                        In the
                   Court of Appeals
           Second Appellate District of Texas
                    at Fort Worth
                ___________________________
                     No. 02-18-00250-CV
                ___________________________

      LENNON II FAMILY LIMITED PARTNERSHIP, Appellant

                                 V.

   GREGORY GIDEO; SOUTHERN UNDERGROUND, LLC; AGL
CONSTRUCTORS-JOINT VENTURE; ARCHER WESTERN CONTRACTORS,
   LLC; GRANITE CONSTRUCTION COMPANY; AND THE LANE
          CONSTRUCTION CORPORATION, Appellees



             On Appeal from the 442nd District Court
                     Denton County, Texas
                 Trial Court No. 15-09569-442


              Before Gabriel, Birdwell, and Bassel, JJ.
              Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

                                 I. INTRODUCTION

      This case involves a dispute about whether Appellees Gregory Gideo; Southern

Underground, LLC; AGL Constructors-Joint Venture (AGL); Archer Western

Contractors, LLC; Granite Construction Company; and The Lane Construction

Corporation improperly and without authorization utilized land owned by Appellant

Lennon II Family Limited Partnership (Lennon II) by removing approximately

170,000 cubic yards of select fill soil and then dumping approximately 68,000 cubic

yards of steel-reinforced concrete and asphalt millings and rubble without permission

from Lennon II’s principal, Chelsey Everett Lennon (Mr. Lennon).

      The case proceeded to trial. After Lennon II’s case-in-chief, the trial court

granted a directed verdict on Lennon II’s fraud claims. The jury charge included

questions on, inter alia, Lennon II’s claims for trespass and conversion and on

Gideo’s counterclaim for breach of contract. The jury found that Gideo and AGL

had not trespassed but that they had converted Lennon II’s property. However, when

asked to assess the fair market value of the converted property, the jury answered

“$0.00.” On Gideo’s counterclaim, the jury found that there was an agreement but

that Lennon II had not breached it. In accordance with the jury’s verdict, the trial

court rendered final judgment that Lennon II and Gideo take nothing on their

respective claims and counterclaim.

      Lennon II raises five issues on appeal, which we will resolve as follows:

                                          2
• The trial court did not err by directing a verdict on Lennon II’s fraud claims.

   The record contains no evidence of an affirmative misrepresentation or of facts

   that would create the duty necessary to support a claim of fraud by

   nondisclosure. Likewise, there is no evidence of reliance.

• The jury’s assessment of “$0.00” damages on the conversion claim reflected the

   failure of Lennon II to present evidence of the fair market value of the

   converted property.

• The jury’s zero finding on conversion damages renders Lennon II’s challenge

   to AGL’s status as a bona fide purchaser moot.

• The evidentiary mix does not support Lennon II’s claim that the jury’s negative

   finding on its trespass claim was against the great weight and preponderance of

   the evidence.

• Lennon II contends that the refusal of the trial court to submit proper jury

   charge instructions permitted the jury to find that Lennon II stood in breach of

   a legally unenforceable contract. But the jury found no breach of the contract;

   thus, the trial court’s failure to instruct the jury as Lennon II wanted was

   harmless. Further, unenforceability of the contract does not mean that actions

   taken in reliance on it constitute a trespass.

Therefore, we affirm.




                                         3
                                    II. BACKGROUND

       A. Gideo meets Mr. Lennon and they make their first deal.

       Lennon II is a Texas limited partnership that was created in 1995. Lennon,

LLC is Lennon II’s general partner with a 1% ownership interest. At all relevant

times, Mr. Lennon was Lennon, LLC’s manager, as well as one of Lennon II’s limited

partners.1 Since 1995, Lennon II has been the owner of approximately 38 acres (the

Property) in Denton County. There is no dispute that Mr. Lennon had legal authority

to act on behalf of Lennon II with regard to the Property.2

       Gideo has been in the excavation and dirt business since the early 1980s, often

doing business as Southern Underground, LLC, a company formed, owned, and

operated exclusively by Gideo. At trial, Gideo explained that he often does work for

trade or barter, such as in exchange for dirt. Thus, Gideo said that he accumulates

dirt and holds it to be sold at a later date.

       Gideo testified that he met Mr. Lennon in the fall of 2007. Gideo said that he

would see Mr. Lennon walking the Property, so he decided to ask Mr. Lennon if his

cows could graze there. Mr. Lennon and Gideo ultimately agreed to let Gideo’s cows

graze there, and Mr. Lennon let Gideo move his travel trailer onto the Property, and

       1
         Mr. Lennon’s now-deceased wife was also a limited partner in Lennon II at its
formation with each originally owning a 49.5% interest. Eventually, the Lennons’
children and grandchildren were gifted and/or assigned fractional interests in Lennon
II as limited partners.

       The trial court instructed the jury “that Mr. Lennon had legal authority to act
       2

for Lennon II with respect to the Lennon II Property.”

                                                4
in exchange Gideo would look after the Property and clean up refuse that had been

dumped on it (Cattle-Grazing Agreement). Gideo testified that Mr. Lennon and he

“made a cattle grazing contract out there on the -- at the [Property] one day, made a

couple of copies. We both signed it.” The contract was handwritten, and Gideo

testified that it was “definitely” Mr. Lennon’s idea to have something in writing, but at

trial Gideo could not find his copy of the contract.

      Gideo testified that from 2008 through 2015, he and Mr. Lennon became such

good friends that Gideo could show up at Mr. Lennon’s house unannounced. They

would often go out to eat at McDonald’s or IHOP®, and Gideo said that Mr. Lennon

came over to his house for Thanksgiving one year and that it was “probably the

happiest time I ever saw him.” Gideo testified that he “[n]ever, never” lied to

Mr. Lennon.

      Gideo estimated that over the course of their relationship, he and Mr. Lennon

had walked the Property “a hundred times.” During these walks, Gideo said that

Mr. Lennon talked a lot about his desire to develop the Property. Gideo testified that

Mr. Lennon loved seeing the adjacent land—which belonged to Mr. Lennon’s sister-

in-law—being developed into a subdivision and that he would frequently ask

questions about aspects of development. According to Gideo, Mr. Lennon wanted to

develop the Property in a similar fashion to the residential development on the

adjacent land. Gideo averred that Mr. Lennon wanted a 7-Eleven® included in the

development but he also wanted to leave some of the trees for a residential

                                           5
development and that he even wanted to have the first street on the Property named

“Lennon Lane.” During one of these conversations in the summer of 2013, Gideo

informed Mr. Lennon that it would cost approximately $1 million to grade and clear

the Property for development. Mr. Lennon, as Gideo testified, did not want to spend

his money to grade and clear the Property.

      B. Gideo and Mr. Lennon make their second deal, which allowed Gideo
      to execute a contract with J.D. Abrams to use the Property and borrow
      dirt from it.

      Also around the summer of 2013, Gideo had become aware of a road project

near the Property to be performed by J.D. Abrams, LP, which would require about

20,000 cubic yards of dirt. Gideo negotiated an agreement with J.D. Abrams to pay

$2,000 per month to Lennon II3 to use a corner of the Property as a “lay-down area”

and to pay Gideo $25,000 to “put up all the fence,” install a “storm sewer across the

lot,” run a water line “up to their office,” and install “all new gates.” Finally, J.D.

Abrams would borrow 20,000 cubic yards of dirt that it would have to fill back in.

      At trial, Gideo introduced a handwritten document dated July 3, 2013. The

document contained two hand-drawn ovals with “Borrow?” written inside of each.

Gideo testified that these represented the two areas on the Property where

J.D. Abrams would be able to borrow dirt. Gideo also testified that the document



      3
       J.D. Abrams actually paid Gideo the monthly $2,000. Gideo testified that he
always paid the $2,000 to Mr. Lennon though an audit suggested that three or four
payments had not been passed along.

                                             6
was “all” Mr. Lennon’s drawing and that such a drawing was what Mr. Lennon did for

all of his agreements with Gideo:

      Q. Back off from that a little bit. And this is a -- this is a handwritten
      agreement. Tell us whose idea it was to have a handwritten agreement.

             A. It was [Mr. Lennon’s].

            Q. And there’s a drawing. There’s a drawing of the land. Whose
      idea was it to make this agreement in the form of a drawing?

               A. It’s all [Mr. Lennon]. I mean, that’s the way all three of them were, even
      -- even the cattle grazing. I mean, this is what this guy does.

             I mean, he wants to sit with you, talk it through. He’ll mark what
      he feels like, and he’s in control. He doesn’t -- if you -- if he -- if you try
      to say something that he don’t like, it’s struck. It doesn’t happen.

             ....

             Q. Okay. So as you were doing this handwritten agreement in
      the form of this map, just give us an idea of how it would be. He’s got
      some writing on it; you’ve got some writing on it. Tell us how that
      would happen.

              A. He -- he would -- he would -- he’d get a piece of paper, and he
      would get one piece of paper. And he’d get a pen, and he’d say, okay,
      draw it like the -- what the property -- he called it the property. I called
      it the farm.

            He’d say, draw the, like, perimeter on it. I’d say, well, I’m going
      to put the creek through here. I’ll draw the barbecue stand here and
      J.D. Abrams over here, and here’s where we want to borrow. And I
      made them two little areas.

            And then he would take the pencil, and he would write what he
      wanted, like Goldfield Road and 2181. He would write whatever he
      wanted. [Emphasis added.]



                                                7
      Following this July 3, 2013 document, Gideo signed a “property usage and

release agreement” with J.D. Abrams (J.D. Abrams Contract), which among other

things, allowed J.D. Abrams to set up a concrete batch plant on 7.5 acres of the

Property. Although Gideo was listed as the owner of the Property,4 Gideo testified

that he did not hide anything from Mr. Lennon and that he was authorized by

Mr. Lennon to enter into the J.D. Abrams Contract because of the July 3, 2013

handwritten document. Indeed, Gideo testified that Mr. Lennon “didn’t want to deal

with [J.D.] Abrams. He wanted to deal with me. We made our deal. And I told him,

you know, now that I know where we can take the borrow, I’ll go to [J.D.] Abrams.”

At trial, Lennon II did not challenge the terms of, or Gideo’s authority to enter into,

the J.D. Abrams Contract and made no claim against Gideo or his company based on

that agreement.

      C. Gideo attempts to broker a deal with AGL.

      By 2014, AGL had a contract with the Texas Department of Transportation

(TxDOT) to begin a road construction project (I-35 Express Project), which was

described at trial as a “design/build project.”5 In March 2014, Gideo approached


      4
       The J.D. Abrams employee who negotiated and signed the agreement with
Gideo testified at trial that he believed at that time that Gideo owned the Property.
      5
        A design/build project is distinguished from a “rip-and-read project” in that a
design/build project is one in which the contractor, as opposed to TxDOT, designs
the project. A rip-and-read project is one in which TxDOT has already designed the
project with “a set of plans and the specifications” and it simply takes price bids from
contractors.

                                           8
AGL to inquire about supplying dirt and leasing the Property for AGL to use for a

concrete batch plant.6 A series of text messages between Gideo and Andy Svehla,

AGL’s assistant project manager on the I-35 Express Project, showed that AGL

wanted a written agreement with Lennon II. Yet without any written agreement from

Lennon II, in August 2014, Gideo and AGL entered into an agreement whereby

Gideo sold 50,000 cubic yards of his own “Select Borrow Fill Material”7 at $4.00 per

cubic yard ($200,000 total) (AGL Contract). The AGL Contract recited, inter alia,

that Gideo would be responsible for loading the select fill into AGL’s trucks and

obtaining any required permits.

       Svehla, who was involved in negotiating the deal, testified extensively as to how

the $4.00 per cubic yard price was negotiated and what the price included. Svehla

testified that the price included not just the select fill dirt, but also Gideo’s services for

excavating and loading the dirt. This testimony went as follows:

       Q. And you evaluated how much it cost per cubic yard.

            A. Right. Not just material, but the labor and the trucking
       combined as well.

            Q. So to get to the total costs per cubic yard, you had to look at
       whether y’all had to go pick it up and excavate it, right?

              A. Correct.


       One of the e-mail exhibits at trial showed that Gideo had been inquiring about
       6

providing dirt for the I-35 Express Project since July 2013.
       7
        Select fill is different from and more expensive than common fill dirt.

                                              9
      Q. You had to look at whether you had to haul it.

      A. Correct.

      Q. And that -- then the price of the dirt gave you the total cost
per cubic yard.

      A. Correct.

      Q. Now, in this particular case, when AGL went to the Lennon
property, did AGL ever excavate the dirt?

      A. No.

      Q. Did AGL load the dirt onto its trucks?

      A. No.

      Q. So if we look at the Lennon/Gideo property, we see that you
picked up C1 material, dirt.

      A. Yes.

      Q. And you paid $4 a cubic yard.

      A. Correct.

      Q. It included the cost of loading.

      A. Yes.

     Q. And then you all had to pay the truckers to drive it to
wherever you needed it. Fair?

      A. Fair.

       Q. Now, the total there is $8.69. But if we look at your material
costs, Andy, you paid $4 a cubic yard for this dirt to Mr. Gideo, and if
you had purchased it from the Denton landfill, you only paid $1.60.

