                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-14-00220-CV


PEGGY JO IHNFELDT,                                              APPELLANT
INDIVIDUALLY AND AS TRUSTEE
FOR THE ESTATE OF WILLIAM D.
IHNFELDT

                                        V.

PAULA REAGAN                                                      APPELLEE


                                     ----------

           FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. 2011-50885-367

                                     ----------

                          MEMORANDUM OPINION1

                                     ----------

     In 2009, before William D. Ihnfeldt’s death, he and his wife Peggy Jo

Ihnfeldt sold Paula Reagan unimproved land in Denton County. Part of the sale

was financed by the Ihnfeldts. Reagan subsequently disputed the terms of the


     1
         See Tex. R. App. P. 47.4.
sale when the trustee of deeds of trust purporting to secure the purchase price of

four and one-half of the acres threatened foreclosure. Reagan maintained she

had purchased the five acres for approximately $175,000 ($50,000 cash plus a

$124,240 promissory note with a lien that would encumber only four of the five

acres) but that William and Peggy, without her knowledge, conveyed her only

one-half acre unencumbered and fraudulently executed promissory notes and

deeds of trust purporting to encumber the other four and one-half acres. In

contrast, Peggy, on her own behalf and on behalf of Williams’s Estate2

(collectively “the Ihnfeldts”), denied that she or William had fraudulently executed

any documents and argued that Reagan had agreed to pay a total price of

$871,200—effectively $172,240 per acre—and that only one-half acre was

unencumbered. As a result of the dispute, Reagan sued the Ihnfeldts and others

to void the allegedly fraudulent deeds of trust along with their corresponding

notes.3 A jury found in favor of Reagan. The Ihnfeldts brought this appeal from

the judgment on the verdict in which they raise ten issues. We affirm.




      2
          William died in May 2010.
      3
       Reagan initially sought a temporary restraining order prohibiting the
Ihnfeldts from foreclosing, which the trial court granted. The trial court also
signed a temporary injunction prohibiting foreclosure.


                                         2
I. Reagan’s “Fourth Amended Original Petition”

            A. The Deal for $175,000             and    the   Revised    Deal   for
            Approximately $175,000

      In her “Fourth Amended Original Petition,” Reagan sued (1) William Tate,

as substitute trustee under the purportedly fraudulent deeds of trust and fee

attorney for Federal Title Company, which closed the transactions; (2) Rose Mary

Kendrick, an escrow officer and a notary public; (3) William’s Estate; and

(4) Peggy, individually and as trustee for his Estate. In her petition, which raised

numerous claims detailed below, Reagan stated that the original deal in August

2009 was for $175,000 for five acres and that she even tendered a check to the

title company for $181,069.29.      However, she explained how the deal was

restructured before closing so that the Ihnfeldts “would carry a [n]ote in the

amount of $124,240.00 on a portion of the Property” and that the title company

refunded her $124,240.00.

            B. The Two Notes for $124,240—the One for Four Acres that
            Reagan Acknowledged Making and the Other One for One-Half
            Acre that she Maintained was Fraudulent

      Reagan further asserted that the one-acre tract she thought she was

getting outright was instead conveyed to her in two one-half acre tracts—a one-

half-acre tract that was conveyed to her without any encumbrance and another

one-half-acre tract that was encumbered by a deed of trust securing a $124,240

loan. She identified a “Warranty Deed with Vendor’s Lien” and “Deed of Trust”

that both show $124,240 was owed on one of the half-acre tracts as being



                                         3
among the fraudulent documents. She also identified a note for $124,240 that

purported to be a purchase money note for one of the half-acre tracts as

fraudulent. She also noted that if the half-acre tract was foreclosed upon, a

portion of the building she had subsequently built on the one-acre tract would

end up being on property she no longer owned.

             C. An October 2009 Note in the Amount of $696,960 for the
             Remaining Four Acres Surfaces

      Reagan also alleged that she discovered there was an October 21, 2009

purchase money note and deed of trust that she denied signing in the amount of

$696,960 on the remaining four acres. She listed this note and deed of trust

among the documents she alleged were fraudulent, as well as an October 21,

2009 warranty deed with vendor’s lien purporting to convey to her the four acres

subject to that note and deed of trust.

             D. Reagan’s Causes of Action and the Various Relief She
             Sought

      In her causes of action, Reagan consistently sought various damages and,

in some instances, attorney’s fees. Under the caption, “Fraud in a Real Estate

[sic],” she sought damages and attorney’s fees. For “Breach of Fiduciary Duty,”

she again sought damages and attorney’s fees. Under her “Negligence” claim,

she sought only damages. Under the sections, “Violation of Chapter 12 of the

Texas Civil Practice and Remedies Code,” “Civil Conspiracy,” and “Deceptive

Trade Practice,” she sought damages and attorney’s fees. Under a “Damages”




                                          4
section, she sought special damages in the amount of $430,000 for “the cost of

the building and improvements located on the Property.”

        She also sought the following declaratory judgment:

        c. That each Deed from the Ihnfeldt Defendants to the Plaintiff for
        the Property is void ab initio;

        d. That the purported Note and Lien in the amount of $696,960.00 is
        void and the corresponding Deed of Trust is of no force or effect;

        e. That the purported Note and Lien in the amount of $124,240.00 is
        void and the corresponding Deed of Trust is of no force or effect;

        f. That the consideration for the contracts of sale between the
        Ihnfeldt Defendants and the Plaintiff failed in whole or in part making
        the contractual obligations of the Plaintiff voidable.

In conjunction with her request for a declaratory judgment, she sought attorney’s

fees.

        In conjunction with her breach of contract claim, she sought actual

damages and attorney’s fees.            In the alternative, she sought “equitable

[rescission] of all transactions forming the basis of this lawsuit with the Ihnfeldt

Defendants and seeks her consequential damages in addition to the other stated

damages.” Before trial, however, Reagan abandoned her breach of contract

claim.4

        In her prayer, among other relief, Reagan sought that judgment be entered

        that each Deed from the Ihnfeldt Defendants to the Plaintiff for the
        Property is void ab initio; that the purported Note and Lien in the
        amount of $696,960.00 is void and the corresponding Deed of Trust
        is of no force or effect; that the purported Note and Lien in the
        4
            She also abandoned her deceptive trade practice and negligence claims.


                                           5
      amount of $124,240.00 is void and the corresponding Deed of Trust
      is of no force or effect; that the consideration for the contracts of sale
      between the Ihnfeldt Defendants and the Plaintiff failed in whole or in
      part making the contractual obligations of the Plaintiff voidable; and
      for damages in an amount within the jurisdictional limits of the Court
      including actual damages, statutory damages and consequential
      damages; together with pre-judgment interest at the maximum rate
      allowed by law; post-judgment interest at the legal rate, reasonable
      and necessary attorney fees; costs of Court; and such other and
      further relief to which the Plaintiff may be entitled at law or in equity.

      As we construe her petition, Reagan sought to (1) stop the foreclosure, (2)

void the various notes, deeds of trust, and warranty deeds that were inconsistent

with the transaction she had agreed upon and were all the products of fraud, and

(3) recover damages. She did not seek specific enforcement of the transaction

as she understood it. She did not seek to quiet title in her name.

      II. The Business Relationships Between Reagan and William

      Reagan testified at trial that she had known William for about twenty years

in her capacity as an accountant. After working two years as a real estate agent

for Realty Executives, Reagan became a real estate broker in 2008 and began

working with William to learn from him.

