Carolyn Barnes v. University Federal Credit Union and Government Employees Insurance Company/GEICO Insurance

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00147-CV

Carolyn Barnes, Appellant

v.

University Federal Credit Union and

Government Employees Insurance Company/GEICO Insurance, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. D-1-GN-05-003010, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING

MEMORANDUM OPINION

This is the second appeal in this suit filed by appellant Carolyn Barnes, plaintiff in the

underlying proceeding, against appellees University Federal Credit Union (UFCU) and Government

Employees Insurance Company (GEICO). In our prior opinion, we affirmed the trial court’s severance

order and partial summary judgment in favor of UFCU and GEICO. Barnes’s remaining claims and

UFCU’s counterclaims proceeded to a jury trial. Barnes appeals from a final judgment, consistent

with the jury’s findings, denying her breach of contract and Deceptive Trade Practices Act (DTPA)

claims and awarding UFCU damages and attorneys’ fees. For the reasons set forth below, we affirm

the judgment conditioned on UFCU filing a remittitur reducing its award of attorneys’ fees for this

appeal to $15,000.

BACKGROUND

The factual and procedural background of this case is fully set forth in our prior

opinion. See Barnes v. University Fed. Credit Union, No. 03-09-00003-CV, 2010 WL 2133946

(Tex. App.—Austin May 27, 2010, no pet.) (mem. op.). Generally stated, however, Barnes obtained

two loans from UFCU for $14,066 using two personal vehicles as collateral. The loan agreements

required Barnes to obtain comprehensive and collision insurance coverage. After sending Barnes

numerous letters requesting a copy of the required insurance and not receiving the requested proof,

UFCU issued collateral protection insurance (CPI) and added the $1,600 premium to the loan

balance. On August 25, 2005, Barnes filed suit against UFCU and GEICO, her insurance carrier,

pleading numerous causes of action, including breach of contract against UFCU and DTPA claims

against GEICO—alleging that GEICO had misled her regarding the scope of her coverage.

On April 5, 2006, UFCU sent Barnes a settlement proposal stating that in return for

$8,000, UFCU would consider the relevant loans to be paid in full, release the liens on her vehicles,

and forego collection of any late fees, penalties, interest, or attorneys’ fees. The proposal further

states, “UFCU and Barnes will execute reasonable and mutually agreeable full releases and other

settlement documentation necessary to fully resolve and dismiss the current proceedings.” The letter

contained a signature line for Barnes to sign acknowledging that she “agreed and accepted” the

agreement. Barnes did not sign. Rather, she sent UFCU a cashier’s check for $8,000 accompanied

by a letter dated April 11, 2006, stating, “I am in receipt of your extortion demand with threats of

additional economic and financial terrorism if I do not comply with your demands. This ransom and

extortion money is being paid under extreme economic and financial duress and not because it is due

and owing.” The letter goes on to state that the funds were being tendered “with all rights reserved”

2

and asserting claims of over $400,000 against UFCU in damages and attorneys’ fees. UFCU sent

notice that it would not accept Barnes’s check unless she signed a release of all claims. Barnes did

not sign a release, and UFCU declined to negotiate the $8,000 check. Barnes filed UFCU’s letter

with the trial court as a Rule 11 agreement and amended her pleadings to add an additional breach

of contract claim against UFCU, alleging that UFCU had breached the parties’ Rule 11 agreement

by proceeding with litigation after receiving her cashier’s check for $8,000.

Eventually, all parties moved for summary judgment. The trial court granted summary

judgment in favor of UFCU and GEICO on all of Barnes’s claims except for her two breach of

contract claims against UFCU—one claim arising from the loan agreement and the other from

the alleged Rule 11 agreement—and her DTPA claims against GEICO. Prior to GEICO’s filing a

motion to sever the causes of action that had been decided on summary judgment, Barnes filed

supplemental pleadings adding new causes of action, including claims for breach of fiduciary duty

and breach of fair debt collection laws against UFCU (“supplemental claims”). The trial court

entered an order of severance, severing out those causes of action that had already been decided and

ordering Barnes to proceed only with her two breach of contract claims against UFCU and her DTPA

claims against GEICO. On appeal, we affirmed the summary judgment and order of severance.

Barnes’s remaining claims, as well as UFCU’s counterclaims, proceeded to a jury

trial. In addition, the trial court allowed her to proceed with her supplemental fair debt collection

claim against UFCU. The jury found that Barnes breached her loan agreements with UFCU, UFCU

did not breach the loan agreements, and Barnes’s breach was unexcused by her affirmative defenses.

The jury awarded UFCU damages of $11,022.33 and attorneys’ fees of $35,000 for preparation and

trial, $25,000 for an appeal to the court of appeals, and $15,000 for an appeal to the Supreme Court

3

of Texas. The jury further found against Barnes on her breach of contract claim arising from the

alleged Rule 11 agreement, finding that the parties had not entered into an enforceable settlement

agreement and against her DTPA claims against GEICO. But the jury did find in favor of Barnes

on her fair debt collection claim against UFCU and awarded her $1,049.96 in damages and $35,000

in attorneys’ fees.1 The trial court entered final judgment in accordance with the jury’s findings.

In five issues on appeal, Barnes argues the trial court erred by: (1) improperly severing

her supplemental claims and not submitting jury questions for those claims, (2) not enforcing the

alleged Rule 11 agreement as a matter of law, (3) assessing discovery sanctions against her in the

amount of $500, (4) granting summary judgment in favor of GEICO and UFCU, and (5) depriving

her of her right to a fair trial due to numerous complaints, including improper jury argument, improper

comment on the evidence, violation of the motion in limine, discovery abuse, and insufficient

evidence to support the jury’s findings.

ORDER OF SEVERANCE

In her first issue on appeal, Barnes argues the trial court erred by (1) improperly

severing her supplemental claims and (2) refusing to submit those claims to the jury. UFCU contends

that this Court has already determined and rejected Barnes’s argument in her prior appeal, and even

if we choose to revisit the issue, Barnes failed to preserve error by requesting jury questions for her

supplemental claims. We agree with UFCU that we already addressed the propriety of the severance

order in our prior opinion. With regard to the jury charge, we conclude the trial court submitted all

grounds of recovery supported by the evidence and properly requested by counsel.

1

UFCU does not appeal the jury’s finding on Barnes’s fair debt collection claim or the award

of damages and attorneys’ fees.

4

In her prior appeal before this Court, Barnes argued that the trial court’s severance

order improperly severed her supplemental claims. We concluded that, even if the order improperly

severed claims that had not been resolved on summary judgment, the issue was remedied because

the trial court permitted Barnes to proceed at trial on claims that were raised for the first time after

the summary judgment order. Indeed, Barnes obtained a favorable jury verdict on her supplemental

fair debt collection claim. “Under the law of the case doctrine, a court of appeals is ordinarily bound

by its initial decision if there is a subsequent appeal in the same case.” Briscoe v. Goodmark Corp.,

102 S.W.3d 714, 716-17 (Tex. 2003). Barnes has not presented new facts, legal analysis, or

argument that would change the disposition of this issue. Accordingly, the law of the case doctrine

bars its reconsideration.

With regard to the trial court’s submission of Barnes’s supplemental claims to the

jury, the trial court did submit—as previously noted—a jury question on Barnes’s supplemental fair

debt collection claim. For Barnes’s remaining supplemental claims, she only requested and obtained

a ruling on her supplemental claim for breach of fiduciary duty against UFCU. Trial courts are

required “to submit requested questions to the jury if the pleadings and any evidence support them.”

Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992); see also Tex. R. Civ. P. 278. But a fiduciary

relationship does not usually exist between a borrower and lender, and we cannot conclude

the evidence supported a claim against UFCU for breach of fiduciary duty. See Thigpen v. Locke,

363 S.W.2d 247, 253 (Tex. 1963) (debtor-creditor relationship alone insufficient to create fiduciary

relationship); see also Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 442 (Tex. App.—Houston

[14th Dist.] 1998, pet. denied).

5

When Texas courts have found a fiduciary relationship between a borrower and

creditor, “the findings have rested on extraneous facts and conduct, such as excessive lender control

or influence in the borrower’s business activities.” Bank One, Texas, N.A., 967 S.W.2d at 442. Upon

review of the record, we cannot find—nor does Barnes identify in her brief—evidence of extraneous

facts or conduct by UFCU creating a fiduciary relationship. Further, because Barnes had never done

business at UFCU before, there is no evidence of a long-standing relationship of trust that might

create a fiduciary relationship. See Thigpen, 363 S.W.2d at 253; Fleming v. Texas Coastal Bank of

Pasadena, 67 S.W.3d 459, 461 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). As there was

not sufficient evidence to support a breach of fiduciary duty claim, we conclude the trial court did

not abuse its discretion by omitting the requested ground of recovery from the jury charge.

We further conclude that Barnes has waived error as to all other supplemental claims.

During a discussion of the supplemental claims at pretrial conference, Barnes’s counsel expressly

advised the trial court that the only supplemental claim her client would pursue at trial was the fair

debt collection claim based on UFCU improperly reporting Barnes’s debt: “I’m just submitting a

jury issue about the unfair debt reporting.” At the charge conference, Barnes’s counsel additionally

sought a jury question on the breach of fiduciary duty claim. But Barnes did not timely request in

writing a jury question for any other supplemental claim.2 See Tex. R. Civ. P. 278. Further, Barnes’s

2

The record reflects Barnes filed proposed jury questions for some supplemental claims a

month after the jury returned its verdict but did not obtain a ruling on these untimely requests. See

Tex. R. Civ. P. 278 (“Failure to submit a question shall not be deemed a ground for reversal of the

judgment, unless its submission, in substantially correct wording, has been requested in writing and

tendered by the party complaining of the judgment . . . .”); Moffett v. Goodyear Tire & Rubber Co.,

652 S.W.2d 609, 612 (Tex. App.—Austin 1983, writ ref’d n.r.e.) (without indication in record that

requested jury question was presented and refused by trial court no error is preserved despite requested

issues inclusion in record).

6

brief does not contain a clear argument as to how she established any other supplemental claim

or appropriate citations to legal authority and the record to support such claims. See Tex. R. App.

P. 38.1(I). On appeal, all independent grounds of recovery “not conclusively established under the

evidence and no element of which is submitted or requested are waived.” Tex. R. Civ. P. 279.

Because Barnes failed to request jury questions on any other supplemental claims and has not

conclusively established those claims under the evidence, we conclude she has waived error.

ALLEGED RULE 11 AGREEMENT

Barnes also argues the trial court erred in denying her motions for directed verdict,

judgment notwithstanding the verdict, and new trial because she established as a matter of law:

(1) her breach of contract claim against UFCU arising from the alleged Rule 11 agreement, or in the

alternative, (2) her affirmative defense of accord and satisfaction to UFCU’s breach of contract

claim arising from the loan agreement.3 Barnes’s argument is twofold: first, she argues her $8,000

cashier’s check and accompanying letter, tendered in response to UFCU’s settlement proposal,

constituted a valid acceptance of UFCU’s offer creating an enforceable settlement agreement.4

3

Barnes also argues on appeal that the trial court erred by denying her three motions for

summary judgment seeking enforcement of the alleged Rule 11 agreement. Where a motion for

summary judgment is denied by the trial court and tried on its merits, the order denying the motion

for summary judgment is not reviewable on appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362,

365 (Tex. 1966); Nuby v. Allied Bankers Life Ins. Co., 797 S.W.2d 396, 397 (Tex. App.—Austin

1990, no writ).

4

Texas Rule of Civil Procedure 11 requires all agreements between parties touching any

pending suit to be in writing, signed, and filed as part of the record. With her summary judgment

motion seeking enforcement of the alleged Rule 11 agreement, Barnes attached UFCU’s settlement

proposal letter signed by an attorney for UFCU, her signed responding letter, and a copy of the

$8,000 cashier’s check signed by a representative of the issuing bank. A series of letters between

parties may constitute a written settlement agreement enforceable under Rule 11. Padilla v. LaFrance,

907 S.W.2d 454, 460 (Tex. 1995).

7

The jury disagreed, finding that Barnes and UFCU did not enter into an enforceable settlement

agreement. In the alternative, Barnes argues she established the affirmative defense of accord and

satisfaction to UFCU’s breach of contract claim arising from the loan agreement. Specifically, she

argues her tender of the $8,000 cashier’s check and accompanying letter constituted a new agreement

between the parties that should operate as an accord and satisfaction, thereby discharging her

obligations under the original loan contract. The jury again disagreed, finding Barnes breached the loan

agreement and did not meet her burden of proof for the affirmative defense of accord and satisfaction.

Standard of Review

The substance of Barnes’s argument is a challenge to the legal sufficiency of the

jury’s findings.5 See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). Barnes had the

burden of proof both on her breach of contract claim against UFCU arising from the alleged Rule 11

agreement and on her affirmative defense of accord and satisfaction. When a party attacks the legal

sufficiency of an adverse finding on an issue on which she has the burden of proof, she must

5

Barnes also challenges the factual sufficiency of the jury’s findings but failed to preserve

error in her motion for new trial by adequately apprising the trial court of the alleged deficiency. See

Tex. R. Civ. P. 324(b). A point in a motion for new trial is a prerequisite to complain on appeal that

the evidence is factually insufficient to support a jury finding. Id. Embedded within a point in her

motion for new trial discussing deliberations and titled “Jury Misconduct,” Barnes generally alleges

that she established as a matter of law an accord and satisfaction “and, in any event, any opposite

findings would be contrary to the great weight and preponderance of the evidence.” In over thirty-

five pages of argument, Barnes provides no further support, authority, or evidence to apprise the

trial court that she was challenging the factual sufficiency of any jury findings. We conclude that

Barnes’s argument did not clearly identify that she was challenging the factual sufficiency of the

jury’s findings, nor was she specific enough to give the trial court proper notice of the matter at

issue; she has thus failed to preserve error. Tex. R. Civ. P. 321 (each point relied upon in motion

for new trial shall refer to complained of error in such a way that objection can be clearly identified

and understood by the court).

8

demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of

the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001); Sterner v. Marathon Oil

Co., 767 S.W.2d 686, 690 (Tex. 1989). A party attempting to overcome an adverse fact finding as

a matter of law must surmount two hurdles. Sterner, 767 S.W.2d at 690. First, the record must be

examined for evidence that supports the jury’s finding, while ignoring all evidence to the contrary. Id.

