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CAUSE NUMBER: 2018-65578
RAQUEL VALDEZ GARCIA § IN THE DISTRICT COURT OF
§
vs.~ § HARRIS COUNTY T E XAS
§
DANIEL GARCIA § 157" JUDICIAL DISTRICT
DEFENDANT’S AUTHORITIES
EXHIBIT NUMBER AUTHORITIES
Memo D1 Ocean Carriers, Inc. v. Team Ocean Servs., 2014 Tex. App. LEXIS
5820, 2014 WL 2505586.
Memo D2 Texas Property Code §5.021
Memo D3 Thornton y. Rains, 299 S.W.2d 287, 288 (Tex. 1957)
Respectfully submitted,
Law Offices of James and Stagg, PLLC
1001 Texas Avenue, Suite 500
Houston, Texas 77002
Tel: (713) 223-5811
Fax: (713) 223-1416
3] A. Tueole Yr
By:
R. Nicole Stagg
State Bar No. 24034687
stagglaw@yahoo.com
Attorney for Daniel Garcia
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Document (1)
1._Ocean Carriers, Inc. v. Team Ocean Servs., 2014 Tex. App. LEXIS 5820
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Ocean Carriers, Inc. v. Team Ocean Servs.
Court of Appeals of Texas, Twelfth District, Tyler
May 30, 2014, Opinion Delivered
NO. 12-13-00228-CV
Reporter
2014 Tex. App. LEXIS 5820 *; 2014 WL 2505586
OCEAN CARRIERS, INC. AND MRS. MARIA PEARCY,
AS INDEPENDENT EXECUTRIX OF THE ESTATE OF
JAMES O. PEARCY, APPELLANTS v. TEAM OCEAN
SERVICES, INC., APPELLEE
Subsequent History: Petition for review dismissed by,
Motion granted by Overseas Carriers, Inc. v. Team
Ocean Servs., 2014 Tex. LEXIS 776 (Tex., Aug. 29.
2014)
Prior History: [*1] Appeal from the 402nd District
Court of Wood County, Texas. (Tr.Ct.No. 2010-252).
Overseas Carriers, Inc. v. Team Ocean Services-Dallas,
Inc., 2011 U.S. Dist. LEXIS 98220 (S.D. Tex., Aug. 31
2011,
Core Terms
invoices, shipment, sand, silica, trial court, fact finder,
clear and convincing evidence, exemplary damages,
shipping
Case Summary
Overview
HOLDINGS: [1]-In a fraud case brought by a shipping
company against a shipping intermediary, the
intermediary's argument that a business associate
within the shipping company told him what information
to put in four false invoices and, therefore, he did not
knowingly make any misrepresentations, was rejected
because the intermediary, upon receiving $252,300
from the shipping company, applied it to an
unauthorized shipment rather than to the jobs listed in
the false invoices.
Outcome
Judgment affirmed.
LexisNexis® Headnotes
Civil Procedure > Trials > Judgment as Matter of
Law > Directed Verdicts
Civil Procedure > Appeals > Reviewability of Lower
Court Decisions > Preservation for Review
HANS) Judgment as Matter of Law, Directed
Verdicts
A defendant who moves for directed verdict after plaintiff
rests, but thereafter elects not to stand on his motion
and proceeds with his own case, waives the motion for
directed verdict unless the motion is reurged at the
close of the case.
Evidence > Burdens of Proof > Clear & Convincing
Proof
Torts > ... > Fraud & Misrepresentation > Actual
Fraud > Remedies
Torts > ... > Punitive Damages > Measurement of
Damages > Statutory Requirements
HN2%) Burdens of Proof, Clear & Convincing Proof
The Texas Civil Practice and Remedies Code requires
a plaintiff seeking to recover exemplary damages
resulting from fraud to establish the elements of fraud
by clear and convincing evidence. Tex. Civ. Prac. &
Rem. Code Ann. § 41.003(a)(1) (Supp. 2013). "Fraud"
means fraud other than constructive fraud. Tex. Civ.
Prac. & Rem. Code Ann. § 41.001(6) (2008). "Clear and
Rashaun StaggPage 2 of 6
2014 Tex. App. LEXIS 5820, *1
convincing" evidence equates to proof that will produce
in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be
established. § 47.007/2).
Civil Procedure > ... > Standards of
Review > Substantial Evidence > Sufficiency of
Evidence
Evidence > Burdens of Proof > General Overview
HNG{]
Evidence
Substantial Evidence, Sufficiency of
Whenever the standard of proof at trial is elevated, the
standard of appellate review must likewise be elevated.
In a legal sufficiency review, the court should look at all
of the evidence in the light most favorable to the finding
to determine whether a reasonable trier of fact could
have formed a firm belief or conviction that its finding
was true. Looking at the evidence in the light most
favorable to the finding means that a reviewing court
must assume that the fact finder resolved disputed facts
in favor of its finding if a reasonable fact finder could do
so, But the court must not disregard undisputed facts
that do not support the finding.
Civil Procedure > ... > Standards of
Review > Substantial Evidence > Sufficiency of
Evidence
HNA{&)
Evidence
Substantial Evidence, Sufficiency of
When reviewing the factual sufficiency of the evidence,
a court of appeals must consider and weigh all of the
evidence and should set aside the verdict only if it is so
contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust. In a factual sufficiency
review, the court must give due consideration to
evidence that the fact finder reasonably could have
found to be clear and convincing. Moreover, the court
should consider whether disputed evidence is such that
a reasonable fact finder could not have resolved the
disputed evidence in favor of its finding. If, in light of the
entire record, the disputed evidence that a reasonable
fact finder could not have credited in favor of the finding
is so significant that a fact finder could not reasonably
have formed a firm belief or conviction, the evidence is
factually insufficient.
Civil Procedure > Trials > Bench Trials
HN5[%] Trials, Bench Trials
When findings of fact and conclusions of law are not
properly requested and none are filed, the judgment of
the trial court must be affirmed if it can be upheld on any
legal theory that finds support in the evidence.
Torts >... > Fraud & Misrepresentation > Actual
Fraud > Elements
Torts > ... > Concerted Action > Civil
Conspiracy > Elements
HNG6| &) Actual Fraud, Elements
To prevail on a fraud claim, a plaintiff is required to
prove that (1) defendant made a material representation
that was false; (2) he knew the representation was false
or made it recklessly as a positive assertion without any
knowledge of its truth; (3) he intended to induce plaintiff
to act upon the representation; (4) plaintiff actually and
justifiably relied upon the representation; and (5) plaintiff
suffered injury as a result. A conspiracy to defraud on
the part of two or more persons means a common
purpose, supported by a concerted action to defraud,
that each has the intent to do it, and that it is common to
each of them, and that each has the understanding that
the other has that purpose. Each conspirator is
responsible for the acts done by any other conspirator to
further the conspiracy. The common purpose from
which conspiracy liability arises may be established by
reasonable inferences.
Torts > ... > Fraud & Misrepresentation > Actual
Fraud > Elements
HN7{%) Actual Fraud, Elements
Sending a false invoice, in and of itself, can be a
material misrepresentation.
Counsel: For Appellant: Evan T. Caffrey.
For Appellee: Michael Calvin Wright.
Judges: Panel consisted of Worthen, C.J., Griffith, J.,
and Hoyle, J.