      When Reagan’s office flooded in December 2008 or January 2009, she

accepted William’s invitation to move into his building because he had office

space available. When tax season was over on April 15, 2009, Reagan testified

that she started looking to either build a building or purchase a building. Reagan




                                          6
testified that she had moved out of William’s office space by June or July before

he had passed away, which contextually would have been June or July 2009.5

      Reagan testified that she regularly and frequently borrowed money from

William. She testified that William even lent her money a week before he passed

away. To generate income from the property after she bought it, Reagan said

William even lent her $6,000 to purchase Christmas trees.         In a videotaped

deposition that was played to the jury, Reagan said, “I was very lax in all of this

because Willie Ihnfeldt was my friend. I didn’t anticipate nor ever dream I would

have to do this. So I didn’t and wasn’t careful.” She attended his funeral.

      III. Reagan’s Testimony Regarding Her Purchase of the Five Acres in
      Dispute

            A. One Acre for $50,000; Four Acres for an Approximately
            $125,000 Note

      Reagan’s version of the sale was that she initially agreed to purchase all

five acres for $175,000 plus title expenses and commissions and had even

procured a cashier’s check for $181,060.29 payable to Federal Title Company.

Before closing, however, Reagan testified she and William agreed to structure

the deal differently. She explained that if she had paid the full amount, she would

have had to seek additional funds to construct the office and retail building she


      5
       Reagan said she stayed in William’s office space through June or July
2010 before he passed away. Because William died in May 2010, and because
Reagan’s search for a building both began and ended in 2009, Reagan appears
to have meant that she moved out of William’s office space sometime in June or
July 2009.


                                         7
planned to build on the property. Reagan said that the revised deal was for her

to pay $50,000 for the first acre and to carry a note to William and Peggy for

$125,000 for the remaining four acres.6 Federal Title Company sent her a check

back for $121,089.64 after deducting closing expenses.

      Reagan said there was only one closing, it was in August 2009, and she

admitted attending it. She denied attending a second closing on October 21,

2009, at Federal Title Company.

      Reagan testified that she did not have a signed copy of the $124,240 note

for the four-acre tract that she admitted signing, and none of the defendants ever

produced such a note.     During the videotaped interview played to the jury,

Reagan said that she did not have any documents supporting these transactions,

although she did at one time, but she said that she had given them to William,

who said he was going to make the corrections she had requested. According to

Reagan, she never got them back from William.            In other words, Reagan

      6
         In her “Fourth Amended Original Petition,” Reagan asserts that she and
William agreed that the Ihnfeldts would “carry a Note in the amount of
$124,240.00 on a portion of the Property.” In their brief and reply brief,
Appellants note that Reagan admitted signing a $124,240 note in her “Fourth
Amended Original Petition” and argue that it was an admission of the $124,240
note for the half-acre tract. We agree that Reagan acknowledged agreeing to
carry a note for $124,240; we disagree that she admitted that the note she
agreed to was for the half-acre tract. Reagan indicated that she was aware that
the one-acre tract was divided into two one-half-acre parcels and that the
building she constructed straddled both half-acre tracts. She was also aware
that if the property was foreclosed upon, portions of her building would be on the
foreclosed-upon tract. She identified the “Warranty Deed with Vendor’s Lien” for
a half-acre tract for $124,240 and the corresponding deed of trust as two of the
documents procured by fraud.


                                        8
contended that she attended an August 2009 closing at which she signed a note

and one HUD-1 Settlement Statement; she thought that in return, she received

title to an unencumbered one-acre tract and an encumbered four-acre tract.

              B. The Documents Recorded August 20, 2009

                    1. Land Purchased Outright—Plaintiff’s Exhibit 3

         The documentation, however, reflected something different.        Plaintiff’s

Exhibit 3 is a “Special Warranty Deed,” recorded August 20, 2009, purporting to

convey “Tract 1, 0.50 acre part of a 5.00 acre tract of land.” But Exhibit “A,” the

property description attached to Plaintiff’s Exhibit 3, described the land as “a 1.00

acre part of a 5.00 acre tract of land.” Regarding consideration, the “Warranty

Deed” provides, “Ten Dollars and other good and valuable consideration, the

receipt of which is hereby acknowledged,” but does not describe any notes or

other consideration. Plaintiff’s Exhibit 3 roughly corresponds to the property that

Reagan testified she thought she was purchasing outright. However, because of

the two different property descriptions, it is not clear whether this deed conveyed

a half-acre tract or a full acre. Additionally, the effective date of the conveyance

was August 12, 2008.

                    2. Half-Acre Tract Conveyed Subject to a $124,240 Lien—
                    Plaintiff’s Exhibits 1 and 2

         Plaintiff’s Exhibit 1 is a “Special Warranty Deed with Vendor’s Lien,”

recorded August 20, 2009, for “Tract 2, 0.50 acre part of a 5.00 acre tract of

land.”     Exhibit “A,” the property description attached to this document,



                                         9
consistently identifies the land in question as “Tract 2, 0.50 acre part of a 5.00

acre tract of land.” The amount of the lien is identified as $124,240. Plaintiff’s

Exhibit 1 bears the notation, “After Recording Return to: Paula Reagan, 3001

Burwood, Roanoke, TX 76262,” whereas Plaintiff’s Exhibit 3 bears the notation,

“After Recording Return to: Paula Reagan, 4001 Burwood, Roanoke, TX 76262.”

        Plaintiff’s Exhibit 2 is a “Deed of Trust,” recorded August 20, 2009, for

“Tract 2, 0.50 acre part of a 5.00 acre tract of land” with an Exhibit “A”—the

property description—also for “Tract 2, 0.50 acre part of a 5.00 acre tract of

land.”7 This “Deed of Trust,” dated August 11, 2009, listed a note in the amount

of $124,240.

        Although Plaintiff’s Exhibits 1 and 2 would correspond to the amount of the

note that Reagan described and admitted agreeing to, the deed conveys only

one-half acre instead of four acres, and the deed of trust secures repayment of

the note Reagan denied signing.

                    3. Nothing Recorded in August 2009 Regarding the Four
                    Acres

        In August 2009, nothing was recorded pertaining to the other four acres.

As will be shown below, documents pertaining to the four-acre tract were

supposedly not executed until October 2009 and not recorded until November

2009.


        7
      This is Deed of Trust number 2009-100990 that the trial court’s judgment
subsequently expressly vacates.


                                         10
             C. The Documents Recorded on November 12 and 16, 2009—
             Plaintiff’s Exhibits 4, 5, and 6

      Recorded November 12, 2009, Plaintiff’s Exhibit 4 is a “Special Warranty

Deed with Vendor’s Lien.” The amount of consideration includes a promissory

note for $696,960, and the land is described as a “tract being a portion of the

tract described in the deed to William D. Ihnfeldt and Peggy J. Ihnfeldt recorded

under Document No. 2008-108762 . . . and enclosing 4.000 acres.” The effective

date is listed as October 20, 2009. The “After Recording, Return To: Federal

Title, Inc. /WT, 1200 S. Main, Suite 1000, Grapevine, TX 76051 Attn: Rose Mary

Kendrick.”

      Plaintiff’s Exhibit 5 is a “Deed of Trust,” also recorded on November 12,

2009.8 The amount secured is a note for $696,960. The property description is

the same as the description in the deed in Plaintiff’s Exhibit 4. The “Deed of

Trust” is dated October 20, 2009.

      A few days later, on November 16, 2009, Plaintiff’s Exhibit 6, a “Correction

Special Warranty Deed,” was recorded. The “Correction Special Warranty Deed”

is, however, dated August 12, 2009. It provides,

            This deed is made in place of and to correct a deed from
      Grantor to Grantee dated August 12, 2008 and recorded under
      Instrument Number 2009-100991 in the Official Public Records of
      Denton County, Texas. By mistake that deed was dated August 12,
      2008 when in fact it should have been dated August 12, 2009 and
      the legal description contained a legal [description] for a 1 acre tract

      8
      This is Deed of Trust number 2009-131962 that the trial court’s judgment
subsequently vacates.


                                        11
      when in fact it should have been for a one half acre tract. This
      correction deed is made by Grantor and accepted by Grantee to
      correct that mistake, is effective on August 12, 2009, and in all other
      respects confirms the former deed.

