AFFIRM.. Opinion issued November 30, 2012.




                                               in l’lw
                                     iL1aIrt tif  41pra1S
                         FiftIi    Oitrirt      nf Iix&u at Ja11a
                                        No. 05-1 1-oo341-(:V


                  WI LLIAM C. JARVIS AND CINDY JARVLS, Appellants

                                                  V.

                 K&E RE ONE, LLC, STEWART TITLE COMPANY, ANI)
                       BAY VIEV LOAN SERVICING, Appellees


                       On Appeal from the I 62nd Judicial District      Court
                                    Dallas County, Texas
                             Trial Court Cause No. 10-00947-I


                                           OPINION
                           Before Justices Moseley, Fillmore, and Myers
                                   Opinion By Justice Fillmore

        William C iarvis and Cindy Jarvis appeal (I) the trial court’s judgment granting K&E Re
                   .




One, LLC (K&E) declaratory and injunctive relief and awarding K&E attorney’s fees, and (2) the

trial court’s grant of summary judgment in favor of Stewart Title Company (Stewart Title) and

Bayvie\v Loan Servicing (Bayview). In four points of error, the Jarvises contend the trial court erred

by (I) denying their motion to exclude evidence, (2) finding North American Capital (NAC) had the

authority to act as agent for the Jarvises, (3) granting summary judgment in favor of Stewart Title

and F3ayview, and (4) awarding K&E attorney’s fees. We affirm the trial court’s judgment.
                                        Factual Backtroiind

        In the summer ol 2007, ( cna 1 uPon purchased a fourteenuuit apart mciii complex in Dallas.

Texas (the Property). I olton contacted NAt’ to obtain linancing l’or the purchase. NAC is in the

business ot tact1 itatinu shorttcrm real estate loans between private mortgage investors and real estate

purchasers tbr the acquisition and reliibi litation ol coiiiinercial al i’csidentiil prolert

        As part ot its loan facilitation services, NAC is involved prior to a loan being funded in

performing due diligence as to the borrower and the property being purchased. After a loan closes,

NAC collects the monthly payments from the borrower and forwards the payments to the lender.

NAC keeps records ot any late payment and not ities the borrower of the necessity to pay a late fee.

NAC may also he involved in contacting counsel about foreclosing on a piece of property or about

representing the lender in a bankruptcy proceeding.

       NAC contacted the Jarvises, and they agreed to provide the funding t’or the Lotion loan.

Loiton understood that NAC was operating           servicer for the Jarvises. Lotton was not provided

with any contact inlormation for the Jarvises and had no direct contact with them during the loan

application process. In connection with closing the loan, Lofton signed a number of documents,

including a promissory note (the Note); a deed of trust (DOT); a business purpose affidavit; an

assignment of leases, deposits and rents (the Assignment); an environmental indemnification

statement; and a legal representation agreement. The Note, the business purpose affidavit, the legal

representation agreement, and the environmental indemnification agreement all reference NAC as

the “servicer.” The DOT names the Jarvises as the beneficiaries “c/o” NAC. The Assignment

identifies the lender as the .Jarvises 1
                                       “c
                                       o ” NAC. The settlement agreement signed at the time Lofton

purchased the Property indicates NAC received a loan origination fre and a processing fee. It also

shows that, after the closing, NAC held $28,100 of the loan proceeds in escrow and also held an




                                                 —2—
ad(htional S6.27.4 1 of the loan iceeds. Aecordinr to Lofton. the S2$. 100 held in escrow was for

construction work on the Property. l.otton could not recall why NA( held the remaining $6270.41

        Lotion transfirred title to the Property to Capital Asset Solutions, LLC (CAS), an entity

controlled by Lotion. Pursuant to the terms of the Note, Lofton made payments every month to the

Jarvises at the oftices of NAC. The Note did not restrict the fbrm of payment, and Lotion did not

receive any instructions from either the Jarvises or NAC about the Ihrm of payment. Lotton made

the monthly payments by check written    on the account of   CAS.

