date she purchased it. The only evidence Williamson submitted was an HCAD
appraisal district statement that reflected a value in 2013, but this constitutes no
evidence of the property’s value in 2010, when Williamson purchased it.
Also, the future benefit-of-the-bargain damages awarded by the jury under the
fraud Question 4(2) cannot support a judgment these damages are properly measured
at the time of the purchase, not at some future time.
Similarly, all of the future damages awarded by the jury in Questions 4(2),
4(4) and 4(6), as well as the future economic loss damages awarded in Question 11
(negligent misrepresentation) are improper for the reason that there is no evidence
to support the future damages. Williamson provided no evidence as to the labor or
materials that would be necessary in order to complete any repairs and without such
evidence the damages awarded were based on pure speculation.
Finally, the award of past remedial damages in Question 4(3), the award of
past mitigation expenses in Question 4(5), and the award of past economic loss in
Question 11 are not supported by any evidence. These repairs were conducted over
the two-year period after Williamson purchased the property and involved
specialized or technical knowledge that require expert testimony. Williamson
admitted that she and her husband were not professionals and that they did all the
work themselves. As such, there is no competent evidence that the repairs were
necessary and reasonable. Williamson’s testimony regarding the labor costs incurred
16
was not competent evidence, as she testified that she obtained these labor costs from
a website that advertised what contractors charged in the area and that she only
charged the Pogues one-third of the contractors’ amount because she “thought that
would be fair”. Because there was no competent evidence to support these amounts,
the jury’s answers regarding future remedial damages, mitigation expenses, and
economic loss—Questions 4(3), 4(5), and 11—cannot support a judgment in
Williamson’s favor.
Because the judgment in Williamson’s favor is improper, the court’s judgment
awarding attorney’s fees is also improper.
Argument
I. Williamson’s disclaimer-of-reliance agreement prevents her from
recovering under all of her causes of action. (Issue Nos. 1 and 2).
Williamson signed a broad disclaimer-of-reliance provision, agreeing that she
was not relying on any representation, statement, assertion or non-assertion by the
Pogues as to the property’s condition and that she was relying solely on her own
examination of the property. 2 10 RR PX 7. Texas courts, including the Supreme
Court, have enforced disclaimers of reliance that contain language virtually identical
to the disclaimer of reliance signed by Williamson. These cases all stand for the
______________________
2 Williamson also agreed, in the earnest money contract she signed, to accept the property “as
is”. Her agreement to purchase the property “as is” is repeated in the disclaimer-of-reliance
paragraph contained in the deed. For purposes of this brief, the term “disclaimer-of-reliance”
includes the “as is” language.
17
general proposition that parties to an agreement can prevent future claims of fraud,
negligent misrepresentation, or liability under the DTPA by including contract
language that clearly and unequivocally disclaims reliance. Allen v. Devon Energy
Holdings, LLC, 367 S.W.3d 355, 376 (Tex. App.—Houston [1st Dist.] 2012, pet.
granted, judgm’t vacated w.r.m.).
The Texas Supreme Court has discussed disclaimer-of-reliance clauses in two
cases: Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997) and
Forest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008). The threshold requirement
for an effective disclaimer of reliance is that the language must be “clear and
unequivocal” in its expression of the parties’ intent to disclaim reliance. See
Schlumberger, 959 S.W.2d at 179-80, Forest Oil, 268 S.W.3d at 62. This
requirement for precise language ensures that parties to a contract understand that
the contract’s terms disclaim reliance, such that the contract may be binding even if
it was induced by fraud. In both Schlumberger and Forest Oil, the Supreme Court
held that the language used was clear and unequivocal in disclaiming reliance.
In Schlumberger, Schlumberger and the Swansons agreed to a release of
claims in order to settle a dispute involving an underwater diamond-mining project
off the South African coast. The Swansons sold their interests in the venture to
Schlumberger for roughly $1 million, and the parties signed a settlement agreement
that included a disclaimer-of-reliance provision:
18
Each of us … expressly warrants and represents … that no promise or
agreement which is not herein expressed has been made to him or her
in executing this release, and that none of us is relying upon any
statement or representation of any agent of the parties being released
hereby. Each of us is relying on his or her own judgment….
959 S.W.2d at 180.
After learning that Schlumberger later sold the interests it acquired in the
settlement for about $4 million, the Swansons sued, claiming Schlumberger had
fraudulently induced them to accept the low-price buyout. They claimed that when
Schlumberger entered into the settlement it knew that the Swansons’ interest had far
higher value. Id.
For purposes of its decision, the Supreme Court assumed that Schlumberger
had misrepresented the project’s technological feasibility and commercial viability
and that such misrepresentations were actionable as fraud. Id. at 178. Nevertheless,
the Court concluded that the disclaimer of reliance that the Swansons gave
conclusively negated the element of reliance and prohibited their recovery. Id. at
180. The Court reasoned that the Swansons, in clear language, had unequivocally
disclaimed reliance upon Schlumberger’s representations and agreed that they were
relying on their own judgment. Id.
Eleven years later in Forest Oil, the Court again addressed whether an
unambiguous disclaimer-of-reliance provision precluded a fraudulent inducement
claim as a matter of law. The suit involved a dispute over oil and gas royalties, and
19
the case was settled at mediation. The settlement agreement in question expressly
stated that neither of the parties was relying on any statement or representation of
the other party and that each party was relying on their own judgment in signing the
document:
[We] expressly represent and warrant ... that no promise or agreement
which is not herein expressed has been made to them in executing the
releases contained in this Agreement, and that they are not relying upon
any statement or representation of any of the parties being released
hereby. [We] are relying upon [our] own judgment ….
268 S.W.3d at 54 n.4.
In reaching its conclusion that the disclaimer-of-reliance clause clearly and
specifically negated the plaintiff’s fraud claims, the Forest Oil court noted that the
Schlumberger decision was relatively similar and rested on the paramount principle
that Texas courts should uphold contracts that are negotiated at arms’ length and that
when parties elect to include a disclaimer-of-reliance provision in their agreement,
the Court will generally enforce it. 268 S.W.3d at 58.
After Schlumberger, the courts of appeals seemed to disagree over which facts
were most relevant in determining if a waiver-of-reliance provision was binding, and
the Forest Oil Court clarified the Court’s reasoning. Forest Oil identified five factors
as a part of the totality of the circumstances that courts should consider in
determining the validity of a contractual disclaimer: whether the disclaimer is “clear
and unequivocal”, and four extrinsic factors: (1) whether the terms of the contract
20
were negotiated, rather than boilerplate, and during the negotiations the parties
specifically discussed the issue which has become the topic of the subsequent
dispute; (2) the complaining party was represented by counsel; (3) the parties dealt
with each other in an arm’s-length transaction; and (4) the parties were
knowledgeable in business matters. 268 S.W.3d at 60; Italian Cowboy Partners, Ltd.
v. Prudential Ins. Co. of America, 341 S.W.3d 323, 337 n.8 (Tex. 2011) (holding
that if a clear and unequivocal disclaimer-of-reliance clause exists the analysis then
proceeds to the circumstances surrounding the contract’s formation).
This Court has determined that the four extrinsic factors that the Forest Oil
court described are not absolute requirements. Allen, 367 S.W.3d at 384. And the
Court has previously held that an agreement between two parties barred fraud claims
as a matter of law even when all of the Forest Oil factors were not present. See
Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 216-17 (Tex. App.—Houston
[1st Dist.] 2004, pet. denied) (disclaimer of reliance provision barred fraudulent
inducement claim when all factors later identified in Forest Oil were satisfied except
sophistication of parties); see also McLernon v. Dynegy, Inc., 347 S.W.3d 315, 333
(Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that Forest Oil
considerations are “facts…that guide our reasoning … and not elements that all must
be established before a disclaimer of reliance is enforceable.”). Thus, it is
21
unnecessary to satisfy each factor when the parties’ intent to preclude a claim is clear
and unequivocal and a sufficient number of factors are met. 367 S.W.3d at 384.
The courts have identified the underlying reasons why disclaimer-of-reliance
provisions such as those found in Forest Oil and Schlumberger should be enforced.
As this Court noted in Allen, the law favors granting parties the freedom to contract,
knowing that courts will enforce their contract’s terms, as well as the ability to
contractually resolve disputes between themselves fully and finally. 367 S.W.3d at
378; Italian Cowboy, 341 S.W.3d at 332; Gym-N-I Playgrounds, Inc. v. Snider, 220
S.W.3d 905, 912 (Tex. 2007); Forest Oil, 268 S.W.3d at 58. This Court in Allen
mentioned an additional reason why a party should not be permitted to claim fraud
when he represented in the parties’ contract that he did not rely on a representation:
After-the-fact protests of misrepresentation are easily lodged, and
parties who contractually promise not to rely on extra-contractual
statements—more than that, promised that they have in fact not relied
upon such statements—should be held to their word. Parties should not
sign contracts while crossing their fingers behind their backs.
Allen, 367 S.W.3d at 378, citing Forest Oil, 268 S.W.3d at 60.3
______________________
3 This Court in Allen noted that similar to the concerns expressed in Forest Oil, a Delaware court
has stated that non-reliance clauses should generally be enforced because a contrary rule would
endorse “a lie made by one contracting party in writing—the lie that it was relying only on
contractual representations and that no other representations had been made—to enable it to
prove that another party lied orally or in writing outside the contract’s four corners.” Allen,
367 S.W.3d at 378 n.20; Abry Partners V., L.P. v. F and W Acquisition, L.L.C., 891 A.2d 1032,
1058 (Del. 2006). This has been described as “a ‘double liar’ scenario.” Id. In a double-liar
scenario, the plaintiff—who claims to be the victim of a lie—was itself a liar when it promised
not to rely on the alleged misrepresentation.
22
A. The disclaimer-of-reliance clause signed by Williamson is clear and
unequivocal.
A side-by-side comparison of the language held by the Texas Supreme Court
to be clear and unequivocal in Schlumberger and Forest Oil conclusively illustrates
that the disclaimer-of-reliance clause in this case is clear and unequivocal and meets
the threshold requirement for enforcement. In fact, the clause in this case, although
strikingly similar to the provisions discussed in Schlumberger and Forest Oil, is
actually more clear and unequivocal than the language discussed and approved in
those cases.
The provisions in Schlumberger, Forest Oil, and in this case are reproduced
below for the Court’s convenience:
23
Schlumberger Forest Oil Williamson’s agreed-to
disclaimer-of-reliance
language
Each of us expressly [We] expressly represent Grantee has accepted this
warrants and and warrant … that no deed and purchased the
represents … that no promise or agreement above-described Property,
promise or agreement which is not herein premises and
which is not herein expressed has been made improvements “AS IS.”
expressed has been to them in executing the Grantor and Grantee agree
made to him or her in releases contained in this that Grantee is taking the
executing this release, Agreement, and that they Property “AS IS” with any
and that none of us is are not relying upon any and all latent and patent
relying upon any statement or defects, and that there is no
statement or representation of any of warranty from Grantor that
representation of any the parties being the Property is fit for a
agent of the parties released hereby. [We] particular purpose.
being released hereby. are relying upon [our] Grantee acknowledges that
Each of us is relying on own judgment…. Grantee is not relying upon
his or her own any representations,
judgment…. statements, assertions or
non-assertions by the
Grantor with respect to the
Property condition, but is
relying solely upon
Grantee’s examination of
the Property.
As shown above, the disclaimer-of-reliance language that Williamson agreed
to closely tracks the language the Schlumberger and Forest Oil disclaimers. If
anything, the language is stronger than in Schlumberger and Forest Oil, as the
disclaimer explicitly states that Williamson was relying solely on her own
24
examination.4 The language is not a mere “as is” clause. Instead, as the Court
concluded in Schlumberger and Forest Oil, the language makes clear that
Williamson “unequivocally disclaimed reliance” by signing the agreement.
B. The language was not boilerplate and the parties discussed the
issue.
In addition to being clear and unequivocal, the extrinsic factors mentioned by
Forest Oil support the enforcement of the disclaimer-of-reliance language.
The terms of the contract between Williamson and the Pogues were negotiated
rather than boilerplate. The terms of the earnest money contract were negotiated,
initially by Williamson’s then-boyfriend Lewis Walker—who made the first offer to
purchase the Pogues’ property. 6A RR 38, 10 RR PX 2E. The Pogues had originally
listed the Indian Shores property for $269,000. 6A RR 36. Walker’s first offer was
for $208,000, with the Pogues owner-financing $187,200. 6A RR 55. The Pogues
rejected this offer. Shortly thereafter, Williamson contacted Gina Jones, who was
the listing agent and who Williamson testified represented her as well in the
transaction. 6A RR 53. Williamson increased Walker’s previous offer to $235,000,
which the Pogues accepted. 6A RR 36. Williamson negotiated special terms in
which the Pogues would finance $210,000 of the purchase price for two years with
a balloon payment for the remaining balance at the end of the two-year period. 10
______________________
4 This Court in Allen held that language making it clear that a party relied solely on his own
investigation made the disclaimer clear and unequivocal. 367 S.W.3d at 379-80.
