      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00508-CV



                          Alexander Tan and Lan Ly Tan, Appellants

                                                  v.

                       Antonio Di Napoli and Maya Di Napoli, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
    NO. D-1-GN-09-004258, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellants Alexander and Lan Ly Tan (collectively “the Tans”) filed suit to cancel

and rescind an executory contract for the purchase of a home owned by Antonio and Maya Di Napoli

(collectively “the Di Napolis”) and to receive damages under section 5.085 of the Texas Property

Code based on the Di Napolis’ failure to comply with statutory requirements for executory contracts

on residential property encumbered by existing liens. Tex. Prop. Code Ann. §§ 5.062 (limiting

applicability of subchapter to residential properties), .085 (West Supp. 2012) (prohibiting seller from

executing executory contract for encumbered residential property unless statutory requirements are

satisfied). The trial court determined that the Di Napolis violated section 5.085 as a matter of law

and rendered judgment in the Tans’ favor on a jury verdict awarding them $500,000 in damages.

On appeal, the Tans challenge the legal and factual sufficiency of the evidence to support the jury’s
damages findings, contending they were entitled to receive more than $1.9 million in statutory

damages. We will affirm.


                                         BACKGROUND

               In May 2007, the Tans and the Di Napolis entered into an executory contract in which

the Tans agreed to purchase a luxury home from the Di Napolis for $3.2 million (“the contract for

deed”). At that time, the home was subject to an existing purchase-money lien held by Washington

Mutual Bank, FA with a principal balance of $1.625 million. The existence and terms of this note

were known to the Tans long before they executed the contract for deed, and the note and principal

balance were referenced in the contract for deed. In fact, as part of the consideration for purchasing

the Di Napolis’ home, the Tans agreed to make monthly principal and interest payments to

Washington Mutual on the Di Napolis’ behalf in satisfaction of the existing lien. With regard to the

remaining portion of the purchase price, the Tans agreed to make several $240,000 lump-sum

principal payments to the Di Napolis at six-month intervals over a 30-month period and

quarterly interest payments. The Tans further agreed to pay $500,000 down in addition to a

$30,000 escrow payment.

               The deed of trust securing the Washington Mutual loan included a “due on sale”

clause, which authorized the bank to accelerate the loan if the Di Napolis transferred any legal or

beneficial interest in the property, including by contract for deed, without the bank’s consent. All

parties were aware of the existence and potential ramifications of the due-on-sale clause and were

represented by counsel in the transaction. When the time came to close on the transaction, however,

the Di Napolis had not obtained the bank’s consent and the Tans had not applied to assume the note,

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which was a condition precedent to obtaining the bank’s consent. The closing date was delayed to

address this issue and a dispute that had arisen between the Di Napolis and the neighborhood

homeowners’ association (“HOA”) regarding an easement to be conveyed along with the residential

property. The day before the scheduled closing, the HOA had filed a lis pendens notice against the

property in an effort to compel the Di Napolis to replat the residential property and the adjoining

easement property into a single tract.

               Although these circumstances were known to all parties, they nonetheless desired to

close the transaction without the matters having been resolved. In exchange for monetary

considerations (including a $10,000 cash credit at closing) and amendments to the contract to address

the lis pendens filing and the risk that the existing note could be accelerated, the Tans consummated

the sale against the advice of their attorney. Following closing, the monthly payments on the

Washington Mutual note were paid to the Di Napolis, rather than to the bank, in an apparent attempt

to prevent the bank from learning about the transaction and accelerating the note.

               Over the course of the two years that followed the closing, the Tans paid the interest

and principal on the Washington Mutual note fairly consistently, but they were frequently delinquent

on the periodic principal and interest payments on the balance owed to the Di Napolis. Because the

Tans were significantly in default on their payments, the Di Napolis twice instituted eviction

proceedings against them. Both suits were ultimately nonsuited pursuant to settlement agreements

that provided for monetary payments by the Tans to the Di Napolis in addition to amendment of

some of the terms of payment in the contract for deed.




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               After the second eviction proceeding was settled in the summer of 2009, the Tans

attempted to secure third-party financing —with Mrs. Tan’s father as the borrower—in order to meet

their obligations under the contract for deed. The bank’s appraisal of the home, however, was more

than $1 million less than the Tans had agreed to pay for the house, leaving a shortfall between the

amount the bank would lend and the amount the Tans still owed to the Di Napolis. The Tans asked

the Di Napolis to finance the shortfall, but the parties could not reach an accord regarding the

security the Tans would provide. Because the Tans remained unable to meet their financial

obligations to purchase the property, the Di Napolis filed a third eviction proceeding in

October 2009. By rule 11 agreement, the parties agreed that the Tans would vacate the premises on

December 15, 2009, and the Di Napolis would nonsuit the eviction proceedings.

