                             NUMBER 13-10-00232-CV

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


EZEQUIEL CASTILLO, INDIVIDUALLY, MARIA
DE LOS ANGELES CASTILLO, INDIVIDUALLY
AND AS NEXT FRIEND FOR ASHLEY CASTILLO
AND EZEQUIEL CASTILLO JR., AND ROSA
SILVIA MARTINEZ, INDIVIDUALLY,                                               Appellants,

                                                v.

FORD MOTOR COMPANY,                                                             Appellee.


                    On appeal from the 404th District Court
                         of Cameron County, Texas.


                    MEMORANDUM OPINION ON REMAND

    Before Chief Justice Valdez and Justices Garza and Benavides
      Memorandum Opinion on Remand by Chief Justice Valdez

       Appellants, Ezequiel Castillo, individually, Maria De Los Angeles Castillo,

individually and as next friend for Ashley Castillo and Ezequiel Castillo Jr., and Rosa Silva

Martinez, individually, appeal a take-nothing judgment in favor of appellee, Ford Motor
Company (“Ford”). Appellants contend on remand from the Texas Supreme Court that

the evidence was factually insufficient to support the jury’s finding that Ford proved its

affirmative defense of fraudulent inducement. We affirm.

                                    I.      BACKGROUND

       After being involved in a roll-over accident, appellants sued Ford for design defects

of their Ford Explorer’s roof and in its handling or stability, and a jury trial was held (“Ford

I”). Ford Motor Co. v. Castillo, 444 S.W.3d 616, 618 (Tex. 2014). At the time of the trial,

appellants’ attorney, Mark Cantu, began negotiating with Ford’s managing counsel, Pete

Tassie, for a settlement agreement. Id. Eventually, after several rejections of his offers,

Cantu offered to settle for $1.96 million and Tassie offered to settle for $1.5 million. Id.

In addition, Tassie recalled that Cantu had repeatedly stated that if the jury were to send

a note about damages, his demand would increase to $3 million. Id. The next day, during

the jury’s deliberations, the jury foreperson, Cynthia Cruz Cortez, sent a note to the judge

asking, “What is the maximum amount that can be awarded?” Id. at 619.

       Ford’s trial counsel, Eduardo Rodriguez, “immediately called Tassie in Michigan,

and, without hesitation, Tassie obtained authority from his supervisor to settle the case

for $3 million—the amount Cantu had said the day before he would demand if the jury

were to ask a question about damages.” Id. Shortly thereafter, “Cantu, who had been

unavailable all morning, called Tassie. Cantu initially stated that his demand should be

$10 or $15 million, but quickly agreed to settle the case for $3 million.” Id. After

discovering that the jurors were not discussing damages and that many of the jurors had

voted in favor of Ford, Ford refused to pay the $3 million settlement. Id.




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       Appellants then sued Ford for breach of contract (“Ford II”), and in its defense,

Ford claimed, among other things, fraudulent inducement. Id. A jury trial was held in

Ford II. As set out by the Texas Supreme Court, during the Ford II trial, many of the jurors

from Ford I testified to the following:

       Cortez kept trying to bring up the damages issue on her own, and sent the
       note against their specific requests that she not do so. These jurors also
       testified that all other notes were sent by unanimous agreement. One juror
       testified that on the morning the case settled—after the day-long recess
       caused by Cortez's absence—Cortez arrived in a “very happy, very upbeat”
       mood, and told the other jurors, “This will be settled today.”

Id. at 620. The Texas Supreme Court summarized Cortez’s testimony during the Ford II

trial as follows:

       Unlike the other jurors who testified, Cortez could not recall any of the
       pertinent details of the trial or the jury deliberations. Notably, Cortez could
       not recall why she sent the note in question, why exactly she did not show
       up for the second full day of deliberations, or why she had left the courtroom
       so quickly after the settlement was announced. Cortez also could not recall
       her cell phone number or carrier at the time, but signed a release permitting
       Ford to search for all cell-phone records registered to Cortez during the time
       of the products-liability trial, using her name, address, and date of birth.
       After denying that she spoke with any attorneys during the trial, Cortez was
       asked to explain a phone call on September 21, 2004 to the purported
       private cell phone of attorney and State Representative Jim Solis. Initially,
       Cortez explained that her husband probably made the call. When other
       evidence made that explanation unlikely, she speculated that the phone
       records were those of another Cynthia Cortez.

