                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00047-CV


JIM CHAMBERS, MARY ANN                                            APPELLANTS
CHAMBERS, AND MARK
WEISBART, CHAPTER 7 TRUSTEE

                                         V.

FIRST UNITED BANK & TRUST                                             APPELLEE
COMPANY


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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1

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                                   I. Introduction

      In six points, Appellants Jim Chambers, Mary Ann Chambers, and Mark

Weisbart, a Chapter 7 Trustee, appeal the trial court’s judgment. We affirm.




      1
       See Tex. R. App. P. 47.4.
                   II. Factual and Procedural Background

      The Chamberses owned a business called G.R.A.V.I.T.Y. Enterprises,

Incorporated, all of the shares of which were held by the M & J Trust.     Mr.

Chambers’s father created the M & J Trust for the benefit of his grandchildren,

and Vaughn Andrus served as the trustee. The M & J Trust had an account with

the Farmers and Merchants State Bank (FMSB) and incurred about $200,000 in

overdrafts, which Andrus, Chief Executive Officer of FMSB, approved as

unsecured lines of credit. In addition to these lines of credit, FMSB extended

loans totaling hundreds of thousands of dollars to another of the Chamberses’

businesses, to the Chamberses for a down payment on a vehicle, and to the

Chamberses’ family members.

A. Home Equity Loans

      In August 1999, the Chamberses obtained a home equity loan from FMSB

in the principal amount of $264,600, payable in monthly installments of

$2,351.23, and pledged their homestead as security for the loan. However, the

Chamberses’ payments were sporadic, and the Chamberses often went several

months without making a payment. In November 2000, the Chamberses and

FMSB agreed to a modification, renewal, and extension of the 1999 home equity

loan that resulted in a loan in the principal amount of $266,428.47, payable in

monthly installments of $2,502.18.

      By March 2004, the Chamberses’ payments were still sporadic, but FMSB

did not foreclose. Instead, the Chamberses obtained another home equity loan


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from FMSB in the principal amount of $440,000, payable in monthly installments

of $3,228.56. The 2004 HUD settlement statement indicated that FMSB used

$223,112.57 of the proceeds from this home equity loan to pay off the 1999

home equity loan.

      The 2004 home equity loan included the following notice of default

provision:

      If I am in default the Note Holder may send me a written notice
      telling me that if I do not pay the overdue amount by a certain date,
      the Note Holder may require me to pay immediately the full amount
      of Principal which has not been paid and all the interest that I owe
      on that amount. That date must be at least 30 days after the date on
      which the notice is mailed to me or delivered by other means.

First United Bank and Trust Company (the Bank) became the owner of FMSB

and sent the Chamberses notice of default letters. One such letter, dated April

26, 2005, notified the Chamberses that they were in default for April’s monthly

payment and that if they did not cure the default on or before May 26, 2005, the

Bank would accelerate and mature the note and perfect a legal foreclosure. The

Bank received this payment on May 27, 2005.

B. Legal Action

      In August 2005, the Bank filed an application in state district court seeking

a court order allowing it to foreclose the lien created by the 2004 home equity

loan. The application provided that the Bank had sent the requisite notices such

that it was entitled to sell the property under section 51.002 of the property code.

The Bank’s president verified this application, averring that he had personal



                                         3
knowledge of the Bank’s efforts to collect the home equity loan and that the facts

set forth in the application were true and correct.

      In December 2005, the Chamberses filed suit in another district court

seeking a declaratory judgment that the Bank’s lien against the homestead was

invalid and claiming that they were entitled to attorney’s fees under the Uniform

Declaratory Judgments Act. However, before trial began, the Chamberses filed

for bankruptcy and removed the case to a bankruptcy court. The bankruptcy

court held an adversary trial and determined that the Bank’s home equity lien on

the Chamberses’ homestead was constitutionally valid. In doing so, it found that

the Chamberses “received extremely favorable and personalized treatment” from

the Bank and enjoyed a level of accommodation that most customers do not

receive from their banks before the Bank “apparently rediscovered prudent

banking practices” and that the Chamberses were “seeking a free house.” The

bankruptcy court remanded the remainder of the claims to the trial court. During

the trial, the trial court admitted into evidence the Bank’s application for an order

of foreclosure and the notice of default letters.