       In the spring of 200$, CAS agreed to sell the Property to K&E. Stewart Title was retained

to handle the   closing. Adam Rachavong, a   closing agent with Stewart Title, reviewed the DOT, the

Assignment, and the UCC financing statement filed by the Jarvises and saw no contact information

for the Jarvises. Because Lofton believed NAC was the servicer on the loan and it is customary for

the servicer to prepare a payoff request on a loan, she told Rachavong to contact NAC. According

to Rachavong, he “didn’t know for sure” if the “c/o” in the documents he reviewed gave NAC

authority to accept funds on behalf of the Jarvises. However, in Rachavong’s opinion, “do” meant

all correspondence or matters regarding the loan should be directed to NAC,

       Rachavong contacted Mark Cleaton, NAC’s president, and Cleaton provided a loan payoff

amount, Cleaton also provided Rachavong with instructions on how to wire the loan payoff funds

to NAC’s account. The funds to pay off the Note were wired to NAC in April 2008 following the

closing of the sale of the Property to K&E. Lofton testified she was not alarmed when the settlement

statement for the closing indicated the funds would be sent to NAC, because it is customary    for a


servicer to collect the proceeds from a sale and distribute them to the lender. In Rachavong’s

opinion, the wire transfer to NAC was consistent with the beneficiary information in the DOT.

William Jarvis, however, denied the Jarvises gave NAC the authority to accept payments from
borrowers or subsequent purchasers on their hehal t. ( leaton also denied NAC had authority to

accept payments as a payee under the Note.

           NM’ did not disburse the loan payoff hinds to the Jarvises. Rather, NAC began sending

monthly checks written on its operating account to the Jarvises purporting to be payments on the

Note. The Jarvises deposited these checks and did not complain that the payments came from NAC.

rather than from Lofton, NAC stopped making the monthly payments in November 2008. In

November 2009, William Jarvis contacted Lofton and learned the Property had been sold and the

funds to pay oft the loan had been wired to NAC. On November 14. 2009, the Jarvises informed

Cleaton that NAC’ “was no longer authorized to act as a servicing agent                                   on   [their] behalf” On

January 11, 201 0, the Jarvises posted the Property lbr foreclosure.

                                                   Procedural Background

          K&L filed this suit, seeking a declaration the Note had been paid and the DOT had been

discharged and no longer constitutes a valid and subsisting lien on the Property. K&E also requested

the Jarvises be peiinanently enjoined from attempting to foreclose on the Property, taking possession

and control ol the Property, or otherwise attempting to extinguish K&E’s interest in the Property.

The Jarvises filed a third-party petition against Stewart Title, CAS, One West Bank Group, LLC, and

Bayview The Jarvises asserted a negligence claim against CAS. They also alleged (1) Stewart

Title had been negligent by failing to pay the Jarvises the loan payoff fimds, and (2) they were third-

party beneficiaries of the escrow agreement relating to the sale contract between CAS and K&E and

Stewart Title breached the escrow agreement by ftuiling to properly account for and distribute the

funds from the transaction. The Jarvises also requested a declaratory judgment against Stewart Title



       OneWest loaned the funds to K&E to purchase the Property and held a deed of trust on the Propey. Bayview was the servicing agent on
the loan to K&E.
that the Note and the 1)01 dictate payment was to be made to the Jarvises, Stewart Title was

obli!ated to pay the Jarvises,   Stewart   title lailed to pay the Jarvises. and the 1)01 had not been

discharged. Ihe Jarvises sought the equitable remedy ol quiet title against OneWest and l3ayview

and requested a declaratory judgment that the (Iced ot trust executed in favor of OneWcst and

Bayview was inlerior to the 1)01. The parties agreed to try K&E’s claims against the Jarvises lirst.

          The Jarvises moved to exclude evidence of loans, other than the Lofton loan, that were

originated by NAC in which the Jarvises participated. The Jarvises argued the DOT, the Note, and

the UCC financing statement pertaining to the Lofton loan were unambiguous and governed the

parties’ relationship and, therefore, the parol evidence rule barred the admission of evidence of

NAC’s and the Jarvises’ conduct relating to other loans. K&E responded that evidence of the

Jarvises’ and NAC’s conduct on other loans was relevant to establishing the extent of NAC’s

authority to act on behalf of the   Jarvises on   the Note.

          The trial court denied the Jarvises’ motion to exclude evidence. During trial, K&E offered

evidence that, of the ten loans the Jarvises participated in with NAC, three of the loans, including

the Lofton loan, were paid off The other two loans were paid off prior to the closing of the sale

between Lofton and K&E. On both occasions, the loan payoff funds were paid directly to NAC, and

NAC disbursed the funds to the Jarvises. The Jarvises accepted the payments directly from NAC

and did not assert on either occasion that NAC lacked authority to receive loan payoff funds on their

behalf.