Second, if there is no evidence to support the fact finder’s answer, then the entire record must be

examined to see if the contrary proposition is established as a matter of law. Id. The point of error

will be sustained only if the contrary proposition is conclusively established. Dow Chemical Co.,

46 S.W.3d at 241.

Settlement Agreement

Reviewing the evidence supporting the jury’s finding that the parties did not enter

an enforceable settlement agreement, we conclude Barnes did not establish as a matter of law the

existence of a valid settlement agreement with UFCU. A settlement is a contract, and its construction

is governed by legal principles applicable to contracts generally. Rodriguez v. Villarreal, 314 S.W.3d

636, 641 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Like all contracts, a settlement requires

an offer, an acceptance, and a meeting of the minds. See Killeen v. Lighthouse Elec. Contractors,

248 S.W.3d 343, 349 (Tex. App.—San Antonio 2007, pet. denied).

UFCU’s letter to Barnes dated April 5, 2006 proposed settlement under the following

terms: (1) Barnes would pay UFCU $8,000 via cashier’s check or other certified funds before

April 13, 2006; (2) upon receipt of the settlement amount, UFCU would release the liens it possessed

9

on Barnes’s vehicles; (3) all parties would pay their own court costs, interest, attorney’s fees and

other costs; (4) UFCU would consider the loans paid in full; and (4) UFCU and Barnes would

execute reasonable and mutually agreeable full releases and other settlement documentation

necessary to fully resolve and dismiss the current proceedings.

While Barnes contends that she consented to the proposed settlement agreement by

providing UFCU with a cashier’s check in the proposed settlement amount, Barnes failed to sign the

settlement proposal acknowledging that she “agreed and accepted” the settlement terms. Moreover,

the cashier’s check was sent with an accompanying letter stating that it was tendered “under extreme

economic duress, under protest, and with all rights reserved” and asserting claims of over $400,000

against UFCU in damages and attorneys’ fees. We conclude this is some evidence that Barnes did

not accept UFCU’s proposal to fully settle the dispute and resolve the pending proceedings. United

Concrete Pipe Corp. v. Spin-Line Co., 430 S.W.2d 360, 364 (Tex. 1968) (well settled that if an

acceptance changes or qualifies the terms of the offer, the offer is rejected); see also King v. Bishop,

879 S.W.2d 222, 223-24 (Tex. App.—Houston [14th Dist.] 1994, no writ) (economic duress may

be grounds to set aside a settlement agreement). As such, our inquiry with regard to this issue need

go no further.

Accord and Satisfaction

We further conclude that Barnes did not establish as a matter of law her affirmative

defense of accord and satisfaction. An accord and satisfaction exists when parties agree to discharge

an existing obligation in a manner other than in accordance with the terms of their original

10

contract. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969). The doctrine of accord

and satisfaction is based upon the creation of a new contract, express or implied, by which the parties

specifically and intentionally agree to the discharge of one of the parties’ existing obligations in

a manner otherwise than originally agreed. Id.; Pate v. McClain, 769 S.W.2d 356, 361-62 (Tex.

App.—Beaumont 1989, writ denied).

To prevail on appeal, Barnes must demonstrate that the evidence establishes as a

matter of law: (1) she in good faith tendered the cashier’s check to UFCU as full satisfaction of the

claim, (2) the amount of the claim was unliquidated or subject to a bona fide dispute, (3) UFCU

obtained payment of the instrument, and (4) the check or an accompanying written communication

contained a conspicuous statement to the effect that the instrument was tendered in full satisfaction

of the claim. Tex. Bus. & Com. Code Ann. § 3.311(a) & (b) (West 2002 & Supp. 2012) (Texas

Uniform Commercial Code provision governing accord and satisfaction by use of negotiable

instrument).6 If these elements are proven, the claim is discharged, subject to two exceptions

inapplicable to this case. See id. § 3.311(b) & (c).

We cannot conclude that Barnes established as a matter of law that UFCU obtained

payment of the cashier’s check. Reviewing the evidence in support of the jury’s verdict, UFCU

6

The cashier’s check at issue is a negotiable instrument to which the Texas Uniform

Commercial Code (“Code”) applies. See Tex. Bus. & Com. Code Ann. § 3.104(a) (West 2002 &

Supp. 2012). Because Section 3.311 of the Code—governing accord and satisfaction by use of a

negotiable instrument—does not conflict with the common law doctrine of accord and satisfaction,

we may use common law principles of accord and satisfaction to supplement the Code’s provisions.

See Milton M. Cooke Co. v. First Bank and Trust, 290 S.W.3d 297, 304 (Tex. App.—Houston

[1st Dist.] 2009, no pet.); Tex. Bus. & Com. Code Ann. § 1.103(b) (West 2009 & Supp. 2012).

11

retained but declined to negotiate the check for approximately six months until Barnes obtained a

refund from the issuing bank.7 Upon receipt of the check, UFCU immediately mailed Barnes a letter

stating UFCU “cannot accept/negotiate your check or proceed” until all of the settlement terms

are agreed to, including agreement to execute a full release “allowing this matter to be fully and

completely resolved.” Barnes never signed the settlement proposal or a release. During the six months

UFCU retained the check, it sent Barnes three more letters urging her to assent to the terms of the

settlement agreement—to no avail.8 Barnes admitted at trial that she never asked UFCU to return

the check.

Our sister courts have found that the retention of a cashier’s check for an

unreasonable length of time is the equivalent of an acceptance of the accord and satisfaction as

a matter of law. See Tarrant Wholesale Drug Co. v. Kendall, 223 S.W.2d 964, 966-67 (Tex. Civ.

App.—San Antonio 1949, no writ) (“[F]ailure to return a [cashier’s] check tendered in settlement

of a disputed claim within a reasonable time, must be regarded in law as an acceptance of the

compromise offer.”); Willis v. City Nat’l Bank of Galveston, 280 S.W. 270, 273 (Tex. Civ.

App.—Galveston 1926, writ ref’d) (holding long-continued retention of cashier’s check “without

7

The date of the refund is not revealed by the record, but the parties agree UFCU retained

the check for at least six months. Barnes testified that she obtained a refund by filling out a lost

cashier’s check form with the issuing bank.

8

The UFCU letters responding to Barnes’s tender are dated April 14, 2006; April 18, 2006;

June 13, 2006; and July 7, 2006. Barnes complains on appeal the trial court committed fundamental

error by admitting the letters into evidence, which she describes as “self-serving post-breach legal

opinions and completely irrelevant as to the formation of the contract.” As the letters were relevant

to proving or disproving the existence of a settlement agreement and Barnes’s breach of contract

claim, the trial court did not abuse its discretion.

12

in any way indicating its refusal to accept the terms of the settlement” constituted acceptance of

accord and satisfaction as a matter of law). But what is an unreasonable amount of time to retain a

check depends on the circumstances of the case. See Curran v. Bray Wood Heel Co., Inc., 68 A.2d

712, 718 (Vt. 1949) (“The cases recognize that what is a reasonable time depends upon the

circumstances of each case.”); 35 Am. Jur.2d Proof of Facts § 735 (2013) (“Many courts have held

that a creditor’s retention for an unreasonable length of time of a check tendered in full payment

of a debt, without cashing or making affirmative use of the check constitutes acceptance of the

check. . . . The question whether a particular period of time is unreasonable depends on the

circumstances of the individual case.”).