      At the conclusion of the Chamberses’ case, the trial court directed a verdict

in favor of the Bank on its “claim seeking a judicial foreclosure and/or final

judgment that includes an order allowing foreclosure of its lien under its security

instrument and Tex. Prop. Code § 51.002” and ordered that the Bank could

proceed with foreclosure. The trial court directed a verdict in the Bank’s favor on




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several other of the Chamberses’ claims, including breach of fiduciary duty, with

the remainder of the case being submitted to the jury.

C. Jury Questions and the Judgment

      In response to the first question in the trial court’s charge to the jury, the

jury found that the Bank had failed to properly apply all of the Chamberses’

payments on the 1999 loan. In response to the second question, the jury found

that the correct payoff amount for the 1999 loan was $170,795.97.

      As to the third question, which regarded damages, the Chamberses had

requested that this question instruct the jury to consider the difference between

the payoff for the 1999 loan received by the Bank and the correct payoff amount

that the jury had found in response to the second question. However, the trial

court rejected this, and the question simply asked the jury to determine what sum

of money, if any, would compensate the Chamberses for the damages caused by

the Bank’s failure to properly credit the Chamberses with all payments on the

1999 loan.    In response, the jury found that the Chamberses suffered no

compensable damage as a result of the Bank’s failure to properly apply the

payments.

      The fourth question asked the jury to determine the payoff amount on the

Chamberses’ 2004 home equity loan as of November 5, 2010.                The Bank

offered, and the trial court admitted, an exhibit that showed that this figure was

$665,264.55, which consisted of the principal, the interest, and the late fees. The

jury found that the payoff amount was indeed $665,264.55. Finally, in response


                                         5
to questions five and six, the jury found that $100,000 was a reasonable fee for

the necessary services of the Bank’s attorney and of the Chamberses’ attorney.

      The Chamberses filed a motion to disregard jury answers and a motion for

new trial, but the trial court found that the Bank was the prevailing party,

rendered judgment on the verdict in its favor, and awarded the Bank $100,000 in

attorney’s fees.   The Chamberses appealed this judgment, asked the court

reporter to prepare a reporter’s record that consisted only of the plaintiff’s and the

defendant’s exhibits, and included a statement of its points on appeal with this

request. In addition, the Chamberses asked the trial court to supplement the

clerk’s record to include the bankruptcy court’s memorandum opinion and

judgment.

                                III. Fiduciary Duty

      In their second point, the Chamberses argue that the trial court erred by

granting the Bank’s motion for directed verdict on their breach of fiduciary claim

because Texas law recognizes informal fiduciary relationships between a bank

and its customers and because there was legally sufficient evidence of such a

fiduciary relationship between the Bank and the Chamberses.

A. Standard of Review

      A directed verdict is proper only under limited circumstances: (1) when the

evidence is insufficient to raise a material fact issue, or (2) when the evidence

conclusively establishes the right of the movant to judgment or negates the right

of the opponent. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29


                                          6
S.W.3d 74, 77 (Tex. 2000); Farlow v. Harris Methodist Fort Worth Hosp., 284

S.W.3d 903, 919 (Tex. App.—Fort Worth 2009, pet. denied). In reviewing a

directed verdict, we follow the standards for assessing legal sufficiency of the

evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We

review the evidence in the light most favorable to the person suffering the

adverse judgment, and we must credit favorable evidence if reasonable jurors

could and disregard contrary evidence unless reasonable jurors could not.

Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 217 (Tex. 2011); City of

Keller, 168 S.W.3d at 827.

B. Law

      1. Confidential Relationship

      Fiduciary duties may arise from formal and informal relationships. Crim

Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823 S.W.2d 591, 593–94

(Tex. 1992), superseded by statute on other grounds as stated in Subaru of Am.,

Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 225–26 (Tex. 2002) (op. on

reh’g); Lindley v. McKnight, 349 S.W.3d 113, 124 (Tex. App.—Fort Worth 2011,

no pet.) (noting that Texas courts are reluctant to recognize fiduciary

relationships).   An informal fiduciary duty may arise from a moral, social,

domestic, or purely personal relationship of trust and confidence, generally called

a confidential relationship. Crim Truck, 823 S.W.2d at 594; Lindley, 349 S.W.3d

at 124–25. A person is justified in placing confidence in the belief that another

party will act in his best interest only where he is accustomed to being guided by


                                        7
the judgment or advice of the other party and there exists a long association in a

business relationship as well as personal friendship. Lindley, 349 S.W.3d at 125.

