Priority One Title, LLC v. Loretta Isabel Andrado

Affirmed in Part, Reversed in Part, and Remanded; and Memorandum
Opinion filed February 28, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00379-CV
PRIORITY ONE TITLE, LLC, Appellant
V.
LORETTA ISABEL ANDRADO, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2014-56068
MEMORANDUM OPINION
To facilitate the sale of appellee Loretta Isabel Andrado’s real property to a
third-party buyer, she deposited funds with appellant Priority One Title, LLC
pursuant to an escrow agreement whereby Priority One would return the funds to
Andrado when the property was no longer subject to a specific mechanic and
materialman’s lien. Andrado obtained a judgment declaring the lien void, but
Priority One did not return Andrado’s deposit. So, Andrado sued Priority One and
asserted claims for breach of contract, breach of fiduciary duty, and money had and
received. She also sought attorney’s fees and exemplary damages. The trial court
granted Andrado a final summary judgment on all her claims, awarding
compensatory damages, exemplary damages, costs, and attorney’s fees.
Priority One challenges the trial court’s judgment in six issues, contending
that the court erred because (1) Andrado’s motion for summary judgment was
untimely under a docket control order; (2) the pleadings and evidence did not
support a breach of contract claim; (3) Andrado failed to prove her claim for
breach of fiduciary duty; (4) Andrado failed to prove her claim for exemplary
damages; (5) Andrado failed to prove her claim for money had and received; and
(6) Andrado failed to prove that she was entitled to attorney’s fees.
We overrule Priority One’s first, second, and sixth issues, sustain the fourth
issue, and do not address the third and fifth issues. We affirm the trial court’s
summary judgment on the contract claim and for attorney’s fees, but we reverse
the judgment regarding Andrado’s non-contractual claims, and we remand for
further proceedings.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
A plaintiff may, at any time after the defendant has appeared or answered,
move for a summary judgment in their favor upon all or any part of their claims.
See Tex. R. Civ. P. 166a(a). A trial court must grant a motion for summary
judgment if the evidence shows that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law on the issues expressly
set out in the motion. Draughon v. Johnson, 631 S.W.3d 81, 87 (Tex. 2021)
(citing Tex. R. Civ. P. 166a(c)). “A plaintiff moving for summary judgment must
conclusively establish all essential elements of its cause of action as a matter of
law.” Universal MRI & Diagnostics, Inc. v. Med. Lien Mgmt. Inc., 497 S.W.3d
2653, 658 (Tex. App.—Houston [14th Dist.] 2016, no pet.); see Draughon, 631
S.W.3d at 87–88. A defendant’s failure to file a response cannot supply by default
the proof necessary to establish the movant’s right to summary judgment.
Draughon, S.W.3d at 88.
We review a trial court’s summary judgment de novo. Exxon Mobil Corp. v.
Rincones, 520 S.W.3d 572, 579 (Tex. 2017). We take as true all evidence
favorable to the nonmovant and indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. Id. The evidence is conclusive only if
reasonable people could not differ in their conclusions. Universal MRI, 497
S.W.3d at 658 (citing City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)).
II. ISSUE 1: TIMELINESS OF SUMMARY JUDGMENT MOTION
In its first issue, Priority One contends that the trial court erred by “granting
the motion for summary judgment in violation of Tex. R. Civ. Proc. 191.1, as the
Appellee did not receive the agreement of the Appellant to file her motion nor did
Appellee obtain a court order for good cause amending the docket control order.”
Within this issue, Priority One also contends that the trial court’s action of granting
a motion for summary judgment “without proper notice of amendment to the
[docket control order] violates the Appellant’s right to due process.”
A. Background
In March 2018, the trial court signed a docket control order setting a
deadline in July 2018 for the hearing of summary judgment motions. The trial was
set to begin in September 2018. The court signed five orders resetting the trial.
The final one set the trial for May 2021. In each order, the court recited, “All
previous pre-trial deadlines remain in effect, unless changed by the court.”