Plaintiff’s Exhibit 6, the “Correction Special Warranty Deed,” purports to correct

the discrepancy noted earlier in Plaintiff’s Exhibit 3, the “Special Warranty Deed”

for the land Reagan purchased outright. Exhibit “A” attached to the correction

deed describes the property as “Tract 1, 0.50 acre part of a 5.00 acre tract of

land.” The “Correction Special Warranty Deed” resolves the conflict in favor of

only a half-acre purchase instead of a full acre purchase. The return information

for Reagan identifies the 4001 Burwood address.

      Reagan denied having any knowledge of the correction deed.                She

testified that she never received a copy of this deed from either Federal Title

Company or Denton County. She admitted owning the Burwood property but

said her daughter lived there and never gave her any mail.9           She denied

accepting the changes that the correction deed recited. Further, she noted that

there was no place for her signature on the correction deed.10




      9
       Although she denied using this address, the HUD-1 she admitted signing
in August 2009 lists the 4001 Burwood address as hers and shows the property
as a one-half acre encumbered by a $124,240 note.
      10
       The property code does not require a grantee’s signature on a deed.
See Tex. Prop. Code Ann. § 5.022 (West 2014).


                                        12
             D. Reagan Denies the Veracity of the Documents

      Reagan denied that the deal that William offered her was $50,000 for an

unencumbered half acre, a $124,000 purchase money loan for another half acre,

and the remaining four acres for a purchase money loan of $696,960.             She

denied ever signing a real estate note for $696,960.11 She denied ever entering

into a real estate contract to buy four acres of land for $696,960.

             E. The Building Reagan Constructed on the One-Acre Tract

      Reagan spent $360,000 to build a 4,000 square foot building on the one-

acre tract. She testified that William was with her when she applied for a building

permit in Denton County. The building straddled the two one-half acre tracts.

             F. How and When Reagan Became Aware There was a Problem

      Reagan testified that she only became aware of the problem in the fall of

2009 when Tate, as trustee under the deeds of trust, tried to evict her. She said


      11
         The Ihnfeldts complain that Reagan did not expressly deny signing all the
documents purportedly bearing her signature. Viewing the evidence in the light
most favorable to the verdict, she did not have to. See Principal Life Ins. Co. v.
Revalen Dev., LLC, 358 S.W.3d 451, 454 (Tex. App.—Dallas 2012, pet. denied)
(stating that appellate courts review findings in the light most favorable to the
verdict). Reagan acknowledged having difficulty recognizing her own signature.
She admitted during her deposition giving a number of other people permission
to sign her name on her behalf under varying circumstances. This led to the
problem that, assuming someone was forging her signature, that forger might
have been using one of these other signatures as the forger’s model. Reagan
also speculated that some of the signatures might have been cut and pasted. In
a couple of instances, her signature appeared on a separate page, apart from the
other signatures. Reagan could not explain what happened. All she could say
was that these documents did not reflect the deal that she and William agreed
upon and were, therefore, fraudulent. The jury found in Reagan’s favor.


                                         13
that she experienced a great deal of stress when Tate showed her a note

showing that she owed $696,960. She explained, “It’s over a half million dollars.

I don’t have a half million dollars.”

      IV. Tate’s, Kendrick’s, and the Ihnfeldts’ Version of Reagan’s
      Purchase

      Peggy testified that she did not negotiate any contracts with Reagan.

Peggy also testified that she did not attend any closings with Reagan in

attendance. Peggy relied on her husband, William, to go over the documents

with her and explain to her what he was doing.

      Peggy’s understanding was that they sold the five acres to Reagan in three

separate pieces. They sold a half-acre tract for $50,000, a second half-acre tract

for $124,240 as evidenced by a promissory note, and the remaining four acres

for a promissory note of $696,960.12 According to Peggy, the total sale was not

for $175,000; rather, the total sale was for $871,200.        According to Peggy,

Reagan was not purchasing all five acres for $175,000 but was, instead, paying

$174,240 per acre.

      Kendrick, the notary, testified that she remembered the closing

transactions and that she was 100% sure Reagan appeared in her office on


      12
         The reporter’s record shows Peggy testified that the second half-acre
tract was sold for $224,000. It is not clear whether this is a typo in the reporter’s
record or whether she misspoke. The second half-acre tract was consistently
identified by the defendants as being sold for $124,240. Peggy herself discusses
the $124,240 promissory note without noting the discrepancy between this note
and her earlier testimony that she thought it was $224,000.


                                         14
August 12, 2009, and again on October 21, 2009. Her notary log, however, did

not reflect that Reagan signed anything in either August or October 2009. None

of the parties signed her notary log in August or October 2009.

      Kendrick maintained that the property was sold in three different

transactions. She described the sale of a half-acre tract, a sale of the second

half-acre tract, and the sale of four acres.       She denied forging Reagan’s

signature on any of the documents.

      Tate also described three separate transactions. He described the sale of

a half-acre tract, the sale of another half-acre tract for a $124,240 note, and the

sale of four acres for a $696,960 note. William Tate recalled seeing Reagan in

his office on October 21, 2009, but he denied witnessing her executing any

documents. He too denied forging Reagan’s signature on any of the documents.

      V. Jury Questions 1 and 4

      At the close of the evidence, the trial court granted the Ihnfeldts’ motion for

directed verdict on Reagan’s conspiracy and fraud claims against Peggy

individually. Accordingly, the jury questions were limited to William, Tate, and

Kendrick.

      The jury charge provided

      QUESTION NO. 1:

      Did any of the following individuals listed below commit fraud against
      Paula Reagan related to the purchase of the real property in
      Question?

         Fraud occurs when:


                                        15
            (1) there is a false representation of a past or existing
                material fact, and

            (2) the false representation is made to a person for the
                purpose of inducing that person to enter into a
                contract, and

            (3) the false representation is relied on by the person
                entering into the contract.

            Answer “Yes” or “No” for each person:

            William D. Ihnfeldt:      Yes

            William D. Tate:          Yes

            Rose Mary Kendrick:       No

This question corresponds to fraud in real estate and stock transactions under

section 27.01 of the business and commerce code. Tex. Bus. & Com. Code Ann.

§ 27.01(a) (West 2015).

      The jury charge further provided

            If you answered “Yes” to any of those persons listed in Question 1,
      then answer the following question only as to those persons. Otherwise,
      do not answer the following question regarding that person.

      QUESTION NO. 4:

            Did any of those persons listed below make, present, or use
      any of the closing documents with:

            1. Knowledge that the document is a fraudulent lien or
               claim against real or personal property or an interest
               in real or personal property; and

            2. Intent that the document be given the same legal
               effect as a document evidencing a valid lien or claim
               against real property or an interest in real or personal
               property; and



                                         16
            3. Intent to cause Reagan to suffer financial injury or
               mental anguish or emotional distress?

            Answer “Yes” or “No” for each:

               a. William D. Tate:            Yes

               b. Rose Mary Kendrick:         No

               c. William D. Ihnfeldt:        Yes

This question corresponds to a cause of action for fraudulent liens or claims filed

against real or personal property under section 12.002 of the civil practice and

remedies code. Tex. Civ. Prac. & Rem. Code Ann. § 12.002(a) (West Supp.

2016).

      The parties reserved the declaratory judgment requests for the court,

depending on the jury’s findings.

