         NUMBERS 13-16-00210-CV AND 13-16-00463-CV

                      COURT OF APPEALS

              THIRTEENTH DISTRICT OF TEXAS

                CORPUS CHRISTI - EDINBURG


PLAINSCAPITAL BANK,                                   Appellant,

                              v.

RICARDO DIAZ MIRANDA,                                 Appellee.


            On appeal from the 275th District Court
                  of Hidalgo County, Texas.


                  NUMBER 13-16-00464-CV

                      COURT OF APPEALS

              THIRTEENTH DISTRICT OF TEXAS

                CORPUS CHRISTI - EDINBURG


                IN RE PLAINSCAPITAL BANK


              On Petition for Writ of Mandamus.
                            MEMORANDUM OPINION
             Before Justices Rodriguez, Benavides, and Longoria
                 Memorandum Opinion by Justice Benavides

        This consolidated appeal1 stems from three bank notes made by appellee Ricardo

Diaz Miranda (Diaz) and now held by appellant PlainsCapital Bank (PlainsCapital). By six

issues in appellate cause number 13-16-00210-CV, PlainsCapital asserts six legal

sufficiency challenges attacking the trial court’s judgment, including challenges to: (1) the

jury’s findings on (a) the amounts due on the notes, (b) fraud, and (c) prior material breach;

and (2) the trial court’s award of (a) rescission, (b) attorney’s fees, and (c) declaratory relief

in Diaz’s favor on one of the notes. In appellate cause number 13-16-00210-CV, we

reverse and render. In light of our disposition in appellate cause number 13-16-00210-

CV, we dismiss appellate cause numbers 13-16-00463-CV and 13-16-00464-CV as moot.

                                        I.       BACKGROUND

A.      Factual Background

        The record in this case shows that in 2011, Diaz sought financing for a cold-storage

business that he wanted to build along the Texas-Mexico border in Pharr, Texas. After

numerous failed attempts to obtain financing from other banks, Diaz eventually met with

Saul Ortega, a high-level officer of the now-defunct First National Bank. At this meeting,

Diaz provided Ortega with written materials that outlined Diaz’s plans to build the cold-

storage facility. According to Diaz, later in the meeting, Ortega made an oral commitment

to loan Diaz the money to build his cold-storage facility on the conditions that Diaz also

purchase two different apartment complexes and a residence located in La Joya. The first


        1  This appeal concerns three separate but related appeals: (1) PlainsCapital Bank v. Ricardo Diaz
Miranda, No. 13-16-00210-CV; (2) PlainsCapital Bank v. Ricardo Diaz Miranda, No. 13-16-00463-CV; and
(3) In re PlainsCapital Bank, No. 13-16-00464-CV.

                                                        2
apartment complex at issue was located on Moorefield Road in Mission; and the second

apartment complex at issue was located on McColl Road in McAllen. The record shows

that both apartment complexes were owned by First National Bank prior to Diaz’s

purchase.

       Relevant to this appeal, Diaz executed three promissory notes in First National

Bank’s favor.     The first note (the Moorefield Note) concerned the Moorefield Road

apartment complex, which totaled $1,190,000.00, plus interest; the second note (the

McColl Note) concerned the McColl Road apartment complex, which totaled

$5,300,000.00, plus interest; and the third note (the Cold-Storage Note) concerned the

building of Diaz’s cold-storage business in Pharr, which totaled $1,773,000.00, plus

interest. Under these three notes, Diaz operated both apartment complexes and built and

opened his cold-storage business. 2

       Diaz made timely payments on the notes through July 2013. However, in the

ensuing months, First National Bank notified Diaz that he was in default on each of the

three notes at issue. Furthermore, First National Bank notified Diaz that if the defaults

were not cured, it would accelerate the notes and potentially foreclose on the properties.

The record shows that Diaz failed to cure the defaults, and First National Bank accelerated

the amounts owed on each of the notes, making them due and payable in full.

       Sometime after Diaz’s notes became due and payable, First National Bank ceased

operations, and the Federal Deposit Insurance Corporation (FDIC), as a receiver, took

over First National Bank’s operations and assets. Among the assets that the FDIC took

control were the three notes at issue in this case. The FDIC then sold these notes to


       2 Although a fourth promissory note was executed by Diaz and First National Bank for the La Joya
residence, this note is not subject to the present appeal.

