                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                              NO. 09-17-00026-CV
                            ____________________

                       MELISSA BARCLAY, Appellant

                                        V.

                       AURY GENE RICHEY, Appellee

________________________________________________________________________

                   On Appeal from the 136th District Court
                         Jefferson County, Texas
                        Trial Cause No. D-194,462
________________________________________________________________________

                            MEMORANDUM OPINION

      In a dispute over ownership of a house, Melissa Barclay appeals the trial

court’s final amended judgment claiming the trial court erred by (1) denying her

motion for instructed verdict on Aury Gene Richey’s counterclaim for reformation

of deed, (2) awarding excessive damages for unjust enrichment to Richey, and (3)

failing to award Barclay reasonable and necessary attorney’s fees on her declaratory

judgment cause of action.


                                         1
      We conclude the trial court properly denied Barclay’s directed verdict on

Richey’s counterclaim for reformation of deed. We also determine the damages

awarded to Richey for unjust enrichment were properly supported by the evidence

with respect to the sums awarded for Richey’s payment of property taxes, for payoff

of Barclay’s mortgage, and for remodeling of the residence. However, the evidence

is legally insufficient to support the award of unjust enrichment damages for

premiums Richey paid to insure the property. We modify the amended final

judgment to strike that portion of the damages awarded to Richey for payment of

insurance premiums. With respect to Barclay’s claim for attorney’s fees, we

conclude the trial court properly denied Barclay’s claim for attorney’s fees on her

declaratory judgment claim. We affirm the trial court’s amended final judgment as

modified.

                                  Background

      Barclay purchased the property at issue in 2000, obtaining a mortgage secured

by a purchase money security interest. Barclay admittedly fell behind on payments,

and foreclosure was imminent. According to Barclay, in order to avoid foreclosure

in February 2007, Richey, her stepfather, loaned her approximately $78,000.00 to

pay off the outstanding note and obtain a release of lien on the home. In February

2009, a dispute arose over what Barclay agreed to in return for Richey’s payment of

                                        2
the balance of her mortgage. It is undisputed Richey paid the balance owed to

Barclay’s lender for the purchase money mortgage on the home. Barclay asserted

that in exchange for the money, she signed a promissory note and deed of trust to

repay Richey in the amount he paid to extinguish her mortgage, $78,733.15, plus

12% interest. Richey contended that Barclay agreed to sell him her home and execute

a lease with the option to buy back the home in two years.

      According to Barclay, for the next twenty-seven months—March 2007 until

March or April 2009—she paid $1,000.00 a month either by check or in cash to

satisfy the note Richey held. In 2009, when Barclay sought to obtain a loan to repay

Richey, she was informed she no longer owned the home because Richey recorded

a warranty deed in February 2009 transferring ownership of the property to himself.

Barclay confronted Richey, and he told her he owned the home and she could

repurchase the home for $106,000.00, rather than the balance of the promissory note

between them. Shortly thereafter, Barclay moved from the home to another house

where she resided at the time of trial and ceased making payments to Richey.

      Richey testified that in exchange for paying off Barclay’s mortgage, Barclay

agreed to sell her house to him, lease the home from him for a $1,000.00 per month,

and receive an option to repurchase the home within two years. Richey explained

his agreement with Barclay was similar to an agreement she was going to make with

                                         3
another financial institution to avoid foreclosure, but his terms were more financially

favorable to Barclay. Richey also stated that Kae Richey, his wife and Barclay’s

mother, filled out the documents, but no documents were signed until the following

day when Richey and Barclay went to his bank where he wired the money to pay off

her mortgage. Richey claimed Barclay signed the warranty deed, a lease, and a

repurchase agreement at the bank in the presence of a notary.

      Barclay denied ever signing a warranty deed, residential lease agreement, or

an option to purchase the home, maintaining she never agreed to sell her house to

Richey. Barclay testified to the terms of the note, stating the interest rate was twelve

percent, with payments of $1,000.00 per month. However, she did not have a copy

of the documents she claimed she signed. Barclay’s mother, Kae, testified Richey

offered or gave Barclay signed copies of the deed, lease agreement, and option to

repurchase after they were executed at the bank.

      Barclay admitted at trial she did not read any of the documents she signed

because the agreement was with her parents. Barclay stated, however, that what she

signed was handwritten, had a lot of scratch outs, and was done very quickly at her

parents’ house. When shown pages from a notary book she allegedly signed, Barclay

questioned whether her signature was forged.1 Nonetheless, Barclay stated she knew


      1
          The Notary Public did not testify at trial.
                                             4
whatever she signed at the bank was not a warranty deed requiring her signature to

be notarized; rather, it was something for the wire transfer to pay off her outstanding

mortgage.