We cannot conclude, based on the record before us, that UFCU’s retention of the

check was for an unreasonable length of time as a matter of law when: (1) UFCU immediately

repudiated the offered accord, (2) UFCU informed Barnes it could not negotiate the check until a full

settlement could be reached, (3) Barnes acquiesced to UFCU’s retention of the check and did not

request the check be returned, and (4) there were continued settlement negotiations between the

parties. See Kelly v. Kowalsky, 442 A.2d 1355, 1357 (Conn. 1982) (“When creditor immediately

and fully explains the grounds for his retention of a conditional check, and when a debtor acquiesces

in that retention, there is no policy reason to support a finding that a creditor has agreed to an offer

of accord which he has expressly rejected.”); American Nat’l Bank v. Bradford, 188 S.W.2d 971,

978-79 (Tenn. App. 1945) (when “the parties continue to negotiate to reach an agreement to

compromise the claim, it can hardly be said that the offeree must at the same time elect to accept or

refuse the check, or that his holding it during such negotiations is unreasonable”). We hold that,

13

under the particular circumstances of this case, whether UFCU retained the check for an

unreasonable length of time presented a fact issue for the jury, and the evidence before the jury

permitted it to find that there was no basis upon which to base an accord and satisfaction. See 35

Am. Jur.2d Proof of Facts § 735 (2013) (“The reasonableness of the period of retention is ordinarily

a question for the jury.”).

Even if we were to conclude that UFCU’s retention of the cashier’s check was an

implied acceptance, we cannot conclude that Barnes established as a matter of law that the check or

her accompanying letter “contained a conspicuous statement to the effect that the instrument was

tendered in full satisfaction of the claim.” Tex. Bus. & Com. Code Ann. § 3.311(b). At the time

Barnes tendered the check, there were numerous claims and counterclaims9 between the parties and

there is no notation on the check as to what claims Barnes intended to settle by tendering the funds

or that the payment was tendered in full satisfaction of any claim. Further, the letter accompanying

the check did not explicitly state in clear and unmistakable terms that it was in full satisfaction of

any or all claims. Rather, Barnes tendered the funds with “all rights reserved” and stated that the

amount due should be offset by over $400,000 in damages and attorneys’ fees.

When the creditor’s assent to the creation of a new contract must be implied, as in

this case, “the facts proved must irresistibly point to such conclusion.” Jenkins, 449 S.W.2d at 455.

9

Barnes had pending claims against UFCU for fraud in the inducement, DTPA violations,

breach of contract, fraud, negligence, defamation, intentional infliction of emotional distress, invasion

of privacy, malice, and unconscionable contract of adhesion. UFCU had multiple counterclaims

pending against Barnes, including breach of contract, quantum meruit, unjust enrichment, and

conversion. Both parties sought to recover attorneys’ fees.

14

There must be “an unmistakable communication to the creditor that tender of the lesser sum is

upon the condition that acceptance will constitute satisfaction of the underlying obligation.” Id.

The “statement accompanying the tender of a sum less than the contract price must be so clear,

full and explicit that it is not susceptible of any other interpretation.” Id. “The condition that the

tender is in full settlement must be brought home to the creditor.” Roylex, Inc. v. S & B Eng’rs, Inc.,

592 S.W.2d 59, 60 (Tex. Civ. App.—Texarkana 1979, no writ).

We do not believe that Barnes’s letter accompanying the cashier’s check is so clear,

full, and explicit that it is not susceptible of any interpretation other than that it was in full

satisfaction of all pending claims. George Linskie Co. v. Miller-Picking Corp., 463 S.W.2d 170, 173

(Tex. 1971) (holding no accord and satisfaction as a matter of law when debtor “did not make known

in clear and unmistakable terms that the tender . . . would constitute full satisfaction of all pending

claims”). Barnes’s tender of the funds “with all rights reserved” while continuing to claim additional

damages is itself unclear as to what claims are settled by the accord, and the accord is susceptible

to multiple interpretations as to what claims were discharged. See id.

At best, any inferences to be drawn from the letter presented issues of fact properly

submitted to the jury. See Jenkins, 449 S.W.2d at 456 (holding whether payments by contractor to

subcontractor carried unequivocal notice that payments were tendered in full satisfaction of all

claims was question of fact when numerous amounts were disputed and alleged accord was

susceptible to multiple interpretations); Flowers v. Diamond Shamrock Corp., 693 F.2d 1146, 1153

(5th Cir. 1982) (“At most, any inferences to be drawn from the letter concerning . . . an accord

and satisfaction, were factual issues to be determined by the jury.”); see also George Linskie Co.,

15

463 S.W.2d at 172 (holding no accord and satisfaction as a matter of law when letter accompanying

tender was susceptible of multiple interpretations); Call of Houston, Inc. v. Mulvey, 343 S.W.2d 522,

525 (Tex. Civ. App.—Houston 1961, no writ) (holding whether parties mutually intended to enter

accord and satisfaction presented issue of fact when recital on check could have been misunderstood

by creditor). Based on the foregoing, we cannot conclude that Barnes established her affirmative

defense of accord and satisfaction as a matter of law.10 We therefore overrule Barnes’s second issue

on appeal.

DISCOVERY SANCTIONS

In her third issue, Barnes complains the trial court abused its discretion in sanctioning

her $500 in a discovery order dated July 5, 2006. The record reflects the trial court issued three

discovery orders against Barnes. The first order, entered on December 13, 2005 and not challenged

on appeal, granted UFCU’s motion to compel and ordered Barnes to respond to UFCU’s

discovery requests and pay $1,500 in attorneys’ fees as sanctions. The trial court issued a second

order on June 12, 2006, granting UFCU’s second motion to compel and ordering Barnes to produce

10

Barnes argues the trial court abused its ministerial duty by not enforcing the alleged Rule

11 agreement as an agreed judgment dismissing the suit. She also argues the trial court abused its

discretion by not issuing a declaratory judgment declaring the rights of the parties, as a matter of law,

under the Rule 11 agreement. Because Barnes’s breach of contract claim and accord and satisfaction

defense presented issues of fact, we conclude the trial court did not abuse its discretion by submitting

those issues to the jury. Tex. Civ. Prac. & Rem. Code Ann. § 37.007 (West 2008 & Supp. 2012) (if

declaratory judgment “involves the determination of an issue of fact, the issue may be tried and

determined in the same manner as issues of fact are tried and determined in other civil actions);

Staley v. Herblin, 188 S.W.3d 334, 336 (Tex. App.—Dallas 2006, pet. denied) (holding fact issues

as to the existence of a Rule 11 settlement agreement—when proposed settlement documents were

unsigned and agreement was evidenced only by series of letters, documents, and communications

between the parties—precluded entry of an agreed judgment).

16

documents responsive to several specific requests for production and overruling her objections to

such requests. UFCU filed a motion to enforce the June 12, 2006 order, and a hearing was held on

July 5, 2006. After the hearing, the trial court entered an order partially granting UFCU’s motion

to enforce—ordering that Barnes respond only to Request for Production 26 and awarding UFCU

$500 in attorneys’ fees.

On appeal, Barnes argues the trial court abused its discretion by sanctioning her $500

in attorneys’ fees. But UFCU’s motions to compel and enforce were not included in the record, and

the record does not otherwise reflect the questions posed by UFCU’s requests for production

or Barnes’s responses. Barnes had the burden “to supply us an appellate record demonstrating

the trial court abused its discretion.” University of Tex. at Austin v. Hinton, 822 S.W.2d 197, 202

(Tex. App.—Austin 1991, no writ). Without the requests for production and responses, we cannot

appraise whether the trial court abused its discretion and “must presume that the missing documents

would sustain the trial court’s ruling.” Id. (presuming interrogatories and answers missing from

record would sustain’s trial court’s discovery sanction); see also Christiansen v. Prezelski,

782 S.W.2d 842, 843 (Tex. 1990). We therefore overrule Barnes’s third issue on appeal.

SUMMARY JUDGMENT

In her fourth issue, Barnes argues the trial court erred in granting partial summary

judgment in favor of UFCU and GEICO. Barnes raised this identical issue in her previous appeal

in this case. Barnes, 2010 WL 2133946, at *3. After a careful and thorough review of the summary

judgment evidence, we held “the trial court did not err in granting summary judgment in favor of

UFCU and GEICO.” Id. at *8. Under the law of the case doctrine, “questions of law decided on

17

appeal to a court of last resort will govern the case throughout its subsequent stages.” Hudson v.

Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). Having already concluded as a matter of law that the

trial court did not abuse its discretion in granting partial summary judgment, we overrule Barnes’s

fourth issue on appeal.

RIGHT TO A FAIR TRIAL

In her final issue on appeal, Barnes alleges— in over thirty pages of argument—that

she was deprived of her right to a fair trial due to a multitude of complaints, including the following

as stated in the title of her issue: (1) bad faith litigation tactics employed by appellees, (2) incurable

jury argument, (3) incurable interjection of matters in violation of the motion in limine, (4) malicious

interjection of irrelevant and inadmissible matters to prejudice the jury, (5) perjury by Appellees’

witnesses, (6) false evidence, (7) misleading testimony by persons without personal knowledge,

(8) incompetent evidence, (9) intentional non-disclosure of pertinent evidence and witnesses with

knowledge of relevant facts, (10) misstatement of the law, (11) deliberately misleading the jury to

make them to believe there were two loans when there is no promissory note or other loan

agreement, (12) false testimony based on speculation, conjecture, and surmise, (13) introduction of

letters of UFCU without allowing letters and evidence from Barnes,11 (14) discovery abuse, and

(15) unfair comment on the evidence. In addition to the foregoing complaints, she challenges the

legal sufficiency of every unfavorable jury finding,12 and raises complaints regarding her trial

11

We concluded in our prior discussion of the alleged Rule 11 agreement that this was not

an abuse of discretion.

12

We have already concluded that Barnes did not establish as a matter of law her breach of

contract claim arising from the alleged Rule 11 agreement or her affirmative defense of accord and

satisfaction.

18

counsel’s withdrawal from the case after trial. Many of these complaints are encompassed in her

legal sufficiency challenges, and some complaints have been addressed—as noted— in other sections

of the opinion. After reviewing the legal sufficiency of the evidence, we will address any remaining

and adequately briefed complaints, and then address whether the cumulative affect of these alleged

errors caused an unfair trial.

Legal Sufficiency of Jury’s Findings

Barnes complains there is no evidence to support the jury’s findings in favor of

UFCU on its breach of contract claim and damages.13 Specifically, she argues there is no evidence

supporting the jury’s findings that (1) Barnes and UFCU entered into 2 loan agreements, (2) Barnes

failed to comply with the loan agreements, and (3) UFCU suffered $11,022.33 in damages as a result

of the breach.

When, as here, an appellant attacks the legal sufficiency of an adverse finding on an

issue for which she did not have the burden of proof, she must demonstrate that there is no evidence

to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). “We will

sustain a no evidence point of error 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

13

Barnes additionally challenges the legal sufficiency of the jury’s finding that UFCU did

not breach the loan agreement. Barnes argues “there is no evidence to support this finding as a

matter of law because there was no evidence of the terms and conditions of the loan agreement.”

As Barnes had the burden of proof for her breach of contract claim, it is her burden on appeal to

establish as a matter of law that UFCU breached the terms of the agreement. See Sterner v.

Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). As she admits she did not establish as a matter

of law the terms of the agreement or how UFCU breached those terms, we conclude she did not meet

her burden of proof on appeal.

19

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 the vital fact.”

Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). In reviewing a no evidence point, we

must “credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless

reasonable jurors could not.” City of Keller, 168 S.W.3d at 827. If more than a scintilla of evidence

supports the jury's finding, “the jury’s verdict . . . must be upheld.” Wal-Mart, Inc. v. Miller, 102

S.W.3d 706, 709 (Tex. 2003).

1. Is the Breach of Contract Finding Supported by Legally Sufficient Evidence?

In reviewing the evidence in the light most favorable to the jury’s findings, we

conclude there is more than a scintilla of evidence to support the jury’s findings in favor of UFCU

on its breach of contract claim. First, Question 1 of the jury charge asked whether UFCU and Barnes

had agreed for UFCU “to provide two loans” to Barnes.14 The jury answered affirmatively, but on

appeal, Barnes contends the parties only agreed to one loan and there is no evidence of a second loan.

In her live pleadings, however, Barnes pleaded that her negotiations with UFCU “culminated in two

separate loans being made.”15 Factual assertions in a party’s pleadings, not pled in the alternative,

are considered formal judicial admissions and conclusively establish the facts asserted without the

introduction of the pleadings or other evidence. Houston First Am. Sav. v. Musick, 650 S.W.2d 764,

767 (Tex. 1983). Accordingly, the fact that UFCU and Barnes entered into two loan agreements is

conclusively established in the case without the introduction of other evidence.

14

UFCU contends they provided Barnes with two loans—one loan in the amount of $4,900

and the other in the amount of $9,100.

15

See Plaintiff’s First Amended Petition and Plaintiff’s Supplemental Original Petition.

20

Second, Question 3 of the jury charge asked whether Barnes had failed “to comply

with her loan agreements.” The jury answered affirmatively, after UFCU presented evidence that

Barnes failed to comply with the loan agreements by not obtaining comprehensive and collision

insurance coverage for her vehicles securing the loans. UFCU admitted two documents, one for

each loan, titled “Agreement to Provide Insurance” signed by Barnes. The Agreement provides that

“I [Barnes] understand that one of the lender’s requirements is that I provide adequate insurance

coverage on the property securing my loan. This insurance must at least provide comprehensive

and collision coverage.” There is no evidence in the record that Barnes obtained the required

insurance coverage. Barnes’s insurance statements from the relevant time period indicate that she had

liability coverage on the vehicles but did not have comprehensive or collision coverage. As such, we

conclude there is more than a scintilla of evidence to support the jury’s finding that Barnes failed to

comply with the loan agreements.

We further conclude there is more than a scintilla of evidence to support the jury’s

award of damages in the amount of $11,022.33. A collection manager for UFCU testified that the

principal, interest, late fees, and collateral protection insurance for the first loan totaled $3,084.74

and for the second loan $7,937.59. The total for the two loans was $11,022.33—the exact amount

of damages found by the jury. As such, we conclude there is more than a scintilla of evidence

supporting the jury’s damages award.

21

2. Are the Jury’s Findings of Attorneys’ Fees Supported by Sufficient Evidence?

Barnes further complains the amount of attorneys’ fees awarded to UFCU was

excessive and not supported by sufficient evidence.16 The reasonableness of attorneys’ fees is a fact

question for the jury’s determination, and a reviewing court may not substitute its judgment for the

jury’s. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Barker v. Eckman, 213 S.W.3d 306, 314

(Tex. 2006). But a party seeking attorneys’ fees must prove the reasonableness and necessity of the

fees with competent evidence. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991).

The standard of review for remitting excessive damages, including excessive

attorneys’ fees, is factual sufficiency. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986) (“Factual

sufficiency is the sole remittitur standard for actual damages. In determining whether damages are

excessive, trial courts and courts of appeals should employ the same test as for any factual sufficiency

question.”); Olin Corp. v. Smith, 990 S.W.2d 789, 798 (Tex. App.—Austin 1999, pet. denied); see

also Bocquet, 972 S.W.2d at 21(holding court of appeals erred in ordering remittitur of award of

attorneys’ fees without detailing all relevant evidence and explaining why evidence was factually

insufficient to support award). Under this standard, we must “examine all the evidence in the record

to determine whether sufficient evidence supports the damage award, remitting only if some portion

is so factually insufficient or so against the great weight and preponderance of the evidence as to be

manifestly unjust.” Pope, 711 S.W.2d at 624.