                                                      3
PlainsCapital in a negotiated sale. As a result, PlainsCapital became the successor-in-

interest to the notes and sought to recover the balances of these notes from Diaz.

B.      Procedural Background

        After First National Bank accelerated the Moorefield, McColl, and Cold-Storage

Notes, Diaz sued PlainsCapital as successor-in-interest to the notes seeking damages

and injunctive relief for wrongful foreclosure. Additionally, Diaz sought rescission of the

notes owed to PlainsCapital because the loans were “marred by fraud.”3

        During the pendency of the litigation, Diaz sold the Moorefield property, and

PlainsCapital received $673,681.50 as net proceeds from the sale. This amount was

credited to the total owed on the Moorefield note. Despite this lump sum payment,

PlainsCapital contended at trial that $843,975.94 of the principal, plus $91,131.82 in

interest ($935,107.76 total) remained due and owed on the Moorefield Note. Additionally,

the record shows that Diaz sold the McColl property for a net sale of $2,723,485.40. The

entire amount was transferred in its entirety to PlainsCapital. Despite this lump sum

payment, PlainsCapital contended at trial that $3,789,576.72 of the principal, plus

$693,201.41 in interest ($4,482,778.13 total) remained due and owed on the McColl Note.

Lastly, the record shows that from August 2014 until November 2015, Diaz made monthly

payments of $15,721.00 on the Cold-Storage Note, which allegedly made Diaz current on

his payments.        Despite these payments, PlainsCapital contended that at trial that

$1,760,906.87 of principal, plus $385,778.75 in interest ($2,146,685.62 total) remained

due and owed on the Cold-Storage Note.



        3 Diaz also sued Saul Ortega for damages alleging claims of: (1) fraud and self-dealing, and (2)
breach of fiduciary duty. Prior to trial, Diaz and Ortega reached a settlement, and Diaz nonsuited all claims
against Ortega.

                                                         4
       At trial, Diaz filed a trial amendment to his petition to include a cause of action for

breach of contract by acting in a manner that induced Diaz to default on the notes.

PlainsCapital filed a counterclaim asserting its right to recover the unpaid balance, interest,

and attorneys’ fees related to the three notes.

       The claims were tried to a Hidalgo County jury, and the jury made the following

summarized findings, by a non-unanimous, 10–2 decision:

       (1)    Ortega acted on behalf of First National Bank with regard to the loan
              transactions with Diaz;

       (2)    First National Bank, acting through Ortega, committed fraud against Diaz;

       (3)    First National Bank’s conduct, through Ortega, was not excused;

       (4)    Diaz’s injury in this case was proximately caused by his own negligence,
              attributing 15-percent responsibility to Diaz, and 85-percent responsibility to
              Ortega, acting with authority from First National Bank.

       (5)    PlainsCapital failed to comply with the terms of Diaz’s promissory notes, and
              its failure was not excused;

       (6)    Diaz was awarded zero dollars in damages resulting from Ortega, acting with
              authority from First National Bank and PlainsCapital’s conduct;

       (7)    Diaz was entitled to $100,000.00 in reasonable and necessary attorney’s
              fees for the prosecution of his contract claims against PlainsCapital;

       (8)    PlainsCapital is the owner and holder of the Moorefield Note, Diaz defaulted
              in paying the Moorefield Note, and the principal and interest due totaled zero
              dollars;

       (9)    PlainsCapital is the owner and holder of the McColl Note, Diaz defaulted in
              paying the McColl Note, and the principal and interest due totaled zero
              dollars; and

       (10)   PlainsCapital is the owner and holder of the Cold-Storage Note, Diaz
              defaulted in paying the Cold-Storage Note, and the principal and interest due
              totaled $1,507,146.34.




                                                  5
       Following the jury’s verdict, PlainsCapital filed a “Motion for Judgment Non

Obstante Veredicto, To Disregard Jury Findings, and/or For Judgment on the Verdict.”