      The parties also disagreed about the amount of money Barclay paid Richey

from February 2007 through early 2009. Barclay testified she paid Richey twenty-

seven payments of $1,000.00 before she moved out and ceased paying. However,

Barclay did not produce written evidence of every payment. To support her claim of

partial payment, she submitted a checkbook registry evidencing only five $1,000.00

payments. Kae kept handwritten records that reflected Barclay paid, at most,

$9,000.00, but Kae could not completely decipher her notes at trial. Nevertheless,

while Richey claimed Barclay rented the house from him after he paid the mortgage

off, Richey did not report any rental income on his 2007 tax return. On his 2008 tax

return, Richey reported $6,000.00 in rental income from the property and in 2009,

he reported $3,000.00 in rental income.

      Richey explained that because Barclay failed to pay in accordance with their

agreement, he filed the original executed warranty deed for record on February 17,

2009. Later, after seeking legal counsel, Richey added a more detailed property

description and other changes to the original executed warranty deed and re-recorded




                                          5
the “corrected” deed on July 22, 2009.2 Richey testified, and Barclay acknowledged,

he paid property taxes for the property from 2007 through 2014 in the total amount

of $23,672.32. Richey also testified he purchased homeowner’s insurance for the

property after Barclay moved out in 2009. Richey testified he paid insurance

premiums on multiple properties he owned, including the house at issue, from 2009

until 2012, which totaled $12,852.00. Richey further testified that from May 2013

until the time of trial, he paid property insurance premiums solely for the property

in question in the total amount of $7,388.97. Barclay explained that Richey began

insuring the property because after he recorded the warranty deed in 2009, the tax

receipts and all other notices pertaining to the property were sent to Richey instead

of her, and she could no longer insure the house.




      2
         Deposition testimony was provided by Eddie Schroeder, an attorney,
concerning the deeds Richey filed in the real property records wherein Barclay
allegedly conveyed the house to Richey. Schroeder, who represented Richey
regarding the deed, advised him the original deed did not contain a sufficient legal
description, and the deed needed to be amended and refiled with a sufficient
description to locate the property. Schroeder prepared an amended deed containing
the legal description, and the amended deed was filed for record. Schroeder
explained he considered the original deed a conveyance of the property to Richey
but needed an amendment to identify the proper legal description. However,
Schroeder acknowledged he never met Barclay and did not know for certain that she
signed the original deed. Schroeder could not explain the reason for changing the
date on the first page of the deed from February 1, 2007 to April 25, 2000 on the
correction deed.
                                         6
       Richey further testified that in May 2011, he began remodeling the house.

Richey explained the remodeling was extensive, to both the interior and exterior. He

stated that Kae performed much of the labor on the house. Barclay admitted she saw

people working in the house and acknowledged the exterior of the home was painted.

However, she testified that when she observed the Richeys working on the home,

she told them to stop but they continued.

      Kae also testified about remodeling the house and explained she kept

handwritten notes regarding the expenses incurred. She estimated a total of

$50,000.00 was incurred for materials and labor remodeling the house. An expense

report for materials was admitted into evidence showing a total of $20,230.60.

      In pretrial proceedings, the trial court granted summary judgment in favor of

Barclay on her declaratory judgment claim rendering the warranty deed filed for

record on February 17, 2009, void for vagueness because of an insufficient property

description. Additionally, the correction deed filed for record on July 22, 2009, was

held to be void because it lacked Barclay’s original signature. Thereafter, on May 1,

2015, the trial court granted a severance of those claims for which he granted partial

summary judgment into a separate action, Cause No. D-194,462-A, and signed a

final judgment in the severed cause. The trial court included a recitation that the final




                                            7
judgment was to be “a final appealable judgment as it disposes of all claims of

plaintiff and defendant under Cause No. D-194,462-A.”

      After a jury trial and post-judgment hearings in the original cause, the trial

court rendered its final amended judgment that Barclay take nothing from Richey on

her claims of fraud, statutory fraud, and conversion. The judgment ordered Richey

take nothing on his reformation of deed claim, thereby rendering ownership of the

property to Barclay. The final amended judgment awarded Richey unjust enrichment

damages against Barclay in the following amounts: (1) $78,733.15 for paying off

Barclay’s mortgage; (2) $18,500.00 for expenses incurred in remodeling of the

residence; (3) $23,672.32 for payment of property taxes; and (4) $7,800.00 for

payment of insurance premiums. The trial court denied any award of attorney’s fees

asserting it no longer retained jurisdiction to award attorney’s fees on the declaratory

judgment claims.

      Barclay raises three issues complaining of the trial court’s denial of her motion

for directed verdict on Richey’s counterclaim for reformation of deed, the award of

certain damages to Richey on the grounds of unjust enrichment, and the denial of

her attorney’s fees for her successful declaratory judgment.




