Bank of America, N.A. v. Jerry L. Barth

NUMBER 13-08-00612-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BANK OF AMERICA, N.A., Appellant,

v.

JERRY L. BARTH, Appellee.

On appeal from the County Court at Law No. 2
of Hidalgo County, Texas.

MEMORANDUM OPINION ON REMAND

Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion on Remand by Justice Rodriguez
This case is before us on remand from the Texas Supreme Court. See Barth v.

Bank of America, N.A., 351 S.W.3d 875, 877 (Tex. 2011) (per curiam). On original

submission, addressing only the first issue, we reversed the trial court and rendered

judgment against appellee Jerry L. Barth holding, among other things, that the verdict did
not support the judgment because Bank of America, N.A., was misidentified. Barth v.

Bank of America, N.A., 352 S.W.3d 7, 12 (Tex. App.—Corpus Christi 2010), rev’d and

remanded, 351 S.W.3d at 877. However, the Texas Supreme Court concluded that any

reference to Bank of America, N.A., as Bank of America, was “a clear case of misnomer”

and that “[n]othing in the record suggest[ed] that the jury could possibly have been

confused, and its answers must be taken to be applicable to Bank of America, N.A.”

Barth, 351 S.W.3d at 877. In so concluding, the supreme court determined that the

verdict supported the judgment against Bank of America, N.A., and remanded the case to

this Court for consideration of other issues raised by appellant Bank of America, N.A. (the

Bank). Id.

By its remaining issues now before this Court, the Bank contends that: (1) Barth’s

claims are barred by limitations; (2) the trial court abused its discretion in its rulings on the

admissibility of evidence; (3) the essential element of fraud is conclusively negated; (4)

the trial court erred by awarding exemplary damages; (5) the trial court erred by awarding

attorney’s fees; and (6) it was entitled to judgment notwithstanding the verdict or,

alternatively, a new trial.1 We affirm in part and reverse and render in part.

I. BACKGROUND

It is undisputed that Barth borrowed money from NationsBank of Texas, N.A., a

predecessor to the Bank. Barth testified that, on August 31, 1998, he paid off the

outstanding balance owed, “[b]ut the word didn’t get down to the—to the lady that was

handling [his] personal account.” The Bank continued to send monthly written payment

1
On remand, we have reorganized and renumbered the remaining issues.

2
notices to Barth, and Barth’s employees continued to make payments. Barth testified

that in January 2002, he “noticed that there was a payment going out and [he] didn’t think

it was right.” According to Barth, he began making inquiries to the Bank but waited until

March 3, 2002 to make the last payment because he did not want the nonpayment of the

disputed debt to affect his credit rating or standing. Barth testified that he overpaid the

Bank $28,663.31.

On September 17, 2004, Barth sued the Bank, claiming that he paid more than he

owed on a line of credit. The Bank answered, asserting, among other things, a statute of

limitations defense. The jury found the Bank liable and awarded Barth the following: (1)

$28,663.31 in actual damages; (2) $350,000.00 in exemplary damages as a result of the

jury’s fraud findings, which the trial court capped at $257,326.62; (3) $350,000.00 in

Deceptive Trade Practices Act (DTPA) damages, which the trial court reduced to

$85,989.93; and (4) $15,000 in trial attorney’s fees, $15,000 in attorney’s fees for

proceedings in the court of appeals, and $20,000 in attorney’s fees for proceedings in the

Texas Supreme Court, should appeals be taken to the respective courts. See TEX. CIV.

PRAC. & REM. CODE ANN. § 41.008(b) (West Supp. 2011) (setting cap on amount of

exemplary damages awarded); TEX. BUS. & COM. CODE ANN. § 17.50 (West 2011)

(providing for the type and amount of damages that can be awarded on a DTPA claim).

The trial court conditionally granted the Bank’s motion for election of remedies and

awarded exemplary damages that resulted from the fraud claim and, if overturned on

appeal, the reinstatement of the DTPA damages. The Bank’s supplemental motion for

judgment notwithstanding the verdict (JNOV) and motion for new trial were overruled by

operation of law, and this appeal followed.
3
 II. LIMITATIONS

By its first issue, the Bank contends that Barth’s claims are barred by limitations

because the trial court failed to apply the law of accrual properly on all claims. This

complaint, through the Bank’s sixth issue, challenges the trial court’s denial of the Bank’s

motion for JNOV. The Bank argues that the trial court should have granted its motion for

JNOV because its defense of limitations prevented Barth from prevailing on all of his

claims.2

1. Applicable Law and Standard of Review

Determining when a cause of action accrues is a question of law for the trial court.

Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990); Ehrig v. Germania Farm

Mut. Ins. Ass’n, 84 S.W.3d 320, 323 (Tex. App.—Corpus Christi 2002, pet. denied). “A

cause of action generally accrues, and the statute of limitations begins to run, when facts

come into existence that authorize a claimant to seek a judicial remedy.” Ehrig, 84

S.W.3d at 323 (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962

S.W.2d 507, 514 (Tex. 1998)). The accrual of a cause of action is deferred in two types

of cases: (1) those involving fraud or fraudulent concealment and (2) those where the

injury is “inherently undiscoverable” and is “objectively verifiable.” S.V. v. R.V., 933

S.W.2d 1, 6 (Tex. 1996); Computer Assoc. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456

(Tex. 1996). The supreme court has noted that the commission of fraud or fraudulent

concealment works to estop a defendant from asserting limitations as a defense because

2
In response, Barth asserts that the Bank waived its limitations defense. We disagree. The
Bank raised the defense in its pleading. It also argued limitations as part of its motions for directed verdict
and for JNOV. In addition, the jury was given and answered a broad form discovery question, which the
Bank notes is applicable to all causes of action based on Barth’s alleged overpayment. Thus, we are not
persuaded by Barth’s waiver argument.

4
“a person cannot be permitted to avoid liability for his actions by deceitfully concealing

wrongdoing until limitations has run.” S.V., 933 S.W.2d at 6; see Murphy v. Campbell,

964 S.W.2d 265, 270 (Tex. 1997) (explaining that the discovery rule or, as set out in S.V.,

a delayed accrual applies to cases involving fraud or fraudulent concealment); Computer

Assoc. Int’l, 918 S.W.2d at 455–56.

