Preview
5/20/2016 11:56:33 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-14-004413 D-1-GN-14-004413
Irene Silva
FWH INVESTMENTS IRA, LLC, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § TRAVIS COUNTY, TEXAS
§
RON GARRIQUES, §
§
Defendants. § 2007 JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANT RON GARRIQUES’S
MOTION FOR NEW TRIAL
Plaintiff FWH Investments IRA, LLC’s (“Plaintiff’ or “FWH”) hereby responds in
opposition to Defendant Ron Garriques’s (“Garriques” or “Defendant”) Motion for New Trial
(“Motion”) and would respectfully show the Court as follows:
SUMMARY OF ARGUMENT
Defendant’s Motion should be denied because there is ample evidence to support the
jury’s finding that Garriques signed a guaranty agreement, including but not limited to
Garriques’s own deposition testimony, the testimony of multiple witnesses at trial, and
documents introduced at trial that reference and affirm the guaranty agreement. Simply put, the
jury believed that Garriques signed the guaranty agreement and found accordingly. Defendant’s
Motion should further be denied because Plaintiff presented unrebutted testimony regarding the
reasonable and necessary attorneys’ fees, including evidence of segregation. Finally,
Defendant’s Motion should be denied because he failed to properly object to Question No. 1 or
to submit a proposed question on breach of contract damages. For these reasons, Plaintiff
respectfully requests that Defendant’s Motion be denied in full.
PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 1
MOTION FOR NEW TRIALSTANDARD OF REVIEW
“New trials may be granted and judgment set aside for good cause, on motion or on the
court’s own motion on such terms as the court shall direct.” Tex. R. Civ. P. 320. The “good
cause” standard for allowing new trials “does not mean just any cause.” Jn re Columbia Med.
Ctr. of Las Colinas, 290 S.W.3d 204, 210 n.3 (Tex. 2009) (orig. proceeding). “If it did, the rule
would not have specified ‘good’ cause.” /d. The right to a jury trial enshrined in the federal and
state constitutions “counsels against courts setting aside jury verdicts for less than specific,
significant, and proper reasons.” Jd. While the trial court has broad discretion to grant new
trials, that discretion has limits. /d. at 210. Because Garriques has not presented any good cause
for this Court to set aside the jury’s verdict, his Motion should be denied.
ARGUMENT AND AUTHORITIES
I THE EVIDENCE IS SUFFICIENT TO SUPPORT THE JURY’S FINDING THAT GARRIQUES
SIGNED A WRITTEN GUARANTY AGREEMENT.
Garriques’s Motion should be denied because an abundance of evidence was presented to
the jury to show that Garriques signed a written guaranty agreement. The jury correctly credited
that evidence and returned a verdict finding that Garriques had signed the guaranty agreement.
That the jury was not presented with an actual signed copy of the guaranty agreement is of no
moment—after hearing all the evidence, the jury believed that a preponderance of that evidence
supported the conclusion that Garriques signed the guaranty agreement. Question No. 1, which
the jury answered in the affirmative, asked: “Did Ron Garriques sign a guaranty agreement
guaranteeing the repayment of the $150,000 loan made by FWH to Run-Tex?” (emphasis
added), Ample evidence exists to support the jury’s finding.
Garriques himself testified at deposition that he could have signed the guaranty
agreement. When he testified at trial that he did not sign the guaranty agreement, he was
PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 2
MOTION FOR NEW TRIALimpeached by his deposition testimony to the contrary. Every other witness presented at trial
who testified on this issue—including Paul Carrozza, Steve Hake, and Fred Hansen—stated that
they believed that Garriques had signed the guaranty agreement. Dr. Hansen further testified that
he would not have lent any money to Run-Tex, Inc. on behalf of Plaintiff if he did not believe
that Garriques had signed the guaranty agreement. Garriques also testified that he never told
anyone that he would not sign the document at any point, and no testimony was elicited that
Garriques ever in fact told anyone that he would not sign. Further, the jury learned about the
reasons Run-Tex and Dr. Hansen did not have a copy of the executed guaranty agreement, that
Garriques was likely the only person who retained a copy of the document, and that he had a
self-interested reason for not producing it—namely that he would be forced to honor it.
In addition to the live testimony, the jury was presented with numerous documents
supporting the existence of a guaranty agreement signed by Garriques. For example, the
documentary evidence showed that Garriques’s counsel reviewed the guaranty agreement, made
changes to it, and that all his changes were accepted and incorporated into the document. D. Ex.