                                           8
                            Motion for Directed Verdict

      In her first issue, Barclay argues the trial court erred in denying her motion

for directed verdict on Richey’s counterclaim for reformation of deed. On appeal,

Barclay contends Richey’s claim for reformation of deed should not have been

submitted to the jury, because it was barred by the statute of limitations and by the

statute of frauds. However, when Barclay moved for directed verdict at trial, she

only asserted Richey failed to prove the elements of his reformation of deed claim

by failing to provide evidence of a prior written agreement complying with the

statute of frauds. The trial court denied Barclay’s motion and referred to its reasoning

being the same as when it denied Barclay’s motion for summary judgment, which

included assertions of both affirmative defenses of statute of limitations and statute

of frauds.

      The jury rejected Richey’s reformation of deed claim. Barclay, however,

contends if the trial court had properly granted her directed verdict and the

reformation of deed question had not been presented to the jury, the jury may have

found differently on her own fraud claims against Richey. While her assertion of

harm is considerably speculative, we need not address whether there was a conflict

in the jury’s answers to the questions if we determine the trial court properly denied

her motion for directed verdict. Moreover, because Barclay limited her argument at

                                           9
trial to the statute of frauds, we limit our review to determining whether her directed

verdict should have been granted only on statute of frauds grounds. See Knapp v.

Wilson N. Jones Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no

pet.) (explaining “a party’s argument on appeal must comport with its argument in

the trial court”); see also Tex. R. App. P. 33.1(a)(1).

      In his live pleadings, Richey counterclaimed against Barclay seeking

reformation of the February 1, 2007 deed he filed for record on February 17, 2009,

based on mutual mistake. Richey and Kae testified Barclay agreed to sell Richey her

house in exchange for his payment of the outstanding mortgage to a third-party

lender to avoid foreclosure. Both Richey and Kae explained the agreement took

place at their home and Barclay provided the deed form to be filled out. They also

stated Kae completed the deed form using other documents from another proposed

buyout transaction Barclay rejected as a guide. Richey then testified he and Barclay

executed the deed at the bank in the presence of the notary on February 1, 2007, the

day Richey transferred the funds to pay off Barclay’s mortgage. Following the

recording of the original warranty deed in February 2009, Richey explained he

sought legal advice concerning the deed, which resulted in refiling the deed with a

proper legal description as a correction deed. However, Richey failed to have

Barclay execute a new corrected warranty deed. Instead, he re-recorded the same

                                          10
deed with the added property description and other changes. Following the trial

court’s findings that the original deed was void for vagueness because it lacked a

proper legal description and the correction deed void because Barclay did not sign

after it was amended, Richey sought reformation of the original deed based on his

alleged agreement with Barclay that she sell her house to him in exchange for paying

off her mortgage.

      We review a trial court’s decision on a motion for directed verdict under the

same standard of review as a legal sufficiency or no evidence challenge. See City of

Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); Haynes & Boone, L.L.P. v.

Chason, 81 S.W.3d 307, 309 (Tex. App.—Tyler 2001, pet. denied) (citing Lochinvar

Corp. v. Meyers, 930 S.W.2d 182, 187 (Tex. App.—Dallas 1996, no writ)) (“An

appeal from the denial of a motion for directed verdict is . . . a challenge to the legal

sufficiency of the evidence.”). “[A] directed verdict is proper only if the evidence

conclusively establishes the movant’s right to judgment, negates the opponent’s

right to judgment, or is insufficient to raise a fact issue on a vital fact.” In re Estate

of Longron, 211 S.W.3d 434, 438 (Tex. App.—Beaumont 2006, pet. denied) (citing

Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000);

Boswell v. Farm & Home Sav. Ass’n, 894 S.W.2d 761, 768 (Tex. App.—Fort Worth

1994, writ denied)).

                                           11
       At the close of Richey’s evidence, Barclay moved for directed verdict arguing

the statute of frauds barred Richey’s reformation claim. See Tex. Bus. & Comm.

Code Ann. § 26.01 (West 2015). Specifically, Barclay claims Richey’s reformation

claim is barred as a matter of law because there is no written document evidencing

an agreement to sell her home to Richey, and the statute requires an agreement for

the sale of real estate to be in writing. Id. § 26.01(a), (b)(4).

       The Texas Supreme Court has stated “[t]he statue of frauds, [under section

26.01 of the Business and Commerce Code], is no bar to the reformation of a contract

for the sale of land where the parties had an agreement and by their mutual mistake

failed to state the agreement in the writing.” Nat’l Resort Communities, Inc. v. Cain,

526 S.W.2d 510, 513 (Tex. 1975). A court may reform a contract to correct a mutual

mistake in preparing a written instrument. See Cherokee Water Co. v. Forderhause,

741 S.W.2d 377, 379 (Tex. 1987); see also BH Contractors, LLC v. Helix Energy

Sols. Grp., Inc., No. 14-15-01035-CV, 2017 WL 3611887, at *3 (Tex. App.—

Houston [14th Dist.] Aug. 22, 2017, pet. denied) (mem. op.). “[R]eformation

requires two elements: (1) an original agreement[;] and (2) a mutual mistake, made

after the original agreement, in reducing the original agreement to writing.”