          Following a bench trial, the trial court entered judgment for K&E. The trial court declared

the Note had been fully paid and the DOT had been discharged and no longer constitutes a valid and

subsisting lien on the Property. It also enjoined the Jarvises from foreclosing, or attempting to

foreclose, on the DOT or from otherwise interfering, or attempting to interfere, with K&E’s
 l)OSScSS ion and use ot the Property. Ihe trial                      COUI1    awarded K&lzS74.3445() for attorney s                          ICS    in

 the trial court and contingent attorney’s fees 11w an unsuccessful appeal by the Jarviscs.

            In its hndmgs of fact and conclusions of law, the trial court found the Jarvises and NAC.

 through their course ol conduct, established a usual, customary, and authorized procedure pursuant

 to which NAC directly received the funds to pay off a loan and then disbursed those funds to the

Jarvises through a check drawn on NAC’s operating account. It found NAC had actual authority and

actual implied authority to accept and receive the loan payoff on the Note on behalf of the Jarvises.

In addition, it found the Jarvises. knowingly and by lack of ordinary care, permitted NAC to hold

itself out as having authority to receive the funds, clothed NAC with the indicia of authority to

receive the funds, and placed NAC in such a position as to lead Lolon to believe NAC had authority

to accept the funds. The trial court concluded that NAC had actual, implied, and apparent authority

to accept and receive the funds to pay oft the Note.

            Bayview and K&E moved for summary judgment on the ground the trial court’s findings of

fact precluded the Jarvises from recovering on their third—party claims against Bayview. Stewart

Title also filed a motion for summary judgment and a supplemental motion for summary judgment
                                                                                     2

on the Jarvises’ (1) negligence claim on grounds it did not owe a duty to the Jarvises and, based on

the trial court’s findings NAC was the Jarvises’ agent with authority to receive the loan payoff funds,

it had not breached any duty to the Jarvises by delivering the funds to NAC; (2) breach of contract

claim on grounds the Jarvises were not third—party beneficiaries of the escrow agreement relating to

the sales contract between CAS and K&E and, based on the trial court’s findings that NAC had

authority to receive the loan payoff funds, Stewart Title did not breach the escrow agreement; and


       Ihe Jarvises originally asserted a negligence claim and requested declaratory relief against Stewail Title, Alter Stewart Title filed Its motion
for summary judgment, the Jarvises filed an amended petttion asserting a claim for breach of contract, Stewart Title’s supplemental motion for
summary judgment addressed the breach of contract claim.
 3 request   br   dcclarabor relict’ because Stewart Title was not a   11art’ to   the DO I and did not have

a controversy with the Jarvises other than the non—viable negligence claim. The trial court granted

the motions for summary judgment and severed the Jarvises’ claims against CA S into a separate

cause of action. The Jarvises dismissed their claims against OneWest, causing the judgments in

favor of K&E, Stewart Title, and I3ayview to become final.

                                           Motion to Exclude

        in their Orst issue, the Jarvises contend the trial court erred by denying the motion to exclude

evidence.    The Jarvises speci1cally assert the loan documents reviewed by Rachavong are

unambiguous and dictate the nature and extent of the relationship between the Jarvises and NAC

and, therefore, the parol evidence rule precludes the admission of evidence to vary the terms of those

documents,

       The applicability of the parol evidence rule is a question of law that we review de novo.

Auththon Indem. (n. r’. Custom Site-Prep, inc., 358 S.W.3d 309, 316 (Tex. App.-- Houston [1st

Dist.] 2011, pet. denied). The parol evidence rule is not a rule of evidence, but a rule of substantive

contract law. Huhacek v. Ennis Stale Bank, 159 Tex. 166, 169, 317 S.W.2d 30, 31(1958); Edascio,

L.L.C’. v. NextiraUne L.L.G., 264 S.W.3d 786, 796 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied). “An unambiguous contract will be enforced as written, and parol evidence will not be

received for the pullose of creating an ambiguity or to give the contract a meaning different from

that which its language imports.” Dai’idJ. Sacks, P. C. v. Haden, 266 S.W.3d 447, 450 (‘rex. 2008)

(per curiam). However. “parol evidence can be used to demonstrate a prior or contemporaneous

agreement that is both collateral to and consistent with a binding agreement, and that does not vary

or contradict the agreement’s express or implied terms or obligations.” Id. at 451 (citing Hubacek,

317 S.W.2d at 31); see also ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 875 (Tex.
() I O)   fIutJi’!l,   26o SW3d at 45 I      “A collateral aureeinent between parties concerning the

relationship ol several distinct obligations between them hills” within the collateral and consistent

exception to the parol evidence rule. Swinnea, 318 S.W.3d at 875.