3
In March 2021, Andrado filed a traditional motion for summary judgment on
each of her claims against Priority One. A few weeks later, Priority One filed its
special exceptions to the summary judgment, motion to strike, and motion for
continuance of submission of the motion for summary judgment. Priority One
argued that Andrado’s motion was untimely under the docket control order and
requested that Andrado file a motion for leave or motion to amend the docket
control order before Priority One would file a response to the motion for summary
judgment. Priority One did not file a response to the motion for summary
judgment.
The trial court granted the summary judgment without expressly denying
Priority One’s motion. Priority One file a motion for new trial, which the trial
court denied.
B. No Preservation
As a prerequisite to presenting a complaint on appeal for appellate review,
the record must show that the complaint was made to the trial court by a timely
request, objection, or motion that stated the grounds for the ruling sought with
sufficient specificity to make the trial court aware of the complaint unless the
specific grounds were apparent from the context. See Tex. R. App. P. 33.1(a). To
preserve error, a party’s argument on appeal must comport with its argument in the
trial court. Wolfhart v. Holloway, 172 S.W.3d 630, 639–40 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied). An objection is timely if it is asserted at the earliest
opportunity or interposed at a point in the proceedings when the trial court has an
opportunity to cure any alleged error. Yetiv v. Comm’n for Lawyer Discipline, No.
14-17-00666-CV, 2019 WL 1186822, at *3 (Tex. App.—Houston [14th Dist.]
Mar. 14, 2019, no pet.) (mem. op.); Gabel v. Gabel-Koehne, 649 S.W.3d 590, 596
(Tex. App.—Houston [1st Dist.] 2022, no pet.). A complaint is not timely when
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made for first time in a motion for new trial if the complaint could have been urged
earlier. Yetiv, 2019 WL 1186822, at *3; accord In re A.E., No. 02-18-00124-CV,
2018 WL 3763928, at *3 n.2 (Tex. App.—Fort Worth Aug. 9, 2018, no pet.)
(mem. op.); Farokhnia v. Farokhnia, No. 05-09-01541-CV, 2011 WL 1467918, at
*3 (Tex. App.—Dallas Apr. 19, 2011, no pet.) (mem. op.); Matbon, Inc. v. Gries,
288 S.W.3d 471, 490 (Tex. App.—Eastland 2009, no pet.); Hoxie Implement Co.,
v. Baker, 65 S.W.3d 140, 145 (Tex. App.—Amarillo 2001, pet. denied).
Although Priority One raised its complaint about Rule 191.1 in its motion
for new trial, Priority One did not mention Rule 191.1, the absence of an
agreement, or any requirement that there be good cause to amend the docket
control order when Priority One filed its motion for special exceptions, to strike,
and for continuance. Instead, Priority One asked only that Andrado obtain leave to
file the motion for summary judgment or that the trial court amend the docket
control order. Thus, any issue regarding compliance with Rule 191.1, the lack of
an agreement among the parties, or the necessity for good cause are not preserved
for appeal.
C. No Error
Construing Priority One’s issue on appeal liberally to include the complaints
made in its prejudgment motion, see Tex. R. App. P. 38.1(f), 38.9, we next
consider whether the trial court erred by granting the motion for summary
judgment without first requiring Andrado to file a motion for leave or amending
the docket control order.
Trial courts have inherent power to control their dockets and to change or
modify their docket control orders. Guerrero v. Mem’l Turkey Creek, Ltd., No. 09-
00237-CV, 2011 WL 3820841, at *3–4 (Tex. App.—Houston [1st Dist.] Aug. 25,
2011, no pet.) (mem. op.). A trial court does not abuse its discretion by allowing a
5
summary judgment motion to be filed after the deadline set in the court’s docket
control order. See Choucroun v. Sol L. Wisenberg Ins. Agency–Life & Health Div.,
Inc., No. 01-03-00637-CV, 2004 WL 2823147, at *1–2 (Tex. App.—Houston [1st
Dist.] Dec. 9, 2004, no pet.) (mem. op.). By ruling on Andrado’s motion for
summary judgment, the trial court implicitly modified the docket control order.
See Trevino v. Trevino, 64 S.W.3d 166, 170 (Tex. App.—San Antonio 2001, no
pet.).