25
RR PX 2, 5. These special provisions were put in Paragraph 11 of the earnest money
contract that Williamson submitted, along with another provision that the mineral
rights would be withheld by the Pogues. 10 RR PX 2, ¶ 11. The parties also agreed
to a Seller Financing Addendum. The earnest money contract was later amended by
Williamson and the Pogues to include additional real property. 10 RR PX 2, p. 11.
Williamson herself acknowledged that she and the Pogues were negotiating an issue
in the contract but she couldn’t remember precisely what that issue was. 2 RR 199-
200.
Not only was the earnest money contract negotiated and not boilerplate, the
warranty deed the parties signed and which contained the disclaimer-of-reliance
language was also not boilerplate. The deed was prepared by an attorney—Donna
Heinlein. This was not a form deed. 10 RR PX 7. It contained the reservation of
minerals that was agreed to by Williamson in the earnest money contract, and a
waiver of surface rights for future exploration. 10 RR PX 7, p. 2. The deed further
included a reference to the wrap note that Williamson agreed to when she requested
that the Pogues owner-finance the property. 10 RR PX 7, p. 3.
Importantly, the disclaimer-of-reliance paragraph was inserted in a different
and larger type-font than the deed’s other provisions. This paragraph included the
agreement that Williamson made in the earnest money contract that the Pogues were
conveying the property to her “as is”. 10 RR PX 7, p. 3. Williamson stated that she
26
discussed the “as is” language with her realtor who told her it was “standard
contracting” but she never discussed the issue with Ms. Heinlein, who Williamson
thought was both her and the Pogues’ attorney, even though Williamson admitted
that she was advised by the terms of the contract to consult an attorney. 6A RR 225,
226, 2 RR 204, 10 RR PX 2, ¶ 23.
The terms of the earnest money contract and deed were negotiated, and not
boilerplate, because their terms, including the disclaimer-of-reliance provision, were
unique to the relationship between Williamson and the Pogues. See McLernon v.
Dynegy, Inc., 347 S.W.3d 315, 330 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
Williamson was free to include anything that she wanted in the earnest money
contract, and she could have contacted Heinlein, who she believed to be her attorney,
to discuss the deed’s provisions. See Hong v. Nations Renovations, LLC, No. 05-15-
01036-CV, 2016 WL 7473900, at *5 (Tex. Civ. App.—Dallas, Dec. 29, 2016, no
pet.); Bever Properties, LLC v. Jerry Huffman Custom Builder, L.L.C., No. 05-13-
01519-CV, 2015 WL 4600347, at *9-11 (Tex. Civ. App.—Dallas, July 31, 2015, no
pet.) (enforcement of disclaimer-of-reliance provision is not barred where parties
had access to an attorney but decided not to protect their interests by seeking advice
of counsel).
In addition, the parties discussed the issue that has now become the topic of
this dispute. The meaning of “the topic of the subsequent dispute” mentioned by
27
Forest Oil does not mean that the parties must have discussed the present fraud or
misrepresentation claims. 5 Instead of the allegations and the subsequent lawsuit, the
Forest Oil analysis of the enforceability of the contract concerns the terms of the
contract that the party is seeking to enforce. The significant point with respect to the
Forest Oil factors is that the party that signed the disclaimer-of-reliance provision
was aware of the representations concerning the topic of the present dispute yet
elected to disclaim reliance on those representations. McLernon, 347 S.W.3d at 331.
Here there is no question that Williamson was aware of the specific
representations concerning the topic of the present dispute. She admitted that she
received the Pogues’ Seller’s Disclosure Statement, which the Pogues had
completed when they listed the Indian Shores property for sale with Gina Jones. 6A
RR 38-89, 6B RR 107. All of Williamson’s claims in this suit are based on her
allegations regarding the Pogues’ representations contained in the disclosure.
Williamson claimed in her pleadings that in their disclosure, the Pogues failed to
disclose prior water damage, mold damage, and structural roof damage to the
property. III First Supp. CR 831, Pars. 12-19. At trial, Williamson asserted that
although the Pogues never represented the condition of the property to her, she
______________________
5 As the courts have held, if the contracting parties had discussed the fraud claims and the
complaining party was aware of the material misrepresentations before signing the agreement,
there would be no such fraud claim because they would not have been deceived into signing
the agreement. See McLernon v. Dynegy, Inc., 347 S.W.3d 315, 331 (Tex. App.—Houston
[14th Dist.] 2011, no pet.).
28
considered the seller’s disclosure a representation about the property. 6B RR 44,
114-15. Despite having received the disclosure and the representations the Pogues
made therein, Williamson elected to disclaim reliance on those representations.
Because Williamson was aware of the specific representations that she later made
the basis of her suit, the Forest Oil factor requiring the parties to have discussed the
matters disclaimed was met.
C. Williamson was represented by counsel in the transaction.
The next factor Forest Oil considered was whether the complaining party was
represented by counsel. Forest Oil, 268 S.W.3d at 60. Here, the evidence is that
Donna Heinlein was the attorney that closed the transaction and prepared all of the
closing documents. 6A RR 66. Whether or not Heinlein actually represented the
parties in connection with the closing, Williamson believed that she represented her.
Williamson testified on two separate occasions that she assumed and thought that
Heinlein was representing both her and the Pogues in connection with the contract.
2 RR 204, 6B RR 104. Williamson testified she believed Heinlein was her attorney
as well as the Pogues because both parties paid a portion of the attorney’s fees owing
to Heinlein’s law firm, as shown by the settlement statement, where Williamson is
shown paying $600 in attorney’s fees to Heinlein. 10 RR PX 4, ln. 1303, 6B RR 106.
Williamson was familiar with using attorneys for real estate matters, as she
testified that she had an attorney representing her when she sold her Reidland
29
property, which she owned before buying the Indian Shores property. 6B RR 104.
Williamson admitted that she was sure she could have asked Heinlein a question
about the draft closing documents that the attorney sent to her, but Williamson never
did. 6B RR 106. Instead, Williamson asked Gina Jones, the realtor, about the “as is”
clause, and relied on her and the Seller’s Disclosure before signing the documents,
even though the record shows that Williamson and Heinlein communicated on a
regular basis before and after the closing. 6B RR 105-06, 2 RR 203, 243, 252, 273,
275, and 277-78.
Thus, Williamson was either represented by an attorney in this transaction or
had access to an attorney who she thought represented her.
D. Williamson and the Pogues dealt in an arm’s length transaction
and Williamson was knowledgeable about business matters.
The final two factors mentioned by Forest Oil are that the parties dealt with
each other in an arm’s length transaction and the parties were knowledgeable in
business matters. Forest Oil, 268 S.W.3d at 60.
There is no dispute that Williamson and the Pogues dealt with each other in
an arm’s length transaction. The Pogues listed the property for sale with a realtor
and Williamson made an offer through her realtor. 10 RR PX 2, 6A RR 30. The
purchase price that Williamson offered was less than the Pogues’ asking price, and
the terms were negotiated, since instead of a cash deal, Williamson asked the Pogues
to owner-finance for twenty-four months with a balloon payment due at the end of
30
the two-year term. 10 RR PX 2. In addition, the contract included a financing
addendum, and the contract was amended twice, once in order to modify the real
property description and again to change the closing date. 10 RR PX 2, pp. 9, 11-12.
Williamson was advised in the earnest money contract that she should consult an
attorney before signing the agreement if she did not understand its effect. 10 RR PX
2, ¶ 23. There was no prior relationship between Williamson and the Pogues,
although she had met Mr. Pogue when Williamson was younger and worked in the
local feed store where Mr. Pogue purchased feed. 2 RR 259, 6B RR 42-43.
As to whether the parties were knowledgeable in business matters, it appears
that while both parties were fairly unsophisticated, Williamson was knowledgeable
in business matters generally. She testified that she had worked in the retail industry
most of her life and, at the time of trial she worked at a marine and boat repair
company where she had been the office manager for ten years. 2 RR 184-86. In her
job as office manager, she testified that she handled “pretty much anything that
comes through the office”, including invoicing, ordering, estimating, handling the
phones, and filing paperwork. 2 RR 187, 6A RR 26-27.
In connection with the property, Williamson contacted the realtor and worked
with her to put together a non-standard offer to purchase the Indian Shores property
at a reduced price, and with a wrap-note and a two-year balloon payment. After the
contract was signed, Williamson reviewed the Seller’s Disclosure and the closing
31
documents, and asked the realtor about the “as is” language, and had numerous
communications with the attorney about the closing documents. 6B RR 105-06, 2
RR 203, 243, 252, 273, 275, and 277-78. Williamson knew that she had to obtain
insurance on the property, and she researched and located an insurance company that
would insure the property, found out about a previous “wind claim”, and after
reviewing the closing documents, signed all of them.
Thus, Williamson was knowledgeable in business matters and this Forest Oil
factor does not prevent the enforcement of the disclaimer-of-reliance language that
Williamson agreed to.
In sum, the disclaimer-of-reliance language was clear and unequivocal and is
in fact more clear and certain than similar language approved by the Texas Supreme
Court. In addition, the remaining Forest Oil factors support the enforcement of the
disclaimer-of-reliance language.
E. Because of the disclaimer-of-reliance language, Williamson cannot
recover under any of her tort theories as a matter of law.
The question whether disclaimer-of-reliance language negates a cause of
action is a question of law that is reviewed de novo. Forest Oil, 268 S.W.3d at 55.
The jury charge submitted questions related to the following causes of action:
common law and statutory fraud, negligent misrepresentation, and Texas Deceptive
Trade Practices Act (false, misleading, or deceptive act or practice and
unconscionable action). Tab A, III First Supp. CR 869. The jury answered the
32
questions favorable to Williamson and the court awarded damages under the DTPA.
Tab B, III First Supp. CR 902.
Reliance is an element of Williamson’s causes of action for fraud, negligent
misrepresentation, as well as the DTPA claim. See Henry Schein, Inc. v. Stromboe,
102 S.W.3d 675, 693 (Tex. 2002); Williams v. Dardenne, 345 S.W.3d 118, 124 (Tex.
App.—Houston [1st Dist.] 2011, no pet.); Larsen v. Carlene Langford & Assocs.,
Inc., 41 S.W.3d 245, 253 (Tex. App.—Waco 2001, pet. denied). Specifically, the
Court has held that under the DTPA—which only requires a producing cause of
damages—a contractual disavowal of reliance on representations precludes a
plaintiff from proving that an act was a producing cause of the damages. Prudential
Ins. Co. of America v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995).
Here, Williamson, as a matter of law, cannot recover for any of the damages
found by the jury for fraud, negligent misrepresentation, or DTPA violations because
of the disclaimer-of-reliance provision. This Court should therefore reverse the
judgment of the trial court and render judgment that Williamson take nothing for any
of the damages found by the jury on these causes of action.
II. The trial court’s judgment extinguishing the Pogues’ deed of trust lien is
a misapplication of Texas law and constitutes reversible error. (Issue No.
3)
As stated above, Williamson’s obligation to buy the property from the Pogues
was secured by a deed of trust lien. 10 RR PX 6. The deed of trust granted the Pogues
33
a non-judicial power of sale, allowing the Pogues to foreclose their lien without first
obtaining a court’s permission. 10 RR PX 6, pg. 3. According to current Texas law,
the Pogues retained the right to exercise their non-judicial power of sale for a period
of four years after the accrual of a cause of action—in this case, nonpayment of the
debt by Williamson. TEX. CIV. PRAC. & REM. CODE § 16.035(b). On July 15, 2013,
less than a year after Williamson’s default (which occurred on September 25, 2012)
and well-within the limitations period, the Pogues posted the property for foreclosure
in accordance with the terms of the deed of trust. I CR 53.
A few weeks later, the court issued an “Amended Agreed Temporary
Injunction Order” which directed the Pogues to refrain from “taking any actions that
would initiate, continue or complete a process of foreclosure…until such time as all
issues in this matter have been fully litigated or resolved.” Second Supp. CR 3. This
temporary injunction became a permanent one when the trial court signed its final
judgment on July 28, 2017:
[A] Permanent Mandatory Injunction is hereby issued against
Defendants Leslie R. Pogue and Jeannette I. Pogue, and their agents,
servants, representatives, employees, independent contractors, officers,
directors, partners, successors and assigns, who are permanently
ENJOINED from and ORDERED to refrain from foreclosing upon the
secondary lien filed on 901 Indian Shores Road, Crosby, Texas 77532,
contained within the Deed of Trust Security Agreement-Financing
Statement, 20100443760, filed in the Harris County Real Property
Records on October 15 2010, as that lien has been extinguished or
released.”
I CR 75.