Specifically, PlainsCapital asked the trial court to disregard the following findings:

       (1)    That the principal and interest due on the Moorefield Note is zero dollars,
              after PlainsCapital conclusively established that the principal owed on the
              note totaled $843,975.94, and the interest totaled $91,131.82;

       (2)    That the principal and interest due on the McColl Note is zero dollars, after
              PlainsCapital conclusively established that the principal owed on the note
              totaled $3,789,567.72, and the interest totaled $693,201.41; and

       (3)    The $100,000 award of reasonable and necessary attorney’s fees is legally
              insufficient because the jury did not award Diaz any damages in his breach
              of contract action, and PlainsCapital established as a matter of law that such
              conduct was excused.

       In the same motion, PlainsCapital also requested that the trial court render

judgment that:

       (1)    Diaz take nothing on his fraud claim because the jury found no damages as
              a result of the alleged fraud. Furthermore, the trial court should disregard
              any finding that First National Bank, acting through Ortega, committed fraud
              against Diaz because such a finding was not supported as a matter of law
              under 12 U.S.C.A. § 1823(e) (West, Westlaw through P.L. 115–68) and
              section 26.02 of the Texas Business and Commerce Code. See TEX. BUS.
              & COMM. CODE § 26.02 (West, Westlaw through 2017 1st C.S.); and

       (2)    Diaz take nothing on his breach of contract claim because the jury found no
              damages as a result of the alleged breach.

       The trial court subsequently entered the following final judgment in relevant part:

       (1)    Diaz recover $100,000 with interest from PlainsCapital;

       (2)    Diaz owes PlainsCapital $1,401,996.60 in principal, plus $105,149.75 in
              interest on the Cold-Storage Note;

       (3)    Diaz continue to make payments in the amount of $15,721.00 for principal
              and interest on the Cold-Storage Note;

       (4)    PlainsCapital take nothing from Diaz on the Moorefield Note as there is no
              deficiency on the note; and

                                                  6
       (5)    PlainsCapital take nothing from Diaz on the McColl Note as there is no
              deficiency on the note.

       This appeal followed.

                             II.    LEGAL SUFFICIENCY CHALLENGES

       By six issues, PlainsCapital challenges the legal sufficiency supporting six different

parts of the trial court’s final judgment.

A.     Standard of Review

       A legal sufficiency challenge will be sustained when the record confirms either: (a)

a complete absence of a vital fact; (b) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered

to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively

establishes the opposite of the vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620

(Tex. 2014) (citing City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)).             In

conducting a legal sufficiency review, we must view the evidence in the light most

favorable to the verdict. Id.

       When reviewing all of the evidence in a light favorable to the verdict, courts must

assume jurors made all inferences in favor of their verdict if reasonable minds could, and

disregard all other inferences in their legal sufficiency review. Id. at 620–21. When

reviewing circumstantial evidence that favors the verdict, we must view each piece of

circumstantial evidence, not in isolation, but in light of all the known circumstances. Id. If

circumstantial evidence, when viewed in light of all the known circumstances, is equally

consistent with either of two facts, then neither fact may be inferred. Id. But where the

circumstantial evidence is not equally consistent with either of two facts, and the inference



                                                  7
drawn by the jury is within the “zone of reasonable disagreement,” a reviewing court cannot

substitute its judgment for that of the trier-of-fact. Id.

B.       Discussion

         We will address each of PlainsCapital’s legal sufficiency challenges in turn.

         1.     Amounts Due and Owed & Fraud Finding Against First National Bank

         By its first issue, PlainsCapital argues that the trial court erred by entering judgment

for incorrect amounts due and owed to PlainsCapital on each of the notes at issue because

such amounts were not supported by legally sufficiency evidence.                  Furthermore,

PlainsCapital argued that it conclusively established the appropriate balances owed on

each of the three notes arising out of its counterclaim.

         In response to this first issue, Diaz argues that the jury’s fraud finding and damages

award nullified PlainsCapital’s ability to collect the full amount due and owed on the three

notes.

                a. Amounts Due and Owed

         To recover on a debt due under a promissory note, the plaintiff must establish that:

(1) the note in question exists, (2) the debtor executed the note, (3) the lender is the holder

or owner of the note, and (4) a certain balance is due and owing on the note. Martin v.