Rashaun StaggPage 3 of 6
2014 Tex. App. LEXIS 5820, *1
Opinion by: JAMES T. WORTHEN
Opinion
MEMORANDUM OPINION
Ocean Carriers, Inc. (OCI) and Mrs. Maria Pearcy, as
independent executrix of the estate of James O.
Pearcy,’ appeal the trial court's judgment awarding
Team Ocean Services, Inc. (TOS) $252,300.00 in actual
damages and $250,000.00 in exemplary damages for
fraud. Appellants raise four issues on appeal. We
affirm.
BACKGROUND
TOS and OCI are intermediaries in the ocean shipping
business. A shipping intermediary contracts with a
customer who needs cargo shipped and makes
arrangements with a carrier, either directly or through
another intermediary, to transport the customer's cargo.
TOS and OCI first began their business relationship in
2008 when their respective presidents, Randy
Honeycutt and James O. Pearcy, worked together on an
ill-fated Dominican Republic shipment. After this initial
cooperative effort, Honeycutt invited Pearcy to TOS's
2008 annual meeting to meet TOS's American and
international agents. [*2] Thereafter, Pearcy was invited
to TOS's corporate headquarters in Winnsboro, Texas,
to discuss potential joint business ventures.
On June 5, 2009, TOS and OCI signed a contract of
affreightment for the transport of silica sand, frac sand,
specialized gravel, and rock pellets in bulk (the silica
sand shipment) from Mobile, Alabama, to China.
Pursuant to the contract, OCI chartered a ship with
Gypsum Transportation.?
In late July 2009, OC! sent four invoices to TOS totaling
$252,300.00. It sent these invoices at the behest of Paul
Powell, an international manager in TOS's Dallas office.
These invoices, which Pearcy prepared based upon the
detailed instructions Powell gave him, set forth the
‘James O. Pearcy died in January 2011. Thereafter, the
representative of Pearcy's estate was added as a defendant.
2Under TOS's standard procedure, Honeycutt was to review
and sign off on all contracts of affreightment. But the evidence
at trial indicated that he was not informed of this contract with
OCI until September 2009.
following information:
Fc. to table1
In [*3] response to the invoices, TOS paid OCI
$252,300.00. Pearcy, on behalf of OCI, applied the
$252.300.00 to the silica sand shipment.
On September 8, 2009, Honeycutt learned of the silica
sand contract. During the next two days, he met with
Pearcy and Powell and learned that the four invoices
were fictitious. As a result, TOS terminated Powell.
Honeycutt later demanded that Pearcy return the
$252,300.00 OCI received. Pearcy promised in writing
to remit the entire amount, but OCI never returned the
money.
Following Powell's termination by TOS, Pearcy
continued to work with Powell. During this time, they
engaged in a similar scheme with a company called
AlpiUSA.
On April 16, 2010, TOS filed the instant suit against OCI
and Pearcy for damages based on fraud, negligent
misrepresentation, breach of contract, and money had
and received. Following a bench trial, the trial court
found for TOS on each of its causes of action and
awarded it $252,300.00 in actual damages and
$250,000.00 in exemplary damages. TOS elected to
recover damages under its fraud remedy. This appeal
followed.?
EVIDENTIARY SUFFICIENCY - FRAUD
3At oral argument before this court, Appellants stated they
were limiting their appeal to their fourth issue challenging
[*4] the trial court's award of exemplary damages based on a
lack of clear and convincing evidence of fraud. We have
considered the arguments raised by Appellants in their first
and second issues inasmuch as they relate to whether there is
legally and factually sufficient evidence that they committed
fraud. However, we do not consider their third issue pertaining
to collateral estoppel. Appellants raised the issue of collateral
estoppel in a motion for directed verdict following TOS's
presentation of evidence, but did not, after they presented
their case, reurge their motion. Accordingly, Appellants waived
their motion for directed verdict and failed to preserve the
issue of collateral estoppel for appeal. See Ratsavong v.
Menevilay, 176 S.W.3d 661, 667 (Tex. App.—E/ Paso 20085.
pet. denied) HN1[%] (defendant who moves for directed
verdict after plaintiff rests, but thereafter elects not to stand on
his motion and proceeds with his own case, waives motion for
directed verdict unless motion is reurged at close of case).
Rashaun StaggPage 4 of 6
2014 Tex. App. LEXIS 5820, *4
In their fourth issue, Appellants argue that there is
insufficient evidence to support the trial court's award of
exemplary damages because there is [*5] not clear and
convincing evidence that they committed fraud.
Standard of Review
NaF The Texas Civil Practice and Remedies Code
requires a plaintiff seeking to recover exemplary
damages resulting from fraud to establish the elements
of fraud by clear and convincing evidence. See Tex.
Civ. Prac. & Rem. Code Ann. § 41.003(a)(1) (West
Supp. 2013). "Fraud' means fraud other than
constructive fraud. See id. § 41.001/6) (West 2008).
“Clear and convincing" evidence equates to “proof that
will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be
established.” Id. § 47.001(2).
HNGF] Whenever the standard of proof at trial is
elevated, the standard of appellate review must likewise
be elevated. Sw. Beli Tel. Co. vy. Garza, 164 S.W.3d
607, 627 (Tex. 2004). |n a legal sufficiency review, the
court should look at all of the evidence in the light most
favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief
or conviction that its finding was true. In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). Looking at the evidence
in the light most favorable to the finding means that a
reviewing court must assume that [*6] the fact finder
resolved disputed facts in favor of its finding if a
reasonable fact finder could do so. /d. But the court
must not disregard undisputed facts that do not support
the finding. See id.
HNA(F) When reviewing the factual sufficiency of the
evidence, a court of appeals must consider and weigh
all of the evidence and should set aside the verdict only
if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986). In a factual
sufficiency review, the court must give due
consideration to evidence that the fact finder reasonably
could have found to be clear and convincing. /n_re
JF.C.. 96 S.W.3d at 266. Moreover, the court should
consider whether disputed evidence is such that a
reasonable fact finder could not have resolved the
disputed evidence in favor of its finding. /d. If, in light of
the entire record, the disputed evidence that a
reasonable fact finder could not have credited in favor of
the finding is so significant that a fact finder could not
reasonably have formed a firm belief or conviction, the
evidence is factually insufficient. /d.
HN5|#] When, as here, findings of fact and conclusions
of law [*7] are not properly requested and none are
filed, the judgment of the trial court must be affirmed if it
can be upheld on any legal theory that finds support in
the evidence. In the Interest of W.E.R., 669 S.W.2d
716, 717 (Tex, 1984).
Fraud
HN6(F) To prevail on its fraud claim, TOS was required
to prove that (1) OCI and Pearcy made a material
representation that was false; (2) they knew the
representation was false or made it recklessly as a
positive assertion without any knowledge of its truth; (3)
they intended to induce TOS to act upon the
representation; (4) TOS actually and justifiably relied
upon the representation; and (5) TOS suffered injury as
a result, See Ernst & Young v. Pacific Mutual Life
Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). A conspiracy
to defraud on the part of two or more persons means a
common purpose, supported by a concerted action to
defraud, that each has the intent to do it, and that it is
common to each of them, and that each has the
understanding that the other has that purpose.
