                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-18-00119-CV


EUSEBIO PALACIOS                                                    APPELLANT

                                        V.

JAYABEN PATEL                                                         APPELLEE

                                     ----------

          FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 048-262207-12

                                     ----------

                         MEMORANDUM OPINION1

                                     ----------

      Eusebio Palacios (Palacios) appeals from a final judgment awarding

damages to Jayaben Patel (Patel). Patel had sued Palacios and several others to

establish title to a home and recover alleged damages. Per the final judgment, the

trial court ordered that “on the causes of action for Trespass to Real Property,

Conversion[,] Fraud, Negligence, Trespass to Try Title to Action, and Suit to Quiet


      1
       See Tex. R. App. P. 47.4.
Title, . . . Patel shall have and recover JUDGMENT, jointly and severally, against

Defendants Herbert Harris, H&H Global, Vicki Young and Eusebio Palacios for the

total amount of $135,000.00 (No/100 Dollars).”        So too did it award Patel

1) exemplary damages “against all Defendants, jointly and severally” in the amount

of $60,000 and 2) attorney’s fees, both through trial and on appeal. Palacios

asserts numerous issues in an effort to reverse the judgment or portions of it. 2

Upon considering them, we suggest a remittitur, the acceptance of which by Patel

will result in the reversal of portions of the trial court’s judgment. Should Patel

reject the suggestion of remittitur, we will not only reverse portions of the trial

court’s judgment but also remand for a new trial the civil conspiracy and conversion

causes of action. Regardless of whether Patel accepts the suggestion of remittitur,

we affirm the portion of the trial court’s judgment declaring Patel to be the

property’s owner.

      Background

      The dispute arose when Patel left her home for a trip to India. While gone,

Herbert Harris caused the home’s contents to be removed and ownership of the

realty to be placed in his name. None of this occurred with Patel’s knowledge or


      2
       Patel filed an appellee’s brief bereft of citation to the record and to legal
authority. Needless to say, her effort did not comport with the briefing
requirements imposed on appellees by the Texas Rules of Appellate Procedure.
See Tex. R. App. P. 38.1(i) (stating that the brief must contain a clear and concise
argument for the contentions made with appropriate citations to authorities and the
record); Tex. R. App. P. 38.2(a) (stating that the appellee’s brief generally must
conform to the requirements of Rule 38.1).


                                         2
approval but rather through forged instruments purportedly notarized by Vicki

Young and Gloria Andrews. Thereafter, Harris purportedly sold the house to

Palacios for $75,000.

      Patel eventually returned from India to discover what had occurred. Her

discovery caused her to initiate the lawsuit underlying this appeal. Through her

live pleading she alleged causes of action for “Trespass to Land,” “Conversion,”

“Fraud,” and “Negligence.” Furthermore, in her opening paragraph under the

heading “Facts,” she also stated that “[t]his action is one for Trespass to Try Title

under Chapter 22 of the Texas Property Code, and Rules 783 et seq., of the Texas

Rules of Civil Procedure.”

      Patel later moved for a partial summary judgment declaring her to be the

owner of the property. The trial court granted her that limited relief and entered a

partial summary judgment ordering that she be “declared the lawful owner of” the

real estate.3 The remaining causes of action then were tried to the court. Palacios

was the only defendant to appear and participate in that proceeding. Once it

ended, the trial court executed its final judgment, resulting in this appeal.

      Trespass to Try Title and Suit to Quiet Title

      The first issues we address involve causes of action mentioned in Patel’s

motion for partial summary judgment but allegedly omitted from her live pleading,

i.e., her first amended petition. The causes of action were to quiet title and to try


      3
       This declaration was not manifested in the final judgment, though.


                                          3
title. Because they were not alleged in the live pleading, Palacios contended that

they could not provide a basis for recovery. We overrule the issues.

      Regarding the complaint about the trespass to try title cause of action, we

again note that it was mentioned in Patel’s live pleading. It appeared in the first

sentence of her opening paragraph under the category “Facts.” So, it cannot be

said that Palacios was denied notice of the action. And, assuming the allegation

was defective, he had the obligation to specially except to it to preserve his

complaint. See Swett v. At Sign, Inc., No. 02-08-00315-CV, 2009 WL 1425161, at

*3 (Tex. App.—Fort Worth May 21, 2009, no pet.) (mem. op.) (holding that pleading

defects are waived unless specifically mentioned in a written exception brought to

the attention of the trial court before the judgment is signed in a nonjury case).

Since no special exceptions were filed before the trial court granted summary

judgment, complaints pertaining to their sufficiency were waived. Id.

      As for the action to quiet title, nothing was said in the first amended petition

about it. Yet, the cause of action was one of the two grounds upon which Patel

sought partial summary judgment. Furthermore, the partial summary judgment

motion was served upon counsel for Palacios along with notice of the hearing date.

Palacios filed nothing in response, though; nor did he otherwise object to Patel’s

effort to obtain judgment on the unpled claim. This omission was fatal given Rule

166a(c) of the Rules of Civil Procedure.

      Per Rule 166a(c), “[i]ssues not expressly presented to the trial court by

written motion, answer[,] or other response shall not be considered on appeal as


                                           4
grounds for reversal.” Tex. R. Civ. P. 166a(c); Margetis v. Frost Nat’l Bank, No. 02-

12-00027-CV, 2012 WL 4936611, at *2 (Tex. App.—Fort Worth Oct. 18, 2012, no

pet.) (mem. op.). Here, Palacios is not arguing that Patel failed to establish her

entitlement to summary judgment as a matter of law. Rather, he broached a

pleading deficiency about which he never complained to the trial court.

Consequently, that pleading deficiency may not serve as a basis for reversing the

partial summary judgment. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d

492, 495 (Tex. 1991) (holding that “[i]f the non-movant does not object to a

variance between the motion for summary judgment and the movant’s pleadings,

it would advance no compelling interest of the parties or of our legal system to

reverse a summary judgment simply because of a pleading defect”).