          The Jarvises argue the [)OT, the Assignment, and the UCC linancing statement reviewed by

Ravachong i(lentilaed the Jarvises as the beneficiaries, the lender, or the secured parties. (lid not

identify NAC as the “servicer,” and unambiguously required Ravachong to torward 1ayment to the

Jarvises in care of NAC. However, the documents reviewed by Ravachong stated all contact with

the Jarvises was to be “do” NAC. Further, other documents relating to the Lofton loan, although

not reviewed by Ravachong. refer to NAC as the “servicer” on the loan.

          The loan documents clearly indicated NAC had authority to act on behalf of the Jarvises.

I lowever, although the loan documents established that NAC had authority to accept payments on

behalf of the Jarvises, the documents did not define the extent of NAC’s duties and authority under

the term “servicer” or in relation to the term “c/o.” Evidence of a collateral agreement between NAC

and the Jarvises regarding the scope of NAC’s authority under either of the undefined terms

“servicer” or “c/n” (lid not   vary or   contradict any of the express or implied terms or obligations set

out in the documents relating to the Lofton loan. Accordingly, the parol evidence rule did not bar

evidence of the Jarvises’ and NAC’s conduct on other loans, and the trial court did not err by

overruling the Jarvises’ motion to exclude evidence. We resolve the Jarvises’ first point of error

against   them.

                                              NAC’s Authority

          In their second point of error, the Jarvises argue the trial court erred by granting the

permanent injunction because NAC did not have authority to act as agent for the Jarvises and, even

if NAC did have some authority to act for the Jarvises, it exceeded that authority when it accepted
the loan payoff funds. We construe this argument as a challenge to the sufficiency of the evidence

to support the trial court’s findings that NAC had authority to accept the loan payoff funds on behalf

of the Jarvises.

        The question of agency is usually a fact issue. Park Cities Ltd. P ‘ship v. Transpo Funding

‘orp., 131 S.W.3d 654, 660 (Tex, App.—Dallas 2004, pet. denied). Because an agency relationship

cannot be presumed, the party who alleges agency has the burden of proving it, IRA Res., Inc. v.

Griego, 221 S.W.3d 592, 597 (Tex. 2007) (per curiam). K&E alleged NAC was the Jarvises’ agent

and, therefore, had the burden of proof on the issue.

        In conducting a legal and factual sufficiency review of the evidence to support a trial court’s

findings of fact and conclusions of law, we apply the same standards used in reviewing the evidence

supporting a jury’s findings. &ztalina v Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). An appellant

attacking the legal sufficiency of an adverse finding on an issue on which it did not have the burden

of proof must demonstrate there is no evidence to support the trial court’s adverse finding. Croucher

v. roucher, 660 S.W.2d 55,58 (Tex. l983);AjjardablePower, LP. v. Buckeye Ventures, Inc., 347

S.W.3d 825, 830 (Tex, App.Dallas 2011, no pet.). When examining a legal sufficiency challenge

to a finding of fact, we review the evidence in the light most favorable to the challenged finding and

indulge every reasonable inference that would support it. City ofKeller v. Wilson, 168 S,W.3d 802,

822 (Tex. 2005). Evidence is legally sufficient if it rises to a level that would enable a reasonable

and fair-minded fact finder to make the finding. Id. at 827. A legal sufficiency challenge fails if

there is more than a scintilla of evidence to support the finding. Kroger Tex. Ltd. P ‘ship v. Suberu,

216 S.W.3d 788, 793 (Tex. 2006); Affordable Power, L.P., 347 S.W.3d at 830. “Evidence does not

exceed a scintilla if it is so weak as to do no more than create a mere surmise or suspicion’ that the

fact exists.” Suberu, 216 S.W.3d at 793 (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601
(Tex. 2004)); see al.co Sen’ corp. Int’l v. Guerra. 348 S.W.3d 221, 228 (Tex. 2011) (if evidence

does no more than give rise to mere surmise or suspicion, then it is no evidence).