      VI. The Trial Court’s Judgment

            A. Tate and Kendrick

      In addition to the above jury findings, the jury found that Tate and Kendrick

had failed to comply with their fiduciary duties as escrow agents to Reagan and

assessed damages. The jury also found that Tate was part of a conspiracy with

William that damaged Reagan.         Tate and Kendrick reached a post-verdict

settlement with Reagan.     In accordance with the agreement, the trial court

subsequently signed a judgment notwithstanding the verdict in favor of Tate and

Kendrick on March 14, 2014.




                                         17
             B. The Ihnfeldts and the Property

      On June 18, 2014, after a hearing on multiple post-trial motions, the trial

court signed a final judgment against the Ihnfeldts with, in pertinent part, the

following provisions.

      1. Plaintiff Paula Reagan shall be entitled to a judgment on her
         claims for fraud and violations of the Texas Civil Practices and
         Remedies Code Section 12.002 et. seq. against the Defendant
         Estate of William D. Ihnfeldt and her attorney’s fees as awarded
         by the jury for trial and appeal; and

      2. The Court also having considered the evidence presented and
         the arguments of counsel finds that Plaintiff is also entitled to a
         Declaratory Judgment that the Notes and Deeds of Trust in favor
         of Peggy Ihnfeldt and William Ihnfeldt were procured by fraud and
         are therefore in all things cancelled and of no further force or
         effect and Paula Reagan is entitled to her attorney’s fees in the
         amount of $125,000.00 . . . through trial and attorney’s fees in the
         amount of $15,000.00 should an appeal be taken to the Court of
         Appeals, totaling $140,000.00.

      ....

      3. The Court pursuant to the Declaratory Judgment Actions finds the
         Notes and Deeds of Trust in this matter are a nullity and should
         be cancelled.

             IT IS THEREFORE ORDERED THAT the Deed of Trust,
         Instrument No. 2009-131962 recorded on November 12, 2009 by
         the County Clerk of Denton County, Texas is cancelled and of no
         further force or effect. The County Clerk shall file this Judgment
         in the same class of records as the subject documentation was
         originally filed, and the Court directs the County Clerk to index it
         using the same names that were used in indexing the subject
         document.

             IT IS THEREFORE ORDERED THAT the Deed of Trust,
         Instrument No. 2009-100990 recorded on August 20, 2009 by the
         County Clerk of Denton County, Texas is cancelled and of no
         further force or effect. The County Clerk shall file this Judgment


                                        18
         in the same class of records as the subject documentation was
         originally filed, and the Court directs the County Clerk to index it
         using the same names that were used in indexing the subject
         document.

             IT IS THEREFORE ORDERED THAT the Note purportedly
         payable by Paula Reagan to Peggy Ihnfeldt and William Ihnfeldt
         in the original principal amount of $124,240.00 dated August 11,
         2009 is cancelled and of no further force or effect.

             IT IS THEREFORE ORDERED THAT the Note purportedly
         payable by Paula Reagan to Peggy Ihnfeldt and William Ihnfeldt
         in the original principal amount of $696,960.00 dated October 20,
         2009 is cancelled and of no further force or effect.

In short, the trial court voided the fraudulent notes and deeds of trust about which

Reagan complained. But the judgment does not rescind the deeds to Reagan,

even the ones she claims were executed and recorded without her permission or

knowledge and which she testified she did not accept. Although Reagan sought

monetary damages (and although the jury awarded her monetary damages in the

aggregate amount of $586,989), the judgment awards her no amount as

damages.

      VII. First Issue: Did the Trial Court Err by Voiding the Notes and
      Deeds of Trust but not Voiding the Underlying Deeds Themselves?

      In the Ihnfeldts’ first issue, they argue that the trial court erred when it

partially voided the transaction because it allowed Reagan to keep title to the

property but cancelled all the supporting notes and deeds of trust.             They

complain that Reagan has effectively repudiated the entire transaction but has

been allowed to keep the benefits of the agreement, which they contend is

improper. See Ford Motor Co. v. Castillo, 279 S.W.3d 656, 664 (Tex. 2009).


                                        19
They contend that, with limited exceptions, the rescission of a contract must be in

toto. See Costley v. State Farm Fire & Cas. Co., 894 S.W.2d 380, 387 (Tex.

App.—Amarillo 1994, writ denied).

             A. Reagan Did Not Admit Signing the Vacated Note for $124,240
             for the Half-Acre Tract

      The Ihnfeldts assert that Reagan admitted signing a $124,240 note, so the

trial court had no basis for cancelling the August 11, 2009 note that was admitted

into evidence. We disagree. Reagan admitted signing a $124,240 note for the

four-acre tract, but she said she did not know where it was. She consistently

denied signing Plaintiff’s Exhibit 16, the vacated note.

             B. Error not Preserved

      The Ihnfeldts do not point out how they raised the complaint in the trial

court or where the trial court made an adverse ruling. The clerk’s record does

not show they filed any post-judgment motion.

      The rules of appellate procedure require that an appellant’s brief contain “a

clear and concise argument for the contentions made, with appropriate citations

to authorities and to the record.” Tex. R. App. P. 38.1(i). When appellate issues

are not supported by argument, citations to the record, or legal authority, nothing

is presented for review. Hernandez v. Hernandez, 318 S.W.3d 464, 465 (Tex.

App.—El Paso 2010, no pet.).         It is an appellant’s burden to discuss his

assertions of error, and appellate courts have no duty—or even the right—to

perform an independent review of the record and the applicable law to determine



                                         20
whether there was error. Id. at 466. Were appellate courts to do so, they would

be abandoning their role as neutral adjudicators and become an advocate for

that party. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no

pet.). The Ihnfeldts have not shown us where in the record they brought this

complaint to the trial court’s attention or where the trial court ruled adversely to

them.    See Tex. R. App. P. 33.1(a).         We hold that this complaint was not

preserved.

              C. Whether the Judgment Gives Reagan a Windfall

        Part of the Ihnfeldts’ complaint is that the judgment allows Reagan to keep

the five acres without having to pay for them. This complaint underscores the

necessity of showing where they preserved their complaint at trial.

        The jury awarded monetary damages against William that the trial court did

not include in the judgment. Question 2 awarded damages for amounts paid for

ad valorem taxes, monies paid to the title company, and monies paid to the

defendants in an aggregate amount of $36,989. In Question 3, the jury awarded

damages in the amount of $550,000 “that were a natural, probable, and

foreseeable consequence of the actions found Question 1.”             The judgment

reflects monetary awards only for attorney’s fees but not for any damages. It

appears that Reagan was awarded title to the five acres in lieu of the monetary

damages. The postverdict hearing shows that this is precisely what happened.

Reagan opted to retain unencumbered title to the five acres instead of the

monetary damages.


                                         21
       Reagan’s attorney took the position that the declaratory judgment action

did not encompass the warranty deeds themselves but encompassed only the

promissory notes and the deeds of trust; consequently, if Reagan recovered

monetary damages, Reagan would effectively receive a double recovery, that is,

both title to the five acres and monetary damages. Counsel for the Ihnfeldts

argued that Reagan’s declaratory judgment action sought to void the notes, the

deeds of trust, and the warranty deeds as well and, citing Cunningham v.

Parkdale Bank, asserted that Reagan could not keep title to the properties

because her pleadings did not support that relief. 660 S.W.2d 810, 813 (Tex.

1983) (“[A] judgment must be supported by the pleadings and, if not so

supported, it is erroneous.”). Reagan’s attorney ultimately argued that Reagan

elected not to take the monetary damages and to take instead the cancellation of

the notes and deeds of trust, leaving the deeds themselves in Reagan’s name.

Minutes later, the Ihnfeldts’ counsel argued that Reagan had to choose between

her declaratory judgment relief and the monetary damages because anything

else would amount to a double recovery.          In their brief, the Ihnfeldts do not

address the postverdict hearing at all. We decline to advocate on their behalf

that they preserved their complaint at that hearing. See Valadez, 238 S.W.3d at

845.