Id.
       The Ford II jury found in favor of Ford, and entered a take-nothing judgment against

appellants on their breach of contract claim. Id. Appellants appealed, and we reversed

finding that the evidence was legally insufficient to support the jury’s finding that Ford

justifiably relied on the juror note. Id. The Texas Supreme Court reversed our judgment

finding that the evidence was legally sufficient to support the jury’s verdict that Ford was




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fraudulently induced to enter the settlement agreement, and it remanded the case to this

Court to address appellants’ factual sufficiency challenge to the evidence. Id. at 623.

                                II.      STANDARD OF REVIEW

         We examine the entire record, considering both the evidence in favor of, and

contrary to, the challenged finding in our factual sufficiency review. Maritime Overseas

Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). In reviewing a factual-sufficiency

challenge to a finding on an issue on which the appellant did not have the burden of proof,

we will set aside the verdict “only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986).

         The fact-finder is the sole judge of the witnesses’ credibility and may choose to

believe one witness over another. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d

757, 761 (Tex. 2003). We may not substitute our own judgment for that of the jury, even

if we would reach a different answer based on the evidence. GTE Mobilnet of S. Tex.

Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied) (citing Maritime Overseas Corp., 971 S.W.2d at 407).

                                      III.    DISCUSSION

         In its supplemental brief on remand, appellants cite evidence in the record that

they allege was favorable to them. However, it is clear that, as the finders of fact, the jury

rejected this evidence and instead believed the witnesses and evidence that supported

Ford’s fraudulent inducement claim. The Texas Supreme Court concluded that the

evidence was legally sufficient as follows:

                On the first element [of fraudulent inducement], the jury was
         instructed that a material misrepresentation is a “false statement of fact.”

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Castillo argues that the note sent by Cortez asked a question, and therefore
cannot be a false statement of fact. Although the note does ask a question,
statements of fact are clearly implied. . . . Because the note implies
material statements that were false, we conclude that some evidence exists
of the first element of fraudulent inducement.

       On the second element, Ford was required to produce evidence
establishing that the note was sent by or at the direction of the plaintiffs or
their agents or representatives with knowledge it was false. Ford’s theory
was that Cantu, as plaintiffs’ representative, directed Cortez to send the
note.

       ....

       Here, there is enough circumstantial evidence to establish a
pattern—a pattern that reasonably implicates Cantu in Cortez’s fraudulent
scheme to send the note.

       ....

       Contrary to the court of appeals’ view, the trial evidence did not
establish that Cantu’s comments the day before the settlement were
customary of plaintiff’s attorneys, but rather the opposite. Tassie, who had
negotiated for Ford for more than ten years, including several prior dealings
with Cantu, had never heard such a specific contingency. Moreover, neither
Cantu nor any of the other attorneys involved in the case had ever seen
such a jury note before. Yet Cantu’s comments forecast such a note and
elaborated on the effect it would have on settlement negotiations. But the
unusual nature and prescient timing of Cantu’s statement is not the only
circumstantial evidence supporting the jury’s finding.

         On the brink of a Ford victory, Cortez precipitated a day-long recess
because of some serious illness or injury to one of her two children. At the
trial of this case, however, Cortez could not recall the illness or injury that
kept her at the hospital all night. The same day, Cantu, who had refused to
lower his settlement demand below $15 million during weeks of previous
negotiations, became more agreeable, reducing his demand to less than $2
million in just a matter of hours. Moreover, even after the surprising jury
note inquiring as to the maximum amount of damages it could award in a
case alleging damages of $35 million, Cantu remained agreeable to a
settlement of less than ten percent of that amount. Viewing this
circumstantial evidence in light of all the surrounding circumstances, the
jury could reasonably infer from the evidence that Cortez initiated the recess
in order to give Cantu more time to negotiate a settlement before the jury
foreclosed that possibility.



