       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-17-00525-CV


                                    Henry Neal, Appellant

                                               v.

                          Wayne Guidry and Kat Guidry, Appellees


            FROM COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
     NO. 13-0776C, THE HONORABLE DAVID GLICKLER, JUDGE PRESIDING


                           MEMORANDUM OPINION


               This is an appeal from the judgment of the county court at law of Hays County in

a breach-of-contract suit. Upon trial to a jury, the court rendered judgment for appellees Wayne

and Kat Guidry for $38,000. Appellant is Henry Neal. We will reverse the judgment and

remand the cause for new trial.

               Wayne Guidry inherited from his father a large and diverse assortment of items

(the collection) including military medals and Native American relics. Among the medals were

three Congressional Medals of Honor; the collection also contained thousands of arrowheads.

               Pursuant to a written contract, Neal bought the collection for $90,000. He made a

$40,000 down payment but refused further payment. Guidry filed suit to recover the balance.

Neal answered, pleading, among other things, that the contract was illegal and that he was

induced to enter into the contract by Guidry’s fraudulent representations or concealment of

information.
               Neal first met Guidry in November 2012 at Guidry’s garage sale. After Neal

appeared interested in some of the pieces in the garage sale, Guidry showed him the collection.

When Neal inquired whether he would sell the whole collection, Guidry replied that he might at

a later date but that he was then too busy taking care of his mother. After Guidry’s mother died,

he telephoned Neal that he was able to sell the collection. In April 2013, Neal again viewed the

collection, including the three Congressional Medals of Honor. Guidry’s asking price for the

collection was $200,000, although he told Neal that he could have it for $150,000.

               In May 2013, Neal returned to see the collection, bringing with him his financier,

Terry Verburgt. Guidry again showed the Congressional Medals of Honor, emphasizing their

monetary value. Verburgt testified that Guidry told them that each medal could be worth up to

$7,000 and that these medals were being sold along with everything else in the collection.

               Federal law prohibits the sale of Congressional Medals of Honor.              See 18

U.S.C.A. § 704(a), (c). Although Neal claimed to be unaware of the prohibition, Guidry knew

that it was illegal to sell them. Guidry claimed at trial that he told Neal that these medals could

not be sold but that he was giving them to him because he was buying the whole collection.

               At the May visit, Neal and his party spent several hours looking through the

collection and listening to Guidry describe the collection and its origins. Guidry claimed that his

family, including his grandfather, father, and himself, had personally dug up all of the Native

American artifacts and that he had family records and photographs to document his claim. In

truth, at least 30 to 40 percent of the arrowheads in the collection were not dug up by his family,

but instead were purchased by his father from dealers in Arkansas and Missouri. Guidry had in

fact accompanied his father on several such buying trips. The dealers did not furnish any

certificates of authenticity of the arrowheads.

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               After the May visit, Neal bargained with Guidry for the collection. Neal asked if

Guidry would drop the price to $110,000. Guidry agreed. Later in May, Neal returned to

Guidry’s house to pick up the collection and make a $40,000 down payment. Verburgt and two

other men came with him to help load the collection. It took most of the day to load everything

in Verburgt’s truck and trailer. The Congressional Medals of Honor were included in the items

that Neal received. No one heard Guidry say that those medals were being gifted, not sold, to

Neal.

               After taking possession of the collection, Neal showed a few of the arrowheads to

a local arrowhead “expert,” Rob Bartell. Bartell’s opinion was that some of the arrowheads were

“possibly good, some definitely not good” and some had been retipped. “Retips” are arrowheads

reworked by “knapping.” Flint knapping is the process for making arrowheads. Also, if an

authentic arrowhead is broken or imperfect, it may be reshaped (retipped) by knapping to make it

perfect. Retipping drastically reduces the value of an arrowhead. Neal visited with Guidry

concerning Bartell’s opinion of the authenticity of the few arrowheads that he had examined.

Guidry “strongly disagreed” with Bartell’s evaluation, but agreed to drop the sales price for the

collection to $90,000.

               At this point, however, Guidry wanted a written contract to make certain that

there would be no more renegotiations of the sales price. Guidry’s wife drafted the contract

which Neal signed on June 18, 2013. Neal testified that he did not discover until some weeks

later that the Congressional Medals of Honor could not be sold. At that time, he telephoned

Guidry telling him the medals could not be sold and requesting him to take back the collection

and “call off the deal.” Guidry refused.



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               Meanwhile, Bartell, the arrowhead expert, finished going through the “mountain”

of arrowheads. He found that there were massive quantities of valueless retips, literally “bins

full of them.” One witness described the retips as just “sharp rocks” as opposed to valuable

artifacts. From the entire batch of arrowheads in the collection, only a few were certified as

authentic. Guidry never furnished any family records or photographs documenting his claims

that his family had dug up the artifacts, nor did he produce the promised “paper trail” showing

where his father obtained the arrowheads.

