                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00362-CV


RONALD B. "BUD" FORMAN, ARBORS                                APPELLANTS
DEVELOPMENT, LLC, AND THE
ROSEBUD DEVELOPMENT, LTD.

                                         V.

CLASSIC CENTURY HOMES, LTD.                                      APPELLEE


                                     ------------

         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 67-233602-08

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                       MEMORANDUM OPINION1

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                                  I. Introduction

     In three issues, Appellants Ronald B. “Bud” Forman; Arbors Development,

LLC; and The Rosebud Development, Ltd. (collectively, the Developers) appeal



     1
      See Tex. R. App. P. 47.4.
the trial court’s Modified Final Judgment. We will affirm in part and reverse and

remand in part.

             II. Procedural Background and Statement of Facts

      The Developers entered into two contracts, Phase I and Phase II, with

Appellee Classic Century Homes, Inc. (Classic) regarding residential lots located

within the Rosebud Development. The Phase I contract was signed August 16,

2002, and required Classic to purchase sixty-four single-family lots according to a

set schedule, referred to as a “Takedown Schedule.” The Phase II contract was

signed August 31, 2005, and required Classic to purchase forty-three additional

lots as set forth in a second Takedown Schedule. The Phase II contract also

required Classic to pay interest as set forth in the contract and all ad valorem

taxes, prorated from the date of the initial “Closing” to each respective purchase

date.2 Instead of purchasing forty-three lots by the required date of May 27,

2007, under the Phase II Takedown Schedule, Classic purchased only twenty

lots and did not pay the interest or ad valorem taxes on the remaining

unpurchased twenty-three lots.

      In addition, at closing, the Phase II contract required Classic to “reimburse”

the Developers $1,915.00 per lot for prepaid water taps or a “capital

improvement fee.” Therefore, for each of the Phase II lots purchased by Classic,



      2
       The contract stipulated that “the purchase and sale of the Lots shall be
closed in separate transactions . . . .”


                                         2
it paid the capital improvement fee to the Developers.3 However, in mid-2008

Classic learned that the Developers had not paid all the Phase II capital

improvement fees. In response, the Developers explained that (1) it was the

general course of business of the Developers to pay the fees when Classic was

ready to begin construction, (2) it was against the water district’s policy to allow a

developer to reserve a water meter for each specific lot, and (3) the district

limited the number of meters that could be reserved at one time based on

availability. The record does not contain an explanation of why then there was a

“prepaid” provision in the contract.

      In connection with borrowing money from the bank to purchase each lot

under Phase I and Phase II, which included the capital improvement fee, a HUD-

1 Settlement Statement was furnished to the bank.               In each Settlement

Statement, the Developers asserted that the capital improvement fee had been

paid. However, in what the Developers asserted was their general course of

business, it did not pay a fee for each lot but instead paid for a group of lots and

then applied the fee to individual lots as builders began construction. According

to Classic, the Developers did not disclose this methodology. Consequently,

twenty-five of the lots’ capital improvement fees had not been paid and as a

result, those fees would have to be paid “again” in order for Classic to begin

building.

      3
      Classic paid a total of $19,150 for the prepaid water meters under the
Phase II contract.


                                          3
      As a result of its paying capital improvement fees that had in fact not been

paid, Classic sued the Developers on October 28, 2008,4 asserting breach of

contract and fraud, among other causes of action.                 The Developers

counterclaimed for Classic’s failure to purchase all of the lots agreed to pursuant

to the Takedown Schedules. After a trial to the bench, with findings of fact and

conclusions of law made, the trial court awarded compensatory and exemplary

damages to Classic and a take nothing judgment as to the Developers’

counterclaim. This appeal resulted.

          III. Trial to the Bench and Evidentiary Sufficiency Challenges

      A trial court’s findings of fact have the same force and dignity as a jury’s

answers to jury questions and are reviewable for legal and factual sufficiency of

the evidence to support them by the same standards. Catalina v. Blasdel, 881

S.W.2d 295, 297 (Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d

791, 794 (Tex. 1991); see also MBM Fin. Corp. v. Woodlands Operating Co., 292

S.W.3d 660, 663 n.3 (Tex. 2009).