5, P. Ex. 19. Once those changes had been accepted, Paul Carrozza signed the guaranty
agreement and sent the signed guaranty agreement to Garriques. P. Ex. 20. Plaintiff then lent
money to Run-Tex, Inc. in reliance on the guaranty agreement. P. Ex. 13.
Garriques further acknowledged the negotiation and existence of the guaranty agreement
in many documents presented to the jury. Garriques communicated several times with Paul
Carrozza via email regarding the terms of the guaranty agreement and what Garriques would be
obligated to pay under its terms. P. Ex. 64, P. Ex. 88. Garriques also requested “final paperwork
to sign” on the guaranty agreement from Paul Carrozza. P. Ex. 43. Garriques later signed an
agreement acknowledging and affirming that he had agreed to provide personal guarantees on
PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 3
MOTION FOR NEW TRIALbehalf of Run-Tex, Inc. to Plaintiff. P. Ex. 28. Garriques’s agent Mark Furnari, who was in
direct contact with Garriques, made admissions as to the existence of the guaranty agreement,
and also attempted to leverage Garriques’s agreements to pay other debts of Run-Tex, Inc. to
obtain a personal release relating to the guaranty agreement. P. Ex. 27. If Garriques’s own
agent, after consultation with Garriques, thought Garriques had signed the guaranty agreement,
the jury was surely justified in believing Garriques signed it.
While this brief summary does not recount all evidence presented in support of the
existence of a written guaranty agreement signed by Garriques, it succinctly demonstrates that
the jury had a wealth of evidence from which it could conclude that Garriques did sign the
guaranty agreement. Garriques’s Motion therefore should be denied on this point.
Il. THE EVIDENCE Is SUFFICIENT TO SUPPORT THE JURY’S AWARD OF ATTORNEYS’ FEES.
Garriques’s argument regarding attorneys’ fees is based on a misunderstanding of the
applicable precedent, Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006). Chapa
requires a claimant to “segregate recoverable fees from unrecoverable fees.” /d. at 313. Plaintiff
brought three causes of action: breach of contract, promissory estoppel, and money had and
received. Both breach of contract and promissory estoppel claims permit the recovery of
attorneys’ fees. Tex. Civ. Prac. & Rem. Code § 38.001(8); Corpus Christi Day Cruise, LLC v.
Christus Spohn Health Sys. Corp., 398 S.W.3d 303, 314-315 (Tex. App—Corpus Christi, pet.
denied). The money had and received claim does not, but this claim was abandoned before trial.
The unrebutted expert testimony of Geoffrey D. Weisbart explained that approximately five
percent of the time spent on the case advanced solely the money had and received claim, and that
he had accordingly segregated out that portion of the fees, applying a five percent discount to the
amount of fees sought to be recovered. Such reasoning is completely in line with Chapa. See id.
PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 4
MOTION FOR NEW TRIALat 314 (“[A]n opinion would have sufficed stating that, for example, 95 percent of their drafting
time would have been necessary even if there had been no fraud claim.”), There is no
requirement under Texas law that claimants segregate fees for multiple recoverable claims, and
indeed, Garriques points to no such precedent in his Motion. In sum, the unrebutted expert
testimony is in line with the applicable precedent and fully supports the jury’s answer to
Question No. 9.
Til. THE JUDGMENT DOES NoT CONTAIN RELIEF UNSUPPORTED BY THE JURY’S VERDICT.
It was uncontested at trial that Garriques did not pay any amounts due and owing on the
$150,000 guaranty agreement that the jury found he had signed. Garriques now objects to the
Court’s award of $150,000 in actual damages to Plaintiff, arguing that there was evidence
presented of payments made by Run-Tex, Inc. on the guaranty agreement that should be credited
to Garriques. But Garriques’s answer fails to allege payment as an affirmative defense, as is
required under the Texas Rules of Civil Procedure. Tex. R. Civ. P. 94. In fact, Garriques’s First
Amended Answer raises only statute of frauds and lack or failure of consideration as affirmative
defenses. Moreover, Garriques failed to develop evidence on this point before the jury.
Garriques thus was not entitled to a question on this issue.
In any event, Garriques has waived this issue. Garriques argues that the Court should
have submitted a breach of contract damages question to the jury, but Garriques failed to object
to Question No. 1 as presented and failed to request or submit a question regarding damages for
breach of contract. 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 . . . .”); see also
Tex. R. Civ. P. 273, 274. Indeed, Garriques’s proposed jury charge contains only two questions:
PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 5
MOTION FOR NEW TRIALone for liability on Plaintiff's promissory estoppel claim and one for damages on the same claim.
