                                                                                           ACCEPTED
                                                                                       01-17-00844-CV
                                                                            FIRST COURT OF APPEALS
                                                                                    HOUSTON, TEXAS
                                                                                     5/25/2018 2:07 PM
                                                                                 CHRISTOPHER PRINE
                                                                                                CLERK


                        No. 01-17-00844-CV

                   IN THE COURT OF APPEALS             FILED IN
                                                1st COURT OF APPEALS
                FOR THE FIRST DISTRICT OF TEXAS     HOUSTON, TEXAS
        _____________________________________________
                                                5/25/2018 2:07:54 PM
                                                               CHRISTOPHER A. PRINE
                                                                     Clerk
         LESLIE R. POGUE AND JEANNETTE I. POGUE, Appellants

                                    VS.

               ELIZABETH A. WILLIAMSON, Appellee.
        _____________________________________________

                 (On appeal from the 164th Judicial District
                      Court of Harris County, Texas,
                    Trial Court Cause No. 2012-56353)
        _____________________________________________

                      BRIEF OF APPELLANTS,
            LESLIE R. POGUE AND JEANNETTE I. POGUE
        _____________________________________________


                                       DE LANGE, HUDSPETH,
                                       MCCONNELL & TIBBETS, L.L.P.
                                       BEN A. BARING, JR.
                                       STATE BAR NO. 01739050
                                       bbaring@dhmtlaw.com
                                       R. TRAVIS PIPER
                                       STATE BAR NO. 24070421
                                       tpiper@dhmtlaw.com
                                       1177 WEST LOOP SOUTH, SUITE 1700
                                       HOUSTON, TX 77027
                                       PHONE: 713-871-2000
                                       FAX: 713-871-2020

ATTORNEYS FOR APPELLANTS, LESLIE R. POGUE AND JEANNETTE I. POGUE

                    ORAL ARGUMENT REQUESTED
                      Identities of Parties and Counsel
PARTIES                               COUNSEL
Appellants:                           Trial Counsel:
                                      Sharon E. Peebles
Leslie R. Pogue and                   Attorney at Law
Jeannette I. Pogue                    1218 Potomac Dr., Unit A
                                      Houston, TX 77057
                                      Phone: 713-289-4849
                                      Fax: 713-583-6419
                                      Email: peebleslaw@aol.com

                                      Appellate Counsel
                                      De Lange, Hudspeth, McConnell
                                       & Tibbets, L.L.P.
                                      Ben A. Baring, Jr.
                                      Email: bbaring@dhmtlaw.com
                                      R. Travis Piper
                                      Email: tpiper@dhmtlaw.com
                                      1177 W. Loop South, Ste. 1700
                                      Houston, TX 77027
                                      Phone: 713-871-2000
                                      Fax: 713-871-2020

Appellee:                             Trial Counsel:
                                      Scarlett C. May
Elizabeth A. Williamson               The May Law Firm
                                      5607 Spring Lodge, Ste. 200
                                      Kingwood, TX 77345
                                      Phone: 713-502-6806
                                      Fax: 281-360-4296
                                      Email: themaylawfirm@aol.com

                                      Trial and Appellate Counsel
                                      Misty Hataway-Coné
                                      Spurlock & Associates
                                      17280 West Lake Houston Pkwy.
                                      Humble, TX 77346
                                      Phone: 281-548-0900
                                      Fax: 281-446-5443
                                      Email: MCone@spurlocklaw.com



                                     ii
                                               Table of Contents
                                                                                                                  PAGE


Identities of Parties and Counsel............................................................................... ii

Table of Contents ..................................................................................................... iii

Table of Authorities ..................................................................................................vi

Statement of the Case.................................................................................................x
Statement Regarding Oral Argument .......................................................................xi
Record References ....................................................................................................xi

Issues Presented ...................................................................................................... xii

         1.       The trial court erred in entering judgment against the Pogues for
                  damages under the Texas Deceptive Trade Practices Act because
                  Williamson clearly and unequivocally disclaimed reliance on
                  any statements or representations by the Pogues regarding the
                  condition of the property. ................................................................... xii

         2.       Because Williamson clearly and unequivocally disclaimed
                  reliance on any statements or representations of the Pogues
                  regarding the condition of the property, she cannot recover under
                  common-law       fraud,     statutory    fraud,        or        negligent
                  misrepresentation theories of recovery. ............................................. xii

         3.       The trial court erred in entering judgment extinguishing and
                  releasing the lien on the property contained in the deed of trust,
                  which secured the payment of Williamson’s note to the Pogues
                  for the purchase of the property. ........................................................ xii

         4.       The damages awarded by the trial court judgment under the
                  Texas Deceptive Trade Practices Act were improper even if
                  Williamson had not disclaimed reliance. ........................................... xii

         5.       The jury’s answers to the damage questions related to fraud and
                  negligent misrepresentation—Questions Numbers 4 and 11—
                  cannot support the trial court’s judgment........................................... xii


                                                           iii
         6.       The judgment awarding attorney’s fees should be reversed. ............. xii

Preliminary Statement ................................................................................................1
Statement of Facts ......................................................................................................2
Summary of the Argument.......................................................................................13

Argument………………………………………………………………………… 17
     I.  Williamson’s disclaimer-of-reliance agreement prevents her
         from recovering under all of her causes of action. (Issue Nos. 1
         and 2). ..................................................................................................17

                  A.        The disclaimer-of-reliance clause signed by Williamson is
                            clear and unequivocal. ..............................................................23
                  B.        The language was not boilerplate and the parties discussed
                            the issue. ....................................................................................25
                  C.        Williamson was represented by counsel in the transaction.
                            ...................................................................................................29
                  D.        Williamson and the Pogues dealt in an arm’s length
                            transaction and Williamson was knowledgeable about
                            business matters. .......................................................................30
                  E.        Because of the disclaimer-of-reliance language,
                            Williamson cannot recover under any of her tort theories
                            as a matter of law. .....................................................................32
         II.      The trial court’s judgment extinguishing the Pogues’ deed of
                  trust lien is a misapplication of Texas law and constitutes
                  reversible error. (Issue No. 3)..............................................................33

                  A.        Williamson’s debt to the Pogues has not been extinguished
                            and currently exists. ..................................................................35
                  B.        The Pogues’ right to foreclose is not barred by the
                            applicable statute of limitations. ...............................................37
         III.     The DTPA damages awarded by the trial court were improper.
                  (Issue No. 4). .......................................................................................39

                  A.        The trial court erred in entering its judgment for additional
                            damages of $327,500 because this award does not conform
                            to the jury’s verdict. ..................................................................39


                                                             iv
                  B.        The trial court erred in awarding both loss of the benefit-
                            of-the-bargain damages and out-of-pocket damages under
                            the DTPA, as the award constitutes a double recovery. ...........41
                  C.        The trial court erred in including future benefit-of-the-
                            bargain and out-of-pocket damages in the actual damages
                            awarded under the DTPA..........................................................43
                  D.        The trial court erred in entering judgment awarding
                            benefit-of-the-bargain damages under the DTPA because
                            there was no evidence of the property’s value as it was
                            received by Williamson. ...........................................................45
                  E.        The trial court erred in entering judgment for future out-
                            of-pocket damages, future expenses, and future lost time
                            damages. ....................................................................................46
         IV.      The trial court’s judgment cannot be supported by the jury’s
                  answers to the damages questions related to fraud and negligent
                  misrepresentation—jury Question Nos. 4 and 11. (Issue No. 5) ........ 48

                  A.        There is no evidence to support the benefit-of-the-bargain
                            damages      awarded         for        fraud          and         negligent
                            misrepresentation. .....................................................................48
                  B.        There is no evidence to support the jury’s award of future
                            fraud and negligent misrepresentation damages. ......................50
                  C.        There is no evidence to support the jury’s award of past
                            remedial damages, mitigation expenses, and economic
                            loss.............................................................................................52
         V.       Because the trial court erred in entering judgment against the
                  Pogues, the court’s award of attorney’s fees should be reversed.
                  (Issue No. 6) ........................................................................................57

Prayer for Relief .......................................................................................................58
Certificate of Service ...............................................................................................59

Certificate of Compliance ........................................................................................59

Appendix………………………………………………………………………….60




                                                             v
                                            Table of Authorities
                                                                                                                Page

                                                       CASES

Abry Partners V., L.P. v. F and W Acquisition, L.L.C.,
      891 A.2d 1032 (Del. 2006) ............................................................................22

Allen v. Devon Energy Holdings, LLC,
      367 S.W.3d 355 (Tex. App.—Houston [1st Dist.] 2012, pet. granted,
      judgm’t vacated w.r.m.) .............................................................. 18, 21, 22, 25
Arthur Andersen & Co. v. Perry Equip. Corp.,
      945 S.W.2d 812 (Tex. 1997). ........................................................... 42, 44, 50
Atlantic Lloyds Ins. Co. v. Butler,
      137 S.W.3d 199 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) ..........21
Bever Properties, LLC v. Jerry Huffman Custom Builder, L.L.C.,
      No. 05-13-01519-CV, 2015 WL 4600347 (Tex. Civ. App.—Dallas, July 31,
      2015, no pet.) .................................................................................................27

Boat Superstore v. Haner,
      877 S.W.2d 376 (Tex. App.—Houston [1st Dist.] 1994, no pet.).................41
Fazio v. Cypress/GR Houston I, L.P.,
      403 S.W.3d 390 (Tex. App.—Houston [1st Dist.] 2013, no pet.).......... 44, 50
Federal Land Bank Ass’n of Tyler v. Sloane,
     825 S.W.2d 439 (Tex. 1991) .........................................................................55

FFE Transp. Servs., Inc. v. Fulgham,
     154 S.W.3d 84 (Tex. 2004) ...........................................................................53

Foley v. Parlier,
      68 S.W.3d 870 (Tex. App.—Ft. Worth 2002, no pet.) ..................................43
Forest Oil Corp. v. McAllen,
      268 S.W.3d 51 (Tex. 2008) ................................................................... passim

Goldfrank, Frank & Co. v. Young,
      64 Tex. 432 (1885) ................................................................................. 36, 37

                                                          vi
Gulf States Utilities Co. v. Low,
      79 S.W.3d 561, 567 (Tex. 2002) ...................................................................57

Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 912 (Tex. 2007) ..............22

Henry Schein, Inc. v. Stromboe,
     102 S.W.3d 675 (Tex. 2002) .........................................................................33
Holman Street Baptist Church v. Jefferson,
     317 S.W.3d 540 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) .......37

Hong v. Nations Renovations, LLC,
     No. 05-15-01036-CV, 2016 WL 7473900, (Tex. Civ. App.—Dallas, Dec.
     29, 2016, no pet.) ...........................................................................................27

Houston Lighting & Power Co. v. Fisher,
     559 S.W.2d 682 (Tex. App.—Houston [14th Dist.] 1977,
     writ ref’d n.r.e.) ....................................................................................... 46, 49

Houston v. Ludwick,
     No. 14-09-00600-CV, 2010 WL 4132215 (Tex. App.—Houston [14th Dist.]
     2010, pet. denied) ..........................................................................................46

Hughes v. Mahaney & Higgins,
     821 S.W.2d 154 (Tex. 1991) .........................................................................38
Huynh v. Phung,
     No. 01-04-00267-CV, 2007 WL 495023 (Tex. App.—Houston [1st Dist.]
     Feb. 16, 2007, no pet.) ...................................................................................43

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of America,
       341 S.W.3d 323 (Tex. 2011) .................................................................. 21, 22
Jerry L. Starkey, TBDL, L.P. v. Graves,
      448 S.W.3d 88, 112 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ........58

Lakewood Pipe of Texas, Inc. v. Conveying Techniques, Inc.,
     814 S.W.2d 553 (Tex. App.—Houston [1st Dist.] 1991, no writ) ......... 47, 51

Larsen v. Carlene Langford & Assocs., Inc.,
      41 S.W.3d 245 (Tex. App.—Waco 2001, pet. denied) .................................33



                                                         vii
Latham v. Castillo,
     972 S.W.2d 66 (Tex. 1988) ...........................................................................43

Leyendecker & Assocs. v. Wechter,
     683 S.W.2d 369 (Tex. 1984) .................................................................. 44, 50

Martin v. McKee Realtors,
      663 S.W.2d 446 (Tex. 1984) .........................................................................41

McGinty v. Hennen,
     372 S.W.3d 625 (Tex. 2012) .................................................................. 46, 49

McIver v. Gloria,
     140 Tex. 566, 169 S.W.2d 710, 712 (1943) ........................................... 47, 51

McLernon v. Dynegy, Inc.,
     347 S.W.3d 315 (Tex. App.—Houston [14th Dist.] 2011, no pet.) . 21, 27, 28
Phillips v. Phillips,
       820 S.W.2d 785 (Tex. 1991) .........................................................................40
Pioneer Bldg. & Loan Ass’n v. Johnston,
      117 S.W.2d 556 (Tex. Civ. App.—Waco, 1938, writ dism’d) .....................39

Pjetrovic v. Home Depot,
      411 S.W.3d 639 (Tex. App.—Texarkana 2013, no pet.) ..............................53
Prudential Ins. Co. of America v. Jefferson Assocs., Ltd.,
     896 S.W.2d 156 (Tex. 1995) .........................................................................33

Roth v. Law,
      579 S.W.2d 949 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e.) ..47

Salomon v. Lesay,
     369 S.W.3d 540 (Tex. App.—Houston [1st Dist.] 2012, no pet.).................40
Schlumberger Tech. Corp. v. Swanson,
     959 S.W.2d 171 (Tex. 1997) ................................................................. passim
Walker v. Hanes,
     570 S.W.2d 534 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.) ..38




                                                    viii
Williams v. Dardenne,
      345 S.W.3d 118 (Tex. App.—Houston [1st Dist.] 2011, no pet.).................33

Woodyard v. Hunt,
     695 S.W.2d 730 (Tex. App.—Houston [1st Dist.] 1985)....................... 44, 50

Wortham Bros., Inc. v. Haffner,
     347 S.W.3d 356 (Tex. App.—Eastland 2011, no pet.)..................................53

                                                    STATUTES

TEX. BUS. & COM. CODE ANN. § 17.50(b)(1) ..........................................................40

TEX. BUS. & COM. CODE ANN. § 17.50(d) ...............................................................57
TEX. BUS. & COM. CODE ANN. § 27.01(d) ...............................................................57

TEX. BUS. & COM. CODE ANN. § 17.50(a) ...............................................................42
TEX. CIV. PRAC. & REM. CODE § 16.035(b) .............................................................34
                                            OTHER AUTHORITIES
RESTATEMENT (2ND) OF TORTS § 552B (1977) ........................................................55
                                                       RULES

TEX. R. APP. P. 9.4(i)(1). ..........................................................................................59
TEX. R. CIV. P. 301 ...................................................................................................39




                                                           ix
                           Statement of the Case

Nature of the Case:      Williamson bought a 33-year old vacant house and
                         4.5 acres from the Pogues for $235,000. Williamson
                         agreed that she was taking the property “as is” with
                         all latent and patent defects and that she was relying
                         solely on her examination of the property, and not
                         upon any representations by the Pogues regarding
                         the property’s condition.

                         Two years after purchasing the property Williamson
                         sued the Pogues, her real estate agent, and the
                         agent’s firm alleging various tort theories of
                         recovery related to misrepresentations regarding the
                         property’s condition. I CR 4.

Trial Court:             Hon. Alexandra Smoots-Thomas, 164th Judicial
                         District Court of Harris County, Texas

Course of Proceedings The trial court granted the agent’s and real estate
and    Trial  Court’s firm’s motion for summary judgment. II First Supp.
Disposition:          CR 435. The court also initially granted the Pogues’
                      motion for summary judgment but later vacated its
                      order. III First Supp. CR 814, 830. Williamson’s
                      claims against the Pogues were tried to a jury, and
                      the jury answered questions favorable to
                      Williamson. Tab A, III First Supp. CR 869. The trial
                      court entered judgment against the Pogues for
                      damages, prejudgment interest, and attorneys’ fees
                      totaling $760,769.67. The judgment also
                      extinguished the Pogues’ deed of trust lien that
                      secured Williamson’s note for the property’s
                      purchase. Tab B, III First Supp. CR 902.




                                      x
                       Statement Regarding Oral Argument
      Appellants request that the Court hear oral argument. Oral argument is
desirable because the record is lengthy and there are numerous exhibits. Oral
argument will assist the Court in clarifying the issues and explaining the facts.




                                  Record References
References to the record are denoted by the following:

      Clerk’s Record                          [volume] CR [page(s)]
      Reporter’s Record                       [volume] RR [page(s)]

       The Reporter’s Record contains two volumes designated “6 of 11”. To avoid
confusion, in this brief the volume number for the testimony taken on May 9, 2017
is referred to as “6A”, and the volume number for the testimony taken on May 10,
2017 is referred to as “6B”.

      Williamson trial exhibits               PX [number]
      Pogues’ trial exhibits                  DX [number]




                                         xi
                                Issues Presented
1.   The trial court erred in entering judgment against the Pogues for damages
     under the Texas Deceptive Trade Practices Act because Williamson clearly
     and unequivocally disclaimed reliance on any statements or representations
     by the Pogues regarding the condition of the property.

2.   Because Williamson clearly and unequivocally disclaimed reliance on any
     statements or representations of the Pogues regarding the condition of the
     property, she cannot recover under common-law fraud, statutory fraud, or
     negligent misrepresentation theories of recovery.

3.   The trial court erred in entering judgment extinguishing and releasing the lien
     on the property contained in the deed of trust, which secured the payment of
     Williamson’s note to the Pogues for the purchase of the property.

4.   The damages awarded by the trial court judgment under the Texas Deceptive
     Trade Practices Act were improper even if Williamson had not disclaimed
     reliance.

5.   The jury’s answers to the damage questions related to fraud and negligent
     misrepresentation—Questions Numbers 4 and 11—cannot support the trial
     court’s judgment.

6.   The judgment awarding attorney’s fees should be reversed.




                                       xii
TO THE HONORABLE FIRST COURT OF APPEALS:

                              Preliminary Statement
      The Pogues appeal a $760,000 judgment holding them liable for

misrepresenting the condition of a thirty-three-year-old house that Williamson

purchased “as is” and with all patent and latent defects, and with an agreement that

she was relying solely on her own examination of the property and not on any

representations, statements, assertions, or non-assertions by the Pogues related to the

property’s condition.

      The real basis of this dispute was the Pogues’ refusal to grant Williamson an

extension of time to make her final balloon payment on the owner-financed note that

Williamson owed to the Pogues. The Pogues, who are retired and now live in

Bellville, Texas, agreed to owner-finance Williamson’s purchase of the property, but

only for two years. Williamson made her regular monthly payments to the Pogues

during the two-year period and never complained to them about any problems with

the house, although she had every opportunity to do so.

      But all of this changed several weeks before Williamson’s note came due.

Williamson asked for the Pogues to extend the date of her final payment (the balance

of the note) and when the Pogues wouldn’t agree, Williamson hired an attorney, who

sent a letter demanding that the Pogues grant the extension. For the first time, the

letter also notified the Pogues that there were problems with the house, and that




                                          1
Williamson had been repairing it for two years. On the day Williamson’s final

payment was due, she sued the Pogues, alleging that they had defrauded Williamson.