        In a factual sufficiency review ofa finding, we consider and weigh all the evidence, both in

support oland contrary to the challenged finding. Ortiz v. Jones, 917 S.W.2d 770,772 (Tex. 1996)

(per curiam). When a party challenges the factual sufficiency ofthe evidence supporting an adverse

finding on which it did not have the burden ofproof, we set aside the finding only ifit is so contrary

to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. BaIn, 709

S.W.2d 175, 176 (‘rex. 1986) (per curiam); Figueroa v. Davis, 318 S.W.3d 53, 59 (Tex.

App—Houston [1st Dist.] 2010, no pet.). We may not substitute our judgment for that of the trier

of fact or pass on the credibility of the witnesses. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402,

407 (Tex. 1998).

       “An agent’s authority to act on behalfofa principal depends on some communication by the

principal either to the agent (actual or express authority) or to the third party (apparent or implied

authority).” Gaines v. Kelly, 235 S.W.3d 179, 182 (Tex. 2007). Absent actual or apparent authority,

anagentcannotbindaprincipal. CNOOCSe. Asia LtL v. PaladinRes. (SUNDA)LkL,222 S.W.3d

889,899 (rex. App.—Dallas 2007, pet. denied) (op. on reh’g).

       Actual authority is authority a principal (1) intentionally confers upon on agent (2)

intentionally allows the agent to believe he possesses, or (3) by want ofdue care allows the agent to

believe he possesses. Affordable Power, 347 S.W.3d at 832; United Residential Properties. LP. v.

Theis, 378 S.W.3d 552, 564 (‘rex. App.—Houston [14th Dist.] 2012. no pet). Actual authority is

created through “written or spoken words or conduct ofthe principal communicated to the agent”

CNOOC Se. Asia Ltd., 222 S.W.3d 889 at 899; Theis. 378 S.W.3d at 564. The existence of an

agency relationship based on actual authority maybe implied from the conduct ofthe parties or from



                                               -10-
the facts and circumstances surrounding the transaction in question, but cannot be based merely on

the words or deeds of the agent. CtVNUC Sc, Asia Ltd., 222 S.W.3d at 899.

        Apparent authority is created by “written or spoken words or conduct by the principal to third

parties, not to the agent” i’d. Apparent authority is based on estoppel, arising “either from a

principal knowingly permitting an agent to hold [himselfj out as having authority or by a principal’s

actions which lack such ordinary care as to clothe an agent with the indicia of authority, thus leading

a reasonably prudent person to believe that the agent has the authority [he) purports to exercise.”

Gaines, 235 S,W.3d at 182 (quoting Baptist Mem ‘1 Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948

(Tex. 1998)). Because apparent authority is based on estoppel, the principal’s conduct must be that

which would lead a reasonably prudent person to believe that authority exists. Id, at l8283. in

determining an agent’s apparent authority, a fact finder considers only the conduct by the principal

that would lead a third party to believe the agent had apparent authority and the reasonableness of

the third party’s assumptions about authority. Id. at 183.

        Payment to an authorized agent of the obligee constitutes payment to the principal. C’ash v.

Lebowitz, 734 S.W.2d 396, 399 (Tex. App.—Dal1as 1987, writ ref’d n.r.c.). This is true even if the

agent appropriates the money to his own use. MacMichael LLC v. Packaging corp. ofAm., No, 05-

08-00561 -CV, 2009 WL 1959247, at *3 (Tex. App.—Dallas July 9, 2009, no pet.) (mem. op.); C’ash,

734 S.W.2d at 399 (any damage resulting from agent’s faithlessness and chicanery must be borne

by principal).

        We turn first to whether there is sufficient evidence to support the trial court’s finding NAC

had actual authority to accept the loan payoff funds. Relying heavily on the testimony of William

Jarvis and Cleaton, the Jarvises assert that, after a loan closed, NAC was authorized to act only as

a contact point to forward loan payments and did not have authority to accept the payoff funds on




                                                i I—
the Note br the larvises. I lowcver, it was undisputed that NAC had authority to perlbrm a number

ol lunctions 11w lenders, including the Jarvises, after a loan closed. Not only did NAC collect and

forward loan payments to lenders, it calculated when a late penalty was due and contacted the

borrower about the penalty. It held construction funds in escrow while the Property was being

rehabilitated. When necessary, it was involved in retaining, counsel to loreclose on a piece of

l)roperty or to represent the lender ifa borrower liled for bankruptcy. Further. aller discovering the

Property had been sold, the Jarvises terminated NAC’s authority to act on their behalf. The evidence

established that NAC had some actual authority to act for the Jarvises following the closing of the

Lolton loan. ihe issue is whether NAC ‘s authority included the ability to accept loan payoff funds

on behalf’ of the Jarvises.