Schlumberger Well Sur. Corp. v. Nortex Oil & Gas
Corp., 435 S.W.2d_ 854, 857 (Tex. 1968). Each
conspirator is responsible for the acts done by any other
conspirator to further the conspiracy. [*8] McWhorter
v. Sheller, 993 S.W.2d 781, 788 (Tex. App.—Houston
[14th Dist.) 1999, pet. denied). The common purpose
from which conspiracy liability arises may be
established by reasonable inferences. /d.
Discussion
In the instant case, the record reflects that Powell
dictated the information to be set forth in the invoices to
Pearcy, who, through OCI, forwarded them to the TOS
corporate office. The evidence further indicates that all
of the representations in these four invoices numbered
1102, 1103, 1104, and 1105 were fictitious. That is, the
shipments described in the invoices did not exist. HN7[
F) Sending a false invoice, in and of itself, can be a
material misrepresentation. See Daugherty v. Jacobs,
187 S.W.3d 607, 617 (Tex. App.—Houston [14th Dist.]
2006, no pet.).
Appellants argue that Powell told Pearcy what
information to put in these invoices and, therefore,
Rashaun StaggPage 5 of 6
2014 Tex. App. LEXIS 5820, *8
Pearcy did not knowingly make any misrepresentations,
but rather, merely followed Powell's instructions. Yet the
record is undisputed that Pearcy, upon receiving the
$252,300.00 from TOS, applied it to the unauthorized
silica sand shipment rather than to the jobs listed in the
four invoices. Thus, the trial court reasonably could infer
[*9] from Pearcy's action that he knew the four invoices
were fictitious when he sent them to TOS and intended
to divert the $252,300.00 to the silica sand shipment
from the outset.
Appellants further contend that there was no evidence
that they would not have gone forward with the four
shipments set forth in the invoices if TOS had tendered
the cargo for shipment. But the only reasonable
inference to be made from Pearcy's applying the
$252,300.00 to the silica sand shipment was that he
knew the money would not be needed for those four
shipments because they were a complete fabrication.
The record further supports that TOS actually and
justifiably relied upon the representation. Specifically,
the evidence indicates that the invoices appeared to be
valid. Thus, the trial court reasonably could infer that
Pearcy and Powell had knowledge of how these types
of invoices were paid by TOS's corporate office and
produced invoices they knew would be paid by TOS as
matter of course. Lastly, TOS suffered injury because it
paid $252,300.00 for shipments that were never
intended to be undertaken.
In sum, based on our review of the record, the trial court
reasonably could have determined that Pearcy and
[*10] Powell acted in concert with one another to cause
TOS to pay OCI the $252,300.00 due on the fictitious
invoices. The evidence indicates that Pearcy applied
this money to the silica sand shipment, which Honeycutt
never authorized. Thus, we conclude that the trial court
could make the implied finding that Powell and Pearcy
conspired to defraud TOS of $252,300.00 and that they
both knowingly made a material misrepresentation.
Accordingly, we hold there is clear and convincing
evidence to support the trial court's implied finding that
OCI and Pearcy committed fraud.
We next consider whether the evidence is factually
sufficient to support the trial court's fraud finding.
Appellants argue that that the overwhelming weight of
the evidence demonstrates that OCI and Pearcy
followed Powell's instructions in issuing the four
invoices, and OCI would have performed the shipments
if TOS had tendered the cargo for shipment. Appellants
further argue that "OCI and Pearcy did not make a
successful living in the shipping business for 40 years
by making promises they didn't intend to keep[.]" We
have considered the entirety of the record and weighed
all of the evidence. Having done so, we conclude that
[*11] the trial court's fraud finding is not so contrary to
the clear and convincing evidence to be clearly wrong
and unjust.
We hold that the trial court did not err in awarding
exemplary damages based on an alleged absence of
clear and convincing evidence supporting the element
of fraud. Appellants’ fourth issue is overruled.
Disposition
Having overruled Appellants’ fourth issue,4 we affirm
the trial court's judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered May 30, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle,
J.
(PUBLISH)
JUDGMENT
THIS CAUSE came to be heard on the oral arguments,
appellate record and briefs filed herein, and the same
being considered, it is the opinion of this court that there
was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED
that the judgment of the court below be in all things
affirmed, and that all costs of this appeal are hereby
adjudged against the appellants, OCEAN CARRIERS,
INC. AND MRS. MARIA PEARCY, AS INDEPENDENT
EXECUTRIX OF THE ESTATE OF JAMES 0.
PEARCY, for which execution may issue, and that this
decision be certified to the court below for observance.
Chief Justice.
James T. Worthen,
4 See n.3.
Rashaun StaggTable’ (Return to related document text)
Invoice #1102
Date: July 23, 2009
Job: Machinery NOS via barge
From: Catoosa, OK
To: Houston, TX
Shipper: Born Inc. (Tulsa, OK)
Amount: $65,000.00
Invoice #1103
Date: July 23, 2009
Job: Machinery NOS via barge
From: Houston, TX
To: Tuxpan, Mexico
Shipper: Born Inc. (Tulsa, OK)
Amount: $85,000.00
Invoice #1104
Date: July 27, 2009
Job: 30,000 MT shipment
From: Port McKenzie, AK
To: Shanghai, China
2014 Tex. App. LEXIS 5820, *11
Shipper: Sovereign Transport Service (Houston, TX)
Amount: $50,000.00
Invoice #1105
Date: July 27, 2009
Job: 40,000 MT shipment
From: Houston, TX
To: Xiaman, China
Shipper: AlpiUSA
Amount: $52,300.00
Table’ (Return to related document text)
Page 6 of 6
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Document (1)
1._Tex. Prop. Code § 5.024
Client/Matter: -None-
Search Terms: Texas Property Code §5.021
Search Type: Natural Language
EXHIBIT
y Memo
* D2
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Rashaun StaggTex. Prop. Code § 5.021
This document is current through the 2021 Regular Session, 87th Legislature with the exception of HB 1154, HB
3607, HB 4294, HB 4368, and SB 1126.
Texas Statutes & Codes Annotated by LexisNexis® > Property Code > Title 2 Conveyances
(Chs, 5 — 10) > Chapter 5 Conveyances (Subchs. A— G) > Subchapter B Form and
Construction of Instruments (§§ 5.021 — 5.040)
Sec. 5.021. Instrument of Conveyance.
A conveyance of an estate of inheritance, a freehold, or an estate for more than one year, in land and
tenements, must be in writing and must be subscribed and delivered by the conveyor or by the conveyor’s
agent authorized in writing.
History
Enacted by Acts 1983, 68th Leg., ch. 576 (S.B. 748), § 1, effective January 1, 1984.
Annotations
LexisNexis® Notes
Case Notes
Bankruptcy Law: Case Administration: Administrative Powers: Stays: Relief From Stays: Miscellaneous
Grounds
Business & Corporate Law: Agency Relationships: Authority to Act: General Overview
Business & Corporate Law: General Partnerships: Dissolution & Winding Up: General Overview
Civil Procedure: Pleading & Practice: Defenses, Demurrers & Objections: Affirmative Defenses: General
Overview
Commercial Law (UCC): Negotiable Instruments (Article 3): Enforcement: General Overview
Contracts Law: Contract Interpretation: Parol Evidence: General Overview
Contracts Law: Statutes of Frauds: General Overview
Contracts Law: Statutes of Frauds: Exceptions: Partial Performance
Contracts Law: Statutes of Frauds: Requirements
Contracts Law: Statutes of Frauds: Requirements: General Overview
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Document (1)
1._Thornton v. Rains, 157 Tex. 65
Client/Matter: -None-
Search Terms: 299 S.W.2d 287, 288
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Thornton v. Rains
Supreme Court of Texas
February 6, 1957, Decided
No. A-5724
Reporter
157 Tex. 65 *, 299 S.W.2d 287 **; 1957 Tex. LEXIS 552 ***
R. L. Thornton v. H. E. Rains Et Al.
Subsequent History: [***1]
March 27, 1957.