Garriques’s written objections to the jury charge do not address the issue of breach of contract
damages. Garriques further failed to request a question on breach of contract damages during the
charge conference. See Indus. III v. Burns, 2014 Tex. App. LEXIS 9447, at *11-12 (Tex. App.—
Houston [14th Dist.] Aug. 26, 2014, no pet.) (“To preserve a contention that the trial court
erroneously refused to submit a requested question to the jury, the proponent should tender a
written request to the trial court for submission of the question in substantially correct wording.”
(citations and internal quotation marks omitted)). Because Garriques failed to submit a breach of
contract damages question or properly object to the submission of Question No. 1 to the jury, he
has waived this argument. Garriques’s motion on this point should be denied.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendant’s
Motion for Judgment Notwithstanding the Verdict. Plaintiff further respectfully requests all
other relief to which it might be entitled, whether at law or in equity.
Respectfully submitted,
WEISBART SPRINGER HAYES LLP
212 Lavaca Street, Suite 200
Austin, Texas 78701
512.652.5780
512.682.2074 fax
By: /s/ Geoffrey D. Weisbart
Geoffrey D. Weisbart
State Bar No. 21102645
gweisbart@wshllp.com
Nicole LeFave
State Bar No. 24085432
nlefave@wshllp.com
ATTORNEYS FOR PLAINTIFF
FWH INVESTMENTS IRA, LLC
PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 6
MOTION FOR NEW TRIALCERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been
forwarded to all counsel of record herein by way of:
U.S. Mail, First Class
Certified Mail
Facsimile
Federal Express
Hand Delivery
E-Service
Oo
OOO
on this 20th day of May, 2016, to wit:
J. Bennett White
J. BENNETT WHITE, P.C.
P.O. Box 6250
Tyler, Texas 75711
903.597.4300
903.597.4330 fax
jbw@jbwlawfirm.com
ATTORNEY FOR DEFENDANT
RON GARRIQUES
Erik G Moskowitz
REED & SCARDINO LLP
301 Congress Avenue, Suite 1250
Austin, Texas 78701
512.279.7914
512.474.2644 Fax
emoskowitz@reedscardino.com
ATTORNEY FOR DEFENDANT
Run-TEX, INC.
/s/ Geoffrey D. Weisbart
Geoffrey D. Weisbart
PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 7
MOTION FOR NEW TRIAL
Preview
5/20/2016 11:56:33 AM Velva L. Price District Clerk Travis County CAUSE NO. D-1-GN-14-004413 D-1-GN-14-004413 Irene Silva FWH INVESTMENTS IRA, LLC, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § TRAVIS COUNTY, TEXAS § RON GARRIQUES, § § Defendants. § 2007 JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANT RON GARRIQUES’S MOTION FOR NEW TRIAL Plaintiff FWH Investments IRA, LLC’s (“Plaintiff’ or “FWH”) hereby responds in opposition to Defendant Ron Garriques’s (“Garriques” or “Defendant”) Motion for New Trial (“Motion”) and would respectfully show the Court as follows: SUMMARY OF ARGUMENT Defendant’s Motion should be denied because there is ample evidence to support the jury’s finding that Garriques signed a guaranty agreement, including but not limited to Garriques’s own deposition testimony, the testimony of multiple witnesses at trial, and documents introduced at trial that reference and affirm the guaranty agreement. Simply put, the jury believed that Garriques signed the guaranty agreement and found accordingly. Defendant’s Motion should further be denied because Plaintiff presented unrebutted testimony regarding the reasonable and necessary attorneys’ fees, including evidence of segregation. Finally, Defendant’s Motion should be denied because he failed to properly object to Question No. 1 or to submit a proposed question on breach of contract damages. For these reasons, Plaintiff respectfully requests that Defendant’s Motion be denied in full. PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 1 MOTION FOR NEW TRIALSTANDARD OF REVIEW “New trials may be granted and judgment set aside for good cause, on motion or on the court’s own motion on such terms as the court shall direct.” Tex. R. Civ. P. 320. The “good cause” standard for allowing new trials “does not mean just any cause.” Jn re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 210 n.3 (Tex. 2009) (orig. proceeding). “If it did, the rule would not have specified ‘good’ cause.” /d. The right to a jury trial enshrined in the federal and state constitutions “counsels against courts setting aside jury verdicts for less than specific, significant, and proper reasons.” Jd. While the trial court has broad discretion to grant new trials, that discretion has limits. /d. at 210. Because Garriques has not presented any good cause for this Court to set aside the jury’s verdict, his Motion should be denied. ARGUMENT AND AUTHORITIES I THE EVIDENCE IS SUFFICIENT TO SUPPORT THE JURY’S FINDING THAT GARRIQUES SIGNED A WRITTEN GUARANTY