NUMBER 13-02-657-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROGER GERDES, JR. AND
CAROLYN GERDES, Appellants,
v.
JOHN KENNAMER AND
MORA KENNAMER, Appellees.
On appeal from the 23rd District Court of Matagorda County, Texas.
DISSENTING OPINION
Before Justices Hinojosa, Yañez, and Castillo
Dissenting Opinion by Justice Yañez
I disagree with the majority’s conclusion that appellants waived their second and fourth issues, in which they challenge, respectively, the legal and factual sufficiency of the evidence supporting the jury’s findings that: (1) breach of the relationship of trust and confidence between Kennamer and Roger Gerdes (“Gerdes”) caused Kennamer’s damages (issue two); and (2) Gerdes committed fraud against Kennamer (first part of issue four). I would hold that: (1) appellants preserved their legal and factual sufficiency challenges to these issues; (2) the evidence is legally and factually insufficient to support the jury’s award of $1,000,000.00 in damages because Kennamer failed to establish ownership of the property or assets upon which the award was based; (3) the evidence is legally and factually insufficient to support the jury’s finding that Gerdes committed fraud against Kennamer; and (4) the evidence is legally and factually insufficient to support the jury’s award of $1,000,000.00 in damages for conversion because Kennamer failed to establish ownership of the property or assets upon which the award was based. Accordingly, I would reverse the trial court’s judgment and render judgment that appellees take nothing.
Designation of Opinion
Texas Rule of Appellate Procedure 47.4 provides as follows:
If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court’s decision and the basic reasons for it. An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation. An opinion must be designated a memorandum opinion unless it does any of the following:
(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;
(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
(c) criticizes existing law; or
(d) resolves an apparent conflict of authority.
Tex. R. App. P. 47.4.
Justice Castillo has recommended that the majority opinion be designated a “memorandum opinion.” I disagree that the majority opinion should be designated a “memorandum opinion” because the issues in this case are not settled. See id. Further, as author of this dissenting opinion, I oppose the designation of the majority opinion as a “memorandum opinion.” See id. Accordingly, the majority opinion must be designated as an “opinion.” See id.
Preservation of Error
The majority holds that appellants waived their second issue, in which they challenge the legal and factual sufficiency of the evidence supporting the jury’s finding of damages caused by Kennamer’s breach of his informal fiduciary relationship with Gerdes. In their motion for partial judgment notwithstanding the verdict, appellants asserted that “there was no/and or insufficient evidence of fraud, conversion, and/or breach of fiduciary duty.” Similarly, in their motion for new trial, appellants complained that “[t]here was no and/or insufficient evidence of fraud and/or breach of fiduciary duty.” At trial, appellants complained that “there is insufficient evidence of any fair market value.” In both their motion for partial judgment notwithstanding the verdict and motion for new trial, appellants complained that “[a]s [Kennamer], as a matter of law, never owned the property involved herein as a matter of Mexican law, there was no damage due to any alleged breach of Movant Roger Gerdes, Jr.’s fiduciary damage [sic], and therefore Movants are entitled to a take-nothing judgment thereon.” The majority holds that appellants’ complaints were “not specific enough” to preserve their challenges to the evidence supporting the jury’s findings that Gerdes breached his fiduciary duty to Kennamer, causing Kennamer to suffer $1,000,000.00 in damages. I disagree.
“The purpose of a motion for new trial is to provide an opportunity for the trial court to cure any errors by granting a new trial.” D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.–Dallas 1993, no writ). “Therefore, the allegations in a motion for new trial must be sufficiently specific to enable the trial court to clearly understand what is being alleged as error.” Id. I would hold that appellants’ complaints were sufficiently specific to enable the trial court to understand that appellants were challenging the sufficiency of the evidence supporting Gerdes’s breach of his fiduciary duty and the sufficiency of the evidence supporting Kennamer’s damages because Kennamer failed to prove that he owned the property on which the damages were based.