Cherokee Water, 741 S.W.2d at 379 (citing Sun Oil Co. v. Bennett, 84 S.W.2d 447,

451 (Tex. 1935)). “It is not enough that the writing differed from the oral

                                            12
agreement.” Cain, 526 S.W.2d at 514 (citing Estes v. Republic Nat’l Bank of Dall.,

462 S.W.2d 273 (Tex. 1970)); Sun Oil Co., 84 S.W.2d at 451. The parties must have

had a “definite and explicit” agreement, and the agreement must have been reached

before the contract, which the party seeks to reform, was drafted. Champlin Oil &

Ref. Co. v. Chastain, 403 S.W.2d 376, 382 (Tex. 1965); see Cherokee Water, 741

S.W.2d at 379. “A scrivener’s failure to embody the true agreement of the parties in

a written instrument is a ground for reformation on the basis of mutual mistake.”

Gail v. Berry, 343 S.W.3d 520, 524 (Tex. App.—Eastland 2011, pet. denied) (citing

Cornish v. Yarbrough, 558 S.W.2d 28, 32 (Tex. Civ. App.—Waco 1977, no writ)).

      “Parol evidence is admissible to show that the writing, because of a mutual

mistake, incorrectly reflects the true agreement, and that the equitable remedy of

reformation is available to correct such a mutual mistake in the written instrument.”

Hardy v. Bennefield, 368 S.W.3d 643, 650 (Tex. App.—Tyler 2012, no pet.) (citing

Estes, 462 S.W.2d at 275). The underlying objective of reformation is to make the

written instrument, i.e., the deed, express the original bargain the parties desired to

put in writing. Cherokee Water, 741 S.W.2d at 379; Cain, 526 S.W.2d at 514. The

Supreme Court explained in Cain that the requirements for reformation can be

satisfied when, for example, the parol evidence indicates the mistake in the writing

reflected a mutual mistake in the description in the written contract, not the identity

                                          13
of the property itself. Cain, 526 S.W.2d at 514 (referring to the retrial of Shotwell v.

Morrow, 498 S.W.2d 432, 434 (Tex. Civ. App.—Eastland 1973, writ ref’d n.r.e.)).

The Cain Court relied on its reasoning from a prior decision, Morrow v. Shotwell,

wherein the Court reversed and remanded a case, stating:

      [t]here is in the record strong evidence that the parties intended to
      describe a particular and identified tract of 12.375 in their contract, and
      that they were mutually mistaken in the belief that the description used
      was legally sufficient for that purpose. If that be a fact, Morrow would
      have been entitled to reformation of the contract had he sought it.

Id. (quoting Morrow v. Shotwell, 477 S.W.2d 538, 541 (Tex. 1972)).

      Because parol evidence is admissible to determine a fact issue as to whether

the parties reached a mutual oral agreement for Barclay to sell her house to Richey

in exchange for him paying off her mortgage, but the attempt to reduce the agreement

to a writing—the February 1, 2007 original deed—contained an overly vague

property description to be effective, the statute of frauds did not bar Richey’s

reformation of deed counterclaim. Id. at 513. We conclude the trial court did not err

in denying Barclay’s motion for directed verdict. See Estate of Longron, 211 S.W.3d

at 438. We overrule her first issue.

                                 Unjust Enrichment

      While acknowledging she benefited from her agreement with Richey,

regardless of its terms, Barclay asserts in her second issue that the evidence is legally

                                           14
and factually insufficient to support certain damages awarded to Richey for unjust

enrichment. Specifically, Barclay concedes Richey is entitled to receive the full

amount of property taxes he paid on the property. Barclay also acknowledges that

Richey should receive the amount he paid to pay off her mortgage, but that the

amount should be offset by the sum of the $1,000.00 monthly payments she paid to

him. With respect to the damages awarded to Richey for expenses incurred in the

remodeling of the residence, Barclay contends she did not request repairs or

remodeling to the home, and she received no benefit from Richey’s work on the

house. Thus, no damages should have been awarded for this portion of Richey’s

unjust enrichment claim. Finally, as Barclay was not the named insured with respect

to the homeowner’s insurance, she received no benefit and argues Richey should

receive no damages for the premiums he paid.

