Affirmed and Memorandum Opinion filed August 19, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00633-CV

                         JACQUELENE LY, Appellant
                                         V.

                             MY NGUYEN, Appellee

             On Appeal from the County Civil Court at Law No. 1
                           Harris County, Texas
                      Trial Court Cause No. 1004142

                MEMORANDUM OPINION
      This appeal involves challenges to the factual sufficiency of the evidence
supporting two jury findings adverse to the plaintiff as to her breach-of-contract
claim and promissory-estoppel claim. Concluding that the evidence is factually
sufficient to support the challenged findings, we affirm the trial court’s judgment.
                    I.    FACTUAL AND PROCEDURAL BACKGROUND

      In December 2010, appellee/defendant My Nguyen became engaged to
Kevin Ly, the brother of appellant/plaintiff Jacquelene Ly. My and Kevin were
married the following month, and within a year of the wedding date they separated.
A few months after the separation, Jacquelene filed suit against My seeking to
recover $10,000 Jacquelene advanced to help fund Kevin and My’s wedding.

          In a jury trial, Jacquelene presented various liability theories against My.
The jury made two findings adverse to Jacquelene as to her breach-of-contract
claim and promissory-estoppel claim. Jacquelene timely filed a motion for new
trial in which she challenged the factual sufficiency of the evidence supporting
these two findings. The trial court denied this motion for new trial. On appeal,
Jacquelene challenges the factual sufficiency of the evidence to support the two
jury findings.

                                     II.     STANDARD OF REVIEW

          When reviewing a challenge to the factual sufficiency of the evidence, 1 we
examine the entire record, considering both the evidence in favor of, and contrary
to, the challenged finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,
406–07 (Tex. 1998). After considering and weighing all the evidence, we set aside
the fact finding only if it is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust. Id. The trier of fact is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony. GTE
Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—Houston
[14th Dist.] 2001, pet. denied). We may not substitute our own judgment for that
of the trier of fact, even if we would reach a different answer on the evidence.
Maritime Overseas Corp., 971 S.W.2d at 407. The amount of evidence necessary
to affirm a judgment is far less than that necessary to reverse a judgment.
Pascouet, 61 S.W.3d at 616.


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    Jacquelene has not challenged the legal sufficiency of the evidence.

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                                     III.       ANALYSIS

      A. Factual Sufficiency of Evidence Supporting “No Agreement” Finding
      In response to question one, the jury found that Jacquelene and My did not
“enter into an agreement[] wherein [Jacquelene] would loan [My] the sum of
$10,000.” Jacquelene argues that the evidence is factually insufficient to support
the jury’s finding. At the charge conference, no party objected to this instruction;
therefore, we measure the sufficiency of the evidence using this instruction, even if
it does not correctly state the law. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.
2000).

      Jacquelene and My agree that a few days after My and Kevin became
engaged, Jacquelene provided $10,000 that ultimately was spent on My and
Kevin’s wedding. Jacquelene testified that she loaned the money to My; My
testified that Jacquelene loaned the money to Kevin.         Before My and Kevin
separated, My paid Jacquelene $3,000 as partial repayment of the debt. Shortly
after My and Kevin separated, Jacquelene issued My a check for $3,000.
Jacquelene testified that she wrote My the check because My had requested to
borrow another $3,000.      My stated that Jacquelene issued her the check to
reimburse her for paying $3,000 of Kevin’s debt. Jacquelene admitted that she
also had filed suit against Kevin, but she explained that she did so even though he
is not responsible because her attorney believed he is partially responsible.

      Jacquelene offered into evidence emails and text messages exchanged
among My, Kevin, and Jacquelene. In the text messages, Jacquelene asks My to
repay the debt My owes, and My consistently responds by informing Jacquelene
that she is trying to reach Kevin regarding the debt and that Kevin will be repaying
the debt. The emails submitted into evidence include an email from Kevin, in
which he asks Jacquelene to stop the court proceedings and informs her that he will

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repay the money “we” owe. Jacquelene responds to Kevin by clarifying that she is
not filing suit against him but, that, as far as she is concerned, My is the debtor.
She also notes in an email that she is considering sending My’s debt to collections,
an act that, according to Jacquelene’s email, would ruin My’s credit rating and
make it impossible for My to rent an apartment, which Jacquelene stated would
make her happy.

      My testified that the Vietnamese tradition is for the husband to pay for the
wedding. She stated that she contributed approximately $20,000 for the wedding
and Kevin contributed $10,000, which he borrowed from Jacquelene. My said that
Kevin promised to repay both My and Jacquelene. My testified that she never
borrowed money from Jacquelene and she repaid $3,000 of Kevin’s debt before the
separation because Kevin asked her to do so.

      Jacquelene asserts that the evidence is factually insufficient for a jury to find
that she and My did not have an agreement because (1) My’s testimony that she
did not borrow $10,000 from Jacquelene conflicted with a text message My sent
stating that Kevin asked her to get the money and he would pay Jacquelene back,
(2) Kevin used the term “we” in his email, and (3) My’s conduct in paying $3,000,
as a partial repayment of the loan, is an admission she owes Jacquelene the money.
Though some evidence at trial supported a finding of an agreement between
Jacquelene and My under which Jacquelene loaned My $10,000, a finding that
there was no such agreement is not against the overwhelming weight of the
evidence. Viewing My’s text message in the context of her testimony, the jury
could have determined that Jacquelene loaned $10,000 to Kevin and Kevin either
gave the money to My, or asked My to take possession of the money he borrowed
from Jacquelene to help fund the wedding. The jury could have credited My’s
testimony that she repaid Jacquelene because Kevin asked her to do so, not

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because she owed Jacquelene the money and that Jacquelene reimbursed My the
amount My paid on the debt when My and Kevin separated because Jacquelene
knew Kevin alone owed her $10,000. In the context of the testimony regarding the
purpose of the $10,000, Kevin used the term “we,” but his use of this term does not
fully support either party’s version of events. This communication, however, does
show that Kevin understood he owed Jacquelene money.                 Likewise, My’s
communications with Jacquelene show that My did not believe she had agreed to
repay Jacquelene $10,000.