Rehearing Overruled
Prior History: Error to the Court of Civil Appeals for the
Second District, in an appeal from Denton County.
Disposition: The judgment of the Court of Civil Appeals
is reversed and that of the trial court is affirmed.
Core Terms
deed, grantor, recorded, convey, daughter, delivery
Case Summary
Procedural Posture
Petitioner title holder sought review of a decision from
the Court of Civil Appeals for the Second District
(Texas), which reversed a judgment for the title holder in
a trespass to try title action and rendered a decision for
respondent quitclaim owner.
Overview
The quitclaim owner and the titleholder acquired their
respective interests in real property through a common
grantor. That grantor had executed a deed of gift to his
minor children. The deed was recorded four days later.
Two years later the grantor conveyed the same property
by warranty deed for consideration to another party. The
titleholder acquired his interest through that chain of
title. The minor children not aware of the deed or the
record of it until after their father's death. They conveyed
their interest to the quitclaim owner, who filed an action
in trespass to try title against the titleholder. The trial
court entered a judgment for the titleholder. The
intermediate court reversed and rendered a decision for
the quitclaim owner. On appeal, the court reversed
because there was evidence in the record to uphold the
findings of fact made by the jury that the common
grantor had not intended by his first deed to effect a
conveyance of the property to the minor children even
though it had been recorded. The court noted that his
subsequent acts were inconsistent with that intention.
Outcome
The court reversed the judgment of the intermediate
court and affirmed the trial court decision that the title
holder had acquired superior title from a common
grantor with the quitclaim owner.
LexisNexis® Headnotes
Evidence > Inferences & Presumptions > General
Overview
Real Property Law > Estates > Present
Estates > Fee Simple Estates
Real Property Law > Deeds > General Overview
Real Property Law > Purchase & Sale > General
Overview
HN1%) Evidence, Inferences & Presumptions
Where a deed has been signed, acknowledged and
placed of record the presumption is that the grantor
intended to convey the land according to the terms of
the deed, but this presumption may be overturned
where there is proof that the recording of the instrument
was for some other purpose or through fraud, accident
or mistake. If there was no intention on his part to
deliver it or divest himself of title the deed is not
effective as a conveyance.
Rashaun StaggPage 2 of 5
157 Tex. 65, “65; 299 S.W.2d 287, **287; 1957 Tex. LEXIS 552, ***1
Headnotes/Summary
Headnotes
Deeds -- Intention of Parties -- Registration.
The intention of a grantor at the time of his recordation
of a deed executed to his two children for love and
affection and one dollar, with the reservation that he
was to receive all rents and revenues from said property
until his death, was not controlling in determining
whether he intended to convey title at the time the deed
was executed, since he could have changed his
intention at the time it was filed for record.
Deeds -- Conveyances -- Registration -- Title.
The recording of a deed for record is not essential to the
conveyance of the title, nor will a deed pass title unless
there is a delivery of it.
Special Issues -- Intention of Parties.
An issue enquiring as to the intention of the grantor at
the time of filing a deed, conveying his property to his
children with reservation that he was to receive all
revenue and rents therefrom until his death,
which [***2] the jury answered it was not his intention to
convey same, was not an issue that could be answered
as a matter of law.
Presumption -- Deeds -- Fraud.
The presumption that the signing, acknowledging and
recording of a deed is an intention to convey the
property described therein according to the tenue of
said deed may be rebutted by proof that the instrument
was for some other purpose or executed through fraud,
accident or mistake.
Intention of Parties -- Conveyances.
If there was no intention on the part of the grantor to
deliver the deed or divest himself of title the deed was
not effective as a conveyance, and the mere fact that he
had the deed recorded was not determinative of his
intention to deliver it and place title in his children, who
had no knowledge of his movements until after his
death.
Deeds -- Conflicts.
The question of the delivery of a deed is one of intention
on the part of the grantor to be determined from all the
facts and circumstances surrounding the case, and
where a grantor executed a deed to his children
reserving a life estate to himself, which fact was never
communicated to said grantees and they were unaware
of such [***3] transaction until after his death, some
thirty-three years later, a subsequent deed executed to
third parties conveying a fee simple title to the same
property for a consideration, gave rise to a conflict and
both cannot stand, and since the later deed was for a
valuable consideration it warranted the fee simple title in
that grantee.
Syllabus
This is a trespass to try title suit brought by H. E. Rains
and others against R. L. Thornton to determine the
ownership of land under the facts and conditions as set
forth in the body of the opinion of the court. The trial
court decided in favor of defendant Thornton, but the
Court of Civil Appeals was of a different opinion and
reversed that judgment and rendered one for plaintiff
Rains. 286 S.W. 2d 174. Thornton has brought error to
the Supreme Court.
Counsel: Hopkins & Hopkins and Ear! L. Coleman, all
of Denton, Carrington, Cowan, Johnson, Brombery &
Leeds and Paul Carrington, all of Dallas, for petitioner.
The Court of Civil Appeals erred in reversing the
judgment of the trial court in favor of petitioner since the
evidence raised an issue of fact as to whether the deed
in 1914 by C. H. Medlin intended a conveyance of
title [***4] to be effective to his children, and since said
court decided the evidence was insufficient it should
have reversed and remanded the cause rather than to
render judgment against petitioner. McFall v. Fletcher,
138 Texas 93, 157 S.W. 2d 131; McCartney v.
McCartney, 93 Texas 359, 55 S.W. 310; Vannerberg v.
Anderson, 146 Texas 302, 206 S.W. 2d 217.
Charles F. Umphress, Pat H. Kveton, both of Dallas,
and Doug Crouch, and Brantley Pringle, both of Fort
Worth, for respondent.
Since the Court of Civil Appeals was of the opinion that
there was no credible competent evidence of a lack of
intention on the part of C. H. Medlin to convey the
remainder of his estate after his life estate to the
Rashaun StaggPage 3 of 5
157 Tex. 65, *65; 299 S.W.2d 287, **287; 1957 Tex. LEXIS 552, ***4
grantees by his 1914 deed, it properly set aside the jury
finding and reversed and rendered this case in behalf of
the remainder claimant, under said deed. Ford v.
Hackel (Com. App.) 77 S.W. 2d 1043: Henry v. Phillips,
105 Texas 459, 151 S.W. 532; Southwestern Lbr. Co.
on N. J. Evans, 275 S.W. 1078.
Judges: Mr. Justice Culver delivered the opinion of the
Court. Mr. Justice Smith, joined by Justice Walker,
dissenting.
Opinion by: CULVER
Opinion
[*67] [**288] Our former opinion is withdrawn [***5]
and the following substituted therefor.