               During the time the Tans occupied the property, the dispute with the HOA was

satisfactorily resolved when the property was replatted after the Tans gave notice in June 2009 of

an intent to cancel and rescind the contract for deed based on improper platting of the property. Both

parties accused the other of having been an impediment to the efforts to replat, but there is no

indication that this matter affected the parties’ ability to perform under the contract for deed. There

is also nothing in the record to suggest that Washington Mutual attempted or threatened to accelerate

the loan or otherwise interfered with the parties’ performance of the contract for deed.

               The day after vacating the premises—more than 30 months after closing on the

contract for deed—the Tans sued the Di Napolis asserting several causes of action, including an

action to cancel and rescind the contract for deed based on the Di Napolis’ failure to comply with

section 5.085 of the Texas Property Code, which (1) prohibits sellers from executing an executory



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contract on encumbered residential property unless certain statutory requirements are met, (2) entitles

the purchaser to cancel and rescind the contract, and (3) entitles the purchaser to recover from the

seller “all payments of any kind made to the seller under the contract,” “any payments the purchaser

made to a taxing authority for the property,” and “the value of any improvements made to the

property by the purchaser.” Id. § 5.085(a), (b), (c); see also id. § 5.062(a). The statutory

requirements at issue in this case are that (1) the lender does not prohibit the transaction and consents

to provide certain information to the purchaser about the loan upon request and to accept payments

directly from the purchaser if the seller defaults; (2) the seller provides a separate, written disclosure

to the purchaser at least three days before the contract is executed that includes specified information

about the loan and a conspicuous notice about the possibility of foreclosure upon the seller’s default;

and (3) the executory contract includes covenants regarding payment of the existing lien, notice of

default, and the purchaser’s right to cure defaults. Id. § 5.085(b)(3)(A)–(D). The statute further

provides that noncompliance with the foregoing requirements is actionable as “a false, misleading,

or deceptive act or practice” under the Texas Deceptive Trade Practices Act, Tex. Bus. & Com. Code

Ann. § 17.46 (West 2011). Id. § 5.085(c)(1).

                It is undisputed that the contract for deed here, which was drafted by the Tans’

attorney, did not include the required seller covenants. It is likewise undisputed that the Di Napolis

did not secure Washington Mutual’s consent as required under the deed of trust and failed to provide

the Tans with the statutory disclosures in the manner specified by section 5.085. Accordingly, the

trial court instructed the jury that the Di Napolis violated section 5.085 as a matter of law. The Tans’

damages were then determined by the jury pursuant to the following special-issue question:



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       What sum of money, if any, if paid now in cash, would fairly and reasonably
       compensate the Tans, for their damages, if any, that resulted from the Di Napolis’
       failure to comply with the Texas Property Code?

               Consider the following elements of damages, if any, and none other.

               Do not add any amount for interest on damages, if any.

               Do not include in your answer any amount that you find the Tans
               could have avoided by the exercise of reasonable care.

       Answer separately in dollars and cents for damages, if any.

               (a)     The amount of all payments of any kind made to the Di
                       Napolis under the Contract for Deed.

               Answer          $____________________

               (b)     The amount of any payments the Tans made to a taxing
                       authority for the Property.

               Answer          $____________________

               (c)     The value of any improvements made to the Property by the
                       Tans.

               Answer          $____________________


The Tans claimed they were entitled to $1,634,961.77 for amounts paid to or on behalf of the

Di Napolis under the contract for deed. This figure included downpayment money, the escrow fee,

closing costs, principal and interest on the Washington Mutual note, HOA fees and late fees, casualty

and personal property insurance premiums and late fees, various legal fees, taxes paid on other

property the Di Napolis owned, principal and interest payments on the amount owed to the

Di Napolis, sums paid pursuant to the settlement agreements, and moving expenses. The Tans

                                                 6
claimed that they were entitled to be reimbursed $32,898.63 for tax payments, including interest and

penalties for late payments. Finally, the Tans claimed $317,592.51 as the “value” of improvements

such as regular maintenance items, carpet and paint upgrades, cabinetry, and the cost of custom

furniture, blinds, and drapes that were removed from the property by the Tans. After a seven-day

trial, the jury awarded the Tans $500,000 for payments under the contract and zero damages for the

other two categories. The jury determined all of the Tans’ other claims for affirmative relief

adversely to them.

                The trial court rendered judgment on the jury’s verdict, denying the Tans’ motion for

judgment notwithstanding the verdict. The Tans’ subsequent motion for new trial was overruled by

operation of law. On appeal, the Tans challenge the amount of damages awarded on their section

5.085 claim, but they do not challenge the disposition of their other claims. The Di Napolis have

not appealed the adverse liability ruling on the section 5.085 claim or the trial court’s directed verdict

on their counterclaims against the Tans.