      Therefore, to “impose such a relationship in a business transaction, there

must be a fiduciary relationship before, and apart from, the agreement made the

basis of the suit.” Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex. 1998);

see Crim Truck, 823 S.W.2d at 594 (“The fact that one businessman trusts

another, and relies upon his promise to perform a contract, does not rise to a

confidential relationship.”); Rice v. Metro. Life Ins. Co., 324 S.W.3d 660, 679

(Tex. App.—Fort Worth 2010, no pet.) (“The [appellants] have not directed us to

any other evidence concerning their relationship with MetLife apart from the

coverage at issue in this case.”).

      Furthermore, “mere subjective trust does not, as a matter of law, transform

arm’s-length dealing into a fiduciary relationship.” Schlumberger Tech. Corp. v.

Swanson, 959 S.W.2d 171, 177 (Tex. 1997); see Meyer v. Cathey, 167 S.W.3d

327, 329–31 (Tex. 2005) (declining to recognize a fiduciary relationship when,

among other facts, plaintiff and defendant were friends who ate lunch together

every day for four years); Muske v. Menke, No. 01-10-00479-CV, 2011 WL

3612293, at *4 (Tex. App.—Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem.

op.) (holding that Appellant’s expressed love and trust in Appellee, including her

trust that he would repay an unsecured loan, is not enough to create an informal

fiduciary relationship).   Although a confidential relationship is ordinarily a




                                        8
question of fact for the jury, it becomes a question of law when the issue is one of

no evidence. Crim Truck, 823 S.W.2d at 594; Lindley, 349 S.W.3d at 125.

      2. Special Relationship

      Texas courts have also categorized certain relationships as “special

relationships” that give rise to a tort duty of good faith and fair dealing. Crim

Truck, 823 S.W.2d at 594. However, the Supreme Court of Texas cautioned as

follows:

      Although a fiduciary duty encompasses at the very minimum a duty
      of good faith and fair dealing, the converse is not true. The duty of
      good faith and fair dealing merely requires the parties to “deal fairly”
      with one another and does not encompass the often more onerous
      burden that requires a party to place the interest of the other party
      before his own, often attributed to a fiduciary duty.

Id.   When courts have found that a special relationship exists between a

borrower and a lender, this finding has rested on extraneous facts and conduct

such as excessive lender control over, or influence in, the borrower’s business

activities. Davis v. West, 317 S.W.3d 301, 312 (Tex. App.—Houston [1st Dist.]

2009, no pet.).

C. Analysis

      The Chamberses argue that Andrus controlled the M & J Trust and, by

extension, controlled G.R.A.V.I.T.Y. Enterprises and the Chamberses.             Even

though the evidence indeed shows that Andrus acted as trustee for the M & J

Trust, and even if there were some evidence that his control extended to the

Chamberses and their business, see id., and even if such evidence would



                                         9
support a finding of a special relationship that gives rise to a tort duty of good

faith and fair dealing, the supreme court has cautioned that such a special

relationship does not give rise to a fiduciary duty. See Crim Truck, 823 S.W.2d

at 594. Therefore, evidence of this sort was insufficient to raise a material fact

issue regarding the existence of a fiduciary duty between the Bank and the

Chamberses. See Prudential, 29 S.W.3d at 77.

      Instead, to create a fact issue at trial regarding the existence of an informal

fiduciary duty, the Chamberses needed to offer evidence of a moral, social,

domestic, or purely personal relationship of trust and confidence that existed

before they obtained the 1999 loan. See Morris, 981 S.W.2d at 675; Crim Truck,

823 S.W.2d at 594. The Chamberses point to the bankruptcy court’s opinion as

evidence that the Chamberses received extremely favorable and personalized

treatment from the Bank and enjoyed a level of accommodation that most

customers do not receive from their banks. However, even viewed in the light

most favorable to the Chamberses, see Exxon Corp., 348 S.W.3d at 217, the

manner in which the Bank treated the Chamberses as customers, however

favored, is not evidence of a personal relationship apart from the business

transactions that are at issue in this case. See Crim Truck, 823 S.W.2d at 594;

Rice, 324 S.W.3d at 679.

