Nabours v. Longview Sav. & Loan Ass'n, C-3476

CourtSupreme Court of Texas
Writing for the CourtGONZALEZ; KILGARLIN
Citation700 S.W.2d 901
PartiesNick NABOURS, et ux., Petitioners, v. LONGVIEW SAVINGS & LOAN ASSOCIATION and Jerry W. Hill, Substitute Trustee, Respondents.
Docket NumberNo. C-3476,C-3476
Decision Date17 July 1985

Roberts Harbour Law Firm, Earl Roberts, Jr., Longview, for petitioners.

Kenneth Ross, Longview, for respondents.

GONZALEZ, Justice.

This controversy arose when Metropolitan Savings & Loan Association (now Longview Savings & Loan Association) sought

to foreclose on a vendor's lien it held on the Nabours' home. The Nabours sued to prevent the foreclosure and to recover damages. The jury found that Longview had waived its right to foreclose, that it had made false statements in connection with the foreclosure notices, and that it acted with malice. However, the jury found that the Nabours had suffered no actual damages. They did award punitive damages and attorney's fees. The court of appeals, with one justice dissenting, affirmed the granting of the injunction by the trial court, but it reversed the judgment of the trial court as to the punitive damages and attorney's fees. 673 S.W.2d 357 (Tex.App.1984). We affirm the judgment of the court of appeals.


The Nabours purchased a home from Alfred Burke in April, 1981. Mr. Burke's home was subject to a lien and deed of trust held by Metropolitan. Those instruments contained the following provision:

The Grantors further agree that they will not make any voluntary inter vivos transfer of the premises or any part thereof without first obtaining the written consent of the mortgagee. Any such transfer, if the mortgagee shall not so consent, shall constitute a default under the terms of this instrument....

The Nabours intended to finance the purchase of the house with a "wrap-around" mortgage, rather than with an assumption of the obligation currently existing against the home. They requested Metropolitan's consent to the sale. Metropolitan replied with a letter stating that consent would not be given without a satisfactory credit approval and assumption by the Nabours of Burke's note. Burke's attorney informed Metropolitan that the Nabours would not assume the existing loan.

Nabours had dealt with Metropolitan on one previous occasion. In April, 1980, Nabours purchased a house subject to a similar provision in a note and deed of trust held by Metropolitan. In that transaction Nabours was told by Terry Irick, a vice president of Metropolitan, that Metropolitan did not foreclose when consent clauses were violated and that any response by the association would merely be a formality. The day before the sale of the Burke house, however, Irick called Nabours and told him that he recommended that they not complete the sale. Nevertheless, the sale was closed on April 9, 1981. Thereafter, Burke made payments on the house for several months.

In August, 1981, Metropolitan posted foreclosure notices and filed statements of record. These statements were contained in a document entitled "Resignation of Trustee and Appointment of Substitute Trustee." This document stated that Metropolitan held a promissory note executed by Alfred Burke, that the Nabours had assumed the note and that "default has occurred in the payment of said indebtedness." The court of appeals states in its opinion that the representations of record stated that the Nabours had defaulted on their obligation by non-payment. In fact, the statement of record concerning default and non-payment is correct, since the due-on-sale clause was breached by Burke and the accelerated amount due under the note had not been paid by him. Therefore, the only false statement of record concerned the assumption of Burke's obligation by the Nabours. In October, Nabours obtained a temporary injunction to prevent a forced sale of the house and this suit followed.

At trial, Nabours asserted that Longview was guilty of common law fraud, violations of the Deceptive Trade Practices Act, and that it had waived its right to foreclose. The jury found that the Nabours had suffered no actual damages, but awarded $126,200 in punitive damages in addition to attorney's fees. The trial court made permanent the temporary injunction prohibiting Metropolitan from foreclosing on the The court of appeals affirmed the granting of the injunction, held that the Nabours were not consumers under the Deceptive Trade Practices Act and reversed the judgment of the trial court as to punitive damages.

Nabours' house for violation of the consent clause, and rendered judgment against Metropolitan for the punitive damages found by the jury and attorney's fees.


The Nabours assert that the award of equitable relief against Metropolitan and the existence of evidence in the record of actual damage is sufficient to justify the award of punitive damages in this case. We disagree.