      Negligence

      Next, Palacios argued that “[a]lthough Patel did plead negligence, she did

not plead negligence against [him].” The claim allegedly encompassed only “Vicki

Young and Gloria Andrews.” Consequently, “[t]here is . . . no pleading to support

judgment as to negligence against Palacios[,] and the judgment should be

reversed.” We sustain the issue.

      Palacios’s contention that judgments must conform to the pleadings is quite

accurate. See Tex. R. Civ. P. 301 (so requiring); Jackson v. Kisiah, No. 02-12-

00371-CV, 2013 WL 3064517, at *1 (Tex. App.—Fort Worth June 20, 2013, no

pet.) (mem. op.). Normally, a party may not obtain a judgment based upon a theory

he failed to plead.    Jackson, 2013 WL 3064517, at *1.         Furthermore, Patel


                                         5
acknowledged that her allegation did not encompass Palacios but rather was

limited to Young and Andrews. However, she attempted to extricate herself from

the effect of Rule 301 by suggesting that 1) Palacios was responsible for the

negligence of Young and Andrews because he conspired with them, and 2) the

issue of Palacios’s negligence was tried by consent.

      Whether one can conspire to be negligent was addressed by our supreme

court over twenty years ago in Juhl v. Airington, 936 S.W.2d 640 (Tex. 1996). It

held that they could not. Since negligence is not an intentional wrong and civil

conspiracy requires the specific intent to agree to accomplish an unlawful purpose

or to accomplish a lawful purpose by unlawful means, “one cannot agree or

conspire to be negligent.” Id. at 644; see Tri v. J.T.T., 162 S.W.3d 552, 557 (Tex.

2005) (reiterating that holding). And, as previously indicated, Patel cited us to no

authority, much less to authority contradicting the Texas Supreme Court, on this

matter.

      Concerning her other means of evading Rule 301, this court has stated that

the theory of trial by consent is applicable “to exceptional cases where it clearly

appears from the record as a whole that the parties tried by consent an issue that

had not been pleaded.” Jackson, 2013 WL 3064517, at *2 (emphasis added). It

does not exist to “establish a general rule of practice” and, consequently, “should

be applied with care and never in a doubtful situation.” Id. And, in assessing

whether the issue was so tried, we “examine the record not for evidence of the

issue but rather for evidence of trial of the issue.” Id. In other words, we look for


                                         6
evidence of circumstances “indicating [that] both parties understood the issue was

in the case” and had a “clear intent” to try it. City of The Colony v. N. Tex. Mun.

Water Dist., 272 S.W.3d 699, 744 (Tex. App.—Fort Worth 2008, pet. dism’d) (citing

Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—

Dallas 2005, pet. denied)). Excluded from the scope of trial by consent, though,

are situations wherein “evidence relevant to an unpleaded matter is also relevant

to a pleaded issue.” Case Corp., 184 S.W.3d at 771. This is so because the

“admission of the evidence would not be calculated to elicit an objection, and . . .

ordinarily would not demonstrate a ‘clear intent’ on the part of all parties to try the

unpleaded issue.” Id. With these caveats in mind, we turn to the appellate record.

      Under the heading “Negligence” in her live pleading, Patel obviously alleged

a negligence cause of action. But, again, it encompassed only the misfeasance of

Young and Andrews. Moreover, the conduct attributed to Palacios in the same

pleading tended to involve intentional torts, such as forgery, fraud, and trespass.

The same is true of the evidence presented at trial; none tended to indicate that

he negligently breached some duty owed to Patel.            Rather, it illustrated his

potential involvement with 1) intentional acts of forgery, 2) the intentional removal

of all the personalty from the Patel home while the family was in India, and 3) his

intentional entry onto the realty upon gaining purported title. In short, the evidence

of misconduct on his part generally pertained to Palacios’s commission of

intentional torts encompassed within the live pleading, which circumstance triggers

what was said in Case Corp. Trial by consent is not a means of trying an unpled


                                          7
theory when the evidence purportedly relevant to that theory is also relevant to a

cause of action averred in the pleading.

      In short, Patel neglected to include Palacios within the scope of her

negligence claim. Thus, the trial court erred in holding him liable for negligence,

which error resulted in the rendition of an improper judgment under Texas Rule of

Appellate Procedure 44.1(a).

      Exemplary Damages

      Next, Palacios contended that Patel failed to plead for and prove her

entitlement to exemplary damages. We sustain the issue.

      One seeking special damages must specifically plead for same. See Tex.

R. Civ. P. 56 (stating that “[w]hen items of special damage are claimed, they shall

be specifically stated”). Punitive or exemplary damages are special damages.

In re Shaw, No. 13-10-00487-CV, 2010 WL 4264796, at *4 (Tex. App.—Corpus

Christi Oct. 27, 2010, orig. proceeding) (mem. op.) (stating that “[e]xemplary

damages are special damages that must be supported by express allegations of

willfulness, malice, or gross negligence that go beyond the allegations necessary

to recover compensatory damages”). So, one seeking exemplary damages must

specifically plead for them. W. Union Tel. Co. v. Sorenson, 56 S.W.2d 672, 672

(Tex. Civ. App.—San Antonio 1933, no writ).

      Patel did not request exemplary damages either in her pleadings or at trial.

Indeed, no one broached the topic until it was first mentioned within a letter from

the trial court after the trial ended. Through the missive, the trial court informed


                                           8
the parties that it “decided to grant Plaintiff judgment against all Defendants jointly

and severally in the amount of $135,000 in actual damages and $60,000 in

exemplary damages.”

      Furthermore, the very evidence potentially subjecting a litigant to punitive

damages is generally quite relevant to whether the litigant committed the

underlying tort upon which those damages were based. See, e.g., Tex. Civ. Prac.

& Rem. Code Ann. § 41.011(a)(1)–(3) (West 2015) (stating that a trier of fact may

consider the nature of the wrong, the character of the conduct involved, and the

wrongdoer’s culpability in assessing punitive damages). For instance, punitive

damages may be available in cases involving malice, and malice covers intentional

torts where there existed a specific intent to cause substantial injury or harm.