      The Chamberses also point to a letter that was admitted at trial in which

Mr. Chambers had told Andrus that he thought they had a “very trusted

friendship,” that he trusted Andrus, and that he felt betrayed by Andrus.


                                        10
However, Mr. Chambers’s subjective trust does not transform his relationship

with Andrus or with the Bank into a fiduciary one, much less one that existed

prior to the 1999 loan that in part formed the basis of this suit. See Morris, 981

S.W.2d at 675; Swanson, 959 S.W.2d at 177; Muske, 2011 WL 3612293, at *4.

      Without evidence sufficient to raise a material fact issue regarding an

informal fiduciary duty, the trial court did not err by directing a verdict in favor of

the Bank on the Chamberses’ fiduciary duty claim. See Prudential, 29 S.W.3d at

77. Accordingly, we overrule the Chamberses’ second point.

                             IV. Order of Foreclosure

      In their first point, the Chamberses cite the applicable rules of civil

procedure that were in effect when this case was tried and claim that the trial

court erred by granting the Bank’s directed verdict on the Bank’s rule 736

application for an order of foreclosure because (1) the Chamberses filed a

contest that precluded the entry of a rule 736 order of foreclosure, (2) the Bank

did not comply with rule 736’s mandatory requirements, and (3) the Bank failed to

comply with the notice requirements in the security instrument and in the property

code. See Tex. Sup. Ct. R. 736, 9–10 S.W.3d (Tex. Cases) XXIV–XXIX (2000,

amended 2012).

      Under the applicable version of the rules of civil procedure, a party seeking

to foreclose a lien created by a home equity loan may do so under rule 735 using

one of three methods: (1) by filing a suit seeking judicial foreclosure, (2) by filing

a suit or a counterclaim seeking a final judgment that includes an order allowing


                                          11
foreclosure under the security instrument and section 51.002 of the property

code, or (3) by filing an application under rule 736 for an order allowing

foreclosure. See Tex. Sup. Ct. R. 735, 9–10 S.W.3d (Tex. Cases) XXIV (2000,

amended 2012).

A. Third Method—Rule 736 Application

      As a threshold matter, we agree with the Chamberses that the Bank

initially chose the third method and filed a rule 736 application for an order of

foreclosure and that the Chamberses subsequently filed a petition contesting the

Bank’s right to foreclose, which abated and dismissed the rule 736 proceeding.

See Tex. Sup. Ct. R. 736(10), 9–10 S.W.3d (Tex. Cases) XXIX (2000, amended

2012).   However, contrary to the Chamberses’ claim, the trial court did not

somehow subsequently resurrect and grant the Bank’s rule 736 application for an

order of foreclosure.   Instead, after the Chamberses filed their petition, the

parties tried the issue of whether the Bank was entitled to an order of foreclosure,

and the trial court directed a verdict in favor of the Bank and entered a judgment

that included an order of foreclosure in favor of the Bank. Therefore, the Bank

obtained an order of foreclosure under the second method. See Tex. Sup. Ct. R.

735, 9–10 S.W.3d (Tex. Cases) XXIV (2000, amended 2012). Indeed, the trial

court’s judgment granting the order tracked the language of the second method

by noting that it had granted a directed verdict on the Bank’s claim for “a final

judgment that includes an order allowing foreclosure of its lien under its security

instrument and Tex. Prop. Code § 51.002.” See id.


                                        12
      The Chamberses argue that the Bank did not seek foreclosure using the

second method because it did not raise a counterclaim expressly pleading relief

for a judgment that included an order of foreclosure under the security instrument

and section 51.002 of the property code. See id. While a trial court cannot enter

judgment on a theory of recovery not sufficiently set forth in the pleadings, Street

v. Skipper, 887 S.W.2d 78, 80 (Tex. App.—Fort Worth 1994, writ denied); see

Tex. R. Civ. P. 301, a party’s unpleaded issue may be deemed tried by consent

when evidence on the issue is developed under circumstances indicating that

both parties understood that the issue was in the case, and the other party failed

to make an appropriate complaint. In re A.B.H., 266 S.W.3d 596, 600 (Tex.