New Century Mortg. Co., 377 S.W.3d 79, 84 (Tex. App.—Houston [1st Dist.] 2012, no

pet.); Wells Fargo Bank, N.A. v. Ballestas, 355 S.W.3d 187, 191 (Tex. App.—Houston [1st

Dist.] 2011, no pet.); Cadle Co. v. Regency Homes, Inc., 21 S.W.3d 670, 674 (Tex. App.—

Austin 2000, pet. denied); Commercial Servs. of Perry, Inc. v. Woolridge, 968 S.W.2d 560,

564 (Tex. App.—Fort Worth 1998, no pet.).




                                                    8
       The jury found the first three elements on recovery of a debt due under a promissory

note in PlainsCapital’s favor, and such findings are unchallenged by cross-appeal. See

Martin, 377 S.W.3d at 84. PlainsCapital only challenges the jury’s findings with regard to

the amounts due and owed on each note. See id.

       First, with regard to the Moorefield Note, the trial court admitted uncontroverted and

conclusive evidence from PlainsCapital that the amount of principal ($843,975.94) and

interest ($91,131.82) due and owed as of November 2015 totaled $935,107.76, after

taking into account the $673,681.50 received by PlainsCapital from the sale of the

Moorefield property. The record is devoid of an amount other than $935,107.76 in principal

and interest that is due and owed on the Moorefield Note. As a result, the jury’s finding of

zero dollars owed on the Moorefield Note was based on legally insufficient evidence, and

the trial court erred by including that figure in its judgment. See Castillo, 444 S.W.3d at

620.

       Second, with regard to the McColl Note, the trial court admitted uncontroverted and

conclusive evidence from PlainsCapital that the amount of principal ($3,789,567.72) and

interest ($693,201.41) due and owed as of November 2015 totaled $4,482,769.13, after

taking into account the $2,723,485.40 received by PlainsCapital from the sale of the

McColl property. Again, the record is devoid of an amount other than the $4,482,769.13

in principal and interest that is due and owed on the McColl Note. Therefore, the jury’s

finding of zero dollars owed on the McColl Note was based on legally insufficient evidence,

and the trial court erred by incorporating the zero-dollar finding in its judgment. See id.

       Lastly, with regard to the Cold-Storage Note, the trial court admitted uncontroverted

and conclusive evidence from PlainsCapital that the amount of principal ($1,760,906.87)



                                                 9
and interest ($385,778.75) due and owed as of November 2015 totaled $2,146,685.62,

despite the payments made by Diaz to PlainsCapital totaling $15,721.00 per month. Like

the other notes, the record is devoid of an amount other than $2,146,685.62 in principal

and interest that is due and owed on the Cold-Storage Note. Thus, the jury’s finding that

Diaz owed $1,507,146.34—which is approximately seventy percent of what the conclusive

evidence shows is due and owed—was based on legally insufficient evidence, and the trial

court erred by incorporating this finding in its judgment. See id.

        We sustain PlainsCapital’s first issue.4

                b. Fraud

        By its second issue, PlainsCapital primarily argues that Diaz is not entitled to relief

under the jury’s fraud finding because he “did not plead, submit, or prove an affirmative

defense of fraud.”       However, PlainsCapital further argues that even if Diaz properly

pleaded, submitted, and proved an affirmative defense of fraud in this case, such a finding

is unsustainable as a matter of law.

        We turn first to PlainsCapital’s alternative argument in this issue because it is

dispositive. See TEX. R. APP. P. 47.1. Assuming without deciding that Diaz pleaded,

submitted, and obtained a finding of fraud as an affirmative defense, we nevertheless

conclude that such an affirmative defense finding was barred under federal law.

        PlainsCapital invokes the federal D’Oench, Duhme Doctrine. See D’Oench, Duhme

& Co. v. Fed. Deposit Ins. Corp., 315 U.S. 447, 453–62 (1942). When the Federal Deposit




       4 Because we sustain PlainsCapital’s first issue that the jury’s award of $1,507,146.35 on the Cold-

Storage Note was legally insufficient and that PlainsCapital conclusively established that it is owed
$2,146,685.62 on the Cold-Storage Note, we dismiss PlainsCapital’s sixth issue as moot. In that issue,
PlainsCapital requested that we reverse and render the amount due under the Cold-Storage Note of
$1,507,146.35 without awarding PlainsCapital that amount.