Bennett v. Reynolds, 315 S.W.3d 867, 871 n.13 (Tex. 2010). So, in proving the

intentional tort of conversion, the evidence may be relevant to both the cause of

action and the topic of punitive damages. Contrary to Patel’s suggestion, we

cannot say that the evidence she presented in an attempt to establish her

accusations involving intentional torts necessarily informed Palacios that

exemplary damages were in play for purposes of establishing that the matter was

tried by consent. At the very least, application of the doctrine of trial by consent

would appear doubtful here given the underlying circumstances, and that prevents

us from applying it. See Case Corp., 184 S.W.3d at 771.

      In sum, exemplary damages were not recoverable against Palacios since

Patel never requested them. This was and is another instance of the judgment


                                          9
failing to conform to the pleadings which resulted in the rendition of an improper

judgment under appellate rule 44.1(a)(1).

      Attorney’s Fees

      Palacios also attacked the trial court’s award of attorney’s fees to Patel and

did so via several grounds.4 We need only address one for it is dispositive. The

ground we address concerns the absence of legal authority authorizing such fees.

      It has long been true in Texas that one may not recover attorney’s fees

unless same are authorized by statute or contract. Dudley Constr., Inc. v. ACT

Pipe & Supply, Inc., No. 16-0651, 2018 WL 1660176, at *7 (Tex. Apr. 6, 2018)

(citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006)).

Patel sued upon no contract between her and Palacios, much less one authorizing

the recovery of attorney’s fees. Moreover, such fees were not recoverable via a

claim of 1) fraud, see Tony Gullo Motors I, L.P., 212 S.W.3d at 304 (stating that

“[f]or fraud, [Chapa] could recover economic damages, mental anguish, and

exemplary damages, but not attorney’s fees”); 2) negligence, see Gulf States Utils.

Co. v. Low, 79 S.W.3d 561, 568 (Tex. 2002); 3) quieting title, see Starbranch v.

Crowell, No. 01-15-00429-CV, 2016 WL 796836, at *2 (Tex. App.—Houston [1st

Dist.] Mar. 1, 2016, no pet.) (mem. op.); 4) trespass to try title, see Biltex Enters.,

Inc. v. Myers, No. 02-13-00465-CV, 2015 WL 1967285, at *3 (Tex. App.—Fort



      4
        The trial court awarded Patel attorney’s fees of $5,000 through trial and a
total of $20,000 if the judgment was appealed to the Texas Supreme Court.


                                          10
Worth Apr. 30, 2015, no pet.) (mem. op.); 5) trespass, see Wilen v. Falkenstein,

191 S.W.3d 791, 805 (Tex. App.—Fort Worth 2006, pet. denied) (involving a claim

of trespass and striking the award of attorney’s fees because the action was not

founded on the interpretation of a contract and attorney’s fees were not authorized

by statute); 6) conversion, Quality Hardwoods v. Midwest Hardwood Corp., No. 02-

05-00311-CV, 2007 WL 1879797, at *5–6 (Tex. App.—Fort Worth June 28, 2007,

no pet.) (mem. op.); or 7) civil conspiracy, see Great N. Energy, Inc. v. Circle Ridge

Prod., 528 S.W.3d 644, 677–78 (Tex. App.—Texarkana 2017, pet. denied)

(remanding the cause for the reassessment of recoverable attorney’s fees

because Circle Ridge alleged tort claims for which attorney’s fees were not

recoverable such as negligence in forging documents and civil conspiracy for

forgery and it did not segregate the recoverable fees from unrecoverable ones).

Given that these were the very causes of action Patel urged and attorney’s fees

were authorized for none, the trial court had no legal basis to award them. So it

erred, and the mistake resulted in the rendition of an improper judgment. We

sustain the issue.5




      5
       To the extent that Patel opined that the matter also was tried by consent,
she failed to cite us to authority holding that the doctrine applies to situations
wherein the law itself bars the recovery of fees. Indeed, applying the doctrine here
would be akin to upholding a recovery upon a nonexistent cause of action. We
eschew her invitation to journey down that road at this time.


                                         11
      Joint and Several Liability

      Palacios also questioned whether the trial court erred in holding him jointly

and severally liable for all the damages awarded. His complaint was based upon

the absence of pleadings seeking such.           In response, Patel again raised the

spectre of trial by consent, and this time we agree with her.

      During trial of the cause, Palacios’s attorney told the trial court: “[s]o what

I’m trying to figure out is what the potential liability here which the plaintiffs seek to

impose upon my client jointly and severely [sic] with Mr. Harris.” [Emphasis

added.] If nothing else, this passage illustrates that Palacios not only knew his

opponent was pursuing the concept of joint and several liability but also attempted

to defend against it in some respect. More importantly, he did not object. Given

this, we can safely conclude that the parties clearly intended to try the issue by

consent. See Case Corp., 184 S.W.3d at 771. We overrule the issue.

      Sufficiency of the Evidence

      We now turn to Palacios’s assertions regarding the legal sufficiency of the

evidence underlying various trial court findings. In doing so, we address each

under the standard of review recently discussed by the Texas Supreme Court in

Hill v. Shamoun & Normand, LLP, No. 16-0107, 2018 WL 1770527, at *7 (Tex.

Apr. 13, 2018). That is, evidence is legally insufficient to support a jury finding

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


                                           12
is no more than a mere scintilla, or 4) the evidence conclusively establishes the

opposite of a vital fact. Id. When determining whether there is no evidence of

probative force to support a jury’s finding, we consider all the record evidence in

the light most favorable to the party in whose favor the verdict has been rendered.

Id.

      Furthermore, because the suit was tried to the court and no findings of fact

and conclusions of law were requested or filed, we note our obligations to imply

the existence of those findings necessary to support the judgment and uphold that

judgment on any legal theory supported by the evidence. See Burley v. Burley,

No. 02-16-00119-CV, 2017 WL 4542854, at *4 (Tex. App.—Fort Worth Oct. 12,

2017, no pet.) (mem. op.) (so requiring).

      Conspiracy

      We begin with another unpled cause of action, that of civil conspiracy.