Thus, the trial court did not abuse its discretion by not requiring Andrado to
file a motion for leave or by not signing an amended docket control order before
ruling on the motion for summary judgment. Priority One’s reliance on Sprague v.
Sprague, 363 S.W.3d 788 (Tex. App.—Houston [14th Dist.] 2012, pet. denied), is
unconvincing. In Sprague, this court held that a trial court did not abuse its
discretion by striking a late expert report. See id. at 800. Priority One cites no
case holding that a trial court abuses its discretion by allowing a motion to be filed
after a deadline set in a docket control order.
D. Briefing Waiver of Due Process Complaint
Priority One contends that allowing the trial court to amend its docket
control order “without proper notice” to Priority One violates its right to due
process. Priority One cites no authority for this contention and does not make a
clear and concise argument about how its right to due process was violated. See
Tex. R. App. P. 38.1(i). Accordingly, any due process complaint is waived. See
Gunn v. McCoy, 554 S.W.3d 645, 677 (Tex. 2018) (“Every issue presented by a
party must be supported by argument and authorities in the party’s brief on the
merits, or it is waived.”); Canton-Carter v. Baylor Coll. Of Med., 271 S.W.3d 928,
931 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Failure to cite to legal
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authority or to provide substantive analysis of the legal issues presented results in
waiver of the complaint.”).
E. No Harm
Finally, even if we assume the trial court should have required Andrado to
file a motion for leave or should have expressly signed an amended docket control
order, Priority One has not shown how any error probably caused the rendition of
an improper judgment or prevented Priority One from presenting its case on
appeal, as required for reversal. See Tex. R. App. 44.1(a)(1). Priority One did not
attempt to file a late response to the motion for summary judgment. See Carpenter
v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002) (noting that a
party may file a motion for continuance or motion for leave to file a late response
to a motion for summary judgment).1 Nor did Priority One attach any evidence to
its motion for new trial to demonstrate a genuine issue of material fact regarding
Andrado’s claims. Cf. Prestige Ford Co. v. Gilmore, 56 S.W.3d 73, 77 (Tex.
App.—Houston [14th Dist.] 2001, pet. denied) (noting, under the Craddock
standard sometimes applied when a nonmovant fails to respond to a motion for
summary judgment, the nonmovant’s motion for new trial must contain proof
sufficient to raise a material question of fact). Without Priority One demonstrating
a genuine issue of material fact—either in a late-filed response to the motion for
summary judgment or in its motion for new trial—any procedural irregularity in
this case could not have caused harm requiring reversal of the judgment.
For these reasons, Priority One’s first issue is overruled.
1
Priority One does not complain on appeal about the trial court’s implicit denial of its
unverified motion for continuance.
7
III. ISSUE 2: SUMMARY JUDGMENT ON BREACH OF CONTRACT
In its second issue, Priority One contends that Andrado’s pleadings and
evidence do not show that she complied with all provisions of the escrow
agreement to entitle her to return of her deposit. Priority One contends further that
Andrado’s evidence shows a fact issue, that Andrado “is liable to [Priority One] for
reasonable attorneys fees and costs arising from the present lawsuit,” and that
Priority One’s motion for new trial should have been granted because Priority One
satisfied the Craddock test.
A. Multifarious Issue
Priority One’s second issue is multifarious because it embraces more than
one specific ground. See Burns v. White, No. 14-20-00646-CV, 2022 WL
2311621, at *3 (Tex. App.—Houston [14th Dist.] June 28, 2022, no pet.) (mem.
op.). Although we may disregard and refuse to consider it, we will address it to the
extent we can determine with reasonable certainty the alleged error about which
Priority One complains. Id.; Garden Ridge, L.P. v. Clear Lake Ctr., L.P., 504
S.W.3d 428, 444 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
B. Standards for Contract Interpretation
The construction of a contract presents a question of law that we review de
novo. Sundown Energy LP v. HJSA No. 3, L.P., 622 S.W.3d 884, 888 (Tex. 2021).