34
The court’s order rests on the premise that because the Pogues waived their
counterclaims—including the breach of contract claim made in response to
Williamson’s failure to make all her payments under the note—and because four
years had passed since the default when the final judgment was signed, not only has
the Pogues’ lien been extinguished, but the underlying debt has been extinguished,
as well. 7 RR 71-76. This was error. Under Texas law the Pogues’ non-judicial
power of sale survives their waiver of judicial remedies and the statute of limitations
that governs the period during which they have the right to exercise that power of
sale is tolled by the pendency of these very legal proceedings.
A. Williamson’s debt to the Pogues has not been extinguished and
currently exists.
There is no question that the Pogues waived their counterclaims before trial
got underway. 3 RR 13-15. But there can also be no question that the Pogues’ non-
judicial power of sale contained in the deed of trust—a power they exercised within
the applicable limitations period and are currently enjoined from pursuing—survives
their decision to waive their right to pursue judicial remedies.
It is a fundamental principle of Texas property law that liens can be foreclosed
through two different processes: (a) a suit for the recovery of real property brought
in a Texas court; or (b) a sale of real property under a power of sale in a mortgage
or deed of trust that creates a real property lien. TEX. CIV. PRAC. & REM. CODE §
35
16.035(a-b). It is no accident that these two remedies are given separate treatment in
the statute’s text despite being governed by the same limitations period—they often
have little or nothing to do with one another.
This was the issue facing the Supreme Court of Texas in Goldfrank, Frank &
Co. v. Young, 64 Tex. 432 (1885). In Goldfrank, the Supreme Court made one thing
abundantly clear: there is a distinction between “actions or suits” and other
mechanisms by which a creditor may enforce a debt:
In reference to the operation of the statutes of limitation in any matter
in which the recovery of money is sought, the statute itself limits it to
“actions or suits in courts”, and it provides within what time “actions
or suits” in the different classes of cases may be brought, but it does not
attempt to determine within what period anyone must enforce a right
which the debtor has placed in … the creditor to enforce otherwise than
by an “action or suit in court.”
That the legislature might fix a period within which steps must be taken
to enforce rights otherwise than through the courts, when such right and
power have been given, by contract, by one person to another, as may
it prescribe a period within which actions or suits must be brought in
courts, there is no doubt; but the declaration that persons must institute
“suits or actions in courts” within a fixed period to enforce their claims,
which can be enforced only in that manner, is not equivalent to
declaring that a creditor who has been given, by contract, a right and
means by which he may enforce his claim otherwise than through the
courts, shall not enforce it after the time at which he might institute an
action or suit, without subjecting himself to the bar which could be
urged by a plea of limitation.
It is not always true that rights which cannot be enforced through the
courts are valueless, nor that contracts which the courts cannot enforce
are invalid.”
Id. at 436.
36
Goldfrank is still good law. See Holman Street Baptist Church v. Jefferson,
317 S.W.3d 540, 547 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (citing
Goldfrank for the proposition that a bar from collecting a debt personally from the
debtor does not prevent a lender from using the collateral to repay the debt).
Because the Pogues’ deed of trust contains a provision that expressly allows
them to enforce their claim “otherwise than through the courts”—that is, through the
exercise of a non-judicial power of sale—as Goldfrank makes clear, the fact that the
Pogues’ judicial enforcement of Williamson’s debt is no longer possible has no
bearing on the exercise of their non-judicial power of sale. Thus, the trial court’s
declaration that the deed of trust lien is extinguished and released constitutes
reversible error. The Williamson debt still exists, as does the Pogues’ right to
foreclose on the property.
B. The Pogues’ right to foreclose is not barred by the applicable
statute of limitations.
In Texas, a sale of real property under a power of sale in a mortgage or deed
of trust that creates a real property lien—precisely the debt-enforcement tool
acquired by the Pogues—must be made not later than four years after the day the
cause of action accrues. TEX. CIV. PRAC. & REM. CODE § 16.035(b). The Pogues’
cause of action accrued on September 25, 2012 when Williamson’s balloon payment
was due. 7 RR 74, lns. 9-11, 10 RR PX 5. Less than a year later, effective July 22,
2013, the Pogues were enjoined by the trial court from pursuing their non-judicial
37
remedies. Second Supp. CR 3, ¶ 6. This temporary injunction became permanent
when the trial court issued its final judgment on July 28, 2017. III First Supp. CR
902. As a result of these injunctions, the Pogues have been unable to exercise their
right to conduct a non-judicial foreclosure sale for nearly five years. But because
these pending legal proceedings have barred any such sale, the statute of limitations
has been, and continues to be, tolled until such time that the Pogues may freely
exercise the right afforded them under their deed of trust.
Where “a person is prevented from exercising his legal remedy by the
pendency of legal proceedings, the time during which he is thus prevented should
not be counted against him in determining whether limitations have barred his right.”
Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991) (quoting Walker
v. Hanes, 570 S.W.2d 534, 540 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d
n.r.e.)). This principle has even been specifically applied to injunctions which, like
those issued by the trial court in this case, bar a party from exercising their power of
sale: “[i]t appears, however, that the creditor has been continuously restrained from
the exercise of such powers of sale since the accrual of the right thereto by an
injunction wrongfully procured by the debtors…. [I]t is generally held that where
the exercise of a lawful right is restrained by injunction, the statute of limitations is
tolled during the period of such restraint on the theory that the party who has
obtained the injunction has…obtained an unconscionable advantage which he ought
38
not be permitted to enjoy.” Pioneer Bldg. & Loan Ass’n v. Johnston, 117 S.W.2d
556, 559 (Tex. Civ. App.—Waco, 1938, writ dism’d).
As mentioned above, Williamson’s debt to the Pogues survives these legal
proceedings, no matter what the outcome. And because the Pogues’ deed of trust
contains a non-judicial power of sale, they still possess a tool by which to enforce
that debt, even though their judicial remedies have been waived. Further, because
the Pogues have been barred by trial court injunctions from exercising their power
of sale, the statute of limitations governing such an exercise has been, and will be,
tolled until such time that the injunctions are no longer in effect. Because Pogues’
deed of trust affords them a non-judicial remedy for enforcing the Williamson debt,
this Court should reverse that portion of the trial court’s judgment that prevents the
Pogues from exercising this remedy and render judgment allowing the Pogues to go
forward with foreclosure proceedings.
III. The DTPA damages awarded by the trial court were improper. (Issue No.
4).
Even if Williamson had not disclaimed reliance, the trial court erred in
entering judgment for the DTPA damages it awarded.
A. The trial court erred in entering its judgment for additional
damages of $327,500 because this award does not conform to the
jury’s verdict.
In a case tried to a jury, the judgment rendered after the jury’s verdict must
conform to that verdict. TEX. R. CIV. P. 301; Phillips v. Phillips, 820 S.W.2d 785,
39
787 n.2 (Tex. 1991) (“as a rule, however, the judgment in a case tried by a jury must
conform to the verdict”). The judgment must also reflect a correct application of the
law to determine the effect of the jury’s verdict. Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992) (“a trial court has no ‘discretion’ in determining what the law is or
applying the law to the facts”); Salomon v. Lesay, 369 S.W.3d 540, 553 (Tex. App.—
Houston [1st Dist.] 2012, no pet.).
Here, the trial court awarded damages under the Texas Deceptive Trade
Practices Act instead of the fraud or negligent misrepresentation claims submitted
to the jury. This fact is clear from the court’s judgment which, on page two, recites
that the actual damages awarded total $163,750—the amount of actual damages
found by the jury in response to Question 15, which is related to the DTPA Questions
12 and 13. Tab A, III First Supp. CR 892. 6
The DTPA provides that if a jury finds that a party engaged in the conduct in
question knowingly, then the trier of fact may award additional damages of up to
three times the amount of economic damages. TEX. BUS. & COM. CODE ANN.
§ 17.50(b)(1).
In a jury trial, it is the jury, and not the judge, that acts as the trier of fact. Only
in the absence of a jury is an award of discretionary damages under the DTPA a
______________________
6 The fraud and negligent misrepresentation damages found by the jury totaled $174,950, not
$163,750. III First Supp. CR 877, 887.
40
question for the court. Martin v. McKee Realtors, 663 S.W.2d 446, 448 (Tex. 1984);
Boat Superstore v. Haner, 877 S.W.2d 376, 379 (Tex. App.—Houston [1st Dist.]
1994, no pet.) (“the amount of additional damages to award after finding a violation
of the DTPA is within the discretion of the trier of fact”).
In answer to Question 17, the jury found that because the conduct was
committed knowingly, additional damages of $2,500 should be awarded to
Williamson. III First Supp. CR 896. But the trial court ignored this finding and
instead awarded $327,500 in additional damages based on the “knowing” finding.
Tab B, III First Supp. CR 903. This was clear error.
The DTPA allows the factfinder to award additional damages of not more than
three times the amount of actual damages if the conduct is committed knowingly.
Here, the jury found $2,500 and it was improper for the trial court to unilaterally
ignore the jury’s finding and award additional damages of a different amount.
The trial court erred in entering judgment for additional damages of $327,500
and the Court should reverse this portion of the judgment.
B. The trial court erred in awarding both loss of the benefit-of-the-
bargain damages and out-of-pocket damages under the DTPA, as
the award constitutes a double recovery.
The trial court’s judgment awarded Williamson $496,250 in damages,
exclusive of attorney’s fees and prejudgment interest. Tab B, III First Supp. CR 904.
This sum was computed by totaling the actual damages of $163,750 and “treble
41
damages” in the amount of $327,500. Tab B, III First Supp. CR 903. The trial court
then apparently awarded an additional $5,000 in damages to these amounts for the
$496,250 total. 7
As argued above, it was clear error for the trial court to award the additional
damages of $327,500 under the DTPA for “knowing” conduct, because the jury
found only $2,500 for this conduct.
But this was not the only error in the trial court’s calculation of the damages
awarded. The $163,750 in actual damages constitutes a double recovery, as the
amount includes both loss of benefit-of-the-bargain damages and out-of-pocket
damages found by the jury.
Under § 17.50(a), a DTPA plaintiff may recover “economic damages”. TEX.
BUS. & COMM. CODE ANN. § 17.50(a). Economic damages consist of either benefit-
of-the-bargain damages or out-of-pocket damages. See Arthur Andersen & Co. v.
Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997). Out-of-pocket damages
measure the difference between the value the buyer has paid and the value of what
he has received; benefit-of-the-bargain damages measure the difference as
represented and the value received. Id. Under the DTPA, a plaintiff may recover
______________________
7 It is unclear exactly how the trial court arrived at the total amount of the judgment (exclusive
of attorneys’ fees and pre-judgment interest) of $496,250. Tab B, III First Supp. CR 904. If
one totals the amount of actual damages awarded of $163,750 and the additional damages of
$327,500 awarded as additional damages, these amounts total only $491,250. The court may
have awarded another $2,500 against Mr. Pogue and $2,500 against Mrs. Pogue based on the
jury’s answer to Question 17—for “knowing” conduct.
42
under the damage theory that provides the greater recovery, but these damages are
alternatives. A plaintiff may not recover both. Latham v. Castillo, 972 S.W.2d 66,
70 (Tex. 1988) (“a plaintiff may recover either the out-of-pocket or the benefit-of-
the-bargain damages, whichever is greater”); Foley v. Parlier, 68 S.W.3d 870, 885
(Tex. App.—Ft. Worth 2002, no pet.); Huynh v. Phung, No. 01-04-00267-CV, 2007
WL 495023 at *7 (Tex. App.—Houston [1st Dist.] Feb. 16, 2007, no pet.).
In answer to Question No. 15 related to the DTPA liability questions, the jury
found a total of $163,750 in damages. Tab A, III First Supp. CR 892-93. This total
included both loss of benefit-of-the-bargain damages and out-of-pocket damages.
Instead of awarding damages under one or the other theories, the court awarded both
benefit-of-the-bargain and out-of-pocket damages. This is error, as it constitutes a
double recovery, and the court’s award of these damages should be reversed.
C. The trial court erred in including future benefit-of-the-bargain and
out-of-pocket damages in the actual damages awarded under the
DTPA.
In addition, the award of actual damages of $163,750 awarded in the judgment
under the DTPA included future benefit-of-the-bargain and out-of-pocket damages.
Tab A, III First Supp. CR 892, Question 15(2) and (4). This was improper.
As above noted, under the DTPA (as well as Texas common law) the direct
damages that the plaintiff may recover for misrepresentations are either out-of-
pocket damages or benefit-of-the-bargain damages. Under the DTPA, a plaintiff may
43
recover under the damage theory that provides the greater recovery, but both
measures of damages are determined at the time of sale induced by the fraud. Arthur
Andersen, 945 S.W.2d at 817; Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d
369, 373 (Tex. 1984); Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 395
(Tex. App.—Houston [1st Dist.] 2013, no pet.).
Here, Question 15(2) and (4) allowed the jury to award benefit-of-the-bargain
damages and out-of-pocket damages that Williamson would sustain in the future. III
First Supp. CR 892. The jury’s answers included an award of future benefit-of-the-
bargain damages of $58,000 and future out-of-pocket damages of $11,800. Both of
these amounts were included in the $163,750 awarded by the court.