AGREEMENT. Garriques’s Motion should be denied because an abundance of evidence was presented to the jury to show that Garriques signed a written guaranty agreement. The jury correctly credited that evidence and returned a verdict finding that Garriques had signed the guaranty agreement. That the jury was not presented with an actual signed copy of the guaranty agreement is of no moment—after hearing all the evidence, the jury believed that a preponderance of that evidence supported the conclusion that Garriques signed the guaranty agreement. Question No. 1, which the jury answered in the affirmative, asked: “Did Ron Garriques sign a guaranty agreement guaranteeing the repayment of the $150,000 loan made by FWH to Run-Tex?” (emphasis added), Ample evidence exists to support the jury’s finding. Garriques himself testified at deposition that he could have signed the guaranty agreement. When he testified at trial that he did not sign the guaranty agreement, he was PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 2 MOTION FOR NEW TRIALimpeached by his deposition testimony to the contrary. Every other witness presented at trial who testified on this issue—including Paul Carrozza, Steve Hake, and Fred Hansen—stated that they believed that Garriques had signed the guaranty agreement. Dr. Hansen further testified that he would not have lent any money to Run-Tex, Inc. on behalf of Plaintiff if he did not believe that Garriques had signed the guaranty agreement. Garriques also testified that he never told anyone that he would not sign the document at any point, and no testimony was elicited that Garriques ever in fact told anyone that he would not sign. Further, the jury learned about the reasons Run-Tex and Dr. Hansen did not have a copy of the executed guaranty agreement, that Garriques was likely the only person who retained a copy of the document, and that he had a self-interested reason for not producing it—namely that he would be forced to honor it. In addition to the live testimony, the jury was presented with numerous documents supporting the existence of a guaranty agreement signed by Garriques. For example, the documentary evidence showed that Garriques’s counsel reviewed the guaranty agreement, made changes to it, and that all his changes were accepted and incorporated into the document. D. Ex. 5, P. Ex. 19. Once those changes had been accepted, Paul Carrozza signed the guaranty agreement and sent the signed guaranty agreement to Garriques. P. Ex. 20. Plaintiff then lent money to Run-Tex, Inc. in reliance on the guaranty agreement. P. Ex. 13. Garriques further acknowledged the negotiation and existence of the guaranty agreement in many documents presented to the jury. Garriques communicated several times with Paul Carrozza via email regarding the terms of the guaranty agreement and what Garriques would be obligated to pay under its terms. P. Ex. 64, P. Ex. 88. Garriques also requested “final paperwork to sign” on the guaranty agreement from Paul Carrozza. P. Ex. 43. Garriques later signed an agreement acknowledging and affirming that he had agreed to provide personal guarantees on PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 3 MOTION FOR NEW TRIALbehalf of Run-Tex, Inc. to Plaintiff. P. Ex. 28. Garriques’s agent Mark Furnari, who was in direct contact with Garriques, made admissions as to the existence of the guaranty agreement, and also attempted to leverage Garriques’s agreements to pay other debts of Run-Tex, Inc. to obtain a personal release relating to the guaranty agreement. P. Ex. 27. If Garriques’s own agent, after consultation with Garriques, thought Garriques had signed the guaranty agreement, the jury was surely justified in believing Garriques signed it. While this brief summary does not recount all evidence presented in support of the existence of a written guaranty agreement signed by Garriques, it succinctly demonstrates that the jury had a wealth of evidence from which it could conclude that Garriques did sign the guaranty agreement. Garriques’s Motion therefore should be denied on this point. Il. THE EVIDENCE Is SUFFICIENT TO SUPPORT THE JURY’S AWARD OF ATTORNEYS’ FEES. Garriques’s argument regarding attorneys’ fees is based on a misunderstanding of the applicable precedent, Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006). Chapa requires a claimant to “segregate recoverable fees from unrecoverable fees.” /d. at 313. Plaintiff brought three causes of action: breach of contract, promissory estoppel, and money had and received. Both breach of contract and promissory estoppel claims permit the recovery of attorneys’ fees. Tex. Civ. Prac. & Rem. Code § 38.001(8); Corpus Christi Day Cruise, LLC v. Christus Spohn Health Sys. Corp., 398 