      The overarching issue is whether Williamson may recover any amount from

the Pogues, when Williamson affirmatively agreed to rely solely on her own

investigation of the property and not on any representations of the Pogues related to

the property’s condition.

                                Statement of Facts
      Leslie R. Pogue and Jeannette I. Pogue owned a thirty-three-year-old house

on 4.5 acres at 901 Indian Shores Road in Crosby, Texas. 2 RR 185. The Pogues

were the fifth or sixth owners of the property, having purchased it in 2000. 6B RR

180, 219. The property was fenced, included a pecan orchard, and had room for

horses and other animals to roam. 2 RR 185, 233-34. Here is a picture of the Indian

Shores property, for demonstrative purposes:




                                         2
      In September 2008, Hurricane Ike battered the Texas Gulf Coast. Many homes

were damaged, including the Pogues’ property, and the Pogues made an insurance

claim for $33,000. 6B RR 90. The Pogues received $25,0156 on this claim. 6B RR

206. They spent $18,700 to replace the roof, and had the house repainted, replaced

some sheetrock, and repaired some outside trim. 10 RR PX 20, 6B RR 89-90. Mr.

Pogue was his own general contractor and he testified that his subcontractors made

all the repairs required by the insurance company and that the insurance company

would not have paid the claims until they made sure the repairs had been completed.

6B RR 202.

      The Pogues lived in the Indian Shores property until March 2009 when they

moved to Bellville, Texas. 6B RR 181. Shortly after moving, the Pogues put the

property up for sale, and at first attempted to sell the property without a realtor. 7

RR 45-46. The property didn’t sell, and in September 2009 they retained Gina Jones

as a realtor in an effort to sell the property. 2 RR 237. Ms. Jones helped the Pogues

with the property listing, took photos of the house, and suggested that the Pogues

repaint the inside. 7 RR 46-47.

      The Indian Shores property was vacant for nearly a year and a half when

Lewis Walker, Elizabeth Williamson’s future husband, noticed that the property was

for sale. Walker wanted to buy the property, but because of his poor credit he

couldn’t qualify for a loan, and instead the Pogues agreed to rent the property to him.



                                          3
Walker then moved boxes in the house. 2 RR 207, 218-19, 6A RR 71. Williamson,

who was Walker’s fiancée, went with Walker when he looked at the property before

he rented it. 6A RR 34, 257. Williamson was aware of the Indian Shores property

because she lived two streets over in a double-wide trailer. 6A RR 76-77.

      She knew about the Pogues’ property and had always liked it because it was,

as she put it, an “iconic” property in the area. 6A RR 34-35. As Williamson testified:

“It wasn’t so much just the house. It was just—the land and everything, the way it

was set up. It was just a really nice property.” 2 RR 191. “Everybody always talked

about it [the property], the way it sat off the road, and the yard, the way—it had just

a really deep inset. The way that the property was set up, it just was really nice, and

the Pogues had added pecan trees, which really gave it a little bit of extra attraction”.

6A RR 35.

      After the Pogues’ had rejected Walker’s offer to purchase the property (and

after the Pogues agreed to lease the property to Walker) Williamson decided to make

an offer to purchase the Indian Shores property herself. 6A RR 35. Before purchasing

it, Williamson was only at the property two times and the Pogues were not present

either time. The first time Williamson went to the property was when Walker was

interested in making an offer to purchase it. The second time was when Williamson

herself made the offer to purchase the property. 6A RR 257.




                                           4
      Williamson and the Pogues initially into an earnest money contract for the

sale of the Indian Shores property. 10 RR PX 2. The sales price was $235,000, and

the Pogues agreed to owner-finance $210,000 for two years. 10 RR PX 2, par. 4C.

Williamson agreed in the earnest money contract that she was accepting the property

in its present condition:




10 RR PX 2, ¶ D(1). The contract also provided that Williamson could have the

property inspected by inspectors she selected, but Williamson decided not to have

the property inspected. 6A RR 74, 215.

      When Williamson looked at the house before she purchased it, the property

was vacant, as the Pogues had moved out nearly a year and a half before. 2 RR 255,

6B RR 181. When Williamson saw the property for the first time, it was filthy, and

the garage was full of debris. 6B RR 32-33. The yard was very overgrown to the

point that Williamson couldn’t even tell that there was any landscaping. 2 RR 255.

Although the house was vacant, it still had belongings in it and Williamson testified

that the barn on the property looked “Silence of the Lambs” scary as it had “needles

and syringes on the ground, and on tables”. 2 RR 256. Williamson also noticed that

the pool on the property was pitch black, like it had not been maintained for years,

to the point that you could not see the bottom of the pool. 2 RR 256. Inside the house,



                                          5
Williamson testified that in addition to a lot of “stuff” still being in the house, the

carpet was “really disgusting and gross” and Williamson noted that the house had a

musty odor, which her realtor told her was because the air conditioners had been

stolen and because the property had been closed up. 2 RR 258.

      Before purchasing the property, Williamson attempted to obtain property

insurance, during that process she learned from her insurance company that a wind

claim had previously been made on the property. 3 RR 156, 6A RR 78. In addition,

before Williamson closed on the purchase, she asked her realtor about insurance

claims and was told that the Pogues had replaced the roof on the house after

Hurricane Ike. 6A RR 82.

      The closing on the property occurred on September 10, 2010. 10 RR PX 7.

Williamson signed a two-year note to the Pogues for $210,000, and the note

provided for a final balloon payment for the full amount in twenty-four months. 10

RR PX 5. So that there would be no question as to when the note came due, the note

included a bold, underlined notice to Williamson:




                                          6
10 RR PX 5, p. 4.

      Williamson also signed a deed of trust securing the Pogues’ note, showing a

final maturity date of September 25, 2012. 10 RR PX 6. The Pogues signed a

warranty deed with vendor’s lien, conveying the property to Williamson. 10 RR PX

7. Williamson also signed the deed as Grantee, agreeing to accept the deed and

consenting to its form and substance, and acknowledging that the terms of the deed

conformed with her intent. She further agreed to the obligations imposed on her by



                                        7
the terms of the deed, the accompanying real estate lien note, and deed of trust. 10

RR PX 7, p. 5:




      One paragraph in the deed is particularly important in this appeal. The deed

included a detailed paragraph, in which Williamson agreed that she purchased the

property “as is” and provided that Williamson was not relying on any

representations, statements, assertions or non-assertions by the Pogues with respect

to the property’s condition, and that she was instead relying solely on her own

examination of the property:




                                         8
10 RR PX 7, p. 3.

      Williamson also signed a document acknowledging that the attorney who

prepared the closing documents—Donna Heinlein—was instructed by Williamson

to refrain from doing nineteen specific actions, including ordering a title policy for

her, ordering a survey, ordering a title search, having a termite inspection, and/or

having experts inspect the premises and/or appliances, ascertaining whether or not

the property was in a 100-year flood zone, or ascertaining whether there were any

drainage problems or drainage easements. 10 RR PX 10, 10A-10D.

      At closing, the Pogues paid $350 for a residential service contract for

Williamson. 6 RR 243-44, 10 RR PX 4, p. 2, ln. 1305.

      Williamson and her husband moved into the Indian Shores property in mid-

October 2010. 2 RR 218. Shortly after they closed, Williamson began to discover

problems with the house. Williamson testified that they discovered that some of the

electrical outlets were not in working order and various light fixtures had switch


                                          9
problems. 2 RR 219-20. She found wood rot under the hall bathroom carpet and

behind the bathroom cabinet wall. 2 RR 221-23, 6A RR 101-02, 6B RR 87.

Williamson testified that she then began to discover that there was mold in parts of

the walls in some of the rooms in the home, which she bleached, and wood rot in

many of the rooms behind the walls. 6A RR 105-27. There was also some termite

damage behind the bathtub in one of the bathrooms, but there were no live termites.

6A RR 105-06. Williamson also testified that she found out that one of the septic

tanks was improperly installed under the kitchen that caused some leakage. 6A RR

132-134. Williamson and Walker replaced the rotten wood that they found in the

rooms and put new sheetrock and insulation up where necessary, with Walker doing

the repair work himself. 6A RR 108-1545, 6B RR 124. Walker testified that he

repaired “almost the entire house.” 6B RR 144-45.

      Despite Williamson knowing about the problems she found in the house

immediately after moving in (in October 2010), she never notified or complained to

the Pogues about these problems until two years later in 2012, when her final note

payment was due on September 25, 2012. 3 RR 155, 6B RR 87.

      Shortly before this payment was due (and before mentioning any problems

existed in the house), Williamson contacted Mrs. Pogue by email and asked her if

she could have an extension on the final payment. 3 RR 157. After thinking about it,

the Pogues decided that they did not want to extend the payment. It was only then



                                        10
that Williamson explained that “there were some problems” with the house that she

had been living in and repairing for two years. 3 RR 157-58. Williamson then hired

an attorney to send a letter to the Pogues complaining that (1) the Pogues did not

provide disclosures of the condition of the residence, (2) the septic tanks were not

up to code, (3) there was extensive bug infestation, including termites and (4) there

was mold throughout the residence. The letter indicated that Williamson could not

make the final note payment and requested an eighteen-month extension of the note,

at which time she would pay the note in full. II First Supp. CR 620, 10 RR PX 11.1

       No agreement was reached between the parties and on the date that the final

balloon payment was due, Williamson sued the Pogues, along with Williamson’s

realtor, Gina Jones, and Alliance Properties, the real estate company. I CR 4. The

basis of Williamson’s complaint against the Pogues was her assertion that the Pogues

failed to disclose to her that there was wood rot, termite damage, and other water

damage in the home. I CR 4, ¶ 16. Williamson testified that her complaint was with

the representations that the Pogues made in the seller’s disclosure. 6B RR 114-15.

she testified that the Pogues never otherwise represented the property’s condition to

her, and she even denied that she relied on the Pogues. 6A RR 218, 6B RR 44.


______________________
1   This exhibit admitted at trial is shown as being “retained by counsel” and therefore a copy is
    not in the reporter’s record on file as of the filing of this brief. (A copy is located in the First
    Supp. Clerk's Record, as cited above). A supplemental reporter’s record with this exhibit and
    all other exhibits retained by Williamson's counsel will be filed when all of the retained exhibits
    are compiled by the court reporter.

                                                  11
      Williamson’s realtor and the real estate company filed a motion for summary

judgment, which the trial court granted. I First Supp. CR 143, II First Supp. CR 435.

Among the bases of the realtors’ motion for summary judgment was that the earnest

money contract and warranty deed both made it clear that Williamson purchased the

Indian Shores property “as is” and that she was relying solely on her own

examination, and not any other representations. I First Supp. CR 156-58.

      The Pogues filed their own motion for summary judgment. II First Supp. CR

437. The Pogues asserted that all of Williamson’s causes of action were precluded

by the language in the purchase contract and deed. The court initially granted the

Pogues’ motion, but the court later vacated its order. III First Supp. CR 814, 830.

      The case proceeded to trial in April 2017. After a day and a half of testimony,

the parties announced that a settlement had been reached. 3 RR 205. But before the

settlement documents were drafted and signed, the settlement was withdrawn, and

the trial court started another trial with a different jury. 6 RR 4.

      After Williamson rested, she moved for a trial amendment, seeking a

declaratory judgment that the deed of trust lien granted by Williamson to secure her

indebtedness to the Pogues was extinguished. 7 RR 71. The court then granted a

directed verdict on Williamson’s trial amendment, and declared that the Pogues’ lien

was extinguished. 7 RR 71-73. This trial amendment and request for directed verdict

was based on Williamson’s claim that the Pogues had no right to enforce their lien



                                           12
because they had waived and abandoned their breach of contract counterclaims,

where the Pogues sought to recover the amounts owing on the promissory note.

      Williamson’s tort claims were submitted to the jury and the jury returned a

verdict in favor of Williamson. Tab A, III First Supp. CR 869-901. The court signed

a final judgment, awarding Williamson $496,250 in damages, exclusive of

attorney’s fees and prejudgment interest, $171,972.23 in trial attorney’s fees,

$80,297.44 in pre-judgment interest, and $12,250 in appellate attorney’s fees. Tab

B, III First Supp. CR 902-06.

                           Summary of the Argument
      Williamson agreed to purchase the Indian Shores property from the Pogues

“as is” and also agreed to a clear and unequivocal disclaimer-of-reliance provision

in her deed. Williamson agreed to rely solely on her own investigation of the

property’s condition, and she agreed not to rely on any representation, statement,

assurance, or non-assurance made by the Pogues. Williamson’s disclaimer-of-

reliance and her agreement to purchase the property “as is” prevents her from

recovering under any of her alleged causes of action—fraud, negligent

misrepresentation, or the Texas Deceptive Trade Practices Act.

      Thus, the judgment against the Pogues—for in excess of $760,000—was

improper.

      The portion of the judgment that voided the Pogues’ deed of trust lien on the

property that secured Williamson’s note to the Pogues was also improper. The court


                                        13
improperly concluded that the waiver of the Pogues’ counterclaims on the note also

waived their right to foreclose on the deed of trust lien. Texas law is clear that even

if a suit on the debt is barred, this fact does not prevent the lienholder from non-

judicially foreclosing under the terms of the deed of trust. Here, the Pogues had

posted the property for foreclosure but they were enjoined from foreclosing on their

lien while this suit was pending. The judgment voiding their lien should be reversed

and judgment rendered dissolving this injunction, and allowing the Pogues to

enforce the terms of the deed of trust.

      The damages awarded in the judgment—which were awarded under the

DTPA—have no support in the evidence. First, the judgment awards $327,500 in

“additional damages” based on the jury’s “knowing” finding. This was error because

the jury only awarded $2,500 in additional damages for the “knowing” conduct.

Furthermore, the trial court erred in granting $163,750 in actual damages, as this

total includes both benefit-of-the-bargain and out-of-pocket damages. An award of

both of these types of damages constitutes a double recovery, and under Texas law

a plaintiff may not recover both.

      In addition, the court erred in awarding benefit-of-the-bargain damages that

Williamson would sustain in the future. This damage award was improper because

the damages are properly measured by comparing the value represented and received

at the time of sale, not at some future time. Moreover, there was no support for any



                                          14
benefit-of-the-bargain damages because Williamson provided no evidence of the

property’s value as it was received in September 2010 when she purchased it.

Without such evidence there is no support for the benefit-of-the-bargain damages

awarded by the court.

      Similarly, the court’s award of future out-of-pocket damages, future expenses,

and future lost time damages have no support in the evidence. Williamson provided

no evidence to support her claim to future damages, and instead she offered vague

testimony that some specified rooms in the house “haven’t been touched”. There

was no evidence of the time, expenses, or future out-of-pocket costs that she claimed

would be necessary in the future.

      The damages that were awarded by the court were based on the DTPA, but

the jury also answered questions regarding fraud and negligent misrepresentation.

The trial court’s judgment cannot be supported by the jury’s answers on these

alternative theories for similar reasons to those that bar the recovery under the

DTPA.

      First, Williamson’s fraud and negligent misrepresentation claims are barred

because of her agreement to purchase the property “as is” and her disclaimer-of-

reliance agreement. In addition, there was no evidence to support the loss of the

benefit-of-the-bargain damages for fraud or negligent misrepresentation because

Williamson presented no evidence of the value of the Indian Shores property on the



                                         15
date she purchased it. The only evidence Williamson submitted was an HCAD

appraisal district statement that reflected a value in 2013, but this constitutes no

evidence of the property’s value in 2010, when Williamson purchased it.

      Also, the future benefit-of-the-bargain damages awarded by the jury under the

fraud Question 4(2) cannot support a judgment these damages are properly measured

at the time of the purchase, not at some future time.

      Similarly, all of the future damages awarded by the jury in Questions 4(2),

4(4) and 4(6), as well as the future economic loss damages awarded in Question 11

(negligent misrepresentation) are improper for the reason that there is no evidence

to support the future damages. Williamson provided no evidence as to the labor or

materials that would be necessary in order to complete any repairs and without such

evidence the damages awarded were based on pure speculation.

      Finally, the award of past remedial damages in Question 4(3), the award of

past mitigation expenses in Question 4(5), and the award of past economic loss in

Question 11 are not supported by any evidence. These repairs were conducted over

the two-year period after Williamson purchased the property and involved

specialized or technical knowledge that require expert testimony. Williamson

admitted that she and her husband were not professionals and that they did all the

work themselves. As such, there is no competent evidence that the repairs were

necessary and reasonable. Williamson’s testimony regarding the labor costs incurred



                                         16
was not competent evidence, as she testified that she obtained these labor costs from

a website that advertised what contractors charged in the area and that she only

charged the Pogues one-third of the contractors’ amount because she “thought that

would be fair”. Because there was no competent evidence to support these amounts,

the jury’s answers regarding future remedial damages, mitigation expenses, and

economic loss—Questions 4(3), 4(5), and 11—cannot support a judgment in

Williamson’s favor.

        Because the judgment in Williamson’s favor is improper, the court’s judgment

awarding attorney’s fees is also improper.

                                           Argument

I.      Williamson’s disclaimer-of-reliance agreement prevents her from
        recovering under all of her causes of action. (Issue Nos. 1 and 2).

        Williamson signed a broad disclaimer-of-reliance provision, agreeing that she

was not relying on any representation, statement, assertion or non-assertion by the

Pogues as to the property’s condition and that she was relying solely on her own

examination of the property. 2 10 RR PX 7. Texas courts, including the Supreme

Court, have enforced disclaimers of reliance that contain language virtually identical

to the disclaimer of reliance signed by Williamson. These cases all stand for the


______________________
2    Williamson also agreed, in the earnest money contract she signed, to accept the property “as
     is”. Her agreement to purchase the property “as is” is repeated in the disclaimer-of-reliance
     paragraph contained in the deed. For purposes of this brief, the term “disclaimer-of-reliance”
     includes the “as is” language.

                                                17
general proposition that parties to an agreement can prevent future claims of fraud,

negligent misrepresentation, or liability under the DTPA by including contract

language that clearly and unequivocally disclaims reliance. Allen v. Devon Energy

Holdings, LLC, 367 S.W.3d 355, 376 (Tex. App.—Houston [1st Dist.] 2012, pet.

granted, judgm’t vacated w.r.m.).

      The Texas Supreme Court has discussed disclaimer-of-reliance clauses in two

cases: Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997) and

Forest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008). The threshold requirement

for an effective disclaimer of reliance is that the language must be “clear and

unequivocal” in its expression of the parties’ intent to disclaim reliance. See

Schlumberger, 959 S.W.2d at 179-80, Forest Oil, 268 S.W.3d at 62. This

requirement for precise language ensures that parties to a contract understand that

the contract’s terms disclaim reliance, such that the contract may be binding even if

it was induced by fraud. In both Schlumberger and Forest Oil, the Supreme Court

held that the language used was clear and unequivocal in disclaiming reliance.