Our primary concern is to give effect to the written expression of the parties’
intent. Id. We avoid construing contracts in a way that renders contract language
meaningless. Id.8
C. Sections 4 and 6
Priority One contends that Andrado did not prove her right to return of the
deposit because Andrado did not show that she complied with a “six month
deadline required by section 4” of the escrow agreement.
1. Background
In her motion for summary judgment, Andrado argued that she fulfilled all
her contractual obligations because the lien was discharged and Priority One
breached the contract by failing to return her deposit. The relevant sections of the
escrow agreement provide:
4. Escrow Agent is to hold the funds in escrow in anticipation
of a satisfactory release from Secured Party, or, in the alternative,
receipt of certified copy of order from a court of competent
jurisdiction declaring the Lien to invalid and unenforceable.
5. If Depositing Party completes the contingencies referred to
in paragraph 4 of this Agreement during the time specified in this
Agreement, Escrow Agent is instructed to disburse all of the funds
directly to Depositing Party.
6. The contingencies required of Depositing Party must be
fully performed within six (6) months from the Date of this
Agreement. If all contingencies are not fully performed within that
time, Escrow Agent will secure a release from Secured Party, and by
so doing Escrow Agent shall disburse all of the funds to Secured Party
necessary to obtain such release. In addition, Escrow Agent shall be
able to deduct from the Escrow Funds all reasonable and necessary
costs incurred in securing said release, including without limitation,
attorneys’ fees and court costs. If the Escrow Funds deposited with
the Escrow Agent are insufficient to obtain release or discharge of the
Lien, including attorneys fees, costs and all other expenses, the
Depositing Party, upon demand by the Escrow Agent, shall advance to
the Escrow Agent all such funds, as, in the sole discretion of the
Escrow Agent, may be necessary to obtain such release or discharge.
Further, after the expiration of the six months, the depositing party
hereby authorizes and empowers the escrow agent in advance to pay
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any sums necessary to obtain a release, discharge, or satisfaction of
the Lien. Further, in the event that the escrow agent is required to
retain counsel to discharge the Lien, Escrow Agent shall have the
right to select and approve any and all counsel. When, in the sole
opinion of the Escrow Agent, the title to the property is no longer
subject to the Lien, the Escrow Agent agrees to return to the
Depositing Party the remaining portion of the Escrow Funds, if
any, deposited with the escrow agent, except for the portion which
may have been used as provided herein, but, in doing so, it is without
any express or implied release of the obligations of Depositing Party.
(emphasis added)
The date of the escrow agreement is March 26, 2014. Andrado testified in
her affidavit that she obtained a summary judgment against the secured party on
April 28, 2016. She attached as evidence certified copies of the partial summary
judgment order and the final judgment declaring the lien void.
2. Analysis
Priority One appears to contend that Andrado had no right to return of her
deposit after the expiration of the six-month term mentioned in Section 6.
However, Section 6 makes clear that Andrado’s right to return of the funds does
not expire after six months. The six-month deadline merely allows Priority One to
take matters into its own hands to obtain a release, discharge, or satisfaction of the
lien. Priority One ignores the language emphasized above: that when the title to
the property is no longer subject to the lien, Priority One “agrees to return to the
Depositing Party the remaining portion of the Escrow Funds.”
Andrado adduced conclusive evidence that the parties entered into a valid
contract, the property is no longer subject to the lien, Priority One had a duty to
return Andrado’s deposit, Priority One failed to return the deposit, and Andrado
sustained damages in the amount of the deposit. See generally Pathfinder Oil &
Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019) (elements of
10
breach of contract). Reading Sections 4 through 6 of the escrow agreement in
harmony, Andrado’s evidence conclusively established Priority One’s breach of
the agreement.
D. Sections 7 and 12
Priority One contends that Andrado did not prove her right to return of the
deposit because she did not prove that she complied with Section 7 of the escrow
agreement to provide a “letter of instruction” to Priority One in the formal method
of notice required by Section 12.