A trial court should grant a defendant’s motion for JNOV if a legal principle

prevents a party from prevailing on its claim. United Parcel Serv., Inc. v. Tasdemiroglu,

25 S.W.3d 914, 916 n.4 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Thus, in

reviewing the denial of a motion for JNOV, appellate courts consider whether the movant

is entitled to judgment as a matter of law. OXY USA, Inc. v. Cook, 127 S.W.3d 16, 19

(Tex. App.—Tyler 2003, pet. denied). When the trial court’s ruling is based on a question

of law, we review that aspect of the ruling de novo. See In re Humphreys, 880 S.W.2d

402, 404 (Tex. 1994) (stating that questions of law are always subject to de novo review);

see also Hicks v. Hicks, 348 S.W.3d 281, 284 (Tex. App.—Houston [14th Dist.] 2011, no

pet.) (same). Under de novo review, the reviewing court exercises its own judgment and

re-determines each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

2. Barth’s Fraud Claim

a. Accrual

Indulging Barth’s fraud theory for purposes of argument only, the Bank contends

that any fraud claim accrued as a matter of law the very first time the Bank sent a coupon

for payment or otherwise requested that Barth pay some amount that he now claims not

to have owed. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988)

(explaining that a fraud claim accrues on the date the defendant makes the false
5
representation). Barth testified that he paid off the account that forms the basis of this

lawsuit on August 31, 1998. Based on the Bank’s argument, its first payment request

would have occurred in September 1998, six years before Barth filed suit on September

17, 2004. Because a suit for fraud must be brought “not later than four years after the

day the cause of action accrues,” TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(4) (West

2002), the Bank claims that Barth’s fraud claim was time barred as a matter of law.

In support of its position and argument, the Bank included the following statement

in the summary of its limitations issue: “[Barth’s] employees’ knowledge is Barth’s

knowledge.” See TEX. R. APP. P. 38.1(h) (providing that an appellant’s “brief must

contain a succinct, clear, and accurate statement of the arguments made in the body of

the brief”). Yet the Bank does not develop this summary statement in its original brief.

Rule 38 requires that the Bank provide such discussion of the facts and authorities as

may be necessary to maintain its argument in support of its limitations issue. See Lueg

v. Lueg, 976 S.W.2d 308, 312 (Tex. App.—Corpus Christi 1998, pet. denied) (holding that

an argument was waived because the “brief cites us to no specific record references for

these alleged facts on record”); see also Flores v. United Freedom Assocs., 314 S.W.3d

113, 116 (Tex. App.—El Paso 2010, no pet.) (overruling an argument as inadequately

briefed because appellant failed to cite legal authorities or present argument); cf. Weeks

Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) (“An appellant can preserve error

‘in the body of their appellate brief,’ even if it is not separately listed in the notice of appeal

or presented as an issue in the brief.”). As our sister court explained:

It is the Appellant’s burden to discuss [its] assertions of error. An appellate
court has no duty—or even right—to perform an independent review of the
record and applicable law to determine whether there was error. Were we
6
 to do so . . . we would be abandoning our role as neutral adjudicators and
become an advocate for that party.

Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). Here, the

Bank developed this argument, citing to the record and authority for the first time in its

reply brief. Yet “a party may not present arguments for the first time in its reply brief.”

Cebcor Serv. Corp. v. Landscape Design & Constr., Inc., 270 S.W.3d 328, 334 (Tex.

App.—Dallas 2008, no pet.); see Yazdchi v. Bank One, Tex., 177 S.W.3d 399, 404 n.18

(Tex. App.—Houston [1st Dist.] 2005, pet. denied). We conclude that the Bank

inadequately briefed any imputed-knowledge argument and therefore waived it. Without

more, we are not persuaded by the Bank’s argument that Barth’s fraud claim, if any,

accrued when it made its request for payment in September 1998.

b. Pleadings to Support the Discovery Rule

The Bank also asserts that Barth offered “no pleading to support application of the

discovery rule and in complete absence of proof that this type of injury was inherently and

undiscoverable and objectively verifiable, . . . waited more than six years—until

September 17, 2004—to file this suit.” See S.V., 933 S.W.2d at 6; Computer Assoc. Int’l,

918 S.W.2d at 456; Murphy, 964 S.W.2d at 270. While we agree that Barth did not plead

the “inherently undiscoverable and objectively verifiable” theory of accrual, we disagree

that Barth offered “no pleading to support application of the discovery rule.” Barth

implicitly presented the concept of delayed accrual when he asserted his fraud claim,

setting out the following facts and allegations in his amended petition:

Prior to August, 1998, [Barth] had a personal line of credit with Bank
of America[, N.A.,] and/or Bank of America’s Predecessor in Interest,
Nations[ ]Bank. In August of 1998, this note was paid in full.

7
 Notwithstanding the fact that the note was paid in full in August of
1998, Bank of America[, N.A.,] continued sending [Barth] monthly invoices
claiming that amounts were due under the note. In response to these
monthly invoices, [Barth] made payments to Bank of America[, N.A.,] in the
amount of $28,663.31.

When [Barth] discovered that he was continuing to make payments
on a loan which had long since been paid in full, [Barth] contacted Bank of
America[, N.A.,] to determine why invoices continued to be sent on the note
which should have shown a zero balance. [Barth] also requested that
Bank of America[, N.A.,] refund the $28,663.31 in over payments.

[The Bank] has refused to provide any explanation whatsoever as to
why [it] continued to send invoices on the note after August of 1998. In
addition, [the Bank] has refused to reimburse to [Barth] the amount of
$28,663.31, which [Barth] paid to [the Bank] in response to the monthly
statements.

See S.V., 933 S.W.2d at 6 (“Fraud, we have said, in and of itself prevents running of the

statute of limitations.”); see also Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 187–88

(Tex. App.—Texarkana 2011, no pet.) (concluding that Dike had alleged the concept of

delayed accrual, under both theories of accrual, through his fraud and fraudulent

concealment claims and by pleading that the injury was inherently undiscoverable and

objectively verifiable). Thus, there was no failure to plead, and that legal principle did not

prevent Barth from prevailing on his claim. See United Parcel Serv., 25 S.W.3d at 916.

c. Trial by Consent

In any event, Barth raised the discovery rule in his supplemental response to the

Bank’s motion and amended motion for summary judgment. “[I]f a plaintiff asserts the

discovery rule in response to a summary judgment motion raising the statute of

limitations, even though the discovery rule has not been pleaded in the plaintiff’s petition,

the parties will be deemed to have tried the issue by consent unless the defendant

objects . . . .” Krohn v. Marcus Cable Assocs., L.P., 201 S.W.3d 876, 880 (Tex.
8
App.—Waco 2006, pet. denied); see Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex.