App.—Fort Worth 2008, no pet.); see Tex. R. Civ. P. 67.

      Here, the trial court admitted evidence on the issue of the security

instrument’s and section 51.002’s notice requirements when it admitted the

Bank’s notices to cure default. See A.B.H., 266 S.W.3d at 600. Furthermore, the

Chamberses understood that these notice requirements were issues in the case

because, as the Chamberses acknowledge in their brief, they argued in their

response to the Bank’s motion for directed verdict that the Bank failed to satisfy

these very notice requirements. See id. Even if we were to agree that the trial

court granted the Bank’s application for an order of foreclosure under rule 736,

the third method, a grant or denial of a rule 736 application is not appealable.

See Tex. Sup. Ct. R. 736(8)(A), 9–10 S.W.3d (Tex. Cases) XXVIII (2000,

amended 2012). Because the first two subparts of the Chamberses’ first point


                                        13
relate solely to rule 736, we overrule those portions of the Chamberses’ first

point.

B. Second Method—Judgment Including Foreclosure Order

         Because the portion of the Chamberses’ first point regarding notice can

be interpreted as a claim that the trial court erred by granting a directed verdict

under the second method, we will treat it as such and address it. See Tex. Sup.

Ct. R. 735, 9–10 S.W.3d (Tex. Cases) XXIV (2000, amended 2012). Specifically,

the Chamberses claim that the foreclosure order did not properly allow

foreclosure under the security agreement because the Bank failed to send notice

according to the 2004 loan’s notice of default provision.

         The Chamberses acknowledge that the Bank sent the April 26 letter that

required the Chamberses to cure the default on or before May 26 to avoid

acceleration, but the Chamberses argue that this letter is not relevant or

applicable because the Chamberses cured the default on May 27.                 The

Chamberses argue that if the Bank believed that the Chamberses had not

satisfied the conditions of the April 26 letter, then it would not have sent

subsequent letters complaining of later defaults. The Chamberses do not cite to

authority, nor do we find any authority, for the proposition that this changes the

fact that the Bank strictly complied with the notice of default provision and was

entitled to accelerate. See Iden v. Lippard, 166 S.W.2d 185, 186–87 (Tex. Civ.

App.—Waco 1942, no writ) (holding that the debtor’s willingness and ability to

pay indebtedness after the cure date could not divest the holder of its vested


                                        14
rights under the contract to recover the full amount of the principal). Therefore,

the evidence conclusively established that the Bank gave the Chamberses the

notice required by the security instrument.       See Tex. Sup. Ct. R. 735, 9–10

S.W.3d (Tex. Cases) XXIV (2000, amended 2012); Prudential, 29 S.W.3d at 77.

      The Chamberses also argue that the evidence was insufficient to establish

that the Bank complied with the property code because the notation on the

notices indicating that they were sent by certified mail is not conclusive evidence

that the Bank sent the notices by certified mail.       See Tex. Prop. Code Ann.

§ 51.002(d) (West Supp. 2011). The property code provides that “the affidavit of

a person knowledgeable of the facts to the effect that service was completed is

prima facie evidence of service.” See id. § 51.002(e). The trial court admitted

the rule 736 application that the Bank had filed before the Chamberses filed the

underlying suit. This application provided that the Bank had sent the requisite

notice and that the note had been properly accelerated according to section

51.002, and it was sworn to by a person with knowledge of these facts. See id.

§ 51.002(d), (e). Therefore, the application served as conclusive evidence of

compliance with this section. See id.; Prudential, 29 S.W.3d at 77. Accordingly,

the trial court did not err in directing a verdict in the Bank’s favor, see Prudential,

29 S.W.3d at 77, and we overrule the Chamberses’ first point.

       V. Motion to Disregard Jury Answers and Motion for New Trial

      In their third and fifth points, the Chamberses claim that the trial court erred

by denying their motion to disregard jury answers and by denying their motion for


                                          15
new trial because the jury’s answers to questions three and four were not

supported by legally or factually sufficient evidence.

A. Standard of Review

      1. Legal Sufficiency

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). If a

party is attacking the legal sufficiency of an adverse finding on a point on which

the party had the burden of proof, and there is no evidence to support the finding,

we review all the evidence to determine whether the contrary proposition is

established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241

(Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).