      In a jury trial, a legal sufficiency issue must be preserved by one of the

following in the trial court: (1) a motion for instructed verdict; (2) a motion for

judgment notwithstanding the verdict; (3) an objection to the submission of the

question to the jury; (4) a motion to disregard the jury’s answer to a vital fact

question; or (5) a motion for new trial. See T.O. Stanley Boot Co. v. Bank of El Paso,

847 S.W.2d 218, 220–21 (Tex. 1992) (citing Aero Energy, Inc. v. Circle C Drilling

Co., 699 S.W.2d 821, 822 (Tex. 1985)); Cecil v. Smith, 804 S.W.2d 509, 510–11

                                         15
(Tex. 1991). To complain on appeal that a jury finding is not supported by factually

sufficient evidence or that the damages found by the jury are excessive, a party must

have first raised the matter in a motion for new trial. See Tex. R. Civ. P. 324(b)(2),

(4); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 281

(Tex. 1994); Cecil, 804 S.W.2d at 510.

      During the jury charge conference, Barclay objected to parts of jury questions

twelve and thirteen, which asked whether Barclay was unjustly enriched and, if so

by how much, regarding Richey’s unjust enrichment claims for amounts he

expended for remodeling the house and paid toward property insurance premiums.

The trial court overruled her objections to the charge. Then, post-verdict, Barclay

filed a “Motion for Judgment” requesting the trial court enter judgment awarding

only those damages for unjust enrichment allowable under Texas law. Within the

proposed judgment filed by Barclay, she contended the evidence was legally

insufficient to support a finding she was unjustly enriched by any amounts Richey

claimed to have paid for remodeling or insuring the house. While acknowledging

Richey was entitled to damages based on the amount he paid to extinguish her

mortgage, for the first time, Barclay asserted in her motion that she was entitled to

an offset against the amounts awarded by what she allegedly repaid to Richey.




                                         16
      After a hearing, the trial court awarded Richey the following for unjust

enrichment in its amended final judgment: (1) $78,733.15 for payoff of Barclay’s

mortgage; (2) $18,500.00 for remodeling the residence; (3) $23,672.32 for payment

of property taxes; and (4) $7,800.00 for payment of insurance premiums.

      Unjust enrichment is an equitable theory that provides for the person receiving

benefits unjustly to make restitution for those benefits. Tex. Integrated Conveyor

Sys. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 367 (Tex. App.—

Dallas 2009, pet. denied). “A party may recover under the unjust enrichment theory

when one person has obtained a benefit from another by fraud, duress, or the taking

of an undue advantage.” Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d

39, 41 (Tex. 1992). A key element of unjust enrichment is showing the person sought

to be charged wrongfully secured or passively received a benefit it would be

unconscionable to maintain. Villarreal v. Grant Geophysical, Inc., 136 S.W.3d 265,

270 (Tex. App.—San Antonio 2004, pet. denied) (quoting City of Corpus v. S.S.

Smith & Sons Masonry, Inc., 736 S.W.2d 247, 250 (Tex. App.—Corpus Christi

1987, writ denied)). It is not enough that the person sought to be charged received

some incidental benefit. See Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307,

310 (Tex. 1985).




                                         17
      A. Property Taxes

      Barclay does not contest the damages awarded to Richey for payment of

property taxes. Therefore, we affirm the unjust enrichment damages awarded to

Richey in the amount of $23,672.32.

      B. Payoff of Mortgage

      Barclay acknowledges that Richey is entitled to damages for paying off her

mortgage. However, she contends the amount of damages should be reduced or

offset by the amount she paid to him. As we stated above, to preserve a factual

sufficiency complaint following a jury trial, Barclay was required to file a motion

for new trial, which she failed to file. See Tex. R. Civ. P. 324(b)(2), (4). While

Barclay set forth her calculations and reasoning supporting what she contended was

the proper damage amount Richey should be awarded for the mortgage payoff in her

proposed judgment, we conclude the substance of that pleading does not contain the

necessary arguments to preserve her complaint for review. See id.; Daniels v. Empty

Eye, Inc., 368 S.W.3d 743, 749 (Tex. App.—Houston [14th Dist.] 2012, pet. denied)

(citing Tex. R. Civ. P. 71; Ryland Enter., Inc. v. Witherspoon, 355 S.W.3d 664, 666

(Tex. 2011)).