Though not expressly mentioned by Patel in her live pleading, it is clear that the

matter was part of the suit. We so conclude for several reasons. First, establishing

a civil conspiracy results in the actors becoming jointly and severally liable for the

damages caused by the conspirators in furtherance of the agreement.              See

LandAm. Commonwealth Title Co. v. Wido, No. 05-14-00036-CV, 2015 WL

6545685, at *11 (Tex. App.—Dallas Oct. 29, 2015, no pet.) (mem. op. on reh’g).

As shown above, Palacios knew Patel sought to impose upon him such liability.

      Second, counsel for Patel expressly broached the topic at trial, as

exemplified in an exchange with the trial court. During the exchange, the trial court


                                         13
attempted to determine the relevance of questions being asked a particular

witness. In response, Patel’s attorney said: “[y]our Honor, it’s my theory of the

case that [Palacios] jointly conspired with Mr. Harris to create this.” [Emphasis

added.]   Palacios uttered nothing in return; he neither objected or otherwise

complained about Patel’s failure to mention the claim in her pleadings.

      Third, Patel offered evidence throughout the trial purporting to establish

more than a fortuitous relationship between Palacios and Harris. Examples of

such include a detective opining that Palacios and spouse were “complicit in

forging” the deed with Harris and that he “believed that there was some complicity

between the sale of the house to the Palacios[es] and Harris.” [Emphasis added.]

This occurred early in the proceeding. Other evidence indicated that the spouses

of Palacios and Harris had “a mutual address . . . off of MD Love in Dallas.”

      Fourth, and most telling, is a statement uttered by counsel for Palacios

during his closing argument. He began by asserting that: “the plaintiff bears the

burden of establishing a conspiracy[ and] . . . failed to do that.” [Emphasis added.]

      Palacios knew of Patel’s intent to hold him jointly and severally liable for the

acts of others. He was present and sat silently when Patel’s legal counsel declared

in open court that his theory of the case evolved around Harris and Palacios jointly

conspiring. So too was he present and remained quiet when Patel’s counsel

offered evidence supporting the allegation of complicity. And, counsel for Palacios

expressly addressed the topic of conspiracy in his closing. Such is enough to

reveal that all the litigants clearly knew the theory of civil conspiracy was in play


                                         14
and being tried. And, most importantly, no one objected. So, it is quite easy to

imply a finding that the trial court found the presence of a civil conspiracy in opting

to hold Palacios jointly and severally liable for the actions of others. See Case

Corp., 184 S.W.3d at 771.

      Despite knowing that the cause of action was being tried, Palacios did not

attack the implied finding that he engaged in a civil conspiracy. Little was said

about the theory in his initial brief.    When Patel mentioned it in her rather

conclusory appellee’s brief, Palacios simply responded by suggesting that we

should ignore her contentions due to deficient briefing. Yet, it was his obligation

to attack the finding on appeal before we could set aside its relevance, and he did

not. So, in effect, the finding must stand, and we see no reason to negate it given

the quantum of evidence within the record underlying it.

      Per the record, we see that Patel bought the home and surrounding realty

in question during 2009. It consisted of a 10,600-square-foot house sitting on

seven acres of land within a community deemed rather affluent. Its purchase price

was $600,000, and it had a like value on the local tax rolls. Upon acquiring it, she

and her family also began remodeling the abode and its environs. They also

bought furnishings to place in it.

      Several years later (on December 5, 2011), Patel left for India to attend

several weddings. Her husband and daughter followed her on January 15, 2012.

They returned to the house on February 2, 2012, to find it stripped of its contents

and listed in the deed records as being owned by Palacios.


                                          15
      The paper trail leading to Palacios began with a “residential contract” he

executed on January 7, 2012. Next to his signature appeared what supposedly

was that of Patel. Both signatures were notarized by Young, purportedly on

January 7, 2012, and while Patel was thousands of miles away in India. Various

initials were also written at the bottom of each page of the agreement. The initials

represented the names of Palacios, Patel, and Harris. Needless to say, Patel

disavowed the signature as hers at trial. So too did she deny knowing Palacios,

agreeing to sell him the house, or receiving payment for it.

      Two other matters involving the “residential contract” are of interest. The

first is the date on which the sales transaction was to close, that date being

January 7, 2012, or the day the contract was executed. The second is the amount

Palacios agreed to pay for a home appraised at $600,000, that amount being

$75,000.

      Accompanying the “residential contract” was a “receipt” dated January 7,

2012, illustrating that Patel was the recipient of $75,000 in cash. The alleged

signatures on the “receipt” were those of Harris, Palacios, and Patel, which Young

also happened to notarize.

      One other document was notarized by Young on January 7, 2012. Entitled

a "warranty deed," it purported to convey the house and land in question from

Patel. Yet, the grantee was not Palacios but rather Harris. Furthermore, this

document also carried what was alleged to be Patel’s signature and markings that




                                        16
indicated it was filed of record with the local county clerk on January 9, 2012. The

residential contract carried a like file-mark, although dated January 30, 2012.

      Interestingly, we encountered in the appellate record no written instrument

purporting to convey title to Palacios. There is a “deed of trust” executed on

January 27, 2012, not only naming him as grantor and Harris as beneficiary but

also describing the execution by Palacios of a note payable to Harris. The amount

of the note was $66,000. There is also a “warranty deed with vendor’s lien” naming

Harris as “maker” and Palacios as “payee.” It too alludes to a $66,000 note

payable to Harris by Palacios. Both instruments also contain a legal description of

the realty involved here, and both carry a county clerk’s stamp of January 30, 2012.

Yet, neither expressly convey title of the Patel realty to Palacios.

      Other evidence before us disclosed that individuals began entering the Patel

home and removing property from it before Mr. Patel and his daughter actually

landed in India. Their neighbor informed them of same via email. She also

contacted the police. Those found removing the personalty included Harris, who

told both the neighbor and police that he had recently bought the home. Having

evidence of title, he continued taking the furnishings.