2006) (per curiam) (“When [the plaintiff-nonmovant] asserted the discovery rule for the

first time in its summary judgment response, [the defendant-movant] had two choices: it

could object that the discovery rule had not been pleaded, or it could respond on the

merits and try the issue by consent.”). The Bank provides no record citation, and we find

none, where it objected to Barth’s discovery-rule response. Therefore, even were we to

agree that Barth did not plead the discovery rule, we would conclude, nonetheless, that

the discovery rule issue was tried by consent in the summary judgment proceeding. See

Krohn, 201 S.W.3d at 880; see also Via Net, 211 S.W.3d at 313.

The discovery rule was also tried by consent at trial when the Bank asked Barth

questions regarding when he allegedly discovered that he had been making extra

payments on the note. Reading his interrogatory answer into evidence, Barth testified

that “[t]he overpayments were discovered in January 2002. I cannot remember the exact

date but a letter was sent to Bank of America on January 31, 2002 inquiring about the

overpayment. The account transaction history shows a payment of January 10, 2002, so

the discovery should have been made around that time.” Barth further testified, without

objection, that “[i]n January of 2002, [he] noticed that there was a check going out and

[he] didn’t think it was right. [He] didn’t know. [He] was not absolutely certain but [he]

did not think it was right.”

Because the discovery rule was either pleaded by Barth or tried by consent, we

conclude that the trial court correctly applied the discovery rule in this case. The Bank

was not entitled to judgment as a matter of law on that basis. See OXY USA, 127

S.W.3d at 19.
9
 d. Finding on the Date Barth Should Have Discovered the Overpayment

Finally, as to Barth’s fraud claim, the Bank does not specifically attack the jury’s

finding that, in the exercise of reasonable diligence, Barth should have discovered the

alleged overpayment on January 10, 2002. Instead, the Bank utilizes that finding to

support its argument that Barth’s remaining claims are time barred. Jury findings not

challenged on appeal are binding. Exxon Corp. v. Tyra, 127 S.W.3d 12, 16 (Tex.

App.—Tyler 2003, pet. denied). So employing the January 10, 2002 delayed-accrual

date found by the jury, Barth’s September 17, 2004 suit for fraud was timely for purposes

of limitations.

To the extent we could construe the Bank’s sixth issue as a challenge to this

finding, we further conclude that the evidence is sufficient. In order to determine whether

the Bank was entitled to JNOV on this basis, we use the same standard that governs a

legal sufficiency review. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).

“When an appellant attacks the legal sufficiency of an adverse finding on an issue

for which it did not have the burden of proof, the appellant must demonstrate that there is

no evidence to support the adverse finding.” Editorial Caballero, S.A. de C.V. v. Playboy

Enters., Inc., 359 S.W.3d 318, 328 (Tex. App.—Corpus Christi 2012, pet. denied) (citing

City of Keller, 168 S.W.3d at 810; Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)).

“Such a no-evidence challenge will be sustained only if: (1) there is a complete absence

of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove

a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively

the opposite of a vital fact.” Id. at 328–29 (citing City of Keller, 168 S.W.3d at 810; King
10
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)). “In conducting a legal

sufficiency review, we review the evidence presented at trial in the light most favorable to

the jury’s verdict and indulge every reasonable inference that would support it, crediting

favorable evidence if reasonable jurors could and disregarding contrary evidence unless

reasonable jurors could not.” Id. at 329. “The final test for legal sufficiency must always

be whether the evidence at trial would enable reasonable and fair-minded people to reach

the verdict under review.” Id. (quoting City of Keller, 168 S.W.3d at 827). A court may

disregard a jury’s verdict and render judgment JNOV if no evidence supports that finding.

See Tiller v. McClure, 121 S.W.3d 709, 713 (Tex. 2003) (per curiam) (citing Brown v.

Bank of Galveston, Nat’l Ass’n, 963 S.W.2d 511, 513 (Tex. 1998)).

Considering the evidence in the light most favorable to the jury’s January 2002

finding and indulging every reasonable inference that would support that finding, we

conclude that there is more than a scintilla of evidence to establish the delayed-accrual

date of January 10, 2002, for Barth’s fraud action. See Editorial Caballero, 359 S.W.3d

at 329. Because there was some evidence to support the finding, the trial court properly

denied the Bank’s JNOV as to this finding. See Tiller, 121 S.W.3d at 713.

e. Summary

We overrule the Bank’s first issue and the relevant portion of its sixth issue

regarding Barth’s fraud claim, limitations, and the discovery rule.

3. Barth’s DTPA, Negligent Misrepresentation, and Unjust Enrichment Claims

By its first issue, the Bank also contends that the applicable two-year statute of

limitations bars Barth’s remaining claims. See TEX. BUS. & COM. CODE ANN. § 17.565

(West 2011) (setting out the statute of limitations for a violation of the DTPA as two years);
11
Coleman v. Rotana, Inc., 778 S.W.2d 867, 873 (Tex. App.—Dallas 1989, writ denied)

(noting that the statute of limitations for negligent misrepresentation is two years); Heci

Exploration Co. v. Neel, 982 S.W.2d 881, 885 (Tex. 1998) (explaining that an action for

unjust enrichment is subject to a two-year statute of limitations). The Bank asserts that,

based on the jury’s finding that Barth should have discovered the alleged overpayment on

January 10, 2002, his remaining claims—all governed by a two-year statute of

limitations—are barred because they accrued and limitations began to run no later than

that date. We agree.

Barth does not challenge this jury finding on appeal. So based on this finding,

Barth’s DTPA, negligent misrepresentation, and unjust enrichment causes of action

pleaded in his lawsuit filed on September 17, 2004, are barred by limitations.3 Having so

concluded, we need not address the Bank’s remaining limitations arguments as to these

claims because they are not dispositive of this appeal. See TEX. R. APP. P. 47.1. We

3
In his brief, Barth refers to equitable estoppel as a defense to the limitations bar. Equitable
estoppel, however, is an affirmative defense and if not pleaded, is waived. See TEX. R. CIV. P. 94; Gomez
v. Gomez, 327 S.W.3d 189, 192 (Tex. App.—San Antonio 2010, no pet.); Daniel v. Falcon Int. Realty Corp.,
190 S.W.3d 177, 188 (Tex. App.—Houston [1st Dist.] 2005, no pet.); City of Univ. Park v. Van Doren, 65
S.W.3d 240, 251 (Tex. App.—Dallas 2001, pet. denied). The clerk’s record contains no pleading filed by
Barth that refers to equitable estoppel. Therefore, Barth has waived any argument based on equitable
estoppel.