      Nevertheless, even if we considered her issue preserved, the right to an offset

or reduction in an amount owed is an affirmative defense. Brown v Am. Transfer &

                                         18
Storage Co., 601 S.W.2d 931, 936 (Tex. 1980); Lone Starr Multi-Theatres, Ltd. v.

Max Interests, Ltd., 365 S.W.3d 688, 704 (Tex. App.—Houston [1st Dist.] 2011, no

pet.); Rauscher Pierce Refsnes, Inc. v. Great Sw. Sav., F.A., 923 S.W.2d 112, 117

(Tex. App.—Houston [14th Dist.] 1996, no writ). Therefore, Barclay bore the

burden of proof to plead and prove an offset or reduction to the amount of damages

owed Richey for his payment of Barclay’s mortgage. See Tex. R. Civ. P. 94; Brown,

601 S.W.2d at 936; Rauscher Pierce Refsnes, 923 S.W.2d at 117. Barclay failed to

plead offset and Barclay does not argue the parties tried the defense by consent other

than to state the issue was an evidentiary issue, and Richey did not object to evidence

of her payments to Richey. In any case, Barclay did not request or submit proposed

questions or instructions for the jury to make any findings related to the defense of

offset as to the damages awarded Richey for paying off Barclay’s mortgage. As a

result, regardless of whether the issue questioning the factual sufficiency of the

evidence supporting the damages awarded to Richey for the payoff of Barclay’s

mortgage is properly before us, Barclay waived this issue by failing to request

findings concerning her alleged offset. See Lone Starr, 365 S.W.3d at 704; Columbia

Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 862 (Tex. App.—

Fort Worth 2003, pet. denied); see also Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 272,




                                          19
274. We affirm the trial court’s award of unjust enrichment damages in the amount

of $78,733.15 to Richey for paying off Barclay’s mortgage.

      C. Remodeling of the Residence

      Barclay objected at trial to jury questions twelve and thirteen contending there

was no evidence she benefited from Richey’s remodeling or repairing the residence.

Barclay argued at trial and on appeal there was “no evidence of the increase in the

market value” of the home. Accordingly, she contended the remodeling subpart of

the unjust enrichment claim should be eliminated as there was no evidence she was

unjustly enriched.

      “When a party attacks the legal sufficiency of an adverse finding on which it

did not have the burden of proof, it must demonstrate that there is no evidence to

support the adverse finding.” O’Brien v. Daboval, 388 S.W.3d 826, 837–38 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (citing Croucher v. Croucher, 660 S.W.2d

55, 58 (Tex. 1983); Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380, 385

(Tex. App.—Dallas 2003, pet. denied)). In conducting a legal sufficiency review,

we credit favorable evidence if a reasonable factfinder could and disregard contrary

evidence unless a reasonable factfinder could not. City of Keller, 168 S.W.3d 802 at

827. We consider the evidence in the light most favorable to the finding and indulge

every reasonable inference that would support it. Id. at 822. We will sustain a no-

                                         20
evidence point only if (1) the record reveals a complete absence 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 conclusively establishes the

opposite of the vital fact. Id. at 810; Merrell Dow Pharms., Inc. v. Havner, 953

S.W.2d 706, 711 (Tex. 1997). If more than a scintilla of evidence exists to support a

finding, the legal sufficiency challenge fails. Haggar Clothing Co. v. Hernandez,

164 S.W.3d 386, 388 (Tex. 2005) (citing Formosa Plastics Corp. USA v. Presidio

Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)).

      The factfinder is the sole judge of the credibility of witnesses and the weight

to be given their testimony; the factfinder is free to choose to believe one witness

over another. Pitts & Collard, L.L.P. v. Schechter, 369 S.W.3d 301, 312 (Tex.

App.—Houston [1st Dist.] 2011, no pet.) (citing City of Keller, 168 S.W.3d at 819).

It is for the factfinder to resolve conflicting evidence, and we may not impose our

own opinion in opposition to the factfinder’s implied credibility determinations. Id.

If the evidence at trial would enable reasonable and fair-minded people to differ in

their conclusions, then jurors must be allowed to do so. City of Keller, 168 S.W.3d

at 822.




                                           21
      Richey and Kae testified to the work performed, amounts they paid to remodel

the house, and submitted numerous receipts and pictures supporting their

testimonies. Barclay’s children acknowledged the improvements to the property.

Barclay also conceded the home’s exterior had at least been painted. The remodeling

labor and materials Richey paid for became an inseparable part of the residence.

Because of the jury’s favorable ruling that Barclay did not agree to sell her home to

Richey and the trial court’s pretrial grant of summary judgment relief setting aside

the warranty deeds to Richey, Barclay remains the owner of the property. Therefore,

Barclay retains the benefits of the remodel work paid for by Richey. See Eun Bok

Lee v. Ho Chang Lee, 411 S.W.3d 95, 112–13 (Tex. App.—Houston [1st Dist.] 2013,

no pet.) (holding evidence legally sufficient to support unjust enrichment claims

based on evidence of the value of installed pieces of equipment and personal

property retained by one being charged with being unjustly enriched); see also City

of Hous. v. Swinerton Builders, Inc., 233 S.W.3d 4, 10 n.7 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (explaining under another equitable doctrine, quantum

meruit, that the proper measure of damages includes the reasonable value of the work

performed and the materials furnished).