      A. Correct.

                                   10
             Q. Why did you pay more money for this dirt?

             A. That’s a good question.

             Q. Well, this dirt includes the fact -- the load cost is included in
      the price that you pay Mr. Gideo, correct?

             A. Right. Yes, correct. We didn’t have to provide the equipment
      or the labor to load it.

            Q. In your opinion, in evaluating what you all paid for dirt, did
      you pay a fair market value for the dirt you purchased from this
      property?

             A. On the high end of the market value.

      Gideo testified that the 50,000 cubic yards of select fill in the August 2014

AGL Contract was his own soil that he had moved onto the Property, so after the

first 50,000 cubic yards of select fill was exhausted, he “asked [Mr. Lennon] if we

could have some dirt from the [Property].”

      In late September 2014, when AGL began considering purchasing additional

fill from the Property, it did “not want to write a change order until [it got] something

from the owner.” At trial Svehla clarified AGL’s September 2014 concerns:

      Q. (BY [LENNON II’S COUNSEL]) Bates 10 -- Mr. Svehla, do you
      have some concerns about Mr. Gideo’s authority from the owner in
      September -- on September 26th of 2014, authority to sell another
      100,000 cubic yards of select fill?

             A. What was the date?

             Q. September of 2014, September 26th.



                                           11
             A. I wouldn’t call them concerns, but I was doing my due
      diligence to make sure that Mr. Gideo and Mr. Lennon were both on the
      same page as far as the additional 100,000 cubic yards.

            ....

             Q. Mr. Svehla, why -- after receiving the first 50,000 cubic yards
      of dirt that was in this stockpile, why did AGL want to enter into a
      secondary agreement to buy more dirt?

            A. Because we needed more dirt on the project.

             Q. And did -- what was the purpose in -- was there a different
      purpose? Since the first purpose was a stockpile and the second purpose
      of the contract involved some excavation, were there different concerns
      with that?

            A. Well, the first 50,000 belonged to Mr. Gideo, and then the
      next 100,000 that we entered into the agreement was coming directly
      from the [P]roperty.

      During October 2014, AGL and Gideo communicated about the amount of

select fill to be purchased and the status of Gideo’s communications with the

“landowner.” At the end of October 2014, AGL provided Gideo a change order to

discuss with the “owner, and try to get him to approve it.” Also at the end of

October 2014, AGL drafted an agreement between Gideo and the landowner (AGL’s

Proposed Agreement) that AGL viewed as protecting its interests.

      D. The November 3, 2014 meeting and commencement of the AGL
      project.

      Representatives of AGL did meet with Mr. Lennon. On November 3, 2014,

there was a meeting on the Property with Mr. Lennon, Gideo, Svehla, and AGL’s

truck manager on the I-35 Express Project, Kody Swesey. Gideo testified that the

                                         12
purpose of the meeting was so “AGL could meet [Mr.] Lennon and also get an idea

of where we were going to excavate and what the next step of our work would be.”

According to Gideo, he met Mr. Lennon that morning, they drove around the

Property8 and met with AGL, and after the meeting everyone “had a game plan”

about what was going to happen next:

      Q. All right. And you -- can you tell us briefly what happened at the
      meeting there with the AGL people and Mr. Lennon?

             A. [Mr. Lennon] met me that morning over by the barn or the
      camper. We drove around the property. We met the AGL group. We
      talked, drove around --

             Q. All right.

             A. -- discussed what the plans were.

            Q. Okay. And at the end of the meeting, did you have an
      understanding about whether AGL was satisfied with the meeting with
      Mr. Lennon?

             A. I do.

             Q. And what was your idea about that?

            A. We had -- me, [Mr. Lennon,] and AGL had a game plan of
      what our next step would be.

      Swesey testified that at the meeting he told Mr. Lennon that “it’s lucky that we

need this particular material while you’re developing, or it would cost you $8 to $10 a

cubic yard to remove it.” Swesey noted that Mr. Lennon was actively involved at the


      Svehla testified that he and Swesey sat in the back of Gideo’s truck and that
      8

Gideo and Mr. Lennon sat in the front.

                                          13
meeting, including mentioning that he wanted to keep some of the trees. So Swesey

left the meeting believing that Mr. Lennon was aware of and comfortable with the

project and that he had given Gideo authority to act on the project:

      Q. Okay. Do you recall Mr. Lennon being adamant about leaving the
      trees on the Swisher Road frontage?

             A. Yes.

            Q. Do you recall him being adamant about leaving the trees on
      the west side of the property?

             A. Not all the trees, but some trees.

             ....

             Q. And is there anything that happened during your drive-around
      that gave you the impression that Mr. Gideo did not have Mr. Lennon’s
      authority to be out there directing traffic and doing this work?

             A. No.

            Q. In fact, it was your impression that Mr. Lennon knew what
      was going on and had given Mr. Gideo that authority; isn’t that true?

             A. Yes.

      Svehla did acknowledge that there was no specific discussion at the meeting

about AGL’s Proposed Agreement or the additional 100,000 cubic yards of select fill.

At trial, Svehla did not testify to any statements he made to Mr. Lennon during the

meeting, nor did Lennon II offer testimony that any statements were made.

      The day after the November 3, 2014 meeting, AGL communicated internally

by e-mail about what AGL and Gideo wanted in a change order. The e-mail stated


                                          14
that Gideo was “currently working with an engineer to design the property for a

future development, so he wants to know how much material we will actually be

using.” Svehla was told to “[l]ock it down as a purchase, not borrow, for 100K CY.”

      A few days later, Gideo reported to AGL that Mr. Lennon would not sign

AGL’s Proposed Agreement. Instead, Gideo stated that he and Mr. Lennon had

drawn up another handwritten agreement.               That handwritten agreement

(Development Plan) was a central focus at the trial. Specifically, Gideo testified that

he and Mr. Lennon met at Mr. Lennon’s home where Mr. Lennon instructed Gideo

to use different color ink pens to memorialize their agreement. Gideo testified that

the Development Plan contained a date “11/12/14,” which was the day that the work

would start. The Development Plan stated that Gideo would remove or uproot “all

interior” trees and mulch them, remove a minimum of six inches of top soil, cut a

new grade that drained the Property to the west, and seed the Property with grass.

The Development Plan also stated that “[a]t [c]ompletion Lenoun [sic] gets his

property ready for development[;] Gideo gets trees/mulch borrow/soil and use of

property.” Gideo testified that “Gideo gets borrow/soil” meant that Mr. Lennon had

given him permission to take the soil and sell it to AGL. 9 The Development Plan also

contained the following:




      9
       Gideo and Svehla each testified that “borrow material” means dirt.


                                          15
      PROJECT AGREEMENT DATE
      11-11-2014
      C.E. Lennon (Owner)
      [Gideo’s signature] (Contractor) Greg Gideo

Gideo testified that Mr. Lennon handwrote this portion of the Development Plan,

except the last line where Gideo had signed it, wrote contractor, and printed his name.

Finally, the Development Plan provided, “Estimated completion for Lennon is

12/2015.”

      Lennon II’s trial representative agreed that the Development Plan contained

Mr. Lennon’s handwriting and his signature. Gideo believed that the Development

Plan was an agreement to go forward clearing trees and mulch and selling soil to AGL

to offset his costs of preparing the Property for development. In addition to this

document, Gideo directly testified that Mr. Lennon had given him permission to sell

dirt to AGL. So on November 12, 2014, Gideo, as Southern Underground, signed a

“contract change order” with AGL for an additional 100,000 cubic yards of select fill

at $4.00 per cubic yard ($400,000).

      At trial, Lennon II highlighted an e-mail from the lawyer who worked for AGL

who had drafted AGL’s Proposed Agreement that Mr. Lennon would not sign, in

which the lawyer stated that Mr. Lennon’s refusal to sign AGL’s Proposed Agreement

“[m]akes me worried.” The lawyer then articulated his two concerns: “The two big

(and really only) things I had on there protecting us is 1) the owner warrants that he

owns the property, and 2) that it is understood that we are not obligated to bring back


                                          16
all the material. Regarding 2, its [sic] not to say that we won’t bring it back, but we

don’t want to be liable for refilling his hole . . . .” Finally, the lawyer was critical of

whoever was helping Mr. Lennon: “On a separate note, if the property owner’s

lawyer drafted up what you attached, I feel sorry for the property owner . . . .”

       Subsequently on the same e-mail chain, Svehla addressed these two concerns.

He provided a Denton County Appraisal District link that apparently indicated

Lennon II’s ownership of the Property, and he stated that he had confirmed that

AGL would not be responsible for bringing the select fill back to the Property.

       E. The additional dirt is excavated.

       Gideo testified that as the AGL excavation and dirt removal was being

completed, on multiple occasions Mr. Lennon came to the Property and even drove

his car down through where the dirt was being removed and trucks were being

loaded, and he never complained about what he saw occurring.

       AGL’s corporate representative testified that, in total, Gideo excavated and had

removed 171,333.50 cubic yards of select fill from the Property for AGL’s use, and

AGL had paid Gideo $701,334. Mark Boyd, a civil engineer for Lennon II, calculated

that approximately 178,000 cubic yards of soil had been excavated from the Property

for AGL. Gideo acknowledged at trial that approximately 20,000 more cubic yards of

select fill than had been contractually authorized was removed.




                                            17
      F. AGL obtains Gideo’s permission to place concrete and asphalt on the
      Property.

      Something else began happening in November 2014: AGL began placing steel-

reinforced asphalt and concrete millings and rubble on the Property.10 Svehla was

directly involved in the decision to place asphalt on the Property. He sent Gideo a

text message in December 2014 asking if AGL could dump 100 loads or 800 cubic

yards of dirt and asphalt millings at the Property. A few weeks later Svehla sent

Gideo another text message asking if AGL could place 30,000 square yards of

concrete rubble on the Property. Gideo testified that he gave permission to AGL to

place the asphalt and concrete millings and rubble.

      In total, AGL placed some 68,000 cubic yards of steel-reinforced concrete and

asphalt millings and rubble on the Property. However, Gideo testified that neither he

nor AGL buried anything on the Property.




      10
         Gideo also moved his cows from the Property. Although this formed the
basis of Lennon II’s pleaded breach-of-contract claim (on the theory that Gideo
breached the Cattle-Grazing Agreement by removing his cows from the Property,
thereby causing Lennon II to incur tax penalties from the Property’s losing its
agricultural tax exemption), Lennon II’s trial representative disclaimed that it was
pursuing a breach-of-contract claim on the Cattle-Grazing Agreement, the trial court
directed a verdict that Lennon II take nothing on its breach-of-contract claim, and
Lennon II does not raise an issue on its breach-of-contract claim on appeal.

                                          18
      Gideo also testified that he was unconcerned with the asphalt and concrete

because it was “recyclable” and could be “cleaned up quickly.”11 Indeed, he testified

that he had done similar work with AGL before and that when such a project is

completed, it “look[s] like a park”:

      Q. Okay. Now, we looked -- in those pictures -- in several pictures
      yesterday with materials that were stacked on the property, and there
      were some big asphalt chunks. There were some concrete chunks.
      There was dirt and clay and the like.

            But with respect to the -- the big asphalt chunks that were there
      on the property, did you know -- back at the time when this was
      happening, did you know those items were on the property?

             A. Yes, I did.

            Q. Okay. And were you worried in the slightest about those
      items being on the property at that stage of the project?

             A. No.

      11
        Gideo testified as follows:

      Q. . . . Um, Mr. Gideo, I’ve often heard the phrase, one man’s trash is
      another man’s treasure.

            Is that -- is that analogy or that align -- is that applicable when
      we’re talking about things like dirt, asphalt, rubble or concrete rubble,
      where one property owner might have some and not want it, and a
      contractor, another property owner might want it and need it?

             A. It’s very true.

             Q. And so in this case, Mr. Gideo, the stuff that AGL brought as
      replacement material back to the Lennon property, you don’t regard that
      as construction, quote, unquote, waste, do you?

             A. No, it’s recyclable.

                                         19
             Q. Why not?

             A. It can be cleaned up quickly.

             Q. Had you worked on similar projects with AGL before?

             A. I have.

           Q. And at the end of those projects that you worked on with
      AGL before, what does the property look like?

             A. I’m not sure what you’re asking me.

              Q. Yes, sir. In those other projects that you’ve worked on with
      AGL, when it’s -- whatever state the property is in when you’re in mid-
      project, when it’s all said and done, when you’re allowed to complete the
      project and it’s all said and done, what have those pieces of land looked
      like at the end?