This court has faced a similar situation twice in the recent past. In Doubleday & Company, Inc., v. Dr. N. Jay Rogers, 674 S.W.2d 751 (Tex.1984), the defendant committed libel against Dr. Rogers. The jury found no actual damages yet awarded punitive damages. Dr. Rogers argued that he needed only show that he was entitled to actual damages. Because actual damages were to be presumed in a libel case, he argued that it was not necessary that he actually recover any actual damages. The theory advanced by Dr. Rogers relied upon presumed harm to support the award of punitive damages. The Nabours are forced to rely on the same theory of presumed harm, since the jury found that no actual damage existed. In Doubleday, the contention that presumed harm was sufficient was rejected by the court, which stated that "[t]he Texas cases are unanimous in holding that recovery of actual damages is prerequisite to receipt of exemplary damages." Doubleday, 674 S.W.2d at 751. In Doubleday, the court also stated: "[p]unitive damages are not recoverable ... in the absence of a recovery of actual damages. This rule was most recently reaffirmed by this court in City Products Corp. v. Berman, 610 S.W.2d 446, 460 (Tex.1980)." Doubleday, Id at 753-4.

Even in cases where actual damages are not recoverable, it is still necessary to allege, prove and secure jury findings on the existence and amount of actual damage sufficient to support an award of punitive damage. Doubleday, 674 S.W.2d 754; 1 Berman, 610 S.W.2d at 450; Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, at 409 (1934); See also Burk Royalty v. Walls, 616 S.W.2d 911 (Tex.1981).

The operative facts in Berman are identical to those before the court today. In Berman, an injunction was granted against a lessor to enforce a lease. The jury awarded the plaintiff punitive damages, even though it found no actual damages. The court of appeals dissolved the injunction and disallowed the award of punitive damages. This court reinstated the injunction, but affirmed the court of appeals judgment as to punitive damages.

Despite the fact that the injunction existed and that the jury found by answer to special issues that the breach of the lease had "resulted in damage or injury" to the plaintiffs, the court denied the right to punitive damages. It stated that "[w]hen a distinct, wilful tort is alleged and proved in connection with a suit upon contract, one may recover punitive damages, but even in that instance the complainant must prove that he suffered some actual damages." Berman, 610 S.W.2d at 450. The Berman court affirmed the reversal by the court of appeals of the award of punitive damages This result necessarily follows from the rule that punitive damages must bear a reasonable proportion to actual damages. Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex.1981); Southwestern Investment Co. v. Neeley, 452 S.W.2d 705 (Tex.1970). International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex.1963). The rule is not a rigid one, though, and its application is to be determined on an ad hoc basis by the facts of each case. No set ratio may be established to govern in all cases. Kraus, 616 S.W.2d at 910. It is only one of several factors to be considered in the determination of the appropriateness and reasonableness of an award of punitive damages. Kraus, 616 S.W.2d at 910; Neeley, 452 S.W.2d at 707. Further, the ratio serves as one gauge of the effect of bias, prejudice and passion on the jury. Nolan v. Bettis, 577 S.W.2d 551 (Tex.Civ.App.--Austin 1979, writ ref'd n.r.e.).

even though injunctive relief had also been granted. 2

There is another, and more basic, rule that requires actual damages to be found prior to an award of punitive damages. Punitive damages are recoverable only after proof of a distinct, wilful tort. Amoco Production Co. v. Alexander, 622 S.W.2d 563 (Tex.1981); City Products Corp. v. Berman, 610 S.W.2d 446 (Tex.1980). This requirement applies equally to actions arising out of tort or contract, or those seeking equitable relief. See Berman, 610 S.W.2d 446; Holloway, 368 S.W.2d 567. Punitive damages must be contingent on a finding of actual damage since actual damage is a necessary element of the underlying tort upon which the punitive damages are to be based.

The Nabours cite Fillion v. Troy, 656 S.W.2d 912 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.), in support of their position that a mere grant of an injunction will support an award of punitive damages. We do not agree. Fillion did not involve injunctive relief. Fillion involved a recission of conveyances fraudulently induced. As in other cases where equity requires the return of property, this "recovery of the consideration paid as a result of fraud constitutes actual damages and will serve as a basis for the recovery of exemplary damages." Holloway, 368 S.W.2d at 568 (quoting from Briggs v. Rodriguez, 236 S.W.2d 510, 516 (Tex.Civ.App.--San Antonio 1951, writ ref'd n.r.e.). 3 Further, the jury in Fillion made findings of the fair market Our holding in this case should not be confused with an...

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