Likewise, for the first time in his appellate brief, Barth specifically asserts fraudulent concealment to
toll limitations. See Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 228 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (explaining that although similar in effect to the discovery rule, the fraudulent-concealment
doctrine is an affirmative defense to limitations that resembles equitable estoppel) (citing Trousdale v.
Henry, 261 S.W.3d 221, 235 (Tex. App.—Houston [14th Dist.] 2008) (granting a rule 53.7(f) motion); Autry
v. Dearman, 933 S.W.2d 182, 192 (Tex. App.—Houston [14th Dist.] 1996, writ denied)). It was Barth’s
burden to plead and secure findings on fraudulent concealment. See Santanna Natural Gas Corp. v.
Hamon Operating Co., 954 S.W.2d 885, 890 (Tex. App.—Austin 1997, pet. denied) (setting out that
fraudulent concealment is a defense or plea in avoidance to the running of limitations and must be pleaded
in a case where the defendant attempts to hide information about the plaintiff’s cause of action); First Nat’l
Bank of Boston v. Champlin Petroleum Co., 709 S.W.2d 4, 6 (Tex. App.—Corpus Christi 1986, writ ref’d
n.r.e.); see also Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). The record contains no pleading or
finding on fraudulent concealment. Therefore, Barth has also waived this argument.

12
sustain the Bank’s first issue and the relevant portion of its sixth issue regarding

limitations and Barth’s DTPA, negligent misrepresentation, and unjust enrichment claims.

III. CHALLENGES TO THE ADMISSION OF EVIDENCE

By its second issue, the Bank asserts that the trial court abused its discretion by

overruling the Bank’s objections of untimeliness to Barth’s Exhibits 5, 6, and 7 and

hearsay and incompleteness to Barth’s Exhibit 8.4 The Bank also claims that the trial

court should have excluded all evidence because Barth failed to set forth his plea of

payment properly.

A. Standard of Review

We review the admission or exclusion of evidence for an abuse of discretion.

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); Creative Thinking

Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 514 (Tex. App.—Corpus Christi

2002, no pet.). A trial court abuses its discretion when it acts without reference to any

guiding principles or when it acts in an unreasonable and arbitrary manner. Strauss v.

Cont’l Airlines, Inc., 67 S.W.3d 428, 448 (Tex. App.—Houston [14th Dist.] 2002, no pet.);

Creative Thinking Sources, 74 S.W.3d at 514 (citing Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). A trial court’s evidentiary ruling must be

upheld if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone,

972 S.W.2d 35, 43 (Tex. 1998).

4
The Bank also generally contends that the trial court abused its discretion when it overruled its
objections of relevance to Exhibits 3 and 4; relevance and incompleteness to Exhibit 6; and hearsay to
Exhibit 7. Yet the Bank does not support these contentions with clear and concise arguments or with
appropriate citations to authorities. See TEX. R. APP. P. 38.1(i); see, e.g., Flores v. United Freedom
Assocs., 314 S.W.3d 113, 116 (Tex. App.—El Paso 2010, no pet.). We conclude that these contentions
regarding Exhibits 3, 4, 6, and 7 are inadequately briefed and, therefore, waived. See TEX. R. APP. P.
38.1(i).

13
B. Exhibits 5, 6, and 7

The Bank first contends that the trial court erred in admitting Barth’s Exhibits 5, 6,

and 7 because they were produced within thirty days of trial, and that the exhibits should

have been automatically excluded under rule 193.6 of the Texas Rules of Civil Procedure.

See TEX. R. CIV. P. 193.6. Rule 193.6 provides the following:

A party who fails to make, amend, or supplement a discovery response in a
timely manner may not introduce in evidence the material or information
that was not timely disclosed . . . , unless the court finds . . . good cause for
the failure to . . . supplement the discovery response; or the failure
to . . . supplement the discovery response will not unfairly surprise or
unfairly prejudice the other parties.

Id. The party offering the untimely-disclosed evidence has the burden to establish good

cause or lack of surprise, which must be supported by the record. Id.; see Williams v.

County of Dallas, 194 S.W.3d 29, 32 (Tex. App.—Dallas 2006, pet. denied); Norfolk S.

Ry. Co. v. Norfolk S. Ry. Co. v. Bailey, 92 S.W.3d 577, 581 (Tex. App.—Austin 2002, no

pet.); see also Keystone Architects v. Lanai Dev., L.L.C., No. 13-05-542-CV, 2008 WL

523272, at *5 (Tex. App.—Corpus Christi, Feb. 28, 2008, no pet.) (mem. op.). The

purpose behind this rule is to prevent trial by ambush. See Aetna Cas. & Sur. Co. v.

Specia, 849 S.W.2d 805, 807 (Tex. 1993) (applying former rule 215(5)); see also

Keystone Architects, 2008 WL 523272, at *5.

1. Exhibit 5

With respect to Exhibit 5, a May 9, 1997 promissory note for $73,000.00 between

NationsBank and borrower Barth, the record establishes that the Bank timely received

that exhibit. The record reveals that Barth filed his response to the Bank’s original

motion for summary judgment on February 26, 2007 and to its amended motion for

14
summary judgment on August 30, 2007. According to Barth’s counsel, he attached

copies of the notes, including the May 9 note, to Barth’s response. Trial began on April

7, 2008. At the motion-in-limine hearing on the first day of trial, in discussing Exhibit 5,

Barth’s counsel explained this to the trial court. The Bank’s counsel responded, “Right.

It was—He attached [it] to his MSJ so he has done that. . . .”

Because it is clear from the record that Barth provided Exhibit 5 to the Bank

approximately one year before trial, the trial court did not abuse its discretion in admitting

it. See Helena Chem. Co., 47 S.W.3d at 499; Malone, 972 S.W.2d at 43; Creative

Thinking Sources, 74 S.W.3d at 514; Strauss, 67 S.W.3d at 448.

2. Exhibits 6 and 7

The Bank also asserts that the trial court abused its discretion when it admitted

Barth’s Exhibits 6 and 7. Exhibit 6 is an August 21, 1998 letter from NationsBank to Old

Republic Title Company regarding payoffs for J & E Oil, Inc., one of Barth’s companies,

and Exhibit 7 is a document titled “Old Republic Title Company Payoff—Los Angeles” and

dated August 31, 1998. Barth describes Exhibit 7 as a ledger.