      To the foregoing we add other bits of evidence. One reveals the nature of

Palacios’s business. He bought homes, repaired them, and subsequently sold the

repaired units. Additionally, while pursuing that endeavor, he became familiar with

the home in question. That was in 2007. Palacios viewed it with a realtor,

determined it needed extensive repairs, and considered the price too high to


                                         17
warrant purchasing it at the time. Another bit of evidence concerns the testimony

imparted by the investigating detective. As previously mentioned, he indicated that

the wives of Harris and Palacios had a “mutual address.” The final bit meriting

comment revealed that Harris and Palacios discussed the acquisition of the home

around the end of 2011 or first week of 2012.

      It is a rare case where defendants accused of conspiring to commit tortious

conduct admit it at trial. Thus, circumstantial evidence plays an important role in

proving the claim. And, despite the popular television clichés about the worth of

circumstantial evidence, it indeed has legal, probative value.      Circumstantial

evidence, along with reasonable inferences therefrom, may well be enough to

support a factfinder’s decision. See In re Lipsky, 411 S.W.3d 530, 549 (Tex.

App.—Fort Worth 2013, orig. proceeding) (stating that a “civil conspiracy claim

may be proved by circumstantial evidence and reasonable inferences from parties’

actions”), mand. denied, 460 S.W.3d 579 (Tex. 2015). It does here.

      Viewing the evidence in a light most favorable to the judgment per Hill, we

find evidence of 1) a pre-existing relationship between the wives of Palacios and

Harris; 2) Palacios’s pre-existing, unfulfilled interest in the Patel home and

acreage; 3) Palacios’s pre-existing knowledge of the high price of the home and

acreage; 4) Palacios’s relative sophistication and experience in the real estate

market given the nature of his business; 5) Harris’s discussing the home and

acreage with Palacios; 6) the short period between Patel leaving for and returning

from India; 7) Harris and Palacios’s executing and filing of record instruments


                                        18
memorializing an agreement to convey and allegedly conveying the highly valued

home and acreage for what one could reasonably call a nominal sum; 8) the

placement of Patel’s signature on those documents at a time when she could not

have been present; 9) the rapidity with which the purported sale was completed;

10) Palacios’s avowed disinterest in seeing the home prior to the transaction’s

completion; 11) the attempt to structure the conveyance in a way suggesting

Palacios was a bona fide purchaser; 12) the rapidity with which the home’s

furnishings were removed by Harris and in which Palacios gained entry; and

13) the coordination of purpose and effort needed to complete the entire process

before the Patels returned home.

      Admittedly, there exists evidence of record contradicting the presence of a

scheme and suggesting that Palacios fell prey to the deceit of Harris. Much of it

came from Mrs. Palacios and other defense witnesses. Each could be viewed as

potentially biased given their familial or working relationship with him, though.

Moreover, Mrs. Palacios’s credibility actually came into dispute when she was

directed by Palacios’s attorney to forego answering particular questions about her

commission of potential criminal acts while performing duties as a notary public.

That alone would entitle the factfinder to discredit her honesty. See In re M.L.C.,

No. 04-17-00459-CV, 2017 WL 6597828, at *4 (Tex. App.—San Antonio Dec. 27,

2017, pet. denied) (mem. op.) (stating that “a fact finder may draw an adverse

inference against a parent who pleads the Fifth Amendment”). Consequently, the




                                        19
trial court, as factfinder, was free to disbelieve the defense witnesses and credit

the circumstantial evidence alluded to above.6

      In sum, the foregoing is some evidence enabling a factfinder to rationally

infer the existence of a plan to which Palacios and Harris agreed and which

involved the commission of overt and unlawful acts resulting in Patel’s injury. See

First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 222

(Tex. 2017) (identifying the elements of civil conspiracy as 1) a combination of two

or more people; 2) who seek to accomplish an object or course of action; 3) who

reach a meeting of the minds on the object or course of action; 4) who undertake

one or more unlawful, overt acts in pursuit of the object or course of action; and

5) who proximately cause damage to the complainant as a result of the

combination).    So, the implied finding of conspiracy does have the support of

legally sufficient evidence. See Hill, 2018 WL 1770527, at *7. And, again, because

Palacios did not attack that finding, it must stand.

      Sufficient Evidence of Trespass and Damage?

      We now address Palacios’s next sufficiency complaint. It concerns the tort

of trespass, and he argued that there was no evidence that his entry onto the realty

“on January 30, 2012[,] caused any damage to the Property” since it was

“undisputed that the personal property was removed before [he] took possession


      6
        Moreover, Palacios’s failure to also attack the evidence as factually
insufficient to support the decision prevents us from deviating from the rather lax
standard of review implicit in attacking a verdict as legally insufficient.


                                         20
of the Property and was not removed by [him].” It may be that the personalty within

the home was removed before Palacios physically appeared on the land. Yet, as

we said earlier, there was a conspiracy to displace Patel and of one or more co-

conspirators removing her property. That conspiracy permitted the factfinder to

conclude that Palacios was jointly and severally responsible for damage caused

to the property under the theory of trespass, and we overrule the issue. See id.

      Sufficient Evidence of Conversion?

      Next, Palacios contended that the evidence was insufficient to illustrate that

he converted Patel’s personalty. This allegedly was so because the conversion

occurred before he stepped foot into the house. In overruling the contention, we

refer the parties to the immediately preceding paragraph.         Simply put, the

conspiracy rendered Palacios liable for the acts of those who did remove the items.

See id.

      Sufficient Evidence of Fraud?

      Next, Palacios asserted that the evidence was insufficient to prove he

committed actual fraud.    With that, we agree, given the nature of the fraud

allegation.

      Patel based her claim of fraud upon misrepresentations intentionally made

to induce third-parties to act to her detriment. Again, the misrepresentations in

question were not made to Patel but instead to police officers about who owned

the house or to other unspecified third-parties who may have been influenced by

them. This poses problems.


                                        21
      A claim of actual fraud encompasses, among other things, a material

misrepresentation upon which the complainant relied to his or her detriment. See

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337

(Tex. 2011) (describing the elements of fraud as including a material

representation made with the intent that the other party act upon it, the party acted

in reliance on it, and the party suffered injury). We find no evidence of Patel’s

relying upon a misrepresentation of Palacios or his compatriots to her detriment.7

So, the evidence is legally insufficient to support the trial court’s decision to allow

Patel to recover damages for actual fraud. See Hill, 2018 WL 1770527, at *7.