      2. Factual Sufficiency

      When reviewing the factual sufficiency of the evidence, we set aside the

finding only if, after considering and weighing all of the evidence in the record

pertinent to that finding, we determine that the credible evidence supporting the

finding is so weak, or so contrary to the overwhelming weight of all the evidence,


                                         16
that the answer should be set aside and a new trial ordered. Pool v. Ford Motor

Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

         3. Partial Record Presumption

         An appellant requesting a partial reporter’s record must include in the

request a statement of the points or issues to be presented on appeal. Tex. R.

App. P. 34.6(c)(1). If the appellant complies with this requirement, we presume

that the partial reporter’s record constitutes the entire record for purposes of

reviewing the appellant’s points, even legal and factual sufficiency points. Tex.

R. App. P. 34.6(c)(4).      But if the appellant fails to comply, the contrary

presumption arises, and we must instead presume that the missing portions of

the record contain evidence that supports the trial court’s judgment. CMM Grain

Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no

pet.).

B. Analysis

         At the outset, we note that while the reporter’s record is replete with

evidence—over one hundred exhibits consisting of hundreds of pages and

countless numerical figures—it is only a partial record because the Chamberses

did not provide us with any trial testimony at all, including that explaining this

information. Therefore, we apply the appropriate presumption when evaluating

the Chamberses’ legal and factual sufficiency points; that is, because the

Chamberses properly requested the partial reporter’s record, we presume that


                                         17
the record designated by the parties is the entire record. See Tex. R. App. P.

34.6(c)(1), (4).

      1. Question Three—Damages

      In their third point, the Chamberses argue that the “math is simple” and

that by virtue of the Bank having overstated the 1999 loan payoff by $52,316.60,

calculated by subtracting the $170,795.97 loan payoff figure that the jury

determined was correct from the $223,112.57 figure included in the 2004 HUD

settlement statement, the Chamberses were entitled to that amount in damages.

      The universal rule for measuring damages for the breach of a contract is

just compensation for the loss or damage actually sustained. Coldwell Banker

Whiteside Assocs. v. Ryan Equity Partners, Ltd., 181 S.W.3d 879, 891–92 (Tex.

App.—Dallas 2006, no pet.). In light of our standard of review and the applicable

presumption, the Chamberses cannot prevail on their claim that the evidence

supporting the jury’s adverse finding regarding damages, a point on which the

Chamberses had the burden of proof, was legally insufficient unless the partial

record conclusively establishes that the Chamberses actually sustained

$52,316.60 in damages. See Tex. R. App. P. 34.6(c)(1), (4); Dow Chem., 46

S.W.3d at 241; Uniroyal, 977 S.W.2d at 334; Calce v. Dorado Exploration, Inc.,

309 S.W.3d 719, 733–34 (Tex. App.—Dallas 2010, no pet.) (recognizing that a

plaintiff claiming breach of contract has the burden to prove damages).

      The jury found, and the record appears to reflect, that the Bank misapplied

the 1999 loan payments. We agree that the formula that the Chamberses used


                                       18
to conclude that the Bank overstated the 1999 loan payoff by $52,316.60 is

relatively simple and indeed yields that dollar amount. However, the record does

not contain evidence conclusively establishing that this is the proper formula to

apply to determine the Chamberses’ damages, if any.        See Dow Chem., 46

S.W.3d at 241; Uniroyal, 977 S.W.2d at 334.        Indeed, the record does not

conclusively establish, nor do the Chamberses argue, that the Bank altogether

failed to apply the payments toward the Chamberses’ numerous debts. Because

the record contains evidence of hundreds of thousands of dollars of

indebtedness, in addition to the home equity loan debts, we cannot conclusively

determine that the Chamberses sustained damage at all by the Bank’s

misapplication to the single home equity loan debt, much less in the amount of

$52,316.60.

      In short, the Chamberses are correct that their damages formula is simple.

But in light of the voluminous record that is full of inconsistent numbers and

devoid of any testimony to explain their significance, this formula is indeed too

simple to conclusively prove damages, if any, because it does not account for the

fact that the Bank may have applied the Chamberses’ sporadic and

unpredictable payments toward their other debts. See Dow Chem., 46 S.W.3d at

241; Uniroyal, 977 S.W.2d at 334. Therefore, the evidence was legally sufficient

to support the jury’s finding of no damages. See Uniroyal, 977 S.W.2d at 334.