It is undisputed that Barth produced Exhibits 6 and 7 on March 13, 2008, within

thirty days of trial. This creates a presumption that the response was untimely. See

TEX. R. CIV. P. 193.6(a) (providing that it is presumed that a response made within thirty

days of trial is not reasonably promptly made). However, Barth explained to the trial

court that this production was responsive to a request made by the Bank during

mediation. Rule 193 of the Texas Rules of Civil Procedure “imposes a duty upon parties

to make a complete response to written discovery based upon all information reasonably

available, subject to objections and privileges.” TEX. R. CIV. P. 193 cmt. 1. (emphasis
15
added). Nothing in the record shows that the Bank propounded any written discovery

request on Barth for third-party documentation of the payment of the personal line of

credit. See Langley v. Comm’n for Lawyer Discipline, 191 S.W.3d 913, 915 (Tex.

App.—Dallas 2006, no pet.) (holding that appellate court “cannot say the trial court

abused its discretion” in refusing to exclude documents not produced in discovery when

record did not contain relevant discovery requests); see also In re Lowe’s Cos., Inc., 134

S.W.3d 876, 880 (Tex. App.—Houston [14th Dist.] 2004, orig. proceeding) (concluding

that a party cannot be compelled to produce that which it has not been requested to

produce). We cannot say the trial court abused its discretion in refusing to exclude

documents that were not produced timely when the record does not contain any relevant

written discovery requests.

Even if the record supported such a written request, we would conclude that

Barth’s failure to timely produce Exhibits 6 and 7 did not unfairly surprise or prejudice the

Bank. See TEX. R. CIV. P. 193.6(a)(2). Exhibit 6 relates to pay-offs for Barth’s company.

It was reasonable for the trial court to believe that the Bank would not be surprised by its

own letter. And it is undisputed that Barth had already produced his internal

documentation, which he claims evidenced the pay off of the personal line of credit.

Exhibit 7 related to the wiring of those funds to pay off different accounts. The Bank’s

corporate representative Robert Messina also testified later at trial that, to his knowledge,

the Bank was not claiming that it did not get the wire transfer referenced in Exhibit 7. So

even assuming that the documents at issue fell within one or more of the Bank’s written

discovery requests, we cannot conclude that Barth’s failure to supplement the discovery

response unfairly surprised or prejudiced the Bank. See id. R. 193.6(a)(2).
16
 On this record, rule 193.6 did not preclude the trial court’s admission of Exhibits 6

and 7 despite any failure by Barth to disclose them timely. The trial court’s decision to

admit Exhibits 6 and 7 did not constitute an abuse of discretion. See Langley, 191

S.W.3d at 915; see also Helena Chem. Co., 47 S.W.3d at 499; Malone, 972 S.W.2d at 43;

Creative Thinking Sources, 74 S.W.3d at 514; Strauss, 67 S.W.3d at 448.

C. Exhibit 8

The Bank contends that the trial court abused its discretion when it admitted

Exhibit 8 over its objections that the exhibit was hearsay and was incomplete.

1. Hearsay

Barth offered and the trial court admitted Exhibit 8, which Barth described, in part,

as “an account of [his] personal and other business expenses.” The Bank objected that

the exhibit was hearsay. Barth asserts he proved up Exhibit 8 as a business record, an

exception to the hearsay rule. See TEX. R. EVID. 803(6).

Hearsay is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted. Id. R.

801(d). Rule 803(6) excludes the following from the hearsay rule:

A memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnosis, made at or near the time by,
or from information transmitted by, a person with knowledge, if kept in the
course of regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report, record,
or data compilation, all as shown by the testimony of the custodian or other
qualified witness.

Id. at R. 803(6).

Barth testified that his J & E Oil employees handled his personal business dealings

and that one of his employees entered the data for this report into his computer at or near
17
the time each transaction occurred. See id. He agreed that Exhibit 8 was something

that was kept and relied upon in the regular course of his business. See id. And Barth,

who relied on Exhibit 8 as a record for his personal business transactions and who had his

employees enter and keep the data in the form shown on Exhibit 8, testified regarding the

details of his business. See id. We conclude that the trial court did not abuse its

discretion if it concluded that Exhibit 8 was not hearsay, under the business record

exception.5 See id.; Helena Chem. Co., 47 S.W.3d at 499; Malone, 972 S.W.2d at 43;

Creative Thinking Sources, 74 S.W.3d at 514; Strauss, 67 S.W.3d at 448.

2. Incomplete Document

The Bank also complains that the trial court abused its discretion when it overruled

its objection that Exhibit 8 was an incomplete document and admitted it. Exhibit 8 was

page 5 from a multipage document, which Barth agreed was a spreadsheet. Barth

testified that the entire spreadsheet was from “when the company was created on.” The

entries on page 5 were from April 30, 1997 through August 31, 1999. The trial court

could have determined that the single page was complete because it covered the relevant

time period, specifically August 31, 1998, the date Barth claimed to have paid off

NationsBank. We conclude that the trial court did not abuse its discretion if it overruled

the Bank’s objection on this basis. See Helena Chem. Co., 47 S.W.3d at 499; Malone,

972 S.W.2d at 43; Creative Thinking Sources, 74 S.W.3d at 514; Strauss, 67 S.W.3d at

5
The Bank also notes that it objected to the admission of Exhibit 8 on the basis of hearsay within
hearsay and directs this Court to two words or parts of words handwritten on that exhibit. Yet the Bank
does not develop any argument regarding this objection. See TEX. R. APP. P. 38.1(i). We conclude that
the Bank inadequately briefed this hearsay-within-hearsay argument and waived it.

18
448.

D. Plea of Payment Challenge

Relying on rule 95 of the Texas Rules of Civil Procedure, the Bank also contends

that because Barth failed to set forth his plea of payment properly, all evidence he offered

to support his claim should have been excluded. We disagree.

Rule 95 provides the following:

When a defendant shall desire to prove payment, he shall file with his
plea an account stating distinctly the nature of such payment, and the
several items thereof; failing to do so, he shall not be allowed to prove the
same, unless it be so plainly and particularly described in the plea as to give
the plaintiff full notice of the character thereof.

TEX. R. CIV. P. 95; see Imperial Lofts, Ltd. v. Imperial Woodworks, Inc., 245 S.W.3d 1, 7

(Tex. App.—Waco 2007, pet. denied).

Rule 95 “governs payment as an affirmative defense, not payment as an

affirmative claim.” Tex. Mut. Ins. Co., v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008) (citing

TEX. R. CIV. P. 95). In this case, Barth was not a defendant or a counter-defendant

defending a suit brought by the Bank on a debt. Barth brought suit against the Bank for

his over payment to the Bank. So rule 95 does not apply as a basis for the trial court to

exclude all evidence supporting Barth’s claim of payment or overpayment, as the Bank

urges.