       We overrule the Ihnfeldts’ first issue.




                                          22
      VIII. Second Issue:      Was a Declaratory Judgment an Available
      Remedy?

      In the Ihnfeldts’ second issue, they argue that the trial court erred by

granting a declaratory judgment in the final judgment because a declaratory

judgment is not available to contest the validity of a lien. The Ihnfeldts contend

that Reagan essentially brought a suit to quiet title and that she brought the

declaratory judgment action simply to recover her attorney’s fees.          Citing

Southwest Guaranty Trust Co. v. Hardy Road 13.4 Joint Venture, they contend

this is improper. See 981 S.W.2d 951, 956–57 (Tex. App.—Houston [1st Dist.]

1998, pet. denied).

      The Ihnfeldts are raising the issue for the first time on appeal. At the

postverdict hearing, the Ihnfeldts argued that Reagan’s declaratory judgment

action encompassed the deeds as well as the deeds of trust and the notes.

There was no complaint that a declaratory judgment was an improper procedural

vehicle. The Ihnfeldts asked the trial court to deny the declaratory judgment, but

in the context of the hearing, they were asking the trial court to deny it on the

merits. Similarly, postjudgment, the Ihnfeldts filed no motion asserting that a

declaratory judgment was an improper form of relief.      Because the Ihnfeldts

make this complaint for the first time on appeal, we hold that they failed to

preserve any alleged error. See In re R.A., 417 S.W.3d 569, 577 (Tex. App.—El

Paso 2013, no pet.) (citing Ortiz v. Collins, 203 S.W.3d 414, 427 (Tex. App.—

Houston [14th Dist.] 2006, no pet.); Holland v. Hayden, 901 S.W.2d 763, 765 &



                                       23
n.5 (Tex. App.—Houston [14th Dist.] 1995, writ denied)); see also Tex. R. App. P.

33.1; Tex. R. Civ. P. 329b(g).

       We overrule the Ihnfeldts’ second issue.

       IX. Third Issue: Did the Trial Court Use the Declaratory Judgment
       Action to Determine Facts?

       In their third issue, the Ihnfeldts argue that the trial court erred to the extent

the declaratory judgment is based on facts not determined by the jury. The

Ihnfeldts contend that it was improper for the judgment to include a declaratory

judgment that “the Notes and Deeds of Trust in favor of Peggy Ihnfeldt and

William Ihnfeldt were procured by fraud” because that was properly a question for

the jury. The Ihnfeldts complain that the trial court could not act as an additional

finder of fact.

       The Ihnfeldts’ complaint targets paragraph 2 of the trial court’s judgment.

The Ihnfeldts rely on Indian Beach Property Owners’ Ass’n v. Linden,

222 S.W.3d 682, 699 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In that

case, the trial court’s judgment contained both declarations of fact and

declarations of the parties’ rights; the court of appeals simply removed the

declarations of facts but left in place the declaration of the parties’ rights and

overruled the appellant’s complaint. Id. at 699–700.

       Once again, however, the Ihnfeldts are raising a complaint for the first time

on appeal. They filed no post-judgment motion complaining about any alleged

usurpation of the jury’s fact-finding role. We hold that they failed to preserve any



                                           24
alleged error. See R.A., 417 S.W.3d at 577; Ortiz, 203 S.W.3d at 427; Holland,

901 S.W.2d at 765 & n.5; see also Tex. R. App. P. 33.1; Tex. R. Civ. P. 329b(g).

        We overrule the Ihnfeldts’ third issue.

        X. Fourth Issue: Was the Declaratory Judgment Relief Duplicative of
        Relief Sought in Other Causes of Action?

        In their fourth issue, the Ihnfeldts contend that the trial court erred by

granting the declaratory judgment because Reagan sought the same relief in her

declaratory judgment action as she sought in her other causes of action. They

argue that a party may not use a declaratory judgment action to seek the same

relief afforded under another of its causes of action in order to obtain attorney’s

fees.    See Tanglewood Homes Ass’n v. Feldman, 436 S.W.3d 48, 70 (Tex.

App.—Houston 14th Dist. 2014, pet. denied); City of Houston v. Texan Land &

Cattle Co., 138 S.W.3d 382, 392 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

They then argue that the relief Reagan sought could have been independently

provided under one of her other causes of action.

        As with the Ihnfeldts’ other issues involving the declaratory judgment

action, they are raising these complaints for the first time on appeal.        The

Ihnfeldts never gave the trial court an opportunity to address and, if necessary,

correct any of these purported errors. See Valdez v. Valdez, 930 S.W.2d 725,

728 (Tex. App.—Houston [1st Dist.] 1996, no writ). We hold that they failed to

preserve any alleged error. See R.A., 417 S.W.3d at 577; Ortiz, 203 S.W.3d at




                                          25
427; Holland, 901 S.W.2d at 765 & n.5; see also Tex. R. App. P. 33.1; Tex. R.

Civ. P. 329b(g).

      We overrule the Ihnfeldts’ fourth issue.

      XI. Fifth Issue: Was the Evidence Legally and Factually Sufficient?

      In the Ihnfeldts’ fifth issue, they argue that the trial court erred in finding

liability for statutory fraud and rendering a declaratory judgment based thereon

because (1) there was no evidence of a false representation of a past or existing

material fact, (2) there was no evidence of Reagan’s reliance on anything that

William communicated to her, and (3) there was no evidence of damages

proximately caused by William. In the alternative, they contend that the jury

verdict is against the great weight and preponderance of the evidence.           We

construe the Ihnfeldts’ brief as attacking both the factual and legal sufficiency of

the evidence.

            A. Factual Insufficiency

      A motion for new trial is a prerequisite to attacking the factual insufficiency

of the evidence to support a jury finding. Tex. R. Civ. P. 324(b)(2). The Ihnfeldts

did not file a motion for new trial attacking any of the jury findings. We hold that

they have waived their factual insufficiency challenges. See id.

            B. Legal Insufficiency

      In a jury trial, no-evidence and matter-of-law issues or points must be

preserved through one of the following procedural steps in the trial court:

      (1)   a motion for instructed verdict;


                                        26
      (2)   a motion for judgment notwithstanding the verdict;

      (3)   an objection to the submission of the question to the jury;

      (4)   a motion to disregard the jury’s answer to a vital fact question; or

      (5)   a motion for new trial.

Nat’l Western Life Ins. Co. v. Newman, No. 02-10-00133-CV, 2011 WL 4916434,

at *5 (Tex. App.—Fort Worth Oct. 13, 2011, pet. denied) (mem. op. on reh’g)

(citing T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex.

1992)); see also Tex. R. Civ. P. 324(b) (listing appellate complaints that must be

preserved by a motion for new trial). The Ihnfeldts filed a motion to disregard jury

findings. At the hearing on the motion to disregard jury findings, the Ihnfeldts

argued there was no evidence that William made a past or present

misrepresentation to Reagan.          In their motion, they asserted that Reagan

“produce no evidence of any damages as a result of any conduct by Defendant

Ihnfeldt.” At the hearing, they also complained about the reasonableness of the

costs of the improvements to the land.

      Attacks on the legal sufficiency of the evidence are addressed as either

“no evidence” or “matter of law” points. Envtl. Processing Sys., L.C. v. FPL

Farming Ltd., 457 S.W.3d 414, 425 (Tex. 2015); Gooch v. Am. Sling Co., Inc.,

902 S.W.2d 181, 183–84 (Tex. App.—Fort Worth 1995, no pet.).                  If the

complaining party had the burden of proof at trial, then the appellant addresses

the error as a “matter of law” point. Envtl. Processing Sys., L.C., 457 S.W.3d at

425. If the complaining party did not have the burden of proof, then it addresses


                                          27
the error as a “no evidence” issue. Id. As the defendants, the Ihnfeldts did not

have the burden of proof at trial; therefore, their complaint is a “no evidence” one.