This Court has consistently held that it is error to award future loss of benefit-
of-the-bargain or out-of-pocket damages. See Woodyard v. Hunt, 695 S.W.2d 730,
733 (Tex. App.—Houston [1st Dist.] 1985) (“Even if the jury had known the
measure of damages, it could not have made a proper award because damages are
measured by comparing values represented and received at the time of sale, not at
some future time.”); Fazio, 403 S.W.3d at 396. (“direct damages for fraud, including
out-of-pocket damages are properly measured at the time of the sale …not at some
future time”).
Because the damages found by the jury in answer to Questions 15(2) and (4)
are, as a matter of law, an improper measure of damages, the trial court erred in not
44
disregarding these damage awards and in entering judgment against the Pogues for
these amounts.
D. The trial court erred in entering judgment awarding benefit-of-the-
bargain damages under the DTPA because there was no evidence
of the property’s value as it was received by Williamson.
Questions 15(1) and (2) asked the jury the amount of the loss of the benefit-
of-the-bargain damages that should be awarded to Williamson in the past, and in the
future. The jury awarded $17,000 for loss of benefit-of-the-bargain damages in the
past and $58,000 in loss of benefit-of-the-bargain damages in the future. III First
Supp. CR 892. The jury was instructed that the loss of the benefit-of-the-bargain was
“the difference, if any, in the value of the Property as it was received, and the value
it would have had if it had been as represented. The difference in value, if any, shall
be determined at the time and place the Property was sold to Liz Williamson.” Id.
While there was evidence of the purchase price or value given by
Williamson—the purchase price she agreed to pay was $235,000—Williamson
provided no evidence of the value of the Indian Shores property as it was received
by her in September 2010 when she purchased it. In other words, there was no
evidence that the property was valued at $17,000 less (in the past) or would be valued
$58,000 less (in the future) than the purchase price of $235,000.
The only evidence regarding the value of the property was a Harris County
Appraisal District statement showing a value of $123,000 as of January 1, 2013. 6
45
RR 183, 10 RR PX 14. But this HCAD value constitutes no evidence of the value of
the property as Williamson received it in 2010, when she purchased the property.
See McGinty v. Hennen, 372 S.W.3d 625, 628 (Tex. 2012) (holding that testimony
as to the value of a home at the time of trial was no evidence of the difference in
value at the time of closing).
In addition, evidence of an appraisal district value is no evidence of property
value in any event. Tax assessment values placed upon real property are no evidence
of the property’s value for any purposes other than taxation. See Houston Lighting
& Power Co. v. Fisher, 559 S.W.2d 682, 686 (Tex. App.—Houston [14th Dist.]
1977, writ ref’d n.r.e.); Houston v. Ludwick, No. 14-09-00600-CV, 2010 WL
4132215 at *8 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Because there
was no testimony as to the value of the property as it was received in 2010, there is
no evidence to support the jury’s answers to Questions 15(1) and (2) regarding the
benefit-of-the-bargain damages.
E. The trial court erred in entering judgment for future out-of-pocket
damages, future expenses, and future lost time damages.
In answer to Questions 15(4), (6) and (8) the jury awarded a total of $88,750,
over one-half of the $163,750 in actual damages the judgment awarded under the
DTPA. III First Supp. CR 892-93, 903. There is no evidence to support the jury’s
answers to these questions.
46
It is well-established that the plaintiff has the burden of proving with some
degree of certainty a factual basis to support the amount of damages awarded.
Lakewood Pipe of Texas, Inc. v. Conveying Techniques, Inc., 814 S.W.2d 553, 556
(Tex. App.—Houston [1st Dist.] 1991, no writ). And the damages awarded must be
based on some competent evidence and not on mere conjecture. Id.; McIver v.
Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). In other words, the recovery of
damages cannot be based on pure speculation. Lakewood Pipe, 814 S.W.2d at 556,
Roth v. Law, 579 S.W.2d 949, 956 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d
n.r.e.).
There is no evidence to support the jury’s damage awards under Questions
15(4), (6), or (8). Williamson testified regarding the cost of repairs and renovations
she made to the home for the two years she owned it before she filed suit, but when
she was asked by her attorney about future “things [that] still need to be done on the
home” Williamson’s response was simply that “we still don’t have a master
bathroom, and the kitchen, the dining room and the living room walls haven’t been
touched”. 6A RR 177. There is no evidence whatsoever of the amount of time,
expenses, or out-of-pocket costs that will be necessary in the future. More
specifically, there is no testimony as to the future costs to replace the “things” that
Williamson claims to still be necessary. In sum, there is simply no evidence to
support the future damages found by the jury in response to Question 15 and the
47
court erred in failing to disregard the answers to these damage findings, and erred in
entering judgment for these amounts.
IV. The trial court’s judgment cannot be supported by the jury’s answers to
the damages questions related to fraud and negligent
misrepresentation—jury Question Nos. 4 and 11. (Issue No. 5)
Although the trial court’s judgment awarded damages under the DTPA theory
and not for fraud or negligent misrepresentation, in the event that Williamson
attempts to rely on the damages found by the jury under these alternative theories,
such reliance would be misplaced. First, no award would be proper under these
theories because of the disclaimer-of-reliance provision. Second, no evidence
supports these damage awards.
A. There is no evidence to support the benefit-of-the-bargain damages
awarded for fraud and negligent misrepresentation.
In Question 4(1) the jury awarded $40,000 for loss of the benefit-of-the-
bargain damages that Williamson sustained in the past. III First Supp. CR 877. The
jury was instructed that the loss of the benefit-of-the-bargain meant the difference,
if any, between the value of the property agreed to between Williamson and the
Pogues, and the value of the property as is. Id.
There is no evidence to support the $40,000 awarded for loss of the benefit-
of-the-bargain because Williamson presented no evidence of the value of the Indian
Shores property on the date she purchased it, i.e., the value of the property the Pogues
sold as is.
48
There was evidence of one element of the benefit-of-the-bargain measure—
the purchase price of the property was $235,000—but there was no evidence of the
value of the property sold by the Pogues as it was when Williamson purchased it,
and specifically, no evidence that the Indian Shores property was valued at $40,000
less than the purchase price on the date Williamson bought it.
As noted above, the HCAD appraisal district statement reflected a value of
$123,000 as of January 1, 2013, but this was no evidence of the property’s value in
2010, when Williamson purchased it. 6A RR 183, 10 RR PX 14, see McGinty, 372
S.W.3d at 628.
In addition, and as argued above regarding the DTPA damages, an appraisal
district value is no evidence of property value, as tax assessment values are no
evidence of the property’s value for any purpose other than tax purposes. See
Houston Lighting & Power Co., 559 S.W.2d at 686; Ludwick, 2010 WL 4132215, at
*8.
A similar question was answered by the jury in response to Question No. 11
related to negligent misrepresentation damages. In the first sub-part of Question 11,
the jury awarded $40,000 in negligent misrepresentation damages, being the
difference between the value of what Liz Williamson received in the transaction and
the purchase price or value given. III First Supp. CR 887. For the same reasons that
the DTPA and fraud damages for loss of benefit-of-the-bargain have no support in
49
the evidence, the jury’s answer to this negligent misrepresentation question also has
no support in the evidence because there is no evidence of what Williamson received
in the transaction and therefore no evidence of the difference between that value and
the purchase price.
B. There is no evidence to support the jury’s award of future fraud
and negligent misrepresentation damages.
Under Question 4(2) (fraud), the jury awarded Williamson $50,000 in future
benefit-of-the-bargain damages. III First Supp. CR 877.
As argued above in connection with the future loss of benefit-of-the-bargain
damages awarded under the DTPA, these damages are determined at the time of the
sale that was allegedly induced by the fraud, not at some future time. Arthur
Andersen, 945 S.W.2d at 817; Leyendecker & Associates, 683 S.W.2d at 373; Fazio,
403 S.W.3d at 395. As noted above, this Court has held that it was error to award
future loss of benefit-of-the-bargain damages. See Woodyard, 695 S.W.2d at 733;
Fazio, 403 S.W.3d at 396.
In addition, there is no evidence to support the jury’s answer to Questions
4(4), and 4(6). In Question 4(4), the jury awarded Williamson $4,000 in future
remedial damages and in Question 4(6) the jury awarded $4,000 in future mitigation
expenses. Similarly, in answer to the third subpart of Question 11 (negligent
misrepresentation) the jury awarded Williamson $58,000 in future economic losses.
III First Supp. CR 877-78, 887.
50
For the same reasons that there is no evidence to support the future DTPA
damages awarded by the jury, there is no evidence to support the future damages
awarded by the jury for fraud and negligent misrepresentation.
Williamson did not even attempt to provide any evidence for the jury to
determine any future damages. Williamson testified regarding the repairs she had
completed, but she provided no testimony upon which the jury could award any
amounts for future damages. When asked about the future repairs that would be
needed, Williamson testified in general terms that “we still don’t have a master
bathroom, and the kitchen, the dining room and the living room walls haven’t been
touched”. 6A RR 177. Williamson provided no evidence as to the materials and labor
that would be necessary in order to complete any future repairs. Also, there was no
testimony regarding the property’s value after Williamson completed the repairs and
renovations. Thus, there is no evidence of future damages based on the sale of the
property at some future time.
Because there is no evidence of future damages, they cannot support a
judgment. See Lakewood Pipe, 814 S.W.2d at 556. The damages awarded by the
jury were based on conjecture and speculation, and not on competent evidence and
are therefore improper. Id., McIver, 169 S.W.2d at 712.
Because the record contains legally insufficient evidence to support the future
damages awarded by the jury in Questions 4(2), (4), (6) and the third sub-part of
51
Question 11, they cannot support a judgment against the Pogues. The trial court
therefore erred in failing to disregard the jury’s answers to these questions and this
Court should render a take-nothing judgment in the Pogues’ favor on the damages
found under these issues.
C. There is no evidence to support the jury’s award of past remedial
damages, mitigation expenses, and economic loss.
In Question 4(3) the jury awarded $39,000 to Williamson for past remedial
damages, which the charge defined as the reasonable and necessary costs to repair
the property. III First Supp. CR 877. In answer to Question 4(5), the jury awarded
$37,950 in past mitigation expenses, defined as the reasonable and necessary
expenses in attempting to have the property repaired. III First Supp. CR 878. There
is no competent evidence to support these damage awards of past costs to repair or
attempt to have the property repaired.
No construction expert testified regarding the renovations Williamson made
to the property. Williamson herself testified, describing the problems she detected
after they moved in. 6A RR 111-176. Of course, all of these repairs were conducted
over the two-year period after Williamson purchased the property, and the repairs
were completed before she ever notified the Pogues about any problems. 3 RR 155,
6B RR 92-93.
In general terms, Williamson testified about the rooms that were painted, the
insulation and sheetrock that was replaced in the affected rooms, the damage to a
52
portion of the roof, and the repairs to one of the septic tanks. Williamson admitted
that some of the renovations were done not because they were necessary to repair
damage, but because they wanted to change items such as the flooring in part of the
house, and the fireplace, which they remodeled. 6A RR 123, 155.
Williamson also admitted that she and her husband were not construction or
repair professionals. 6A RR 156. But expert testimony of repair costs is required in
order to recover these damages, and the lay testimony of Williamson therefore does
not support the jury’s verdict. As a general rule, matters involving specialized or
technical knowledge require expert testimony. See FFE Transp. Servs., Inc. v.
Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004). And Texas courts have held that
evidence pertaining to the necessity and reasonableness of repair costs falls within
the exclusive domain of an expert. Pjetrovic v. Home Depot, 411 S.W.3d 639, 649
(Tex. App.—Texarkana 2013, no pet.); Wortham Bros., Inc. v. Haffner, 347 S.W.3d
356, 360 (Tex. App.—Eastland 2011, no pet.).
Here, the repairs were of a technical and specialized nature, and required
expert testimony. Williamson testified at length regarding purported mold damage
that she remediated, wood rot that she diagnosed and repaired, the necessity for
insulation to be replaced and sheetrock to be removed and repaired, and repair or
replacement of certain exterior walls and ceiling repair in several rooms. 6A RR 111-
176.
53
Not only did no expert testify regarding the cost of repairs as being reasonable
and necessary, the “proof” that Williamson offered was not competent evidence.
Williamson testified that she and her husband were charging for personal labor costs
for the repairs. 6A RR 155, 10B RR, PX 35Q — “Assessment of Personal Labor
Charges at 901 Indian Shores”. In Exhibit 35Q, Williamson purported to itemize
room-by-room labor charges that she and her husband claimed. When asked where
she came up with the hourly rate for the personal labor charges, Williamson testified
that she got it from an internet website, Homewise.com, which supposedly listed
prices for contractors in her area. 6A RR 155-56. Williamson testified she used one-
third of the contractor’s amount because she and her husband were “not
professionals” and she “thought that would be fair”. 6A RR 156.