      In Schlumberger, Schlumberger and the Swansons agreed to a release of

claims in order to settle a dispute involving an underwater diamond-mining project

off the South African coast. The Swansons sold their interests in the venture to

Schlumberger for roughly $1 million, and the parties signed a settlement agreement

that included a disclaimer-of-reliance provision:



                                         18
      Each of us … expressly warrants and represents … that no promise or
      agreement which is not herein expressed has been made to him or her
      in executing this release, and that none of us is relying upon any
      statement or representation of any agent of the parties being released
      hereby. Each of us is relying on his or her own judgment….

959 S.W.2d at 180.

      After learning that Schlumberger later sold the interests it acquired in the

settlement for about $4 million, the Swansons sued, claiming Schlumberger had

fraudulently induced them to accept the low-price buyout. They claimed that when

Schlumberger entered into the settlement it knew that the Swansons’ interest had far

higher value. Id.

      For purposes of its decision, the Supreme Court assumed that Schlumberger

had misrepresented the project’s technological feasibility and commercial viability

and that such misrepresentations were actionable as fraud. Id. at 178. Nevertheless,

the Court concluded that the disclaimer of reliance that the Swansons gave

conclusively negated the element of reliance and prohibited their recovery. Id. at

180. The Court reasoned that the Swansons, in clear language, had unequivocally

disclaimed reliance upon Schlumberger’s representations and agreed that they were

relying on their own judgment. Id.

      Eleven years later in Forest Oil, the Court again addressed whether an

unambiguous disclaimer-of-reliance provision precluded a fraudulent inducement

claim as a matter of law. The suit involved a dispute over oil and gas royalties, and



                                         19
the case was settled at mediation. The settlement agreement in question expressly

stated that neither of the parties was relying on any statement or representation of

the other party and that each party was relying on their own judgment in signing the

document:

      [We] expressly represent and warrant ... that no promise or agreement
      which is not herein expressed has been made to them in executing the
      releases contained in this Agreement, and that they are not relying upon
      any statement or representation of any of the parties being released
      hereby. [We] are relying upon [our] own judgment ….

268 S.W.3d at 54 n.4.

      In reaching its conclusion that the disclaimer-of-reliance clause clearly and

specifically negated the plaintiff’s fraud claims, the Forest Oil court noted that the

Schlumberger decision was relatively similar and rested on the paramount principle

that Texas courts should uphold contracts that are negotiated at arms’ length and that

when parties elect to include a disclaimer-of-reliance provision in their agreement,

the Court will generally enforce it. 268 S.W.3d at 58.

      After Schlumberger, the courts of appeals seemed to disagree over which facts

were most relevant in determining if a waiver-of-reliance provision was binding, and

the Forest Oil Court clarified the Court’s reasoning. Forest Oil identified five factors

as a part of the totality of the circumstances that courts should consider in

determining the validity of a contractual disclaimer: whether the disclaimer is “clear

and unequivocal”, and four extrinsic factors: (1) whether the terms of the contract



                                          20
were negotiated, rather than boilerplate, and during the negotiations the parties

specifically discussed the issue which has become the topic of the subsequent

dispute; (2) the complaining party was represented by counsel; (3) the parties dealt

with each other in an arm’s-length transaction; and (4) the parties were

knowledgeable in business matters. 268 S.W.3d at 60; Italian Cowboy Partners, Ltd.

v. Prudential Ins. Co. of America, 341 S.W.3d 323, 337 n.8 (Tex. 2011) (holding

that if a clear and unequivocal disclaimer-of-reliance clause exists the analysis then

proceeds to the circumstances surrounding the contract’s formation).

      This Court has determined that the four extrinsic factors that the Forest Oil

court described are not absolute requirements. Allen, 367 S.W.3d at 384. And the

Court has previously held that an agreement between two parties barred fraud claims

as a matter of law even when all of the Forest Oil factors were not present. See

Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 216-17 (Tex. App.—Houston

[1st Dist.] 2004, pet. denied) (disclaimer of reliance provision barred fraudulent

inducement claim when all factors later identified in Forest Oil were satisfied except

sophistication of parties); see also McLernon v. Dynegy, Inc., 347 S.W.3d 315, 333

(Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that Forest Oil

considerations are “facts…that guide our reasoning … and not elements that all must

be established before a disclaimer of reliance is enforceable.”). Thus, it is




                                         21
unnecessary to satisfy each factor when the parties’ intent to preclude a claim is clear

and unequivocal and a sufficient number of factors are met. 367 S.W.3d at 384.

       The courts have identified the underlying reasons why disclaimer-of-reliance

provisions such as those found in Forest Oil and Schlumberger should be enforced.

As this Court noted in Allen, the law favors granting parties the freedom to contract,

knowing that courts will enforce their contract’s terms, as well as the ability to

contractually resolve disputes between themselves fully and finally. 367 S.W.3d at

378; Italian Cowboy, 341 S.W.3d at 332; Gym-N-I Playgrounds, Inc. v. Snider, 220

S.W.3d 905, 912 (Tex. 2007); Forest Oil, 268 S.W.3d at 58. This Court in Allen

mentioned an additional reason why a party should not be permitted to claim fraud

when he represented in the parties’ contract that he did not rely on a representation:

       After-the-fact protests of misrepresentation are easily lodged, and
       parties who contractually promise not to rely on extra-contractual
       statements—more than that, promised that they have in fact not relied
       upon such statements—should be held to their word. Parties should not
       sign contracts while crossing their fingers behind their backs.

Allen, 367 S.W.3d at 378, citing Forest Oil, 268 S.W.3d at 60.3



______________________
3   This Court in Allen noted that similar to the concerns expressed in Forest Oil, a Delaware court
    has stated that non-reliance clauses should generally be enforced because a contrary rule would
    endorse “a lie made by one contracting party in writing—the lie that it was relying only on
    contractual representations and that no other representations had been made—to enable it to
    prove that another party lied orally or in writing outside the contract’s four corners.” Allen,
    367 S.W.3d at 378 n.20; Abry Partners V., L.P. v. F and W Acquisition, L.L.C., 891 A.2d 1032,
    1058 (Del. 2006). This has been described as “a ‘double liar’ scenario.” Id. In a double-liar
    scenario, the plaintiff—who claims to be the victim of a lie—was itself a liar when it promised
    not to rely on the alleged misrepresentation.

                                                22
      A.       The disclaimer-of-reliance clause signed by Williamson is clear and
               unequivocal.

      A side-by-side comparison of the language held by the Texas Supreme Court

to be clear and unequivocal in Schlumberger and Forest Oil conclusively illustrates

that the disclaimer-of-reliance clause in this case is clear and unequivocal and meets

the threshold requirement for enforcement. In fact, the clause in this case, although

strikingly similar to the provisions discussed in Schlumberger and Forest Oil, is

actually more clear and unequivocal than the language discussed and approved in

those cases.

      The provisions in Schlumberger, Forest Oil, and in this case are reproduced

below for the Court’s convenience:




                                         23
     Schlumberger                  Forest Oil             Williamson’s agreed-to
                                                          disclaimer-of-reliance
                                                                 language
Each of us expressly       [We] expressly represent     Grantee has accepted this
warrants             and   and warrant … that no        deed and purchased the
represents … that no       promise or agreement         above-described Property,
promise or agreement       which is not herein          premises                 and
which is not herein        expressed has been made      improvements “AS IS.”
expressed has been         to them in executing the     Grantor and Grantee agree
made to him or her in      releases contained in this   that Grantee is taking the
executing this release,    Agreement, and that they     Property “AS IS” with any
and that none of us is     are not relying upon any     and all latent and patent
relying   upon       any   statement               or   defects, and that there is no
statement             or   representation of any of     warranty from Grantor that
representation of any      the     parties     being    the Property is fit for a
agent of the parties       released hereby. [We]        particular          purpose.
being released hereby.     are relying upon [our]       Grantee acknowledges that
Each of us is relying on   own judgment….               Grantee is not relying upon
his    or    her    own                                 any        representations,
judgment….                                              statements, assertions or
                                                        non-assertions by the
                                                        Grantor with respect to the
                                                        Property condition, but is
                                                        relying     solely     upon
                                                        Grantee’s examination of
                                                        the Property.

       As shown above, the disclaimer-of-reliance language that Williamson agreed

 to closely tracks the language the Schlumberger and Forest Oil disclaimers. If

 anything, the language is stronger than in Schlumberger and Forest Oil, as the

 disclaimer explicitly states that Williamson was relying solely on her own




                                        24
examination.4 The language is not a mere “as is” clause. Instead, as the Court

concluded in Schlumberger and Forest Oil, the language makes clear that

Williamson “unequivocally disclaimed reliance” by signing the agreement.

      B.      The language was not boilerplate and the parties discussed the
              issue.

      In addition to being clear and unequivocal, the extrinsic factors mentioned by

Forest Oil support the enforcement of the disclaimer-of-reliance language.

      The terms of the contract between Williamson and the Pogues were negotiated

rather than boilerplate. The terms of the earnest money contract were negotiated,

initially by Williamson’s then-boyfriend Lewis Walker—who made the first offer to

purchase the Pogues’ property. 6A RR 38, 10 RR PX 2E. The Pogues had originally

listed the Indian Shores property for $269,000. 6A RR 36. Walker’s first offer was

for $208,000, with the Pogues owner-financing $187,200. 6A RR 55. The Pogues

rejected this offer. Shortly thereafter, Williamson contacted Gina Jones, who was

the listing agent and who Williamson testified represented her as well in the

transaction. 6A RR 53. Williamson increased Walker’s previous offer to $235,000,

which the Pogues accepted. 6A RR 36. Williamson negotiated special terms in

which the Pogues would finance $210,000 of the purchase price for two years with

a balloon payment for the remaining balance at the end of the two-year period. 10


______________________
4   This Court in Allen held that language making it clear that a party relied solely on his own
    investigation made the disclaimer clear and unequivocal. 367 S.W.3d at 379-80.

                                              25
RR PX 2, 5. These special provisions were put in Paragraph 11 of the earnest money

contract that Williamson submitted, along with another provision that the mineral

rights would be withheld by the Pogues. 10 RR PX 2, ¶ 11. The parties also agreed

to a Seller Financing Addendum. The earnest money contract was later amended by

Williamson and the Pogues to include additional real property. 10 RR PX 2, p. 11.

Williamson herself acknowledged that she and the Pogues were negotiating an issue

in the contract but she couldn’t remember precisely what that issue was. 2 RR 199-

200.

       Not only was the earnest money contract negotiated and not boilerplate, the

warranty deed the parties signed and which contained the disclaimer-of-reliance

language was also not boilerplate. The deed was prepared by an attorney—Donna

Heinlein. This was not a form deed. 10 RR PX 7. It contained the reservation of

minerals that was agreed to by Williamson in the earnest money contract, and a

waiver of surface rights for future exploration. 10 RR PX 7, p. 2. The deed further

included a reference to the wrap note that Williamson agreed to when she requested

that the Pogues owner-finance the property. 10 RR PX 7, p. 3.

       Importantly, the disclaimer-of-reliance paragraph was inserted in a different

and larger type-font than the deed’s other provisions. This paragraph included the

agreement that Williamson made in the earnest money contract that the Pogues were

conveying the property to her “as is”. 10 RR PX 7, p. 3. Williamson stated that she



                                         26
discussed the “as is” language with her realtor who told her it was “standard

contracting” but she never discussed the issue with Ms. Heinlein, who Williamson

thought was both her and the Pogues’ attorney, even though Williamson admitted

that she was advised by the terms of the contract to consult an attorney. 6A RR 225,

226, 2 RR 204, 10 RR PX 2, ¶ 23.

      The terms of the earnest money contract and deed were negotiated, and not

boilerplate, because their terms, including the disclaimer-of-reliance provision, were

unique to the relationship between Williamson and the Pogues. See McLernon v.

Dynegy, Inc., 347 S.W.3d 315, 330 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

Williamson was free to include anything that she wanted in the earnest money

contract, and she could have contacted Heinlein, who she believed to be her attorney,

to discuss the deed’s provisions. See Hong v. Nations Renovations, LLC, No. 05-15-

01036-CV, 2016 WL 7473900, at *5 (Tex. Civ. App.—Dallas, Dec. 29, 2016, no

pet.); Bever Properties, LLC v. Jerry Huffman Custom Builder, L.L.C., No. 05-13-

01519-CV, 2015 WL 4600347, at *9-11 (Tex. Civ. App.—Dallas, July 31, 2015, no

pet.) (enforcement of disclaimer-of-reliance provision is not barred where parties

had access to an attorney but decided not to protect their interests by seeking advice

of counsel).

      In addition, the parties discussed the issue that has now become the topic of

this dispute. The meaning of “the topic of the subsequent dispute” mentioned by



                                         27
Forest Oil does not mean that the parties must have discussed the present fraud or

misrepresentation claims. 5 Instead of the allegations and the subsequent lawsuit, the

Forest Oil analysis of the enforceability of the contract concerns the terms of the

contract that the party is seeking to enforce. The significant point with respect to the

Forest Oil factors is that the party that signed the disclaimer-of-reliance provision

was aware of the representations concerning the topic of the present dispute yet

elected to disclaim reliance on those representations. McLernon, 347 S.W.3d at 331.

       Here there is no question that Williamson was aware of the specific

representations concerning the topic of the present dispute. She admitted that she

received the Pogues’ Seller’s Disclosure Statement, which the Pogues had

completed when they listed the Indian Shores property for sale with Gina Jones. 6A

RR 38-89, 6B RR 107. All of Williamson’s claims in this suit are based on her

allegations regarding the Pogues’ representations contained in the disclosure.

Williamson claimed in her pleadings that in their disclosure, the Pogues failed to

disclose prior water damage, mold damage, and structural roof damage to the

property. III First Supp. CR 831, Pars. 12-19. At trial, Williamson asserted that

although the Pogues never represented the condition of the property to her, she


______________________
5   As the courts have held, if the contracting parties had discussed the fraud claims and the
    complaining party was aware of the material misrepresentations before signing the agreement,
    there would be no such fraud claim because they would not have been deceived into signing
    the agreement. See McLernon v. Dynegy, Inc., 347 S.W.3d 315, 331 (Tex. App.—Houston
    [14th Dist.] 2011, no pet.).

                                              28
considered the seller’s disclosure a representation about the property. 6B RR 44,

114-15. Despite having received the disclosure and the representations the Pogues

made therein, Williamson elected to disclaim reliance on those representations.

Because Williamson was aware of the specific representations that she later made

the basis of her suit, the Forest Oil factor requiring the parties to have discussed the

matters disclaimed was met.

      C.     Williamson was represented by counsel in the transaction.

      The next factor Forest Oil considered was whether the complaining party was

represented by counsel. Forest Oil, 268 S.W.3d at 60. Here, the evidence is that

Donna Heinlein was the attorney that closed the transaction and prepared all of the

closing documents. 6A RR 66. Whether or not Heinlein actually represented the

parties in connection with the closing, Williamson believed that she represented her.

Williamson testified on two separate occasions that she assumed and thought that

Heinlein was representing both her and the Pogues in connection with the contract.

2 RR 204, 6B RR 104. Williamson testified she believed Heinlein was her attorney

as well as the Pogues because both parties paid a portion of the attorney’s fees owing

to Heinlein’s law firm, as shown by the settlement statement, where Williamson is

shown paying $600 in attorney’s fees to Heinlein. 10 RR PX 4, ln. 1303, 6B RR 106.

      Williamson was familiar with using attorneys for real estate matters, as she

testified that she had an attorney representing her when she sold her Reidland



                                          29
property, which she owned before buying the Indian Shores property. 6B RR 104.

Williamson admitted that she was sure she could have asked Heinlein a question

about the draft closing documents that the attorney sent to her, but Williamson never

did. 6B RR 106. Instead, Williamson asked Gina Jones, the realtor, about the “as is”

clause, and relied on her and the Seller’s Disclosure before signing the documents,

even though the record shows that Williamson and Heinlein communicated on a

regular basis before and after the closing. 6B RR 105-06, 2 RR 203, 243, 252, 273,

275, and 277-78.

      Thus, Williamson was either represented by an attorney in this transaction or

had access to an attorney who she thought represented her.

      D.     Williamson and the Pogues dealt in an arm’s length transaction
             and Williamson was knowledgeable about business matters.

      The final two factors mentioned by Forest Oil are that the parties dealt with

each other in an arm’s length transaction and the parties were knowledgeable in

business matters. Forest Oil, 268 S.W.3d at 60.

      There is no dispute that Williamson and the Pogues dealt with each other in

an arm’s length transaction. The Pogues listed the property for sale with a realtor

and Williamson made an offer through her realtor. 10 RR PX 2, 6A RR 30. The

purchase price that Williamson offered was less than the Pogues’ asking price, and

the terms were negotiated, since instead of a cash deal, Williamson asked the Pogues

to owner-finance for twenty-four months with a balloon payment due at the end of


                                         30
the two-year term. 10 RR PX 2. In addition, the contract included a financing

addendum, and the contract was amended twice, once in order to modify the real

property description and again to change the closing date. 10 RR PX 2, pp. 9, 11-12.

Williamson was advised in the earnest money contract that she should consult an

attorney before signing the agreement if she did not understand its effect. 10 RR PX

2, ¶ 23. There was no prior relationship between Williamson and the Pogues,

although she had met Mr. Pogue when Williamson was younger and worked in the

local feed store where Mr. Pogue purchased feed. 2 RR 259, 6B RR 42-43.

      As to whether the parties were knowledgeable in business matters, it appears

that while both parties were fairly unsophisticated, Williamson was knowledgeable

in business matters generally. She testified that she had worked in the retail industry

most of her life and, at the time of trial she worked at a marine and boat repair

company where she had been the office manager for ten years. 2 RR 184-86. In her

job as office manager, she testified that she handled “pretty much anything that

comes through the office”, including invoicing, ordering, estimating, handling the

phones, and filing paperwork. 2 RR 187, 6A RR 26-27.

      In connection with the property, Williamson contacted the realtor and worked

with her to put together a non-standard offer to purchase the Indian Shores property

at a reduced price, and with a wrap-note and a two-year balloon payment. After the

contract was signed, Williamson reviewed the Seller’s Disclosure and the closing



                                          31
documents, and asked the realtor about the “as is” language, and had numerous

communications with the attorney about the closing documents. 6B RR 105-06, 2

RR 203, 243, 252, 273, 275, and 277-78. Williamson knew that she had to obtain

insurance on the property, and she researched and located an insurance company that

would insure the property, found out about a previous “wind claim”, and after

reviewing the closing documents, signed all of them.

      Thus, Williamson was knowledgeable in business matters and this Forest Oil

factor does not prevent the enforcement of the disclaimer-of-reliance language that

Williamson agreed to.

      In sum, the disclaimer-of-reliance language was clear and unequivocal and is

in fact more clear and certain than similar language approved by the Texas Supreme

Court. In addition, the remaining Forest Oil factors support the enforcement of the

disclaimer-of-reliance language.

      E.    Because of the disclaimer-of-reliance language, Williamson cannot
            recover under any of her tort theories as a matter of law.

      The question whether disclaimer-of-reliance language negates a cause of

action is a question of law that is reviewed de novo. Forest Oil, 268 S.W.3d at 55.