1. Background
Section 7 of the escrow agreement provides:
7. Escrow Agent agrees to hold the funds in accordance with
the provisions of this Agreement. Furthermore, in determining
whether or not the contingencies required of Depositing Party have
been timely performed in accordance with the provisions of this
Agreement, Depositing Party covenants and agrees with Escrow
Agent to deliver a letter of instruction to Escrow Agent directing the
disbursement of the funds to the party entitled thereto. If Depositing
Party fails to deliver such letter of instruction and the items required
in paragraph 4, Escrow Agent shall be under no obligation to disburse
any of the funds.
Section 12 of the escrow agreement requires that notices be in writing and
describes the different methods of service available for delivering notice.
In her live petition, Andrado pleaded that she “fulfilled all of her contractual
obligations” required for Priority One to release the deposit, so Priority One’s
failure to do so was a material breach of the escrow agreement.
In its live answer, Priority One alleged that Andrado had “not performed
those actions necessary under the agreement to be entitled to the monies being held
11
by Defendant,” but Priority One did not identify any specific actions that Andrado
failed to perform.
2. Analysis
We understand Priority One’s argument to be that Andrado failed to prove
that she complied with the “letter of instruction” requirement of Section 7 by one
of the methods for notice detailed by Section 12, and thus, Andrado failed to prove
her performance of a condition precedent.
Assuming without deciding that Section 7 created a condition precedent to
Priority One’s duty to return the deposit to Andrado, whether Andrado was
required to prove for purposes of summary judgment the performance of the
condition depends on the pleadings. Rule 54 of the Texas Rules of Civil Procedure
sets the standard:
In pleading the performance or occurrence of conditions precedent, it
shall be sufficient to aver generally that all conditions precedent have
been performed or have occurred. When such performances or
occurrences have been so plead, the party so pleading same shall be
required to prove only such of them as are specifically denied by the
opposite party.
Tex. R. Civ. P. 54; see also Cmty. Bank & Trust, S.S.B. v. Fleck, 107 S.W.3d 541,
542 (Tex. 2002).
The allegation in Andrado’s petition that she “fulfilled all of her contractual
obligations” was sufficient to plead the performance of all conditions precedent.
See Larcon Petrol., Inc. v. Autotronic Sys., Inc., 576 S.W.2d 873, 877 (Tex.
App.—Houston [14th Dist.] 1979, no writ). Priority One failed to specifically
deny the performance of a condition precedent regarding Section 7 of the escrow
agreement or a letter of instruction. Thus, Andrado was not required to prove
12
performance of the condition to obtain a summary judgment. See Cmty. Bank, 107
S.W.3d at 542.
E. Immaterial Fact Issue
Priority One appears to contend that there is a genuine issue of material fact
because Andrado’s evidence is “contradictory.” Priority One points to Andrado’s
affidavit testimony that Priority One “demanded that I sign the agreement,” but the
escrow agreement states that Andrado “has requested to deposit the amount of
$21,477.27 with Escrow Agent.”
“A motion for summary judgment cannot be defeated by the existence of an
immaterial fact issue.” Harris Cnty. v. Ochoa, 881 S.W.2d 884, 889 (Tex. App.—
Houston [14th Dist.] 1994, writ denied). A fact is “material” if it affects the
ultimate outcome of the lawsuit under the governing law. Horie v. Law offices of
Art Dula, 560 S.W.3d 425, 434 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
Whether Priority One “demanded” the deposit or Andrado “requested” the deposit
is not a material fact issue for purposes of Andrado’s claim that Priority One
breached the escrow agreement by failing to return her deposit after the lien was
declared void.
F. Liability of Andrado
Priority One contends that Andrado “is liable to Appellant for reasonable
attorneys fees and costs arising from the present lawsuit wherein Appellee
prematurely joined Appellant.” In the prayer section of its brief, Priority One asks
this court to remand “for a determination of the Appellant’s damages that accrued
under the Agreement.”
Priority One pleaded its entitlement to contractual attorney’s fees and costs,
but Priority One did not move for summary judgment, and this appeal is only from
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the granting of Andrado’s motion for summary judgment. Thus, we decline to
reach this issue.