             A. They look like a park. They’re beautiful.

      G. Mr. Lennon’s son comes home.

      In September 2015, Mr. Lennon’s son, Glen, an arborist, returned from

Australia, where he had lived since 1978. Glen indicated that the reason he returned

was to help manage his father’s affairs because his father had fallen and broken his hip

in September of 2015. 12

      When Glen visited the Property, he was upset to find that the Property had all

kinds of heavy equipment on it and looked “like chaos.” According to Glen, the

center of the Property had been “cored” and there were holes that had been dug and


      12
        Glen also testified that Mr. Lennon had previously had cancer surgery on
June 9, 2014, to remove his bladder.

                                          20
left unfilled and mounds of dirt and debris. Glen also saw the J.D. Abrams concrete

batch. When he was provided with the J.D. Abrams Contract, he saw that it was

signed by Gideo as the owner. When Glen met with Gideo to find out the scope of

his authorization and if Gideo had a “legitimate lease” regarding the Property, Gideo

only produced “a drawing”:

      Q. Where did you meet with Mr. Gideo?

              A. I and my wife met him at IHOP[®] on 35 right next to Swisher
      Road.

              Q. And your wife’s Wendy, correct?

              A. Yes.

            Q. All right. And what was the purpose of meeting with
      Mr. Gideo in September of 2015?

            A. We wanted to know -- I wanted to know if Greg had a lease
      with my father, a legitimate lease that showed a term and time he could
      be on the land and determine limitations of what he could and couldn’t
      do on the land.

              Q. Okay. And -- and did he have a lease with your father?

              A. He gave us a drawing.

           Q. All right. And did the drawing provide for any kind of lease
      payments?

              A. No.

             Q. And did the drawing have any kind of term, like how long the
      lease would last?

              A. No.


                                          21
              Q. And did the -- did the drawing contain any -- any benefits that
        Mr. Gideo would be able to remove from the land?

               A. I think it showed Abrams was going to remove 20,000 cubic
        yards and replace it, and he was -- I can’t recall.

              ....

              Q. In response to your meeting in September of 2015 with Mr.
        Gideo at IHOP[®], what did you do?

              A. I said, is that all you have? He said yes.

        H. Lennon II files suit and enjoins Gideo from any further activity on
        the Property.

        Shortly after his meeting with Gideo, Glen filed suit for Lennon II against

Appellees, alleging, inter alia, claims for conversion, trespass, fraud, and exploitation

of the elderly. Glen testified that he was concerned about the welfare of the Property

and that it was being taken advantage of and damaged.           Lennon II obtained a

temporary restraining order that stopped all of Gideo’s activity on the Property.

Gideo testified that he was stopped at 25% completion of the Development Plan but

that he was willing to finish the project. Gideo eventually filed a counterclaim for

breach of the Development Plan. The trial court granted summary judgment in favor

of Gideo on Lennon II’s exploitation of the elderly claim, and the parties proceeded

to trial.

        I. The case proceeds to trial.

        The trial lasted from February 5, 2018, to February 20, 2018, with live

testimony from fifteen witnesses and approximately 200 exhibits admitted into

                                            22
evidence. At the time of trial, Mr. Lennon was 95 years old, and he did not testify in

person or by deposition.      The trial court sustained Appellees’ objections to the

admission of evidence concerning Mr. Lennon’s out-of-court statements and any

discussion concerning Mr. Lennon’s health, and Lennon II does not appeal these

evidentiary rulings.

       J. Lennon II’s damage claims.

       Among other things, Lennon II sought damages for the costs of having the

Property restored to its prior condition, the loss of value to the Property, and for the

value of the 170,000 cubic yards of select fill. Thus, Lennon II put on extensive

testimony from a civil engineer, an environmental contractor, and a real estate

appraiser.

       Gideo testified that the select fill could have value to one person but no value

to another. The director of Denton’s Solid Waste Department testified that common

fill soil sells for $375 per ton. The environmental contractor could not provide a

specific price for select fill. And as quoted above, with regard to the $4.00 per cubic

yard paid by AGL to Gideo, Svehla testified that the amount included Gideo’s costs

for excavating and loading the dirt for transport, which the AGL Contract confirmed.

       K. The jury returns a mixed verdict on the questions it was asked.

       After the close of Lennon II’s case-in-chief, the trial court directed a verdict for

all Appellees on Lennon II’s claims for breach of contract, negligence, fraud by

nondisclosure, fraud by misrepresentation, and alter ego.

                                            23
      The trial court submitted fourteen questions to the jury as to Gideo and AGL

only.13 In response to Question 1, “Did any of the following trespass on Lennon II’s

property?” the jury answered “No” for both Gideo and AGL. However, in response

to Question 7, “Did GIDEO convert property belonging to LENNON II?” and

Question 8, “Did AGL convert property belonging to LENNON II?” the jury

answered “Yes” to both. In response to Question 9, “Was AGL . . . a bona fide

purchaser for value of the Property?” the jury answered “Yes.” In response to

Question 10, “What was the fair market value of the property converted at the time of

the Conversion?” the jury answered “$0.00.” The jury also found that Gideo and

Lennon II had agreed that Gideo would clear, level, and alter the grade of the

Property to make it ready for development in exchange for Gideo’s use of the land

and that Lennon II had performed under that agreement. In accord with the jury’s

verdict, the trial court rendered a take-nothing final judgment on all claims and

counterclaims.

      As noted, Lennon II raises five issues on appeal contending (1) that the jury’s

finding of $0.00 for the fair market value of the converted property was against the

great weight and preponderance of the evidence, (2) that it was error to submit a

question on whether AGL was a bona fide purchaser for value because it is not a


      13
        Although Lennon II’s proposed charge defined “Gideo” to include both
Gideo and Southern Underground and “AGL” to include AGL, Archer, Granite, and
Lane, the charge given did not. Lennon II does not complain about the omissions of
the other parties from the charge on its remaining claims.

                                         24
defense to conversion as a matter of law, (3) that the jury’s finding of no trespass was

against the great weight and preponderance of the evidence, (4) that the trial court

erred by submitting a question on whether there was an agreement between Gideo

and Mr. Lennon without submitting a question on the agreement’s primary purpose,

and (5) that the trial court erred by directing a verdict that Lennon II take nothing on

its fraud claims.

             III. DIRECTED VERDICT ON LENNON II’S FRAUD CLAIMS

       We begin with Lennon II’s fifth issue because the resolution of it may impact

the remaining four issues. Lennon II contends that the trial court erred in directing a

verdict on its fraudulent misrepresentation claim and fraud by nondisclosure claim.

We note at the outset that our review is hampered by the fact that Lennon II’s initial

brief gave few specific examples of misrepresentations supported by record citations.

Lennon II did attempt to narrow its focus in the reply briefs, but even then,

Lennon II failed to support many of its assertions with record citations. And in

neither its initial brief nor its reply briefs does Lennon II cite authority for a legal duty

of disclosure from any of Appellees. 14

       The record also presented a hurdle to Lennon II’s fraud claims. Mr. Lennon

did not testify or participate in trial. Lennon II’s corporate representative Michael

       14
         Lennon II’s briefing also fails to clearly identify the evidence ostensibly
supporting each element of the fraud claims despite that when appealing a directed
verdict, “the appellant carries the burden of establishing that he presented some
evidence on each element of his cause of action.” Ojeda v. Wal-Mart Stores, Inc., 956 S.W.2d
704, 707 (Tex. App.—San Antonio 1997, pet. denied) (emphasis added).

                                             25
Carter testified that he was unaware of any dealings or communications between

Gideo and Mr. Lennon from 2008 through 2015. Gideo and AGL representatives

testified, all of whom affirmed that Mr. Lennon appeared to be in agreement with the

development. Therefore, we note at the outset the difficulty that Mr. Lennon’s

absence posed to Lennon II’s ability to prove its fraud claims: it had to present

evidence supporting either a misrepresentation or partial representation requiring the

disclosure of additional information without the benefit of testimony from the person

to whom the alleged false statements were directed. That is, without Mr. Lennon

there to dispute Gideo’s and AGL’s account of the events that transpired, no

probative evidence was ultimately adduced to warrant submission of Lennon II’s

fraud claims to the jury.

      Also problematic for Lennon II was the Development Plan, which in very

broad terms provided Gideo the “trees/mulch,” “borrow/soil,” and “use of

property.” The Development Plan then called for a completion date of “12/2015.”

Although Lennon II complains about the condition of the Property when Glen came

home, that was four months before Gideo’s completion date.               Thus, while

Lennon II’s real estate appraiser testified that none of the excavation that had been

done increased the Property’s value, we consider that in light of the fact that the

project was still four months away from the agreed-upon completion date and

Gideo’s testimony that he was only 25% done, that when he had finished similar

projects they looked “like parks,” that the concrete and asphalt that had been placed

                                         26
on the Property were recyclable and easy to move, and that the Development Plan

provided Gideo wide latitude with respect to his “use” of the Property. Indeed, the

evidence shows that just as Gideo testified, Mr. Lennon turned the Property’s

development over to Gideo with the caveats that the development be completed by

December 2015 and that Lennon II would not pay out of pocket for tree removal,

grading, and seeding. And just as he had done with J.D. Abrams, Mr. Lennon

authorized Gideo to deal with AGL. 15

       For the reasons we will articulate, we conclude that the trial court did not err by

directing a verdict that Lennon II take nothing from any of Appellees on its fraud

claims.

       A. Standard of review

       In reviewing the grant of a directed verdict, an appellate court follows the

standards for assessing the legal sufficiency of the evidence. City of Keller v. Wilson, 168

S.W.3d 802, 809–28 (Tex. 2005); see also Exxon Mobil Corp. v. Kinder Morgan Operating

L.P. “A”, 192 S.W.3d 120, 126 (Tex. App.—Houston [14th Dist.] 2006, no pet.). In


        Although Lennon II at times appears to argue that Gideo fraudulently
       15

induced Mr. Lennon to enter into the Development Plan, our conclusion would not
change under that theory because “[f]raudulent inducement is a species of common-
law fraud that shares the same basic elements,” which includes a material
misrepresentation. Anderson v. Durant, 550 S.W.3d 605, 614 (Tex. 2018). And in that
context, the misrepresentation is “a false promise of future performance made with a
present intent not to perform.” Id. Again, without testimony from Mr. Lennon, the
record is simply devoid of any such misrepresentation; we don’t know what Gideo
promised Mr. Lennon, if anything, that may have induced him to enter into the
Development Plan.

                                            27
determining whether the evidence is legally sufficient, 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. City of Keller, 168 S.W.3d at 822, 827; see also Exxon Corp.

v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011) (op. on reh’g). An

appellate court must credit favorable evidence if reasonable jurors could and disregard

contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 827;

see also Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 696 (Tex. App.—Fort

Worth 2006, pet. denied). An appellate court must determine whether there is any

evidence of probative force to raise a fact issue on the question presented. See, e.g.,

Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex. 2004); Szczepanik v.

First S. Tr. Co., 883 S.W.2d 648, 649 (Tex. 1994) (per curiam); Sibai v. Wal-Mart Stores,

Inc., 986 S.W.2d 702, 705 (Tex. App.—Dallas 1999, no pet.); Edlund v. Bounds, 842

S.W.2d 719, 723 (Tex. App.—Dallas 1992, writ denied) (op. on reh’g).

       A directed verdict is warranted when the evidence is such that no other verdict

can be rendered and the moving party is entitled, as a matter of law, to a judgment.

See Edlund, 842 S.W.2d at 723–24. A trial court may order a directed verdict in favor

of a defendant when (1) a plaintiff fails to present evidence raising a fact issue

essential to the plaintiff’s right of recovery or (2) the plaintiff admits or the evidence

conclusively establishes a defense to the plaintiff’s cause of action. See Prudential Ins. of

Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).

                                             28
       B. Applicable law

              1. Fraudulent misrepresentation

       A plaintiff seeking to prevail on a fraud claim must prove that (1) the defendant

made a material misrepresentation; (2) the defendant knew the representation was

false or made the representation recklessly without any knowledge of its truth; (3) the

defendant made the representation with the intent that the other party would act on

that representation or the defendant intended to induce the party’s reliance on the

representation; and (4) the plaintiff suffered an injury by actively and justifiably relying

on that representation. Exxon Corp., 348 S.W.3d at 217.

              2. Fraud by nondisclosure

       Fraud by nondisclosure is a subcategory of fraud, which occurs when a party

has a duty to disclose certain information and fails to disclose it. Schlumberger Tech.

Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997). But the mere failure to disclose

information is not sufficient to establish a fraud claim.          A predicate must be

established that imposes an obligation to disclose.              To establish fraud by

nondisclosure, the plaintiff must show that (1) the defendant deliberately failed to

disclose material facts; (2) the defendant had a duty to disclose those facts to the

plaintiff; (3) the plaintiff was ignorant of the facts and did not have an equal

opportunity to discover them; (4) the defendant intended the plaintiff to act or refrain

from acting based on the nondisclosure; and (5) the plaintiff relied on the

nondisclosure, which resulted in injury. Bombardier Aerospace Corp. v. SPEP Aircraft

                                            29
Holdings, LLC, 572 S.W.3d 213, 219–20 (Tex. 2019); Walterscheid v. Walterscheid, 557

S.W.3d 245, 261 (Tex. App.—Fort Worth 2018, no pet.) (citing Blankinship v. Brown,

399 S.W.3d 303, 308 (Tex. App.—Dallas 2013, pet. denied)).

       Generally “there is no duty to disclose without evidence of a confidential or

fiduciary relationship.” Bombardier Aerospace Corp., 572 S.W.3d at 220 (citing Ins. of N.

Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998)). A confidential relationship is one in

which the parties have dealt with each other in such a manner for a long period of

time that one party is justified in expecting the other to act in its best interest. Id.; see

also Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex. 2005) (per curiam). “A fiduciary duty

arises as a matter of law in certain formal relationships, including attorney-client,

partnership, and trustee relationships.” Bombardier Aerospace Corp., 572 S.W.3d at 220

(internal quotation marks omitted). An informal relationship giving rise to a duty may

also be formed from “a moral, social, domestic[,] or purely personal relationship of

trust and confidence.” Meyer, 167 S.W.3d at 331. But there may also be a duty to

disclose when the defendant (1) discovered new information that made its earlier

representation untrue or misleading; (2) made a partial disclosure that created a false

impression; or (3) voluntarily disclosed some information, creating a duty to disclose

the whole truth. See, e.g., Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners, 237

S.W.3d 379, 385–87 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Citizens Nat’l

Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 477 (Tex. App.—Fort Worth 2004, no

pet.) (op. on reh’g).

                                             30
      C. Analysis

      Lennon II’s fraud arguments complain only about unspecified conduct of

Gideo and AGL, not any of the other Appellees. Thus, we will examine the fraud

issue separately with respect to Gideo and AGL. The fraud question that Lennon II

requested did not attempt to hold one defendant liable for the allegedly fraudulent

acts of the other. In other words, the question only inquired about the separate acts

of fraud by each defendant. Though Lennon II did submit proposed questions on

conspiracy with respect to Gideo and AGL, the trial court refused to submit those

questions.   Further, the trial court had granted AGL’s no-evidence motion for

summary judgment on the conspiracy claims. Lennon II does not challenge these

rulings on appeal.

             1. AGL

                     a. No evidence of a misrepresentation

      The first element of a fraudulent misrepresentation claim requires a

misrepresentation.    Without the benefit of Mr. Lennon’s testimony at trial, this

element proved to be too high a hurdle for Lennon II to overcome. No testimony

was elicited from Svehla about any representations he made to Mr. Lennon at the

November 3, 2014 meeting regarding either the additional 100,000 cubic yards of

select fill or placing steel-reinforced concrete and asphalt millings and rubble on the

Property.



                                          31
         The only representation in the record that we found from AGL to Mr. Lennon

was from Swesey in which he agreed that at the November 3, 2014 meeting, he had

told Mr. Lennon that AGL was “sav[ing] Mr. Lennon a fortune” because, as Swesey

told Mr. Lennon, “[I]t’s lucky we need this particular material while you’re developing,

or it would cost you $8 to $10 a cubic yard to remove it.” Swesey was then asked,

“[W]hat you told him as far as it saving him a fortune, was that true?” He answered,

“Yes.”      No one contradicted him.       Therefore, there was no evidence of a

misrepresentation by AGL to Mr. Lennon.

         Accordingly, because less than a scintilla of evidence supported that AGL made

a material misrepresentation to Lennon II, the trial court did not err by directing a

verdict in favor of AGL on Lennon II’s fraudulent misrepresentation claim. See

Guevara v. Lackner, 447 S.W.3d 566, 575–77 (Tex. App.—Corpus Christi–Edinburg

2014, no pet.) (affirming summary judgment on fraud claim because no evidence

supported that defendant had made an affirmative, material misrepresentation).

                      b. No evidence of a duty to disclose

         With respect to fraud by nondisclosure, the second element requires a duty to

disclose, and there is no general duty of disclosure absent a fiduciary or confidential

relationship or unless necessary to correct or complete a prior representation.

Lennon II inventories a number of facts that AGL allegedly failed to disclose to

Mr. Lennon but again never tells us what triggered a duty to disclose these facts. No

fiduciary or confidential relationship between Lennon II and AGL was pleaded,

                                           32
proved at trial, or asserted in Lennon II’s appellate briefing. Nor does Lennon II

specifically assert on appeal that AGL had a duty to disclose based on a prior

representation.

      In analyzing a fraud claim in which the appellant had failed to identify the

elements being challenged, the Dallas Court of Appeals recently noted that “[b]riefs

are meant to acquaint the Court with a case’s subject matter,” so they “should not

require the Court ‘to connect unrelated dots, hunt down relevant authority, or

speculate as to what exactly it is a party is attempting to argue or what relief it is

requesting.’” Great Hans, LLC v. Liberty Bankers Life Ins., No. 05-17-01144-CV, 2019

WL 1219110, at *6 n.6 (Tex. App.—Dallas Mar. 15, 2019, no pet.) (mem. op.)

(quoting Brazos Elec. Power Coop., Inc. v. Texas Comm’n on Envtl. Quality, 538 S.W.3d 666,

700 (Tex. App.—El Paso 2017), rev’d on other grounds, 576 S.W.3d 374 (Tex. 2019)).

We share this sentiment with respect to Lennon II’s briefing on its fraud by

nondisclosure claim. However, notwithstanding Lennon II’s failure to identify the

basis from which AGL had a duty to disclose, we analyze the relevant options and

conclude none are supported by a scintilla of evidence.

      Lennon II highlights AGL’s representatives’ silence during the November 3,

2014 meeting as demonstrating an actionable fraud by nondisclosure. But the parties’

locations at the meeting—with both AGL representatives sitting in the back seat and

Mr. Lennon and Gideo sitting in the front seat—actually underscores that AGL had

no relationship with Lennon II that gives rise to a duty to disclose. In our review of

                                           33
the entire trial record, we glean no facts that give rise to any fiduciary or confidential

relationship between AGL and Lennon II that could establish a duty to disclose.

Testimony that Mr. Lennon had his own lawyer review the AGL Proposed

Agreement before he chose not to sign it also supports that this was an arm’s length

business transaction from which no duty of disclosure arose.

      Lennon II contended that AGL acted tortiously by taking soil from the

Property and dumping asphalt and concrete materials on it. A party may commit a

tort but still not be liable for a misrepresentation. The trial court submitted two tort-

based causes of action based on AGL’s alleged wrongs: trespass and conversion. But

the third tort-based claim—fraud—required more than AGL’s allegedly doing

something that it was unauthorized to do. Fraud requires either a misrepresentation

or a failure to disclose when a duty to disclose has arisen. Here, the interactions

between AGL and Mr. Lennon were extremely limited. There may have been facts

that AGL knew that Mr. Lennon did not know.16 But again, fraud requires proof


      16
        Though a minor matter, Lennon II tells us in its opening brief that AGL’s
representatives denied that there was a discussion of the development of the Property
between Mr. Lennon and Gideo during the November 3, 2014 meeting. Lennon II
made a similar assertion to the trial court: “Mr. Gideo testified that they talked about
the development of the [P]roperty [at the meeting]. Both AGL representatives denied
that that occurred.” Though not completely clear why this matter is highlighted, we
assume that it is raised as evidence of a claim that Mr. Lennon was in the dark about
the plans for the Property or that he did not show any desire to develop the Property.

       But the record indicates that each of AGL’s representatives heard Mr. Lennon
discuss the development of the Property. Svehla testified as follows:


                                           34
AGL misrepresented facts to Mr. Lennon or was obliged to disclose what it knew to

him. In these regards, the record contains no evidence of a misrepresentation-based

cause of action. See Citizens Nat’l Bank, 142 S.W.3d at 477.



      Q. And Mr. Lennon was concerned about saving trees around the pond
      and on the front of the property where it faced Swisher Road, correct?

             A. Yes, sir.

      Swesey also testified that Mr. Lennon discussed various aspects of the
development of the Property, including which trees would remain:

      Q. Okay. Do you recall Mr. Lennon being adamant about leaving trees
      on the Swisher Road frontage?

             A. Yes.

            Q. Do you recall him being adamant about leaving the trees on
      the west side of the property?

             A. Not all the trees, but some trees.

             ....

            Q. And is it fair to say that during that drive-around, Mr. Lennon
      was actively involved in what was going on?

             A. Yes.

              Q. And so he was the one that was pointing out, you know, these
      trees have to be saved, and these trees over here have to be saved, and
      this is the way I want the ground to be sloped when y’all are done with
      this work. Is that correct?

             A. He didn’t say anything about how he wanted the ground to be
      sloped. But, yes, he was directing us about the Greenscape areas and the
      trees.

                                           35
       Accordingly, the trial court did not err by directing a verdict on Lennon II’s

fraud by nondisclosure claim against AGL.

              2. Gideo

                     a. No evidence of a misrepresentation

       Even without Mr. Lennon’s testimony, Gideo’s contention on appeal that there

was “no evidence of any representation by Gideo to Lennon at all” is incorrect. That is because

Gideo himself testified to certain representations he made to Mr. Lennon.                 For

example, Gideo testified that he told Mr. Lennon that the cost of clearing and grading

the Property would be $1 million: “But I told him -- I said, you know what? I threw

this at him. I said, for, you know, a $1,000,000, you can get the [Property] cleaned up

or trees gone. You can get some grading planned, get a good idea what you’re going

to do.” Gideo also testified that he told Mr. Lennon that he could grind and mulch

trees from the Property and then sell them to help pay for the cost of developing the

Property: “I said, you know, if I grind [the trees], I’m going to turn them into

compost, and I’m going to -- I’m going to sell them. And then that’s one way, you

know, I can get the grading done and get -- get this ready for development.”

       Evidence of these representations notwithstanding, it is a misrepresentation that is

required to support a fraud claim.          And in that respect, Gideo is correct that

Lennon II presented “no evidence of any misrepresentation by Gideo to

Lennon [II].” There was no evidence that Gideo’s above-quoted statements were

false. Moreover, no evidence was elicited that Gideo had told Mr. Lennon that

                                              36
Lennon II would be paid for the removal and sale of the select fill. No evidence was

elicited that Gideo had told Mr. Lennon that Gideo would not profit or retain the

proceeds from the sale of the dirt. And no evidence was elicited that Gideo had told

Mr. Lennon that no concrete or asphalt would be placed on the Property while Gideo

was completing grading and development of the Property as provided in the

Development Plan.

      Further, direct evidence supported that Gideo had made no material

misrepresentation to Mr. Lennon.     Gideo himself testified that he had “[n]ever,

never” lied to Mr. Lennon. Lennon II, through its corporate representative, Mr.

Carter, conceded on cross examination that it had no knowledge of any false

statements Gideo made to Mr. Lennon:

      Q. And you claim that Gregory Gideo committed fraud, don’t you?

            A. Yes, I do.

            Q. But the truth, sir, is that you don’t know anything about the
      conversations between Everett Lennon and Gregory Gideo, do you?

            A. No, I don’t, but I do know my conversations with him.

            ....

            Q. (BY [GIDEO’S COUNSEL]) Sir, you don’t know anything
      about Mr. Gideo’s and Everett Lennon’s relationship between 2008 and
      2015, do you?

            A. No, I don’t.

           Q. Yet not knowing anything about those conversations and not
      knowing anything about their relationship, you allege fraud, right?

                                        37
             A. That’s correct.

             ....

             Q. (BY [GIDEO’S COUNSEL]) My question to you, sir, is you
      can’t tell us a single thing that Greg Gideo allegedly said that was untrue
      or misleading, can you?

             A. No.

And AGL’s internal e-mail revealed that Gideo had informed Svehla in November

2014 that Gideo was “currently working with an engineer to design the property for a

future development.” This statement to a third party suggests that Gideo was indeed

developing the Property as he had agreed.