The jury charge submitted questions related to the following causes of action:

common law and statutory fraud, negligent misrepresentation, and Texas Deceptive

Trade Practices Act (false, misleading, or deceptive act or practice and

unconscionable action). Tab A, III First Supp. CR 869. The jury answered the


                                        32
questions favorable to Williamson and the court awarded damages under the DTPA.

Tab B, III First Supp. CR 902.

      Reliance is an element of Williamson’s causes of action for fraud, negligent

misrepresentation, as well as the DTPA claim. See Henry Schein, Inc. v. Stromboe,

102 S.W.3d 675, 693 (Tex. 2002); Williams v. Dardenne, 345 S.W.3d 118, 124 (Tex.

App.—Houston [1st Dist.] 2011, no pet.); Larsen v. Carlene Langford & Assocs.,

Inc., 41 S.W.3d 245, 253 (Tex. App.—Waco 2001, pet. denied). Specifically, the

Court has held that under the DTPA—which only requires a producing cause of

damages—a contractual disavowal of reliance on representations precludes a

plaintiff from proving that an act was a producing cause of the damages. Prudential

Ins. Co. of America v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995).

      Here, Williamson, as a matter of law, cannot recover for any of the damages

found by the jury for fraud, negligent misrepresentation, or DTPA violations because

of the disclaimer-of-reliance provision. This Court should therefore reverse the

judgment of the trial court and render judgment that Williamson take nothing for any

of the damages found by the jury on these causes of action.

II.   The trial court’s judgment extinguishing the Pogues’ deed of trust lien is
      a misapplication of Texas law and constitutes reversible error. (Issue No.
      3)

      As stated above, Williamson’s obligation to buy the property from the Pogues

was secured by a deed of trust lien. 10 RR PX 6. The deed of trust granted the Pogues



                                         33
a non-judicial power of sale, allowing the Pogues to foreclose their lien without first

obtaining a court’s permission. 10 RR PX 6, pg. 3. According to current Texas law,

the Pogues retained the right to exercise their non-judicial power of sale for a period

of four years after the accrual of a cause of action—in this case, nonpayment of the

debt by Williamson. TEX. CIV. PRAC. & REM. CODE § 16.035(b). On July 15, 2013,

less than a year after Williamson’s default (which occurred on September 25, 2012)

and well-within the limitations period, the Pogues posted the property for foreclosure

in accordance with the terms of the deed of trust. I CR 53.

      A few weeks later, the court issued an “Amended Agreed Temporary

Injunction Order” which directed the Pogues to refrain from “taking any actions that

would initiate, continue or complete a process of foreclosure…until such time as all

issues in this matter have been fully litigated or resolved.” Second Supp. CR 3. This

temporary injunction became a permanent one when the trial court signed its final

judgment on July 28, 2017:

      [A] Permanent Mandatory Injunction is hereby issued against
      Defendants Leslie R. Pogue and Jeannette I. Pogue, and their agents,
      servants, representatives, employees, independent contractors, officers,
      directors, partners, successors and assigns, who are permanently
      ENJOINED from and ORDERED to refrain from foreclosing upon the
      secondary lien filed on 901 Indian Shores Road, Crosby, Texas 77532,
      contained within the Deed of Trust Security Agreement-Financing
      Statement, 20100443760, filed in the Harris County Real Property
      Records on October 15 2010, as that lien has been extinguished or
      released.”

I CR 75.


                                          34
      The court’s order rests on the premise that because the Pogues waived their

counterclaims—including the breach of contract claim made in response to

Williamson’s failure to make all her payments under the note—and because four

years had passed since the default when the final judgment was signed, not only has

the Pogues’ lien been extinguished, but the underlying debt has been extinguished,

as well. 7 RR 71-76. This was error. Under Texas law the Pogues’ non-judicial

power of sale survives their waiver of judicial remedies and the statute of limitations

that governs the period during which they have the right to exercise that power of

sale is tolled by the pendency of these very legal proceedings.

      A.     Williamson’s debt to the Pogues has not been extinguished and
             currently exists.

      There is no question that the Pogues waived their counterclaims before trial

got underway. 3 RR 13-15. But there can also be no question that the Pogues’ non-

judicial power of sale contained in the deed of trust—a power they exercised within

the applicable limitations period and are currently enjoined from pursuing—survives

their decision to waive their right to pursue judicial remedies.

      It is a fundamental principle of Texas property law that liens can be foreclosed

through two different processes: (a) a suit for the recovery of real property brought

in a Texas court; or (b) a sale of real property under a power of sale in a mortgage

or deed of trust that creates a real property lien. TEX. CIV. PRAC. & REM. CODE §



                                          35
16.035(a-b). It is no accident that these two remedies are given separate treatment in

the statute’s text despite being governed by the same limitations period—they often

have little or nothing to do with one another.

      This was the issue facing the Supreme Court of Texas in Goldfrank, Frank &

Co. v. Young, 64 Tex. 432 (1885). In Goldfrank, the Supreme Court made one thing

abundantly clear: there is a distinction between “actions or suits” and other

mechanisms by which a creditor may enforce a debt:

      In reference to the operation of the statutes of limitation in any matter
      in which the recovery of money is sought, the statute itself limits it to
      “actions or suits in courts”, and it provides within what time “actions
      or suits” in the different classes of cases may be brought, but it does not
      attempt to determine within what period anyone must enforce a right
      which the debtor has placed in … the creditor to enforce otherwise than
      by an “action or suit in court.”

      That the legislature might fix a period within which steps must be taken
      to enforce rights otherwise than through the courts, when such right and
      power have been given, by contract, by one person to another, as may
      it prescribe a period within which actions or suits must be brought in
      courts, there is no doubt; but the declaration that persons must institute
      “suits or actions in courts” within a fixed period to enforce their claims,
      which can be enforced only in that manner, is not equivalent to
      declaring that a creditor who has been given, by contract, a right and
      means by which he may enforce his claim otherwise than through the
      courts, shall not enforce it after the time at which he might institute an
      action or suit, without subjecting himself to the bar which could be
      urged by a plea of limitation.

      It is not always true that rights which cannot be enforced through the
      courts are valueless, nor that contracts which the courts cannot enforce
      are invalid.”

Id. at 436.


                                          36
      Goldfrank is still good law. See Holman Street Baptist Church v. Jefferson,

317 S.W.3d 540, 547 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (citing

Goldfrank for the proposition that a bar from collecting a debt personally from the

debtor does not prevent a lender from using the collateral to repay the debt).

      Because the Pogues’ deed of trust contains a provision that expressly allows

them to enforce their claim “otherwise than through the courts”—that is, through the

exercise of a non-judicial power of sale—as Goldfrank makes clear, the fact that the

Pogues’ judicial enforcement of Williamson’s debt is no longer possible has no

bearing on the exercise of their non-judicial power of sale. Thus, the trial court’s

declaration that the deed of trust lien is extinguished and released constitutes

reversible error. The Williamson debt still exists, as does the Pogues’ right to

foreclose on the property.

      B.     The Pogues’ right to foreclose is not barred by the applicable
             statute of limitations.

      In Texas, a sale of real property under a power of sale in a mortgage or deed

of trust that creates a real property lien—precisely the debt-enforcement tool

acquired by the Pogues—must be made not later than four years after the day the

cause of action accrues. TEX. CIV. PRAC. & REM. CODE § 16.035(b). The Pogues’

cause of action accrued on September 25, 2012 when Williamson’s balloon payment

was due. 7 RR 74, lns. 9-11, 10 RR PX 5. Less than a year later, effective July 22,

2013, the Pogues were enjoined by the trial court from pursuing their non-judicial


                                         37
remedies. Second Supp. CR 3, ¶ 6. This temporary injunction became permanent

when the trial court issued its final judgment on July 28, 2017. III First Supp. CR

902. As a result of these injunctions, the Pogues have been unable to exercise their

right to conduct a non-judicial foreclosure sale for nearly five years. But because

these pending legal proceedings have barred any such sale, the statute of limitations

has been, and continues to be, tolled until such time that the Pogues may freely

exercise the right afforded them under their deed of trust.

      Where “a person is prevented from exercising his legal remedy by the

pendency of legal proceedings, the time during which he is thus prevented should

not be counted against him in determining whether limitations have barred his right.”

Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991) (quoting Walker

v. Hanes, 570 S.W.2d 534, 540 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d

n.r.e.)). This principle has even been specifically applied to injunctions which, like

those issued by the trial court in this case, bar a party from exercising their power of

sale: “[i]t appears, however, that the creditor has been continuously restrained from

the exercise of such powers of sale since the accrual of the right thereto by an

injunction wrongfully procured by the debtors…. [I]t is generally held that where

the exercise of a lawful right is restrained by injunction, the statute of limitations is

tolled during the period of such restraint on the theory that the party who has

obtained the injunction has…obtained an unconscionable advantage which he ought



                                           38
not be permitted to enjoy.” Pioneer Bldg. & Loan Ass’n v. Johnston, 117 S.W.2d

556, 559 (Tex. Civ. App.—Waco, 1938, writ dism’d).

       As mentioned above, Williamson’s debt to the Pogues survives these legal

proceedings, no matter what the outcome. And because the Pogues’ deed of trust

contains a non-judicial power of sale, they still possess a tool by which to enforce

that debt, even though their judicial remedies have been waived. Further, because

the Pogues have been barred by trial court injunctions from exercising their power

of sale, the statute of limitations governing such an exercise has been, and will be,

tolled until such time that the injunctions are no longer in effect. Because Pogues’

deed of trust affords them a non-judicial remedy for enforcing the Williamson debt,

this Court should reverse that portion of the trial court’s judgment that prevents the

Pogues from exercising this remedy and render judgment allowing the Pogues to go

forward with foreclosure proceedings.

III.   The DTPA damages awarded by the trial court were improper. (Issue No.
       4).

       Even if Williamson had not disclaimed reliance, the trial court erred in

entering judgment for the DTPA damages it awarded.

       A.    The trial court erred in entering its judgment for additional
             damages of $327,500 because this award does not conform to the
             jury’s verdict.

       In a case tried to a jury, the judgment rendered after the jury’s verdict must

conform to that verdict. TEX. R. CIV. P. 301; Phillips v. Phillips, 820 S.W.2d 785,


                                         39
787 n.2 (Tex. 1991) (“as a rule, however, the judgment in a case tried by a jury must

conform to the verdict”). The judgment must also reflect a correct application of the

law to determine the effect of the jury’s verdict. Walker v. Packer, 827 S.W.2d 833,

840 (Tex. 1992) (“a trial court has no ‘discretion’ in determining what the law is or

applying the law to the facts”); Salomon v. Lesay, 369 S.W.3d 540, 553 (Tex. App.—

Houston [1st Dist.] 2012, no pet.).

       Here, the trial court awarded damages under the Texas Deceptive Trade

Practices Act instead of the fraud or negligent misrepresentation claims submitted

to the jury. This fact is clear from the court’s judgment which, on page two, recites

that the actual damages awarded total $163,750—the amount of actual damages

found by the jury in response to Question 15, which is related to the DTPA Questions

12 and 13. Tab A, III First Supp. CR 892. 6

       The DTPA provides that if a jury finds that a party engaged in the conduct in

question knowingly, then the trier of fact may award additional damages of up to

three times the amount of economic damages. TEX. BUS. & COM. CODE ANN.

§ 17.50(b)(1).

       In a jury trial, it is the jury, and not the judge, that acts as the trier of fact. Only

in the absence of a jury is an award of discretionary damages under the DTPA a



______________________
6   The fraud and negligent misrepresentation damages found by the jury totaled $174,950, not
    $163,750. III First Supp. CR 877, 887.

                                             40
question for the court. Martin v. McKee Realtors, 663 S.W.2d 446, 448 (Tex. 1984);

Boat Superstore v. Haner, 877 S.W.2d 376, 379 (Tex. App.—Houston [1st Dist.]

1994, no pet.) (“the amount of additional damages to award after finding a violation

of the DTPA is within the discretion of the trier of fact”).

      In answer to Question 17, the jury found that because the conduct was

committed knowingly, additional damages of $2,500 should be awarded to

Williamson. III First Supp. CR 896. But the trial court ignored this finding and

instead awarded $327,500 in additional damages based on the “knowing” finding.

Tab B, III First Supp. CR 903. This was clear error.

      The DTPA allows the factfinder to award additional damages of not more than

three times the amount of actual damages if the conduct is committed knowingly.

Here, the jury found $2,500 and it was improper for the trial court to unilaterally

ignore the jury’s finding and award additional damages of a different amount.

      The trial court erred in entering judgment for additional damages of $327,500

and the Court should reverse this portion of the judgment.

      B.     The trial court erred in awarding both loss of the benefit-of-the-
             bargain damages and out-of-pocket damages under the DTPA, as
             the award constitutes a double recovery.

      The trial court’s judgment awarded Williamson $496,250 in damages,

exclusive of attorney’s fees and prejudgment interest. Tab B, III First Supp. CR 904.

This sum was computed by totaling the actual damages of $163,750 and “treble



                                          41
damages” in the amount of $327,500. Tab B, III First Supp. CR 903. The trial court

then apparently awarded an additional $5,000 in damages to these amounts for the

$496,250 total. 7

       As argued above, it was clear error for the trial court to award the additional

damages of $327,500 under the DTPA for “knowing” conduct, because the jury

found only $2,500 for this conduct.

       But this was not the only error in the trial court’s calculation of the damages

awarded. The $163,750 in actual damages constitutes a double recovery, as the

amount includes both loss of benefit-of-the-bargain damages and out-of-pocket

damages found by the jury.

       Under § 17.50(a), a DTPA plaintiff may recover “economic damages”. TEX.

BUS. & COMM. CODE ANN. § 17.50(a). Economic damages consist of either benefit-

of-the-bargain damages or out-of-pocket damages. See Arthur Andersen & Co. v.

Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997). Out-of-pocket damages

measure the difference between the value the buyer has paid and the value of what

he has received; benefit-of-the-bargain damages measure the difference as

represented and the value received. Id. Under the DTPA, a plaintiff may recover

______________________
7   It is unclear exactly how the trial court arrived at the total amount of the judgment (exclusive
    of attorneys’ fees and pre-judgment interest) of $496,250. Tab B, III First Supp. CR 904. If
    one totals the amount of actual damages awarded of $163,750 and the additional damages of
    $327,500 awarded as additional damages, these amounts total only $491,250. The court may
    have awarded another $2,500 against Mr. Pogue and $2,500 against Mrs. Pogue based on the
    jury’s answer to Question 17—for “knowing” conduct.

                                                42
under the damage theory that provides the greater recovery, but these damages are

alternatives. A plaintiff may not recover both. Latham v. Castillo, 972 S.W.2d 66,

70 (Tex. 1988) (“a plaintiff may recover either the out-of-pocket or the benefit-of-

the-bargain damages, whichever is greater”); Foley v. Parlier, 68 S.W.3d 870, 885

(Tex. App.—Ft. Worth 2002, no pet.); Huynh v. Phung, No. 01-04-00267-CV, 2007

WL 495023 at *7 (Tex. App.—Houston [1st Dist.] Feb. 16, 2007, no pet.).

      In answer to Question No. 15 related to the DTPA liability questions, the jury

found a total of $163,750 in damages. Tab A, III First Supp. CR 892-93. This total

included both loss of benefit-of-the-bargain damages and out-of-pocket damages.

Instead of awarding damages under one or the other theories, the court awarded both

benefit-of-the-bargain and out-of-pocket damages. This is error, as it constitutes a

double recovery, and the court’s award of these damages should be reversed.

      C.    The trial court erred in including future benefit-of-the-bargain and
            out-of-pocket damages in the actual damages awarded under the
            DTPA.

      In addition, the award of actual damages of $163,750 awarded in the judgment

under the DTPA included future benefit-of-the-bargain and out-of-pocket damages.

Tab A, III First Supp. CR 892, Question 15(2) and (4). This was improper.

      As above noted, under the DTPA (as well as Texas common law) the direct

damages that the plaintiff may recover for misrepresentations are either out-of-

pocket damages or benefit-of-the-bargain damages. Under the DTPA, a plaintiff may



                                        43
recover under the damage theory that provides the greater recovery, but both

measures of damages are determined at the time of sale induced by the fraud. Arthur

Andersen, 945 S.W.2d at 817; Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d

369, 373 (Tex. 1984); Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 395

(Tex. App.—Houston [1st Dist.] 2013, no pet.).

      Here, Question 15(2) and (4) allowed the jury to award benefit-of-the-bargain

damages and out-of-pocket damages that Williamson would sustain in the future. III

First Supp. CR 892. The jury’s answers included an award of future benefit-of-the-

bargain damages of $58,000 and future out-of-pocket damages of $11,800. Both of

these amounts were included in the $163,750 awarded by the court.

      This Court has consistently held that it is error to award future loss of benefit-

of-the-bargain or out-of-pocket damages. See Woodyard v. Hunt, 695 S.W.2d 730,

733 (Tex. App.—Houston [1st Dist.] 1985) (“Even if the jury had known the

measure of damages, it could not have made a proper award because damages are

measured by comparing values represented and received at the time of sale, not at

some future time.”); Fazio, 403 S.W.3d at 396. (“direct damages for fraud, including

out-of-pocket damages are properly measured at the time of the sale …not at some

future time”).

      Because the damages found by the jury in answer to Questions 15(2) and (4)

are, as a matter of law, an improper measure of damages, the trial court erred in not



                                          44
disregarding these damage awards and in entering judgment against the Pogues for

these amounts.

      D.     The trial court erred in entering judgment awarding benefit-of-the-
             bargain damages under the DTPA because there was no evidence
             of the property’s value as it was received by Williamson.

      Questions 15(1) and (2) asked the jury the amount of the loss of the benefit-

of-the-bargain damages that should be awarded to Williamson in the past, and in the

future. The jury awarded $17,000 for loss of benefit-of-the-bargain damages in the

past and $58,000 in loss of benefit-of-the-bargain damages in the future. III First

Supp. CR 892. The jury was instructed that the loss of the benefit-of-the-bargain was

“the difference, if any, in the value of the Property as it was received, and the value

it would have had if it had been as represented. The difference in value, if any, shall

be determined at the time and place the Property was sold to Liz Williamson.” Id.

      While there was evidence of the purchase price or value given by

Williamson—the purchase price she agreed to pay was $235,000—Williamson

provided no evidence of the value of the Indian Shores property as it was received

by her in September 2010 when she purchased it. In other words, there was no

evidence that the property was valued at $17,000 less (in the past) or would be valued

$58,000 less (in the future) than the purchase price of $235,000.

      The only evidence regarding the value of the property was a Harris County

Appraisal District statement showing a value of $123,000 as of January 1, 2013. 6



                                          45
RR 183, 10 RR PX 14. But this HCAD value constitutes no evidence of the value of

the property as Williamson received it in 2010, when she purchased the property.

See McGinty v. Hennen, 372 S.W.3d 625, 628 (Tex. 2012) (holding that testimony

as to the value of a home at the time of trial was no evidence of the difference in

value at the time of closing).

      In addition, evidence of an appraisal district value is no evidence of property

value in any event. Tax assessment values placed upon real property are no evidence

of the property’s value for any purposes other than taxation. See Houston Lighting

& Power Co. v. Fisher, 559 S.W.2d 682, 686 (Tex. App.—Houston [14th Dist.]