               After Guidry refused to take back the collection, Neal and Verburgt auctioned off

all the items of value in the collection for $36,000.

               At trial, the parties agreed that Neal failed to comply with the June 18 contract by

refusing to pay the balance due. The parties also stipulated that the value of the Congressional

Medals of Honor was $12,000. The disputed issues were submitted to the jury. Among other

things, the jury found that the Congressional Medals of Honor were sold by Guidry to Neal and

were memorialized in the June 18 contract. The jury also found that Neal’s failure to comply

with the contract damaged Guidry in the sum of $50,000.

               Everyone agreed that the Congressional Medals could not be legally sold, and

since the jury determined that those medals were included in the parties’ contract of sale, Neal

insisted that the trial court declare the entire contract void. Instead, the court severed out the

invalid part of the contract involving sale of the Congressional Medals of Honor and rendered

judgment for Guidry for $38,000.

               By his first issue, Neal asserts that because a part of the consideration for the

parties’ contract of sale included the Congressional Medals of Honor, the trial court erred in

failing to declare the entire contract void. We do not agree.

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               “A contract illegal in part and legal as to the residue is void as to all, when the

parts cannot be separated; when they can be, the good will stand and the rest will fall.” Raywood

Rice Canal & Milling Co. v. Erp, 146 S.W. 155, 159 (Tex. 1912); Redgrave v. Wilkinson, 208

S.W.2d 150, 152 (Tex. App.—Waco 1948, writ ref’d n.r.e.); Dietz v. Van Nortwick, 188 S.W.2d

590, 591 (Tex. App.—Galveston 1945, writ ref’d w.o.m.)

               The sale of the Congressional Medals of Honor was separable from the many

other items in the collection because their value was agreed upon. Accordingly, the court

properly severed out the illegal portion of the contract and permitted the balance to stand.

               Neal argues next that the court erred in refusing to submit his requested fraud-in-

the-inducement question.1 We agree. In response to Guidry’s claim, Neal pleaded fraud in the


       1 QUESTION ____
              Failure to comply by HENRY NEAL is excused if the following
       circumstances occurred:

       1. WAYNE GUIDRY

           a. by words or conduct made a false representation or concealed material
              facts, and

           b. with knowledge of the facts or with knowledge or information that would
              lead a reasonable person to discover the facts, and

           c. with the intention that HENRY NEAL would rely on the false
              representation or concealment in acting or deciding not to act; and

       2. HENRY NEAL

           a. did not know and had no means of knowing the real facts and

           b. relied to his detriment on the false representation or concealment
              of material facts.

           Was HENRY NEAL’s failure to comply excused?


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inducement as an affirmative defense. A contract is subject to avoidance on the ground of

fraudulent inducement. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d

323, 331 (Tex. 2011); Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960

S.W.2d 41, 46 (Tex. 1998).

               At the close of the evidence and after the parties had rested, the court conducted a

jury-charge conference. At the conference, Neal tendered his fraud-in-the-inducement question.

The court denied the tendered question, stating, “Now in the proposed question about—this is I

guess the affirmative defense based on a false representation or concealed facts? . . . All right.

The request for this instruction [sic] is denied.” The court and Neal’s counsel then discussed the

tendered question on the record for several pages. At the conclusion of the charge conference,

the court informed counsel that formal objections to the charge would be made after the jury had

begun its deliberations.

               The following morning the court again declared that objections to the charge

would be made after the jury had begun deliberations.         In response to counsels’ inquiries

concerning waiver, the court declared that both Guidry and Neal could make their objections to

the charge after jury deliberations began without waiver. Accordingly, at the time allotted by the

court, Neal’s counsel again tendered the fraud-in-the-inducement question. The court then

signed the tendered question and wrote “denied” thereon.

               Guidry argues that Neal failed to timely preserve error. We disagree. More than

twenty-five years ago, the Texas Supreme Court announced what the test should be for



       Answer “Yes” or “No.”

       Answer: ________________________


                                                6
determining whether a party has preserved error in the court’s charge. See State Dep’t of

Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). The Court observed,

“There should be one test for determining if a party has preserved error in the jury charge, and

that is whether the party made the trial court aware of the complaint, timely and plainly, and

obtained a ruling. The more specific requirements of the rules should be applied, while they

remain, to save rather than defeat this principle.” Id. Since Payne, the Court has several times

emphasized its holding in connection with the timing of objections and wording of requests,

asserting that intermediate courts should be concerned about common sense and not promote

form over substance. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 839 (Tex. 2000); Dallas

Mkt. Ctr. Dev. Co. v. Liedeker, 958 S.W.2d 382, 386 (Tex. 1997) (per curiam), overruled in part

on other grounds by Torrington, 46 S.W. 3d at 840 n.9; Alaniz v. Jones & Neuse, Inc. 907

S.W.2d 450, 451–52 (Tex. 1995); Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 637–

38 (Tex. 1995).