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

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

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

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

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

fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal

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

526 U.S. 1040 (1999); Gooch, 902 S.W.2d at 184. There is some evidence

when the proof supplies a reasonable basis on which reasonable minds may

reach different conclusions about the existence of the vital fact. Town of Flower

Mound v. Teague, 111 S.W.3d 742, 752 (Tex. App.—Fort Worth 2003, pet.

denied) (op. on reh’g); Gooch, 902 S.W.2d at 184. When determining whether

there is legally sufficient evidence to support the finding under review, we view

the evidence in the light most favorable to the finding, crediting favorable to the

finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not, and indulging every reasonable

inference in support of that finding. City of Keller v. Wilson, 168 S.W.3d 802,

807, 827 (Tex. 2005). Moreover, “[j]urors are the sole judges of the credibility of

the witnesses and the weight to give their testimony.         They may choose to




                                         28
believe one witness and disbelieve another. Reviewing courts cannot impose

their own opinions to the contrary.” Id. at 819.

      A promise to do an act in the future is actionable fraud when the promise is

made with the intention, design, and purpose of deceiving and with no intention

of performing the act.     Formosa Plastics Corp. USA v. Presidio Eng’rs &

Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998). A party’s intent is determined

at the time the party made the representation and may be inferred from the

party’s subsequent acts after the representation is made. Spoljaric v. Percival

Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). Intent is a fact question uniquely

within the realm of the trier of fact because it depends on the credibility of the

witnesses and the weight to be given their testimony. Id. Failure to perform,

standing alone, is no evidence of a party’s intent not to perform when the

promise was made; however, that fact is a circumstance to be considered with

other facts to establish intent. Id. at 435. Because the intent to defraud is not

susceptible to direct proof, it must invariably be proven by circumstantial

evidence. Id. When considered with the breach of a promise to perform, slight

circumstantial evidence of fraud is sufficient to support a finding of fraudulent

intent. Id.

      For the reasons set out below, we hold that there was legally sufficient

evidence of a false representation of an existing material fact. Reagan testified

that the deal she and William ultimately agreed to was for the purchase of one

acre of land for $50,000 and the remaining four acres of land for a $125,000


                                         29
loan, secured by a deed of trust on those four acres only. Reagan testified she

subsequently       discovered   that   the    deal   William   later   supported   with

documentation, some of which she never saw and some of which she testified

had forged signatures, was for a half-acre tract for $50,000, a half-acre tract for a

$124,240 loan, secured by a deed of trust, and the remaining four acres for a

$696,960 loan, secured by a deed of trust. Viewing the evidence in the light

most favorable to the jury’s verdict, we hold that agreeing to sell the five acres for

a total amount of $175,000 and then two months later filing documentation

evidencing a sale of the same five acres for the total amount of $871,200, along

with Reagan’s testimony that William failed to provide her with a copy of the

contract and note she admitted signing and the close relationship between

William and Reagan, is more than a scintilla of evidence supporting the finding of

a false representation of an existing material fact and, therefore, the evidence is

legally sufficient to establish that William’s initial agreement to sell all five acres

for $175,000 was a present misrepresentation. See id. at 434 (stating that intent

is uniquely within the realm of the trier of fact); see also Principal Life Ins. Co.,

358 S.W.3d at 454 (stating that appellate courts review findings in the light most

favorable to the verdict); Gooch, 902 S.W.2d at 184 (stating that to sustain a no

evidence complaint, the evidence of a vital fact must amount to more than a

mere scintilla).

      The Ihnfeldts argue that William may have initially entered the $175,000

deal in good faith, that is, without any false representation of a past or existing


                                             30
material fact, and thereafter—in the future—decided to change the deal. At trial,

the Ihnfeldts did not accord Reagan’s version of the deal any legitimacy but

asserted, instead, that there was but one deal, and that deal consisted of the sale

of a half-acre tract for $50,000, the sale of a second half-acre tract for a

$124,240 loan, and the sale of remaining four acres for a $696,960 loan. The

Ihnfeldts never asserted the possibility or produced any evidence that there was

any other deal, nor did they encourage to the jury to entertain the possibility that

William ever agreed to a deal for $175,000 and, thereafter, decided unilaterally to

change the deal to one for $871,200. Reviewing courts must assume that jurors

decided all of the implicit factual questions in favor of the verdict if a reasonable

person could do so. See City of Keller, 168 S.W.3d at 819. On these facts, there

was more than a scintilla of evidence from which a reasonable human could find

that the intent to falsely misrepresent a vital fact was there from the outset.

       Regarding proximate cause, the components of proximate cause are

cause in fact and foreseeability. Ryder Integrated Logistics, Inc. v. Fayette Cty.,

453 S.W.3d 922, 929 (Tex. 2015.). Proximate cause is ultimately a question for

the trier of fact. Id.

       The evidence showed that Reagan relied on William’s representation that

she was purchasing five acres for $175,000 and that William was aware that her

plan was to put a building on the property.        Reagan subsequently placed a

building on the property. It was foreseeable that Reagan would balk at learning




                                         31
she was paying $871,200, not $175,000, for the property and that she would be

damaged if she placed half of her building on property that was foreclosed upon.

      We hold that the evidence was legally sufficient to show that William made

a false representation of an existing material fact. See City of Keller, 168 S.W.3d

at 819. We further hold that the evidence was legally sufficient to show Reagan

relied on the misrepresentations and that the misrepresentations were the

proximate cause of Regan’s damages. See Ryder Integrated Logistics, Inc., 453

S.W.3d at 929. We overrule the Ihnfeldts’ fifth issue.

      XII. Sixth Issue: What is the Effect of Linking Jury Question 4 (Fraud
      under the Texas Business and Commerce Code) to Jury Question 1
      (Fraud under the Civil Practice and Remedies Code)?

      In their sixth issue, the Ihnfeldts argue that the trial court erred when it

rendered a final judgment finding liability because jury charge Question 4, which

addressed fraud under Chapter 12 of the Civil Practice and Remedies Code, was

predicated upon a finding of fraud under jury charge Question 1, which

addressed fraud under section 27.01 of the Texas Business and Commerce

Code. The jury was instructed to answer Question 4 only if it found fraud under

Question 1. The Ihnfeldts contend there is no independent finding of fraud under

Question 4, that is, that there is no independent finding of fraud under section

12.002 of the Texas Civil Practice and Remedies Code.

      Once again, the Ihnfeldts are raising an issue for the first time on appeal.

This complaint was not raised at the formal charge conference. The Ihnfeldts do

not show us where this complaint was raised at the postverdict hearing. As


                                        32
mentioned previously, the Ihnfeldts filed no postjudgment motion. It is not clear

why the trial court made Question 4 contingent upon a finding of fraud under

Question 1. However, as a logical matter, if there was no fraud under Question

1, there would be no fraudulent documents to file under Question 4. Conversely,

if there was a fraud under Question 1, Question 4 was an attempt to identify who

subsequently filed those fraudulent documents to perpetuate the fraud.13

Regardless of the explanation, we hold that the Ihnfeldts failed to preserve any

alleged error. See R.A., 417 S.W.3d at 577; Ortiz, 203 S.W.3d at 427; Holland,

901 S.W.2d at 765 & n.5; see also Tex. R. App. P. 33.1; Tex. R. Civ. P. 329b(g).

      We overrule the Ihnfeldts’ sixth issue.