      Accordingly, because no evidence supported that Gideo made a material

misrepresentation to Lennon II, the trial court did not err by directing a verdict in

favor of Gideo on Lennon II’s fraudulent misrepresentation claim. See Guevara, 447

S.W.3d at 575.

                    b. No evidence of a duty to disclose

      Lennon II’s appellate briefing of its fraud by nondisclosure claim with respect

to Gideo suffers the same problem as its briefing with respect to AGL: it does not

specifically identify the basis of Gideo’s duty to disclose, the second element of the

claim. However, just as we did above, we analyze the relevant options that would

create a duty of disclosure and find them wanting.




                                            38
      Although Gideo testified that he had a close relationship with Mr. Lennon—

frequently eating out together and even having Mr. Lennon over for Thanksgiving

dinner—“even a longstanding relationship of friendship or cordiality is insufficient,

without more, to establish an informal fiduciary relationship.” Lee v. Hasson, 286

S.W.3d 1, 15 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Gideo testified

that Mr. Lennon wanted to memorialize their agreements in writing because “this is

what this guy does.” The circumstances of these documents, which according to

Gideo were hand drawn at Mr. Lennon’s instruction, do not demonstrate a

relationship of trust and confidence that would give rise to a duty to disclose. See

Schlumberger Tech. Corp, 959 S.W.2d at 177 (holding that “mere subjective trust does not

. . . transform arm’s-length dealing into a fiduciary relationship”). Therefore, while

Lennon II’s appellate briefing contains no assertion of a fiduciary relationship

between Gideo and Mr. Lennon that would give rise to a duty to disclose, in the

interest of thoroughness, we briefly analyze and conclude that no such fiduciary

relationship is supported on this record.

      If Lennon II’s theory is that Gideo had a duty arising out of a previous

representation, the theory is unsupported by any probative evidence.          The few

representations Gideo made to Mr. Lennon—i.e., that it would cost $1 million to

prepare the Property for development and that he could grind and sell the trees as a

way to help pay for the development and grading—were not shown to be false, did

not create a false impression, and did not otherwise create a duty to disclose any

                                            39
additional information regarding the sale of the additional 100,000 cubic yards of

select fill or the placing of concrete and asphalt millings and rubble.

      Further, the Development Plan provided Gideo wide latitude, without any

apparent restrictions, to “use” the Property and have the dirt and mulch.           In

exchange, he would complete the development by December 2015. Nothing in the

Development Plan or any testimony at trial demonstrated that Gideo needed to check

in or update Mr. Lennon on the day-to-day sausage-making involved in the

development and excavation that was taking place. Instead, this arrangement seemed

in accord with Mr. Lennon’s desire to have the Property prepared for development by

December 2015 and at no out-of-pocket cost to Lennon II.

       Because there was no evidence to support that Gideo had a duty to disclose,

the trial court did not err by directing a verdict in his favor on Lennon II’s fraud by

nondisclosure claim.

             3. No reliance

      As a further and alternative holding, we also conclude that a directed verdict

was proper because Lennon II failed to put on more than a scintilla of evidence to

support the justifiable reliance element of both fraud claims. See Bombardier Aerospace

Corp., 572 S.W.3d at 220 (reciting reliance on the nondisclosure as element of fraud by

nondisclosure); Exxon Corp., 348 S.W.3d at 217 (reciting that the plaintiff must

actively and justifiably rely on the misrepresentation to support fraud claim).



                                            40
      A plaintiff establishes reliance by showing the defendant’s acts and

representations induced him to act, or refrain from acting, to his detriment. Worldwide

Asset Purchasing, L.L.C. v. Rent–A–Center E., Inc., 290 S.W.3d 554, 566 (Tex. App.—

Dallas 2009, no pet.). Lennon II’s argument is that Mr. Lennon would not have

agreed to let Gideo develop the Property under the Development Plan if he had

known that Gideo was going to make $700,000 on the sale of the select fill, that the

Property was going to be excavated such that it created a pond, that Gideo was going

to accept concrete and asphalt millings and rubble on the Property, and that Gideo

was going to remove his cows and cause the Property to lose its agricultural tax

exemption.

      But,

          • there was no testimony or evidence to show that Mr. Lennon expected

             Gideo to develop the Property for free. Indeed, Gideo testified that Mr.

             Lennon did not want to pay to develop the Property and that he wanted

             Gideo to make money on the dirt and mulch in exchange for the

             development.

          • there was no testimony or evidence to show that Mr. Lennon expected

             the excavation and removal of soil would not cause significant,

             temporary holes on the Property, even to the point of creating a small

             pond. Indeed, Gideo testified that Mr. Lennon visited the Property on



                                          41
             multiple occasions and even drove down into holes without objecting to

             what he saw. And

          • there was no testimony or evidence that Mr. Lennon expected Gideo to

             prevent AGL from temporarily placing materials on the Property, or that

             he expected this development to occur with Gideo’s cows remaining on

             the Property.    Indeed, Lennon II’s trial representative testified that

             Lennon II was not pursuing a breach of contract claim against Gideo for

             breach of the Cattle-Grazing Agreement. And Gideo testified that he

             had no knowledge whatsoever that the Property had an agricultural tax

             exemption.

      Without the benefit of such evidence, any assertion of Lennon II’s reliance is

based solely on speculation and “[s]peculation is not evidence.” Hurley v. Tarrant Cty.,

232 S.W.3d 781, 787 (Tex. App.—Fort Worth 2007, no pet.). Thus, because no

evidence of reliance was adduced at trial, it was proper for the trial court to direct a

verdict that Lennon II take nothing on its fraud claims against all Appellees.

      Accordingly, we overrule Lennon II’s fifth issue.

                      IV. $0.00 FAIR MARKET VALUE FINDING

      Having overruled Lennon II’s fifth issue, we turn now to its first.

      Lennon II’s argument in support of its first issue is that because the jury found

that Gideo and AGL converted select fill from Lennon II, a finding of $0.00 for the



                                           42
fair market value of the converted property must be reversed because it is against the

great weight and preponderance of the evidence.

      The essence of Lennon II’s argument is that a finding of conversion requires

an award of some amount as damages: “The trial court erred in rendering judgment

on this verdict because the undisputed evidence is that the converted property had

value, which supports a finding that Lennon [II] incurred some damages. . . . Where

the evidence establishes a conversion injury, the jury must award some amount of damages.”

[Emphasis added.] To support its proposition, Lennon II cites us a plethora of

personal injury cases that stand for the principle that when a measure of damages is

unliquidated, a jury cannot disregard objective evidence of injury and simply not

assess any damages in the face of that evidence. But a different principle applies in

this case. The jury was asked to determine the fair market value of the property that

was converted and was given a definition of fair market value. The record below

lacks evidence of what the fair market value was for select fill material removed from

the Property and, thus, lacked the data necessary for the jury to answer the question

presented to it. We cannot fault the jury for failing to make a computation of

damages when it was not given the data necessary to make that computation.

      A. Standard of Review

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing all

the pertinent record evidence, we determine that the credible evidence supporting the

                                           43
finding is so weak, or so contrary to the overwhelming weight of all the evidence, that

the finding 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). When the party with the

burden of proof appeals from a failure to find, the party must show that the failure to

find is against the great weight and preponderance of the credible evidence. Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Cropper v. Caterpillar Tractor Co.,

754 S.W.2d 646, 651 (Tex. 1988); see Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d

680, 681–82 (Tex. 2006).

       B. A conversion finding does not require the jury to award some
       damages.

       Lennon II’s contention that “[w]here the evidence establishes a conversion

injury, the jury must award some amount of damages” is an incorrect statement of

law. Indeed, a party cannot leave the jury in the dark by failing to present evidence to

establish the fair market value of converted property and then challenge the finding

that reflects the jury’s refusal to assess damages that required the data to assess.

       For example, in R.J. Suarez Enterprises Inc. v. PNYX L.P., the Dallas Court of

Appeals was presented with an appeal from “the portion of the trial court’s final

judgment finding in its favor on its claim for conversion, but ordering that it take-

nothing in its suit against [the defendants].” 380 S.W.3d 238, 240 (Tex. App.—Dallas

2012, no pet.). Suarez Enterprises owned a sandwich shop but had decided not to


                                            44
renew its lease. Id. at 241. Suarez Enterprises and the landlord disagreed over the

ownership of the following items: a walk-in cooler, walk-in freezer, sandwich unit,

beverage cooler, and ice machine. Id. The new tenant then took control over most of

the disputed items. Id. Suarez Enterprises filed suit alleging, inter alia, a claim of

conversion of the disputed items. Id. at 242. After a bench trial, the court found in

favor of Suarez Enterprises on its claim for conversion but ordered that it take

nothing on its claim. Id. Interestingly, the trial court made a finding that at the time

of the conversion the disputed property did have some market value but that Suarez

Enterprises had not presented any evidence on the fair market value of the disputed

property and had “merely presented value of replacement cost.” Id. at 247. On

appeal, Suarez Enterprises challenged, inter alia, the finding of zero damages. Id. at

242.

       The Dallas Court of Appeals began with the proposition that “[e]ven when

there is evidence supporting a finding of conversion, there must be evidence of the fair market

value of the converted property to support a damages award.” Id. (emphasis added) (citing

Ayala v. Valderas, No. 02-07-00134-CV, 2008 WL 4661846, at *5–6 (Tex. App.—Fort

Worth Oct. 23, 2008, no pet.) (mem. op.)). But Suarez Enterprises had presented

evidence of replacement costs only, and the Dallas Court of Appeals could not “agree

with Suarez Enterprises[’] contention that replacement value and fair market value are

identical.” Id. at 247. Thus, the Dallas Court of Appeals concluded that the trial

court’s finding that Suarez Enterprises take nothing on its claim for conversion—even

                                              45
in light of its findings that a conversion occurred, that the converted property had

“some market value,” and that Suarez Enterprises presented evidence of replacement

cost—was not against the great weight and preponderance of the evidence. Id. We

read this case as standing for the proposition that a conversion finding does not

require an award of damages if damages are not supported by the evidence. See id.;

United Mobile Networks, L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997) (per curiam)

(“A plaintiff must prove damages before recovery is allowed for conversion.”).

      Indeed, the principle that we invoke is found not only in Suarez Enterprises but

in authority from this court cited by Suarez Enterprises. Ayala, 2008 WL 4661846, at

*6. Ayala dealt with the mirror image of Lennon II’s appellate point; the claim in

Ayala was that the jury finding quantifying damages was not supported by factually

sufficient evidence. This court sustained the factual sufficiency challenge because the

record did not contain evidence of the fair market value of the converted property:

      The jury’s damages award is based on [the plaintiff’s] “List of Claims,”
      not Ayala’s testimony regarding the value of the items that she sold.
      Consequently, although the jury had broad discretion to award damages within the
      range of evidence presented at trial, a rational basis does not exist for its calculation
      because the award is not appropriately based on the fair market value of the property
      at the time of the conversion. We hold that the evidence is factually
      insufficient to support the jury’s damages award.

Id. (emphasis added). We read Ayala as requiring evidence directed to the fair market

value of the converted property as a necessary prerequisite to an award of damages in

a conversion claim.



                                                46
      The case that we relied on for our holding in Ayala reinforces this proposition.

See Bishop v. Geno Designs, Inc., 631 S.W.2d 581, 584 (Tex. App.—Tyler 1982, no writ).

Bishop summarized the need for evidence of the market value of the converted

property as follows:

      The measure of damages in a conversion case is the value of the
      property converted at the time of the conversion, with legal interest.
      Imperial Sugar Co. v. Torrans, 604 S.W.2d 73, 74 (Tex. 1980). It is essential
      that the market value of the property at the place and on the day of
      conversion be established to recover. Engineered Plastics, Inc. v. Woolbright,
      533 S.W.2d 906, 908 (Tex. Civ. App.—Tyler 1976, no writ).
      Compensatory or actual damages are not measured in a conversion case
      by the price at which the goods in question were sold by the defendant
      but by market value at place and time of conversion. 15 Tex. Jur.3d
      Conversion [§] 44 (1981). The court in Jackson v. Taylor, 166 S.W. 413
      (Tex. Civ. App.—Fort Worth 1914, no writ), held that evidence that an
      alleged converter sold the [converted] property at a certain price was
      inadmissible. Id. at 414.

Id. Bishop applied the need for evidence of fair market value in a fashion that has

direct application to our holding in this appeal: “Although we believe there is some

evidence in the record to support the jury finding that Bishop converted Geno’s

property, we do not believe that the proper measure of damages was proved.” Id.

      Lennon II has failed to support the application of the so-called zero-damages

rule to the instant conversion case. Indeed, even when there is evidence supporting a

finding of conversion, “there must be evidence of the fair market value of the

converted property to support a damages award.” Suarez Enterprises, 380 S.W.3d at

242. And even when there is evidence of some value but not the proper type of

value, we are not required to remand rather than render judgment. See id. at 247;

                                           47
United Mobile Networks, L.P., 939 S.W.2d at 148 (“Because UMN did not offer any

competent evidence to support its damages claim for conversion, we reverse the court

of appeals’ judgment in part and render judgment that UMN take nothing against the

Deatons.”).