      Viewing the evidence in the light most favorable to the judgment, we conclude

that more than a scintilla of evidence supports the findings and damages awarded as

                                          22
costs paid for remodeling the house under Richey’s unjust enrichment claim. We

affirm the judgment’s award of damages as determined by the jury and trial court in

the amount of $18,500.00 for remodeling the residence.3

      D. Insurance Premiums

      Barclay objected to jury questions twelve and thirteen submitting the unjust

enrichment damage issues to the jury, arguing, among other things, there was no

evidence she benefited from homeowner’s insurance carried by and paid for by

Richey on the home. At trial, Richey testified he insured the home from 2009 until

the time of trial. No evidence suggested homeowner’s insurance was required under

the terms of any agreement alleged by Richey, that Barclay was named as an

additional insured on any policy obtained, or that a claim was submitted during this

time and proceeds used to benefit the residence. We find no evidence or inference

that Richey obtained the insurance for Barclay’s sake. To the contrary, Richey

maintained he owned the home and Barclay was no more than a lessee during the

period he provided the insurance. Thus, we conclude there was no evidence that

Barclay received any benefit from Richey maintaining insurance on the house. See


      3
        We do not address any potential issue concerning the factual sufficiency of
the award. Barclay neither argued the evidence was factually insufficient to support
the award nor filed a motion for new trial to preserve a factual sufficiency complaint
regarding the sufficiency or adequacy of the evidence supporting the amount
awarded. See Tex. R. Civ. P. 324(b)(2), (4).
                                         23
Heldenfels Bros., 832 S.W.2d at 41; Tex. Integrated Conveyor Sys., 300 S.W.3d at

367; Villarreal, 136 S.W.3d at 270. The evidence is legally insufficient to support

the damage award for Richey’s payment of insurance premiums. See City of Keller,

168 S.W.3d at 810. Unjust enrichment occurs when the person sought to be charged

has wrongfully secured a benefit or has passively received one which it would be

unconscionable to retain. Villarreal, 136 S.W.3d at 270. A person is unjustly

enriched when he obtains a benefit from another by fraud, duress, or the taking of

an undue advantage. Heldenfels Bros., 832 S.W.2d at 41. There is no legal or

equitable basis for Richey to prevail on this claim. We sustain this portion of

Barclay’s second issue and reverse the trial court’s judgment awarding Richey

$7,800.00 in unjust enrichment damages for the payment of insurance premiums.

      In conclusion, after reviewing the unjust enrichment damages awarded to

Richey, we affirm the following awards (1) $78,733.15 for payoff of Barclay’s

mortgage, (2) $18,500.00 for the remodeling the residence, and (3) $23,672.32 for

payment of property taxes. We reverse the damages award to him for unjust

enrichment for payment of insurance premiums and render Richey take nothing for

this portion of his claim. The amended final judgment shall be modified to read:

“$0.00 for payment of insurance premiums.” See Tex. R. App. P. 43.2(c). We affirm

in part and overrule in part Barclay’s second issue.

                                         24
                                   Attorney’s Fees

      In her third issue, Barclay contends the trial court should have awarded her

reasonable and necessary attorney’s fees required to obtain the pretrial declaratory

judgment regarding the deeds Richey filed for record. Both the trial court and Richey

maintain the lower court no longer maintained plenary power to award attorney’s

fees, and thus any claim for attorney’s fees is barred. We agree.

      On June 13, 2014, in addition to numerous rulings in an interlocutory order,

the trial court granted Barclay’s motion for summary judgment on her declaratory

judgment claims. Then, on May 1, 2015, the trial court granted Richey’s motion

requesting the trial court sever the claims for which it granted motions for partial

summary judgment on June 13, 2014, including Barclay’s declaratory judgment

claim, from the remaining claims into a separate cause. The severance order

specifically proclaimed it did not dispose of Barclay’s claim for attorney’s fees on

her declaratory judgment claim, but rather continued the attorney’s fees request with

the remainder of the case. No further action was taken regarding the severance order.

Despite the trial court’s notification to Barclay she was not entitled to attorney’s fees

for her declaratory judgment claim following the jury trial, she presented her

evidence regarding the fees to the trial court in a hearing to the bench. After

presenting her evidence, the trial court again rejected her claim reiterating it lacked

                                           25
jurisdiction to award Barclay attorney’s fees as the prevailing party on her

declaratory judgment claim, because the trial court previously severed that portion

of the claim.

      Rule 41 of the Texas Rules of Civil Procedure states “[a]ny claim against a

party may be severed and proceeded with separately.” Tex. R. Civ. P. 41. Generally,

a trial court has broad discretion in the severance of cases, and its decision will not

be disturbed absent an abuse of discretion. Guar. Fed. Sav. Bank v. Horseshoe

Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (citations omitted); In re Henry,

388 S.W.3d 719, 726 (Tex. App—Houston [1st Dist.] 2012, orig. proceeding). “The

controlling reasons for a severance are to do justice, avoid prejudice, and further

convenience.” Guar. Fed. Sav. Bank, 793 S.W.2d at 658 (citing St. Paul Ins. Co. v.