                                            DISCUSSION

                In two points of error, the Tans challenge the legal and factual sufficiency of the

evidence to support the jury’s award of damages. The Tans contend that they conclusively

established that they were entitled to recover more than $1.9 million under section 5.085.

Alternatively, the Tans contend that the jury’s damage award is against the great weight and

preponderance of the evidence, especially since the jury failed to award any damages for taxes and

the value of improvements.


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               When, as here, a party attacks the legal sufficiency of the evidence supporting an

adverse finding on an issue on which he had the burden of proof, he must demonstrate on appeal that

the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Corp.

v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam) (citing Sterner v. Marathon Oil Co.,

767 S.W.2d 686, 690 (Tex. 1989)). The reviewing court must first examine the record for evidence

that supports the finding, while ignoring all evidence to the contrary unless a reasonable fact finder

could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Dow Chem. Corp., 46 S.W.3d

at 241. If there is no evidence to support the finding, the reviewing court will then examine the

entire record to determine if the contrary proposition is established as a matter of law. Dow Chem.

Corp., 46 S.W.3d at 241. We will sustain such a legal-sufficiency challenge only if the contrary

proposition was conclusively established. Id.

               In a factual-sufficiency review, we consider and weigh all the evidence, both

supporting and contradicting the finding. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,

406-07 (Tex. 1998). A party attacking the factual sufficiency of the evidence supporting an adverse

finding on which he had the burden of proof must demonstrate that the jury’s answer is against the

great weight and preponderance of the evidence. Dow Chem. Corp., 46 S.W.3d at 242. We set aside

the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We may not substitute our

judgment for that of the trier of fact or pass on the credibility of the witnesses. See Maritime

Overseas Corp., 971 S.W.2d at 407. When presented with conflicting evidence, the trier of fact may



                                                  8
believe one witness and disbelieve others and may resolve inconsistencies in the testimony of any

witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

               As an initial matter, we address the Tans’ contention that they conclusively

established the amount of damages because neither the amounts of their payments nor their

documentary evidence in support of their damages was contested. While neither the Di Napolis nor

their expert witness disputed the actual sums the Tans paid, the Di Napolis did dispute whether the

amounts the Tans claimed were within the scope of the remedies specified in section 5.085. With

regard to the amounts the Tans claimed to have paid “under the contract,” there was a fact issue

about what sums were actually paid “under the contract” as opposed to under the settlement

agreements or extrinsic to any contract. For example, the Di Napolis assert that some of the Tans’

claimed damages were payments made to settle the eviction suits. In addition, the Tans sought

categories of damages that a fact finder could have concluded were not paid pursuant to the contract

for deed, such as moving expenses, casualty and personal property insurance premiums, late fees,

taxes paid on other property the Di Napolis own, and various legal fees. With regard to tax payments

for the property, the Tans sought to recover not only the amount of the taxes but also interest and

penalties incurred due to their failure to timely pay the taxes. Finally, the “value of improvements”

to the property was heavily disputed. The Tans assume that the value of improvements to the

property is equivalent to the costs they spent on the property for maintenance, repairs, custom

furniture, and various upgrades. However, the plain language of section 5.085 “measures the amount

of recovery by the ‘value’ rather than the ‘cost’ of such improvements.” Morton v. Hung Nguyen,

369 S.W.3d 659, 674 (Tex. App.—Houston [14th Dist.] 2012, pet. filed); see Tex. Prop. Code Ann.

                                                 9
§ 5.085(c)(2)(B)(ii). A genuine issue of material fact existed as to whether any value was added to

the property by virtue of the improvements and, if so, to what extent. In addition, the Tans’ expert’s

report indicates that not all damages were supported by documentary evidence, and therefore, the

jury would have to rely on the Tans’ testimony to substantiate their claims. Credibility of witnesses

is quintessentially a matter for the jury. Thus, contrary to the Tans’ assertion, the foregoing fact

issues warranted submission of the damages issue to the jury.

               When an issue of material fact is submitted to the jury, the sufficiency of the evidence

is measured by the questions and instructions in the charge. See Regal Fin. Co. v. Tex Star Motors,

Inc., 355 S.W.3d 595, 601 (Tex. 2010) (noting that evidentiary sufficiency must be measured against

jury charge); Romero v. KPH Consol., Inc., 166 S.W.3d 212, 221 (Tex. 2005); City of Fort Worth

v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000) (observing that court bound to review evidence in light of

instruction submitted to jury without objection); Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000)

(stating that when submitted without objection, court’s charge, not some other unidentified law,

measures sufficiency of evidence); see also Secure Comm, Inc. v. Anderson, 31 S.W.3d 428, 430-31

(Tex. App.—Austin 2000, no pet.) (holding that appellant waives right to complain of ruling to

which no error was assigned). In this case, the jury was asked to award “fair and reasonable”

compensation to the Tans that “resulted from” the Di Napolis’ failure to comply with the Texas

Property Code. They were also instructed not to include any amounts that “the Tans could have

avoided by the exercise of reasonable care.”