                                                        10
Insurance Corporation (FDIC) acts as a receiver for a failed bank, the D’Oench, Duhme

Doctrine bars the use of an unrecorded agreement between a borrower and the failed

bank as a basis for defenses or claims against the FDIC or its assigns. See id.; Bluebonnet

Sav. Bank v. Jones Country, Inc., 920 S.W.2d 670, 671 (Tex. 1996) (per curiam); see also

12 U.S.C.A. § 1823(e) (West, Westlaw through P.L. 115–122) (codifying D’Oench’s rule

that no agreement which tends to diminish or defeat the interest of the FDIC in any asset

acquired by it shall be valid against the FDIC unless it: (A) is in writing; (B) was executed

by the depository institution and any person claiming an adverse interest thereunder,

including the obligor, contemporaneously with the acquisition of the asset by the

depository institution; (C) was approved by the board of directors of the depository

institution or its loan committee, which approval shall be reflected in the minutes of said

board or committee, and (D) has been, continuously, from the time of its execution, an

official record of the depository institution).

       The policies behind this doctrine are to: (1) allow federal and state bank examiners

to rely on a bank’s records in evaluating the worth of the bank’s assets, which are

necessary when a bank is examined for fiscal soundness, deciding whether to liquidate

the failed bank, or to provide financing for purchase of its assets (and assumption of its

liabilities) by another bank; and (2) ensure mature consideration of unusual loan

transactions by senior bank officials, and prevent fraudulent insertion of new terms, with

the collusion of banks employees, when a bank appears headed for failure. Langley v.

Fed. Deposit Ins. Corp., 484 U.S. 86, 91–92 (1987).

       With that said, neither section 1823(e) nor the D’Oench, Duhme doctrine bans all

affirmative claims or defenses that can be asserted by borrowers.           See Garrett v.


                                                  11
Commonwealth Mortg. Corp. of Am., 935 F.2d 591, 595 (5th Cir. 1991). For example,

while the ban applies to the borrower defense of fraud in the inducement, it does not

necessarily bar a defense of fraud in the factum—that is, “the sort of fraud that procures a

party’s signature to an instrument without knowledge of its true nature or contents.”

Langley, 484 U.S. at 93–94.

        Additionally, courts have held that the doctrine extends to other entities beyond the

FDIC, such as assignees of the FDIC, those who purchase notes of a failed bank from the

FDIC, and “bridge banks” of the FDIC, which are institutions authorized to operate a failed

bank. Porras v. Petroplex Sav. Ass’n, 903 F.2d 379, 381 (5th Cir. 1990).5

        The facts of this case clearly implicate the D’Oench, Duhme Doctrine. The record

shows that PlainsCapital obtained the notes at issue in this appeal by purchasing them as

assets from the FDIC, after First National Bank became insolvent. Furthermore, Diaz

sought at trial to void the amount owed on the notes by asserting a fraud-in-the-

inducement defense. Diaz alleged that Saul Ortega, acting on behalf of First National

Bank, verbally imposed various conditions on Diaz to obtain the Cold-Storage Note by

purchasing other non-related properties, but these conditions were never reduced to

writing. Diaz further alleged that Ortega orally misrepresented the financial viability and

stability of those other properties. These erroneous or even fraudulent representations, if

true as alleged, would render a note voidable. See Langley, 484 U.S. at 94. This voidable

title was then transferred by First National Bank to the FDIC, which is enough to constitute



        5 This Court has also extended the D’Oench, Duhme Doctrine to state court proceedings in which

we invalidated an interim foreclosure agreement between a borrower and a failed savings and loan bank
that was in receivership of the Federal Savings and Loan Insurance Corporation (FSLIC) because the
agreement tended to defeat or diminish the FSLIC, FDIC, or its successors interest in the assets placed in
receivership. See Advantage Grp. Inv., Inc. v. Pac. Sw. Bank, F.S.B., 972 S.W.2d 866, 870 (Tex. App.—
Corpus Christi 1998, pet. denied).

                                                       12
“title or interest” in the note, as defined by section 1823(e) and subject to the D’Oench,

Duhme Doctrine. See id. Section 1823(e) places the onus upon a borrower to protect

himself by assuring that his agreement is not secret or undocumented, like the one alleged

in this case between Diaz and First National Bank, but is instead made in writing,

approved, and recorded in accordance with the statute. See id. at 403. Nothing in the

record shows that such alleged representations by Ortega met the requirements of section

1823(e) so as to permit Diaz to now assert a defense of fraud in the inducement. See 12

U.S.C.A. § 1823(e). Therefore, the D’Oench, Duhme Doctrine applies to his case and

causes Diaz’s affirmative defense of fraud to fail as a matter of law.