The total amount of Williamson’s estimated “labor costs” was $37,950, the
amount the jury awarded under Question 4(5) as past mitigation expenses. 6A RR
168, III First Supp. CR 878. But because the amounts of labor costs are simply
Williamson’s estimate of a discounted labor rate based on a website, there is no
competent evidence of the labor costs, even if expert testimony was not required.
Williamson’s testimony regarding the items purchased to repair the property
was also not competent. Williamson summarized the list of items that were used to
54
repair the home. 6A RR 168-175; 10B RR PX 35R. The total of the items Williamson
claimed they purchased was $43,724.45. 6A CR 176. 8
As above indicated, there was no testimony from anyone other than
Williamson that the items she purchased for repair were reasonable and necessary in
order to repair the home. And because there was no competent evidence, the jury’s
answer to Questions 4(3) (remedial damages) and (5) (mitigation expenses) should
have been disregarded by the court and cannot support a judgment in favor of
Williamson.
The jury, in answer to question number 11, also awarded damages to
Williamson for economic losses suffered in the past. III First Supp. CR 887. These
damages—$76,950—cannot support any judgment because there is no evidence to
support the jury’s findings.
The damages recoverable for negligent misrepresentation include the
pecuniary loss suffered as a consequence of the plaintiff’s reliance upon the
misrepresentation. Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439,
442-43 (Tex. 1991); RESTATEMENT (2ND) OF TORTS § 552B (1977).
______________________
8 It appears from the extensive list of the items that Williamson purchased that she gutted and
renovated the entire house before she ever told the Pogues about any problems. Light fixtures,
electrical wall receptacles, showers, tubs, sinks, and mirrors were listed among the items
purchased and replaced. Incredibly, Williamson even charged $2,300 for a new stove-top and
$2,400 for air-conditioning repair, which she admitted would have been covered under the
home warranty that the Pogues paid for but that she didn’t use. 6A RR 175. She also charged
$3,500 to replace the carpet, which she knew from her first visit was stained and dirty. 6B RR
35.
55
Here there is no competent evidence to support the amount found by the jury
for past economic loss. In answer to the second subpart of Question Number 11, the
jury awarded $76,950 for past economic loss based on the misrepresentations. III
First Supp. CR 887. This total is the same as the total of the past remedial damages
and past mitigation expenses found by the jury under the fraud questions. III First
Supp. CR 877-78.
For the same reasons that the past remedial damages and mitigation expenses
have no support in the evidence, there is no competent evidence to support the jury’s
answer to the second subpart of Question 11.
As above argued, Williamson and her husband made the repairs themselves.
Williamson admitted that they were not professional contractors and Texas law is
clear that homeowner’s testimony about repair costs is not competent evidence.
Moreover, as above explained, even if Williamson was competent to testify about
the reasonableness and necessity of the repairs, the jury’s award for economic loss
for negligent misrepresentation is based on conjecture and speculation. Williamson
testified that she and her husband charged for labor expense based on an internet
website and that she charged what she “thought would be fair” based on her opinion
of how much that contractor rate should be discounted. 6A RR 156.
Finally, as above explained, Williamson’s testimony regarding the items
purchased to repair the property constitutes no competent evidence of the economic
56
loss suffered. No expert testified that the items purchased were reasonable and
necessary in order to repair the home. And because there was no competent evidence,
the jury’s answer to the second subpart of Question 11 regarding the past economic
loss should have been disregarded by the court and cannot support a judgment in
Williamson’s favor.
V. Because the trial court erred in entering judgment against the Pogues,
the court’s award of attorney’s fees should be reversed. (Issue No. 6)
In addition to awarding $576,547.44 in actual damages and pre-judgment
interest, the court awarded Williamson trial attorney’s fees of $171,972.23 and
additional $12,250 in contingent appellate attorney’s fees, for a total attorney’s fee
award of $184,222.23. III First Supp. CR 904.
The DTPA allows a prevailing party to recover reasonable and necessary
attorney’s fees. TEX. BUS. & COM. CODE ANN. § 17.50(d). But because Williamson
is not entitled to recover any damages under the DTPA, she is not entitled to recover
any attorney’s fees, and the award should be reversed. Gulf States Utilities Co. v.
Low, 79 S.W.3d 561, 567 (Tex. 2002).
Moreover, although the damages were not awarded for statutory fraud, in the
event that Williamson would seek to rely on the jury’s finding of statutory fraud
(Jury Question No. 2) this finding would not support any award of attorney’s fees.
TEX. BUS. & COM. CODE ANN. § 27.01(d)—the statutory fraud statute—
provides that attorney’s fees are available to the prevailing party. But as with the
57
DTPA, if the party is not entitled to recover on the statutory fraud claim, the party
cannot recover attorney’s fees. Jerry L. Starkey, TBDL, L.P. v. Graves, 448 S.W.3d
88, 112 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Because Williamson is not entitled to recover a judgment against the Pogues
for any amount, the court should reverse the judgment awarding attorney’s fees.
Prayer for Relief
The judgment should be reversed and judgment rendered that Williamson take
nothing against the Pogues and that the deed of trust is enforceable against the
property securing Williamson’s note. In the alternative, the judgment should be
reversed and the case remanded for a new trial.
Respectfully submitted,
DE LANGE, HUDSPETH, MCCONNELL
& TIBBETS, L.L.P.
By: /s/ Ben A. Baring, Jr.
BEN A. BARING, JR.
State Bar No. 01739050
bbaring@dhmtlaw.com
R. Travis Piper
State Bar No. 24070421
tpiper@dhmtlaw.com
1177 West Loop South, Suite 1700
Houston, TX 77027
Phone: 713-871-2000
Fax: 713-871-2020
ATTORNEYS FOR APPELLANTS,
LESLIE R. POGUE AND JEANNETTE I. POGUE
58
Certificate of Service
I certify that on May 25, 2018, a true and correct copy of Appellants’ Brief
has been served on counsel for Appellee by electronic service pursuant to Rule 9.5
of Texas Rules of Appellate Procedure:
Misty Hataway-Coné
Spurlock & Associates
17280 West Lake Houston Pkwy.
Humble, TX 77346
email: MCone@spurlocklaw.com
Attorneys for Appellee
/s/ Ben A. Baring, Jr.
BEN A. BARING, JR.
Certificate of Compliance
I certify that this brief contains 13,915 words (excluding the sections of the
document listed in Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Ben A. Baring, Jr.
BEN A. BARING, JR.
59
NO. 1-17-00844-CV
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
_____________________________________________
LESLIE R. POGUE AND JEANNETTE I. POGUE, Appellants
VS.
ELIZABETH A. WILLIAMSON, Appellee.
_____________________________________________
(On Appeal from the 164th Judicial District Court of
Harris County, Texas, Trial Court Cause No. 2012-56353)
_____________________________________________
APPENDIX TO APPELLANTS' BRIEF
_____________________________________________
Tab A—Jury Charge.
Tab B—Final Judgment.
Tab A
I
\
*
-J
NO.. 2012
CAUSE NO
CdGlM /M-. / -
-56353
2012-56353 1
d
3
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-
A. WILLIAMSON
ELIZABETH A. § IN THE DISTRICT COURT OF
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JEANETTE II.. POGUE § 164 TH JUDICIAL DISTRICT
164TH |I0 2 5E
:::::;j;'!!. t:J
CHARGE OF THE COURT
MEMBERS OF THE JURY
JURY::
arguments,, you will go to the jury room to decide the case
After the closing arguments case,, answer the
verdict.. You may discuss the case with other jurors only
attached,, and reach a verdict
questions that are attached -
room.
when you are all together in the jury room.
instructions:: Do not discuss the case with anyone else
Remember my previous instructions else,, either in
means.. Do not do any independent investigation about the case or conduct
person or by any other means
research. Do not look up any words in dictionaries or on the Internet
any research. Internet.. Do not post
Internet.. Do not use your phone or any other electronic device
information about the case on the Internet
reason.. I will give you a number where others may contact you
during your deliberations for any reason
emergency..
of an emergency
in case of
Any notes you have taken are for your own personal use use.. You may take your notes back
into the jury room and consult them during deliberations
deliberations,, but do not show or read your notes to
your fellow jurors during your deliberations Your notes are not evidenceevidence.. Each of
of you should
rely on your independent recollection of of the evidence and not be influenced by the fact that
notes..
another juror has or has not taken notes
You must leave your notes with the bailiff deliberating.. The bailiff
bailiff when you are note deliberating bailiff
will give your notes to me promptly after collecting them from you you.. I will make sure your notes
safe,, secure location and riot
are kept in a safe anyone.. After you complete your
not disclosed to anyone
deliberations
deliberations,, the bailiff notes. When you are released from jury duty
bailiff will collect your notes. duty,, the bailiff
bailiff
will promptly destroy your notes so that nobody can read what you wrotewrote..
Here are the instructions for answering the questions
questions..
11.. bias, prejudice,
Do not let bias, decision..
prejudice, or sympathy play any part in your decision
1 RECORDER'S
RECORDER ’S MEMORANDUM
This instrument is of poor quality
at the time of imaging
Imaging
869
il
*-<.,' J
i
1
r
22.. Base your
Base your answers only on
answers only evidence admitted
the evidence
on the in court
admitted in and on
court and the law
on the law
that is in these instructions and questions
that is in these instructions and questions.. Do not
not consider
consider or
or discuss
discuss any
any evidence
evidence that
that
admitted in
not admitted
was not courtroom..
in the courtroom
33.. are to make up your own
You are own mind about facts.. You are the sole
about the facts sole
of the credibility
judges of of the witnesses and
credibility of testimony.. But
weight to give their testimony
and the weight But on
on
law,, you must follow all of
of law
matters of instructions..
of my instructions
44.. If my instructions use a word in a way that is different from its ordinary
If
meaning,, use the meaning I give you
meaning definition..
you,, which will be a proper legal definition
55.. important.. No one should
All the questions and answers are important shoul~ say that any
important..
questions or answer is not important
66.. yes” or “"no"
Answer “"yes" otherwise.. A
no” to all questions unless you are told otherwise
yes” answer must be based on a preponderance of
“"yes" evidence.. Whenever a question
of the evidence
no,” your answer must be based on a
yes” or “"no,"
requires an answer other than “"yes"
evidence..
of the evidence
preponderance of
preponderance of
The term “"preponderance evidence"” means the greater weight of
of the evidence of credible
If you do not find that a preponderance of
case.. If
evidence presented in this case of the evidence
supports a “"yes" no.” A preponderance of
answer,, then answer “"no."
yes” answer of the evidence is not
measured by the number of of witnesses or by the number of of documents admitted in
evidence.. For a fact to be proved by a preponderance of
evidence evidence,, you must find that
of the evidence
true..
the fact is more likely true than not true
7.
7. Do not decide who you think should win before you answer the questions
decision.. Answer each question
and then just answer the questions to match your decision
win. Do not discuss or consider the effect your
carefully without considering who will win.
have.
answers will have.
8..
8 chance.
Do not answer questions by drawing straws or by any method of chance.
9.
9. amount. Do not agree in
Some questions might ask you for a dollar amount.
advance
advance to decide on a dollar amount by adding up
to decide figuring
juror’s amount and then figuring
up each juror's
the
the average.
average .
10..
10 answers. For example,
Do not trade your answers. “ I will answer this
example, do not say "I
way.”
question your way if you answer another question my way."
11.
11. to the
answers to
The answers the questions the decision of at least ten
based on the
questions must be based
the twelve
of the jurors. The
twelve jurors. jurors must agree
same ten jurors
The same answer. Do
agree on every answer. Do not agree toto
be bound by a vote
vote of anything jurors, even if it would be
less than ten jurors,
anything less majority.
be a majority.
22
870
I i.
/1if
I ' <. ~
As II have
As have said
said before
before,
, ififyou
you do
do not these instructions
follow these
notfollow you will
instructions,, you be guilty
will be ofjuror
guilty of juror
misconduct,
misconduct and IImight
, and might have
have toto order newtrial
orderaa new this process
startthis
andstart
trial and overagain
process over . This would
again. This would
waste your time and the parties'
waste your time and the parties’ money money, , and
and would
would require
require the
the taxpayers
taxpayers of
ofthis
this countyto
county to pay
payfor
for
,another trial
another trial.. IfIfaa juror
juror breaks
breaks anyany of these rules
of these , tell
rules, person to
that person
tell that to stop and report it to
stop and report it to me me
immediately.
immediately.
\
33
871
< t
AND INSTRUCTION
DEFINITIONS AND
DEFINITIONS S
INSTRUCTIONS
Definitions:
Definitions:
“"Liz Williamson"
Liz Williamson means Plaintiff
” means Elizabeth A
Plaintiff,, Elizabeth Williamson..
A.. Williamson
“"Defendants" means Defendants
Defendants” means R.. Pogue
Leslie R
Defendants Leslie Jeannette II.. Pogue
and Jeannette
Pogue and Pogue..