16

Barnes also argues the trial court abused its discretion by not segregating the award of

attorneys’ fees. The jury question on fees did not segregate the amount of fees as to specific claims,

and Barnes did not object. If there is no objection “to the fact that the attorney’s fees are not segregated

as to specific claims, then the objection is waived.” Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389

(Tex. 1997). Accordingly, we conclude Barnes has waived this issue on appeal.

22

Reviewing the evidence in light of this standard, we conclude there is sufficient

evidence to support the $35,000 award of attorneys’ fees through trial but hold there is insufficient

evidence to support the $25,000 award of attorneys’ fees to UFCU for an appeal to this Court. With

regard to the attorneys’ fees incurred through trial, UFCU’s attorney of record testified that his firm

had expended 353 hours on the case and would require approximately sixty-five additional hours for

trial work, that the billable rates for the lawyers at his firm were between $150 to over $300 an hour,

that those rates were reasonable compared to other law firms of similar size, and that his client had

accrued approximately $63,888.59 in attorneys’ fees in preparing the case and would incur an

additional $10,000 to $12,000 trying the case. UFCU’s attorney further testified that the amount of

attorneys’ fees was reasonable and not unusual “considering what’s gone on for four and half

years”—including numerous pretrial hearings and motions. Barnes testified that she had incurred

over $60,000 in fees representing herself in pretrial motions and hearings and that her trial counsel

had incurred another $25,000 in fees. Although UFCU’s total recovery in the case is less than the

amount of attorneys’ fees awarded, we conclude there is sufficient evidence to support the jury’s

award of attorneys’ fees through trial based on the testimony regarding attorneys’ fees, the amount

of time the case was pending, and the number of hearings and pre-trial filings. See USAA Cnty. Mut.

Ins. Co. v. Cook, 241 S.W.3d 93, 102-103 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (award

of fees greatly exceeding actual damages factually sufficient); Bundren v. Holly Oaks Townhomes

Ass’n, Inc., 347 S.W.3d 421,441 (Tex. App.—Dallas 2011, pet. denied) (“[T]here is no rule that fees

cannot be more than actual damages.”).

We do not conclude, however, that there was sufficient evidence to support the full

amount of attorneys’ fees awarded to UFCU for an appeal to this Court. At trial, UFCU’s lawyer

23

testified that his client would incur an additional $10,000 to $15,000 in attorneys’ fees if the case

were appealed to this Court. The lawyer’s testimony regarding appellate attorneys’ fees was not

challenged on cross-examination or otherwise contradicted by the record. Nevertheless, the jury

found UFCU should be awarded $25,000 for this appeal, and the trial court rendered judgment

accordingly. The attorneys’ fees awarded to UFCU for this appeal clearly exceed the upper amounts

to which its attorney testified. Because there is no evidence to support the jury’s full award of $25,000,

the award is excessive.17 See Valley Coca-Cola Bottling, Inc. v. Molina, 818 S.W.2d 146, 149 (Tex.

App.—Corpus Christi 1991, writ denied) (appellate attorneys’ fees excessive where amount awarded

exceeded attorney’s testimony at trial).18

A court of appeals may exercise its power to suggest a remittitur when an appellant

complains that there is insufficient evidence to support an award, and the court of appeals agrees but

finds that there is sufficient evidence to support a lesser award. Tex. R. App. P. 46.3; Akin, Gump,

Strauss, Hauer & Feld, L.L.P., v. National Dev. & Research Corp., 299 S.W.3d 106, 123-24 (Tex.

2009); Bechtel Corp. v. CITGO Prods. Pipeline Co., 271 S.W.3d 898, 922 (Tex. App.—Austin

2008, no pet.). In this case, the evidence is sufficient to support a finding of attorneys’ fees for this

17

UFCU appears to concede this point in its brief by agreeing that there was evidence to

support an award of appellate fees for $15,000 but mistakenly asserting that the trial court awarded

UFCU $15,000 for this appeal instead of the $25,000 actually awarded: “Mr. Donley also testified

that if the matter was appealed it would take approximately another $15,000 to $10,000 in order to

handle that appeal at the Court of Appeals. . . . This evidence provides more than a scintilla of

evidence upon which the jury could have based its verdict in this case, and upon which the Trial

Court could have relied in signing the judgment in this case awarding University $35,000 in

attorneys’ fees, with an additional $15,000 in case of an appeal to this Court.”

18

Because UFCU’s attorney testified that an appeal to the Supreme Court of Texas would

cost between $10,000-$15,000, we do not conclude that the $15,000 award of attorneys’ fees for an

appeal to the Supreme Court of Texas was excessive.

24

appeal in the amount of $15,000 but is insufficient to support the entire amount the jury found.

Accordingly, we condition our affirmance on UFCU filing a remittitur in the trial court, within thirty

days of the date of this opinion, decreasing the award of appellate attorneys’ fees to $15,000 for this

appeal. Tex. R. App. P. 46.3; see Dillard Dep’t Stores, Inc. v. Owens, 951 S.W.2d 915, 920 (Tex.

App.—Corpus Christi 1997, no pet.) (suggesting remittitur of excess appellate attorneys’ fees when

amount awarded clearly exceeded the upper amounts to which attorney testified); see also Valley

Coca-Cola Bottling, Inc., 818 S.W.2d at 149.

3. Did Barnes Establish as a Matter of Law Her DTPA Claim Against GEICO?

The jury found against Barnes on her DTPA claims against GEICO. On appeal,

Barnes alleges there is no competent evidence to support the finding because GEICO’s sole witness

committed “aggravated perjury” and “did not have personal knowledge and only engaged in rank

speculation, conjecture, and surmise and rendered nothing but bare legal opinions and conclusions

that were not relevant or reliable.” When a party attacks the legal sufficiency of an adverse finding

on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co., 46 S.W.3d at

241-42.

Barnes makes no attempt on appeal to explain how the evidence established all vital

facts in support of her DTPA claims. Her brief does not contain a clear argument as to how she

established her DTPA claims, appropriate citations to authorities supporting her DTPA claims, or

citations to the record establishing the evidence in support of her DTPA claims. See Tex. R. App.

P. 38.1(I); see also G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 546 (Tex.

25

App.—Dallas 2005, no pet.) (appellate court has no duty to search through the record without

guidance from appellant to determine whether its assertion of reversible error is valid). Further,

Barnes cites to no evidence—other than her own contrary testimony—of perjury, and Barnes did not

object to the testimony on the grounds she now asserts on appeal.19 See Tex. R. App. P. 33.1(a). For

these reasons, we conclude Barnes has waived this issue on appeal.

Incurable Jury Argument

Barnes contends that opposing counsel engaged in numerous incurable jury

arguments during opening and closing statements. Barnes made two objections during opening and

closing statements, which we will review below. Barnes, however, did not preserve error as to her

additional complaints by including incurable jury argument as a point in her motion for new trial and

has thus waived error for those complaints not objected to at trial. See Tex. R. Civ. P. 324(b)(5)

(point in a motion for new trial prerequisite to complaint on appeal of incurable jury argument if not

otherwise ruled on by trial court); Clark v. Bres, 217 S.W.3d 501, 509 n.1 (Tex. App.—Houston

[14th Dist.] 2006, pet. denied) (“While no contemporaneous objection required in order to raise

incurable jury argument on appeal, a party must include incurable jury argument as a point in a

motion for new trial.”).