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             The inferences become stronger when the circumstantial evidence
      raises the inference of fraud, and the parties alleged to have engaged in the
      fraud fail to offer any proof of their legitimate or honest motives. Here, the
      explanations offered for Cantu and Cortez’s unusual and apparently
      coordinated conduct were lacking.

              For instance, Cortez was unwilling to offer any explanation for her
      actions. Even when she was summoned to testify, she offered no
      explanation, claiming instead that she could not remember any of the
      relevant details of the trial or deliberations. As for Cantu, he denied ever
      making the prediction about the note, instead admitting that it would have
      been unreasonable to make such a statement. He further justified his
      willingness to discount the extremely favorable note, and accept a fraction
      of his original demand, on fear that one of his expert’s testimony might
      provide Ford a fruitful appellate argument. While this concern possibly
      explains his settlement preference, it does not explain his willingness to give
      Ford such an extreme discount of the damages pled. The circumstantial
      evidence here is some evidence from which the jury could have reasonably
      inferred collusion between Cortez and Cantu in producing the fraudulent
      note.

             Having found evidence that Cortez colluded with Cantu, who
      unquestionably knew that jury notes would be shown to Ford’s attorneys,
      we necessarily find evidence of the third element—that Cortez sent the
      fraudulent note with the intent that Ford rely upon it.

              As to the fourth element—that Ford did not know the representation
      was false and actually and justifiably relied upon the representation—there
      is legally sufficient evidence of reliance for the same reasons we have found
      some evidence of a material misrepresentation. Castillo argues that any
      reliance on the note which induced Ford to enter the settlement was
      unjustified because Ford could not assume that the note containing the
      damages question indicated that the jury had reached any particular
      determination in the sequence of its deliberations nor could Ford assume
      that the note indicated the views of the jury collectively. As discussed
      above, however, the note did impliedly state these very facts that the jury
      was deliberating damages and intended to award the maximum amount, as
      well as that the note was from the jury collectively. Accordingly, because
      there is some evidence that Ford had no knowledge that these implications
      were false, there was some evidence that Ford was justified to rely on these
      implications in entering the settlement agreement.

Ford Motor Co., 444 S.W.3d at 621–23.




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        Appellants argue that the evidence was factually insufficient as to all elements of

fraudulent inducement1 because there was evidence of the following: (1) “A group of

jurors wanted to ask about damages”; (2) “This group was led by [another juror,] Ofelia

Ramos”; (3) “They wanted to send out a jury note about damages, and they ultimately

did”; (4) “They had the same kind of concerns that ordinary jurors have in civil trials across

the state”; (5) “They wanted to know about the money”; (6) “Anybody who has watched

civil juries knows that this is a common concern of normal jurors”; (7) “Nobody on the jury

had the slightest idea that the jury notes were visible to the litigants”; (8) the jury note

constituted a question and could not have been a statement2; (9) Ramos directed Cortez

to send out the complained-of note; (10) Cortez’s lack of recollection of the events that

transpired proves nothing3; (11) “Ford likely got its ‘votes’ [against finding liability for

appellants’ accident] because some jurors were using a criminal burden of proof. But

jurors are not locked in until the end”4; (12) Cortez was unaware that the parties and

attorneys would read the note5; and (13) “Ford had no right to assume that the note



        1 Ford prevailed on its fraudulent inducement claim because the jury found the following: (1) there
was a material misrepresentation; (2) “sent by or at the direction of [appellants] or their agents or
representatives with the knowledge it was false”; (3) “with the intent that [Ford] rely on the representation”;
(4) “that [Ford] did not know the representation was false and actually and justifiably relied upon the
representation”; and (5) “that [Ford] detrimentally relied upon the representation by entering into the
settlement agreement.” Ford Motor Co. v. Castillo, 444 S.W.3d 616, 621–23 (Tex. 2014).
        2   Appellants state, “There was no misrepresentation. The jury’s question made no representation
at all, let alone a false or material one.” However, as set out above, the Texas Supreme Court concluded
that the jury note implied material statements that were false, and it concluded that the note constituted
some evidence to support the jury’s finding that there was a misrepresentation.
        3 The Texas Supreme Court disagreed and concluded that Cortez’s inability to recall any details of
her jury service or explain what had occurred combined with other circumstantial evidence was “some
evidence from which the jury could have reasonably inferred collusion between Cortez and Cantu in
producing the fraudulent note.” Id. at 623.
        4   Appellants cite no evidence in the record supporting this claim.
        5However, the Texas Supreme Court found that the evidence supported a finding by the jury that
Cortez colluded with Cantu to defraud Ford and that Cantu “unquestionably knew that jury notes would be