“"Leslie Pogue"
Leslie Pogue means Defendant
” means Leslie R
Defendant Leslie Pogue..
R.. Pogue
“"Jeannette Pogue"
Jeannette Pogue Defendant Jeannette
means Defendant
” means Pogue..
Jeannette Pogue
The “"Property"
The that certain
Property” means that property in
certain property Harris County
in Harris as 901
described as
County described Indian Shores
901 Indian Shores
County,, Crosby
Road,, Harris County
Road Crosby,, Texas 77532..
Texas 77532
Instructions::
Instructions
A fact may be established by direct evidence or by circumstantial evidence or both both.. A fact is
established by direct evidence when proved by documentary evidence or by witnesses who saw
spoken.. A fact is established by circumstantial evidence when it
the act done or heard the words spoken
proved..
may be fairly and reasonably inferred from other facts proved
44
872
<( .. l
QUESTION NO .1
NO.1
Williamson??
of those named below commit fraud against Liz Williamson
Did any of
Fraud occurs when
when- —
11.. A party fails to disclose a material fact within the knowledge of party;; and
of that party
22.. of the fact and does not have an
The party knows that the other party is ignorant of
truth;; and
equal opportunity to discover the truth
33.. The party intends to induce the other party to take some action by failing to
fact,, and
disclose the fact
44.. of acting without knowledge of
The other party suffers injury as a result of of the
fact..
undisclosed fact
"-
No.55
Yes” or “"No."
Answer “"Yes"
A.
A. Leslie Pogue
Answer: _'--,~-,--e_~
Answer: ife_____
' ?©
B..
B Jeannette Pogue
Answer:
Answer: ~
5
873
X
, ,
QUESTION NO
QUESTION .2
NO.2
Did any
Did any of
ofthose named below
those named commit statutory
below commit fraud against
statutory fraud Liz Williamson
against Liz ?
Williamson?
Fraud occurs
Fraud occurs when
when-—
11.. There is aa false
There is representation of
false representation past or
ofaa past existing material
or existing fact,, and
material fact and
22.. false representation
The false person for
representation is made to aa person inducing that
of inducing
for the purpose of that
person
person to enter into aa contract
enter into contract,, and
and
33.. false representation is relied on
The false person in entering
on by that person contract..
entering into that contract
Answer “"Yes" No.
Yes” or “"No." 95
A..
A Leslie Pogue
Answer:: _'f.i"--'e==-----~"__ _ _
Answer
B..
B Jeannette Pogue
Answer:
Answer: ~
t
66
874
.- •
i .
If you
If you answered
answered “"Yes" Nos.. 11 or
Question Nos
Yes” to Question or 22 for
for more than one of
than one below,, then
named below
of those named then
answer the following
answer question.. Otherwise
following question Otherwise,, do not answer
do not question..
following question
the following
answer the
Assign percentages only
Assign found caused
only to those you found contributed to cause
or contributed
caused or harm.. The
cause the harm The
percentages you find
find must total 100 percent.. The percentages must be expressed
100 percent expressed in whole
numbers.. The percentage of
numbers of responsibility attributable to any one named below is not necessarily
anyone
measured
measured by the number of acts
of acts or omissions found
found..
QUESTION NO
QUESTION .3
NO.3
Williamson,, find
For each person you found caused or contributed to cause the harm to Liz Williamson
each::
of responsibility attributable to each
the percentage of
11.. Leslie Pogue J3?
_97=----
_____ %
22.. Jeannette Pogue t;"~
--~---------
%
Total 100
--------"'--'''-'''----- %
77
875
(
( ..
If you
If you answered
answered “"Yes" Question Nos
Yes” to Question answer the following
or 22 then answer
Nos.. 11 or question.. Otherwise
following question Otherwise,,
question..
do not answer the following question
88
876
4*
"
QUESTION NO .4
NO.4
What sum of money,, if
of money any,, if
if any cash,, would fairly and reasonably compensate Liz
if paid now in cash
harm, if
, Williamson for her harm, any,, that were proximately caused by such fraud
if any fraud??
Proximate cause
“"Proximate event,, and
cause"” means a cause that was a substantial factor in bringing about an event
occurred.. In order to be a
without which such event would not have occurred proximate cause,
cause, the act or
omission complained ofof must be such that a person using the degree of of him
of care required of
event,, or some similar event
would have foreseen that the event therefrom.
event,, might reasonably result therefrom.
There may be more than one proximate cause of event..
of an event
Consider the following elements of damages,, if any
of damages other..
any,, and none other
A.. Loss of the benefit of the bargain
A —
The difference
bargain-The difference,, if any,, between the value of
if any of the
Property agreed to between Liz Williamson and the Defendants
Defendants,, and the value of the
ofthe
is..
Property sold as is
B.. Remedial damages
B — Property..
The reasonable and necessary costs to repair the Property
damages-The
C.. Mitigation expenses
C —
expenses-TheThe reasonable and necessary expenses incurred in attempting
repaired .
to have the Property repaired.
D.. Incidental damages
D — The reasonable and necessary expenses incurred while the
damages-The
repaired.
Property was being repaired.
In answering questions about damages separately.. Do not increase or
damages,, answer each question separately
reduce the amount in one answer because of of the instructions in or your answers to any other
damages.. Do not speculate about what any party
questions about damages ’ s ultimate recovery may
party's or
mayor
be. Any recovery will be determined by the court when it applies the law to your
may not be.
answers at the time of judgment. Do not add any amount for interest on damages
of judgment. damages,, if any..
if any
Answer separately in dollars and cents for damages
damages,, if any..
if any
11.. Loss of
of the benefit of past..
of the bargain damages Liz Williamson sustained in the past
4
!$
Answer::
Answer -40"c::::l::>o
7
22.. Loss of
of the benefit of
of the bargain damages Liz Williamson will
will,, in reasonable
future..
probability, sustain in the future
probability,
Answer::
Answer -.
~ r" * ^
r;2::>/,a::::o
33.. past.
Remedial damages Liz Williamson sustained in the past.
Answer
4
^
Answe``", coD Ir
Remedial damages Liz Williamson will,
4.. will, in reasonable probability,
probability, sustain in the
future..
future
9
877
Jt
Answer:
Answer
55..
^ 4.1COO
#
r:t::X:J
Mitigation expenses
Mitigation expenses Liz
Liz Williamson sustained in
Williamson sustained past..
the past
in the
Answer
66..
^
Answer;4' .",..., J Q5"O
,
Mitigation expenses
Mitigation
future..
future
expenses Liz will,, in
Williamson will
Liz Williamson in reasonable sustain in
probability,, sustain
reasonable probability in the
the
”
Answer * ~.I,
AnsweFf' OOQ
()()O
77.. Incidental damages
Incidental sustained in
Williamson sustained
Liz Williamson
damages Liz past..
the past
in the
Answer::
Answer O
(:)
88.. damages Liz Williamson will
Incidental damages probability,, sustain in the
in reasonable probability
will,, in
future..
future
Answer::
Answer o
(!)
10
10
878
Answer the following
Answer following question
question regarding only if
defendant only
regarding aa defendant you unanimously answered
if you Yes”
answered “"Yes"
to Question
to . 1 regarding that
No.1
Question No defendant.. Otherwise
that defendant Otherwise,, do following question
the following
answer the
do not answer question
defendant..
that defendant
regarding that
of the following question
Yes” to any part of
To answer “"Yes" unanimous.. You
question,, your answer must be unanimous
answer “"No"
may answer any part
No” to any of the following
part of of ten or
only upon a vote of
following question only jurors..
or more jurors
Otherwise,, you must not answer
Otherwise part of
answer that part question..
following question
ofthe following
QUESTION NO .5
NO.5
Do you find by clear and convincing evidence that the harm to Liz Williamson resulted from any
fraud found by you in Question No . 1?
No.1?
evidence"” means the measure or degree of
Clear and convincing evidence
“"Clear proof that produces a firm
of proof
belief
belief or conviction ofthe
of the truth of
of the allegations sought to be established .
established.
No.”
Yes” or “"No."
Answer “"Yes"
A..
A Leslie Pogue
Answer:: __):e7--J--=L-__
Answer
B..
B Jeannette Pogue
Answer:
Answer: - - - - - - -
11
11
879
· .
(
IfIf you
you unanimously
unanimously answered
answered “"yes"
yes” to Question No
to Question . 2, then
No.2, answer the
then answer question..
following question
the following
Otherwise do not
Otherwise,, do not answer
answer the
the following question..
following question
12
12
880
QUESTION NO
QUESTION NO.6.6
Did any of below have
named below
Did any of those named of the falsity
awareness of
actual awareness
have actual of the representation
falsity of representation
or promise you
or you found
found to
to be Question No
in Question
fraud in
be fraud . 2?
No.2?
Actual awareness may be inferred where objective manifestations indicate a person acted
with actual awareness..
actual awareness
Yes” or
Answer “"Yes"
Answer No.”
or “"No."
A..
A Leslie Pogue
Answer:: _``_S____
Answer
B..
B Jeannette Pogue
Answer::
Answer Ye~
13
13
881
c
Answer the
Answer the following question regarding
following question Leslie Pogue
Defendant Leslie
regarding Defendant you unanimously
only ifif you
Pogue only unanimously
answered “"Yes"
answered No.. 55 or
Question No
to Question
Yes” to regarding Leslie
or 66 regarding Pogue.. Otherwise
Leslie Pogue Otherwise,, do not answer
do not answer the
the
following question regarding
following question regarding Leslie
Leslie Pogue
Pogue. .
You must
You must unanimously agree on
unanimously agree amount of
the amount
on the any award
ofany exemplary damages
ofexemplary
award of damages..
QUESTION NO
QUESTION .7
NO.7
What sum
What sum of money,, if
of money any,, if
if any if paid now in
paid now cash,, should
in cash be assessed
should be against Leslie
assessed against Pogue and
Leslie Pogue and
awarded to Liz Williamson as exemplary damages if
awarded to Liz Williamson as exemplary damages, , if any,
any, for
for the
the conduct
cond~uct found
found in
in response
response to
to
Question No
Question No.5. 5 or
or 66?
?
“"Exemplary damages"
Exemplary damages means an
” means that you
amount that
an amount may in
you may your discretion
in your award as
discretion award penalty or
as aa penalty or
punishment..
of punishment
by way of
Factors to consider
Factors consider in
in awarding
awarding exemplary damages,, if
exemplary damages any,, are
if any are- —
11.. The nature of wrong..
of the wrong
22.. The character of involved..
of the conduct involved
33.. of culpability of
The degree of Pogue..
of Leslie Pogue
44.. of the parties concerned
The situation and sensibilities of concerned..
55.. The extent to which such conduct offends a public sense of propriety.
of justice and propriety.
66.. Pogue..
The net worth of Leslie Pogue
any..
cents,, if any
Answer in dollars and cents
Answer~ ',~?D
Answer
^
ty *2*
14
14
882
Answer the following question regarding Defendant Jeannette Pogue only if if you unanimously
Yes” to Question No
answered “"Yes" No.5 Pogue.. Otherwise
. 5 or 6 regarding Jeannette Pogue Otherwise,, do not answer the
Pogue..
following question regarding Jeannette Pogue
of any award of
You must unanimously agree on the amount of damages..
of exemplary damages
QUESTION NO .8
NO.8
What sum of money,, if
of money any,, if
if any cash,, should be assessed against Jeannette Pogue and
if paid now in cash
awarded to Liz Williamson as exemplary damagesdamages,, if any,, for the conduct found in response to
if any
Question No. 5 or 66??
No.5
damages"” means an amount that you may in your discretion award as a penalty or
Exemplary damages
“"Exemplary
punishment..
of punishment
by way of
damages,, if
Factors to consider in awarding exemplary damages any,, are
if any are- —
11.. The nature of wrong..
of the wrong
22.. The character of involved..
of the conduct involved
33.. The degree of Pogue..
of Jeannette Pogue
of culpability of
44.. The situation and sensibilities of concerned..
of the parties concerned
55.. propriety..
of justice and propriety
The extent to which such conduct offends a public sense of
66.. The net worth of Pogue.
of Jeannette Pogue.
cents,, if
Answer in dollars and cents any..
if any
ji.
Answer:
Answer: II "2- '5'e;..
15
883
QUESTION NO.9
NO.9
Did any ofof those named below make a negligent misrepresentation on which Liz
relied?
Williamson justifiably relied?
Negligent misrepresentation occurs when
when- —
11.. of his business or in a transaction in
A party makes a representation in the course of
interest,, and
which he has a pecuniary interest
22.. The representation supplies false information for the guidance of
of others in their
business, and
business,
33.. The party making the representation did not exercise reasonable care or
information..
competence in obtaining or communicating the information
Answer “"Yes" “ No.”
Yes” or "No."
A.
A. Leslie Pogue
Answer:
Answer: ~
B..
