Court of Appeals of Texas, Fourth District, San Antonio
402 LONE STAR PROPERTY, L.L.C. and Craig Otto, Appellants
Barry L. BRADFORD, Appellee
the 438th Judicial District Court, Bexar County, Texas Trial
Court No. 2014-CI-08653 Honorable Gloria Saldaña,
Sitting: Sandee Bryan Marion, Chief Justice, Karen Angelini,
Justice Patricia O. Alvarez, Justice
PATRICIA O. ALVAREZ, JUSTICE.
Lone Star Property, L.L.C. (the "Company") and
Craig Otto appeal the trial court's judgment
awarding damages and attorney's fees to Barry L. Bradford
based on a jury's findings that the Company and Otto made
a fraudulent lien or claim against Bradford's home and
engaged in common law fraud. On appeal, the Company and Otto
challenge the legal and factual sufficiency of the evidence
to support the jury's liability findings and the damage
awards. Alternatively, the Company and Otto contend: (1) the
exemplary damage award is grossly excessive and
unconstitutional; and (2) Texas law precludes Bradford's
recovery of the same damages for his alternative theories of
liability. We reverse the portion of the trial court's
judgment awarding Bradford actual damages for his common law
fraud claim and render judgment limiting Bradford's
recovery to the damages and attorney's fees awarded based
on the jury's finding that the Company and Otto made a
fraudulent lien or claim against Bradford's home. We
affirm the remainder of the judgment.
Bradford failed to pay his homeowners' association fees,
the homeowners' association obtained an order authorizing
it to foreclose on Bradford's home. The Company purchased
the home at a foreclosure sale on October 1,
October 3, 2013, the Company posted a demand to vacate notice
on Bradford's door, informing him of the foreclosure sale
and demanding that he vacate the property. The notice stated
that if Bradford did not honor the demand, a forcible
detainer action would be filed against him.
immediately contacted an attorney and signed a retainer
agreement on October 4, 2013. On October 7, 2013,
Bradford's attorney sent a letter to the homeowners'
association and the Company informing them of Bradford's
intention to redeem his home pursuant to section 209.011 of
the Texas Property Code and requesting a detail of the amount
Bradford was required to pay to redeem his home.
October 8, 2013, the Company posted a second notice to vacate
on Bradford's door demanding that Bradford surrender
possession of his home within three days. On October 15,
2013, the Company filed a forcible entry and detainer action
in justice court and posted a copy of the petition on
Bradford's door. On October 18, 2013, the Company sent
Bradford's attorney a Property Redemption Payoff
Statement stating the total amount Bradford was required to
pay to redeem his home was $5, 877.22 and providing the
$1, 401.22 due as per Texas Property Code 209.011(e)(2)(E)
$ 120.00 due as per Texas Property Code 209.011(e)(2)(C)
$4, 356.00 due as per Texas Property Code 209.011(e)(2)(B)
October 22, 2013, Bradford's attorney mailed the Company
a cashier's check for $5, 877.22.
October 25, 2013, the Company filed a motion to dismiss its
forcible entry and detainer action. Three days later, the
justice court signed an order granting the motion to dismiss,
and the Company recorded a deed re-conveying Bradford's
home to him.
30, 2014, Bradford filed the underlying lawsuit asserting
various claims against the Company and Otto for inflating the
amounts due on the Property Redemption Payoff Statement. At
trial, Bradford proceeded only on his common law fraud claim
and his claim that the Company and Otto made a fraudulent
lien or claim against his home. As previously noted, the jury
found the Company and Otto were liable on both claims and
awarded Bradford damages and attorney's fees. Based on
the jury's findings, the trial court signed a judgment
awarding Bradford: (1) $20, 000 in damages and $25, 000 in
exemplary damages for his claim that the Company and Otto
made a fraudulent lien or claim against his home; (2) $1,
859.22 in actual damages for his common law fraud claim; (3)
$5, 000 in attorney's fees; (4) $10, 000 in conditional
appellate attorney's fees; and (5) court costs. The
Company and Otto appeal.
first address one of the alternative issues asserted by the
Company and Otto because the resolution of this issue impacts
our remaining analysis. In their second alternative issue,
the Company and Otto contend Bradford was not entitled to
recover damages for both of his claims because Texas law
precludes a double recovery for a single injury.
party is entitled to bring suit and seek damages on
alternative theories; however, the plaintiff may not recover
on both theories because these would amount to a 'double
recovery.'" Marin Real Estate Partners, L.P. v.