In the first part of issue four, appellants challenge the legal and factual sufficiency of the evidence supporting the jury’s finding that Gerdes committed fraud against Kennamer. The majority holds appellants waived their challenge to the sufficiency of the evidence supporting the finding of fraud. As noted above, appellants complained in both their motion for partial judgment notwithstanding the verdict and their motion for new trial that “there was no/and or insufficient evidence of fraud.” I would hold that appellants sufficiently preserved their challenge to the sufficiency of the evidence supporting the jury’s finding of fraud.
Damages
In their second issue, appellants challenge the legal and factual sufficiency of the evidence supporting the jury’s finding of damages caused by Gerdes’s breach of his fiduciary duty to Kennamer.
In assessing Kennamer’s damages resulting from Gerdes’s breach of his fiduciary duty, the jury was instructed to consider the fair market value of the assets taken from Kennamer by Gerdes. Thus, Kennamer was required to establish: (1) ownership of assets that Gerdes took from him; and (2) the fair market value of such assets.
When we review a "no evidence" or legal sufficiency of the evidence issue, we must consider all of the record evidence in a light most favorable to the party in whose favor the verdict has been rendered, and indulge in that party's favor every reasonable inference deducible from the evidence. Formosa Plastics v. Presidio Eng'rs, 960 S.W.2d 41, 48 (Tex. 1998); Adams v. H & H Meat Prod., Inc., 41 S.W.3d 762, 770 (Tex. App.–Corpus Christi 2001, no pet.). When both legal and factual sufficiency issues are raised, we must first review the legal sufficiency to determine if there is any evidence of probative value to support the judge's findings. Adams, 41 S.W.3d at 770 (citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam)). The findings of fact must be upheld if there is more than a scintilla of evidence in support thereof. Id. There is more than a scintilla when the evidence creates more than a mere surmise or suspicion of its existence. Id.
If the findings are supported by legally sufficient evidence, we must then review the factual sufficiency of the evidence. Id. When we review an "insufficient evidence" or factual sufficiency of the evidence issue, we consider, weigh and examine all of the evidence which supports or undermines the finding. Id. We set aside the verdict only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). Because the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not substitute our judgment for that of the fact finder's conclusions. Id.
Kennamer’s Testimony
Kennamer testified that he paid $543,000 to purchase the hunting lodge operation in Mexico, including the assets, name, and goodwill of the company. He and his wife were the sole owners of the Texas corporation set up to run the business; Gerdes was the owner of the Mexican corporation set up to run the business. Kennamer later agreed to purchase the land surrounding the lodge (approximately 8,000 acres) from the Montemayor family. He made a down payment of $250,000.00. Because title to the property was restricted to Mexican citizens, the land was divided into four parcels as follows: one parcel (with the lodge) was placed in the name of Gerdes’s son, Roger Gerdes III (“Rusty”); a second parcel was placed in the name of Cesar de la Garza, a Mexican attorney who represented Kennamer and Gerdes in the transaction; the third and fourth parcels were in the names of Maria Avalos, Gerdes’s maid, and her husband, Cesar Avalos. Gerdes provided Kennamer with powers of attorney executed by each of the title holders. In 1993, Rusty revoked the power of attorney in Kennamer’s favor and later executed a second power of attorney in favor of his father. Mr. Montemayor filed a criminal suit against Kennamer, Gerdes, and the other title holders.
Sometime after Montemayor filed the lawsuit, Kennamer stopped making payments on the property. Kennamer concedes he does not own the two Avalos parcels because those parcels are encumbered by debt. Kennamer claims ownership of the other two parcels (in the names of Rusty and de la Garza) “free and clear.” Kennamer’s damages are based on “the improvements and the land and the business and the assets of the business that are free and clear and unencumbered;” the unencumbered property consists of approximately 900 acres. Gage, a company that expressed interest in purchasing the lodge, offered a million and a half dollars for the lodge and the twenty acres it sits on. Kennamer valued the remaining 880 acres at $1500 per acre. He estimated the value of the lodge business (apart from the buildings and land) at $3 million, based on a formula of ten times the annual gross income of the business, which he estimated at $300,000.00. Kennamer requested damages of $2.7 million for the lodge, improvements, and land; he requested an additional $2 million for the “goodwill” of the business.