E. Summary

Having concluded that the trial court did not abuse its discretion when it admitted

the complained-of exhibits because it had legitimate bases for doing so, see Malone, 972

S.W.2d at 43, we overrule the Bank’s second issue. See Helena Chem. Co., 47 S.W.3d

at 499.
19
 IV. BARTH’S FRAUD CLAIM

In its third issue, the Bank asserts that Barth’s right of action, if any, is based only

on an alleged contract, and thus, the economic loss rule applies. By its sixth issue, the

Bank challenges the trial court’s denial of its motion for JNOV based on its argument that

Barth’s fraud claim was precluded as a matter of law by the economic loss rule. In

addition, by its third and sixth issues, the Bank claims that the evidence is legally

insufficient to establish the reliance element of Barth’s fraud claim.

A. Economic Loss Rule

1. Standard of Review and Applicable Law

We review the Bank’s economic-loss-rule challenge de novo because it is based

on a question of law. See In re Humphreys, 880 S.W.2d at 404. We will exercise our

own judgment and re-determine that legal issue. See Quick, 7 S.W.3d at 116.

The Supreme Court of Texas has held that the acts of parties to a
contract “may breach duties in tort or contract alone or simultaneously in
both. The nature of the injury most often determines which duty or duties
are breached. When the injury is only the economic loss to the subject of a
contract itself, the action sounds in contract alone.” Jim Walter Homes,
Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). This is known generally as
the economic loss rule. See Sharyland Water Supply Corp. v. City of
Alton, 354 S.W.3d 407, 415 (Tex. 2011).

Torch Energy Advisors, Inc. v. Plains Exploration & Prod. Co., No. 01-12-00698, 2013 WL

3095014, at *4 (Tex. App.—Houston [1st Dist.] June 20, 2013, no pet. h.); see Sw. Bell

Tel. Co. v. DeLanney, 809 S.W.2d 493, 494–95 (Tex. 1991) (holding that the economic

loss rule is intended to prevent tort recovery when the loss is only economic loss that is

related to the subject of a contract and because the plaintiff sought damages for breach of

a duty created under contract, as opposed to a duty imposed by law, tort damages were

20
unavailable). Yet economic losses may be recovered in tort for “negligent

misrepresentation, legal or accounting malpractice, breach of fiduciary duty, fraud,

fraudulent inducement, tortious interference with contract, nuisance, wrongful death

claims related to loss of support from the decedent, business disparagement, and some

statutory causes of action.” Sharyland Water Supply, 354 S.W.3d at 418–19 (footnotes

omitted). In determining whether the plaintiff may recover on a tort theory when the facts

of the case include a contract, it is instructive to examine the nature of the plaintiff’s

loss—whether the loss is the subject matter of the contract or whether the loss is distinct

from the subject of the contract. See Torch Energy Advisors, 2013 WL 3095014, at *4;

see also DeLanney, 809 S.W.2d at 494–95.

2. Discussion

The Bank asserts that Barth’s claim, although expressed as fraud, arises from an

alleged extension-of-credit contract. It argues that because the only injury claimed

(overpayment) is the subject matter of the supposed contract, the right of action, if any, is

ordinarily on the contract alone, to which the “economic loss rule” applies. See

DeLanney, 809 S.W.2d at 494–95; see also Sw. Elec. Power Co. v. Burlington N. R.R.

Co., 966 S.W.2d 467, 469–70 (Tex. 1998) (setting out that “overpayments under a valid

contract may give rise to a claim for restitution or unjust enrichment”). The Bank

contends that “Barth abandoned any contract claim and elected to pursue ‘fraud,’ a claim

which is legally unsustainable.” In response, Barth asserts that his claim does not arise

from the subject matter of a contract. Instead, Barth argues that the Bank’s fraudulent

acts occurred at a time when there was no contract that the Bank could have breached

and no contract to which the economic-loss rule could have applied.
21
 It is undisputed that by the agreement, the Bank’s predecessor, NationsBank,

allowed Barth to utilize a line of credit at a specified interest rate and Barth would pay

back the principal amount of the loan plus interest at the specified rate. Barth presented

evidence that on August 31, 1998, via a wire transfer, he paid the outstanding balance,

$52,764.93, on the line of credit. Barth’s injury claimed in this suit is the amount of

money he paid in response to the Bank’s invoices sent to him after August 1998. Barth

complains of the Bank’s actions to induce him to make payments by sending him payment

invoices. He claims that through the invoices, the Bank affirmatively represented to him

that he owed the Bank money. Yet no such balance existed; no agreement to do so

existed. The nature of Barth’s injury can only be characterized as fraud, not breach of

any contract. See Italian Cowboy Partners v. Prudential Ins., 341 S.W.3d 323, 337 (Tex.

2011) (“The elements of fraud are: (1) that a material representation was made; (2) the

representation was false; (3) when the representation was made, the speaker knew it was

false or made it recklessly without any knowledge of the truth and as a positive assertion;

(4) the speaker made the representation with the intent that the other party should act

upon it; (5) the party acted in reliance on the representation; and (6) the party thereby

suffered injury.”); B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied) (setting out the essential elements of a

breach of contract claim as follows: (1) the existence of a valid contract; (2) performance

or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and

(4) damages sustained as a result of the breach); cf. Sw. Electric Power, 966 S.W.2d at

469–70 (observing that overpayments under an express, valid contract can be recovered

under a theory of restitution or unjust enrichment).
22
 We conclude that Barth’s asserted loss is distinct from the subject of any contract

that existed between Barth and the Bank prior to August 1998. See Torch Energy

Advisors, 2013 WL 3095014, at *4; see also DeLanney, 809 S.W.2d at 494–95. His

claim is independent from promises made between the parties to a contract. See

Delanney, 809 S.W.2d at 494. We overrule the Bank’s third and sixth issues, to the

extent the Bank argues that Barth’s cause of action is based only on the alleged contract

and, as such, the economic rule precludes his recovery.

B. Legal Sufficiency of the Evidence to Establish the Reliance Element of
Barth’s Fraud Claim

By its third and sixth issues, the Bank specifically argues that the evidence is

legally insufficient to support the jury’s finding on the reliance element of Barth’s fraud

claim. The Bank challenges the legal sufficiency of the evidence to establish that Barth

relied on the Bank’s misrepresentations.

In the context of a jury trial, the sufficiency of the evidence is reviewed in light of the

charge submitted if no objection is made to the charge. Romero v. KPH Consolidation,

Inc., 166 S.W.3d 212, 221 (Tex. 2005). Here, the Bank made no objections to Question

5 of the charge, which provided, in relevant part, that “[f]raud occurs when . . . the other

party [Barth] acts in reliance on the misrepresentation [made by the Bank].” By its “yes”

response to the question, “Did [the Bank] commit fraud against JERRY L. BARTH?,” the

jury impliedly found that Barth acted in reliance on the Bank’s misrepresentation.