       C. None of Lennon II’s authorities are conversion cases.

       We have carefully analyzed the cases Lennon II relies on. Those cases—

including a page of string-cited cases—in support of the proposition that the jury

could not return a $0.00 fair-market-value finding after it had found Gideo and AGL

had converted Lennon II’s property are inapplicable. Almost every case cited therein

concerned a zero-damages award in the context of a personal injury case in which the

plaintiff had suffered objective and undisputed bodily injuries.17 The only case cited by


       17
         See Pool, 715 S.W.2d at 630 (involving “products liability action arising out of
an alleged defect that caused [the driver’s] pick-up truck to go out of control” and
caused the driver to sustain “serious head injuries when his truck ran off the road and
collided with a tree”); Lowery v. Berry, 269 S.W.2d 795, 796–97 (Tex. 1954) (affirming
court of appeals’s decision to disregard a jury’s award of zero damages because the
answer was contrary to the evidence that showed a three-year-old girl had been
injured when she was run over by an automobile and sustained “multiple fractures of
the skull and the skin and tissues of the left side of her head were so severely torn that
that part of her skull was laid bare”); Lee v. Huntsville Livestock Servs., Inc., 934 S.W.2d
158, 159 (Tex. App.—Houston [14th Dist.] 1996, no writ) (involving bodily injuries
sustained “when [appellant’s] car collided with cattle”); Tarver v. Cty. of Jasper, 927
S.W.2d 795, 796 (Tex. App.—Beaumont 1996, no writ) (involving alleged bodily
injuries sustained when appellant’s “right front tire went into the washout causing her
to lose control of her vehicle and to strike a tree”); Sanchez v. King, 932 S.W.2d 177,
179 (Tex. App.—El Paso 1996, no writ) (“This is an appeal from a personal injury
lawsuit arising out of an automobile accident between Appellant and Appellee King
while King was driving a vehicle owned by Appellee Exxon.”); Davis v. Davison, 905
S.W.2d 789, 790 (Tex. App.—Beaumont 1995, no writ) (involving alleged injuries

                                            48
sustained when appellant was “burned by hot water”); Monroe v. Grider, 884 S.W.2d
811, 814, 820 (Tex. App.—Dallas 1994, writ denied) (reversing “jury’s denial of
damages for pain and suffering and mental anguish []as against the great weight and
preponderance of the evidence” for injuries plaintiff suffered when defendant ran into
her with a golf cart); Lopez v. Salazar, 878 S.W.2d 662, 662–63 (Tex. App.—Corpus
Christi 1994, no writ) (appealing from the jury’s failure to find damages from injuries
sustained when appellants’ “van ran off the road”); Prescott v. Kroger Co., 877 S.W.2d
373, 374 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (involving back injuries
sustained by delivery man when attempting to unload a “six-wheel cart loaded with
products up a ramp to the back entrance of the store”); Hicks v. Ricardo, 834 S.W.2d
587, 589 (Tex. App.—Houston [1st Dist.] 1992, no writ) (involving dental malpractice
claim in which appellant experienced “swelling, infections, leakage, movement and
crumbling of caps” after dentist installed a bridge and extracted a tooth); Hammett v.
Zimmerman, 804 S.W.2d 663, 664 (Tex. App.—Fort Worth 1991, no writ) (holding in a
case involving “personal injuries sustained when [appellants’] car was struck from the
rear by a car,” that the jury “has no authority to completely ignore the undisputed
facts of the case and arbitrarily fix an amount that is unsupported by the evidence,”
and when there is uncontroverted evidence of an objective injury, a jury finding that
plaintiff suffered no past physical impairment and pain is against the great weight and
preponderance of the evidence); Cornelison v. Aggregate Haulers, Inc., 777 S.W.2d 542,
548 (Tex. App.—Fort Worth 1989, writ denied) (concluding jury findings that
passenger injured in automobile collision suffered zero dollars past physical
impairment and pain were so against the great weight and preponderance of the
uncontroverted evidence as to be manifestly unjust); Russell v. Hankerson, 771 S.W.2d
650, 651, 653 (Tex. App.—Corpus Christi 1989, writ denied) (reversing jury’s award
of zero damages even though evidence showed objective “personal injuries [appellant]
sustained when her car collided with appellee’s” because the finding was against the
great weight and preponderance of the evidence); Blizzard v. Nationwide Mut. Fire Ins.,
756 S.W.2d 801, 803 (Tex. App.—Dallas 1988, no writ) (involving first-party
insurance dispute in which the appellant “claim[ed] to have been injured when the car
she was driving was struck from behind by a car driven by an uninsured motorist”);
Robinson v. Minick, 755 S.W.2d 890, 891 (Tex. App.—Houston [1st Dist.] 1988, no
writ) (involving “injuries [appellant] suffered in a multiple vehicle collision”); Porter v.
Gen. Tel. Co. of the Sw., 736 S.W.2d 204, 204 (Tex. App.—Corpus Christi 1987, no writ)
(involving “personal injury suit following an automobile collision”); Hammond v.
Rimmer’s Estate, 643 S.W.2d 222, 223 (Tex. App.—Eastland 1982, writ ref’d n.r.e.)
(involving a personal injury case in which plaintiff “was riding his motorcycle” and
defendant was driving her automobile when the vehicles collided); Sansom v. Pizza Hut
of E. Tex., Inc., 617 S.W.2d 288, 289, 293 (Tex. App.—Tyler 1981, no writ) (reversing
and remanding a “suit for personal injuries sustained by appellant . . . resulting from a

                                            49
fall on the parking lot of a Pizza Hut Restaurant” after jury had found appellant
suffered objective personal injuries but awarded zero damages); Thomas v. Oil & Gas
Bldg., Inc., 582 S.W.2d 873, 875, 881–82 (Tex. App.—Corpus Christi 1979, writ ref’d
n.r.e.) (holding that zero-damages verdict on, inter alia, past physical pain and mental
anguish was against the great weight and preponderance of the evidence when the
undisputed evidence showed that appellant had broken her ankle when she slipped
and fell in a hallway); Horn v. State Farm Ins., 567 S.W.2d 266, 267 (Tex. App.—Tyler
1978, no writ) (involving “damages for personal injuries allegedly sustained by
[plaintiff] as the result of an automobile collision”); Cavitt v. Jetton’s Greenway Plaza
Cafeteria, 563 S.W.2d 319, 321 (Tex. App.—Houston [1st Dist.] 1978, no writ)
(reversing and remanding personal injury action in which jury “found the defendant
guilty of serving unwholesome food” when plaintiff found a roach in her dessert
causing her injury but failed to award money damages in any amount); Bazzano v.
Ware, 530 S.W.2d 650, 650 (Tex. App.—Beaumont 1975, writ ref’d n.r.e.) (“This is an
action for damages for personal injuries received in a rear-end collision.”); Nye v. W &
L Co., 519 S.W.2d 142, 143 (Tex. App.—Amarillo 1975, writ ref’d n.r.e.) (reversing
and remanding case in which airplane passenger plaintiff sought monetary damages
for injuries suffered as a result of an airplane crash because “jury’s negative answer to
the personal injury damage issue, upon which the court entered a take-nothing
judgment, is contrary to the admission that some damage was suffered”); Taylor v.
Head, 414 S.W.2d 542, 544 (Tex. App.—Texarkana 1967, writ ref’d n.r.e.) (reversing
and remanding zero-damages award for pain and suffering in rear-end automobile
collision case because “a jury must award some damages for pain and suffering”);
Bolen v. Timmons, 407 S.W.2d 947, 948 (Tex. App.—Amarillo 1966, no writ) (involving
bodily injuries sustained when appellant “was sitting on his motorcycle with his foot
on the brake while stopped at a red light . . . when he was rear-ended by appellee”);
Edmondson v. Keller, 401 S.W.2d 718, 719 (Tex. App.—Austin 1966, no writ) (reviewing
“a personal injury action brought for damages plaintiff sustained in an automobile
collision”); see also Blevins v. State Farm Mut. Auto. Ins., No. 02-17-00276-CV, 2018 WL
5993445, at *1, *13 (Tex. App.—Fort Worth Nov. 15, 2018, no pet. h.) (mem. op.)
(refusing to conclude that “jury went against the great weight and preponderance of
the evidence in such a way as to show a manifest injustice” even in light of “objective
yet relatively insignificant injuries” sustained by appellant in a car wreck); Lara v.
Weeks Marine, Inc., No. 04-06-00237-CV, 2007 WL 1540269, at *1, *4 (Tex. App.—
San Antonio May 30, 2007, no pet.) (mem. op.) (reversing and remanding a case in
which a deckhand on a ship “fell through the hatch” and injured himself and jury
received objective, undisputed evidence that deckhand sustained at the very least a
shoulder fracture but awarded zero damages because the zero-damages award was
against the great weight and preponderance of the evidence); Byrd v. Westerhof, No. 03-
00-00180-CV, 2001 WL 101517, at *1 (Tex. App.—Austin Feb. 8, 2001, no pet.) (not

                                           50
Lennon II that is not a personal injury case is also distinguishable because it is a

breach-of-contract case in which there was “some objective evidence of the

damages.” See Heritage Operating, L.P. v. Rhine Bros., No. 02-10-00474-CV, 2012 WL

2344864, at *8 (Tex. App.—Fort Worth June 21, 2012, no pet.) (mem. op. on reh’g).

Thus, Lennon II has directed us to no authority to support the proposition that a jury

must award some damages after an affirmative finding of conversion when there is no

probative evidence of the property’s fair market value.

       D. Is a $0.00 finding against the great weight and preponderance of the
       evidence?

       Though most of the authority cited by Lennon II is inapposite, its brief does

raise the appropriate question to challenge the jury’s zero-damages answer—does the

record contain evidence of the fair market value of select fill that renders the zero-

damages answer against the great weight and preponderance of the evidence? It does

not.

             1. Damages for converted dirt

       There is no doubt that dirt may be converted:

       Earth . . . in its original bed is a part of realty and as such cannot be a
       subject of conversion; but where it has been wrongfully severed and
       removed, it becomes personalty for the conversion of which an action
       will lie. These materials continue to be the property of the landowner
       after they are removed from their bed or place in the soil.



designated for publication) (involving suit “for injuries sustained following an
automobile collision”).

                                           51
Dahlstrom Corp. v. Martin, 582 S.W.2d 159, 161 (Tex. App.—Houston [1st Dist.] 1979,

writ ref’d n.r.e.) (citing Cage Bros. v. Whiteman, 163 S.W.2d 638 (Tex. [Comm’n Op.]

1942)).

      But as with any claim grounded in conversion, “[t]he measure of damages . . . is

the value of the property converted at the time of the conversion, with legal interest.”

Bishop, 631 S.W.2d at 584. “It is essential that the market value of the property at the

place and on the day of conversion be established to recover.” Id. As the jury was

instructed below, “[m]arket value is the price property would bring if it were offered

for a sale by a willing but not obligated seller and purchased by a willing but not

obligated buyer.” Taiwan Shrimp Farm Vill. Ass’n v. U.S.A. Shrimp Farm Dev., Inc., 915

S.W.2d 61, 71 (Tex. App.—Corpus Christi 1996, writ denied).

             2. Analysis

      Although at trial there was substantial testimony about and discussion of the

price paid by AGL to Gideo as well as the cost to return the Property to its previous

condition, both the record and the references in Lennon II’s brief lack a key

element—evidence demonstrating the fair market value of the select fill itself at the

time and place of the conversion.18


      18
        We (again) note the challenge Mr. Lennon’s unavailability posed to
Lennon II’s case. With regard to damages, when the converted property has no fair
market value that is readily ascertainable, the damages are the actual value of the
property to the owner at the time of its loss. Crisp v. Sec. Nat’l Ins., 369 S.W.2d 326,
329 (Tex. 1963). Without deciding whether the select fill in this case falls into that
category, assuming arguendo that it did, a property owner such as Mr. Lennon could

                                          52
      Lennon II’s starting point on its sufficiency challenge to the jury’s $0.00 fair-

market-value finding is that the undisputed evidence of the purchase price shows that

the dirt had some value: “[I]t is undisputed that [AGL] paid approximately $700,000

for the property. The evidence showed at a minimum that the fair market value was

at least $701,334, which is what AGL paid and Gideo received for the soil that was

excavated and removed.” Indeed, Lennon II’s trial counsel argued this theory of

conversion damages to the jury:

      [LENNON II’S COUNSEL]: The next question you’re asked is, what
      the fair market value of that property is, and the only evidence that we
      have in the case is the testimony of David Thiel that it was 175,000 cubic
      yards of dirt and that they paid Mr. Gideo $701,000 for that dirt, okay?