      Similarly, because we have no testimony explaining the import of any of

the numbers in these exhibits, we cannot say that the evidence of no damages


                                       19
was so weak or overwhelmed by the Chamberses’ evidence of $52,316.60 in

damages as to the single home equity loan debt. See Pool, 715 S.W.2d at 635.

Therefore, the evidence supporting the jury’s finding of no damages was also

factually sufficient, see id., and we overrule the Chamberses’ third point.

      2. Question Four—2004 Home Equity Loan Payoff

      In their related fifth point, the Chamberses argue that because the Bank

calculated the 2004 loan payoff figure using the overstated 1999 loan payoff

figure, there was legally and factually insufficient evidence to support the jury’s

finding that the 2004 loan payoff was $665,264.55. For the same reasons that

we determined that the evidence did not conclusively prove that the Chamberses

sustained $52,316.60 in damages, we conclude that the evidence in the partial

record does not conclusively prove that the 2004 loan payoff should have been

reduced by this amount. See Dow Chem., 46 S.W.3d at 241; Uniroyal, 977

S.W.2d at 334. Therefore, the evidence was legally sufficient to support the

jury’s finding that the 2004 loan payoff included this amount. See Uniroyal, 977

S.W.2d at 334.

      Similarly, because the exhibits in the record that might amount to evidence

that the 2004 loan payoff amount needed to be reduced by $52,316.60 are not

explained by trial testimony, we cannot conclude that the Bank’s evidence

supporting the 2004 loan payoff amount of $665,264.55 was so weak or so

contrary to the overwhelming weight of all the evidence. See Pool, 715 S.W.2d




                                         20
at 635. Therefore, the evidence supporting the jury’s answer to question four

was also factually sufficient, see id., and we overrule the Chamberses’ fifth point.

                               VI. Jury Instruction

      In their fourth point, the Chamberses claim that the trial court erred by

refusing to include their measure of damages in question three. We review a jury

charge for an abuse of discretion. Steak & Ale of Tex., Inc. v. Borneman, 62

S.W.3d 898, 904 (Tex. App.—Fort Worth 2001, no pet.). To determine whether a

trial court abused its discretion, we must decide whether the trial court acted

without reference to any guiding rules or principles; in other words, we must

decide whether the act was arbitrary or unreasonable.          Low v. Henry, 221

S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.

2004). If the trial court fails to include an instruction on the proper measure of

damages, it is the complaining party’s burden both to object to the charge and to

tender a substantially correct instruction in writing. Tex. R. Civ. P. 278. When a

trial court refuses to submit a requested instruction, the question on appeal is

whether the request was reasonably necessary to enable the jury to render a

proper verdict. Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909,

912 (Tex. 2000).

      The Chamberses tendered a proposed written instruction, but on the

partial record before us, which does not include testimony to give meaning to any

of the exhibits, we cannot conclude that their proposed instruction included a

substantially correct measure of damages or that it was reasonably necessary to


                                         21
enable the jury to render a proper verdict. See Tex. R. Civ. P. 278; Mandlbauer,

34 S.W.3d at 912.     Therefore, the trial court acted with reference to guiding

principles and did not abuse its discretion by refusing to include this instruction.

See Low, 221 S.W.3d at 614; Cire, 134 S.W.3d at 838–39. Accordingly, we

overrule the Chamberses’ fourth point.

                        VII. Costs and Attorney’s Fees

      In their sixth point, the Chamberses claim that the trial court erred by

awarding costs and attorney’s fees to the Bank but not to the Chamberses.

A. Civil Practice and Remedies Code

      First, the Chamberses argue that they were entitled to their attorney’s fees

under the civil practice and remedies code because they prevailed on their

breach of contract claim. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West

2008). However, to recover attorney’s fees for a breach of contract claim, a party

must prevail at trial and recover damages. Id. § 38.001(8); Green Int’l, Inc. v.