Vogt, 373 S.W.3d 57, 76 (Tex. App.-San Antonio 2011, no
pet.); see also Foley v. Parlier, 68 S.W.3d 870, 882
(Tex. App.-Fort Worth 2002, no pet.) (same). "A double
recovery exists when a plaintiff obtains more than one
recovery for the same injury." Waite Hill Servs.,
Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182,
184 (Tex. 1998); see also Marin Real Estate Partners,
L.P., 373 S.W.3d at 76 (describing double recovery as
being "awarded more than one recovery for the same
injury"). "'Texas law does not permit double
recovery.'" Marin Real Estate Partners,
L.P., 373 S.W.3d at 76 (quoting Parkway Co. v.
Woodruff, 901 S.W.2d 434, 441 (Tex. 1995)). "The
prohibition against double recovery is a corollary of the
rule that a party is entitled to but one satisfaction for the
injuries sustained by him." Foley, 68 S.W.3d at
883; see also Marin Real Estate Partners, L.P., 373
S.W.3d at 76 (noting "prohibition against double
recovery is a corollary to the one satisfaction rule").
Whether a party has received a double recovery is a question
of law that we review de novo. Marin Real Estate
Partners, L.P., 373 S.W.3d at 75.
case, both of Bradford's claims sought to recover damages
for fraudulent misrepresentations the Company and Otto
allegedly made in the Property Redemption Payoff Statement
regarding the amount Bradford was required to pay to redeem
his home. Therefore, both claims sought to recover damages
for the same injury. Although Bradford was entitled to pursue
the alternative claims in seeking damages for his injury,
recovering on both theories is prohibited. Parkway
Co., 901 S.W.2d at 441; Marin Real Estate Partners,
L.P., 373 S.W.3d at 76; Foley, 68 S.W.3d at
Effect of Double Recovery on Judgment and Appeal
party receives favorable findings on two alternative theories
of liability, the party has a right to a judgment on the
theory entitling him to the greatest relief. E.F. Johnson
Co. v. Infinity Glob. Tech., No. 05-14-01209-CV, 2016 WL
4254496, at *14 (Tex. App.-Dallas Aug. 11, 2016, no pet.)
(mem. op.). If the prevailing party fails to elect between
his alternative remedies, the trial court should render
judgment on the theory affording the greatest recovery.
Id.; Main Place Custom Homes, Inc. v.
Honaker, 192 S.W.3d 604, 613 (Tex. App.-Fort Worth 2006,
pet. denied). "If the trial court does not do so, the
appellate court must determine the greatest theory of
recovery and render judgment accordingly." E.F.
Johnson Co., 2016 WL 4254496, at *14; see also Main
Place Custom Homes, Inc., 192 S.W.3d at 613.
now examine the remaining issues raised by the Company and
Otto on appeal to determine which of Bradford's claims
afforded him the greatest relief.
of the Evidence
their first two issues, the Company and Otto contend the
evidence is legally and factually insufficient to support the
jury's liability findings, and, alternatively, the
evidence is legally and factually insufficient to support the
amount of damages awarded based on those liability findings.
Standard of Review
final test for legal sufficiency must always be whether the
evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review." City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In
reviewing a legal sufficiency challenge, we "view the
evidence in the light favorable to the verdict, crediting
favorable evidence if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could
not." Id. at 807. Evidence is legally
insufficient when the record discloses: (1) 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. Id. at 810 (internal
factual sufficiency review, we consider all the evidence
supporting and contradicting the jury's finding.
Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442,
445 (Tex. 1989). We set aside the jury's verdict
"only if it is so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust."
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
reviewing the legal or factual sufficiency of the evidence,
the jurors are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, and may
choose to believe ...