McPeak, 641 S.W.2d 284 (Tex. App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.)).

A trial court properly exercises its discretion in severing claims if (1) the controversy

involves more than one cause of action, (2) the severed claim is one that could be

asserted independently in a separate lawsuit, and (3) the severed claim is not so

interwoven with the remaining action that they involve the same facts and issues. In

re Henry, 388 S.W.3d at 726 (citing In re Liu, 290 S.W.3d 515, 520 (Tex. App.—

Texarkana 2009, orig. proceeding)).




                                           26
      Regardless of the broad discretion in severing cases, such discretion should

not be exercised contrary to legal rules and principles applicable in the particular

case. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998) (discussing trial court’s

broad discretion when considering attorney’s fees). “Severance of a single cause of

action into two parts is never proper and should not be granted for the purpose of

enabling the litigants to obtain an early appellate ruling on the trial court’s

determination of one phase of the case.” Pierce v. Reynolds, 329 S.W.2d 76, 79 n.1

(Tex. 1959).

      The trial court’s severance necessarily implies a conclusion that Barclay’s

claim for declaratory relief under section 37.003 of the Declaratory Judgments Act

and her claim for attorney’s fees under section 37.009 of the Act can be adjudged in

independent lawsuits culminating in separate and distinct judgments. See Tex. Civ.

Prac. & Rem. Code Ann. §§ 37.003, 37.009 (West 2015). As the Austin Court of

Appeals explained, and we agree, these two claims are merely different phases of a

single cause of action, as even section 37.009 prescribes a single proceeding under

Chapter 37 of the Act. Dalisa, Inc. v. Bradford, 81 S.W.3d 876, 880 (Tex. App.—

Austin 2002, no pet.); see also Town of Flower Mound v. Upper Trinity Reg’l Water

Dist., 178 S.W.3d 841, 843 (Tex. App.—Fort Worth 2005, no pet.) (agreeing with

the reasoning in Dalisa that a severance of a claim for declaratory relief under

                                         27
section 37.003 of the Act from a claim for attorney’s fees under section 37.009 is

improper “because the two claims are merely different phases of a single cause of

action”). Thus, like the Dalisa Court, we conclude the trial court erred when it

severed Barclay’s claim for declaratory relief from her claim for attorney’s fees

under the Act. See Dalisa, 81 S.W.3d at 881.

      Barclay did not appeal the final judgment entered by the trial court in the

severed cause. Rather, she continued the case prosecuting her attorney’s fees claim

in this cause. Except in limited circumstances not applicable here, a party must raise

its complaint about improper severance at the time of the alleged improper

severance, not later. See Nicor Expl. Co. v. Fla. Gas Transmission Co., 911 S.W.2d

479, 482–83 (Tex. App.—Corpus Christi 1995, writ denied) (explaining the finality

of severance judgments if alleged error is not valid on the face of the severance). As

Barclay neither appealed from the severed cause, nor objected to the trial court’s

ruling severing her claim for attorney’s fees from the final judgment in the severed

cause, she waived her right to complain in the cause associated with this appeal about

the trial court’s decision that effectively severed her claim for attorney’s fees into

the cause in which she did not appeal. Thus, the trial court correctly ruled that it no

longer retained jurisdiction of the severed cause because its plenary power expired

thirty days after it rendered judgment in the severed cause. See Tex. R. Civ. P. 329b.

                                          28
      We conclude the trial court properly denied Barclay’s claim for attorney’s

fees. We overrule her third issue.

                                     Conclusion

      We overrule Barclay’s first issue pertaining to the trial court properly

overruling her motion for directed verdict on Richey’s reformation of deed

counterclaim. With respect to Barclay’s second issue concerning Richey’s award of

damages for unjust enrichment, we affirm in part and reverse and render in part. The

amended final judgment should reflect the following unjust enrichment damages

awarded to Richey (1) $78,733.15 for paying off Barclay’s mortgage, (2) $18,500.00

for remodeling the residence, (3) $23,672.32 for payment of property taxes, and (4)

$0.00 for payment of insurance premiums. We affirm the trial court’s denial of

Barclay’s claim for attorney’s fees. We affirm the amended final judgment of the

trial court, as modified.

      AFFIRMED IN PART; REVERSED AND RENDERED IN PART.



                                                   _________________________
                                                        CHARLES KREGER
                                                             Justice

Submitted on May 2, 2018
Opinion Delivered January 24, 2019

Before Kreger, Horton, and Johnson, JJ.
                                          29