The Bank’s argument in support of this legal sufficiency challenge follows in its

entirety:

Barth testified in detail about the negotiations leading up to his
professed payment in August of 1998. Such admitted knowledge
23
 conclusively negates any reasonable reliance on any representation, if ever
there was one, by Bank of America. See Merrill Dow Pharm. v. Havner,
953 S.W.2d 706, 711 (Tex. 1997).

Barth’s reliance, if any, was on his “trusted” employees, not on
anything Bank of America did or said. When asked whether he “read
invoices and notes before payments went out,” Barth conceded: “. . . I did
early on in the business. But at that time there were so many—we were
doing a lot of business and, no, I didn’t see them all.” Having confessed his
lack of attention to his affairs, Barth explained his continued payments after
the claimed payoff: “And the same girl in the office kept paying it because
she didn’t realize that it was paid off.” The essential fraud element of
reliance is conclusively negated; the judgment of the trial court should be
reversed and judgment rendered in favor of Bank of America.

The Bank argues that the evidence established that Barth did not act in reliance on

the Bank’s misrepresentation, which the Bank claims is conclusively the opposite of a vital

fact. See Editorial Caballero, 359 S.W.3d at 328 (citing City of Keller, 168 S.W.3d at

810; Chapman, 118 S.W.3d at 751); see also Havner, 953 S.W.2d at 711. In support of

its argument, the Bank first directs this Court to evidence that Barth knew he paid off the

account in August of 1998. The Bank argues that “[s]uch admitted knowledge

conclusively negates any reasonable reliance on any representation, if ever there was

one, by [the] Bank . . . .” Without more, we cannot conclude that because Barth knew

that he paid off the account, his reliance on the Bank’s representation that payments were

due is conclusively negated. The Bank further asserts that the reliance element was

conclusively negated because Barth’s reliance was on his employees, not on anything

the Bank did or said. We are not persuaded by the Bank’s arguments. Instead, to the

extent this evidence could be considered contrary to the verdict, we conclude that

reasonable jurors could have disregarded it. See Editorial Caballero, 359 S.W.3d at

329.

24
 The evidence at trial established that although Barth paid the money he owed to

the Bank, the Bank continued to send monthly written notices requesting payment. A

female employee in charge of paying on Barth’s personal line of credit continued to

receive the payment notices from the Bank. Without knowing that Barth had paid the

balance of the debt, this employee paid the invoices, in the amount of $28,633.31. While

“a person may not justifiably rely on a representation if there are ‘red flags’ indicating such

reliance is unwarranted,” Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d

913, 923 (Tex. 2010) (internal quotes omitted), because of the nature of a revolving line of

credit and this employee’s responsibilities, the jury could have determined that the

employee believed that there was a balance owed based on the payment invoices sent by

the Bank. See id. And neither Barth nor his employee was “required to exercise

diligence in discovering the falsity of the representations, and had the right to rely and act

upon such statements.” Andrews v. Sullivan, 76 S.W.3d 702, 708–09 (Tex.

App.—Corpus Christi 2002, no pet.) (citing Koral Indus. v. Security–Conn. Life Ins. Co.,

802 S.W.2d 650, 651 (Tex. 1990) (per curiam)). Nonetheless, the evidence shows that

when Barth suspected that he might have been making payments in error, he did inquire

about the payments and attempted to obtain answers from the Bank concerning them.

Reviewing the evidence presented at trial in the light most favorable to the jury’s

verdict and indulging every reasonable inference that would support it, crediting favorable

evidence if reasonable jurors could and disregarding the contrary evidence because the

jurors could have done so, we conclude that the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review. See Editorial

Caballero, 359 S.W.3d at 328–29 (citing City of Keller, 168 S.W.3d at 827). We overrule
25
the Bank’s third and sixth issues to the extent the issues challenge the sufficiency of the

evidence to establish the reliance element of Barth’s fraud claim.

V. EXEMPLARY DAMAGES

By its fourth and sixth issues, the Bank complains of charge error and of error

when the trial court failed to set aside the jury’s response to the exemplary damages

question. The Bank argues that error occurred because (1) the trial court’s charge and

the jury question on exemplary damages were incorrect in spite of the Bank’s objection

and tender, and (2) Barth waived any claim to exemplary damages by failing to submit a

correct question after the Bank’s objection.

Texas Civil Practice and Remedies Code section 41.003 provides in relevant part

the following:

(a) Except as provided in Subsection (c) [not applicable here],
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 . . . .

(b) The claimant must prove by clear and convincing evidence
the elements of exemplary damages as provided by this section. . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 41.003 (West Supp. 2011); see id. § 41.002 (West

2008) (providing that chapter 41 “applies to any action in which a claimant seeks

damages relating to a cause of action”).

The Bank objected, in relevant part, that the charge did not include the required

statutory language that Barth “must prove [the elements of exemplary damages] by clear

26
and convincing evidence,” which is a requirement for an exemplary damages award.6 It

is undisputed that the Bank tendered a substantially correct form of the question, which

the trial court refused. Instead, the trial court submitted the following question to the jury:

What sum of money, if any, if paid now in cash, should be assessed
against [the BANK] and awarded to JERRY L. BARTH as exemplary
damages, if any, for the conduct found in response to Question No. 5 [the
fraud question]?

“Exemplary damages” means an amount that you may in your
discretion award as a penalty or by way of punishment.

a. the nature of the wrong.

b. the character of the conduct involved.

c. the degree of culpability of [the BANK].

d. the situation and sensibilities of the parties concerned.

e. the extent to which such conduct offends a public sense of
justice and propriety.

f. the net worth of [the BANK].

The jury awarded $350,000, which the trial court capped at $257,326.62.