19

Barnes only twice objected that the witness lacked personal knowledge—objecting that

the witness lacked personal knowledge to testify regarding an insurance policy from another carrier

and objecting to the witness testifying to GEICO’s document production. The trial court sustained

the former objection and overruled the latter. Neither objection is the basis for Barnes’s current

appeal. Barnes made no objection on the grounds that the testimony constituted “bare legal opinions

and conclusions that were not relevant or reliable.”

26

During opening statements, UFCU’s trial counsel violated the motion in limine by

informing the jury that Barnes had sought a temporary restraining order in the case. At a bench

conference out of the hearing of the jury, Barnes objected but did not request that the trial court give

the jury an instruction to disregard. The trial court instructed UFCU’s counsel to not discuss the

temporary restraining order but did not give the jury an instruction to disregard. When evidence is

placed before the jury in violation of a motion in limine, an instruction to disregard is generally

sufficient to cure error. See Barney v. State, 698 S.W.2d 114, 125 (Tex. Crim. App. 1985); Lusk v.

State, 82 S.W.3d 57, 60-61 (Tex. App.—Amarillo 2002, pet. denied). In situations where the

potential harm can be cured by an instruction to disregard, the complainant must ask the court to so

instruct the jury to preserve error—unless the objectionable testimony was so inflammatory that it

would be impossible to remove the harmful impression from the jury’s mind. Lusk, 82 S.W.3d at

60-61; Jones v. State, 825 S.W.2d 470, 473 (Tex. App.—Corpus Christi 1991, writ ref’d). Barnes

did not request an instruction to disregard, and after reviewing the statement at issue, we cannot

conclude that it was so inflammatory that an instruction would not have cured the error. Indeed,

Barnes herself testified on cross-examination that she had filed a lawsuit and “got a TRO to restrain

ya’ll from doing what you did.” Based on the foregoing, we conclude Barnes has waived error.

Barnes also objected to UFCU’s stating during closing arguments that Barnes had

threatened violence in the event UFCU attempted to repossess her vehicles. During a preliminary

hearing in the case, the following testimony occurred and was introduced into evidence at the jury trial:

Barnes: This is going to lead to violence. I came here. I’ve

already talked to them about that. They –

27

Court: Ms. Barnes, what do you mean this is going to lead to

violence? I’m not sure I’m understanding that.

Barnes: These people are stealing. They’re going to –

Court: In what way do you mean – you’re an officer of the court.

Barnes: Yes. It’s going to lead – you cannot come out and

physically remove my transportation when I have two

children to get to school, and that’s what they’re

saying they’re going to do. I don’t owe the money. I

have full coverage right now. There’s no reason for

them to keep–

Court: You’re anticipating that they are going to use violence?

Barnes: Yes.

Court: You’re not telling the Court that you intend to use violence?

Barnes: If they use violence against me, you bet I am. I have

a right to self defense. If they come after me, I have

a right to defend myself and I will.

Court: Okay. Well, I’m going to counsel you, Ms. Barnes, to be very

careful. You’re an officer of the court.

Barnes: I don’t care.

During closing arguments, UFCU’s counsel stated: “Ms. Barnes has talked about how she tried to

surrender the vehicles, say I’ll just give them up, you know, you guys just take them. Well, we read

into evidence at the first hearing in this matter where Ms. Barnes threatens violence if anybody tries

to take those.” Barnes’s counsel then objected on the grounds that Barnes’s statement was

misrepresented—that she had actually stated that UFCU would commit violence. The trial court did

not make an express ruling on the objection but instructed the jury: “Once again, ladies and

28

gentlemen, as I told you a while ago, you heard the evidence and we’ll go from there.” Barnes did

not request an express ruling or an instruction to disregard.

Based on the foregoing testimony, we conclude the jury argument was not improper

because there was direct evidence, as well as inferences from the evidence which supported the

argument. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839-40 (Tex. 1979); Tex. R. Civ.

P. 269; see also Gorman v. Life Ins. Co. of N. Am., 859 S.W.2d 382, 389 (Tex. App.—Houston

[1st Dist.] 1993, no writ) (closing argument accusing other party’s agents of “bald-faced lies” not

improper where there was evidence from which jury could deduce agents misrepresented facts).

“Whether by cross-examination or advocacy, the jury may be encouraged to weigh, evaluate, and

test the evidence before it.” Gorman, 850 S.W.2d at 389. Our review of the record reveals evidence

from which the jury could conclude that Barnes threatened violence if UFCU attempted to repossess

her vehicles, and therefore the jury argument was not improper.

Even if the argument could be regarded as improper, we do not regard it as so

inflammatory or erroneous that proper instruction to the jury would not have cured it. Otis Elevator

Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968) (“If the argument is of a ‘curable’ nature, an objection

to it must be promptly made and an instruction requested or the error is waived.”). Accordingly, we

conclude UFCU’s argument was not improper, and Barnes waived error, if any, by not obtaining a

ruling on her objection and requesting an instruction to disregard. Id.; see also PopCap Games, Inc.

v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied) (appellant

waived error by not obtaining express ruling on objection to jury argument where trial court stated:

“Well, ladies and gentlemen, what was in evidence and what was not in evidence, you heard it,

you’re the ultimate deciders as to what was said and what was not.”).

29

Improper Comments on the Evidence

Barnes was the plaintiff in this suit, but she argues on appeal that she did not have the

burden of proof for all questions submitted to the jury, and the trial court improperly placed the

entire burden of proof on her by (1) improperly commenting on the weight of the evidence, and

(2) jury charge error. We conclude Barnes waived error as to both complaints by not making a

timely, specific objection. See Tex. R. App. P. 33.1(a).

Barnes cites to two instances in the record where the trial court informed the jury that

Barnes, as the plaintiff having the burden of proof at trial, would be allowed to proceed first during

opening and closing arguments. But the record does not demonstrate that Barnes objected to the

trial court’s comments. A party waives appellate review when it fails to object to a trial judge’s

comments and request an instruction to disregard unless the comment could not have been rendered

harmless by an instruction. Exxon Mobil Corp. v. Kinder Morgan Operating L.P., 192 S.W.3d 120,

129 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also Capellen v. Capellen, 888 S.W.2d

539, 547 (Tex. App.—El Paso 1994, writ denied) (“Unless the comment by the judge is so blatantly

and obviously prejudicial that it cannot be cured, an objection and request for instruction must be

made in order to preserve error.”). Upon proper objection and request for instruction, the trial court

could have easily negated error, if any, as to its comments concerning the burden of proof. We

cannot conclude that its comment was so blatantly and obviously prejudicial that an instruction

would not have cured it. Accordingly, we conclude Barnes waived error, if any, as to this point.

Barnes further argues the trial court improperly placed the burden of proof on her for

all questions in the jury charge. Reviewing the transcript from the charge conference, Barnes did

30

not object to any question on the grounds that the question improperly placed the burden of proof

on the wrong party or request an appropriate instruction on the burden of proof. Our procedural rules

provide that any complaint to a jury charge is waived unless specifically included in an objection.

Tex. R. Civ. P. 274; Tex. R. App. P. 33.1(a)(1); see also In re B.L.D., 113 S.W.3d 340, 349 (Tex.

2003) (“A party must make the trial court aware of the complaint, timely and plainly, and obtain a

ruling.”). As Barnes did not make the trial court aware of her complaint to the jury charge, she has

waived the issue on appeal.