1977, writ ref’d n.r.e.); Houston v. Ludwick, No. 14-09-00600-CV, 2010 WL

4132215 at *8 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Because there

was no testimony as to the value of the property as it was received in 2010, there is

no evidence to support the jury’s answers to Questions 15(1) and (2) regarding the

benefit-of-the-bargain damages.

      E.     The trial court erred in entering judgment for future out-of-pocket
             damages, future expenses, and future lost time damages.

      In answer to Questions 15(4), (6) and (8) the jury awarded a total of $88,750,

over one-half of the $163,750 in actual damages the judgment awarded under the

DTPA. III First Supp. CR 892-93, 903. There is no evidence to support the jury’s

answers to these questions.




                                         46
       It is well-established that the plaintiff has the burden of proving with some

degree of certainty a factual basis to support the amount of damages awarded.

Lakewood Pipe of Texas, Inc. v. Conveying Techniques, Inc., 814 S.W.2d 553, 556

(Tex. App.—Houston [1st Dist.] 1991, no writ). And the damages awarded must be

based on some competent evidence and not on mere conjecture. Id.; McIver v.

Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). In other words, the recovery of

damages cannot be based on pure speculation. Lakewood Pipe, 814 S.W.2d at 556,

Roth v. Law, 579 S.W.2d 949, 956 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d

n.r.e.).

       There is no evidence to support the jury’s damage awards under Questions

15(4), (6), or (8). Williamson testified regarding the cost of repairs and renovations

she made to the home for the two years she owned it before she filed suit, but when

she was asked by her attorney about future “things [that] still need to be done on the

home” Williamson’s response was simply that “we still don’t have a master

bathroom, and the kitchen, the dining room and the living room walls haven’t been

touched”. 6A RR 177. There is no evidence whatsoever of the amount of time,

expenses, or out-of-pocket costs that will be necessary in the future. More

specifically, there is no testimony as to the future costs to replace the “things” that

Williamson claims to still be necessary. In sum, there is simply no evidence to

support the future damages found by the jury in response to Question 15 and the



                                          47
court erred in failing to disregard the answers to these damage findings, and erred in

entering judgment for these amounts.

IV.    The trial court’s judgment cannot be supported by the jury’s answers to
       the damages questions related to fraud and negligent
       misrepresentation—jury Question Nos. 4 and 11. (Issue No. 5)

       Although the trial court’s judgment awarded damages under the DTPA theory

and not for fraud or negligent misrepresentation, in the event that Williamson

attempts to rely on the damages found by the jury under these alternative theories,

such reliance would be misplaced. First, no award would be proper under these

theories because of the disclaimer-of-reliance provision. Second, no evidence

supports these damage awards.

       A.     There is no evidence to support the benefit-of-the-bargain damages
              awarded for fraud and negligent misrepresentation.

       In Question 4(1) the jury awarded $40,000 for loss of the benefit-of-the-

bargain damages that Williamson sustained in the past. III First Supp. CR 877. The

jury was instructed that the loss of the benefit-of-the-bargain meant the difference,

if any, between the value of the property agreed to between Williamson and the

Pogues, and the value of the property as is. Id.

       There is no evidence to support the $40,000 awarded for loss of the benefit-

of-the-bargain because Williamson presented no evidence of the value of the Indian

Shores property on the date she purchased it, i.e., the value of the property the Pogues

sold as is.


                                          48
      There was evidence of one element of the benefit-of-the-bargain measure—

the purchase price of the property was $235,000—but there was no evidence of the

value of the property sold by the Pogues as it was when Williamson purchased it,

and specifically, no evidence that the Indian Shores property was valued at $40,000

less than the purchase price on the date Williamson bought it.

      As noted above, the HCAD appraisal district statement reflected a value of

$123,000 as of January 1, 2013, but this was no evidence of the property’s value in

2010, when Williamson purchased it. 6A RR 183, 10 RR PX 14, see McGinty, 372

S.W.3d at 628.

      In addition, and as argued above regarding the DTPA damages, an appraisal

district value is no evidence of property value, as tax assessment values are no

evidence of the property’s value for any purpose other than tax purposes. See

Houston Lighting & Power Co., 559 S.W.2d at 686; Ludwick, 2010 WL 4132215, at

*8.

      A similar question was answered by the jury in response to Question No. 11

related to negligent misrepresentation damages. In the first sub-part of Question 11,

the jury awarded $40,000 in negligent misrepresentation damages, being the

difference between the value of what Liz Williamson received in the transaction and

the purchase price or value given. III First Supp. CR 887. For the same reasons that

the DTPA and fraud damages for loss of benefit-of-the-bargain have no support in



                                         49
the evidence, the jury’s answer to this negligent misrepresentation question also has

no support in the evidence because there is no evidence of what Williamson received

in the transaction and therefore no evidence of the difference between that value and

the purchase price.

      B.     There is no evidence to support the jury’s award of future fraud
             and negligent misrepresentation damages.

      Under Question 4(2) (fraud), the jury awarded Williamson $50,000 in future

benefit-of-the-bargain damages. III First Supp. CR 877.

      As argued above in connection with the future loss of benefit-of-the-bargain

damages awarded under the DTPA, these damages are determined at the time of the

sale that was allegedly induced by the fraud, not at some future time. Arthur

Andersen, 945 S.W.2d at 817; Leyendecker & Associates, 683 S.W.2d at 373; Fazio,

403 S.W.3d at 395. As noted above, this Court has held that it was error to award

future loss of benefit-of-the-bargain damages. See Woodyard, 695 S.W.2d at 733;

Fazio, 403 S.W.3d at 396.

      In addition, there is no evidence to support the jury’s answer to Questions

4(4), and 4(6). In Question 4(4), the jury awarded Williamson $4,000 in future

remedial damages and in Question 4(6) the jury awarded $4,000 in future mitigation

expenses. Similarly, in answer to the third subpart of Question 11 (negligent

misrepresentation) the jury awarded Williamson $58,000 in future economic losses.

III First Supp. CR 877-78, 887.


                                         50
      For the same reasons that there is no evidence to support the future DTPA

damages awarded by the jury, there is no evidence to support the future damages

awarded by the jury for fraud and negligent misrepresentation.

      Williamson did not even attempt to provide any evidence for the jury to

determine any future damages. Williamson testified regarding the repairs she had

completed, but she provided no testimony upon which the jury could award any

amounts for future damages. When asked about the future repairs that would be

needed, Williamson testified in general terms that “we still don’t have a master

bathroom, and the kitchen, the dining room and the living room walls haven’t been

touched”. 6A RR 177. Williamson provided no evidence as to the materials and labor

that would be necessary in order to complete any future repairs. Also, there was no

testimony regarding the property’s value after Williamson completed the repairs and

renovations. Thus, there is no evidence of future damages based on the sale of the

property at some future time.

      Because there is no evidence of future damages, they cannot support a

judgment. See Lakewood Pipe, 814 S.W.2d at 556. The damages awarded by the

jury were based on conjecture and speculation, and not on competent evidence and

are therefore improper. Id., McIver, 169 S.W.2d at 712.

      Because the record contains legally insufficient evidence to support the future

damages awarded by the jury in Questions 4(2), (4), (6) and the third sub-part of



                                        51
Question 11, they cannot support a judgment against the Pogues. The trial court

therefore erred in failing to disregard the jury’s answers to these questions and this

Court should render a take-nothing judgment in the Pogues’ favor on the damages

found under these issues.

      C.     There is no evidence to support the jury’s award of past remedial
             damages, mitigation expenses, and economic loss.

      In Question 4(3) the jury awarded $39,000 to Williamson for past remedial

damages, which the charge defined as the reasonable and necessary costs to repair

the property. III First Supp. CR 877. In answer to Question 4(5), the jury awarded

$37,950 in past mitigation expenses, defined as the reasonable and necessary

expenses in attempting to have the property repaired. III First Supp. CR 878. There

is no competent evidence to support these damage awards of past costs to repair or

attempt to have the property repaired.

      No construction expert testified regarding the renovations Williamson made

to the property. Williamson herself testified, describing the problems she detected

after they moved in. 6A RR 111-176. Of course, all of these repairs were conducted

over the two-year period after Williamson purchased the property, and the repairs

were completed before she ever notified the Pogues about any problems. 3 RR 155,

6B RR 92-93.

      In general terms, Williamson testified about the rooms that were painted, the

insulation and sheetrock that was replaced in the affected rooms, the damage to a


                                         52
portion of the roof, and the repairs to one of the septic tanks. Williamson admitted

that some of the renovations were done not because they were necessary to repair

damage, but because they wanted to change items such as the flooring in part of the

house, and the fireplace, which they remodeled. 6A RR 123, 155.

       Williamson also admitted that she and her husband were not construction or

repair professionals. 6A RR 156. But expert testimony of repair costs is required in

order to recover these damages, and the lay testimony of Williamson therefore does

not support the jury’s verdict. As a general rule, matters involving specialized or

technical knowledge require expert testimony. See FFE Transp. Servs., Inc. v.

Fulgham, 154 S.W.3d 84, 90-91 (Tex. 2004). And Texas courts have held that

evidence pertaining to the necessity and reasonableness of repair costs falls within

the exclusive domain of an expert. Pjetrovic v. Home Depot, 411 S.W.3d 639, 649

(Tex. App.—Texarkana 2013, no pet.); Wortham Bros., Inc. v. Haffner, 347 S.W.3d

356, 360 (Tex. App.—Eastland 2011, no pet.).

       Here, the repairs were of a technical and specialized nature, and required

expert testimony. Williamson testified at length regarding purported mold damage

that she remediated, wood rot that she diagnosed and repaired, the necessity for

insulation to be replaced and sheetrock to be removed and repaired, and repair or

replacement of certain exterior walls and ceiling repair in several rooms. 6A RR 111-

176.



                                         53
      Not only did no expert testify regarding the cost of repairs as being reasonable

and necessary, the “proof” that Williamson offered was not competent evidence.

Williamson testified that she and her husband were charging for personal labor costs

for the repairs. 6A RR 155, 10B RR, PX 35Q — “Assessment of Personal Labor

Charges at 901 Indian Shores”. In Exhibit 35Q, Williamson purported to itemize

room-by-room labor charges that she and her husband claimed. When asked where

she came up with the hourly rate for the personal labor charges, Williamson testified

that she got it from an internet website, Homewise.com, which supposedly listed

prices for contractors in her area. 6A RR 155-56. Williamson testified she used one-

third of the contractor’s amount because she and her husband were “not

professionals” and she “thought that would be fair”. 6A RR 156.

      The total amount of Williamson’s estimated “labor costs” was $37,950, the

amount the jury awarded under Question 4(5) as past mitigation expenses. 6A RR

168, III First Supp. CR 878. But because the amounts of labor costs are simply

Williamson’s estimate of a discounted labor rate based on a website, there is no

competent evidence of the labor costs, even if expert testimony was not required.

      Williamson’s testimony regarding the items purchased to repair the property

was also not competent. Williamson summarized the list of items that were used to




                                         54
repair the home. 6A RR 168-175; 10B RR PX 35R. The total of the items Williamson

claimed they purchased was $43,724.45. 6A CR 176. 8

       As above indicated, there was no testimony from anyone other than

Williamson that the items she purchased for repair were reasonable and necessary in

order to repair the home. And because there was no competent evidence, the jury’s

answer to Questions 4(3) (remedial damages) and (5) (mitigation expenses) should

have been disregarded by the court and cannot support a judgment in favor of

Williamson.

       The jury, in answer to question number 11, also awarded damages to

Williamson for economic losses suffered in the past. III First Supp. CR 887. These

damages—$76,950—cannot support any judgment because there is no evidence to

support the jury’s findings.

       The damages recoverable for negligent misrepresentation include the

pecuniary loss suffered as a consequence of the plaintiff’s reliance upon the

misrepresentation. Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439,

442-43 (Tex. 1991); RESTATEMENT (2ND) OF TORTS § 552B (1977).


______________________
8   It appears from the extensive list of the items that Williamson purchased that she gutted and
    renovated the entire house before she ever told the Pogues about any problems. Light fixtures,
    electrical wall receptacles, showers, tubs, sinks, and mirrors were listed among the items
    purchased and replaced. Incredibly, Williamson even charged $2,300 for a new stove-top and
    $2,400 for air-conditioning repair, which she admitted would have been covered under the
    home warranty that the Pogues paid for but that she didn’t use. 6A RR 175. She also charged
    $3,500 to replace the carpet, which she knew from her first visit was stained and dirty. 6B RR
    35.

                                               55
      Here there is no competent evidence to support the amount found by the jury

for past economic loss. In answer to the second subpart of Question Number 11, the

jury awarded $76,950 for past economic loss based on the misrepresentations. III

First Supp. CR 887. This total is the same as the total of the past remedial damages

and past mitigation expenses found by the jury under the fraud questions. III First

Supp. CR 877-78.

      For the same reasons that the past remedial damages and mitigation expenses

have no support in the evidence, there is no competent evidence to support the jury’s

answer to the second subpart of Question 11.

      As above argued, Williamson and her husband made the repairs themselves.

Williamson admitted that they were not professional contractors and Texas law is

clear that homeowner’s testimony about repair costs is not competent evidence.

Moreover, as above explained, even if Williamson was competent to testify about

the reasonableness and necessity of the repairs, the jury’s award for economic loss

for negligent misrepresentation is based on conjecture and speculation. Williamson

testified that she and her husband charged for labor expense based on an internet

website and that she charged what she “thought would be fair” based on her opinion

of how much that contractor rate should be discounted. 6A RR 156.

      Finally, as above explained, Williamson’s testimony regarding the items

purchased to repair the property constitutes no competent evidence of the economic



                                         56
loss suffered. No expert testified that the items purchased were reasonable and

necessary in order to repair the home. And because there was no competent evidence,

the jury’s answer to the second subpart of Question 11 regarding the past economic

loss should have been disregarded by the court and cannot support a judgment in

Williamson’s favor.

V.    Because the trial court erred in entering judgment against the Pogues,
      the court’s award of attorney’s fees should be reversed. (Issue No. 6)

      In addition to awarding $576,547.44 in actual damages and pre-judgment

interest, the court awarded Williamson trial attorney’s fees of $171,972.23 and

additional $12,250 in contingent appellate attorney’s fees, for a total attorney’s fee

award of $184,222.23. III First Supp. CR 904.

      The DTPA allows a prevailing party to recover reasonable and necessary

attorney’s fees. TEX. BUS. & COM. CODE ANN. § 17.50(d). But because Williamson

is not entitled to recover any damages under the DTPA, she is not entitled to recover

any attorney’s fees, and the award should be reversed. Gulf States Utilities Co. v.

Low, 79 S.W.3d 561, 567 (Tex. 2002).

      Moreover, although the damages were not awarded for statutory fraud, in the

event that Williamson would seek to rely on the jury’s finding of statutory fraud

(Jury Question No. 2) this finding would not support any award of attorney’s fees.

      TEX. BUS. & COM. CODE ANN. § 27.01(d)—the statutory fraud statute—

provides that attorney’s fees are available to the prevailing party. But as with the


                                          57
DTPA, if the party is not entitled to recover on the statutory fraud claim, the party

cannot recover attorney’s fees. Jerry L. Starkey, TBDL, L.P. v. Graves, 448 S.W.3d

88, 112 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

      Because Williamson is not entitled to recover a judgment against the Pogues

for any amount, the court should reverse the judgment awarding attorney’s fees.

                                 Prayer for Relief

      The judgment should be reversed and judgment rendered that Williamson take

nothing against the Pogues and that the deed of trust is enforceable against the

property securing Williamson’s note. In the alternative, the judgment should be

reversed and the case remanded for a new trial.

                                       Respectfully submitted,

                                       DE LANGE, HUDSPETH, MCCONNELL
                                       & TIBBETS, L.L.P.

                                       By: /s/ Ben A. Baring, Jr.
                                         BEN A. BARING, JR.
                                         State Bar No. 01739050
                                         bbaring@dhmtlaw.com
                                         R. Travis Piper
                                         State Bar No. 24070421
                                         tpiper@dhmtlaw.com
                                         1177 West Loop South, Suite 1700
                                         Houston, TX 77027
                                         Phone: 713-871-2000
                                         Fax: 713-871-2020

                                       ATTORNEYS FOR APPELLANTS,
                                       LESLIE R. POGUE AND JEANNETTE I. POGUE



                                         58
                              Certificate of Service

      I certify that on May 25, 2018, a true and correct copy of Appellants’ Brief
has been served on counsel for Appellee by electronic service pursuant to Rule 9.5
of Texas Rules of Appellate Procedure:

                              Misty Hataway-Coné
                             Spurlock & Associates
                        17280 West Lake Houston Pkwy.
                               Humble, TX 77346
                        email: MCone@spurlocklaw.com
                             Attorneys for Appellee

                                       /s/ Ben A. Baring, Jr.
                                      BEN A. BARING, JR.


                           Certificate of Compliance

     I certify that this brief contains 13,915 words (excluding the sections of the
document listed in Texas Rule of Appellate Procedure 9.4(i)(1).


                                      /s/ Ben A. Baring, Jr.
                                      BEN A. BARING, JR.




                                        59
                        NO. 1-17-00844-CV

                 IN THE COURT OF APPEALS
              FOR THE FIRST DISTRICT OF TEXAS
      _____________________________________________

      LESLIE R. POGUE AND JEANNETTE I. POGUE, Appellants

                               VS.

             ELIZABETH A. WILLIAMSON, Appellee.
      _____________________________________________

       (On Appeal from the 164th Judicial District Court of
     Harris County, Texas, Trial Court Cause No. 2012-56353)
      _____________________________________________

                APPENDIX TO APPELLANTS' BRIEF

      _____________________________________________



Tab A—Jury Charge.
Tab B—Final Judgment.
Tab A
I
\


     *
    -J




                                                     NO.. 2012
                                               CAUSE NO
                                                                  CdGlM /M-. / -
                                                              -56353
                                                          2012-56353             1
                                                                                                                      d
                                                                                                                      3
                                                                                                                      0
                                                                                                                            -
                   A. WILLIAMSON
         ELIZABETH A.                                     §       IN THE DISTRICT COURT OF
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         v.
         v.                                               §              COUNTY,, TEXAS i
                                                                  HARRIS COUNTY                                                    --.
                                                          §                                               § §$15_            -'" «::!.(il!!l!lilll
                                                                                                                                   1
                                                                                                                          .. r-.:> ~CII L -
                R. POGUE and
         LESLIE R.                                        §                                               i
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                                                                                                               ~"'"           N
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         JEANETTE II.. POGUE                              §       164 TH JUDICIAL DISTRICT
                                                                  164TH                                        |I0            2 5E
                                                                                                                              :::::;j;'!!.        t:J



                                             CHARGE OF THE COURT



         MEMBERS OF THE JURY
                        JURY::

                                   arguments,, you will go to the jury room to decide the case
                After the closing arguments                                                case,, answer the
                                                   verdict.. You may discuss the case with other jurors only
                            attached,, and reach a verdict
         questions that are attached                                                                                                          -
                                               room.
         when you are all together in the jury room.