      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


      4
       The Second Amended Petition was the live pleading at trial.


                                         4
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

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

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

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

fact-finder could and disregard evidence contrary to the finding unless a

reasonable fact-finder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

      Any ultimate fact may be proved by circumstantial evidence. Russell v.

Russell, 865 S.W.2d 929, 933 (Tex. 1993).             A fact is established by

circumstantial evidence when the fact may be fairly and reasonably inferred from

other facts proved in the case. Id. However, to withstand a legal sufficiency

challenge, circumstantial evidence still must consist of more than a scintilla.

Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995).

      When reviewing an assertion that the evidence is factually insufficient to

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

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)




                                        5
(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965).

                                     IV. Laches

      In its first issue, the Developers assert that Classic’s claims are barred by

the doctrine of laches and by the contractual provision that all representations by

either party only survive the contract by one year.

      To prevail on the affirmative defense of laches in this case, the Developers

had to show that (1) Classic had a legal or equitable right and unreasonably

delayed in asserting that right, and (2) the Developers suffered harm as a result

of the delay. Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215,

229 (Tex. App.—Fort Worth 2009, pet. denied) (citing Rogers v. Ricane

Enterprises, Inc., 772 S.W.2d 76, 80 (Tex. 1989)); see also City of Fort Worth v.

Johnson, 388 S.W.2d 400, 403 (Tex. 1964).

      As to the first prong, the Developers assert that there was an

“unreasonable delay” between Classic entering into the Phase I contract in 2002

and the filing of the suit in 2008. However, the evidence shows that Classic did

not discover the nonpayment of the water tap fees until mid-2008, not 2002, and

filed suit shortly thereafter. Condom Sense, Inc. v. Alshalabi, 390 S.W.3d 734,

758 (Tex. App.—Dallas 2012, no pet.) (holding in a trademark infringement case

that the period of laches began when the owner of the mark had knowledge of

the allegedly infringing use).    Because there was no unreasonable delay by

Classic in asserting its rights, this argument is without merit.


                                          6
      The Developers next seem to argue that the complaints regarding the

Phase I contract were not raised until the Second Amended Original Petition and

that the “delay” was the time between the filing of the Original Petition and this

second pleading.    However, both the Original Petition and Classic’s demand

letter identified the lots in which the fees had not been paid; rather, the error was

in failing to recognize that some of those lots were under the Phase I Contract.

This distinction, however, is immaterial; because once the lots are specified, then

they are easily identified and there would be no difficulty in ascertaining whether

the capital improvement fees had been paid.

      The Developers also assert that is was

      unable to adequately prepare a defense or ascertain the true facts
      being used against them . . . [in that they] prepared for and
      presented this case under the justified presumption that [Classic]
      had erroneously included properties governed by the Phase I
      Contract in its pleaded claims on the Phase II Contract.

This assertion is again without merit because Classic specifically identified the

lots in the original petition, just not whether they were designated in Phase I or

Phase II.

      The Developers lastly argue that had Classic initially complained about the

Developers’ methodology regarding the capital improvement fees, it “would no

doubt stand before this Court in a much different position today for they would

not have been subjected to a breach of contract or fraud claim.” Again, the

record demonstrates that Classic was unaware of the Developers’ methodology

until after it entered into the Phase II contract. As such, Classic could not have


                                         7
questioned the methodology before then and, in fact, filed suit shortly after the

discovery. The evidence is legally and factually insufficient to support a finding of

laches under these facts. This portion of the Developers’ first issue is overruled.

      The Developers next assert that the language in the contract limited the

survival of any and all complaints about the contract, including the prepaid fee

methodology, to a period of one year after Closing,5 and therefore, Classic’s

claims are time barred. This assertion however was not pleaded nor brought

forth at trial and hence is not preserved for our review. Tex. R. App. P. 33.1.

The final portion of Developers’ first issue is overruled.

                             V. Exemplary Damages

      In the Developers’ second issue, they assert that there was not clear and

convincing evidence of fraudulent inducement to warrant the award of exemplary

damages to Classic.

   A. Clear and Convincing Evidence and Sufficiency of that Evidence

      Clear and convincing evidence is that measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established. Tex. Civ. Prac. & Rem. Code Ann.