On appeal, Barth concedes, and we agree, that it was error for the trial court to

submit an exemplary-damages question to the jury that omitted the proper standard of

proof. See R & R Contractors v. Torres, 88 S.W.3d 685, 696 (Tex. App.—Corpus Christi

2002, no pet.) (setting out, in a gross negligence case that reviewed the predecessor to

6
The Bank also objected to the requested charge on the basis that it did not include an instruction
that the jury’s answer regarding the amount of exemplary damages “must be unanimous.” See TEX. CIV.
PRAC. & REM. CODE ANN. § 41.003(e) (West Supp. 2011) (requiring that the following instruction be included
in an exemplary-damages charge: “You are instructed that, in order for you to find exemplary damages,
your answer to the question regarding the amount of such damages must be unanimous”). We note that
despite the missing language, the jury’s verdict was unanimous. Nonetheless, because our analysis of the
Bank’s contention regarding “clear and convincing evidence” is dispositive of this issue, we need not
address this objection. See TEX. R. APP. P. 47.1.
27
section 41.002, that “[s]ubmission of a lesser standard of proof is reversible error”); In the

Interest of T.L.H., 630 S.W.2d 441, 446 (Tex. App.—Corpus Christi 1982, writ dism’d

w.o.j.); see also TEX. CIV. PRAC. & REM. CODE ANN. § 41.003. Barth, however, asks this

Court to remand the issue to the trial court for a determination of exemplary damages,

utilizing the proper burden of proof. In response, the Bank argues that it is entitled to the

rendering of judgment on exemplary damages because it objected to the submission and

tendered a substantially correct form of the question, which the trial court refused.

If a question omits some essential element of a ground of recovery
and the element or ground is submitted to the jury over the objection of the
party without the burden of proof, the objecting party is entitled to rendition
of judgment in its favor, even if the jury returns a finding on the submission
in favor of the party with the burden of proof. See TEX. R. CIV. P. 279;
Mangum v. Turner, 255 S.W.3d 223, 227 (Tex. App.—Waco 2008, pet.
denied) (citing [State Dep’t of Highways and Pub. Transp. v.] Payne, 838
S.W.2d [235,] 241 (Tex. 1992); McKinley v. Stripling, 763 S.W.2d 407, 410
(Tex. 1989)). . . . The objection or request places the burden of submitting
a correct question on the party with the burden of proof, not the trial court,
and the result of that party’s failure to submit a correct question after
objection is waiver of the ground.[ ] See McKinley, 763 S.W.2d at 410;
Mangum, 255 S.W.3d at 227.

Enbridge Pipelines (E. Tex.), L.P. v. Gilbert Wheeler, Inc., 393 S.W.3d 921, 928–29 (Tex.

App.—Tyler 2013, pet. filed) (op. on reh’g); see Lee v. Lee, No. 01-12-00117-CV, 2013

WL 4430882, at *16 (Tex. App.—Houston [1st Dist.] Aug. 20, 2013, no pet. h.) (citing

DiGiuseppe v. Lawler, 269 S.W.3d 588, 598–99 (Tex. 2008) (en banc)); Cameron County

v. Velasquez, 668 S.W.2d 776, 781 (Tex. App.—Corpus Christi 1984, writ ref’d n.r.e.)

(“[W]here the plaintiff fails to request an issue . . . essential to plaintiffs’ recovery, and the

issue is not submitted, judgment must be rendered for the defendant.”) (citation omitted);

see also Payne, 838 S.W.2d at 241 (concluding that “Payne was not entitled to recover on

his special defect theory as a matter of law” because he had not included an element of
28
his claim—a finding that he lacked knowledge of the culvert—in his broad-form charge

and that element could not “be deemed in Payne’s favor because the State objected to

the omission by requesting a jury question on that issue”) (citing TEX. R. CIV. P. 279;

Morris v. Holt, 714 S.W.2d 311, 312–13 (Tex. 1986)).

As set forth above, the Bank properly objected to the charge and tendered a

substantially correct form of the question requesting exemplary damages. Yet the trial

court submitted the charge without the proper standard. Barth had the burden to prove

the requirements of section 41.003 and to request a question that included the correct

standard. After the Bank’s objection, Barth failed to submit a correct question with the

required standard of care, and so Barth waived that ground of relief. See Lee, 2013 WL

4430882, at *16; Enbridge Pipelines, 393 S.W.3d at 928–29; Mangum, 255 S.W.3d at

227; see also Yeckel v. Abbot, No. 03-04-00713-CV, 2009 WL 1563587, at *10–12 (Tex.

App.—Austin 2009, pet. denied) (mem. op.) (explaining that the jury’s answer to the

punitive damages question was immaterial in the absence of chapter 41 requirements).

Because Barth did not secure an exemplary damage award based on the required

standard set out in section 41.003, he was not entitled to an award of exemplary damages

on his fraud claim. We sustain the Bank’s fourth issue. We also sustain the Bank’s

sixth issue to the extent it complains that Barth waived any opportunity to obtain

exemplary damages by affirmatively declining to modify his proposed jury questions and

instructions.

VI. ATTORNEY’S FEES

By its fifth and sixth issues, the Bank complains that the trial court erred by

awarding recovery of attorney’s fees because there was no basis for the award. We
29
agree.

Texas law does not permit recovery of attorney’s fees unless authorized by statute

or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). We

have concluded that limitations barred Barth’s statutory DTPA claim, leaving him with no

statutory basis for his fees. See TEX. BUS. & COM. CODE ANN. § 17.50. And even if a

contract between Barth and the Bank authorized attorney’s fees, Barth chose to abandon

any contract claim he might have and elected to pursue his fraud claim. So he had no

contractual basis for attorney’s fees. Finally, regarding his fraud claim, Barth could

recover economic damages, mental anguish, and exemplary damages, but not attorney’s

fees. See MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 667

(Tex. 2009); Chapa, 212 S.W.3d at 304.

Based on our de novo review of the trial court’s denial of the Bank’s motion for

JNOV, we conclude that the legal principles set out above prevented the trial court from

entering a judgment awarding attorney’s fees. See MBM Fin. Corp., 292 S.W.3d at 667;

Chapa, 212 S.W.3d at 304; see also Quick, 7 S.W.3d at 116; In re Humphreys, 880

S.W.2d at 404; Hicks, 348 S.W.3d at 284; United Parcel Serv., 25 S.W.3d at 916 n.4.

We sustain the Bank’s fifth issue and its sixth issue to the extent it challenges the award of

attorney’s fees.

VII. CONCLUSION

We affirm that portion of the trial court’s judgment awarding actual damages on

Barth’s fraud claim. We reverse that portion of the judgment awarding exemplary

damages and attorney’s fees and render judgment deleting these awards. And having

concluded that Barth’s DTPA claim is barred by the two-year statute of limitations, we also
30
reverse that portion of the judgment awarding additional damages in the amount of

$85,989.93 as a result of the jury’s findings that the Bank committed knowing violations of

the DTPA, if the exemplary damage award is not upheld, and render judgment that Barth

take nothing on his DTPA claim.

NELDA V. RODRIGUEZ
Justice

Delivered and filed the 17th
day of October, 2013.

31