        An agency relationship may he implied from the conduct of the parties. CiVOOC Sc. Asia

Lid, 222 S W 3d at 899, Bu,nside An Conthtioning & Heating Inc             i   7 5 Young C’orp      113

S.W.3d $89, $96 (Tex. App.—Dallas 2003, no pet.). Further, both the agency and the extent of the

agent’s authority may be proved by circumstantial evidence. Found. /?eserve Ins. Co. v.   Wesson,   447

S.W.2d 436. 438 (Te. Civ. App.— -Dallas 1969, writ refd’); Iow’nsend v. Univ. Hosp.-Univ. of

Colorado, $3 S.W.3d 913, 921 (Tex. App.—Texarkana 2002, pet. denied). In this case, only three

loans in which the Jarvises participated with NAC, including the Lofton loan, were paid off. In the

two loans paid off prior to the Lofton loan, NAC provided a loan payoff amount to the closing.

company. The closing company forwarded payment to NAC, and NAC paid the Jarvises and other

lenders the proceeds by check written on NAC’s operating account. The Jarvises accepted these

payments without protesting that NAC was not authorized to receive loan payoffs on their behalf.

        We conclude there is more than a scintilla of evidence that NAC had implied actual authority

to accept the loan payoff funds on behalf of the Jarvises. See Aquaduct LLC v. ivIcE/henie, 116




                                               —12—
SW3d 438, 44243 ([cx. App—l4ouston I 14th DisL j 2003, no peL) (servicing agent on loan had

implied actual authority to collect full   payment   of outstanding balances on be[al tot lienholder). We

tiirther conclude the evidence supporting the trial court’s finding that NAC had implied actual

authorit to accept the loan payoff funds on behalf of the Jarvises was not so weak as to make the

finding   clearly wrong and manifistly unjust. We, therefore, need not address whether the evidence

is suffIcient to support the trial court’s finding that NAC also had apparent authority to accept the

loan payoff funds on behalf of the Jarvises. Sec TEX. P. App. P.47,1. We resolve the Jarvises second

point of error against them.

                                           Summary Judgment

          In their third point of error, the Jarvises assert the trial court erred by granting summary

judgment foi 13 wvic’a and Stewart I itlc       We ie’ ICVv thc gi mt of siimm u v judgment dc noo

Travelers ins. Co. c. Joachim. 315 S.W.3d $(0, $62 (Tex. 2010). A summary judgment under rule

of civil procedure I 66a(c) is properly granted when the movant establishes that there is no genuine

issue of material fact and it is entitled to judgment as a matter of law. TEx. R. Civ. P. I 66a(c); Nixon

v. Mr. Prop. Mgint. Co., 690 S.W.2d 546, 548 (Tex. 1985); Stone v. Mu/land Mult/arnz1y Equity

REIT, 334 S.W.3d 371, 373 (Tex. App.—Dallas 2011, no pet.). In reviewing a summary judgment,

we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference

and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.

2008).

          We turn first to the Jarvises’ contention the trial court erred by granting summary judgment

on the Jarvises’ negligence and breach of contract claims against Stewart Title. The Jarvises assert

the trial court erred by granting summary judgment on the negligence claim because Stewart Title,

as the escrow agent, had the duty to transfer the loan payoff funds to the Jarvises and breached that




                                                      13—
duty by failing to do so. The Jarvises also argue the trial court erred by granting summaryjudgment

on the breach of contract claim because they were the third-party beneficiaries of the escrow

agreement relating to the sales contract between CAS and K&E, and Stewart Tide breached the

escrow agreement by failing to deliver the proceeds as required by the agreement

           We have concluded there is sufficient evidence to support the trial court’s determination

NAC had implied actual authority to accept loan payoff funds on behalf of the Jarvises. Stewart

Title transferred the finds to NAC, constituting payment to the Jarvises. See Cash, 734 S.W.2d at

399. Therefore, Stewart Title breached neither a common law duty to the Jarvises nor the escrow

agreement relating to the CAS and K&E sales agreement by failing to deliver the finds to the

Jarvises? We conclude the trial court did not err by granting Stewart Title summary judgment on

the Jarvises’ negligence and breach of contract claims.