In 1914 C. H. Medlin executed a deed purporting to
convey to his two minor children a tract of land in
consideration of One Dollar and love and affection. On
the same day, it was acknowledged before a notary
public and filed for record and recorded four days later.
The rents, revenues, use and possession of the land
were reserved by the grantor during his lifetime.
Some two years later C. H. Medlin, joined by his wife
whom he had married subsequently to the date of the
1914 deed, conveyed the same land by general
warranty deed for a consideration of Thirty-four Hundred
and No/100 ($ 3,400.00) Dollars to W. L. Powell, and in
1918 Powell conveyed the land to J. J. Medlin, a brother
of C. H. Medlin by warranty deed. In 1951 J. J. Medlin
and wife conveyed the land to R. L. Thornton. In 1952
the grantees in the 1914 deed, Amos W. Medlin and
Hattie Mae Medlin Beckwith, for the recited
consideration of Ten Dollars [*68] quitclaimed all of
their interest in the land to H. E. Rains. Respondent,
Rains, sued petitioner, Thornton, in trespass to try title.
The trial court's judgment in favor of Thornton was
reversed and rendered for Rains. [***6] 286 S.W. 2d
174. We are of the opinion that the trial court's judgment
should be upheld.
Among other issues answered, that are irrelevant to a
decision, the jury found that, at the time the deed from
C. H. Medlin to his two children was filed for record,
Medlin did not intend to convey the land to his children.
Respondents contend that the language of the special
issue is vague and ambiguous and improperly inquires
as to grantor's intention at the time the 1914 deed was
filed for record. They correctly say that the intention of
the grantor at the time of the recordation of the deed is
not necessarily controlling or in most cases material for
the reason, that if Medlin did execute and deliver the
1914 deed with the intention to vest the "remainder
estate" in his children it would not matter that he
changed his intention at the time it was filed for record.
However, the only objection leveled to the issue by
respondents was: "Because the same is a question of
law and further because there is no evidence to support
said issue." Of course the recording of a deed is not
essential to the conveyance of title, but without delivery
title will not pass. We think the issue as
submitted [***7] was not one that could be answered as
a matter of law. The controlling question then is whether
or not there is any evidence to support the jury's finding.
It is well settled that HNIF) where a deed has been
signed, acknowledged and placed of record the
presumption is that the grantor intended to convey the
land according to the terms of the deed, but this
presumption may be overturned where there is proof
that the recording of the instrument was for some other
purpose or through fraud, accident or mistake.
Koppelmann v. Koppelmann, 94 Texas 40, 57 S.W. 570;
tn MeCartn 13 Texas 55 (310.
Even if C. H. Medlin had caused the deed to be
recorded, that fact of itself would not have been
determinative of the question of delivery of the deed and
his intention to place title in his children. If there was no
intention on his part to deliver it or divest himself of title
the deed was not effective as a conveyance. McGuire v.
Clark, 85 Neb. 102, 122 N.W. 675; Younge v. Gilbeau,
70 U.S. 636, 18 L. Ed. 262.
[*69] The question of delivery of a deed is one of
intention on the part of grantor to be determined from all
the facts and circumstances. Pou v. Dominion
Oil [***8]_ Co., 265 S.W. 886 (Com. App. judgment
[**289] adopted); Taylor v. Sanford, 108 Texas 340,
193 S.W. 661.
There is some evidence, even though negative in
character, upon which the jury might rely in support of
its verdict. The proof showed that Medlin married his
second wife shortly after signing the deed and although
he lived 38 years after 1914 he never told his children
nor anyone else about the 1914 deed. Neither the
notary who took the acknowledgment, nor the county
clerk testified. The children did not learn of the
execution when recordation of the deed until after their
father's death when Rains solicited the quitclaim deed
Rashaun StaggPage 4 of 5
157 Tex. 65, “69; 299 S.W.2d 287, **289; 1957 Tex. LEXIS 552, ***8
from them in 1952. J. J. Medlin, after he acquired the
land from Powell, lived on and cultivated it and paid the
taxes for thirty-three years. The brothers, C. H. Medlin
and J. J. Medlin, were neighbors for years and visited
each other many times. C.H. never told his brother of
the 1914 deed to the children. If Medlin had caused the
deed to be recorded with the intention of conveying title
to his children he must have knowingly been guilty of
perpetrating a fraud upon his subsequent grantee and
permitting a brother likewise to be defrauded.
["*"9] The case of Ford v. Hackel, 124 Texas 402, 77
S.W. 2d 1043, is relied upon by petitioner, Thornton.
The facts there in all material aspects run closely
parallel to those in our case. Rutherford executed a
deed of gift to a daughter and the deed was filed and
recorded four days later. Five years later Rutherford
conveyed by warranty deed for a valuable consideration
an undivided one-half interest in the same land to
another daughter. The grantor had continued to treat the
land as his own, living on it and having many
discussions about the land without disclosing that he
had executed the first deed. Although the grantor lived
for eighteen years after the date of the first deed, the
daughter was not aware of the deed or the record of it
until after his death.
In Ford v. Hackel the court holds that although the
evidence is wholly circumstantial, a fact issue is raised
saying: "On the other hand, the fact that neither of the
grantors ever apprised their daughter, Mrs. Hackel, of
the instrument, or of the gift which it purports, together
with the subsequent conduct of the grantors respecting
the land, as shown above, including their act in deeding
part of the land to another daughter, [***10] present a
[*70] state of facts from which an inference may be
fairly drawn that the grantors did not know that the
instrument was recorded, and therefore did not
authorize the recording of it. It is thus seen that the
question of delivery of the instrument was one for
determination by the jury. The contention of the
plaintiffs in error is no evidence to show that the
grantors authorized the instrument to be put of record, is
overruled." The facts before us seem every whit as
strong to raise a fact issue as they do in Ford v. Hackel.
The respondent, Rains, seeks to distinguish the Ford
case and to avoid its application here for the reason that
the grantor, Medlin, in the deed to his children reserved
the use of the property to himself for his lifetime, and
later conveyed the fee simple title to another, whereas
in the Ford case the grantor gave a fee simple title to his
daughter and thereafter for a valuable consideration
deeded one-half of the property to another daughter.
The respondent argues that since the grantor, Medlin,
retained a life estate which he had the right to enjoy and
which he could convey, the execution of the 1916 deed
would not necessarily conflict with [**11] or contradict
the 1914 deed. In other words he says that the 1916
deed conveyed and only conveyed the life interest
retained by the grantor.
We think this makes no material distinction. Certainly
both deeds conflict with each other; they are
inconsistent and both cannot stand. The 1916 deed for
a valuable consideration warranted the fee simple title to
Powell.
Respondents cite the case of Henry v. Phillips, 105
Texas 459, 151 S.W. 533, where it is said, that the
testimony of a witness to the effect that after the date
[**290] of the execution of the deed by the grantor he
had listed the property for sale and offered to sell the
tract was not admissible for the reason that it was
hearsay evidence and in disparagement of the grantor's
deed. No contention is made that the evidence in our
case is hearsay and it is also noteworthy that Henry v.