      Sufficient Evidence to Support Trespass to Try Title?

      We next address Palacios’s contention that the evidence was legally

insufficient to support judgment on the claim of trespass to try title. He believed

this was so because “Patel presented no evidence at trial to establish her superior

title” and “such proof was required to prevail on her pleaded claim of trespass to

land.” We overrule the issue.

      To be honest, we are not quite sure what Palacios is actually arguing. It

seems as though he suggests that the claim of trespass to try title and the action

to quiet title had to be re-adjudicated at trial despite being resolved via a partial



      7
       Patel did urge in her brief that “a cause of action for fraud may also be
sustained if the Plaintiff can show that the Defendant’s actions caused a third party
to reasonably rely to the Plaintiff’s detriment.” Yet, she neither provided us with
explanation nor legal authority supporting that terse comment.


                                          22
summary judgment.      To the extent that he so suggests, he is wrong.          See

Thompson v. Curtis, 127 S.W.3d 446, 449–50 (Tex. App.—Dallas 2004, no pet.).

A legitimately entered partial summary judgment adjudicates the matters

encompassed within summary judgment; we know of no authority mandating that

they be re-litigated in a trial subsequently convened to resolve the remaining

issues. More importantly, he cited us to no legal authority so holding.

      On the other hand, he may be suggesting that Patel failed to establish her

entitlement, as a matter of law, to summary judgment on the two claims, and

because she did, it was encumbent upon her to establish superior title at trial. The

problem with that concerns Palacios’s utter lack of briefing targeted at the partial

summary judgment.      That is, he failed to provide us with either substantive

argument or legal authority purporting to illustrate why or how the trial court erred

in entering a partial summary judgment declaring Patel “the lawful owner of” the

“improved residential real estate” at issue. And, it is not our obligation to provide

the missing argument or authority for him. Nat. Gas Clearinghouse v. Midgard

Energy Co., 113 S.W.3d 400, 416 (Tex. App.—Amarillo 2003, pet. denied) (stating

that an appellant has the duty to analyze and explain his contentions and that the

reviewing court has no duty to create argument where none is provided). So, in

effect, his notion that summary judgment was inappropriate was inadequately

briefed and, therefore, waived. See id.




                                          23
      Sufficient Evidence to Support Action to Quiet Title?

      Turning to Palacios’s argument concerning the action to quiet title, Palacios

told us that such an action “is essentially the equivalent to a trespass-to-try-title

action” and that it “is equitable in nature and does not contemplate an award of

damages.” Presumably, he used these contentions as a means of attacking the

trial court’s award of damages upon the claim. We sustain the issue.

      The judgment provides that “[w]ith respect to the following causes of action;

Trespass to Real Property, Conversion[,] Fraud, Negligence, Trespass to Try Title

to Action, and Suit to Quiet Title asserted by Plaintiff . . . the Court finds in favor

of said Plaintiff, and Plaintiff . . . Patel is entitled to recover the following amounts

. . . actual and/or economic damages in the amount of $135,000.00.” [Emphasis

added.] As written, the decree can be read as possibly awarding damages to Patel

upon her action to quiet title. This is problematic given that “a suit to quiet title will

not support a recovery of damages.” Luce v. Singdahlsen, 636 S.W.2d 571, 574

(Tex. App.—Fort Worth 1982, writ ref’d n.r.e.). So, to the extent that the trial court

awarded Patel damages upon her suit to quiet title, it erred.

      Sufficient Evidence to Support Joint and Several Liability

      Palacios next asserted that “the lack of pleading is fatal to Patel’s recovery

of a judgment holding [him] jointly and severally liable,” and “[t]he lack of legally

sufficient evidence to support imposing joint and several liability is also fatal” under

chapter 33 of the Texas Civil Practice and Remedies Code. We overrule the issue.




                                           24
      As previously discussed, the issue of joint and several liability was tried by

consent. So too did the trial court impliedly find that Palacios engaged in a civil

conspiracy.    Establishing that the defendants engaged in a civil conspiracy

rendered each conspirator responsible for all acts done by any conspirator in

furtherance of the conspiracy. Lipsky, 411 S.W.3d at 549. In other words, they

are jointly and severally liable for the actual damages caused in furtherance of the

conspiracy.    LandAm. Commonwealth Title Co., 2015 WL 6545685, at *11.

Consequently, there is sufficient evidence to impose joint and several liability upon

Palacios. See Hill, 2018 WL 1770527, at *7.

      Sufficient Evidence to Support Damages

      Next, we address the contention that the evidence was legally insufficient to

support the amount of actual damages awarded, that is, $135,000. Palacios

believed the evidence legally insufficient because 1) there is no evidence that the

cost estimates were reasonable, and 2) the evidence conclusively established that

Palacios’s conduct did not proximately cause the alleged damages. We sustain

the issue in part.

      Regarding causation, the argument is premised on the allegation that

Palacios did not personally convert any personalty or damage any realty. This,

however, does not take into consideration his joint and several liability as a

conspirator. As such, he is responsible for the acts of any other conspirator done

in furtherance of the conspiracy. So, it is inconsequential that the evidence may

fail to illustrate that he did any damage or took any personalty himself.


                                         25
      As for the amount of damages awarded, we begin with observing the various

causes of action for which damages may be awarded and the measure applicable

to each. The first is conversion. Generally, the measure applicable to it is the fair

market value of the property at the time of conversion, with legal interest. Henson

v. Reddin, 358 S.W.3d 428, 436 (Tex. App.—Fort Worth 2012, no pet.).

Alternatively, the measure of damages may be the actual value of the property to

the owner at the time of loss if the converted personalty has no readily

ascertainable fair market value. Id. Should that measure apply, then the purchase

price of the items taken is probative evidence, even though it may not be enough

to withstand a factual sufficiency attack. Id. at 437 (stating that “[t]estimony and

evidence regarding purchase price, however, standing alone, is not factually

sufficient to support a fair-market-value damages award or an actual-value

damages award”). Incidentally, used or second-hand home furnishings (like those

at bar) have been held to fall within the category of property having no readily

ascertainable fair market value.    See Espronceda v. Espronceda, No. 13-15-

00081-CV, 2016 WL 3225860, at *5–6 (Tex. App.—Corpus Christi June 9, 2016,

no pet.) (mem. op.) (so noting); Wutke v. Yolton, 71 S.W.2d 549, 551–52 (Tex. Civ.