           The Jarvises also assert the trial court erred by granting summary judgment on the Jarvises’

claim against Bayview to quiet tide and against Bayview and Stewart Title for declaratory reliefthat

the DOT had not been discharged. The payment of a debt discharges the lien securing it without

any release from the lienholder. Perkins v. Sterne, 23 Tex. 561,563(1859); Green v. Am. Nat ‘lins.

Ca, 452 S.W.2d 1,4 (rex. Civ. App.—San Antonio 1970, no writ). When Stewart Tide forwarded

theloanpayoff funds toNAC, theJarvises’ agentwith authorityto acceptthe fluids, the lien on the

property was extinguished and the DOT was discharged. Accordingly, the trial court did not err by

granting summaryjudgment on the Jarvises’ claims against Bayview to quiet tide and for declaratory

relief against both Bayview and Stewart Tide. We resolve the Jarvises’ third issue against them.




      Mcordingly. we need net decide whether an escrow agent own a duty ba non-pay to the underlying contract or whether the Invites were
third-pony beneficiaries of the escrow agreement See Tix. It. An. P.47.1.




                                                                  -14-
                                                 Attonwv’s Fees

          In their fOurth issue the Jarvises argue the trial court erred, by awarding K&E attorney’s fees

under the Uniform Declaratory Judgment Act (UDJA). We will not reverse the trial court’s decision

granting   atLorneys ties in a declaratory iudgment action absent a clear showing of an abuse of

discretion, Max Duncan Farnili mi’s., Ltd.         i’.   iVFTNJnc., 267 S.W.3d 447, 454 (Tex. App.-Dallas

2008, pet. denied).

           The Jarvises   first   contend the trial court’s award of attorneys fees to K&E was improper

and without tbundation because the “cause of action and relief sought by” K&E was in the nature

of a quiet title lawsuit, not a declaratory judgment action, and attorney’s fees are not available in an

action to quiet title. However, K&E initiated this action requesting injunctive relief’ to prevent

tbreclosure, declarations the Note had been fully paid and the 1)01’ had been discharged and no

longer constitutes and valid and subsisting lien on the Property. and costs and attorney’s fees. The

UDJA permits a party to bring a declaratory judgment action to invalidate a real estate note, as well

as   any lien securing the note. Id. at 453: see aLso TEX. Civ. PRAC. & REM. CODE ANN.             § 37.O()4(a)
(West 200$ 1-10 Colony, inc.           ‘.   Lee. No. 14-lO-01051-CV, 2012 WI. 4355534, at *4_5 (Tex.

App.—-Houston [14th 1)ist,] Sept. 25, 2012, no pet. h.). it also provides that, in any proceeding

under the UDJA, a trial court may award costs and reasonable attorney’s fees as are equitable and

just.   Max Duncan Family mi’s., Ltd., 267 S.W.3d at 453;           see a/so   TEX. Civ. PRAC. & REM. CODE

ANN.    § 37.009 (West 2008).
         The action initiated by K&E involves more than title and possession of real property; the

action concerns the validity of a real estate note. Therefore, K&E could bring           its   claim under the

UDJA and could properly recover costs and attorney’s fees. See Mcix Duncan fr’amiii’ Inv.s’., Ltd., 267

S.W.3d at 454; Guniganti v. Kal’L’akuntla, 346 S.W.3d 242, 252—53 (Tex. App.—Houston [14th




                                                         —15—
DiaL] 2011, no pet). We cannot conclude the trial court abused its discretion by awarding K&E

attorney’s tees.

        The Jarvises next complain that there was “a lack of proper evidentiary foundation” to

support the award of attorney’s fees for the time a legal assistant, Cheryl Moseley, worked on the

case. An award of attorney’s fees may include a legal assistant’s time to the extent the work

performed has traditionally been done by an attorney. Gill Sm’. Ass n v. int’l Supply Ca, Inc., 759

S.W.2d 697, 702 (Ta. App.—-Dallas 1988, writ denied). To recover fees for a legal assistant’s

work, the evidence must show the (1) legal assistant is qualified through education, trainin& or work

experience to perform substantive legal work; (2) substantive legal work was performed under the

direction and supervision ofan attorney; (3) nature ofthe legal work pcrtbnned; (4) hourly rate being

charged for the legal assistant; and(S) number ofhours expended by the legal assistant ii; see also

El Apple I. Ltd. v. Olivas, 370 S.W.3d 757, 763 (Ta. 2012). The Jarvises argue K&E iiled to

establish Moseley’s qualifications through their expert’s direct testimony, and the trial court erred

by allowing testimony about Moseley’s qualifications during redirect examination.