                                          instructions:: Do not discuss the case with anyone else
                 Remember my previous instructions                                             else,, either in
                                means.. Do not do any independent investigation about the case or conduct
         person or by any other means
              research. Do not look up any words in dictionaries or on the Internet
         any research.                                                              Internet.. Do not post
                                            Internet.. Do not use your phone or any other electronic device
         information about the case on the Internet
                                           reason.. I will give you a number where others may contact you
         during your deliberations for any reason
                       emergency..
                 of an emergency
         in case of

                 Any notes you have taken are for your own personal use    use.. You may take your notes back
         into the jury room and consult them during deliberations
                                                         deliberations,, but do not show or read your notes to
         your fellow jurors during your deliberations Your notes are not evidenceevidence.. Each of
                                                                                                 of you should
         rely on your independent recollection of   of the evidence and not be influenced by the fact that
                                            notes..
         another juror has or has not taken notes

                 You must leave your notes with the bailiff                           deliberating.. The bailiff
                                                           bailiff when you are note deliberating          bailiff
         will give your notes to me promptly after collecting them from you  you.. I will make sure your notes
                          safe,, secure location and riot
         are kept in a safe                                               anyone.. After you complete your
                                                        not disclosed to anyone
         deliberations
         deliberations,, the bailiff                   notes. When you are released from jury duty
                             bailiff will collect your notes.                                   duty,, the bailiff
                                                                                                           bailiff
         will promptly destroy your notes so that nobody can read what you wrotewrote..

                Here are the instructions for answering the questions
                                                            questions..

                        11..               bias, prejudice,
                                Do not let bias,                                              decision..
                                                 prejudice, or sympathy play any part in your decision


                                                              1                      RECORDER'S
                                                                                     RECORDER       ’S MEMORANDUM
                                                                                     This instrument is of poor quality
                                                                                           at the time of imaging
                                                                                                          Imaging
                                                                                                                            869
il
     *-<.,'   J
              i
                  1
                      r




                                   22..       Base your
                                             Base   your answers  only on
                                                         answers only          evidence admitted
                                                                           the evidence
                                                                       on the                     in court
                                                                                         admitted in       and on
                                                                                                     court and     the law
                                                                                                                on the  law
                          that is in these instructions and questions
                          that is in    these instructions and questions..  Do  not
                                                                                not consider
                                                                                    consider or
                                                                                             or discuss
                                                                                                discuss any
                                                                                                        any evidence
                                                                                                             evidence  that
                                                                                                                       that
                                     admitted in
                               not admitted
                          was not                      courtroom..
                                                in the courtroom

                                 33..           are to make up your own
                                           You are                     own mind about          facts.. You are the sole
                                                                                     about the facts                sole
                                 of the credibility
                          judges of                  of the witnesses and
                                         credibility of                                               testimony.. But
                                                                               weight to give their testimony
                                                                      and the weight                              But on
                                                                                                                      on
                                      law,, you must follow all of
                                  of law
                          matters of                                  instructions..
                                                                of my instructions

                                44..      If my instructions use a word in a way that is different from its ordinary
                                         If
                          meaning,, use the meaning I give you
                          meaning                                                              definition..
                                                            you,, which will be a proper legal definition

                                 55..                                      important.. No one should
                                         All the questions and answers are important          shoul~ say that any
                                                     important..
                          questions or answer is not important

                                  66..             yes” or “"no"
                                         Answer “"yes"                                                otherwise.. A
                                                             no” to all questions unless you are told otherwise
                            yes” answer must be based on a preponderance of
                          “"yes"                                                    evidence.. Whenever a question
                                                                             of the evidence
                                                                         no,” your answer must be based on a
                                                              yes” or “"no,"
                           requires an answer other than “"yes"
                                                evidence..
                                         of the evidence
                           preponderance of

                                              preponderance of
                                  The term “"preponderance              evidence"” means the greater weight of
                                                               of the evidence                                of credible
                                                              If you do not find that a preponderance of
                                                       case.. If
                          evidence presented in this case                                                of the evidence
                          supports a “"yes"                             no.” A preponderance of
                                              answer,, then answer “"no."
                                       yes” answer                                               of the evidence is not
                          measured by the number of     of witnesses or by the number of     of documents admitted in
                          evidence.. For a fact to be proved by a preponderance of
                          evidence                                                          evidence,, you must find that
                                                                                     of the evidence
                                                                 true..
                          the fact is more likely true than not true

                                  7.
                                  7.     Do not decide who you think should win before you answer the questions
                                                                              decision.. Answer each question
                          and then just answer the questions to match your decision
                                                                 win. Do not discuss or consider the effect your
                          carefully without considering who will win.
                                       have.
                          answers will have.

                                  8..
                                  8                                                                     chance.
                                          Do not answer questions by drawing straws or by any method of chance.

                                  9.
                                  9.                                                   amount. Do not agree in
                                         Some questions might ask you for a dollar amount.
                          advance
                          advance to  decide on a dollar amount by adding up
                                   to decide                                                              figuring
                                                                                  juror’s amount and then figuring
                                                                          up each juror's
                          the
                          the average.
                              average .

                                 10..
                                 10                        answers. For example,
                                        Do not trade your answers.                           “ I will answer this
                                                                         example, do not say "I
                                                                              way.”
                          question your way if you answer another question my way."

                                  11.
                                  11.                  to the
                                              answers to
                                         The answers      the questions                      the decision of at least ten
                                                                                   based on the
                                                              questions must be based
                             the twelve
                          of the        jurors. The
                                 twelve jurors.                  jurors must agree
                                                     same ten jurors
                                                 The same                                      answer. Do
                                                                              agree on every answer.    Do not agree toto
                          be bound by a vote
                                         vote of anything                jurors, even if it would be
                                                           less than ten jurors,
                                                 anything less                                         majority.
                                                                                                  be a majority.




                                                                     22

                                                                                                                    870
                 I i.
                 /1if
I   '   <.   ~




                                 As II have
                                As        have said
                                                said before
                                                      before,
                                                            , ififyou
                                                                   you do
                                                                        do not            these instructions
                                                                                follow these
                                                                            notfollow                              you will
                                                                                                   instructions,, you         be guilty
                                                                                                                        will be           ofjuror
                                                                                                                                  guilty of  juror
                         misconduct,
                        misconduct        and IImight
                                      , and      might have
                                                         have toto order     newtrial
                                                                    orderaa new                       this process
                                                                                               startthis
                                                                                         andstart
                                                                                  trial and                           overagain
                                                                                                            process over          . This   would
                                                                                                                            again. This would
                         waste  your   time    and  the parties'
                        waste your time and the parties’ money    money, , and
                                                                            and would
                                                                                would    require
                                                                                          require   the
                                                                                                     the taxpayers
                                                                                                          taxpayers  of
                                                                                                                      ofthis
                                                                                                                         this  countyto
                                                                                                                              county   to pay
                                                                                                                                           payfor
                                                                                                                                               for
                         ,another trial
                        another    trial.. IfIfaa juror
                                                   juror breaks
                                                         breaks anyany of   these rules
                                                                        of these        , tell
                                                                                   rules,               person to
                                                                                                  that person
                                                                                            tell that            to stop  and   report  it to
                                                                                                                     stop and report it to me me
                         immediately.
                        immediately.




                                                                                                         \




                                                                                   33

                                                                                                                                          871
<   t




                                                AND INSTRUCTION
                                    DEFINITIONS AND
                                    DEFINITIONS                 S
                                                     INSTRUCTIONS


        Definitions:
        Definitions:

        “"Liz Williamson"
          Liz Williamson   means Plaintiff
                         ” means             Elizabeth A
                                 Plaintiff,, Elizabeth     Williamson..
                                                       A.. Williamson

        “"Defendants" means Defendants
          Defendants” means                   R.. Pogue
                                       Leslie R
                            Defendants Leslie               Jeannette II.. Pogue
                                                        and Jeannette
                                                  Pogue and                Pogue..

        “"Leslie Pogue"
          Leslie Pogue  means Defendant
                      ” means           Leslie R
                              Defendant Leslie     Pogue..
                                               R.. Pogue

        “"Jeannette Pogue"
          Jeannette Pogue         Defendant Jeannette
                            means Defendant
                          ” means                     Pogue..
                                            Jeannette Pogue

        The “"Property"
        The                     that certain
              Property” means that           property in
                                     certain property     Harris County
                                                       in Harris                  as 901
                                                                        described as
                                                                 County described        Indian Shores
                                                                                     901 Indian Shores
                      County,, Crosby
        Road,, Harris County
        Road                   Crosby,, Texas  77532..
                                        Texas 77532

        Instructions::
        Instructions

        A fact may be established by direct evidence or by circumstantial evidence or both both.. A fact is
        established by direct evidence when proved by documentary evidence or by witnesses who saw
                                        spoken.. A fact is established by circumstantial evidence when it
        the act done or heard the words spoken
                                                               proved..
        may be fairly and reasonably inferred from other facts proved




                                                          44

                                                                                                     872
<(   ..   l




                                                  QUESTION NO .1
                                                           NO.1

                                                                    Williamson??
                      of those named below commit fraud against Liz Williamson
              Did any of

              Fraud occurs when
                           when-  —
              11..   A party fails to disclose a material fact within the knowledge of      party;; and
                                                                                    of that party

              22..                                                    of the fact and does not have an
                     The party knows that the other party is ignorant of
                                                       truth;; and
                     equal opportunity to discover the truth

              33..   The party intends to induce the other party to take some action by failing to
                                  fact,, and
                     disclose the fact

              44..                                              of acting without knowledge of
                     The other party suffers injury as a result of                          of the
                                 fact..
                     undisclosed fact

                                             "-
                                        No.55
                              Yes” or “"No."
                     Answer “"Yes"

                     A.
                     A.       Leslie Pogue

                     Answer: _'--,~-,--e_~
                     Answer:     ife_____
                              ' ?©

                     B..
                     B        Jeannette Pogue

                     Answer:
                     Answer:      ~




                                                         5

                                                                                                     873
X
    ,   ,




                                              QUESTION NO
                                              QUESTION    .2
                                                       NO.2

            Did any
            Did any of
                    ofthose  named below
                       those named       commit statutory
                                   below commit            fraud against
                                                statutory fraud          Liz Williamson
                                                                 against Liz           ?
                                                                             Williamson?

            Fraud occurs
            Fraud occurs when
                         when-—
            11..   There is aa false
                   There is          representation of
                               false representation      past or
                                                    ofaa past    existing material
                                                              or existing          fact,, and
                                                                          material fact   and

            22..        false representation
                   The false                               person for
                              representation is made to aa person                    inducing that
                                                                                  of inducing
                                                                  for the purpose of          that
                   person
                   person to enter into aa contract
                             enter into    contract,, and
                                                      and

            33..       false representation is relied on
                   The false                                     person in entering
                                                      on by that person                       contract..
                                                                           entering into that contract


                   Answer “"Yes"      No.
                            Yes” or “"No."    95




                   A..
                   A        Leslie Pogue

                   Answer:: _'f.i"--'e==-----~"__ _ _
                   Answer

                   B..
                   B        Jeannette Pogue

                   Answer:
                   Answer:      ~




                                       t

                                                        66

                                                                                                    874
.- •
i   .

        If you
        If you answered
               answered “"Yes"              Nos.. 11 or
                                  Question Nos
                          Yes” to Question           or 22 for
                                                           for more than  one of
                                                                    than one                   below,, then
                                                                                       named below
                                                                              of those named           then
        answer the following
        answer               question.. Otherwise
                   following question   Otherwise,, do   not answer
                                                     do not                         question..
                                                                         following question
                                                                     the following
                                                              answer the

        Assign percentages only
        Assign                                     found caused
                             only to those you found                  contributed to cause
                                                                   or contributed
                                                           caused or                            harm.. The
                                                                                     cause the harm    The
        percentages you find
                          find must total 100    percent.. The percentages must be expressed
                                            100 percent                                expressed in whole
        numbers.. The percentage of
        numbers                   of responsibility attributable to any one named below is not necessarily
                                                                    anyone
        measured
        measured  by the number  of acts
                                 of acts or omissions  found
                                                        found..

                                               QUESTION NO
                                               QUESTION   .3
                                                        NO.3

                                                                                   Williamson,, find
          For each person you found caused or contributed to cause the harm to Liz Williamson
                                                           each::
                         of responsibility attributable to each
          the percentage of

          11..    Leslie Pogue                   J3?
                                               _97=----
                                                     _____ %
           22..   Jeannette Pogue                  t;"~
                                               --~---------
                                                                          %

                  Total                                        100
                                               --------"'--'''-'''-----   %




                                                          77

                                                                                                        875
(
    (   ..




             If you
             If you answered
                    answered “"Yes"    Question Nos
                               Yes” to Question                      answer the following
                                                          or 22 then answer
                                                 Nos.. 11 or                              question.. Otherwise
                                                                                following question   Otherwise,,
                                         question..
             do not answer the following question




                                                             88

                                                                                                          876
4*
"



                                             QUESTION NO .4
                                                      NO.4

       What sum of  money,, if
                 of money       any,, if
                             if any                    cash,, would fairly and reasonably compensate Liz
                                      if paid now in cash
                          harm, if
     , Williamson for her harm,     any,, that were proximately caused by such fraud
                                 if any                                          fraud??

        Proximate cause
      “"Proximate                                                                             event,, and
                  cause"” means a cause that was a substantial factor in bringing about an event
                                                 occurred.. In order to be a
      without which such event would not have occurred                       proximate  cause,
                                                                                        cause, the act or
      omission complained ofof must be such that a person using the degree of                     of him
                                                                                of care required of
                                    event,, or some similar event
       would have foreseen that the event                                                     therefrom.
                                                             event,, might reasonably result therefrom.
      There may be more than one proximate cause of    event..
                                                 of an event

      Consider the following elements of damages,, if any
                                      of damages                     other..
                                                      any,, and none other

             A.. Loss of the benefit of the bargain
             A                                       —
                                                     The difference
                                            bargain-The  difference,, if any,, between the value of
                                                                      if any                     of the
                 Property agreed to between Liz Williamson and the Defendants
                                                                   Defendants,, and the value of    the
                                                                                                ofthe
                                  is..
                 Property sold as is

             B.. Remedial damages
             B                          —                                          Property..
                                  The reasonable and necessary costs to repair the Property
                          damages-The

             C.. Mitigation expenses
             C                          —
                             expenses-TheThe reasonable and necessary expenses incurred in attempting
                                      repaired .
                 to have the Property repaired.

             D.. Incidental damages
             D                        — The reasonable and necessary expenses incurred while the
                            damages-The
                                    repaired.
                 Property was being repaired.

     In answering questions about damages                            separately.. Do not increase or
                                    damages,, answer each question separately
     reduce the amount in one answer because of of the instructions in or your answers to any other
                      damages.. Do not speculate about what any party
     questions about damages                                            ’ s ultimate recovery may
                                                                   party's                         or
                                                                                                mayor
              be. Any recovery will be determined by the court when it applies the law to your
     may not be.
     answers at the time of judgment. Do not add any amount for interest on damages
                         of judgment.                                        damages,, if any..
                                                                                       if any

     Answer separately in dollars and cents for damages
                                                damages,, if any..
                                                          if any

             11..   Loss of
                         of the benefit of                                                     past..
                                        of the bargain damages Liz Williamson sustained in the past
                    4
                    !$
             Answer::
             Answer    -40"c::::l::>o
                                7

             22..   Loss of
                         of the benefit of
                                        of the bargain damages Liz Williamson will
                                                                              will,, in reasonable
                                                future..
                    probability, sustain in the future
                    probability,

             Answer::
             Answer       -.
                    ~ r" * ^
                      r;2::>/,a::::o
             33..                                                    past.
                    Remedial damages Liz Williamson sustained in the past.

             Answer

             4
                     ^
             Answe~~", coD Ir

                    Remedial damages Liz Williamson will,
             4..                                    will, in reasonable probability,
                                                                        probability, sustain in the
                    future..
                    future

                                                         9

                                                                                                   877
       Jt
Answer:
Answer

55..
       ^    4.1COO
              #
               r:t::X:J
       Mitigation expenses
       Mitigation expenses Liz
                           Liz Williamson  sustained in
                               Williamson sustained           past..
                                                          the past
                                                      in the

Answer

66..
       ^
Answer;4' ."",..., J Q5"O
                   ,
       Mitigation expenses
       Mitigation
       future..
       future
                  expenses Liz            will,, in
                               Williamson will
                           Liz Williamson         in reasonable               sustain in
                                                                probability,, sustain
                                                     reasonable probability            in the
                                                                                          the

     ”
Answer * ~.I,
AnsweFf'          OOQ
                  ()()O

77..   Incidental damages
       Incidental                        sustained in
                              Williamson sustained
                          Liz Williamson
                  damages Liz                             past..
                                                      the past
                                                   in the

Answer::
Answer             O
                   (:)

88..              damages Liz Williamson will
       Incidental damages                                     probability,, sustain in the
                                                in reasonable probability
                                         will,, in
       future..
       future

Answer::
Answer              o
                    (!)




                                         10
                                         10

                                                                                       878
Answer the following
Answer      following question
                       question regarding              only if
                                             defendant only
                                regarding aa defendant           you unanimously answered
                                                              if you                          Yes”
                                                                                   answered “"Yes"
to Question
to              . 1 regarding that
             No.1
   Question No                     defendant.. Otherwise
                              that defendant    Otherwise,, do                  following question
                                                                            the following
                                                                     answer the
                                                            do not answer                 question
               defendant..
          that defendant
regarding that

                               of the following question
             Yes” to any part of
To answer “"Yes"                                                                   unanimous.. You
                                                  question,, your answer must be unanimous
     answer “"No"
may answer            any part
              No” to any       of the following
                          part of                                             of ten or
                                                             only upon a vote of
                                       following question only                               jurors..
                                                                                     or more jurors
Otherwise,, you must not answer
Otherwise                             part of
                         answer that part                     question..
                                                  following question
                                            ofthe following

                                        QUESTION NO .5
                                                 NO.5

Do you find by clear and convincing evidence that the harm to Liz Williamson resulted from any
fraud found by you in Question No . 1?
                               No.1?

                           evidence"” means the measure or degree of
  Clear and convincing evidence
“"Clear                                                                    proof that produces a firm
                                                                       of proof
 belief
belief  or conviction ofthe
                      of the truth of
                                   of the allegations sought to be established .
                                                                   established.

                          No.”
                Yes” or “"No."
       Answer “"Yes"

       A..
       A       Leslie Pogue

       Answer:: __):e7--J--=L-__
       Answer

       B..
       B       Jeannette Pogue

       Answer:
       Answer: - - - - - - -




                                                 11
                                                 11

                                                                                               879
·   .
                                                                               (




        IfIf you
             you unanimously
                 unanimously answered
                                answered “"yes"
                                            yes” to    Question No
                                                    to Question     . 2, then
                                                                 No.2,         answer the
                                                                          then answer                 question..
                                                                                            following question
                                                                                       the following
               Otherwise    do not
                Otherwise,, do not answer
                                   answer the
                                           the following  question..
                                                following question




                                                          12
                                                          12

                                                                                                         880
QUESTION NO
QUESTION      NO.6.6
       Did  any  of              below have
                          named below
       Did any of those named                                   of the falsity
                                                      awareness of
                                              actual awareness
                                       have actual                             of the representation
                                                                       falsity of     representation
or promise you
or         you found
                found to
                      to be          Question No
                                  in Question
                            fraud in
                         be fraud                 . 2?
                                               No.2?