B Jeannette Pogue
T
Answer: - -©
Answer: 4»
-----
16
16
/
884
If you answered “"Yes"
If Yes” to Question No
No.9 question.. Otherwise
. 9 then answer the following question Otherwise,, do not
question..
answer the following question
17
885
£
IfIfyou
you answered
answered “"Yes"
Yes” to Question No
to Question . 9 for
No.9 one of
than one
more than
for more those named
ofthose then answer
below,, then
named below answer
the following
the question.. Otherwise
following question Otherwise,, do
do not the following
answer the
not answer question
following question..
Assign percentages
Assign percentages only
only to
to those found caused
you found
those you caused or to cause
contributed to
or contributed cause the harm.. The
the harm The
percentages you
percentages you find
find must total 100
must total percent.. The
100 percent percentages must
The percentages expressed in
be expressed
must be in whole
whole
numbers.. The
numbers The percentage
percentage of attributable to
responsibility attributable
ofresponsibility to any
anyone below is
named below
one named not necessarily
is not necessarily
measured by
measured by the
the number ofacts
number of or omissions
acts or found..
omissions found
QUESTION NO
QUESTION NO.. 10
10
For each person
For each person you
you found
found caused
caused or
or contributed
contributed to
to cause
cause the harm to
the harm to Liz Williamson,, find
Liz Williamson find
responsibility attributable
of responsibility
the percentage of each::
attributable to each
cp
9
11.. Leslie Pogue
Leslie Pogue
^ %
%
22.. Jeannette Pogue ~ %
Total 100
100 %
%
18
18
886
·'
•’ *,
NO.. 11
QUESTION NO 11
money,, if
of money
What sum of if any cash,, would fairly and reasonably compensate Liz
if paid now in cash
any,, if
damages,, if
Williamson for her damages any,, that were proximately caused by such negligent
if any
misrepresentation??
misrepresentation
“"Proximate cause"
Proximate cause event,, and
” means a cause that was a substantial factor in bringing about an event
cause,, the act or
occurred.. In order to be a proximate cause
without which such event would not have occurred
of must be such that a person using the degree of
omission complained of of care required of
of him
event,, or some similar event
would have foreseen that the event thereform..
event,, might reasonably result thereform
There may be more than one proximate cause of event..
of an event
Consider the following elements of if any
damages,, if
of damages other.. Do not add any amount for
any,, and none other
damages,, if
interest on past damages any..
if any
damages,, if
Answer separately in dollars and cents for damages any..
if any
. if any
difference,, if
The difference
. the purchase price or value given.
jf A
Answer::
Answer 40 ,~ Q &t0?
(;;N!::,)
of what Liz Williamson received in the transaction and
any,, between the value of
loss,, if
The economic loss any,, otherwise suffered in the past as a consequence of
if any Williamson’ s
of Liz Williamson's
misrepresentation.
reliance on the misrepresentation.
tAo
4
HCa,l? 5't:>
,G=a
Answer:: "
Answer
^
loss,, if
The economic loss any,, that in reasonable probability will be sustained in the future as a
if any
consequence of
of Liz Williamson's misrepresentation..
Williamson’ s reliance on the misrepresentation
~
Answer:
Answer: IgB ,ooe>
~/OO(:::)
•
19
887
,-,
NO.. 12
QUESTION NO 12
of those named below engage in a false
Did any of misleading,, or deceptive act or practice
false,, misleading
that Liz Williamson relied on to her detriment and that was a producing cause of of damages to Liz
Williamson??
Williamson
“"Producing cause"” means a cause that was a substantial factor in bringing about the
Producing cause
damages if any
damages,, if occurred.. There may be more
any,, and without which the damages would not have occurred
cause..
than one producing cause
“"False, misleading,, or deceptive act or practice
False, misleading practice"” means
means::
Failing to disclose information about the property that was known at the time of of the
transaction with the intention to induce Liz Williamson into a transaction she otherwise would
disclosed..
if the information had been disclosed
not have entered into if
No.”
Yes” or “"No."
Answer “"Yes"
A..
A Leslie Pogue
Answer:: -~-4-'=-~----
Answer
B..
B JJeannette
eannette Pogue
Answer:
Answer: ~
JJ
20
888
NO.. 13
QUESTION NO 13
of those named below engage in any unconscionable action or course of
Did any of of action
of damages to Liz Williamson
that was a producing cause of Williamson??
Producing cause
“"Producing ” means a cause that was a substantial factor in bringing about the
cause"
damages,, if
damages if any occurred.. There may be more
any,, and without which the damages would not have occurred
cause..
than one producing cause
An unconscionable action or course of that,, to a consumer
of action is an act or practice that ’s
consumer's
detriment,, takes advantage of
detriment of knowledge
of the lack of experience,, or capacity of
ability,, experience
knowledge,, ability of the
degree..
consumer to a grossly unfair degree
No.”
Yes” or “"No."
Answer “"Yes"
A..
A Leslie Pogue
Answer::
Answer --reS
B
B.. Jeannette Pogue
Answer: '(e:~
Answer: ----=------
21
21
889
If you answered “"Yes"
If Nos. 12 or 13
Yes” to Question Nos. question..
13,, then answer the following question
question..
Otherwise,, do not answer the following question
Otherwise
Assign percentages only to those you found caused or contributed to cause the harm. harm. The
percent.. The percentages must be expressed in whole
percentages you find must total 100 percent
numbers.. The percentage of
numbers of responsibility attributable to any one named below is not necessarily
anyone
of acts or omissions found
measured by the number of found..
NO.. 14
QUESTION NO
Williamson,, find
For each person you found caused or contributed to cause the harm to Liz Williamson
each::
of responsibility attributable to each
the percentage of
11.. Leslie Pogue ;;0 %
22.. Jeannette Pogue ~O %
Total 100 %
22
890
No. 12 or 13 for more than one of
Yes” to Question No.
If you answered “"Yes" below, then
of those named below,
question.. Otherwise
answer the following question question..
Otherwise,, do not answer the following question
23
891
7
NO.. 15
QUESTION NO
What sum of money, if
of money, any,, if
if any cash,, would fairly and reasonably compensate Liz
if paid now in cash
Williamson
Willi'!illson for her damages if any
damages,, if any,, that from such conduct
conduct??
Consider the following elements of damages,, if
of damages if any other..
any,, and none other
A.. Loss of the benefit of the bargain
A —
The difference
bargain-The if any
difference,, if any,, in the value of
of the
Property as it was received and the value it would have had if if it had been as
represented. The difference in value,
represented. value, if any,, shall be determined at the time and
if any
Williamson..
place the Property was sold to Liz Williamson
B.. Out of pocket
B — The difference
pocket-The difference,, if any,, in the value of
if any of the Property as it was
received and the price Liz Williamson paid for it it.. The difference
difference,, if any,, shall be
if any
Williamson..
determined at the time and place the Property was sold to Liz Williamson
C.. Expenses
C — Property..
The reasonable and necessary cost to repair the Property
Expenses-The
D.. Lost time
D — The reasonable value of
time----The of the time spent by Liz Williamson correcting
Property..
or attempting to correct the problems with the Property
In answering questions about damages separately.. Do not increase or
damages,, answer each question separately
reduce the amount in one answer because of of the instructions in or your answers to any other
damages.. Do not speculate about what any party's
questions about damages party’s ultimate recovery may or
mayor
be. Any recovery will be determined by the court when it applies the law to your
may not be.
answers at the time of judgment. Do not add any amount for interest on damages
of judgment. any..
if any
damages,, if
damages,, if
Answer separately in dollars and cents for damages any..
if any
11.. Loss of
of the benefit of past.
of the bargain damages Liz Williamson sustained in the past.
~
Answer:
Answer: n1~,, ooo
\ c)()o
2 . Loss of
2. of the benefit of will, in reasonable
of the bargain damages Liz Williamson will,
future..
probability, sustain in the future
probability,
!I
Answer:
Answer: ~/CbO .
33.. Out of past.
of pocket damages Liz Williamson sustained in the past.
Answer:
Answer: "~
0
44.. Out of
of pocket damages Liz Williamson will probability, sustain in the
will,, in reasonable probability,
future..
future
Answer~
Answer
!
4 l \ J eco
I
24
892
5. Expenses Liz Williamson sustained in the past.
5. past.
Answer:
llnsvver:
JJt c:>
O
6. Expenses Liz Williamson vvill,
6. will, in reasonable probability, future.
probability, sustain in the future.
Answer
^
llnsvver~ ~OOO
Q&O
7. Lost time damages Liz Williamson sustained in the past.
7. past.
Answer:
llnsvver: O
~
88.. Lost time damages Liz Williamson vvill, probability, sustain in the
will, in reasonable probability,
future.
future.
^ ^17, '5'Z>
*
Answer: ":!a jJ
llnswer:!;
25
893
NO.. 16
QUESTION NO 16
of those named below engage in such conduct knowingly
Did any of knowingly??
awareness,, at the time of
Knowingly” means actual awareness
“"Knowingly" conduct,, of
of the conduct of the falsity
falsity,,
of the conduct in question or actual awareness of
deception,, or unfairness of
deception of the conduct
warranty.. Actual awareness may be inferred where
constituting a failure to comply with a warranty
awareness..
objective manifestations indicate that a person acted with actual awareness
question,, consider only the conduct that you have found was a
In answering your question
producing cause of Williamson..
of damages to Liz Williamson
Answer “"Yes" No.”
Yes” or “"No."
A..
A Leslie Pogue
Answer::
Answer :ri::c;
B..
B Jeannette Pogue
Answer:: - - - - - - -
Answer
26
894
>
you answered
If you
If Yes” to Question
answered “"Yes" No.. 16
Question No then answer
16 then question.. Otherwise
following question
answer the following Otherwise,, do
do
answer the following
not answer
not question..
following question
v
27
27
895
iJ '•
.
. ..
NO.. 17
QUESTION NO 17
money,, if
of money
What sum of if any damages,, should be awarded to Liz Williamson
any,, in addition to actual damages
because Defendant’ s conduct was committed knowingly
Defendant's ?
knowingly?
cents,, if
Answer in dollars and cents any..
if any
$
Answer::
Answer ~/'S'bC>
28
896
*
If you
If you answered
answered “"Yes" 12,, then
Question 12
Yes” to Question answer the following
then answer question.. Otherwise
following question Otherwise,, do
do
not answer
not answer the following question..
following question .
QUESTION 18
QUESTION 18
By what date
By should Liz Williamson
date should diligence,, have
of reasonable diligence
Williamson,, in the exercise of
false,, misleading
discovered all the false of Defendants
misleading,, or deceptive acts or practices of Defendants??
below..
Answer with a date in the blank below
(l>} M P¥\ "'),.0
2^ 1II
*
7
Answer::
Answer
^
29
29
897
1
If you answered “"Yes" Nos. 12 or 13 then answer the following question
Yes” to Question Nos. question..
question..
Otherwise,, do not answer the following question
Otherwise
29
898
«
)
} • '
.
.
*
II
I
I
QUESTION NO
NO.. iJI
What is a reasonable fee for the necessary services of
of Liz Williamson’ s attorneys in this
Williamson's
case,, stated in dollars and cents
case cents??
Answer with an amount for each of following::
of the following
11.. of proceedings in the trial
For preparation through trial and the completion of
court.
court.
l ~7 q?2. ``
Answer le'
Answt!:
22.. For representation through appeal to the court of appeals..
of appeals
:j,
4 St'O
Answer:
Answer:
33..
^ •
~
-:; y
For representation at the petition for review stage in the Supreme Court of
of
Texas..
Texas
~"2
,``
--
Answer:
Answer: ,
44.. For representation at the merits briefing stage in the Supreme Court of
of
Texas..
Texas
Answer~ +1"' ~
Answer:*
55.. For representation through oral argument and the completion of
of
proceedings in the Supreme Court of Texas..
of Texas
Answer
Answe;l ``t!)
30
899
• ,orr
.
-; •
*
»'
* ", ~
*
juror. The first thing
room, you will select your own presiding juror.
After you retire to the jury room,
the presiding juror will do is to have this complete charge read aloud and then you will deliberate
asked..
upon your answers to the questions asked
It is the duty of juror—
of the presiding juror-
11.. to preside during your deliberations
deliberations;;
22.. to see that your deliberations are conducted in an orderly manner and in
accordance with the instructions in this charge
charge;;
33.. to write out and hand to the bailiff
bailiff any communications concerning the
case that you desire to have delivered to the judge;
judge;
44.. to vote on the questions
questions;;
55.. to write your answers to the questions in the spaces provided;
provided; and
66.. to certify to your verdict in the space provided for the presiding juror's
juror’ s
signature or to obtain the signatures ofof all the jurors who agree with the
verdict if unanimous.
if your verdict is less than unanimous.