App.—Beaumont 1934, writ ref’d) (so noting).

      As for trespass, the damages recoverable reflect the sum necessary to

make the victim whole or place him in the position he would have been but for the

trespass. Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 921

(Tex. 2013). That sum includes the cost to repair any damage to the property, the


                                         26
loss of use of the property, and the loss of any expected profits from the property’s

use. Id. When the trespass is knowing and intentional or malicious, other forms

of damage may be recoverable. Id. at 922. For example, the victim may be

awarded damages to recompense emotional distress or mental anguish when the

trespass is willful and causes actual property damage. Id. Exemplary damages

may also be awarded under certain circumstances. Id.

      A similar measure to that of trespass applies in suits involving trespass to

try title. Id. at 921. The damages available include lost rents and profits, damages

for use and occupation of the premises, and damages for any special injury to the

property. Id.

      Having described the pertinent measures of damage, we turn to Palacios’s

argument concerning conversion. In making it, he referred to the evidence utilized

by Patel to establish her loss, acknowledged that it consisted of what the items

cost her two years earlier, and concluded that because she “presented no

evidence that any of those costs were reasonable,” the evidence was insufficient

to establish her damages. Yet, as discussed above, the applicable measure of

damages is not the reasonableness of an item’s purchase price but either its fair

market or actual value. About those actual, applicable measures, Palacios says

nothing.

      Instead, he would have us apply a measure utilized when recovering the

cost of repairing damaged property. His references to the supreme court’s opinion

in McGinty v. Hennen, 372 S.W.3d 625 (Tex. 2012), and this court’s opinion in Fort


                                         27
Worth Hotel Ltd. Partnership v. Enserch Corp., 977 S.W.2d 746 (Tex. App.—Fort

Worth 1998, no pet.), illustrate as much. See, e.g., McGinty, 372 S.W.3d at 627–

28 (discussing whether the evidence was legally sufficient to sustain an award of

remedial damages arising from a breach of a construction contract and specifying

that, under the circumstances, the damages should be measured by the cost to

complete or repair less the unpaid balance on the contract price); Fort Worth Hotel

Ltd. P’ship, 977 S.W.2d at 762 (stating that “[a] party seeking recovery for the cost

of repairs must prove their reasonable value”). We find no evidence of record

suggesting that Patel recovered any of the stolen property, repaired it, and sought

to recover damages for those repairs. She sought damages for the utter loss of

her property. So, Palacios’s effort to apply the wrong measure of damages to

illustrate that they lacked sufficient evidentiary support is of no moment.

      Regarding the damages relating to the claims of trespass and trespass to

try title, the record indicates that two exhibits were offered into evidence purporting

to illustrate the costs of repairing the damage to the home. Yet, neither exhibit was

actually admitted into evidence by the trial court. Thus, neither may be considered

by us in gauging the sufficiency of the evidence. See Barnard v. Barnard, 133

S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. denied) (stating that “[a]s a

general rule, documents not admitted into evidence are not considered by an

appellate court”); see also Williams v. Williams, No. 02-08-00033-CV, 2008 WL

5194227, at *6 (Tex. App.—Fort Worth Dec. 11, 2008, no pet.) (mem. op.) (holding

that because the inventory and appraisement was not admitted into evidence, the


                                          28
value of the horse named “Pflamenco” mentioned in it could not be considered as

evidence of its value).

      Nonetheless, Mr. Patel testified, without objection, to the cost of repairing

the home and provided the trial court with a range of those costs. That range

began at $85,000 and ended at $180,000. A building contractor also testified

about the cost for repairing aspects of the house and the estimate he provided

Patel. That estimate was $85,000. Other evidence revealed that the repairs

encompassed repainting the entire interior of the home, repainting the home’s

exterior soffits and facia, repairing or replacing broken windows, repairing electrical

outlets, repairing a bar, replacing 9,500 square feet of flooring, repairing sheetrock,

and repairing the stairs.     The contractor also stated that the repairs were

“necessary” to make the house habitable. So too did he later reveal that 1) with

regard to the flooring he was “talking about . . . updating what [he] think[s] needs

to be replaced because of the age” or “obsolescence,” and 2) his bid included the

replacement of marble flooring that was in “good condition” or “pretty good shape”

for about $2,800. But other than for the marble flooring none of the aforementioned

repairs were assigned a particular repair or replacement cost. They were simply

lumped into a general $85,000 estimate.

      Mention was also made of replacing all seventy-three windows in the house

and the possibility of obtaining replacements of like kind and quality as those

initially installed. The cost of doing that approximated $60,000. From the context

of what the contractor said, the replacement included more than just the glass; it


                                          29
encompassed substituting entire windows—frame and all.            Why each of the

seventy-three needed replacement went unmentioned, though. Whether each

was broken and, if so, whether Palacios or any of his compatriots broke them

garnered no attention at trial.

      As can be seen, a hodgepodge of repairs was being undertaken and for

which Patel sought payment. Nothing indicated that Palacios and his compatriots

damaged every item purportedly necessitating repair or replacement, though. For

instance, no one described how they damaged the home’s exterior soffits and facia

or how their conduct required the replacement of all seventy-three windows and

frames. Nor does any evidence indicate that their actions damaged all the interior

walls or the paint on every interior wall and piece of molding.

      More importantly, though, is the absence of evidence regarding the

reasonableness of the costs involved. Admittedly, the contractor opined that the

repairs were “necessary,” but more was required.         As said in Hernandez v.

Lautensack, 201 S.W.3d 771 (Tex. App.—Fort Worth 2006, pet. denied), the

claimant must “present sufficient evidence to justify a . . . finding that the costs

were reasonable and the repairs necessary.” Id. at 776–77 (emphasis added).