Phillips is not cited in Ford v. Hackel, decided some
twenty-three years later. Furthermore, the cases are
not in conflict. In Henry v. Phillips the grantor duly
executed a deed, deposited it in a bank for safekeeping
with instructions that it be delivered to the grantees
upon grantor's death. This evidence was held by the
court sufficient [***12] to constitute delivery of the deed
as a matter of law, and the court went on to say that
“what constitutes a delivery of a deed is a question of
law, but whether there was in fact a delivery [*71] of
the deed under consideration is a question of fact to be
determined by the jury.”
We are of the opinion that the holding in Ford v. Hackel
is fairly applicable to the facts of this case and that there
is evidence in this record to uphold the findings of fact
made by the jury. The judgment of the Court of Civil
Appeals is reversed and that of the trial court affirmed.
Associate Justice Norvell not sitting.
Opinion delivered February 6, 1957.
Dissent by: SMITH
Dissent
Mr. Justice Smith, joined by Justice Walker, dissenting.
Rashaun StaggPage 5 of 5
157 Tex. 65, *71; 299 S.W.2d 287, **290; 1957 Tex. LEXIS 552, ***12
ON MOTION FOR REHEARING
The dissenting opinion filed herein on July 11, 1956 is
withdrawn, and the following dissent is substituted
therefor:
On further consideration of this case, | am still
convinced that, considered in any such sense as would
defeat the operative effect of the deed, there is no
evidence to sustain the finding of the jury that C. H.
Medlin did not intend to convey the land in question to
his children.
To defeat the operative effect of a [***13] deed which
the grantor has caused to be recorded, it must be
shown that the recording was induced by fraud,
accident, or mistake, or that it was for some purpose
other than to convey title to the named grantee.
McCartney v. McCartney, 93 Texas 359, 55 S.W. 310;
Koppeimann v. Koppelmann, 94 Texas 40, 57 S.W. 570.
No such showing was made in this case. The type of
evidence to which the majority refers is relevant on the
issue of whether C. H. Medlin caused the deed to his
children to be recorded and it was specifically so held in
Ford v. Hackel, 124 Texas 402, 77 S.W. 2d 1043, but it
was not relevant on the issue of whether C. H. Medlin
intended the deed to operate as a conveyance of title to
his children.
| am of the opinion that there is evidence, under the rule
of Ford v. Hackel, supra, that C. H. Medlin did not cause
the deed to his children to be recorded, but that whether
he did or did not do so was a fact issue; that the burden
was on petitioner to request the submission of an issue
inquiring whether C. H. Medlin caused the deed to be
recorded, and that having failed to do so [*72]
petitioner waived such ground of recovery. Rule 279,
Texas Rules of Civil Procedure. \[***14] further
contend that there is no evidence to support the jury
finding that C. H. Medlin did not intend to convey the
land to his children, and that judgment for petitioner
cannot rightfully be rested on a conclusion that the
evidence would support an answer, favorable to
petitioner, to an unsubmitted issue.
If we were at liberty to assume from the jury's answer to
the submitted issue that it would also have answered,
on the same evidence, that C. H. Medlin did not cause
the deed to be recorded, we could disregard the
submitted issue and the jury's answer thereto as
immaterial. But we cannot indulge that assumption.
Both issues are ultimate issues. A finding, supported by
evidence meeting the test of Ford v. Hackel, supra, that
C. H. Medlin did not cause the deed to be recorded
would render immaterial any issue of his intention, but a
finding that he caused it to be recorded would entitle
petitioner to no relief or recovery in the absence of a
further finding, supported by a type of evidence not in
this record, that he did not intend the deed to operate as
a conveyance. The latter possibility demonstrates, |
think, that the submitted issue cannot be considered as
embracing the [***15] issue [**291] of whether C. H.
Medlin caused the deed to be recorded.
It seems obvious that this case was tried on an
erroneous theory and was submitted on an improper
issue. | would therefore be inclined to remand the case
for retrial, as we did in Benoit v. Wilson, 150 Texas 273,
239 S.W. 2d 792, and Eaton v. R. B. George
Investments, 152 Texas 523, 260 S.W. 2d 587, if that
course were open to this Court under the Rules. That
course is not open to us. This Court may remand the
cause to the trial court under Rule 505, Texas Rules of
Civil Procedure, because it was tried on an erroneous
theory, only when it has reversed the judgment of the
Court of Civil Appeals on some other ground or when
error is assigned in this Court to the failure of the Court
of Civil Appeals to remand under Rule 434. Benoit v.
Wilson, 150 Texas 273, 239 S.W. 2d 792, 798. We are
not at liberty to reverse an errorless judgment of the
Court of Civil Appeals. Chevalier v. Lanes, Inc., 147
Texas 106, 213 S.W. 2d 530, 535, 6 A.L.R. 2d 1045;
Scott v. Walker, 141 Texas 181, 170 S.W. 2d 718, 722.
The judgment of the Court of Civil Appeals should be
affirmed.
[*73] Associate Justice Walker joins in [***16] this
dissent.
Opinion delivered February 6, 1957.
Second motion for rehearing overruled, March 27, 1957.
End of Document
Rashaun Stagg
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CAUSE NUMBER: 2018-65578 RAQUEL VALDEZ GARCIA § IN THE DISTRICT COURT OF § vs.~ § HARRIS COUNTY T E XAS § DANIEL GARCIA § 157" JUDICIAL DISTRICT DEFENDANT’S AUTHORITIES EXHIBIT NUMBER AUTHORITIES Memo D1 Ocean Carriers, Inc. v. Team Ocean Servs., 2014 Tex. App. LEXIS 5820, 2014 WL 2505586. Memo D2 Texas Property Code §5.021 Memo D3 Thornton y. Rains, 299 S.W.2d 287, 288 (Tex. 1957) Respectfully submitted, Law Offices of James and Stagg, PLLC 1001 Texas Avenue, Suite 500 Houston, Texas 77002 Tel: (713) 223-5811 Fax: (713) 223-1416 3] A. Tueole Yr By: R. Nicole Stagg State Bar No. 24034687 stagglaw@yahoo.com Attorney for Daniel Garcia Page 1 of 1@ LexisNexis User Name: Rashaun Stagg Date and Time: Tuesday, August 17, 2021 1:27:00 PM CDT Job Number: 150792578 Document (1) 1._Ocean Carriers, Inc. v. Team Ocean Servs., 2014 Tex. App. LEXIS 5820 Client/Matter: -None- Search Terms: civil fraud elements texas Search Type: Natural Language Narrowed by: Content Type Narrowed by Cases Texas } Memo Dt @ LexisNexis] About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2021 LexisNexis Rashaun StaggoO Neutral As of: August 17, 2021 6:27 PMZ Ocean Carriers, Inc. v. Team Ocean Servs. Court of Appeals of Texas, Twelfth District, Tyler May 30, 2014, Opinion Delivered NO. 12-13-00228-CV Reporter 2014 Tex. App. LEXIS 5820 *; 2014 WL 2505586 OCEAN CARRIERS, INC. AND MRS. MARIA PEARCY, AS INDEPENDENT EXECUTRIX OF THE ESTATE OF JAMES O. PEARCY, APPELLANTS v. TEAM OCEAN SERVICES, INC., APPELLEE Subsequent History: Petition for review dismissed by, Motion granted by Overseas Carriers, Inc. v. Team Ocean Servs., 2014 Tex. LEXIS 776 (Tex., Aug. 29. 2014) Prior History: [*1] Appeal from the 402nd District Court of Wood County, Texas. (Tr.Ct.No. 2010-252). Overseas Carriers, Inc. v. Team Ocean Services-Dallas, Inc., 2011 U.S. Dist. LEXIS 98220 (S.D. Tex., Aug. 31 2011, Core Terms invoices, shipment, sand, silica, trial court, fact finder, clear and convincing evidence, exemplary damages, shipping Case Summary Overview HOLDINGS: [1]-In a fraud case brought by a shipping company against a shipping intermediary, the intermediary's argument that a business associate within the shipping company told him what information to put in four false invoices and, therefore, he did not knowingly make any misrepresentations, was rejected because the intermediary, upon receiving $252,300 from the shipping company, applied it to an unauthorized shipment rather than to the jobs listed in the false invoices. Outcome Judgment affirmed. LexisNexis® Headnotes Civil Procedure > Trials > Judgment as Matter of Law > Directed Verdicts Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review HANS) Judgment as Matter of Law, Directed Verdicts A defendant who moves for directed verdict after plaintiff rests, but thereafter elects not to stand on his motion and proceeds with his own case, waives the motion for directed verdict unless the motion is reurged at the close of the case. Evidence > Burdens of Proof > Clear & Convincing Proof Torts > ... > Fraud & Misrepresentation > Actual Fraud > Remedies Torts > ... > Punitive Damages > Measurement of Damages > Statutory Requirements HN2%) Burdens of Proof, Clear & Convincing Proof The Texas Civil Practice and Remedies Code requires a plaintiff seeking to recover exemplary damages resulting from fraud to establish the elements of fraud by clear and convincing evidence. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)(1) (Supp. 2013). "Fraud" means fraud other than constructive fraud. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(6) (2008). "Clear and Rashaun StaggPage 2 of 6 2014 Tex. App. LEXIS 5820, *1 convincing" evidence equates to proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. § 47.007/2). Civil Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence Evidence > Burdens of Proof > General Overview HNG{] Evidence Substantial Evidence, Sufficiency of Whenever the standard of proof at trial is elevated, the standard of appellate review must likewise be elevated. In a legal sufficiency review, the court should look at all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Looking at the evidence in the light most favorable to the finding means that a reviewing court must assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, But the court must not disregard undisputed facts that do not support the finding. Civil Procedure > ... > Standards of Review > Substantial Evidence > Sufficiency of Evidence HNA{&) Evidence Substantial Evidence, Sufficiency of When reviewing the factual sufficiency of the evidence, a court of appeals must consider and weigh all of the evidence and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. In a factual sufficiency review, the court must give due consideration to evidence that the fact finder reasonably could have found to be clear and convincing. Moreover, the court should consider whether disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, the evidence is factually insufficient. Civil Procedure > Trials > Bench Trials HN5[%] Trials, Bench Trials When findings of fact and conclusions of law are not properly requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Torts >... > Fraud & Misrepresentation > Actual Fraud > Elements Torts > ... > Concerted Action > Civil Conspiracy > Elements HNG6| &) Actual Fraud, Elements To prevail on a fraud claim, a plaintiff is required to prove that (1) defendant made a material representation that was false; (2) he knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) he intended to induce plaintiff to act upon the representation; (4) plaintiff actually and justifiably relied upon the representation; and (5) plaintiff suffered injury as a result. A conspiracy to defraud on the part of two or more persons means a common purpose, supported by a concerted action to defraud, that each has the intent to do it, and that it is common to each of them, and that each has the understanding that the other has that purpose. Each conspirator is responsible for the acts done by any other conspirator to further the conspiracy. The common purpose from which conspiracy liability arises may be established by reasonable inferences. Torts > ... > Fraud & Misrepresentation > Actual Fraud > Elements HN7{%) Actual Fraud, Elements Sending a false invoice, in and of itself, can be a material misrepresentation. Counsel: For Appellant: Evan T. Caffrey. For Appellee: Michael Calvin Wright. Judges: Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. Rashaun StaggPage 3 of 6 2014 Tex. App. LEXIS 5820, *1 Opinion by: JAMES T. WORTHEN Opinion MEMORANDUM OPINION Ocean Carriers, Inc. (OCI) and Mrs. Maria Pearcy, as independent executrix of the estate of James O. Pearcy,’ appeal the trial court's judgment awarding Team Ocean Services, Inc. (TOS) $252,300.00 in actual damages and $250,000.00 in exemplary damages for fraud. Appellants raise four issues on appeal. We affirm. BACKGROUND TOS and OCI are intermediaries in the ocean shipping business. A shipping intermediary contracts with a customer who needs cargo shipped and makes arrangements with a carrier, either directly or through another intermediary, to transport the customer's cargo. TOS and OCI first began their business relationship in 2008 when their respective presidents, Randy Honeycutt and James O. Pearcy, worked together on an ill-fated Dominican Republic shipment. After this initial cooperative effort, Honeycutt invited Pearcy to TOS's 2008 annual meeting to meet TOS's American and international agents. [*2] Thereafter, Pearcy was invited to TOS's corporate headquarters in Winnsboro, Texas, to discuss potential joint business ventures. On June 5, 2009, TOS and OCI signed a contract of affreightment for the transport of silica sand, frac sand, specialized gravel, and rock pellets in bulk (the silica sand shipment) from Mobile, Alabama, to China. Pursuant to the contract, OCI chartered a ship with Gypsum Transportation.? In late July 2009, OC! sent four invoices to TOS totaling $252,300.00. It sent these invoices at the behest of Paul Powell, an international manager in TOS's Dallas office. These invoices, which Pearcy prepared based upon the detailed instructions Powell gave him, set forth the ‘James O. Pearcy died in January 2011. Thereafter, the representative of Pearcy's estate was added as a defendant. 2Under TOS's standard procedure, Honeycutt was to review and sign off on all contracts of affreightment. But the evidence at trial indicated that he was not informed of this contract with OCI until September 2009. following information: Fc. to table1 In [*3] response to the invoices, TOS paid OCI $252,300.00. Pearcy, on behalf of OCI, applied the $252.300.00 to the silica sand shipment. On September 8, 2009, Honeycutt learned of the silica sand contract. During the next two days, he met with Pearcy and Powell and learned that the four invoices were fictitious. As a result, TOS terminated Powell. Honeycutt later demanded that Pearcy return the $252,300.00 OCI received. Pearcy promised in writing to remit the entire amount, but OCI never returned the money. Following Powell's termination by TOS, Pearcy continued to work with Powell. During this time, they engaged in a similar scheme with a company called AlpiUSA. On April 16, 2010, TOS filed the instant suit against OCI and Pearcy for damages based on fraud, negligent misrepresentation, breach of contract, and money had and received. Following a bench trial, the trial court found for TOS on each of its causes of action and awarded it $252,300.00 in actual damages and $250,000.00 in exemplary damages. TOS elected to recover damages under its fraud remedy. This appeal followed.? EVIDENTIARY SUFFICIENCY - FRAUD 3At oral argument before this court, Appellants stated they were limiting their appeal to their fourth issue challenging [*4] the trial court's award of exemplary damages based on a lack of clear and convincing evidence of fraud. We have considered the arguments raised by Appellants in their first and second issues inasmuch as they relate to whether there is legally and factually sufficient evidence that they committed fraud. However, we do not consider their third issue pertaining to collateral estoppel. Appellants raised the issue of collateral estoppel in a motion for directed verdict following TOS's presentation of evidence, but did not, after they presented their case, reurge their motion. Accordingly, Appellants waived their motion for directed verdict and failed to preserve the issue of collateral estoppel for appeal. See Ratsavong v. Menevilay, 176 S.W.3d 661, 667 (Tex. App.