§ 41.001(2) (West 2008); Tex. Fam. Code Ann. § 101.007 (West 2014); U-Haul

Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); State v. K.E.W., 315


      5
       Each contract contained a limitation clause providing that “[a]ll
representations, warranties[,] and covenants and agreements made by Seller
and Purchaser herein shall survive the Closings for a period of one year only.”


                                          8
S.W.3d 16, 20 (Tex. 2010). This intermediate standard of proof falls between the

preponderance standard of proof of most civil proceedings and the reasonable

doubt standard of proof of most criminal proceedings. In re G.M., 596 S.W.2d

846, 847 (Tex. 1980); State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).

While the proof must be of a heavier weight than merely the greater weight of the

credible evidence, there is no requirement that the evidence be unequivocal or

undisputed. Addington, 588 S.W.2d at 570.

      We review all the evidence in the light most favorable to the finding.

Waldrip, 380 S.W.3d at 138; Columbia Med. Ctr. Of Las Colinas, Inc. v. Hogue,

271 S.W.3d 238, 248 (Tex. 2008). We resolve any disputed facts in favor of the

finding if a reasonable fact-finder could have done so, and we disregard evidence

contrary to the finding unless a reasonable fact-finder could not. K.E.W., 315

S.W.3d at 20; Hogue, 271 S.W.3d at 248.        That is, we consider undisputed

evidence even if it is contrary to the finding.    Hogue, 271 S.W.3d at 248;

Keller, 168 S.W.3d at 817.

      The fact-finder, not this court, is the sole judge of the credibility and

demeanor of the witnesses. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). We

must not supplant the trial court’s judgment with our own. In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2008); see also Barker v. Eckman, 213 S.W.3d 306, 314

(Tex. 2006).

      Evidence that merely exceeds a scintilla is not legally sufficient. K.E.W.,

315 S.W.3d at 20.      In evaluating the evidence for factual sufficiency, we


                                       9
determine whether, on the entire record, a fact-finder could reasonably form a

firm conviction or belief that its finding was true. In re H.R.M., 209 S.W.3d at

108. If we determine that no reasonable fact-finder could form a firm belief or

conviction that its finding was true, then we must conclude that the evidence is

legally insufficient. Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 170

(Tex. 2005) (op. on reh’g); Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.

2004).

   B. Fraudulent Inducement

      Texas law has long imposed a duty to abstain from inducing another to

enter into a contract using fraudulent misrepresentations. Formosa Plastics v.

Presidio Eng’rs, 960 S.W.2d 41, 46 (Tex. 1998). It is well established that the

legal duty not to fraudulently procure a contract is separate and independent

from the duties established by the contract itself. Id. Prior decisions also clearly

establish that tort damages are not precluded simply because a fraudulent

representation causes only an economic loss.         Id. at 47.   Accordingly, tort

damages are recoverable for a fraudulent inducement claim irrespective of

whether the fraudulent representations are later subsumed in a contract, or

whether the plaintiff only suffers an economic loss related to the subject matter of

the contract. Id.

      To prevail on a claim for fraudulent inducement and avoid application of

the economic loss rule, a claimant must prove by clear and convincing evidence

that (1) the defendant made a material representation; (2) the representation was


                                        10
false; (3) at the time the representation was made, the defendant either knew it

was false or made it recklessly without any knowledge of the truth and as a

positive assertion; (4) the defendant made the representation with the intent that

the claimant would act upon it; (5) the claimant relied on the representation; and

(6) the claimant suffered damages as a result. See Italian Cowboy Partners, Ltd.

v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 338 (Tex. 2011); Aquaplex Inc. v.

Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (per curiam). The

fraudulent inducement elements are similar to the elements of statutory fraud

involving real estate, which are:

      (a) Fraud in a transaction involving real estate or stock in a
      corporation or joint stock company consists of a

             (1) false representation of a past or existing material fact,
             when the false representation is

                   (A) made to a person for the purpose of inducing that
                   person to enter into a contract; and

                   (B) relied on by that person in entering into that
                   contract.

Tex. Bus & Com. Code Ann. § 27.01(a) (West 2009).