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indicated the position of all 12 jurors as opposed to a subset” and “Ford had no right to

assume that the jurors could not even discuss damages along the way at any time they

wanted.”6

        Although appellants cite to the above-listed evidence as not supporting the jury’s

findings on each element of fraudulent inducement, they have not acknowledged any of

the evidence cited by the Texas Supreme Court that it found legally sufficient to support

the jury’s findings of each element. In addition, appellants have not explained how the

above-cited evidence is so contrary to the verdict as to make it clearly wrong and unjust.

See Golden Eagle Archery, Inc., 116 S.W.3d at 761 (explaining that in order for this Court

to properly apply our factual sufficiency review, when reversing on the basis of factual

insufficiency, we must in our opinions, “state in what regard the contrary evidence greatly

outweighs the evidence in support of the verdict”); Maritime Overseas Corp., 971 S.W.2d

at 407 (“[W]hen reversing a trial court’s judgment for factual insufficiency, the court of

appeals must detail all the evidence relevant to the issue and clearly state why the jury’s

finding is factually insufficient or so against the great weight and preponderance of the

evidence that it is manifestly unjust[, and] [t]he court of appeals must explain how the

contrary evidence greatly outweighs the evidence supporting the verdict.”). Moreover,

the above-cited evidence was rejected or disbelieved by the jury in this case as explained

by the Texas Supreme Court, including evidence that Ramos directed Cortez to send the

note. And, as the supreme court set out, the jury heard evidence supporting the following:



shown to Ford’s attorneys.” Id.
        6  The Texas Supreme Court disagreed, stating: “As discussed above, however, the note did
impliedly state these very facts that the jury was deliberating damages and intended to award the maximum
amount, as well as that the note was from the jury collectively.” Id.


                                                       8
(1) Cortez sent the note on her own initiative and without the other jurors’ permission and

over their objections; (2) Cantu predicted the “maximum damages” note on the evening

before the note was sent by Cortez; (3) prior to sending the note, Cortez predicted that

the case would “settle that day”; (4) the note constituted a material misrepresentation; (5)

Cortez and Cantu exhibited unusual and suspicious behavior before Cortez sent the

“maximum damages” note; (6) Cortez colluded with Cantu who unquestionably knew that

the note would be provided to Ford’s attorneys, which supported a finding that Cortez

sent the note with an intent that Ford rely upon it; (7) the note impliedly stated that the

jury was deliberating damages and intended to award the maximum amount and that the

note was sent collectively; (8) Ford’s attorneys entered the settlement agreement in

response to the note; (9) Ford’s attorneys understood the note to mean that the jury was

deliberating damages; (10) a note such as Cortez’s note is an extremely rare occurrence

and “none of the lawyers had ever encountered one before”; and (11) all the other notes

were sent by unanimous agreement of the jury.

        Examining the entire record, considering both the evidence in favor of, and

contrary to each element of fraudulent inducement, we cannot conclude that the weight

of the evidence is so contrary to the jury’s findings as to make those findings clearly wrong

and unjust. Dow Chem. Co., 46 S.W.3d at 242; Maritime Overseas Corp., 971 S.W.2d at

406–07; Cain, 709 S.W.2d at 176. Thus, we conclude that the evidence was factually

sufficient to support the challenged jury findings.7 We overrule appellant’s sole issue on

remand.


        7 Appellants contend that “[t]here is no evidence of intent as required by the jury charge.” However,
the Texas Supreme Court has already disposed of this issue concluding that “Cortez sent the fraudulent
note with the intent that Ford rely upon it.” See id.


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                                  IV.    CONCLUSION

      We affirm the trial court’s judgment.

                                                      /s/ Rogelio Valdez
                                                      ROGELIO VALDEZ
                                                      Chief Justice


Delivered and filed the
12th day of November, 2015.




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