G. Craddock
Finally, Priority One contends that its failure to file a response to the motion
for summary judgment was the result of an accident or mistake rather than
intentional or the result of conscious indifference, citing Craddock v. Sunshine Bus
Lines, 133 S.W.2d 124, 126 (Tex. 1939).
“Craddock does not apply to a motion for new trial filed after judgment has
been granted on a summary-judgment motion to which the nonmovant failed to
timely respond when the movant had an opportunity to seek a continuance or
obtain permission to file a late response.” Carpenter v. Cimarron Hydrocarbons
Corp., 98 S.W.3d 682, 686 (Tex. 2002). Because Priority One had an opportunity
to seek a continuance or leave to file a late response, this court would err by
applying Craddock. Id.For these reasons, Priority One’s second issue is overruled.
IV. ISSUE 6: ENTITLEMENT TO ATTORNEY’S FEES
In its sixth issue, Priority One contends that Andrado was not entitled to
attorney’s fees because she failed to “provide evidence that she has fully complied
with the terms of the subject escrow agreement, as discussed hereinabove.”
Priority One does not dispute that the escrow agreement allows a prevailing party
to recover fees, nor does Priority One challenge the evidence supporting the
amount of fees.
Because we have overruled Priority One’s first and second issues regarding
Andrado’s entitlement to summary judgment on her claim for breach of contract,
14
and we affirm the judgment in that regard, we also overrule Priority One’s sixth
issue challenging the award of attorney’s fees.
V. ISSUE 4: EXEMPLARY DAMAGES
In its fourth issue, Priority One contends that Andrado failed to offer
evidence to conclusively prove Priority One’s malice or intent to defraud as
required to recover exemplary damages. We agree with Priority One.
A. Background
In the part of her motion for summary judgment on the claims for breach of
fiduciary duty and money had and received, Andrado also requested exemplary
damages under Section 41.003(a) of the Civil Practice & Remedies Code. See
Tex. Civ. Prac. & Rem. Code § 41.003(a). She alleged that Priority One’s “malice
toward Plaintiff is evidenced by its continuous refusal to release the funds despite
the fact that almost three (3) years have elapsed since the Court entered judgment
declaring the lien void. Priority One is defrauding Plaintiff of the monies
rightfully owed to her by refusing to release the funds.” Andrado claimed,
“Priority One’s failure to release the funds after three years is inexcusable and is
direct evidence of their malice toward Plaintiff and intent to defraud, which entitles
her to exemplary damages against Priority One.” In her affidavit, Andrado
testified, “Although I have brought a lawsuit and made a claim for release of the
funds held by Priority One, to date, the funds have not been received by me.”
The trial court recited in its final summary judgment: “The Court
specifically finds that such conduct was done with malice and the intent to defraud
Plaintiff, which entitles her to exemplary damages.” The trial court awarded
$10,000 in exemplary damages. In its motion for new trial, Priority One argued
among other things that Andrado’s evidence was insufficient to prove exemplary
15
damages because the evidence did not conclusively prove that (1) Priority One
acted with fraud, malice, or gross negligence, or (2) Priority One had a specific
intent to cause an injury to Andrado that was independent and qualitatively
different from the harms associated with the underlying claims.
B. Legal Principles for Exemplary Damages
Under Section 41.003, “exemplary damages may be awarded only if the
claimant proves by clear and convincing evidence that the harm with respect to
which the claimant seeks recovery of exemplary damages results from: (1) fraud;
malice; or (3) gross negligence.” Tex. Civ. Prac. & Rem. Code § 41.003(a).
Generally, “the determination of whether to award exemplary damages and the
amount of exemplary damages to be awarded is within the discretion of the trier of
fact.” Id. § 41.010(b).
Exemplary damages are a type of unliquidated damages. See Paradigm Oil,
Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 184 (Tex. 2012); Herbert v.