      The record does not contain any evidence that the Developers would

prepay the capital improvement fees for the lots purchased under the Phase 1

contract, and in fact, the disclaimer previously set forth is of the opposite intent

under the contract.6 The only evidence regarding the prepayment of fees is a

      6
          The Phase I contract contained an expressed disclaimer of any
representations with respect to the availability or any existence of water, sewer,
or utilities.

                                        11
statement in the HUD-1 Settlement Statement that those fees had been paid.

This representation, however, was made to the lending bank after the execution

of the Phase I contract and was not made to Classic. See Valsangiacomo v. Am.

Juice Imp., Inc., 35 S.W.3d 201, 209 (Tex. App.—Corpus Christi 2000, no pet.)

Further, no evidence was presented that this representation was made with the

intent that Classic would rely on it, and as a result, we hold that the evidence is

legally and factually insufficient to support a finding of fraudulent inducement as

to the Phase I contract. As such, the first portion of the Developers’ second

issue is sustained.

      However, the same is not true of the lots purchased under the Phase II

contract, which required Classic to pay the Developers at closing for “prepaid

water taps.” Turning to the elements of fraudulent inducement previously set

forth, we hold that (1) the Developers made a material representation when they

asserted that the expense charged to Classic was to cover the fees for water

taps already paid by the Developers, which for all forty-three lots would be

potentially in excess of $82,000.00—an amount which certainly constitutes a

significant amount of money and a material term, (2) this representation was

false because the water taps were not previously paid, (3) since it was the

Developers who were supposed to have paid the fees, they were in a position to

know that these fees had not been paid at the time they made the assertion, (4)

the Developers received the money from Classic for the supposed prepaid

capital improvement fees, demonstrating their intent that Classic rely on the


                                        12
representation, which it did by paying the fees, and (5) these actions by the

Developers caused damages to Classic when Classic later had to pay the fees a

second time because they had not been previously paid.            We hold that the

evidence meets the clear and convincing standard as to all elements of the

fraudulent inducement claim and as to statutory fraud in real estate transactions.

      We therefore sustain the Developers’ second issue with respect to the lots

referenced in the Phase I contract and overrule the Developers’ second issue

with respect to the lots referenced in the Phase II contract.

                                VI. Counterclaim

      In their final issue, the Developers assert error on the part of the trial court

by denying their claim for breach of contract against Classic because they

conclusively established that breach with respect to the Phase II contract.

      There is no question that Classic breached the Phase II contract as it was

originally entered into. Classic agreed to purchase forty-three residential lots

according to five transactions set forth in the Takedown Schedule, and Classic

did not meet the schedule. Classic purchased only twenty lots. The question,

however, is whether the contract was enforceable when breached. Paragraph 5

of the Phase II contract states that “[a]s a condition to keeping this contract in

effect, [Classic] shall deposit earnest money (“Earnest Money”) in the amount

of . . . ($43,000.00) with [the Developers] within five (5) days of the start of

construction.”   Classic never deposited any money.         The contract also has

language concerning “Substantial Completion” of the lots, which in part states


                                         13
“that water and sewer taps are available to each of the Lots subject to the

payment of all tap-in fees . . . the payment of which is the obligation of the

Purchaser.” Forman acknowledged at trial that having water to the lots was a

condition of substantial completion because no builder wanted to buy lots that he

could not then begin building upon.      Jimmy Morrow, owner of Classic, also

testified that the subdivision would not have been substantially complete and the

lots would be worthless to the builder without water. Closing was predicated on

substantial completion of the lots, which did not occur.

      Therefore, the Developers failed to prove that they had performed their

obligations under the contract with respect to substantial completion, and Classic

had not performed its obligation with respect to payment of the earnest money.

In order to recover for breach of contract, the Developers were required to prove

that they had actually performed.     See McLaughlin, Inc. v. Northstar Drilling

Techs., Inc., 138 S.W.3d 24, 27 (Tex. App.—San Antonio 2004, no pet.). A

breach of reciprocal promises in a contract by one party excuses performance by

the other party.   Shaw v. Kennedy, Ltd., 879 S.W.2d 240, 247 (Tex. App.—

Amarillo 1994). A party that has breached the contract itself cannot then insist

on performance by the other party. Mustang Pipeline Co., Inc. v. Driver Pipeline

Co., Inc., 134 S.W.3d 195, 196 (Tex. 2004); E. Friedman & Assocs., Inc., 412

S.W.3d 561, 565 (Tex. App.—Amarillo 2013, no pet.). Nor can a party in breach

recover damages for a subsequent breach of the agreement by the other party.