You should not discuss the case with anyone
anyone,, not even with other members of the jury,
jury,
unless all of
of you are present and assembled in the jury roomroom.. Should anyone attempt to talk to
you about the case before the verdict is returned, courthouse,, at your home,
returned, whether at the courthouse home, or
elsewhere
elsewhere,, please inform the judge of fact..
of this fact '
When you have answered all the questions you are required to answer under the
instructions of
of the judge and your presiding juror has placed your answers in the spaces provided
and signed the verdict as presiding juror or obtained the signatures
signatures,, you will inform the bailiff
bailiff at
the door of
of the jury room that you have reached a verdict, w' -jeturn
verdict, and then you wili eturn into court
verdict..
with your verdict
i
^ ^7X
_
DGEPRESIMMG
31
900
Tab B
Pgs -5
Pgs-5
NO. .
NO 2012 56353
2012-56353 -
CRLPX
A,. WILLIAMSON
ELIZABETH A WrLLIAl\lS0N § IN THE DISTRICT COURT
C01JRT MPIJX
Plaintiff,,
Plaintiff § ATFEX
§
8
S 9
9AA
v..
V § 164TH JUDICIAL DISTRICT
1641'11
§
LESLIE R POGUE
LESLll<: R, .
POGUE,, JEANNETTE
,JEANNETTE L §
POG UE, CROSBY ASSETS
POGUE~ INC. D
ASSETS~, INC /B/A
DIB/A §
ALLIANCE PROPERTIES
PROPERTl)j:S AND 8
§
S
c
Q GEORG
GEORGIANAI AN A JONES A/ KJA GINA
,JONES .A/KIA §
Ic3t: zg
z~ JONES §
CD ~ .... Defendants
Defendants.. § COUNTY,, TEXAS
OF HARRIS COUNTY
H^
o
O«M o
<
",- COI-"
0:::: .!:::! "d" ". U')
D..l:; ,...``
.....ifi
!:!! 't ££
":;O:::N
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35 $....2 CIll,...
0 h* FINAL JUDGMENT
JUOGMEN"( .
~"':'~ou:io
J. © ow
-
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^55 - 5 ^ C!
.. ®
csJ J
C1I CZ...lN
N'-:::l wr;::
c 0 © uJs
On May 88,, 2017 Plaintiff,, Elizabeth Williamson
2017,, Plaintiff R. Pogue and
Defendants,, Leslie R.
Wiliiamson,, and Defendants
h=w
.P C1I-N
,...C
^
g a so..zr;::
..... ,!:!!u
.
0....
NIIIIII-
0«C "
£ = ~ >-~ Jeannette IL Pogue
~ ~.~
jjj j
Soxuimil
r;::U:I:WIllu..
> camt~ to be heard in pt~rson
Pogue,, came , of record in the above styled and
person and by attorneys of
cause,.
numbered cause
introduced,, Defendants
Before the jury was impaneled and before any evidence was introduced
Leslie R
R.. Pogue and Jeannette 1.
I. Pogue announced to this Court that they were dismissing their
counter-claims
counter-claims against . Plaintiff tor
Plaintiff I!Jr brt~ach
breach of contract
of contract,, statutory fraud
fraud,, negligent
misrepresentation
misrepresentation,, filing of record,, and declaratory judgment with prejudice to
of a fraudulent court record
the right to re-file or reinstate their claims
re-file claims..
Because a jury was previously demanded of twelve was duly impaneled and the
demanded,, a jury of
triaL. After the jury
case proceeded to trial evidemx~ from both
sworn,, it heard evidence
jury' was impaneled and sworn
parties, and the trial proceeded from May 88,, 2017 until May 11
parties, , 2017. The Court submitted this
11,2017.
case to the jury on May
J'vlay 11 , 2017 pursuant to the Court
11,2017 Charge,, including all jury questions and
’ s Charge
Court's
instructions by the Court
Comt., A verdict was rendered on May 11 :00pm .
, 2017 on or about 44:00pm.
11,2017
It appears to the Court from the verdict of
it of the jury and the law applicable thereto
thereto,, that the
following:: Defendants Leslie R. Pogue and Jeannette
jury determined the following Jemmette IL. Pogue are liable to
1
902
Plaintift~. Elizabeth A. Williamson for fraud
Plaintiff fraud,, negligent misrepresentation
fraud,, statutory fraud misrepresentation,, and
violations of t11t: Texas
of the Tt:xas Deceptive Trade Practices Act unconscionability.. The jury
Act,, including unconseionabiiity
returned a verdict awarding actual damages to Plaintiff /,\,. Williamson
Plaintiff Elizabeth A WHliarnson totaling
163,750.00 and attorney
$$163,750.00 ’ s fees totaling $$171,972.23,
attorney's 340,722 , 23,
of $$340,722.23,
171,972.23, for a total judgment of
including exemplar damages..
}' damages
exemplary jury’ s affirmative finding that Defendants
Based upon the jury's Detendants
violated the Texas Deceptive Trade Practices Act “"knowingly"
knowingly” the Court awards treble damages
in the amount of $327,500.00 ,
01'$327,500.00.
Plaintiff
Plaintiff orally requested judgment be entered on the verdict and the
t11t: Court granted the
request.
request
By virtue of
of a trial amendment pied for the Court make several
Plaintiff has additionally pled
arnendrnent,, Plaintiff
declarations as a matter of law: 11)) Defendants
of laws hen filed on 901
Defendants'’ secondary lien 901 Indian Shores Road
Road,,
Crosby,, Texas 77532
Crosby 77532,, contained within the Deed of
of Trust Security Agreement -Financing
Agreement~Financing
Statement,, 20100443760
Statement 20100443760,, filed in the Harris County Real Property Records on October 15 , 2010,
15,2010,
securing payment of note,, has been extinguished and released
of a purchase money note released;; and 2
2)) the
secondary !len
hen tiled
fj[ed on 901
901 Indian Shores Road 77532,, contained within the
Crosby,, Texas 77532
Road,, Crosby
of Trust Security Agreement
Deed of - Financing Statement
Agreement-Financing 20100443760,, filed in the Harris
Statement,, 20100443760
County Real Property Records on October 15 voided..
, 2010, is voided
15,2010,
The Court Plaintiff's request for a trial amendment and it is therefore
Court. granted Plaintiffs
,
ORDERED
ORDERED,, ADJUDGED Defendants'’ secondary lien filed on 901
ADJUDGED,, AND DECREED that Defendants 901 Indian
Shores Road Crosby,, Texas 77532
Road,, Crosby Agreement--
of Trust Security Agreement
77532,, contained within the Deed of
Financing Statement
Statement,, 20100443760
20100443760,, filed in the Harris County Real Property Records on
October 15 2010,, securing payment of
15,, 2010 of a purchase money note
note,, has been extinguished and
released
released;; and the secondary Hen
lien filed on 901 Crosby,, Texas 77532
Road,, Crosby
901 Indian Shores Road 77532,,
2
903
contained within the Deed of
of Trust Security Agreement -Financing Statement
Agreement~Financing Statement,, 20100443760
20100443760,,
filed in the Hams
Han-Is County Real Property Records on October 15 voided..
2010,, is voided
IS,, 2010
IT IS
IS,, FURTHER
FURTHER,, ORDERED
ORDERED,, ADJUDGED
ADJUDGED,, AND DECREED that Defendants
Defendants'’ claims
against Plaintiff
Plaintiff for breach of
of contract
contract,, statutory fraud rnisrepresentatl0n,, filing
fraud,, negligent misrepresentation flUng of
of a
fraudulent court record prejudice.
record,, and declaratory judgment are hereby dismissed with prejudice.
lT IS FURTHER ORDERED
IT ORDERED,, ADJUDGED AND DECREED that Plaintiff A..
Plaintiff:, Elizabeth A
~Williamson,, is entitled to judgment against Defendants Leslie R
Williamson K. Pogue and Jeannette IL. Pogue in
the amount of
of $496,250.00, exclusive of
$496,250.00, of attorneys
aiiorneys'’ fees interest.
lees and prejudgment interest
IT IS FURTHER ORDERED Plaintiff:; Elizabeth A
ORDERED,, ADJUDGED AND DECREED that Plaintiff A..
Williamson
Williamson,, is entitled to attorneys
attomeys'’ fees paid and incurred prior to
t.o this Judgrnent
judgment being rendered
rendered,,
in the amount of $171,972.23.
of$171,972.23.
IT IS FURTHER ORDERED
FF P!aintlff,, Elizabeth A.
ORDERED,, ADJUDGED AND DECREED that Plaintiff
Williamson
Williamson,, is entitled
ent.itled prejudgment interest on the damages awarded herein,, measured from
a\.varded herein
September 25 , 2012, at the rate of
25,2012, % per annum
of 5sty(; annum,, in the sum of
of $80,297 , 44.
$80,297,44,
IT IS FURTHER ORDERED
FF Plaintiff,, Elizabeth A.
ORDERED,, ADJUDGED AND DECREED Plaintiff
Williamson
Williamson,, is entitled
entWed to post
postjudgment
judgment interest on the total amount of
of the judgment and any
pr~judgment
prejudgment hereinabove,, at the rate of 5S~''O
interest awarded hereinabove % per annum from the dale this
judgm(.~nt
judgment paid.
is signed until paid.
IT IS FURTHER ORDERED
ORDERED,, ADJUDGED AND DECREED that in the event either
Defendant appeals this Judgment to the intermediate of appeals
intennediat.e court of Plaintiff:, Elizabeth A.
appeals,, Plaintiff
Williamson
Williamson,, is entitled to the sum of
of $3,500.00, as attorneys
33,500.00, fees..
attorney's fees
IT IS FURTHER ORDERED
ORDERED,, ADJUDGED AND DECREED that in the event either
Defendant
Def(.;ndant files a petition for
tor review of
of this Judgment
Judgment,, with the Texas Supreme Court,, Plaintiff
Suprel11€.: Court PlaintilT,,
3
3
904
Elizabeth A. Williamson
WilLimnson,, is entitled to the following
following:: ((a) of $
Sllm of
a) the sum 3,500.00 for representation
$3,500,00
at the petition for review b) the sum of
review;; ((b) 4,925.00 for representation at the merit
of $54,925,00 rnerit;; and ((c)
e)
325.00 for representation through oral argument and the completion of
$$325,00 of proceedings in the
Supreme Court of Texas,.
of Texas
IT IS FURTHER
FURTHER ORDERED
ORDERED,, ADJUDGED AND DECREED that costs of
. court,, totaling
of court
$$737.25
737.25 are hereby taxed against Defendants
Defendants..
IS,, FURTHER
IT IS ORDERED,, ADJUDGED
FURTHER,, ORDERED ADJUDGED,, AND DECREED that a Permanent
R,. Pogue and Jeannette I1..
Mandatory Injunction is hereby issued against Defendants Leslie R
Pogue,, and their agents
Pogue agents,, servants
servants,, representatives employees,, independent contractors
representatives,, employees contractors,, officers
officers,,
directors partners, successors and assigns
directors,, pminers, assigns,, who are permanently ENJOINED from and
ORDERED to refrain from foreclosing upon the secondary lien filed 901 Indian Shores Road
t1Ied on 901 Road,,
Crosby,, Texas 77532
Crosby 77532,, contained within the Deed of
of Trust Security Agreement-Financing
Agreement-Financing
Statement
Statement,, 20100443760
20100443760,, filed in the Harris County Real Property Records on October 15, 2010
15,201 0,,
released..
as that lien has been extinguished and released
Failure to comply with this Permanent Mandatory Injunction will be a violation of
of this
Order and contempt of Court. This Permanent
of Court Pennanent Mandatory Injunction is effective immediately
and permanently attaches to the Property
Propeliy and runs
nms with the lamL.
tht: land
IS,, FURTHER
IT IS ORDERED,, ADJUDGED
FURTHER,, ORDERED Plaintiff Elizabeth
ADJUDGED,, AND DECREED that Plaintiff
A,, Williamson
A \ViHiamson shall have all appropriate and necessary writs process, as many
writs,, execution and process, rnany
and as often as are necessary to accomplish the execution and enforcement of
of this judgment,
judgment,
including the enforcement of Injunction..
of the incorporated Permanent Mandatory Injunction
IS,, FURTHER
IT IS FURTlIER,, ORDERED
ORDERED,, ADJUDGED
ADJUDGED,, AND DECREED that the Notice of
of Lis
Pendens
Pendens,, dated July 22
22,, 2013
2013,, and filed
flIed in the Official of Real Property of
Oflicial Public Records of of Harris
4
905
County
County,, Texas
Texas,, under Harris
Hanis County Clerk 20130364005,, is hereby cancelled
’ s File Number 20130364005
Clerk's cancelled,,
declared null and void and removed from the property described in the Notic(: Pendens..
of Lis Pendens
Notice of
All
AU other relief
relief requested in this cause and 110t
not expressly granted herein is DENIED to the
isDENIFJ)
party' seeking the same
party same,, This judgment is final
final,, disposes of
of all claims and all parties
parties,, and is
appealable,.
appealable
SIGNED on this _ _ dav of _ _~_ _., 2017
day of 2017,.
Signed
Signed::
7/28/2017
7/28/2017
JUDGE PRESIDING
5
906