Greater Gulf Coast Enters., Inc., 915 S.W.2d 866, 872 (Tex. App.—Houston [1st
Dist.] 1995, no writ).2 Rarely, if ever, should unliquidated damages be awarded in
a summary judgment. See, e.g., Okorafor, 2010 WL 1343125, at *3 (“By contrast,
unliquidated damages . . . should not be awarded in summary-judgment
proceedings.”); Kennedy v. Aattaboy Termite & Pest Control, Inc., No. 09-19-
00019-CV, 2021 WL 1567225, at *3 (Tex. App.—Beaumont Apr. 22, 2021, no
pet.) (mem. op.) (“And since unliquidated damages are not susceptible to
conclusive evidence that shows how much the award should be, parties who move
2
Damages are liquidated if the amount may be accurately calculated from the allegations
in the petition and a written instrument. Okorafor v. Lewis, No. 14-08-00130-CV, 2010 WL
1343125, at *3 (Tex. App.—Houston [14th Dist.] Apr. 6, 2010, no pet.) (mem. op.). Damages
that do not fit within that category are unliquidated. Id.16
for a traditional summary judgment on an unliquidated damages claim are
generally not entitled to prevail.”).
Although exemplary damages may not be awarded for a breach of contract,
they may be awarded for torts such as breach of fiduciary duty. See Brewer &
Pritchard, P.C. v. AMKO Res. Int’l, LLC, No. 14-13-00113-CV, 2014 WL
3512836, at *6–8 (Tex. App.—Houston [14th Dist.] July 15, 2014, no pet.);
Murphy v. Canion, 797 S.W.2d 944, 949 (Tex. App.—Houston [14th Dist.] 1990,
no writ). And exemplary damages may be awarded on an equitable claim for
money had and received. Compare Nabours v. Longview Sav. & Loan Ass’n, 700
S.W.2d 901, 905 (Tex. 1985) (exemplary damages are recoverable for equitable
claims), with Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d
296, 302 n.4 (Tex. 2015) (“A claim for ‘money had and received’ is equitable in
nature.”); see also Briggs v. Rodriguez, 236 S.W.2d 510, 514–16 (Tex. App.—San
Antonio 1951, writ ref’d n.r.e.).
To recover exemplary damages based on a breach of fiduciary duty, the
plaintiff must prove an “intentional” breach. See Murphy, 797 S.W.2d at 949; see
also Bombadier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d
213, 231 (Tex. 2019). An “‘intentional’ breach means that the party holding the
fiduciary duty ‘intended to gain an additional unwarranted benefit.’” Bombadier
Aerospace, 572 S.W.3d at 231 (quoting Brosseau v. Ranzau, 81 S.W.3d 381, 396
(Tex. App.—Beaumont 2002, pet. denied)). For example, a breach is intentional if
the fiduciary engaged in self-dealing. Murphy, 797 S.W.2d at 949.
To recover exemplary damages based on malice, the plaintiff must prove the
defendant’s outrageous, malicious, or otherwise reprehensible conduct. Horizon
Health Corp. v. Acadia Healthcare Co., 520 S.W.3d 848, 867 (Tex. 2017).
“Malice” means the “specific intent by the defendant to cause substantial injury or
17
harm to the claimant.” Tex. Civ. Prac. & Rem. Code § 41.001(7). The plaintiff
must prove that the defendant intended for the plaintiff “to suffer substantial injury
that was ‘independent and qualitatively different’ from the compensable harms
associated with the underlying causes of action.” Horizon Health, 520 S.W.3d at
867 (quoting Safeshred, Inc. v. Martinez, 365 S.W.3d 655, 662 (Tex. 2012)). For
exemplary damages, a court cannot rely on evidence of the tort itself, with little
more, to support a jury’s finding of malice. See id.C. Analysis
The evidence Andrado supplied to support her request for exemplary
damages includes only (1) the escrow agreement; (2) the judgments declaring the
lien void; and (3) her testimony stating that she made a claim for the deposit but
has not received it. Even if this evidence shows a breach of fiduciary duty, it does
not conclusively establish an “intentional” breach. She did not adduce conclusive
evidence that Priority One intended to gain an unwarranted benefit for itself or
engaged in any self-dealing with her deposit. Compare Hawthorne v. Guenther,
917 S.W.2d 924, 936–37 (Tex. App.—Beaumont 1996, writ denied) (sufficient
evidence of intentional breach of fiduciary duty based on evidence that a partner
spent partnership proceeds for herself and took loans from the partnership instead
of distributing proceeds to another partner), with In re Estate of Preston, 346
S.W.3d 137, 170–71 & n.32 (Tex. App.—Fort Worth 2011, no pet.) (insufficient
evidence of intentional breach of fiduciary duty when administrator of estate put
their name on title to real property belonging solely to the heir because there was
no evidence the administrator did so “with the intent to gain some additional
benefit”). Andrado’s evidence does not show that Priority One intended to
permanently appropriate the deposit for itself, rather than declined Andrado’s
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request for return of the deposit for some other reason. Indeed, there is no
evidence of Priority One’s intentions or the reason it did not return the deposit.