On cross-examination, Kennamer testified that after he filed his lawsuit, he learned that under Mexican law, the person whose name appears on a deed is the actual owner. Kennamer admitted he received a memorandum from Pat Kelly, an attorney who traveled to Mexico to investigate the issue of who held title to the property. The memorandum stated that the record owners of the property held title under Mexican law. Kennamer also conceded that the powers of attorney executed by de la Garza and Rusty are now invalid and ineffectual under Mexican law, although he contends the documents were valid at the time they were executed. He conceded that the power of attorney executed by Rusty is dated September 24, 1991, but was not notarized until January 22, 1992.
Kennamer testified that he made numerous attempts to contact Rusty regarding the status of title to the property. When Rusty failed to return his calls, Kennamer left a message on his answering machine. A transcript of the message was admitted at trial:
Ummm, Rusty, it’s John Kennamer. Uhhh, it’s about 9:15 my time. Uhhh, I really would like to talk to you. Uhhh, I’ve got a big meeting tomorrow with a bunch of lawyers in Harlingen and uhhh, I’d like to keep you out of this meeting if possible but uhhh, if I can’t talk to you I can’t help you. Uhhh, so it might be worth a couple of hundred thousand to you if you were to pick up the telephone and call me. And uhhhh, I can kinda fill you in on what’s fixin’ to come down. Uhhh, I know you’ve got a big investment in your career, you and your wife and uhhh if this thing is not settled pretty quick, then uhh, all of this lawsuit and everything could have a very negative effect on your licensing, so give me a call and let’s, let’s you and I work this thing out to your benefit and both of us can go on down the road and be happy. So give me a call, it’s area code [phone number]. I’ll be up late this evening and I’ll be leaving early tomorrow morning for The Valley, so uhhh, please give me a call regardless what time you get in and uhhh, that way I can do you the best service possible. I’ll be waiting on your call uh Rusty. I’ll talk to you later. Thank you.
At trial, Kennamer was questioned about the message:
Q [Gerdes’s counsel]: Okay. So, what you’re doing is you’re threatening him–
A [Kennamer]: No, I’m not.
Q: You’re threatening him–
A: I’m making him aware of the facts.
Q: You’re threatening him that if he doesn’t call you back–
A: He’s going to be sued.
Q: – you’re going to sue him?
A: That’s right. That’s not a threat. That was a promise.
Q: And you carried through with your promise?
A: I did.
. . . .
Q: But you sued him anyway and left him in the lawsuit until Monday.
A: Until Friday.
Kennamer admitted that he had agreed to release Rusty from the lawsuit in exchange for Rusty’s agreement to voluntarily appear as a witness. In addition, the following exchange occurred:
Q [Gerdes’s counsel]: And that also means that– I’m sorry. One of the other conditions [for letting Rusty out of the lawsuit] was that he is supposed to give to you whatever interest he has in the land that’s down in Mexico, true?
A [Kennamer]: Not to give me anything.
Q: You’re not going to buy it from him?
A: He doesn’t own it.
Q: You’re not going buy—
A: He testified he did own it. He was holding it as a titleholder, a nominal titleholder.
Q: Did the word “give” cause a problem? That he has to transfer any interest he has–
A: He agreed to sign whatever paperwork was necessary once the lawsuit was determined. (emphasis added).
Kennamer agreed to purchase the 8,000 acres of property from the Montemayors for a purchase price of $1,038,000.00, but admitted that he stopped making payments after paying only $340,000.00. He also admitted that since the time of the original purchase, there have been no separate agreements to carve out any smaller portion of the property. Thus, although Kennamer claims that he “bought the land,” he admits that he did not finish paying for “part” of the land.