             Now, if you believe that Mr. Lennon authorized a portion of the
      dirt that was removed to be removed, then you should reduce that
      number. But if you don’t believe that he authorized any of this dirt to be
      permanently removed and excavated, then you should award the entire
      amount.

            It has -- that is the fair market value of the dirt because that’s
      what AGL paid for it.

This premise is flawed for two reasons.

      First, the $700,000 purchase price included the cost of more than just the select

fill. Svehla testified that the amount of $700,000 at $4.00 per cubic yard of select fill

paid by AGL to Gideo was not just the amount of the granules of soil, but also

included Gideo’s costs for excavating the dirt and loading it. Thus, the amount paid


testify as to the value of his property even if he was not an expert. Reid Road Mun.
Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 852–53 (Tex. 2011).

                                           53
by AGL to Gideo is not a proper measure of fair market value of the dirt because it

included costs for other services without providing a way for the jury to segregate the

value of the soil from the value of the services. See Sw. Energy Prod. Co. v. Berry-Helfand,

491 S.W.3d 699, 712 (Tex. 2016) (“If too few facts exist to permit the trier of fact to

calculate proper damages, then a reasonable remedy in law is unavailable.” (quoting

Metallurgical Indus. Inc. v. Fourtek, Inc., 790 F.2d 1195, 1208 (5th Cir. 1986))).

       Second, the purchase price of the converted property is not competent

evidence of the fair market value of the property. See Bishop, 631 S.W.2d at 584

(“Compensatory or actual damages are not measured in a conversion case by the price

at which the goods in question were sold by the defendant but by market value at

place and time of conversion.”). Thus, even if the $4.00 per cubic yard was only for

the select fill and not Gideo’s services, the purchase price between AGL and Gideo is

still not the proper measure of determining the fair market value of the select fill. See

Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 889 (Tex. App.—

Dallas 2009, no pet.) (reciting that when calculating conversion damages, “[p]urchase

price is ordinarily not even admissible to show market value at a particular later

time”).

       Our review of the trial record reveals no testimony or evidence of the fair

market value of the select fill dirt. On direct examination, Svehla testified that $4.00

represented the fair market value of the dirt. He stated that it was “[o]n the high end

of the market value.” However, immediately preceding this question, Svehla testified

                                              54
that the $4.00 price included services from Gideo for excavating and loading in

addition to the granules of dirt. Therefore, this general statement from Svehla does

not supply a range of values for the jury to calculate the select fill’s fair market value at

the time and place of the conversion. See Sw. Energy Prod. Co., 491 S.W.3d at 712.

       Casey Padgett, an environmental contractor in the business of removing

contaminated soil, testified about, inter alia, the costs of filling in the holes on the

Property. He stated that a ton of common fill sells for $13.25 per ton. However,

Padgett acknowledged on cross-examination that common fill is different than select

fill. And, when questioned on redirect, Padgett could not definitively provide the

market value of select fill:

       Q. Mr. Padgett, you were asked about the difference between common
       fill and select fill.

               What is the cost -- what is the unit cost that Sunbelt charges for
       select fill per cubic yard?

              A. For --

              Q. I’m talking about right now.

              A. It varies.

              Q. All right.

              A. It depends on where you’re at.

              Q. Well, for a project located at [the Property], what would your -
       - your job is an estimator, correct?

              A. Yes, sir.


                                             55
               Q. Okay. What would you estimate per cubic yard for select fill?

               A. I -- I couldn’t estimate that. That comes --

               Q. Well --

               A. Oh, I’m sorry.

               Q. Go ahead.

               A. It comes from our trucking department.

Thus, Mr. Padgett’s testimony does not undermine the jury’s $0.00 fair-market-value

finding.

       Similar testimony about common fill came from Ethan Cox, the Director of

the City of Denton landfill. He testified that the landfill sells common fill soil for

$375 per ton. But it was undisputed that the converted property was select fill, not

common fill. Thus, Cox’s testimony is not competent evidence of the fair market

value of the select fill.

       Indeed, not only does the record not establish a fair market value for select fill,

the record contains other evidence in support of the jury’s zero fair-market-value

finding. That support comes from evidence that the select fill actually has no market

value. Testimony from Swesey demonstrated that the value of the select fill could be

negative in the sense that the owner would actually need to pay to have it removed

and that by Gideo’s removing and selling the select fill to AGL, Lennon II was

“saving . . . a fortune.” And Gideo testified that the cost of removing the dirt would

be $1 million. Thus, even if the jury could have taken the $700,000 purchase price as

                                            56
evidence of the fair market value of the select fill, given the testimony that the

removal cost would have far exceeded that amount, it would have been within the

range of values presented at trial to calculate that the fair market value of the select fill

was $0.00. See Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 566 (Tex. 2002) (“In

determining damages, the jury has discretion to award damages within the range of

evidence presented at trial.”).

       Therefore, we hold that the jury’s fair-market-value finding of “$0.00” is not

against the great weight and preponderance of the evidence, and we overrule

Lennon II’s first issue.

              V. BONA-FIDE-PURCHASER-FOR-VALUE JURY QUESTION

       In its second issue, Lennon II contends that the trial court erred in submitting a

jury question on whether AGL was a bona fide purchaser for value. Though we are

dubious of the propriety of submitting that question, our holding sustaining the jury’s

zero-damages finding renders the issue moot.

       A. Standard of review

       “We review a trial court’s decision to submit or refuse a particular instruction

under an abuse of discretion standard of review.” In re V.L.K., 24 S.W.3d 338, 341

(Tex. 2000). The trial court has considerable discretion to determine proper jury

instructions, and “[a]n instruction is proper if it (1) assists the jury, (2) accurately states

the law, and (3) finds support in the pleadings and evidence.” Columbia Rio Grande

Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855–56 (Tex. 2009). However, “[w]hen, as

                                              57
here, the content of a trial court’s definition is challenged as legally incorrect, our

standard of review is de novo.” Transcon. Ins. v. Crump, 330 S.W.3d 211, 221 (Tex.

2010) (citing St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex. 2002)).

       “A judgment will not be reversed for charge error unless the error was harmful

because it probably caused the rendition of an improper verdict . . . .” Columbia Rio

Grande Healthcare, 284 S.W.3d at 856 (citing Tex. R. App. P. 61.1); see Tex. R. App. P.

44.1(a)(1). “Charge error is generally considered harmful if it relates to a contested,

critical issue.” Columbia Rio Grande Healthcare, 284 S.W.3d at 856 (citing Bel–Ton Elec.

Serv., Inc. v. Pickle, 915 S.W.2d 480, 481 (Tex. 1996) (per curiam), and Sw. Bell Tel. Co. v.

John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992)).

       B. Applicable law

       Numerous courts, including ours, have held that neither complete innocence

nor perfect good faith are defenses to an action for conversion. See, e.g., Henson v.

Reddin, 358 S.W.3d 428, 435 (Tex. App.—Fort Worth 2012, no pet.) (“[I]nnocence is

no defense to conversion.”); Am. Petrofina, Inc. v. PPG Indus., Inc., 679 S.W.2d 740, 759

(Tex. App.—Fort Worth 1984, writ dism’d by agr.) (“Neither complete innocence nor

perfect good faith are defenses to an action for conversion.”); Geders v. Aircraft Engine

& Accessory Co., 599 S.W.2d 646, 651 (Tex. App.—Dallas 1980, no writ) (“[A] good

faith but unauthorized retention of property can be a conversion.”); McVea v. Verkins,

587 S.W.2d 526, 531 (Tex. App.—Corpus Christi 1979, no writ) (“In a conversion

suit, it is no defense that the defendant acted in good faith.”); Loomis v. Sharp, 519

                                             58
S.W.2d 955, 958 (Tex. App.—Texarkana 1975, writ dism’d) (“The fact that appellants

took a bill of sale from Osborn covering the pickup, and even paid him for it, avails

them nothing. One who buys personal property must at his peril ascertain the true

ownership, and if he buys from one who has no authority to sell, his possession of the

chattel in denial of the owner’s right is a conversion.”); White-Sellie’s Jewelry Co. v.

Goodyear Tire & Rubber Co., 477 S.W.2d 658, 662 (Tex. App.—Houston [14th Dist.]

1972, no writ) (same).

      Yet against the force of this precedent, AGL cites a case in which the appellate

court analyzed whether the defendant was a bona fide purchaser for value, as defined

by the Uniform Commercial Code (UCC), which the defendant had pleaded as an

affirmative defense to the plaintiff’s conversion claim. Carter v. Cookie Coleman Cattle

Co., 271 S.W.3d 856, 858 (Tex. App.—Amarillo 2008, no pet.) (citing Tex. Bus. &

Com. Code Ann. § 2.403). While the Carter court ultimately concluded that the

defendant was not a bona fide purchaser for value, id. at 860, Carter has since been

cited in three federal district court cases for the proposition that a bona fide or good

faith purchaser status is an affirmative defense to a conversion claim. See Dynamic

Prod., Inc. v. CIMA Energy Ltd., No. 4:17-CV-1032, 2018 WL 1801193, at *6 (S.D. Tex.

Feb. 21, 2018) (citing Carter to support that “[a] bona fide—or good faith—purchaser

for value has an affirmative defense against a conversion claim”), report and

recommendation adopted, No. 4:17-CV-1032, 2018 WL 1870554 (S.D. Tex. Apr. 19,

2018); Pemex Exploracion y Produccion v. BASF Corp., Nos. H-10-1997, H-11-2019, 2013

                                          59
WL 5514944, at *5 (S.D. Tex. Oct. 1, 2013) (same); Hyde & Hyde, Inc. v. Mount

Franklin Food, LLC, No. EP-11-CA-08-FM, 2012 WL 7062626, at *4 (W.D. Tex.

Apr. 30, 2012) (same), aff’d sub nom. Hyde & Hyde, Inc. v. Mount Franklin Foods, L.L.C.,

523 F. App’x 301 (5th Cir. 2013).

      We agree with Lennon II that Carter and its federal progeny are outliers.

Moreover, we find the Carter case factually distinguishable because in that case the

bona-fide-purchaser-for-value defense was expressly raised under the UCC, whereas

here, AGL’s defense was raised under the common law. Cf. 65 Tex. Jur. 3d Sales

§ 110 (2019) (“Unlike the common law, good faith purchaser status under the

Uniform Commercial Code is not concerned with actual or constructive knowledge

by the purchaser of an existing third party claim to the subject goods.”).

      Accordingly, we reaffirm our previous holdings that neither complete

innocence nor perfect good faith are defenses to conversion. Thus, the submission of

the jury question on whether AGL was a bona fide purchaser for value as an

affirmative defense to Lennon II’s conversion claim was in error.

      C. Analysis

      But “[s]ubmission of an improper jury question can be harmless error if the

jury’s answers to other questions render the improper question immaterial.” City of

Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995).           “A jury question is

considered immaterial when . . . its answer cannot alter the effect of the verdict.” Id.



                                           60
          Having already analyzed and affirmed that the jury’s finding that the fair market

value of the converted property was $0.00 was not against the great weight and

preponderance of the evidence, we conclude that the submission of the erroneous

bona-fide-purchaser-for-value question was harmless error because its answer cannot

have altered the effect of the verdict. That is, even if the jury had answered “No,” it

would not alter the fact that the jury concluded that the value of the converted

property was “$0.00,” so Lennon II would still take nothing on its conversion claim.

See id.

          Accordingly, we overrule Lennon II’s second issue.

                              VI. FINDING OF NO TRESPASS

          In its third issue, Lennon II contends that the jury’s finding of no trespass is

against the great weight and preponderance of the evidence and is manifestly unjust.

Although Lennon II mentions the removal of soil in support of its trespass claim, its

appellate briefing focuses primarily on AGL’s placing of steel-reinforced concrete and

asphalt millings and chunks—expressly authorized by Gideo—as constituting a

trespass because it exceeded the scope of any authorization from Lennon II. Gideo

and AGL respond that it was Lennon II’s burden to establish a lack of consent or

authorization and that the jury’s implied finding that Lennon II did not establish lack

of consent is not against the great weight and preponderance of the evidence or

manifestly unjust. The record supports the position of Gideo and AGL.