Solis, 951 S.W.2d 384, 390 (Tex. 1997). Although the jury found that the Bank

had failed to properly apply the Chamberses’ payments, the jury awarded zero

damages to the Chamberses.        Therefore, because the Chamberses failed to

recover damages on their breach of contract claim, they were not entitled to

recover attorney’s fees under section 38.001.2 See Tex. Civ. Prac. & Rem. Code

Ann. § 38.001; Green, 951 S.W.2d at 390.


      2
       To the extent that the Chamberses argue that they are entitled to costs
and that the Bank was not, the successful party to a suit shall recover costs from

                                         22
B. Uniform Declaratory Judgments Act

      Next, the Chamberses claim that the trial court erred by awarding

attorney’s fees to the Bank. Under the Uniform Declaratory Judgments Act, an

award of attorney’s fees is not limited to the party who is affirmatively seeking

declaratory relief; a defendant who requests an award of attorney’s fees in

answering a declaratory judgment suit may be entitled to its fees under the act.

Cadle Co. v. Harvey, 46 S.W.3d 282, 289 (Tex. App.—Fort Worth 2001, pet.

denied); see Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008). The

Chamberses pleaded a declaratory judgment action, and both parties requested

attorney’s fees. Therefore, we will apply this act to the Chamberses’ claim that

the Bank was not entitled to its attorney’s fees. See Tex. Civ. Prac. & Rem.

Code Ann. § 37.009; Cadle, 46 S.W.3d at 289.

      The grant or denial of attorney’s fees in a declaratory judgment action lies

within the discretion of the trial court, and its judgment will not be reversed on

appeal absent a clear showing that it abused its discretion. NP Anderson Cotton

Exch., L.P. v. Potter, 230 S.W.3d 457, 466 (Tex. App.—Fort Worth 2007, no

pet.); see Tex. Civ. Prac. & Rem. Code Ann. § 37.009.         Under the Uniform

Declaratory Judgments Act, “the court may award costs and reasonable and

necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem.


his adversary. See Tex. R. Civ. P. 131. Because the trial court found that the
Bank was the successful party, the Bank was entitled to costs, and the
Chamberses were not. See id.


                                       23
Code Ann. § 37.009; Potter, 230 S.W.3d at 466. The reasonable and necessary

requirements are questions of fact to be determined by the factfinder, but the

equitable and just requirements are questions of law for the trial court to decide.

Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 161 (Tex. 2004). Whether

the trial court determines that equity and justice preclude it from awarding the full

amount of fees that the jury found to be reasonable and necessary is “a matter of

fairness in light of all the circumstances.” Id. at 162.

      The Chamberses argue that it was inequitable and unjust for the trial court

to award the Bank its attorney’s fees. See Tex. Civ. Prac. & Rem. Code Ann.

§ 37.009. The circumstances to which they point with regard to fairness, see

Ridge Oil, 148 S.W.3d at 162, are that they had to retain an attorney to overcome

the Bank’s stonewalling, that the jury finally vindicated them by finding that the

Bank had misapplied loan payments, and that the Bank’s award will be significant

if it comes out of the equity in the Chamberses’ homestead.            We are not

persuaded.

      As far as vindication, the only finding in the Chamberses’ favor was the

jury’s finding that the Bank had misapplied the 1999 loan payments—loan

payments improperly made by the Chamberses. As to the other circumstances,

the trial court could have determined as a matter of fairness that requiring the

Chamberses to fund the Bank’s defense against the Chamberses’ pursuit of “a

free house” after the Bank “rediscovered prudent banking practices” is not

inequitable. See id. The only injustice would have been a decision allowing the


                                          24
Chamberses to avoid yet another obligation owed to the Bank and, this time, one

found to be reasonable and necessary by the jury. The trial court did not do this

but, instead, decided according to principles of fairness and, therefore, did not

act arbitrarily or without reference to guiding principles. See Low, 221 S.W.3d at

614; Cire, 134 S.W.3d at 838–39. Therefore, the trial court did not abuse its

discretion, see Potter, 230 S.W.3d at 466, and we overrule the Chamberses’

sixth point.

                                VIII. Conclusion

      Having overruled each of the Chamberses’ points, we affirm the trial

court’s judgment.


                                                   PER CURIAM

PANEL: MCCOY, J. ; LIVINGSTON, C.J.; and GABRIEL, J.

DELIVERED: May 3, 2012




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