      It was within the province of the jury, as the sole fact-finder and judge of the
witnesses’ credibility, to credit My’s testimony that she and Jacquelene did not
form any agreement. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757,
761 (Tex. 2003) (jury may choose to believe one witness over another). Under the
applicable standard of review, we conclude that the evidence is factually sufficient
to support the jury’s finding that Jacquelene and My did not enter into the loan
agreement as alleged by Jacquelene. See White Oak Operating Co., LLC v. BLR
Const. Companies, LLC, 362 S.W.3d 725, 732 (Tex. App.—Houston [14th Dist.]
2011, no pet.). Accordingly, we overrule Jacquelene’s first issue.

      B. Factual Sufficiency of Evidence              Supporting      Rejection    of
         Promissory-Estoppel Claim
      In response to question four, “Did Jacquelene Ly substantially rely to her
detriment on My Nguyen’s promise, if any, and was this reliance foreseeable by
My Nguyen?,” the jury answered “no.” Jacquelene asserts that the evidence is
factually insufficient to support the jury’s answer. At the charge conference, the
only objection to this question was that the question should not be submitted
because it was not supported by any evidence; therefore, we measure the
sufficiency of the evidence using this question, even if it does not correctly state
the law. See Osterberg, 12 S.W.3d at 55.
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      Jacquelene asserts that the parties’ emails, text messages, and My’s conduct
in repaying Jacquelene a portion of the loaned amount show that My promised to
pay Jacquelene. As previously explained, the emails and text messages exchanged
among the parties are factually sufficient to support a finding that My did not enter
into an agreement to borrow $10,000 from Jacquelene. My testified that she did
not borrow money from Jacquelene and that Kevin owed Jacquelene $10,000. The
jury was entitled to believe My’s testimony and disbelieve Jacquelene’s testimony.
By crediting My’s testimony that she told Jacquelene that Kevin would repay the
loan, the jury could have determined that My did not make a promise to repay
$10,000 or that Jacquelene did not substantially and foreseeably rely on such a
promise. See Golden Eagle Archery, Inc., 116 S.W.3d at 761 (Tex. 2003). Under
the applicable standard of review, we conclude that the evidence is factually
sufficient to support the jury’s finding regarding liability for the promissory-
estoppel claim. See White Oak Operating Co., LLC, 362 S.W.3d at 732.
Accordingly, we overrule Jacquelene’s second issue.

      C. Briefing Waiver
      In her third issue, Jacquelene asserts that My made misrepresentations to
Jacquelene and that Jacquelene should have recovered against My based on these
misrepresentations as an alternative to the breach-of-contract claim, such that the
trial court’s judgment is unsupported and against the great weight of the evidence.
But, the argument section of Jacquelene’s appellate brief does not address this
issue at all.   Jacquelene’s brief does not include any section containing (or
purporting to contain) a discussion of her third issue. She does not anywhere else
in her brief cite to any part of the record relating to a claim of misrepresentation or
make any specific argument relating to that issue.         In fact, nowhere else in
Jacquelene’s brief does she use the word “misrepresentation” or discuss any


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alleged misrepresentations.2 As to her third issue, Jacquelene has not provided any
argument, analysis, or citations to the record or legal authority. Even construing
Jacquelene’s brief liberally, we cannot conclude he has briefed the third issue
adequately. See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). Because that issue is inadequately
briefed, we overrule it. See id.

         D. Attorney’s Fees under Texas Rule of Appellate Procedure 45

         My’s appellate brief, construed liberally, contains a request for attorney’s
fees under Texas Rule of Appellate Procedure 45, entitled “Damages for Frivolous
Appeals in Civil Cases,” based on an allegation that Jacquelene’s appeal is
frivolous. See Tex. R. App. P. 45. This court may award just damages under Rule
45 if, after considering everything in its file, this court makes an objective
determination that the appeal is frivolous. Glassman v. Goodfriend, 347 S.W.3d
772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc). To
determine whether an appeal is objectively frivolous, the court reviews the record
from the viewpoint of an advocate and decides whether the advocate had
reasonable grounds to believe the case could be reversed. Id. But, Rule 45 does
not mandate that this court award just damages in every case in which an appeal is
frivolous. Id. The decision to award such damages is a matter within the court’s
discretion, which this court exercises with prudence and caution after careful
deliberation. Id. We conclude that damages under Rule 45 are not warranted in
this case. Accordingly, we deny My’s request for attorney’s fees under Rule 45.

                                          IV.     CONCLUSION

         The evidence is factually sufficient to support the jury’s findings regarding

2
    No fraud or misrepresentation claims were submitted to the jury.

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Jaquelene’s breach-of-contract claim and promissory-estoppel claim. Jacqueline
waived her third issue by failing to brief the issue adequately. Finally, damages
under Rule 45 against Jacquelene are not warranted. Accordingly, the judgment of
the trial court is affirmed, and My’s request for damages under Rule 45 is denied.



                                             /s/ Kem Thompson Frost
                                                 Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Wise.




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