       We sustain PlainsCapital’s second issue.

       2. Breach by PlainsCapital

       By its third issue, PlainsCapital challenges the legal sufficiency of the evidence

regarding the jury’s finding that PlainsCapital failed to comply with the terms of the

promissory note.

       Diaz filed a trial amendment before submitting the case to the jury, which stated the

following:

         V. FIRST CAUSE OF ACTION: BREACH OF CONTRACT COUNT I
         WRONGFUL ACCELERATION AND ATTEMPTED FORECLOSURE

       Any technical “default” in the terms of any notes was caused in whole or in
       part by the actions of Defendant [PlainsCapital] in inducing such default.
       Defendant [PlainsCapital] did virtually no due diligence on these notes. Had
       [PlainsCapital] done any due diligence it would have recognized that the
       loans and notes attached thereto were the subject of fraud and/or
       negligence. The appraisals reflected completely unrealistic and incorrect
       values. While [PlainsCapital] was not a fiduciary as to Diaz, it did have a
       contractual obligation as the successor to the assets to determine if the loans
       were properly handled once it acquired the assets. It failed to act with the
       reasonable prudence in not doing due diligence. By not doing so it wrongly
       accelerated the maturity of the notes in violation of the contract and

                                                13
       thereafter at least attempted to wrongfully foreclose. . . . As a proximate
       result of [PlainsCapital’s] breach of contract Diaz has been damaged in an
       amount in excess of the jurisdictional limit of the court. Diaz has been
       required to obtain counsel to prosecute this claim and pursuant to [Texas
       Civil Practice and Remedies Code] § 38.001(8) seeks recovery of its
       reasonable and necessary attorney’s fee.

       The elements in an affirmative claim for breach of contract are: (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 to the plaintiff resulting from that breach.

Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 771 (Tex. App.—Corpus Christi 2001,

no pet.). PlainsCapital argues that Diaz’s breach of contract claim fails as a matter of law

because the jury found no damages with regard to any purported breach by PlainsCapital.

The award of damages to a plaintiff is an essential element to maintaining a successful

cause of action for breach of contract. See id. Here, since no damages were awarded,

legally insufficient evidence supports Diaz’s claim for breach of contract against

PlainsCapital bank. Accordingly, we sustain PlainsCapital’s third issue.

       3.     Rescission

       By its fourth issue, PlainsCapital asserts that the trial court erred by granting Diaz

rescission, when he: (1) did not plead for that relief, and (2) did not prove the elements for

rescission.

       Even assuming that Diaz pleaded a claim for rescission, we conclude that such

relief was not appropriate in this case. The equitable relief of rescission is generally not

granted for breach of contract or for a completed contract in the absence of fraud. See

City of Corpus Christi v. S.S. Smith & Sons Masonry, Inc., 736 S.W.2d 247, 251 (Tex.

App.—Corpus Christi 1987, writ denied).         Here, we have already held that Diaz’s

affirmative defense of fraud finding that would entitle him to rescission of the Moorefield

                                                 14
and McColl notes was barred as matter of law. As a result, we conclude that rescission

was improper. We sustain PlainsCapital’s fourth issue.

       4.     Attorney’s Fees

       By its fifth issue, PlainsCapital asserts that Diaz is precluded as a matter of law

from recovering attorney’s fees in this case because the jury found no damages on his

breach of contract action. We agree.

       Diaz requested attorney’s fees under his breach of contract action pursuant to

section 38.001(8) of the civil practice and remedies code. See TEX. CIV. PRAC. & REM.

CODE ANN. § 38.001(8) (West, Westlaw through 2017 1st C.S.) (permitting recovery of

attorney’s fees in a breach-of-contract claim).

       To recover fees under section 38.001, a party must prevail on a cause of action for

which attorney’s fees are recoverable, and (2) recover damages. Intercont’l Grp. P’ship v.