S.W.3d 303, 314-315 (Tex. App—Corpus Christi, pet. denied). The money had and received claim does not, but this claim was abandoned before trial. The unrebutted expert testimony of Geoffrey D. Weisbart explained that approximately five percent of the time spent on the case advanced solely the money had and received claim, and that he had accordingly segregated out that portion of the fees, applying a five percent discount to the amount of fees sought to be recovered. Such reasoning is completely in line with Chapa. See id. PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 4 MOTION FOR NEW TRIALat 314 (“[A]n opinion would have sufficed stating that, for example, 95 percent of their drafting time would have been necessary even if there had been no fraud claim.”), There is no requirement under Texas law that claimants segregate fees for multiple recoverable claims, and indeed, Garriques points to no such precedent in his Motion. In sum, the unrebutted expert testimony is in line with the applicable precedent and fully supports the jury’s answer to Question No. 9. Til. THE JUDGMENT DOES NoT CONTAIN RELIEF UNSUPPORTED BY THE JURY’S VERDICT. It was uncontested at trial that Garriques did not pay any amounts due and owing on the $150,000 guaranty agreement that the jury found he had signed. Garriques now objects to the Court’s award of $150,000 in actual damages to Plaintiff, arguing that there was evidence presented of payments made by Run-Tex, Inc. on the guaranty agreement that should be credited to Garriques. But Garriques’s answer fails to allege payment as an affirmative defense, as is required under the Texas Rules of Civil Procedure. Tex. R. Civ. P. 94. In fact, Garriques’s First Amended Answer raises only statute of frauds and lack or failure of consideration as affirmative defenses. Moreover, Garriques failed to develop evidence on this point before the jury. Garriques thus was not entitled to a question on this issue. In any event, Garriques has waived this issue. Garriques argues that the Court should have submitted a breach of contract damages question to the jury, but Garriques failed to object to Question No. 1 as presented and failed to request or submit a question regarding damages for breach of contract. 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 . . . .”); see also Tex. R. Civ. P. 273, 274. Indeed, Garriques’s proposed jury charge contains only two questions: PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 5 MOTION FOR NEW TRIALone for liability on Plaintiff's promissory estoppel claim and one for damages on the same claim. Garriques’s written objections to the jury charge do not address the issue of breach of contract damages. Garriques further failed to request a question on breach of contract damages during the charge conference. See Indus. III v. Burns, 2014 Tex. App. LEXIS 9447, at *11-12 (Tex. App.— Houston [14th Dist.] Aug. 26, 2014, no pet.) (“To preserve a contention that the trial court erroneously refused to submit a requested question to the jury, the proponent should tender a written request to the trial court for submission of the question in substantially correct wording.” (citations and internal quotation marks omitted)). Because Garriques failed to submit a breach of contract damages question or properly object to the submission of Question No. 1 to the jury, he has waived this argument. Garriques’s motion on this point should be denied. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendant’s Motion for Judgment Notwithstanding the Verdict. Plaintiff further respectfully requests all other relief to which it might be entitled, whether at law or in equity. Respectfully submitted, WEISBART SPRINGER HAYES LLP 212 Lavaca Street, Suite 200 Austin, Texas 78701 512.652.5780 512.682.2074 fax By: /s/ Geoffrey D. Weisbart Geoffrey D. Weisbart State Bar No. 21102645 gweisbart@wshllp.com Nicole LeFave State Bar No. 24085432 nlefave@wshllp.com ATTORNEYS FOR PLAINTIFF FWH INVESTMENTS IRA, LLC PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 6 MOTION FOR NEW TRIALCERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record herein by way of: U.S. Mail, First Class Certified Mail Facsimile Federal Express Hand Delivery E-Service Oo OOO on this 20th day of May, 2016, to wit: J. Bennett White J. BENNETT WHITE, P.C. P.O. Box 6250 Tyler, Texas 75711 903.597.4300 903.597.4330 fax jbw@jbwlawfirm.com ATTORNEY FOR DEFENDANT RON GARRIQUES Erik G Moskowitz REED & SCARDINO LLP 301 Congress Avenue, Suite 1250 Austin, Texas 78701 512.279.7914 512.474.2644 Fax emoskowitz@reedscardino.com ATTORNEY FOR DEFENDANT Run-TEX, INC. /s/ Geoffrey D. Weisbart Geoffrey D. Weisbart PLAINTIFF’S RESPONSE TO DEFENDANT’S Page 7 MOTION FOR NEW TRIAL