Similarly, Andrado’s evidence does not establish conclusively that Priority
One acted with malice. Andrado has not shown conclusively that Priority One
specifically intended for her to suffer a substantial injury that was independent and
qualitatively different from the compensable harm associated with her claims for
breach of fiduciary duty and money had and received, i.e., failing to return the
deposit. Compare Horizon Health, 520 S.W.3d at 868–69 (sufficient evidence of
malice regarding theft of trade secrets when employee said he intended to hurt his
company early and often and “gut punch” the company while executing a scheme
to form a business that would directly compete with it), with Safeshred, 365
S.W.3d at 665–66 (insufficient evidence of malice or gross negligence for Sabine
Pilot wrongful termination claim when there was no evidence that the employer
ignored an extreme risk of some additional harm, such as interfering with future
employment, harassment, or terminating the employee while knowing it was
unlawful to do so).
Priority One’s fourth issue is sustained.
VI. REMEDY AND REMAINING ISSUES
This court cannot reverse and remand for a new trial solely on unliquidated
damages if liability is contested. See Tex. R. App. P. 44.1(b). This rule applies
when we reverse a trial court’s award of damages on summary judgment. See
Clear Lake Ctr., L.P. v. Garden Ridge, L.P., 416 S.W.3d 527, 545 (Tex. App.—
Houston [14th Dist.] 2013, no pet.). And, the Supreme Court of Texas has held
that the same jury that assesses punitive damages should base its decision on the
evidence from the liability phase, as well. See Soon Phat, L.P. v. Alvarado, 396
S.W.3d 78, 95 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (citing Transp.
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Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994)). “It would be impossible to
give effect to this language and remand only for a new trial regarding punitive
damages.” Id. (quoting Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex. App.—
Houston [14th Dist.] 2011, no pet.)); see Williams v. LifeCare Hosps. of N. Tex.,
L.P., 207 S.W.3d 828, 834 (Tex. App.—Fort Worth 2006, no pet.) (“We conclude
that the issues of malice and exemplary damages, as now required to be
determined, are not ‘separable’ from those of the remainder of the case [and]
appellate rule 44.1(b) would require that we also remand for a new trial on
negligence and compensatory damages . . . .”); see also Prati v. New Prime, Inc.,
949 S.W.2d 552, 557–58 (Tex. App.—Amarillo 1997, pet. denied).
Priority One filed a general denial, so liability was contested for purposes of
Rule 44.1. See Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001). We must
apply Rule 44.1 even if the appellant does not present a discrete challenge to
liability on appeal. Id. Accordingly, we reverse the summary judgment on the
claims for which Andrado sought exemplary damages: breach of fiduciary duty
and money had and received. We decline to address Priority One’s third and fifth
issues challenging the summary judgment on those claims because the issues are
unnecessary to the disposition of the appeal. See Tex. R. App. P. 47.1.
VII. CONCLUSION
Having overruled Priority One’s first, second, and sixth issues, we affirm the
trial court’s summary judgment in favor of Andrado on her claim for breach of
contract and recovery of attorney’s fees. Having sustained Priority One’s fourth
issue, we reverse the trial court’s summary judgment in favor of Andrado on her
claims for breach of fiduciary duty and money had and received and the award of
exemplary damages. We remand for further proceedings.
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/s/ Ken Wise
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Jewell.
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