      XIII. Seventh Issue: Was the Award of Attorney’s Fees under the
      Declaratory Judgments Act Proper?

      In their seventh issue, the Ihnfeldts argue that the trial court erred in

awarding attorney’s fees to Reagan under the declaratory judgments act

because the declaratory judgment duplicated issues and remedies that were

already before the trial court. The Ihnfeldts’ arguments and authorities are the

same as those asserted under their fourth issue attacking the declaratory

judgment itself.   Their seventh issue simply asserts that if the declaratory


      13
        At the postverdict hearing, Reagan’s counsel explained that procuring the
fraudulent documents was one cause of action and filing them in a clerk’s office
was a second cause of action. The Ihnfeldts’ counsel disagreed, argued it was
all one fraud, and expressed concern that Reagan was seeking independent
recoveries on both. No one, however, argued there was a flaw in either the jury
charge or the jury verdict based upon linking Question 4 to Question 1.


                                        33
judgment was improper, then any award of attorney’s fees by virtue of the

declaratory judgment was improper as well. We rely on our analysis of their

fourth issue.

      We overrule the Ihnfeldts’ seventh issue.

      XIV. Eighth Issue:    Were Reagan’s Attorney’s Fees Improperly
      Awarded for Lack of Supporting Documentation?

      In their eighth issue, the Ihnfeldts argue that the trial court erred when it

rendered judgment awarding Reagan her attorney’s fees because no supporting

documentation was submitted by Reagan’s counsel. The Ihnfeldts’ eighth issue

is premised on the assumption that Reagan had to use the lodestar method of

determining attorney’s fees. The Ihnfeldts rely exclusively upon El Apple I, Ltd. v.

Olivas, a case in which the lodestar method was required and in which the

evidence was insufficient to show compliance with it. See 370 S.W.3d 757, 764

(Tex. 2012).

                A. Briefing Deficiency

      An appellant’s brief must contain “a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.”

Tex. R. App. P. 38.1(i). Appellate issues not supported by argument, citations to

the record, or legal authority, present nothing for review.            Hernandez,

318 S.W.3d at 465.        Appellate courts have no duty—or even the right—to

perform an independent review of the record and the applicable law to determine

whether there was error. Id. If appellate courts were to do so, they would be



                                         34
abandoning their role as neutral adjudicators and become an advocate for that

party. Valadez, 238 S.W.3d at 845. In their brief, the Ihnfeldts have not shown

us where in the record they brought this complaint to the trial court’s attention or

where the trial court ruled adversely to them. See Tex. R. App. P. 33.1(a).

            B. Our Own Review of the Record

      Our review of the record shows Reagan’s attorney, Roger Yale, testified

that he had been a licensed attorney for nearly twenty years.           He worked

primarily in Denton, Collin, and Dallas Counties. Yale’s hourly billing rate was

$350 per hour, the attorney assisting Yale had an hourly billing rate of $200 per

hour, and Yale’s paralegal billed at $100 per hour. Yale testified that compared

to hourly billing rates in Denton County, his hourly billing rates were in the mid-

level range. He testified that Reagan hired him in January 2012, that he kept

hourly billing records in this case, and that, in conjunction with this case, he

prepared pleadings, responded to pleadings, propounded discovery with written

questions and oral depositions, attended oral depositions, retained an expert,

prepared for trial, defended a motion for summary judgment, and engaged in

other motion practice before the court. Yale thought there were a couple of

unique issues that might be questions of first impression. Yale stated that he and

his firm spent a significant amount of time on the unique issues, and he noted too

that this was a “heavy document case” requiring a significant amount of time.

Yale testified that this was also a multiple cause of action case and identified the

claims for fraud, violation of the Texas Property Code, the Texas Civil Practice


                                        35
and Remedies Code, breach of fiduciary duty, and attorney’s fees. He explained

that because the causes of action were so intertwined, he was not able to

segregate the attorney’s fees among them. Yale testified that he and his staff

spent over 450 hours on the case and that his total fees billed to date were about

$125,000. Yale thought $125,000 would be an appropriate sum to compensate

Reagan for her attorney’s fees through trial. He also thought that it would cost

$15,000 to successfully defend the case in the Fort Worth Court of Appeals and

another $15,000 to successfully defend it in the Texas Supreme Court. When

asked if Reagan’s case had an effect on his ability to work for other clients, Yale

responded, “[A]nytime that you spend the number of hours that we’ve spent, that

precludes employment . . . with other clients.” When asked why he thought these

attorney’s fees were necessary and reasonable, Yale responded that he thought

they were reasonable because the agreement was hourly and not a contingency

fee, because the issues were novel, because of “the type of case that has

occurred,” and because of his anticipation of success.

      The only questions asked on cross-examination were regarding how much

effort he had put into trying to segregate the fees, and Yale responded that he

spent less than two hours trying to segregate the fees before determining it was

not possible. There was no cross-examination regarding the reasonableness or

necessity of the fees.




                                        36
             C. Yale Relied on the Traditional Arthur Anderson Method of
             Calculating Attorney’s Fees

      When looking at Yale’s testimony, he articulates a number of the factors

listed in supreme court’s Arthur Anderson opinion traditionally used when

determining attorney’s fees. See Arthur Anderson & Co. v. Perry Equip. Corp.,

945 S.W.2d 812, 818 (Tex. 1997). Those factors are (1) the time and labor

required, the novelty and difficulty of the issues involved, and the skill required to

perform the legal service properly; (2) the likelihood that the acceptance of the

particular case will preclude other employment by the attorney; (3) the fee

customarily charged in the locality for similar legal services; (4) the amount

involved and the results obtained; (5) the time limitations imposed by the client or

by the circumstances; (6) the nature and length of the professional relationship

the attorney has with the client; (7) the experience, reputation, and ability of the

attorney or attorneys performing the services; and (8) whether the fee is fixed or

contingent on the results obtained or the uncertainty of collection before the legal

services have been rendered. Id.; AMX Enters., L.L.P. v. Master Realty Corp.,

283 S.W.3d 506, 517 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g).

Courts are not required to receive evidence on every one of those factors to

award attorney’s fees. Ferrant v. Graham Assocs., Inc., No. 02-12-00190-CV,

2014 WL 1875825, at *8 (Tex. App.—Fort Worth May 8, 2014, no pet.) (mem. op.

on reh’g). Under the traditional method of awarding attorney’s fees, documentary

evidence is not a prerequisite. Id. If the testimony regarding the hours of work



                                         37
required is not speculative, time sheets or other detailed hour calculations are not

required. Id. Under the traditional method of awarding attorney’s fees, the first

factor includes the time spent, and the third factor addresses the fee customarily

charged in the locality. See Arthur Anderson & Co., 945 S.W.2d at 818.

      Consequently, even under the traditional method, we would expect to see

testimony regarding how much time was put into the case and how much the

attorney’s time per hour was worth. See AMX Enters., L.L.P., 283 S.W.3d at

514–21. “This court has declined to extend El Apple to require time records in all

cases in which an attorney uses the attorney’s hourly rate to calculate the fee.”

Myers v. Southwest Bank, No. 02-14-00122-CV, 2014 WL 7009956, at *6 (Tex.

App.—Fort Worth Dec. 11, 2014, pet. denied) (mem. op.).

               D. The Lodestar Method

      In contrast,

      when applying for a fee under the lodestar method, the applicant
      must provide sufficient details of the work performed before the court
      can make a meaningful review of the fee request. For the purposes
      of lodestar calculations, this evidence includes, at a minimum,
      documentation of the services performed, who performed them and
      at what hourly rate, when they were performed, and how much time
      the work required.

El Apple I, Ltd., 370 S.W.3d at 764. Without evidence of the time spent on

specific tasks, the fact finder has insufficient information to meaningfully review a

fee request.    See Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014); City of

Laredo v. Montano, 414 S.W.3d 731, 736–37 (Tex. 2013). On appeal, this is

precisely the deficiency about which the Ihnfeldts complain.