While the contractor said that the repairs were necessary to make the home

habitable, he said nothing about the reasonableness of his charges. And though

neither he nor anyone else was obligated to utter the words “‘reasonable and

necessary,’” id. at 777, the evidence nevertheless had to be sufficient to enable

one to rationally infer that the proposed costs were reasonable. We found no


                                         30
evidence supporting such an inference. Mr. Patel simply alluded to a range of

costs represented by estimates he received. So too did the contractor express an

estimate of what he would charge for performing the repairs. From where either

obtained their respective figures went unmentioned, as did whether the sums

reflected costs normally charged by others for like repairs.

      To the extent that Patel suggested the contractor’s use of the phrase “like

and kind” quality somehow filled the void, we note that the passage was used

solely in reference to replacing all seventy-three windows by having them custom

built. Those are the very windows to which we alluded when discussing the

absence of evidence pertaining to causation.8        That the contractor sought to

replace entire windows that Palacios may not have damaged with windows of “like

and kind” quality hardly permits one to rationally infer that whatever costs were

attributed to replacing all flooring, repainting every wall within the home, repainting

exterior fascia and soffits, and replacing sheet rock and the like were reasonable.

      What we have here is little more than evidence of the amount a contractor

would charge to perform repairs.       But, proof of the amounts charged is not

evidence that the amounts were reasonable. See McGinty, 372 S.W.3d at 627.

Without more, we are unable to conclude that legally sufficient evidence appears


      8
       Interestingly, the contractor also neglected to explain the basis underlying
his estimate indicating that it would cost $60,000 to replace each window.
Apparently, they would have to be custom built but whether that figure was related
in any way to the cost of custom built windows or what custom builders would
generally charge to make them is unknown.


                                          31
of record to support an award of damages for trespass to try title and general

trespass.

      The problem before us now likens to what some would call a Casteel

situation, that is, a situation wherein an award is comprised of both valid and invalid

components. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000)

(op. on reh’g) (recognizing the presence of possible error when the jury is

submitted a broad-form liability question incorporating both valid and invalid

theories of liability), abrogated on other grounds by Sky View at Las Palmas, LLC

v. Mendez, No. 17-0140, 2018 WL 2449349, at *7–8 (Tex. June 1, 2018). Though

Casteel involved a jury trial, its reasoning also encompasses non-jury trials

wherein the damage award commingled recovery under valid and invalid theories.

Nugent v. Estate of Ellickson, 543 S.W.3d 243, 268 (Tex. App.—Houston [14th

Dist.] 2018, no pet.) (op. on reh’g). Furthermore, when such situations arise, they

normally require reversal unless the reviewing court can be reasonably certain that

the factfinder’s decision was not significantly influenced by the inclusion of invalid

grounds of recovery. Id.; see also Romero v. KPH Consol., Inc., 166 S.W.3d 212,

227–28 (Tex. 2005) (involving a Casteel situation and holding that “unless the

appellate court is ‘reasonably certain that the jury was not significantly influenced

by issues erroneously submitted to it,’ the error is reversible” (footnote omitted)).

      Here, we cannot but conclude that the trial court’s cumulative damage award

was significantly influenced by the assessment of damages unsupported by the

evidence.    For instance, the record contains evidence describing both the


                                          32
particular household furnishings that were converted and the price Patel paid for

each. As said in Henson, that price is some evidence of the actual value of the

item taken. Adding them together gives us a sum approximating $26,633.86. The

latter is obviously much less than the $135,000 awarded by the trial court “on the

causes of action for Trespass to Real Property, Conversion[,] Fraud, Negligence,

Trespass to Try Title to Action, and Suit to Quiet Title.” So, we are reasonably

certain that the trial court’s damage finding was greatly influenced by the decision

to award damages for which there was no evidentiary basis.

      When there exists some evidence of damages but not enough to support

the entire award, we may not render judgment. See Akin, Gump, Strauss, Hauer

& Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 124 (Tex. 2009).

The usual course of action in such situations is to assess the possibility of remittitur

or remand for a new trial. Id. The circumstances leading us to conclude with

reasonable certainty that harmful error occurred also indicates that the suggestion

of remittitur is a viable course of action.

      Thus, we suggest, under Texas Rule of Appellate Procedure 46.3, that the

$135,000 award for damages be remitted by $108,366.14. Should the suggestion

be accepted by Patel, the trial court’s judgment will be modified by 1) reversing the

sums awarded for both attorney’s fees and exemplary damages; 2) denying the

recovery of damages upon the causes of action for trespass to real property, fraud,

negligence, trespass to try title, and suit to quiet title; 3) allowing recovery of

damages upon the cause of action for conversion; 4) awarding “actual and/or


                                              33
economic damages” for said conversion in the amount of $26,633.86; 5) awarding

$2,774.36 as “prejudgment interest on such damages measured from

November 17, 2012, at the rate of 5% per annum”; and 6) declaring Patel to be the

true and sole owner of the realty in question. If the suggestion of remittitur is

rejected by Patel, we will modify the judgment by 1) reversing the awards for

attorney’s fees, exemplary damages, “actual and/or economic damages,” and

prejudgment interest; 2) denying the recovery of damages upon the causes of

action for trespass to real property, fraud, negligence, trespass to try title, and suit

to quiet title; 3) declaring Patel to be the sole and true owner of the realty in

question; and 4) reversing and remanding for new trial the causes of action of civil

conspiracy and conversion.9

                                                      /s/ Brian Quinn

                                                      BRIAN QUINN
                                                      CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; PITTMAN, J.; QUINN, C.J. (Sitting by Assignment).

SUDDERTH, C.J., filed a concurring opinion.

PITTMAN, J., concurs without opinion.

DELIVERED: June 7, 2018


      9
       We cannot reverse for a new trial on damages when liability is disputed.
See Tex. R. App. P. 44.1(b) (so stating). Palacios disputed his liability for
conversion. And, because we determined that his liability for conversion was
founded upon the theory of civil conspiracy and evidence of record indicates that
he defended himself against all allegations of misconduct, that cause of action
must also be retried upon rejection of remittitur.


                                          34
