Friend v. Friend
| Decision Date | 15 December 2016 |
| Docket Number | NO. 02-15-00166-CV,02-15-00166-CV |
| Parties | HARLAN J. FRIEND APPELLANT v. TRACEY M. FRIEND APPELLEE |
| Court | Texas Court of Appeals |
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
In eight issues, Appellant Harlan J. Friend appeals from the trial court's final judgment. We affirm in part and reverse and render in part.
In March 2005, Harlan and Appellee Tracey M. Friend obtained a home equity line of credit (the line of credit) from Bank of America for the purpose of purchasing a restaurant. The line of credit was secured by their residence.
Harlan and Tracey were divorced on November 7, 2008. The agreed final divorce decree awarded the residence to Tracey as her sole and separate property and ordered her to pay the mortgage on the residence. The decree also stated that the balance on the line of credit was $204,000 and ordered Harlan to pay the line of credit,2 along with "[a]ny and all debts, charges, liabilities, and other obligations incurred solely by [him] from and after May 23, 2008 unless express provision is made in this decree to the contrary." The decree ordered Tracey to pay $634 to Harlan by the twenty-seventh day of each month, and Harlan was required to apply these payments to the line of credit.
The decree also ordered Harlan and Tracey to sell a second home located Englewood, Florida, at a mutually agreeable price. Tracey was responsible for paying for all maintenance and repairs necessary to keep the Florida home in its present condition. Once the Florida home was sold, Tracey's obligation to make the $634 monthly payments to Harlan would terminate. The proceeds from the sale were to be applied first to the line of credit to pay it in full and then to Tracey to reimburse her for the maintenance and repair costs. If any funds remained,Tracey was to deposit them into college fund accounts for Tracey and Harlan's two children.
In 2009 and 2010, Harlan took draws totaling approximately $52,000 against the line of credit without Tracey's knowledge or consent. Harlan paid $19,000 of those funds to the attorney general's office to satisfy his back child support obligations. Additionally, in March 2009, Harlan started applying only a portion of Tracey's $634 monthly payments to the line of credit. Tracey stopped making the monthly payments to Harlan in June 2013.
In September 2013, Harlan filed a petition for enforcement alleging that Tracey had violated the terms of the decree by failing to make her $634 monthly payments to him from June 2013 through August 2013 and that he believed the violations would continue. Harlan sought a judgment for the amounts due, plus interest, attorney's fees, and costs. The trial court signed a default judgment against Tracey in early November 2013, awarding Harlan judgment against Tracey for $3,170 in unpaid monthly payments from June 2013 through October 2013, plus $1,350 in attorney's fees. Tracey filed a motion to set aside the default judgment and a motion for new trial, both of which the trial court denied.
In late November 2013, Tracey filed suit against Harlan, alleging that Harlan's postdivorce draws on the line of credit combined with his "anemic payments" allowed the balance on the line of credit to grow, putting her at risk of losing her residence through foreclosure and reducing her equity in the residence, which prevented her from refinancing the mortgage. She assertedclaims for breach of contract, tortious interference with prospective business relationships, conversion, intentional infliction of emotional distress, fraud, fraudulent inducement, unjust enrichment, and money had and received. She also sought an injunction to prevent Harlan from continuing to draw on the line of credit, as well as actual damages, exemplary damages, and attorney's fees under section 38.001 of the civil practices and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 2015). Harlan filed another petition for enforcement, alleging that Tracey had violated the terms of the decree by failing to make her $634 monthly payments to him from November 2013 through July 2014 and that he believed the violations would continue. Harlan sought a judgment for the amounts due, plus interest, attorney's fees, and costs.
The case was tried to the bench on January 16, 2015, and on May 6, 2015, the trial court signed a final judgment in Tracey's favor.3 The trial court permanently enjoined Harlan from taking additional draws on the line of credit, found that Harlan was solely responsible for repayment of the line of credit for all amounts in excess of $177,360.40, rescinded Tracey's obligation to make her $634 monthly payments to Harlan, and ordered that she could make those payments directly to Bank of America.4 The trial court awarded Tracey $25,000 in exemplary damages and $26,135.43 in attorney's fees. The trial court alsoordered that the monthly payments that Tracey failed to make to Harlan5 be offset by $7,500 in attorney's fees awarded to Tracey in a prior proceeding and ordered Tracey to pay the $3,912 difference directly to Bank of America.
The trial court filed findings of fact and conclusions of law in which it concluded, among other things, that the decree was an enforceable contract and that Harlan breached it. Harlan has appealed.
Here, Tracey essentially alleged only one injury—the increase in the balance due on the line of credit secured by her separate property caused by Harlan's postdivorce draws on the line of credit and his failure to apply Tracey's monthly payments to the line of credit. If a plaintiff pleads multiple theories of recovery for a single injury and does not elect her remedies before the trial court proceeds to judgment, the trial court should render the judgment offering the greatest recovery. Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex. 1987). If the trial court does not do so, the appellate court must use the findings awarding the greatest theory of recovery and render judgment accordingly. Citizens Nat'l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 475 (Tex. App.—Fort Worth 2004, no pet.) (op. on reh'g).
The trial court awarded damages in the form of a credit against the balance on the line of credit, $26,135.43 in attorney's fees, and $25,000 inexemplary damages. Exemplary damages are not recoverable for breach of contract. Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). Attorney's fees are not recoverable for tortious interference with prospective business relationships, conversion, intentional infliction of emotional distress, fraud, fraudulent inducement, unjust enrichment, and money had and received. See Tex. Civ. Prac. & Rem. Code Ann. § 38.001. Attorney's fees may, however, be awarded for breach of contract. See id. Thus, Tracey's breach of contract claim affords the greatest recovery. We will therefore first address Harlan's issues challenging the sufficiency of the evidence to support Tracey's recovery for breach of contract.
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). When the appellate record contains a reporter's record, findings of fact on disputed issues are not conclusive and may be challenged for the sufficiency of the evidence. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003); Allison v. Conglomerate Gas II, L.P., No. 02-13-00205-CV, 2015 WL 5106448, at *6 (Tex. App.—Fort Worth Aug. 31, 2015, no pet.) (mem. op.). We defer to unchallenged findings of fact that aresupported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014).
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 fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). 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 factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder 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).
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 finding should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)(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).
We review the trial court's legal conclusions de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We may review conclusions of law to determine their correctness based upon the facts, but we will not reverse because of an erroneous conclusion if the trial court rendered the proper judgment. City of Austin v. Whittington, 384 S.W.3d 766, 779...
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