                                         38
             E. What the Ihnfeldts Argued in the Trial Court

      At the charge conference, the Ihnfeldts objection to the jury question on

attorney’s fees was that there was no evidence that the services were necessary.

There was no mention of the lodestar method. There was no reference to the El

Apple opinion or any other case following it.

      In the Ihnfeldts’ “Motion to Disregard Jury Findings,” they complained that

there was no evidence to show that the attorney’s fees were necessary. They

did not mention the lodestar method. They did not cite the El Apple opinion or

any comparable case.

      At the hearing on the motion to disregard, the Ihnfeldts again argued the

evidence was “insufficient as a matter of law” to support the jury’s finding that the

attorney’s fees were necessary. As before, there was no mention of the lodestar

method and no reference to the El Apple opinion or its progeny.

      The complaint that the evidence is insufficient to show the reasonableness

and necessity of attorney’s fees applies equally to both the lodestar and

traditional methods of calculating attorney’s fees. The complaint itself does not

tell us against which of the two methods the evidence should be measured.

             F. Complaint on Appeal Does Not Match Complaint at Trial

      The complaint on appeal must be the same as that presented in the trial

court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). The Ihnfeldts in

their brief do not direct us to where they asserted in the trial court that Reagan

was proceeding under the lodestar method and failed to comply with it. Our


                                         39
independent review of the record does not show where any complaint based

upon the lodestar method was ever raised. The Ihnfeldts’ objection to the charge

at the formal charge conference was based on the absence of any evidence that

the fees were reasonable and necessary; they did not object on the basis that

they were not supported by the proper documentation. Their objection at the

postverdict hearing was also on whether the attorney’s fees were reasonable and

necessary. There was no complaint that Reagan was using the lodestar method

and had failed to support her claim for attorney’s fees with proper documentation.

The argument on appeal must comport with the argument at trial. See Basic

Energy Serv., Inc. v. D-S-B Props., Inc., 367 S.W.3d 254, 264 (Tex. App.—Tyler

2011, no pet.). Their complaint is not preserved for appeal. See id. In our case,

the record shows that Reagan was proceeding under the traditional method.

Under the circumstances, we decline to hold that she elected to proceed under

the lodestar system. Nothing in the record suggests the Ihnfeldts’ objection was

based on the lodestar method or El Apple. On this record, neither Reagan nor

the trial court had fair warning that Reagan had opted for a different method of

calculating attorney’s fees that might require additional evidence. See Tex. R.

App. P. 33.1(a). We decline to analyze the Ihnfeldts’ sufficiency complaint using

the lodestar method.

            G. Legal Sufficiency under the Traditional Method

      To the extent that the Ihnfeldts’ preserved their sufficiency complaint using

the traditional method of calculating attorney’s fees, although the uncontroverted


                                        40
testimony of an interested witness generally does nothing more than create a fact

issue, such testimony is taken as true as a matter of law if it is not contradicted

by any other witness or by attendant circumstances and is clear, direct, positive,

and free from contradiction, inaccuracies, and circumstances tending to cast

suspicion on it. See AMX Enters., L.L.P., 283 S.W.3d at 519–20. This exception

to the interested witness rule is especially true when opponents have the means

and opportunity of disproving the testimony if it is not true and fail to do so. Id. at

520. “[T]he [attorney’s] testimony is not conclusory when, as here, opposing

counsel likewise has some idea of the time and effort involved and if the matter is

truly in dispute, may effectively question the attorney about the reasonableness

or necessity of his fee.” Ferrant, 2014 WL 1875825, at *9. The evidence is

sufficient to show Reagan had to hire an attorney to sue the Ihnfeldts to get relief.

Although the Ihnfeldts complained the fees were unnecessary, they produced no

evidence calling into doubt any of them and made no effort on cross-examination

to question any portion of the fees. We hold that the evidence is legally sufficient

to support the reasonableness and necessity of the attorney’s fees under the

traditional method.

      We overrule the Ihnfeldts’ eighth issue.

      XV. Ninth Issue: Did Reagan Need to Segregate Her Attorney’s Fees?

      In the Ihnfeldts’ ninth issue, they assert that the trial court erred when it

awarded Reagan attorney’s fees because her fees were not segregated. They

complain that Reagan did not recover on all of her claims and that she did not


                                          41
recover against all of the defendants—namely, Tate, Kendrick, and Peggy

individually.14

       However, they do not show where this complaint was preserved in the trial

court. If no objection is made to the failure to segregate attorney’s fees at the

time the evidence of attorney’s fees is presented or at the time of the charge, the

error is waived. See Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997)

(“[I]f no one objects to the fact that the attorney’s fees are not segregated as to

specific claims, then the objection is waived.”); Rotella v. Cutting, No. 02-10-

00028-CV, 2011 WL 3836456, at *7 (Tex. App.—Fort Worth Aug. 31, 2011, no

pet.) (mem. op. on reh’g) (citing Green Int’l, Inc., 951 S.W.2d at 389); Holmes v.

Concord Homes, Ltd., 115 S.W.3d 310, 313 (Tex. App.—Texarkana 2003, no

pet.). We hold any alleged error based upon a failure to segregate was waived.

See Green Int’l, Inc., 951 S.W.2d at 389; Rotella, 2011 WL 3836456, at *7;

Holmes, 115 S.W.3d at 313.

       We overrule the Ihnfeldts’ ninth issue.

       XVI. Tenth Issue: Did the Trial Court Err by Striking the Ihnfeldts’
       Counterclaim?

       In the Ihnfeldts’ tenth issue, they argue that the trial court erred when it

granted Reagan’s motion to strike their original counterclaim for breach of the

notes. On November 25, 2013, the Ihnfeldts filed an original counterclaim for


       14
       Peggy, individually, is an appellant. She was a party to the invalidated
notes and deeds of trust and was a grantor of the property awarded to Reagan.


                                         42
breach of contract.     Specifically, they asserted that Reagan had signed a

promissory note for $124,240 for the purchase of a half-acre tract and had signed

a second promissory note for $696,960 for the purchase of a four-acre tract. The

Ihnfeldts asserted that Reagan had made only “approximately one years’ worth

of payments” on the note for $124,240 but “no others” and that she had not made

any payments on the note for $696,960. The Ihnfeldts sought damages and

attorney’s fees.

      On June 21, 2012, the trial court signed a “Scheduling Order” that made

February 28, 2013, the deadline to amend pleadings. The Ihnfeldts’ November

25, 2013 counterclaim missed that deadline.       Trial started on December 2,

2013—seven days later. A party must seek leave of court to file an amendment

after the deadline established by a scheduling order. Tex. R. Civ. P. 63. The

Ihnfeldts never filed a motion for leave.   Reagan, on the other hand, filed a

motion to strike in which she argued, among other arguments, that the Ihnfeldts

failed to seek leave of court.

      At trial, counsel for the Ihnfeldts argued, “[T]he bottom line is, is if they

succeed on their claims, then there is no breach of contract. But if they fail on

their claims, there is a breach of contract because she’s admitted there are no

payments.” Assuming, without deciding, that the trial court erred by striking the

Ihnfeldts’ counterclaim, we hold that they cannot show harm. Counsel for the

Ihnfeldts admitted at trial that their counterclaim was moot if Reagan prevailed.

Reagan prevailed. Only if Reagan lost were the Ihnfeldts in a position to be


                                       43
prejudiced. Because they lost, they never were in a position to be prejudiced by

the trial court’s ruling. Tex. R. App. P. 44.1(a). We overrule the Ihnfeldts’ tenth

issue.

         XVII. Conclusion

         Having overruled all of the Ihnfeldts’ issues, we affirm the trial court’s

judgment.



                                                    /s/ Anne Gardner
                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

DELIVERED: December 1, 2016




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