                                             61
       A. Applicable law

       “Trespass to real property occurs when a person enters another’s land without

consent.” Wilen v. Falkenstein, 191 S.W.3d 791, 797 (Tex. App.—Fort Worth 2006,

pet. denied). With respect to the consent element, the Supreme Court of Texas has

clarified and held that “to maintain an action for trespass, it is the plaintiff’s burden to

prove that the entry was wrongful, and the plaintiff must do so by establishing that

entry was unauthorized or without its consent.” Envtl. Processing Sys., L.C. v. FPL

Farming Ltd., 457 S.W.3d 414, 425 (Tex. 2015). In so holding, the Supreme Court of

Texas suggested that this burden on the plaintiff would usually be easy to satisfy

because the plaintiff/owner would generally be able to provide evidence (i.e., the

owner’s testimony) of the owner’s lack of consent:

       [W]e do not believe it will be difficult for a landowner or possessory
       interest holder to prove lack of consent or authorization. After all, the
       landowner or possessor who is bringing suit is in the best position to
       provide evidence on whether an alleged trespasser’s presence was
       unauthorized because only someone acting with the authority of the
       landowner or one with rightful possession can authorize, or consent to,
       the entry.

Id. at 424 (internal quotation marks omitted).19

       B. Analysis

       We begin our review by determining if any evidence supports the jury’s finding

of no trespass. Dow Chem. Co., 46 S.W.3d at 241. As detailed above, the jury


        The charge defined “Trespass” to mean “an entry on property of another
       19

without having the consent or authorization of the owner.”

                                            62
considered evidence of the Development Plan and Gideo’s testimony that it

authorized him to sell the select fill to AGL and prepare the Property for

development; testimony from Gideo, Svehla, and Swesey that at the November 3,

2014 meeting, Mr. Lennon was in agreement with the project; Gideo’s testimony that

Mr. Lennon came to the Property while the select fill was being excavated for AGL

and that he did not voice any objection; and Gideo’s testimony that he was only 25%

done with the AGL project and that the asphalt and concrete were recyclable and

could be sold or disposed of easily. The jury also heard from Gideo more generally

that Mr. Lennon had allowed him to place and store various items—including his

trailer, cows, and dirt—on the Property since 2008. This evidence supports that

Lennon II did not establish a lack of consent to Gideo and AGL.

      Against this evidence, Lennon II can point to nothing from Mr. Lennon to

demonstrate a lack of consent. Instead, Lennon II focuses on AGL’s internal e-mails

and messages expressing concern over the Development Plan; AGL’s request that

Gideo have Mr. Lennon sign AGL’s Proposed Agreement; testimony from Svehla and

Swesey that they never discussed removal of the select fill or placing concrete and

asphalt at the November 3, 2014 meeting; and testimony from Swesey that he did not

believe there was authorization to dump asphalt on the Property without a permit.

But this circumstantial evidence was contradicted by AGL with the above-referenced

direct testimony from Svehla and Swesey. Svehla testified that at no time during the

November 3, 2014 meeting did he doubt that Mr. Lennon understood what was going

                                        63
on or why AGL was there.            Swesey testified that his perception from the

November 3, 2014 meeting was that Mr. Lennon had authorized Gideo to act:

      Q. And is there anything that happened during your drive-around that
      gave you the impression that Mr. Gideo did not have Mr. Lennon’s
      authority to be out there directing traffic and doing this work?

             A. No.

            Q. In fact, it was your impression that Mr. Lennon knew what
      was going on and had given Mr. Gideo that authority; isn’t that true?

             A. Yes.

      The jury is the sole judge of the witnesses’ credibility and the weight to be

given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003). Moreover, it is within the province of the jury to weigh opinion evidence and

the judgment of experts. Banks v. Columbia Hosp. at Med. City Dallas Subsidiary, L.P.,

233 S.W.3d 64, 67–68 (Tex. App.—Dallas 2007, pet. denied). It is the jury’s role to

resolve conflicts and inconsistencies in the testimony of any one witness as well as in

the testimony of different witnesses. Id.

      Thus, the jury was free to believe, and could have believed, that AGL’s

insistence on AGL’s Proposed Agreement was out of an abundance of caution rather

than legal necessity. Indeed, the e-mail in which the lawyer at AGL expressed that he

was “worried” that Mr. Lennon did not sign AGL’s Proposed Agreement reveals the

two reasons for his concern: he wanted to establish (1) that Mr. Lennon owned the

Property and (2) that AGL was not obliged to return the select fill. Put differently,


                                            64
AGL was not “worried” that Gideo did not have authority from Mr. Lennon or that it

was not authorized to remove the select fill and place concrete and asphalt millings

and rubble on the Property.

      Moreover, even if Mr. Lennon’s refusal to sign AGL’s Proposed Agreement

could be some evidence of a lack of consent, the jury also heard testimony from Glen

that Mr. Lennon did not trust lawyers, as well as testimony from Gideo that

Mr. Lennon had not wanted to deal with J.D. Abrams directly. At the November 3,

2014 meeting, Gideo and Mr. Lennon sat in the front of Gideo’s truck and AGL’s

representatives sat in the back.   Swesey testified that at the November 3, 2014

meeting, it seemed that Mr. Lennon knew what was going on and had given Gideo

authority.   This evidence coupled with the Development Plan—which nowhere

precluded Gideo from placing asphalt and concrete on the Property as part of his

“use of the [P]roperty”—supports the reasonable inference that Mr. Lennon refused

to sign AGL’s Proposed Agreement, not because he did not consent to it, but because

he had an agreement with Gideo authorizing Gideo to contract with AGL, because he

did not trust documents drawn up by unknown lawyers, and because he wanted

Gideo alone to deal directly with AGL as he had done with J.D. Abrams.

      We also note that while Carter testified that he had no reason to believe that

Gideo had authority to sell over 100,000 cubic yards of select fill from the Property,

Carter elsewhere testified that he was unaware of the relationship between

Mr. Lennon and Gideo and any communications they had from 2008 through 2015.

                                         65
Therefore, Carter’s testimony speculating that Mr. Lennon would not have authorized

the sale of the select fill will not support Lennon II’s factual sufficiency challenge. See

Ethicon Endo-Surgery, Inc. v. Meyer, 249 S.W.3d 513, 519 (Tex. App.—Fort Worth 2007,

no pet.) (op. on reh’g) (“Speculation is not evidence.”). Had Mr. Lennon been

available, presumably he could have testified to the issue of consent or lack thereof.

But again, because Mr. Lennon was not available at trial, neither was any testimony

elicited from Lennon II on the issue of consent.

      Lennon II’s argument may be that the removal of extra fill dirt and the

dumping of material exceeded the scope of consent given by the Development Plan.

If so, we are unwilling to hold that the jury’s failure to find a trespass is against the

great weight and preponderance of the evidence. Again, the evidence established the

broad authority of the Development Plan and the prior use of the Property that

Mr. Lennon had given Gideo.          And once again, the jury heard nothing from

Mr. Lennon as to whether he placed any restrictions on this apparently broad

authority. With the evidentiary mix of this record, we cannot fault how the jury

performed its assigned duty of balancing the evidence.

      Therefore, we hold that the jury’s finding—that Lennon II did not establish a

lack of consent with respect to both Gideo and AGL regarding select fill removal and

the placing of asphalt and concrete—was not against the great weight and

preponderance of the evidence and manifestly unjust. See FPL Farming, 457 S.W.3d at

418–25 (holding because FPL Farming did not establish that the entry was

                                            66
unauthorized or without its consent, even if a trespass claim existed, it necessarily

failed). Accordingly, we overrule Lennon II’s third issue.

                       VII. JURY’S FINDING OF AN AGREEMENT

         In its fourth issue, Lennon II contends that the trial court erred by submitting

Jury Question 11 on Gideo’s breach-of-contract counterclaim because the alleged

agreement concerned the sale of goods, and as such, is governed by the UCC. See

Tex. Bus. & Com. Code Ann. § 2.201. And because the transaction concerned the

sale of goods rather than services, it is within the UCC’s statute of frauds and required

a specified quantity to be enforceable.          See id.   According to Lennon II, the

Development Plan did not satisfy the statute of frauds, and a separate jury question

should have been submitted about the Development Plan’s primary purpose.

         In the context of the jury’s answers to the charge, with respect, we are unable

to discern why Lennon II’s issue is more than much ado about nothing. The question

at issue submitted a breach-of-contract cause of action brought by Gideo. In essence,

the argument is that the trial court allowed the jury to find a breach based on a legally

unenforceable contract, i.e., an oral contract that the law required to be in writing

because a sale of goods was the essence of the transaction. The jury, however, found

no breach, and the trial court entered a take-nothing judgment on Gideo’s contract

claim.     Without a recovery on the allegedly unenforceable contract, we cannot

understand how Lennon II’s issue on appeal is more than academic. Even if the



                                            67
jurors were misled that the contract described in the charge was valid, no harm

accrued as a result of that error because the jury found no breach.

      “It is the complaining party’s burden to show harm on appeal.” Guniganti v.

C & S Components Co., 467 S.W.3d 661, 666 (Tex. App.—Houston [14th Dist.] 2015,

no pet.). Because the jury found that Lennon II had not breached an agreement and

that Gideo had suffered no damages, Lennon II has failed to show how it was harmed

by the submission of Question 11. See Tex. R. App. P. 44.1.

      In its reply brief, Lennon II’s argument transmogrifies into a claim both that

the submission of the contract question (without the requested accompanying

instruction) was error and that the trial court erred in admitting the Development Plan

into evidence. It is unclear whether Lennon II is attempting to raise an appellate issue

that the trial court erred in admitting the Development Plan into evidence, but if so,

the argument comes too late. See Tex. R. App. 38.3; Fox v. City of El Paso, 292 S.W.3d

247, 249 (Tex. App.—El Paso 2009, pet. denied) (holding a reply brief may not be

utilized as a vehicle to present a new issue to the court). Moreover, it was preadmitted

at Lennon II’s request. See Haney v. Purcell Co., 796 S.W.2d 782, 788 (Tex. App.—

Houston [1st Dist.] 1990, writ denied) (“A party cannot complain of the admission of

improper evidence, if he first introduced the same or similar evidence.”).

      Further, if it is Lennon II’s theory that the failure of the Development Plan to

conform to the statute of frauds demonstrates that Gideo had no consent to enter the

Property and was thus a trespasser, we disagree.

                                          68
      Coaxing arguments from Lennon II’s brief, we view its argument as perhaps

being that the unenforceability of the Development Plan under the statute of frauds

would deprive Gideo of the argument that the Development Plan constituted consent

and that his entry onto the Property relying on the Development Plan therefore

constituted trespass. If that is the argument, it is invalid. Williston dismisses this

argument:

      Even though the local [s]tatute of [f]rauds declares an oral agreement
      void, evidence of the agreement should be admissible in order to negate
      the implication of fact that might otherwise arise from the
      circumstances. The oral agreement should also be provable to prevent
      the imposition of any quasi-contractual or tort liability at variance with
      the express terms of the agreement as fully as if that agreement had been
      in writing. In these and similar cases, the oral contract is not being
      offered by the defendant in order to be enforced but rather to prevent
      the enforcement of another alleged agreement. In addition, since most
      of the [s]tatutes of frauds provide either that no action may be brought
      on an oral contract or that an oral contract with the [s]tatute’s terms is
      void or unenforceable or that an oral contract within the [s]tatute’s
      provisions may not be enforced by way of action or defense, that the
      defendant is not raising the oral agreement for purposes of enforcing it
      should be dispositive of its admissibility. Only if the words of the local
      [s]tatute as construed by the relevant courts purported to preclude the
      use of the oral agreement for any purpose—or included comparable
      language—should evidence of the alleged oral agreement be
      inadmissible.
10 Richard A. Lord, Williston on Contracts § 27:7 (4th ed. Westlaw database updated

July 2019) (citations omitted); see also Restatement (Second) of Contracts § 142 (Am.

Law Inst. 1981) (“Where because of the existence of a contract conduct would not be




                                         69
tortious, unenforceability of the contract under the Statute of Frauds does not make

the conduct tortious if it occurs without notice of repudiation of the contract.”).20

      Therefore, any error in the submission of Question 11 is not reversible. We

overrule Lennon II’s fourth issue.

                                 VIII. CONCLUSION

      Having overruled Lennon II’s five issues, we affirm the trial court’s judgment.

                                                       /s/ Dabney Bassel

                                                       Dabney Bassel
                                                       Justice

Delivered: August 29, 2019




      20
         Also, the Development Plan may well be a license, that is “a personal,
revocable, and unassignable privilege, conferred either by writing or parol, to do one or
more acts on land without possessing any interest” in the land. Joseph v. Sheriffs’ Ass’n,
430 S.W.2d 700, 703 (Tex. App.—Austin 1968, no writ) (emphasis added). Certainly,
“[a] licensee who goes beyond the rights and privileges granted by the license
becomes a trespasser.” Burton Constr. & Shipbuilding Co. v. Broussard, 273 S.W.2d 598,
603 (Tex. 1954). The charge that Lennon II proposed did not submit such a theory.

                                           70