Jury Misconduct

Barnes argues on appeal that the trial court abused its discretion by denying her

motion for new trial on the grounds of jury misconduct. Barnes alleges a juror, during deliberations,

improperly construed her credit report and shared this mistaken analysis with other jurors.

Specifically, she alleges in her motion for new trial and accompanying affidavit, that one juror

“who claimed to have experience in reading credit bureau reports . . . stated as fact that Barnes’s

credit rating was the same before and after the bad faith reporting.” The credit report was admitted

during Barnes’s case-in-chief. Barnes’s sole evidence supporting her claims is her own affidavit.

We conclude that Barnes has failed to conclusively establish jury misconduct.

We review a trial court’s refusal to grant a motion for new trial for abuse of

discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). “To warrant a

new trial for jury misconduct, the movant must establish (1) that the misconduct occurred, (2) it was

material, and (3) probably caused injury.” Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362,

372 (Tex. 2000). Whether misconduct occurred and caused injury is a question of fact for the trial

31

court. Id. Absent findings to the contrary, we assume that the trial court made all findings in support

of its decision to deny the motion for new trial. Id. Consequently, Barnes had the burden to

conclusively establish jury misconduct. Id.

We cannot conclude, based on the record before us, that Barnes conclusively

established jury misconduct. First, an affidavit of a party or counsel is insufficient to establish jury

misconduct during deliberations because it must be presumed, because of the secretive nature of

jury deliberations, that the affidavit could not be based on personal knowledge. Pabich v. Kellar,

71 S.W.3d 500, 510 (Tex. App.—Fort Worth 2002, pet. denied); Clancy v. Zale Corp., 705 S.W.2d

820, 828 (Tex. App.—Dallas 1986, writ ref’d n.r.e.). Further, when the ground for a motion for new

trial is jury misconduct, the trial court may not admit—unless an outside influence was improperly

brought to bear upon any juror—juror testimony regarding statements made during deliberations or

“evidence of any statement” by a juror which would otherwise be precluded. Tex. R. Civ. P. 327;

Tex. R. Evid. 606(b). We cannot conclude that the juror’s alleged analysis of Barnes’s properly

admitted credit report, based on the juror’s own experience or expertise, was misconduct resulting

from an outside influence. See Golden Eagle Archery, Inc., 24 S.W.3d at 370 (“The rules contemplate

that an ‘an outside influence’ originates from sources other than the jurors themselves.”); Soliz v.

Saenz, 779 S.W.2d 929, 932 (Tex. App.—Corpus Christi 1989, writ denied) (juror’s interjection of

personal experience or expertise into discussion not an “outside influence”). As such, Barnes has

failed to present competent, admissible evidence of jury misconduct.

Finally, even if we had competent evidence to support Barnes’s allegations, we could

not conclude the juror engaged in misconduct by construing a credit report properly admitted into

evidence. Even if the juror misunderstood the evidence in the credit report, a “[j]uror’s deductions,

32

inferences from the evidence, and reasoning, though faulty, illogical, arbitrary or bizarre, do not

constitute misconduct.” Griffith v. Hudspeth , 378 S.W.2d 153, 156 (Tex. Civ. App.—San Antonio

1964, no writ). Accordingly, we conclude the trial court did not abuse its discretion by denying the

motion for new trial.

Discovery Abuse

Barnes argues GEICO engaged in discovery abuse by failing to disclose the identity

of an employee who spoke with Barnes regarding her insurance coverage. We cannot appraise the

merit of Barnes’s claim because the relevant discovery questions and answers are not included in the

record. See Hinton, 822 S.W.2d at 202. Further, Barnes does not point to anything in the record

showing the trial court overruled a motion, objection, or request for relief regarding the alleged

discovery abuse. A complaint not presented to the trial court by a timely, specific objection is not

preserved for appeal. Tex. R. App. P. 33.1(a); Hallett v. Houston Nw. Med. Ctr., 689 S.W.2d 888,

890 (Tex. 1985) (“A party cannot wait until the trial is finished, then seek to reverse an unfavorable

verdict by complaining of an error which the trial court could have corrected had it been timely

informed of the error.”); see also Warrantech Corp. v. Computer Adapters Servs. Inc., 134 S.W.3d 516,

530-31 (Tex. App.—Fort Worth 2004, no pet.) (denial of motion for new trial on grounds of

discovery abuse not abuse of discretion where complaining party failed to seek prior relief from trial

court). Accordingly, we conclude Barnes has waived error, if any, regarding GEICO’s discovery

responses.

Motion to Withdraw

Barnes complains the trial court abused its discretion by permitting her trial counsel

to “withdraw after trial before the judgment was ever signed and entered.” Her trial counsel’s

33

motion to withdraw and the trial court’s order granting such motion are not included in the record.

It is the burden of the appellant to bring forward a sufficient record to show the error committed by

the trial court. Christiansen, 782 S.W.2d at 843. Barnes does not include sufficient facts, argument,

or authority for us to render judgment on this issue without reviewing the motion to withdraw and

the trial court’s order. We do, however, note that Barnes herself is an attorney with over twenty-five

years’ experience who represented herself in this matter up until trial and adequately perfected

her own appeal. Accordingly, based on the record before us, we cannot conclude that counsel’s

withdrawal probably caused the rendition of an improper judgment or probably prevented Barnes

from presenting her own case on appeal. Tex. R. App. P. 44.1(a).

False Accusations and Inflammatory Statements, Comments, and Arguments

Barnes makes numerous complaints regarding statements made by witnesses and

attorneys at trial referring to her credit history, driving record, and occupation as a lawyer. To the

extent Barnes objected to these comments, we conclude the evidence was relevant, and the trial court

could have concluded the probative value of the evidence was considerable compared to its potential

to unfairly prejudice Barnes. See Tex. R. Evid. 403. First, Barnes herself testified at trial during

direct examination that she was an attorney practicing law for over twenty-five years, and the fact

that she was an attorney was relevant as she had represented herself during much of the litigation.

In addition, Barnes’s credit history prior to her loan with UFCU was relevant to the type of loan

UFCU offered and the terms of such loan, and her driving record was relevant to the type of

insurance policy offered by GEICO and the cost of such policy—all contested issues at trial.

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Right to a Fair Trial

In her final complaint, Barnes argues that the cumulative effect of the aforementioned

alleged errors deprived her of the right to a fair trial under the United States and Texas Constitutions.

A number of errors may be found harmful in their cumulative effect. See Strange v. Treasure City,

608 S.W.2d 604, 609 (Tex. 1980). However, in the multitude of issues Barnes presented in this

appeal, we concluded the trial court committed only one error by rendering excessive attorneys’ fees

to UFCU. Such error will be remedied by this Court through a suggestion of remittitur. As such,

we cannot conclude that Barnes was deprived of her right to a fair trial.

CONCLUSION

We affirm the trial court’s judgment conditioned on UFCU’s filing a remittitur in the

trial court decreasing its award of attorneys’ fees for this appeal to $15,000 and notifying this Court

of the filing. If the remittitur is filed within thirty days of the date of this opinion, we will reform

the judgment and affirm as modified. Otherwise, we will reverse the trial court’s judgment as to

attorneys’ fees for this appeal and remand this cause for redetermination of attorneys’ fees for this

appeal. See Tex. R. App. P. 46.3.

__________________________________________

Scott K. Field, Justice

Before Chief Justice Jones, Justices Pemberton and Field

Conditionally Affirmed

Filed: April 18, 2013

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