Viewing the evidence in the light most favorable to Kennamer, I would hold that the evidence is legally insufficient to support the finding that Kennamer established ownership of any assets in Mexico. Thus, the evidence is legally insufficient to support the jury’s finding that the fair market value of assets taken from Kennamer by Gerdes is $1,000,000.00.
To recover for a claim of breach of a fiduciary relationship, a plaintiff must establish (1) the existence of a fiduciary relationship; (2) breach of the duty; (3) causation; and (4) damages. Parks-Davis Auctioneers, Inc. v. Verna Drilling Co., 589 S.W.2d 168, 169 (Tex. App.–El Paso 1979, writ dism'd). Because Kennamer failed to establish the element of damages, I would hold that the evidence is legally and factually insufficient to support the jury’s finding that breach of the alleged informal fiduciary relationship between Kennamer and Gerdes caused Kennamer’s damages. Accordingly, I would sustain appellants’ second issue.
Fraud
In the first part of their fourth issue, appellants contend the evidence is legally and factually insufficient to support the jury’s findings that Gerdes committed fraud against Kennamer.
The elements of actionable fraud in Texas are: (1) that a material representation was made; (2) that it was false; (3) that, when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon it; and (6) that he thereby suffered injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001) (citing Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983)).
Here, the jury was instructed as follows:
Fraud occurs when–
1. A party makes a material misrepresentation,
2. The misrepresentation is made with knowledge of its falsity or recklessly without any knowledge of the truth and as positive assertion,
3. The misrepresentation is made with the intention that it should be acted on by the other party, and
4. The other party acts in reliance on the misrepresentation and thereby suffers injury.
“Misrepresentation” means a false representation of fact.
In support of their fraud claim, appellees cite Gerdes’s failure to disclose Rusty’s 1993 revocation of the power of attorney in Kennamer’s favor. They also cite various “other material facts that Gerdes failed to disclose to Kennamer.” The supreme court has held that “[a]s a general rule, a failure to disclose information does not constitute fraud unless there is a duty to disclose the information.” Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001). “Thus, silence may be equivalent to a false representation only when the particular circumstances impose a duty on the party to speak and he deliberately remains silent.” Id. Here, however, the jury’s answer to the fraud question was not conditioned on any finding of a duty to disclose or of a confidential or fiduciary relationship between Gerdes and Kennamer. The jury was not provided any instruction on failure to disclose when such a duty exists. See State Bar of Texas, Pattern Jury Charge, PJC 105.4.
The jury found that Kennamer discovered, or should have discovered, the alleged fraud in January 2001; it awarded fraud damages in the amount of $35,000.00. In support of the jury’s damage award, appellees cite plaintiff’s exhibit 53, which is a list of sums purportedly invested by Kennamer in the lodge business. The list details investments by year, beginning in 1986 and including 1990 through 2000. However, the last year detailing an investment by Kennamer is 2000. Thus, there is no evidence supporting the jury’s finding that Kennamer suffered $35,000.00 in damages in reliance on a misrepresentation by Gerdes. I would sustain appellants’ fourth issue.
Conversion
To prove a cause of action for conversion, a plaintiff must show that the defendant wrongfully exercised dominion and control over the plaintiff's property in denial of or inconsistent with the plaintiff's rights in that property. Bandy v. First State Bank, Overton, Tex., 835 S.W.2d 609, 622 (Tex. 1992); see also Whitaker v. Bank of El Paso, 850 S.W.2d 757, 760 (Tex. App.–El Paso 1993, no writ) (elaborating). Because Kennamer failed to establish ownership of any assets in Mexico, he cannot recover for conversion and is not entitled to any damages award on the basis of such ownership.
I would reverse the trial court’s judgment and render judgment that appellees take nothing.
LINDA REYNA YAÑEZ
Justice
Dissenting opinion delivered and filed this the
6th day of December, 2004.