               When considering the evidence in light of the legal-sufficiency standard articulated

above and the jury charge, we conclude that there is some evidence to support the jury’s damages

                                                 10
findings and that the Tans did not conclusively establish their entitlement to more than $1.9 million

in damages. First, there is evidence from which the jury could have concluded that little, if any, of

the Tans’ damages “resulted from” the Di Napolis’ failure to comply with section 5.085 or that the

Tans could have mitigated their damages to a significant degree. There is no evidence that

Washington Mutual took any adverse action on the existing note or that the Di Napolis’ failure to

comply with section 5.085 impeded or prevented the Tans from meeting their obligations under the

contract. Conversely, there is considerable evidence that the damages the Tans sustained resulted

directly from their inability or unwillingness to meet their financial obligations under the contract

for deed and settlement agreements. The jury might also have reasonably concluded that it would

not be “fair and reasonable” to allow the Tans to recoup everything they paid after living in the home

for 30 months and inducing the Di Napolis to nonsuit the eviction proceedings in reliance on the

Tans’ settlement agreements and further promises to pay. Indeed, the jury might reasonably have

concluded that the Tans could have mitigated their damages by vacating the premises when they

were unable to pay their mortgage rather than negotiating to extend their stay in the home and incur

additional damages. It is also reasonable for the jury to have determined that at least some of the

damages the Tans claimed did not fall within the statutory remedies, including settlement payments,

moving expenses, legal fees, penalties, and custom furniture. Because there is some evidence to

support the jury’s failure to award the Tans all the relief they sought, the Tans did not conclusively

establish that they were entitled to recover the $1.9 million in damages to which they say they are

entitled. See Dow Chem. Corp., 46 S.W.3d at 241-42.



                                                 11
               In their second issue, the Tans contend that the jury’s damages award is against the

great weight and preponderance of the evidence because the amount awarded is so low in

comparison with the amount they proved they expended. They further contend that the jury was

required to award something with regard to taxes paid and value of improvements because there is

some evidence of both. It is true that the Tans expended a great deal of money on this property and

that the jury’s award is meager in comparison, but we cannot say that the evidence of the amounts

the Tans paid greatly preponderates against the jury’s verdict when compared to considerable

evidence supporting the jury’s verdict with regard to what damages are “fair and reasonable,”

“resulted from” the Di Napolis’ failure to comply with section 5.085, and could have been avoided

by the Tans with reasonable care. See Regal Fin. Co., 355 S.W.3d at 601 (evidentiary sufficiency

must be measured against jury charge).

               With regard to the value of improvements in particular, there was no evidence that

the value of the property increased after the Tans expended the sums they claimed for improvements.

There was considerable disputed evidence regarding the value of the property at the time the Tans

purchased it in 2007 and shortly before the Tans vacated the premises in 2009. At best, the evidence

shows that the property was valued about the same both before and after the Tans “improved” it.

At worst, the evidence showed that the property was worth about $1 million less. In addition, the

jury could reasonably have determined that many of the expenses sought to be recovered did not

qualify as improvements or add any value to the home—such as repairs, regular maintenance items,

and the thousands of dollars spent on custom furniture—or that the Tans could have avoided those

losses had they paid what they owed on their mortgage rather than incurring considerable expenses

                                                12
for custom furniture, new carpeting, and paint. In addition, there was evidence that the Tans

removed the custom furniture, drapes, and blinds from the property, such that those items could not

have added any value to the home. Finally, Antonio Di Napoli testified that additional repairs had

to be made after the Tans vacated the premises in order to make the home marketable for sale. “By

its plain language, the purchaser’s right to receive the ‘value of improvements’ under section 5.085

is designed to compensate the purchaser for value that is added by the purchaser to the property,

regardless of the reason, and that is retained by the seller after the purchaser properly cancels and

rescinds the contract for deed.” Morton, 369 S.W.3d at 674. In this case, the jury could reasonably

have concluded that the property did not increase in value due to the expenditures for which the Tans

seek reimbursement, and there is very little contrary evidence, let alone so much evidence as to

render the jury’s verdict clearly wrong and unjust. See Pool, 715 S.W.2d at 635.

               In summary, we conclude that the evidence was legally and factually sufficient to

support the jury’s award of $500,000 in damages to the Tans for payments made to the Di Napolis

under the contract and zero damages for tax payments and the value of improvements. We therefore

overrule appellate issues one and two.


                                         CONCLUSION

               For the reasons stated, we affirm the trial court’s judgment.




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                                           _________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: October 19, 2012




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