        Arthur Selander, K&E’s attorney, testified as to K&E’s attorney’s fees. As relevant to this

appeal, Selander testified in his direct examination about the work his law finn had performed on

the case and that Moseley had worked on the case “throughout all the matters” described by

Selander. The Jarvises’ attorney cross-examined Selander about his billing statements and whether

Stewart Title was paying K&E’s attorney’s fees. Selander also testified about whether fees relating

to certain activities and to the third-party claims had been segregated.

       On redirect examination, Selander testified about the additional time he and Moseley had

expended following the first two days oftrial. He then testified that Moseley had twenty-six years’

experience in the legal field as a legal secretary and a legal assistant. She was certified as a



                                               -16-
professional legal secretary in I 091 and as a legal assistant in 2003. As Selander began testifying

that the   services   N4oselev had perFormed on the ease related to substantive legal work, the Jarvises

objected that any testimony relating to Moseley     was   outside the scope ot the cross—examination. The

trial court overruled the objection, and Selander testified Moseley s work related to substantive legal

matters. The trial court’s award of attorney’s fees included fees for Moseley’s time.

           The Jarvises do not assert that Selander’s testimony during redirect was insutlicient to

establish Moseley’s qualifications. Rather, they contend the trial court erred by allowing Selander

to testify about rvloseley’s qualifications on redirect when that subject had not been addressed in

Selander’s direct testimony or on cross—examination. We review a trial court’s decision to admit or

exclude evidence for an abuse of discretion. Bay Area ilealthcare Grp,, Ltd. v. MeShane, 239

SW .3 d 231 ,234 (Tex. 2007 (per curiani). A trial court abuses its discretion ifit acts without regard

to guiding rules or principles. (Jiiens—Corning fr’therglas Corp. v.   Malone,   972 S.W.2d 35,43 (Tex.

1998). We must affirm the trial court’s ruling if the record shows any legitimate basis supporting

the ruling. id.

        The trial court is required to exercise reasonable control of the mode and order of testimony

during a trial. TEx. R. EviD. 611(a). In doing so, the trial court may allow nearly complete freedom

to examining counsel to bring out new matters on redirect examination, subject to recross

examination. Tricon Tool & Supply, Inc. v. Thuniann, 226 S.W.3d 494, 508 (Tex. App.—Houston

[1st Dist.] 2006, pet. denied); see also Crum & Forster, Inc. v. Monsanto Co., 887 S.W.2d 103, 141

(Tex. App.—Texarkana 1994, no writ). Selander’s testimony during his redirect examination about

Moseley’s qualifications was not wholly unrelated to the matters testified about during direct and

cross-examination.        Further, the Jarvises had the opportunity to cross-examine Selander on

Moseley’s qualifications, but declined to do so. Accordingly, we cannot say the trial court abused




                                                   —17—
its discretion   by allowing Selander to testify during his redirect testimony about Moseleys

qualifications. See Thuinann, 226 SW3d at 5O7—O8 (trial Court did not abuse its discretion by

allowinu counsel to reopen the evidence in order to testi iv about Counsels quali hcations. trial.

appellate experience, and appellate attorney’s fees). We resolve the Jarvises’ fourth point of error

against them.

       We affirm the trial court’s judgment.




                                                      ROBERT rvl. FILLMORE
                                                      JUSTICE

1 1034 lFP05




                                               —is—
                                 Qtnurt uf pprzI15
                        FiftIi JiIrir1 uf xa at Da11ai

                                       JUDGMENT
WILLiAM C. JAR VIS ANI) C1N i)Y                     Appeal from the 162nd Judicial District
JARVIS, Appellants                                  Court of Dallas County, Texas. (TrCLNo.
                                                    I 0—00947—I).
No. 05—11 —00341 ( A’        V                      Opinion delivered by Justice Fillmore,
                                                    Justices Moseley and Myers participating.
K&E RE ONE, LLC, STEWART TITLE
COMPANY, AND I3AVVIEW LOAN
SERViCING, Appellees

       In accordance with this Courts opinion of this date, the judgment ot the trial court is
A1’FIRi1E1). It is ORL)EREI) that appellees K&E Re One, LLC, Stewart Title Company, and
Bayview Loan Servicing recover their costs of this appeal from appellants William C. Jarvis and
Cindy Jarvis.


Judgment entered November 30, 2012.




                                                   ROBERT M. FILLMORE
                                                   JUSTICE