Green v. A.R. Clark Inv. Co., 363 S.W.2d 802, 815 (Tex. Civ. App.—Fort Worth


                                        14
1962), rev’d on other grounds, 375 S.W.2d 425 (Tex. 1964); Colorado Interstate

Gas Co. v. Hunt Energy Corp., 47 S.W.3d 1, 9–10 (Tex. App.—Amarillo 2000,

pet. denied).   Furthermore, a party in breach may not set up a subsequent

breach by the other party to provide relief from its own breach. Mead v. Johnson

Group, Inc., 615 S.W.2d 685, 689 (Tex. 1981). Therefore, the Developers had

already breached the contract by not substantially completing the lots when

Classic breached by failing to pay the earnest money.

      Further, as a general rule, a contract procured by fraud is not void but

voidable by the defrauded party. Formosa Plastics Corp., 960 S.W.2d at 46. A

contract that is voidable because it was the product of fraud remains enforceable

and is voided only if the defrauded party proves a right to avoid the contract and

chooses to do so. Harris v. Archer, 134 S.W.3d 411, 428 (Tex. App.—Amarillo

2004, pet. denied); see Swain v. Wiley College, 74 S.W.3d 143, 146 (Tex. App.—

Texarkana 2002, no pet.).     In this sense, fraudulent inducement is properly

characterized as a valid defense to enforcement of a contract. Williams v. Glash,

789 S.W.2d 261, 264 (Tex. 1990); see McLernon v. Dynegy, Inc., 347 S.W.3d

315, 328 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

      Thus, once a defrauded party discovers the fraud, he is entitled to the

choice of his remedies: “He may stand to the bargain and recover damages for

the fraud, or he may rescind the contract, and return the thing bought, and

receive back what he paid.” Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671,

676–77 (Tex. 2000) (citing Dallas Farm Mach. Co. v. Reaves, 307 S.W.2d 233,


                                       15
238–39 (Tex. 1957)).     If a party induced by fraud to enter into a voidable

agreement engages in conduct that recognizes the agreement as subsisting and

binding after the party has become aware of the fraud, the party thereby ratifies

the agreement and waives any right to assert the fraud as basis to avoid the

agreement. Harris, 134 S.W.3d at 427 (emphasis added) (citing Rosenbaum v.

Texas Bldg. & Mortg. Co., 167 S.W.2d 506, 508 (Tex. 1943)). Here, Classic filed

suit shortly after discovering the water tap fee misrepresentation and did not

proceed under the contract; thus, Classic did not waive its rights to a legal

damage remedy.

      Therefore, we hold that the contract was unenforceable as to the

Developers’ counterclaim and overrule their third issue.

                                VII. Conclusion

      Although the exemplary damages could have been awarded based solely

on the fraudulent inducement as to the Phase II contract, they could also have

been based on Classic’s argument that it had to borrow an additional $50,000 to

prepay the fees for lots under both the Phase I and Phase II contracts.7 Thus,

although we have found that the fraud finding is supported by sufficient evidence

as to Phase II, we must nevertheless remand the exemplary damages award for


      7
       Classic argues in its brief that “Each of the settlement statements contains
a false representation that the ‘water meters’ were prepaid. Based on that
misrepresentation, [the Developers] caused Classic to borrow money and
‘reimburse’ for those sums which had never been paid in the amount of
approximately $50,000.”


                                        16
the trial court to determine whether that award should be reduced in light of our

holding as to Phase I. Alamo Nat. Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.

1981); Tex. Civ. Prac. & Rem. Code Ann. § 41.003 (West 2008 & Supp. 2014).

We reverse the trial court’s judgment in part and remand this case to the trial

court for a recalculation of the exemplary damages only.          We affirm the

remainder of the trial court’s judgment, including the take-nothing judgment as to

Developers’ counterclaim.



                                                  /s/ Bob McCoy

                                                  BOB MCCOY
                                                  JUSTICE

PANEL: MCCOY and GABRIEL, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: December 4, 2014




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