       Actual awareness may be inferred where objective manifestations indicate a person acted
with actual awareness..
     actual awareness

                Yes” or
       Answer “"Yes"
       Answer             No.”
                     or “"No."

       A..
       A       Leslie Pogue

       Answer:: _~~_S____
       Answer

       B..
       B       Jeannette Pogue

       Answer::
       Answer     Ye~




                                                13
                                                13

                                                                                              881
c




     Answer the
    Answer   the following   question regarding
                  following question                           Leslie Pogue
                                                    Defendant Leslie
                                        regarding Defendant                             you unanimously
                                                                              only ifif you
                                                                      Pogue only             unanimously
     answered “"Yes"
    answered                       No.. 55 or
                         Question No
                      to Question
                Yes” to                          regarding Leslie
                                           or 66 regarding        Pogue.. Otherwise
                                                           Leslie Pogue   Otherwise,, do   not answer
                                                                                        do not answer the
                                                                                                       the
     following question regarding
    following question regarding  Leslie
                                  Leslie  Pogue
                                           Pogue. .

    You must
    You must unanimously agree on
             unanimously agree         amount of
                                   the amount
                               on the            any award
                                              ofany           exemplary damages
                                                           ofexemplary
                                                     award of           damages..

                                             QUESTION NO
                                             QUESTION   .7
                                                      NO.7

    What sum
    What  sum of    money,, if
                of money       any,, if
                            if any   if paid  now in
                                         paid now     cash,, should
                                                   in cash            be assessed
                                                              should be            against Leslie
                                                                         assessed against          Pogue and
                                                                                           Leslie Pogue  and
    awarded to Liz Williamson as exemplary damages if
    awarded  to Liz   Williamson    as  exemplary damages,   , if any,
                                                                  any, for
                                                                       for the
                                                                           the conduct
                                                                               cond~uct found
                                                                                        found in
                                                                                              in  response
                                                                                                  response to
                                                                                                           to
    Question No
    Question No.5. 5 or
                     or 66?
                          ?

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

    Factors to consider
    Factors    consider in
                        in awarding
                           awarding exemplary damages,, if
                                    exemplary damages      any,, are
                                                        if any   are-   —
            11..    The nature of     wrong..
                               of the wrong

            22..    The character of             involved..
                                  of the conduct involved

            33..               of culpability of
                    The degree of                       Pogue..
                                              of Leslie Pogue

            44..                                    of the parties concerned
                    The situation and sensibilities of             concerned..

            55..    The extent to which such conduct offends a public sense of             propriety.
                                                                            of justice and propriety.

            66..                            Pogue..
                    The net worth of Leslie Pogue

                                     any..
                          cents,, if any
    Answer in dollars and cents

    Answer~ ',~?D
    Answer
            ^
            ty *2*




                                                       14
                                                       14

                                                                                                      882
Answer the following question regarding Defendant Jeannette Pogue only if    if you unanimously
           Yes” to Question No
answered “"Yes"              No.5                            Pogue.. Otherwise
                                . 5 or 6 regarding Jeannette Pogue   Otherwise,, do not answer the
                                        Pogue..
following question regarding Jeannette Pogue

                                         of any award of
You must unanimously agree on the amount of                        damages..
                                                      of exemplary damages

                                           QUESTION NO .8
                                                    NO.8

What sum of  money,, if
          of money        any,, if
                       if any                  cash,, should be assessed against Jeannette Pogue and
                                if paid now in cash
awarded to Liz Williamson as exemplary damagesdamages,, if  any,, for the conduct found in response to
                                                         if any
Question No. 5 or 66??
         No.5

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

                                          damages,, if
Factors to consider in awarding exemplary damages      any,, are
                                                    if any   are-   —
       11..       The nature of     wrong..
                             of the wrong

       22..       The character of             involved..
                                of the conduct involved

        33..      The degree of                          Pogue..
                                            of Jeannette Pogue
                             of culpability of

       44..       The situation and sensibilities of             concerned..
                                                  of the parties concerned

        55..                                                                             propriety..
                                                                          of justice and propriety
                  The extent to which such conduct offends a public sense of

       66..       The net worth of           Pogue.
                                of Jeannette Pogue.

                      cents,, if
Answer in dollars and cents      any..
                              if any
          ji.
Answer:
Answer:         II "2- '5'e;..




                                                    15

                                                                                                883
                                   QUESTION NO.9
                                            NO.9

       Did any ofof those named below make a negligent misrepresentation on which Liz
                       relied?
Williamson justifiably relied?

      Negligent misrepresentation occurs when
                                         when- —
      11..                                                of his business or in a transaction in
             A party makes a representation in the course of
                                      interest,, and
             which he has a pecuniary interest

      22..   The representation supplies false information for the guidance of
                                                                            of others in their
             business, and
             business,

      33..   The party making the representation did not exercise reasonable care or
                                                          information..
             competence in obtaining or communicating the information

             Answer “"Yes"    “ No.”
                      Yes” or "No."

             A.
             A.     Leslie Pogue

             Answer:
             Answer:   ~
             B..
             B      Jeannette Pogue
                       T
             Answer: - -©
             Answer:     4»
                        -----




                                             16
                                             16


                                        /
                                                                                          884
If you answered “"Yes"
If                Yes” to Question No
                                   No.9                            question.. Otherwise
                                     . 9 then answer the following question   Otherwise,, do not
                     question..
answer the following question




                                              17

                                                                                           885
£




    IfIfyou
        you answered
             answered “"Yes"
                        Yes” to   Question No
                               to Question    . 9 for
                                            No.9                  one of
                                                             than one
                                                       more than
                                                   for more              those named
                                                                      ofthose                 then answer
                                                                                     below,, then
                                                                               named below         answer
     the following
    the             question.. Otherwise
          following question   Otherwise,, do
                                           do not          the following
                                                   answer the
                                              not answer                  question
                                                               following question..

    Assign percentages
    Assign  percentages only
                         only to
                               to those         found caused
                                           you found
                                    those you           caused or                to cause
                                                                    contributed to
                                                                 or contributed     cause the   harm.. The
                                                                                            the harm   The
    percentages you
    percentages  you find
                      find must    total 100
                           must total         percent.. The
                                          100 percent         percentages must
                                                         The percentages              expressed in
                                                                                  be expressed
                                                                            must be               in whole
                                                                                                     whole
    numbers.. The
    numbers   The percentage
                   percentage of                  attributable to
                                  responsibility attributable
                              ofresponsibility                 to any
                                                                  anyone          below is
                                                                           named below
                                                                      one named             not necessarily
                                                                                         is not necessarily
    measured by
    measured  by the
                 the number  ofacts
                     number of         or omissions
                                 acts or             found..
                                          omissions found

                                            QUESTION NO
                                            QUESTION       NO.. 10
                                                                 10
       For  each person
       For each person  you
                        you found
                            found caused
                                  caused    or
                                           or  contributed
                                               contributed to
                                                           to  cause
                                                               cause the harm to
                                                                     the harm to Liz Williamson,, find
                                                                                 Liz Williamson   find
                         responsibility attributable
                      of responsibility
       the percentage of                                each::
                                        attributable to each

                                               cp
                                               9
       11..   Leslie Pogue
              Leslie Pogue
                                                ^                  %
                                                                   %

       22..   Jeannette Pogue                   ~                  %

              Total                                     100
                                                        100        %
                                                                   %




                                                      18
                                                      18

                                                                                                     886
·'
•’ *,



                                                         NO.. 11
                                                QUESTION NO   11

                      money,, if
                   of money
         What sum of           if any                    cash,, would fairly and reasonably compensate Liz
                                        if paid now in cash
                                  any,, if
                             damages,, if
         Williamson for her damages          any,, that were proximately caused by such negligent
                                          if any
         misrepresentation??
         misrepresentation

         “"Proximate cause"
           Proximate cause                                                                      event,, and
                          ” means a cause that was a substantial factor in bringing about an event
                                                                                           cause,, the act or
                                                    occurred.. In order to be a proximate cause
         without which such event would not have occurred
                              of must be such that a person using the degree of
         omission complained of                                                 of care required of
                                                                                                 of him
                                      event,, or some similar event
         would have foreseen that the event                                                    thereform..
                                                               event,, might reasonably result thereform
         There may be more than one proximate cause of        event..
                                                        of an event


         Consider the following elements of               if any
                                                damages,, if
                                             of damages                     other.. Do not add any amount for
                                                             any,, and none other
                          damages,, if
         interest on past damages      any..
                                    if any

                                                    damages,, if
         Answer separately in dollars and cents for damages      any..
                                                              if any




               .            if any
               difference,, if
          The difference
        . the purchase price or value given.
                jf A
         Answer::
         Answer     40 ,~ Q   &t0?
                          (;;N!::,)
                                                       of what Liz Williamson received in the transaction and
                               any,, between the value of




                         loss,, if
         The economic loss         any,, otherwise suffered in the past as a consequence of
                                if any                                                          Williamson’ s
                                                                                         of Liz Williamson's
                         misrepresentation.
         reliance on the misrepresentation.
               tAo
               4
                    HCa,l? 5't:>
                   ,G=a
         Answer:: "
         Answer
                              ^
                        loss,, if
         The economic loss        any,, that in reasonable probability will be sustained in the future as a
                               if any
         consequence of
                     of Liz Williamson's                    misrepresentation..
                              Williamson’ s reliance on the misrepresentation
                ~
         Answer:
         Answer:      IgB ,ooe>
                      ~/OO(:::)
                         •




                                                          19

                                                                                                         887
,-,




                                                      NO.. 12
                                             QUESTION NO   12

                      of those named below engage in a false
              Did any of                                         misleading,, or deceptive act or practice
                                                         false,, misleading
      that Liz Williamson relied on to her detriment and that was a producing cause of of damages to Liz
      Williamson??
      Williamson

             “"Producing   cause"” means a cause that was a substantial factor in bringing about the
               Producing cause
      damages   if any
      damages,, if                                                     occurred.. There may be more
                   any,, and without which the damages would not have occurred
                           cause..
      than one producing cause

             “"False, misleading,, or deceptive act or practice
               False, misleading                       practice"” means
                                                                  means::

             Failing to disclose information about the property that was known at the time of  of the
      transaction with the intention to induce Liz Williamson into a transaction she otherwise would
                                                        disclosed..
                            if the information had been disclosed
      not have entered into if

                                        No.”
                              Yes” or “"No."
                     Answer “"Yes"

                     A..
                     A       Leslie Pogue

                     Answer:: -~-4-'=-~----
                     Answer

                     B..
                     B       JJeannette
                               eannette Pogue

                     Answer:
                     Answer:   ~




                                                                            JJ




                                                        20

                                                                                                    888
                                               NO.. 13
                                      QUESTION NO   13

                of those named below engage in any unconscionable action or course of
       Did any of                                                                  of action
                           of damages to Liz Williamson
that was a producing cause of                Williamson??

         Producing cause
       “"Producing        ” means a cause that was a substantial factor in bringing about the
                     cause"
damages,, if
damages   if any                                                occurred.. There may be more
             any,, and without which the damages would not have occurred
                     cause..
than one producing cause

       An unconscionable action or course of                                that,, to a consumer
                                            of action is an act or practice that                 ’s
                                                                                        consumer's
detriment,, takes advantage of
detriment                                of knowledge
                             of the lack of                        experience,, or capacity of
                                                         ability,, experience
                                            knowledge,, ability                              of the
                             degree..
consumer to a grossly unfair degree

                                  No.”
                        Yes” or “"No."
               Answer “"Yes"

               A..
               A      Leslie Pogue

               Answer::
               Answer     --reS
               B
               B..    Jeannette Pogue

               Answer:  '(e:~
               Answer: ----=------




                                                21
                                                21

                                                                                             889
If you answered “"Yes"
If                                      Nos. 12 or 13
                     Yes” to Question Nos.                                        question..
                                                   13,, then answer the following question
                                        question..
Otherwise,, do not answer the following question
Otherwise

Assign percentages only to those you found caused or contributed to cause the harm.   harm. The
                                        percent.. The percentages must be expressed in whole
percentages you find must total 100 percent
numbers.. The percentage of
numbers                  of responsibility attributable to any one named below is not necessarily
                                                           anyone
                        of acts or omissions found
measured by the number of                     found..

                                              NO.. 14
                                     QUESTION NO

                                                                           Williamson,, find
  For each person you found caused or contributed to cause the harm to Liz Williamson
                                                   each::
                 of responsibility attributable to each
  the percentage of

  11..   Leslie Pogue                    ;;0                %

  22..   Jeannette Pogue                  ~O                %

         Total                                   100        %




                                               22

                                                                                           890
                                   No. 12 or 13 for more than one of
                  Yes” to Question No.
If you answered “"Yes"                                                             below, then
                                                                    of those named below,
                            question.. Otherwise
       answer the following question                                           question..
                                       Otherwise,, do not answer the following question




                                             23

                                                                                         891
7




                                                     NO.. 15
                                            QUESTION NO

    What sum of     money, if
                 of money,     any,, if
                            if any                     cash,, would fairly and reasonably compensate Liz
                                     if paid now in cash
    Williamson
    Willi'!illson for her damages   if any
                          damages,, if  any,, that from such conduct
                                                              conduct??

    Consider the following elements of damages,, if
                                    of damages   if any            other..
                                                    any,, and none other

               A.. Loss of the benefit of the bargain
               A                                          —
                                                          The difference
                                                bargain-The                  if any
                                                               difference,, if  any,, in the value of
                                                                                                    of the
                   Property as it was received and the value it would have had if       if it had been as
                   represented. The difference in value,
                   represented.                    value, if any,, shall be determined at the time and
                                                          if any
                                                      Williamson..
                   place the Property was sold to Liz Williamson

               B.. Out of pocket
               B                  — The difference
                           pocket-The     difference,, if any,, in the value of
                                                       if any                 of the Property as it was
                   received and the price Liz Williamson paid for it it.. The difference
                                                                              difference,, if any,, shall be
                                                                                           if any
                                                                                    Williamson..
                   determined at the time and place the Property was sold to Liz Williamson

               C.. Expenses
               C             —                                              Property..
                            The reasonable and necessary cost to repair the Property
                   Expenses-The

               D.. Lost time
               D              —  The reasonable value of
                         time----The                  of the time spent by Liz Williamson correcting
                                                                  Property..
                   or attempting to correct the problems with the Property


    In answering questions about damages                            separately.. Do not increase or
                                   damages,, answer each question separately
    reduce the amount in one answer because of of the instructions in or your answers to any other
                     damages.. Do not speculate about what any party's
    questions about damages                                       party’s ultimate recovery may  or
                                                                                              mayor
             be. Any recovery will be determined by the court when it applies the law to your
    may not be.
    answers at the time of judgment. Do not add any amount for interest on damages
                        of judgment.                                                    any..
                                                                                     if any
                                                                           damages,, if

                                               damages,, if
    Answer separately in dollars and cents for damages      any..
                                                         if any

           11.. Loss of
                     of the benefit of                                                     past.
                                    of the bargain damages Liz Williamson sustained in the past.
                 ~
           Answer:
           Answer:      n1~,, ooo
                        \           c)()o

           2 . Loss of
           2.       of the benefit of                                     will, in reasonable
                                    of the bargain damages Liz Williamson will,
                                           future..
               probability, sustain in the future
               probability,
                  !I
           Answer:
           Answer:     ~/CbO    .
           33.. Out of                                                past.
                    of pocket damages Liz Williamson sustained in the past.

           Answer:
           Answer:   ^^~
                            0

           44.. Out of
                     of pocket damages Liz Williamson will                 probability, sustain in the
                                                      will,, in reasonable probability,
                future..
                future

           Answer~
           Answer
                !
                   4 l \ J eco
                            I



                                                     24

                                                                                                     892
5. Expenses Liz Williamson sustained in the past.
5.                                          past.

Answer:
llnsvver:
            JJt c:>
                O
6. Expenses Liz Williamson vvill,
6.                         will, in reasonable probability,                future.
                                               probability, sustain in the future.

Answer
        ^
llnsvver~ ~OOO
            Q&O


7. Lost time damages Liz Williamson sustained in the past.
7.                                                   past.

Answer:
llnsvver:       O
                ~

88.. Lost time damages Liz Williamson vvill,              probability, sustain in the
                                      will, in reasonable probability,
     future.
     future.

        ^ ^17, '5'Z>
             *
Answer: "":!a jJ
llnswer:!;




                                         25

                                                                                        893
                                              NO.. 16
                                     QUESTION NO   16

               of those named below engage in such conduct knowingly
       Did any of                                          knowingly??

                                       awareness,, at the time of
          Knowingly” means actual awareness
        “"Knowingly"                                                     conduct,, of
                                                                  of the conduct   of the falsity
                                                                                          falsity,,
                           of the conduct in question or actual awareness of
deception,, or unfairness of
deception                                                                         of the conduct
                                            warranty.. Actual awareness may be inferred where
constituting a failure to comply with a warranty
                                                                  awareness..
objective manifestations indicate that a person acted with actual awareness

                          question,, consider only the conduct that you have found was a
       In answering your question
producing cause of                Williamson..
                of damages to Liz Williamson

               Answer “"Yes"      No.”
                        Yes” or “"No."

               A..
               A      Leslie Pogue

               Answer::
               Answer      :ri::c;
               B..
               B      Jeannette Pogue

               Answer:: - - - - - - -
               Answer




                                                26

                                                                                             894
>




       you answered
    If you
    If                 Yes” to Question
           answered “"Yes"               No.. 16
                               Question No       then answer
                                              16 then                      question.. Otherwise
                                                                 following question
                                                      answer the following            Otherwise,, do
                                                                                                  do
        answer the following
    not answer
    not                       question..
                   following question




                                                                    v




                                                  27
                                                  27

                                                                                             895
iJ '•
        .
        .   ..




                                                                   NO.. 17
                                                          QUESTION NO   17

                              money,, if
                           of money
                 What sum of           if any                         damages,, should be awarded to Liz Williamson
                                          any,, in addition to actual damages
                 because Defendant’ s conduct was committed knowingly
                         Defendant's                                       ?
                                                                  knowingly?

                                       cents,, if
                 Answer in dollars and cents      any..
                                               if any
                                     $
                            Answer::
                            Answer       ~/'S'bC>




                                                                28

                                                                                                            896
*




           If you
           If you answered
                  answered “"Yes"             12,, then
                                     Question 12
                             Yes” to Question           answer the following
                                                   then answer               question.. Otherwise
                                                                   following question   Otherwise,, do
                                                                                                    do
    not answer
    not answer the following question..
                   following question                                        .

    QUESTION 18
    QUESTION 18

           By what date
           By              should Liz Williamson
                     date should                                                   diligence,, have
                                                                     of reasonable diligence
                                       Williamson,, in the exercise of
                       false,, misleading
    discovered all the false                                               of Defendants
                               misleading,, or deceptive acts or practices of Defendants??