               Neal timely preserved error at the charge conference by tendering the fraud-in-the

inducement question and by obtaining a ruling. The court was reasonably aware of Neal’s

complaint as evidenced by the court’s on-the-record comments and the extended on-the-record

colloquy between the court and Neal’s counsel. This Court, following the reasoning of Payne,

concludes that Neal did not waive his complaint to the court’s charge.

               There is an alternate reason that Neal preserved error. This is not a case where

the parties agreed to submit objections after the charge was read and the court consented to the

parties’ agreement. See Missouri Pac. R.R. Co. v. Cross, 501 S.W.2d 868, 873 (Tex. 1973).

Rather, the court here directed the parties to state their objections after the charge was read and

the jury had begun its deliberation, and the court even pronounced that neither party had waived

                                                7
objections to the court’s charge by complying with its directive. Common sense mandates that a

party, compelled by the court’s ruling to state its objections to the charge after the jury has begun

its deliberations, does not waive its complaint. See Alaniz, 907 S.W.2d at 451–52.

               Guidry next argues that Neal’s tendered question was not “substantially correct”

because it did not contain the following element: “a promise of future performance made with

no intention to perform.” Tex. R. Civ. P. 278. Guidry suggests, incorrectly, that “a promise of

future performance made with no intention to perform” is a separate required element in all

fraudulent-inducement submissions. To the contrary, inclusion of such an element depends upon

the facts of the case. For example, antecedent fraud, as here claimed, is a defense to the

enforcement of a contract. See Prudential Ins. Co. of Am. v Jefferson Assocs., Ltd., 896 S.W.2d

156, 162 (Tex. 1995) (“A buyer is not bound by an agreement to purchase something ‘as is’ that

he is induced to make because of a fraudulent representation or concealment of information

by the seller.”). The required elements of the defense of fraudulent inducement are (1) the

defendant “made a material representation”; (2) the defendant’s “representation was false and

was either known to be false when made or made without knowledge of its truth”; (3) the

defendant’s “representation was intended to be and was relied upon by the injured party”; and

(4) the “injury complained of was caused by the reliance.” National Prop. Holdings, L.P. v.

Westergren, 453 S.W.3d 419, 423 (Tex. 2015) (citing In re Int’l Profit Assocs., Inc., 274 S.W.3d

672, 678 (Tex. 2009).

               In sum, Neal’s tendered question was “substantially correct” under the facts of

this case. See Tex. R. Civ. P. 278.

               Finally, Guidry argues that even if the court erred in failing to submit Neal’s

question on fraudulent inducement, such error was not reversible error in view of Neal’s own

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investigation of the collection. Guidry claims that Neal’s fraudulent-inducement defense fails

because Neal began investigating some aspects of the collection before signing the June 18

contract and that Neal’s investigation negated, as a matter of law, the elements of reliance and

causation necessary to prove fraudulent inducement. The rule is that one cannot recover for

fraudulent misrepresentation when he knows that the representation is false or when he has relied

solely on his own investigation rather than on the representations of the other party. Lutheran

Bhd. v. Kidder Peabody & Co., 829 S.W.2d 300, 308 (Tex. App.—Texarkana 1992, vacated and

remanded by 840 S.W.2d 384 (Tex. 1992) (“The judgments of the court of appeals, 829 S.W.2d

300, and the trial court are set aside without reference to the merits, and the cause is remanded to

the trial court for entry of judgment in accordance with the settlement agreement of the

parties.”). Neal’s only precontractual investigation consisted of the following: after Neal took

possession of the collection, but before the June 18 contract was signed, Neal showed a few of

the arrowheads to Rob Bartell, a local arrowhead expert. Bartell was of the view that some of

the arrowheads had been retipped. When Neal brought this matter up with Guidry, Guidry

strongly disagreed. Neal’s precontractual investigation, however, had nothing to do with the

facts underlying his fraudulent-inducement defense.

               Neal’s fraud-in-the-inducement defense was based on Guidry’s claimed material

misrepresentations regarding two issues: (1) whether the Medals of Honor were quite valuable

or, instead, illegal to sell; and (2) whether the Native American artifacts had been personally dug

up by Guidry’s father and family at known Native American “locations” that could be

documented by family records and photographs or, instead, 30 to 40 percent of the arrowheads

had been purchased by Guidry’s father from dealers without records or source documentation

of authenticity. Guidry has not pointed the Court to any “independent investigation” by Neal

                                                 9
concerning either of these issues before the June 18 contract was signed. It is plain, of course,

that if a buyer has not investigated the particular representation that turns out to be fraudulent, he

cannot be relying on his own investigation and may still be able to show his reliance on the

seller’s misrepresentation.

               The judgment is reversed, and the cause is remanded for new trial.



                                               __________________________________________
                                               Bob E. Shannon, Justice

Before Justices Baker, Smith, and Shannon*

Reversed and Remanded

Filed: May15, 2019

* Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov=t Code ' 74.003(b).




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