K.B. Home Lone Star, L.P., 295 S.W.3d 650, 653 (Tex. 2009); Green Int’l, Inc. v. Solis,

951 S.W.2d 384, 390 (Tex. 1997).

       Here, the record shows that the jury awarded Diaz zero dollars in damages on his

breach of contract action. As a result, Diaz was not entitled to recover the $100,000 in

attorneys’ fees awarded to him by the jury under his breach of contract action. See

Intercontinental Group, 295 S.W.3d at 653. We sustain PlainsCapital’s fifth issue.

                                   III.   RELATED APPEALS

       Since filing its appeal in appellate cause number 13-16-00210-CV, PlainsCapital

filed two ancillary appeals related to this case. We will address each appeal below.

A.     Appellate Cause Numbers 13-16-00463-CV & 13-16-00464-CV

       1.     Background



                                                  15
      Following the signing of the final judgment in appellate cause number 13-16-00210-

CV, Diaz filed a post-judgment motion with the trial court entitled “Plaintiff’s Motion to

Compel Acceptance of Payment and For Release of Lien.” In this motion, Diaz stated the

following: (1) the jury found that the balance owed on the Cold-Storage Note totaled

$1,507,146.34 in principal and interest; (2) Diaz found a new lender that was willing to

refinance the Cold-Storage Note for the amount found owed on the Cold-Storage Note;

and (3) Diaz prayed that PlainsCapital be ordered to accept $1,507,146.34 as a payoff

amount owed on the Cold-Storage Note and release its lien held on the property

associated with the Cold-Storage Note.

      After holding a hearing, the trial court granted Diaz’s motion and ordered that: (1)

PlainsCapital accept payment of $1,603,278.13 for the Cold-Storage Note; (2)

PlainsCapital release its first lien on the cold-storage unit, immediately upon payment of

$1,603,278.13 on or before August 22, 2016; (3) PlainsCapital sign a release of lis

pendens on the cold-storage unit; and (4) Diaz give PlainsCapital a second lien on the

property.

      PlainsCapital perfected an appeal with this Court on the trial court’s order granting

Diaz’s motion to compel acceptance of payment and for release of lien, which was

assigned appellate cause number 13-16-00463-CV. Concurrent with filing that direct

appeal, PlainsCapital filed an emergency motion to stay the trial court’s order granting

Diaz’s motion to compel acceptance of payment and for release of lien and a petition for

writ of mandamus seeking that we order the trial court to conduct a hearing on

PlainsCapital’s request for supersedeas and set a supersedeas amount for the order,

which was assigned appellate cause number 13-16-00464-CV. On August 19, 2016, this



                                               16
Court granted PlainsCapital’s motion for emergency relief and stayed the trial court’s order

pending further order of this Court, or until the case is finally decided.

       2.     Mootness

       Courts are created not for purposes of deciding abstract or academic questions of

law or to render advisory opinions, but solely for judicial determination of presently existing

disputes between parties in which effective judgment can be rendered. Brownsville Ind.

Sch. Dist. Bd. Of Trustees v. Brownsville Herald, 831 S.W.2d 537, 538–39 (Tex. App.—

Corpus Christi 1992, no writ). This means that when a judgment cannot have a practical

effect on an existing controversy, the case is moot. Id. at 539. When a cause becomes

moot, an appellate court must dismiss the cause, not merely the appeal. Id.

       Here, the orders that form the basis of PlainsCapital’s related appeal and petition

for writ of mandamus are premised upon the trial court’s judgment signed following the

jury’s verdict in the underlying case (appellate cause number 13-16-00210-CV). However,

because our opinion today reverses and renders a different judgment than that of the trial

court, we conclude that the appeals in appellate cause numbers 13-16-00463-CV and 13-

16-00464-CV are moot.

                                     IV.    CONCLUSION

       In appellate cause number 13-16-00210-CV, we reverse the trial court’s judgment

and render that PlainsCapital is entitled to the following unpaid balances of principal and

interest: (1) $935,107.76 on the Moorefield Note; (2) $4,482,769.13 on the McColl Note;

and (3) $2,146,685.62 on the Cold-Storage Note. We further render that Diaz take nothing

in attorneys’ fees.




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      Finally, we dismiss appellate cause numbers 13-16-00463-CV and 13-16-00464-

CV as moot.


                                                       GINA M. BENAVIDES,
                                                       Justice


Delivered and filed the
15th day of March, 2018.




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