                                           below..
           Answer with a date in the blank below

                      (l>} M P¥\ "'),.0
                                   2^ 1II
                                        *
                                         7
           Answer::
           Answer
                                   ^




                                                      29
                                                      29

                                                                                                      897
1




          If you answered “"Yes"                Nos. 12 or 13 then answer the following question
                              Yes” to Question Nos.                                     question..
                                            question..
    Otherwise,, do not answer the following question
    Otherwise




                                                 29

                                                                                            898
      «
)
}   • '
    .
          .
          *
              II
                   I
                       I




                                                                   QUESTION NO
                                                                            NO..      iJI
                                    What is a reasonable fee for the necessary services of
                                                                                        of Liz Williamson’ s attorneys in this
                                                                                               Williamson's
                           case,, stated in dollars and cents
                           case                         cents??

                                  Answer with an amount for each of     following::
                                                                 of the following

                                         11..                                                       of proceedings in the trial
                                                   For preparation through trial and the completion of
                                                   court.
                                                   court.

                                         l ~7 q?2. ~~
                                  Answer le'
                                  Answt!:

                                          22..     For representation through appeal to the court of appeals..
                                                                                                  of appeals
                                             :j,
                                             4           St'O
                                  Answer:
                                  Answer:

                                         33..
                                                 ^ •
                                                     ~
                                                 -:; y

                                                   For representation at the petition for review stage in the Supreme Court of
                                                                                                                            of
                                                   Texas..
                                                   Texas
                                            ~"2
                                              ,~~
                                                 --
                                  Answer:
                                  Answer:      ,
                                         44..      For representation at the merits briefing stage in the Supreme Court of
                                                                                                                        of
                                                   Texas..
                                                   Texas

                                  Answer~ +1"' ~
                                  Answer:*
                                         55..      For representation through oral argument and the completion of
                                                                                                               of
                                                   proceedings in the Supreme Court of   Texas..
                                                                                      of Texas

                                  Answer
                                  Answe;l        ~~t!)




                                                                            30

                                                                                                                         899
     • ,orr

              .
-;                •
                           *
                      »'
              *       ",       ~
                               *




                                                                                                                 juror. The first thing
                                                                        room, you will select your own presiding juror.
                                           After you retire to the jury room,
                                   the presiding juror will do is to have this complete charge read aloud and then you will deliberate
                                                                          asked..
                                   upon your answers to the questions asked

                                          It is the duty of               juror—
                                                         of the presiding juror-

                                                  11..    to preside during your deliberations
                                                                                 deliberations;;

                                                  22..    to see that your deliberations are conducted in an orderly manner and in
                                                          accordance with the instructions in this charge
                                                                                                   charge;;

                                                  33..    to write out and hand to the bailiff
                                                                                         bailiff any communications concerning the
                                                          case that you desire to have delivered to the judge;
                                                                                                        judge;

                                                  44..    to vote on the questions
                                                                         questions;;

                                                  55..    to write your answers to the questions in the spaces provided;
                                                                                                               provided; and

                                                  66..    to certify to your verdict in the space provided for the presiding juror's
                                                                                                                               juror’ s
                                                          signature or to obtain the signatures ofof all the jurors who agree with the
                                                          verdict if                           unanimous.
                                                                  if your verdict is less than unanimous.

                                           You should not discuss the case with anyone
                                                                                     anyone,, not even with other members of the jury,
                                                                                                                                 jury,
                                   unless all of
                                              of you are present and assembled in the jury roomroom.. Should anyone attempt to talk to
                                   you about the case before the verdict is returned,                    courthouse,, at your home,
                                                                               returned, whether at the courthouse            home, or
                                   elsewhere
                                   elsewhere,, please inform the judge of      fact..
                                                                       of this fact                                  '

                                           When you have answered all the questions you are required to answer under the
                                   instructions of
                                                of the judge and your presiding juror has placed your answers in the spaces provided
                                   and signed the verdict as presiding juror or obtained the signatures
                                                                                             signatures,, you will inform the bailiff
                                                                                                                               bailiff at
                                   the door of
                                             of the jury room that you have reached a verdict,                   w' -jeturn
                                                                                         verdict, and then you wili    eturn into court
                                              verdict..
                                   with your verdict

                                                                       i




                                                                                        ^ ^7X
                                                                                                   _
                                                                                       DGEPRESIMMG




                                                                                       31

                                                                                                                                  900
Tab B
                                                                                                                                                         Pgs -5
                                                                                                                                                         Pgs-5
                                                                                  NO.   .
                                                                                  NO 2012  56353
                                                                                      2012-56353  -
                                                                                                                                                         CRLPX
                                               A,. WILLIAMSON
                                     ELIZABETH A   WrLLIAl\lS0N                             §         IN THE DISTRICT COURT
                                                                                                                      C01JRT                             MPIJX
                                     Plaintiff,,
                                     Plaintiff                                              §                                                            ATFEX
                                                                                            §
                                                                                            8
                                                                                            S                                                             9
                                                                                                                                                          9AA
                                     v..
                                     V                                                      §         164TH JUDICIAL DISTRICT
                                                                                                      1641'11
                                                                                            §
                            LESLIE   R POGUE
                            LESLll<: R,            .
                                         POGUE,, JEANNETTE
                                                 ,JEANNETTE L                               §
                            POG UE, CROSBY ASSETS
                            POGUE~                       INC. D
                                                ASSETS~, INC   /B/A
                                                              DIB/A                         §
                            ALLIANCE PROPERTIES
                                          PROPERTl)j:S AND                                  8
                                                                                            §
                                                                                            S
                     c
                     Q      GEORG
                            GEORGIANAI AN A JONES  A/ KJA GINA
                                            ,JONES .A/KIA                                   §
        Ic3t:          zg
                     z~ JONES                                                               §
                  CD ~ .... Defendants
                            Defendants..                                                    §                   COUNTY,, TEXAS
                                                                                                      OF HARRIS COUNTY
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                            0 h*                                               FINAL JUDGMENT
                                                                                     JUOGMEN"(               .
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                                             On May 88,, 2017   Plaintiff,, Elizabeth Williamson
                                                         2017,, Plaintiff                                                  R. Pogue and
                                                                                                       Defendants,, Leslie R.
                                                                                      Wiliiamson,, and Defendants
             h=w
        .P C1I-N
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                                                                                                                                                     .

0....
NIIIIII-
                   0«C "
£  = ~ >-~ Jeannette IL Pogue
~ ~.~
  jjj j
Soxuimil
r;::U:I:WIllu..
                   >            camt~ to be heard in pt~rson
                        Pogue,, came               ,                         of record in the above styled and
                                                     person and by attorneys of

                                              cause,.
                                     numbered cause

                                                                                                       introduced,, Defendants
                                             Before the jury was impaneled and before any evidence was introduced

                                     Leslie R
                                            R.. Pogue and Jeannette 1.
                                                                    I. Pogue announced to this Court that they were dismissing their

                                     counter-claims
                                     counter-claims     against .   Plaintiff tor
                                                                    Plaintiff I!Jr      brt~ach
                                                                                        breach        of contract
                                                                                                      of contract,,   statutory   fraud
                                                                                                                                  fraud,,   negligent

                                     misrepresentation
                                     misrepresentation,, filing of                    record,, and declaratory judgment with prejudice to
                                                                of a fraudulent court record

                                     the right to re-file or reinstate their claims
                                                  re-file                    claims..

                                             Because a jury was previously demanded          of twelve was duly impaneled and the
                                                                           demanded,, a jury of

                                                       triaL. After the jury
                                     case proceeded to trial                                                     evidemx~ from both
                                                                                                sworn,, it heard evidence
                                                                        jury' was impaneled and sworn

                                     parties, and the trial proceeded from May 88,, 2017 until May 11
                                     parties,                                                        , 2017. The Court submitted this
                                                                                                   11,2017.

                                     case to the jury on May
                                                         J'vlay 11 , 2017 pursuant to the Court
                                                                11,2017                            Charge,, including all jury questions and
                                                                                               ’ s Charge
                                                                                          Court's

                                     instructions by the Court
                                                         Comt., A verdict was rendered on May 11                      :00pm .
                                                                                                 , 2017 on or about 44:00pm.
                                                                                              11,2017

                                             It appears to the Court from the verdict of
                                             it                                       of the jury and the law applicable thereto
                                                                                                                         thereto,, that the

                                                         following:: Defendants Leslie R. Pogue and Jeannette
                                     jury determined the following                                  Jemmette IL. Pogue are liable to


                                                                                             1

                                                                                                                                               902
Plaintift~. Elizabeth A. Williamson for fraud
Plaintiff                                                 fraud,, negligent misrepresentation
                                        fraud,, statutory fraud             misrepresentation,, and

violations of t11t: Texas
           of the   Tt:xas Deceptive Trade Practices Act             unconscionability.. The jury
                                                     Act,, including unconseionabiiity

returned a verdict awarding actual damages to Plaintiff           /,\,. Williamson
                                              Plaintiff Elizabeth A     WHliarnson totaling

  163,750.00 and attorney
$$163,750.00             ’ s fees totaling $$171,972.23,
                 attorney's                                                        340,722 , 23,
                                                                              of $$340,722.23,
                                             171,972.23, for a total judgment of

including exemplar   damages..
                  }' damages
          exemplary                               jury’ s affirmative finding that Defendants
                                   Based upon the jury's                           Detendants

violated the Texas Deceptive Trade Practices Act “"knowingly"
                                                   knowingly” the Court awards treble damages

in the amount of $327,500.00 ,
              01'$327,500.00.

       Plaintiff
       Plaintiff orally requested judgment be entered on the verdict and the
                                                                         t11t: Court granted the

request.
request

       By virtue of
                 of a trial amendment                                pied for the Court make several
                                          Plaintiff has additionally pled
                            arnendrnent,, Plaintiff

declarations as a matter of law: 11)) Defendants
                         of laws                             hen filed on 901
                                      Defendants'’ secondary lien         901 Indian Shores Road
                                                                                            Road,,

Crosby,, Texas 77532
Crosby         77532,, contained within the Deed of
                                                 of Trust Security Agreement -Financing
                                                                   Agreement~Financing


Statement,, 20100443760
Statement   20100443760,, filed in the Harris County Real Property Records on October 15 , 2010,
                                                                                      15,2010,

securing payment of                  note,, has been extinguished and released
                 of a purchase money note                             released;; and 2
                                                                                     2)) the

secondary !len
          hen tiled
               fj[ed on 901
                        901 Indian Shores Road                  77532,, contained within the
                                                 Crosby,, Texas 77532
                                          Road,, Crosby

     of Trust Security Agreement
Deed of                          - Financing Statement
                       Agreement-Financing               20100443760,, filed in the Harris
                                             Statement,, 20100443760

County Real Property Records on October 15           voided..
                                          , 2010, is voided
                                        15,2010,

       The Court          Plaintiff's request for a trial amendment and it is therefore
           Court. granted Plaintiffs
                  ,




ORDERED
ORDERED,, ADJUDGED                    Defendants'’ secondary lien filed on 901
          ADJUDGED,, AND DECREED that Defendants                           901 Indian

Shores Road   Crosby,, Texas 77532
       Road,, Crosby                                                             Agreement--
                                                               of Trust Security Agreement
                             77532,, contained within the Deed of

Financing Statement
          Statement,, 20100443760
                      20100443760,, filed in the Harris County Real Property Records on

October 15   2010,, securing payment of
        15,, 2010                    of a purchase money note
                                                         note,, has been extinguished and

released
released;; and the secondary Hen
                             lien filed on 901                      Crosby,, Texas 77532
                                                             Road,, Crosby
                                           901 Indian Shores Road                  77532,,



                                                2

                                                                                              903
contained within the Deed of
                          of Trust Security Agreement -Financing Statement
                                            Agreement~Financing  Statement,, 20100443760
                                                                             20100443760,,

filed in the Hams
             Han-Is County Real Property Records on October 15             voided..
                                                                 2010,, is voided
                                                            IS,, 2010

        IT IS
           IS,, FURTHER
                FURTHER,, ORDERED
                          ORDERED,, ADJUDGED
                                    ADJUDGED,, AND DECREED that Defendants
                                                                Defendants'’ claims

against Plaintiff
        Plaintiff for breach of
                             of contract
                                contract,, statutory fraud             rnisrepresentatl0n,, filing
                                                     fraud,, negligent misrepresentation    flUng of
                                                                                                   of a

fraudulent court record                                                      prejudice.
                 record,, and declaratory judgment are hereby dismissed with prejudice.

        lT IS FURTHER ORDERED
        IT            ORDERED,, ADJUDGED AND DECREED that Plaintiff             A..
                                                          Plaintiff:, Elizabeth A

~Williamson,, is entitled to judgment against Defendants Leslie R
Williamson                                                      K. Pogue and Jeannette IL. Pogue in

the amount of
           of $496,250.00, exclusive of
              $496,250.00,           of attorneys
                                        aiiorneys'’ fees                 interest.
                                                    lees and prejudgment interest

        IT IS FURTHER ORDERED                             Plaintiff:; Elizabeth A
                      ORDERED,, ADJUDGED AND DECREED that Plaintiff             A..

Williamson
Williamson,, is entitled to attorneys
                            attomeys'’ fees paid and incurred prior to
                                                                    t.o this Judgrnent
                                                                             judgment being rendered
                                                                                            rendered,,

in the amount of $171,972.23.
              of$171,972.23.

        IT IS FURTHER ORDERED
        FF                                                P!aintlff,, Elizabeth A.
                      ORDERED,, ADJUDGED AND DECREED that Plaintiff

Williamson
Williamson,, is entitled
                ent.itled prejudgment interest on the damages awarded   herein,, measured from
                                                              a\.varded herein

September 25 , 2012, at the rate of
          25,2012,                     % per annum
                                 of 5sty(;   annum,, in the sum of
                                                                of $80,297 , 44.
                                                                   $80,297,44,

        IT IS FURTHER ORDERED
        FF                                           Plaintiff,, Elizabeth A.
                      ORDERED,, ADJUDGED AND DECREED Plaintiff

Williamson
Williamson,, is entitled
                entWed to post
                          postjudgment
                              judgment interest on the total amount of
                                                                    of the judgment and any

pr~judgment
prejudgment                       hereinabove,, at the rate of 5S~''O
                 interest awarded hereinabove                     % per annum from the dale this

judgm(.~nt
judgment                     paid.
             is signed until paid.

        IT IS FURTHER ORDERED
                      ORDERED,, ADJUDGED AND DECREED that in the event either

Defendant appeals this Judgment to the intermediate        of appeals
                                       intennediat.e court of           Plaintiff:, Elizabeth A.
                                                              appeals,, Plaintiff

Williamson
Williamson,, is entitled to the sum of
                                    of $3,500.00, as attorneys
                                       33,500.00,               fees..
                                                     attorney's fees

       IT IS FURTHER ORDERED
                     ORDERED,, ADJUDGED AND DECREED that in the event either

Defendant
Def(.;ndant files a petition for
                             tor review of
                                        of this Judgment
                                                Judgment,, with the Texas Supreme     Court,, Plaintiff
                                                                          Suprel11€.: Court   PlaintilT,,



                                                   3
                                                   3


                                                                                                   904
Elizabeth A. Williamson
             WilLimnson,, is entitled to the following
                                             following:: ((a)          of $
                                                                  Sllm of
                                                           a) the sum      3,500.00 for representation
                                                                          $3,500,00

at the petition for review     b) the sum of
                    review;; ((b)              4,925.00 for representation at the merit
                                          of $54,925,00                           rnerit;; and ((c)
                                                                                                 e)

  325.00 for representation through oral argument and the completion of
$$325,00                                                             of proceedings in the

Supreme Court of Texas,.
              of Texas

       IT IS FURTHER
             FURTHER ORDERED
                     ORDERED,, ADJUDGED AND DECREED that costs of
                          .                                       court,, totaling
                                                               of court

$$737.25
  737.25 are hereby taxed against Defendants
                                  Defendants..

          IS,, FURTHER
       IT IS             ORDERED,, ADJUDGED
               FURTHER,, ORDERED   ADJUDGED,, AND DECREED that a Permanent

                                                                R,. Pogue and Jeannette I1..
Mandatory Injunction is hereby issued against Defendants Leslie R

Pogue,, and their agents
Pogue             agents,, servants
                           servants,, representatives   employees,, independent contractors
                                      representatives,, employees               contractors,, officers
                                                                                              officers,,

directors   partners, successors and assigns
directors,, pminers,                 assigns,, who are permanently ENJOINED from and

ORDERED to refrain from foreclosing upon the secondary lien filed    901 Indian Shores Road
                                                            t1Ied on 901               Road,,

Crosby,, Texas 77532
Crosby         77532,, contained within the Deed of
                                                 of Trust Security Agreement-Financing
                                                                   Agreement-Financing

Statement
Statement,, 20100443760
            20100443760,, filed in the Harris County Real Property Records on October 15, 2010
                                                                                      15,201 0,,

                                       released..
as that lien has been extinguished and released

       Failure to comply with this Permanent Mandatory Injunction will be a violation of
                                                                                      of this

Order and contempt of Court. This Permanent
                   of Court       Pennanent Mandatory Injunction is effective immediately

and permanently attaches to the Property
                                Propeliy and runs
                                             nms with the  lamL.
                                                      tht: land

          IS,, FURTHER
       IT IS             ORDERED,, ADJUDGED
               FURTHER,, ORDERED                               Plaintiff Elizabeth
                                   ADJUDGED,, AND DECREED that Plaintiff

A,, Williamson
A   \ViHiamson shall have all appropriate and necessary writs                 process, as many
                                                        writs,, execution and process,    rnany

and as often as are necessary to accomplish the execution and enforcement of
                                                                          of this judgment,
                                                                                  judgment,

including the enforcement of                                      Injunction..
                          of the incorporated Permanent Mandatory Injunction

          IS,, FURTHER
       IT IS   FURTlIER,, ORDERED
                          ORDERED,, ADJUDGED
                                    ADJUDGED,, AND DECREED that the Notice of
                                                                           of Lis

Pendens
Pendens,, dated July 22
                     22,, 2013
                          2013,, and filed
                                     flIed in the Official                of Real Property of
                                                  Oflicial Public Records of               of Harris



                                                    4

                                                                                                  905
County
County,, Texas
         Texas,, under Harris
                       Hanis County Clerk                 20130364005,, is hereby cancelled
                                          ’ s File Number 20130364005
                                    Clerk's                                       cancelled,,

declared null and void and removed from the property described in the Notic(:        Pendens..
                                                                              of Lis Pendens
                                                                      Notice of

        All
        AU other relief
                 relief requested in this cause and 110t
                                                    not expressly granted herein is DENIED to the
                                                                                 isDENIFJ)

party' seeking the same
party              same,, This judgment is final
                                           final,, disposes of
                                                            of all claims and all parties
                                                                                  parties,, and is

appealable,.
appealable

               SIGNED on this _ _ dav of _ _~_ _., 2017
                                  day of           2017,.

                                               Signed
                                               Signed::
                                             7/28/2017
                                             7/28/2017

                                             JUDGE PRESIDING




                                                5

                                                                                            906