—E/ Paso 20085. pet. denied) HN1[%] (defendant who moves for directed verdict after plaintiff rests, but thereafter elects not to stand on his motion and proceeds with his own case, waives motion for directed verdict unless motion is reurged at close of case). Rashaun StaggPage 4 of 6 2014 Tex. App. LEXIS 5820, *4 In their fourth issue, Appellants argue that there is insufficient evidence to support the trial court's award of exemplary damages because there is [*5] not clear and convincing evidence that they committed fraud. Standard of Review NaF The Texas Civil Practice and Remedies Code requires a plaintiff seeking to recover exemplary damages resulting from fraud to establish the elements of fraud by clear and convincing evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)(1) (West Supp. 2013). "Fraud' means fraud other than constructive fraud. See id. § 41.001/6) (West 2008). “Clear and convincing" evidence equates to “proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. § 47.001(2). HNGF] Whenever the standard of proof at trial is elevated, the standard of appellate review must likewise be elevated. Sw. Beli Tel. Co. vy. Garza, 164 S.W.3d 607, 627 (Tex. 2004). |n a legal sufficiency review, the court should look at all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Looking at the evidence in the light most favorable to the finding means that a reviewing court must assume that [*6] the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so. /d. But the court must not disregard undisputed facts that do not support the finding. See id. HNA(F) When reviewing the factual sufficiency of the evidence, a court of appeals must consider and weigh all of the evidence and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In a factual sufficiency review, the court must give due consideration to evidence that the fact finder reasonably could have found to be clear and convincing. /n_re JF.C.. 96 S.W.3d at 266. Moreover, the court should consider whether disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. /d. If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, the evidence is factually insufficient. /d. HN5|#] When, as here, findings of fact and conclusions of law [*7] are not properly requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. In the Interest of W.E.R., 669 S.W.2d 716, 717 (Tex, 1984). Fraud HN6(F) To prevail on its fraud claim, TOS was required to prove that (1) OCI and Pearcy made a material representation that was false; (2) they knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) they intended to induce TOS to act upon the representation; (4) TOS actually and justifiably relied upon the representation; and (5) TOS suffered injury as a result, See Ernst & Young v. Pacific Mutual Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). A conspiracy to defraud on the part of two or more persons means a common purpose, supported by a concerted action to defraud, that each has the intent to do it, and that it is common to each of them, and that each has the understanding that the other has that purpose. Schlumberger Well Sur. Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d_ 854, 857 (Tex. 1968). Each conspirator is responsible for the acts done by any other conspirator to further the conspiracy. [*8] McWhorter v. Sheller, 993 S.W.2d 781, 788 (Tex. App.—Houston [14th Dist.) 1999, pet. denied). The common purpose from which conspiracy liability arises may be established by reasonable inferences. /d. Discussion In the instant case, the record reflects that Powell dictated the information to be set forth in the invoices to Pearcy, who, through OCI, forwarded them to the TOS corporate office. The evidence further indicates that all of the representations in these four invoices numbered 1102, 1103, 1104, and 1105 were fictitious. That is, the shipments described in the invoices did not exist. HN7[ F) Sending a false invoice, in and of itself, can be a material misrepresentation. See Daugherty v. Jacobs, 187 S.W.3d 607, 617 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Appellants argue that Powell told Pearcy what information to put in these invoices and, therefore, Rashaun StaggPage 5 of 6 2014 Tex. App. LEXIS 5820, *8 Pearcy did not knowingly make any misrepresentations, but rather, merely followed Powell's instructions. Yet the record is undisputed that Pearcy, upon receiving the $252,300.00 from TOS, applied it to the unauthorized silica sand shipment rather than to the jobs listed in the four invoices. Thus, the trial court reasonably could infer [*9] from Pearcy's action that he knew the four invoices were fictitious when he sent them to TOS and intended to divert the $252,300.00 to the silica sand shipment from the outset. Appellants further contend that there was no evidence that they would not have gone forward with the four shipments set forth in the invoices if TOS had tendered the cargo for shipment. But the only reasonable inference to be made from Pearcy's applying the $252,300.00 to the silica sand shipment was that he knew the money would not be needed for those four shipments because they were a complete fabrication. The record further supports that TOS actually and justifiably relied upon the representation. Specifically, the evidence indicates that the invoices appeared to be valid. Thus, the trial court reasonably could infer that Pearcy and Powell had knowledge of how these types of invoices were paid by TOS's corporate office and produced invoices they knew would be paid by TOS as matter of course. Lastly, TOS suffered injury because it paid $252,300.00 for shipments that were never intended to be undertaken. In sum, based on our review of the record, the trial court reasonably could have determined that Pearcy and [*10] Powell acted in concert with one another to cause TOS to pay OCI the $252,300.00 due on the fictitious invoices. The evidence indicates that Pearcy applied this money to the silica sand shipment, which Honeycutt never authorized. Thus, we conclude that the trial court could make the implied finding that Powell and Pearcy conspired to defraud TOS of $252,300.00 and that they both knowingly made a material misrepresentation. Accordingly, we hold there is clear and convincing evidence to support the trial court's implied finding that OCI and Pearcy committed fraud. We next consider whether the evidence is factually sufficient to support the trial court's fraud finding. Appellants argue that that the overwhelming weight of the evidence demonstrates that OCI and Pearcy followed Powell's instructions in issuing the four invoices, and OCI would have performed the shipments if TOS had tendered the cargo for shipment. Appellants further argue that "OCI and Pearcy did not make a successful living in the shipping business for 40 years by making promises they didn't intend to keep[.]" We have considered the entirety of the record and weighed all of the evidence. Having done so, we conclude that [*11] the trial court's fraud finding is not so contrary to the clear and convincing evidence to be clearly wrong and unjust. We hold that the trial court did not err in awarding exemplary damages based on an alleged absence of clear and convincing evidence supporting the element of fraud. Appellants’ fourth issue is overruled. Disposition Having overruled Appellants’ fourth issue,4 we affirm the trial court's judgment. JAMES T. WORTHEN Chief Justice Opinion delivered May 30, 2014. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (PUBLISH) JUDGMENT THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the appellants, OCEAN CARRIERS, INC. AND MRS. MARIA PEARCY, AS INDEPENDENT EXECUTRIX OF THE ESTATE OF JAMES 0. PEARCY, for which execution may issue, and that this decision be certified to the court below for observance. Chief Justice. James T. Worthen, 4 See n.3. Rashaun StaggTable’ (Return to related document text) Invoice #1102 Date: July 23, 2009 Job: Machinery NOS via barge From: Catoosa, OK To: Houston, TX Shipper: Born Inc. (Tulsa, OK) Amount: $65,000.00 Invoice #1103 Date: July 23, 2009 Job: Machinery NOS via barge From: Houston, TX To: Tuxpan, Mexico Shipper: Born Inc. (Tulsa, OK) Amount: $85,000.00 Invoice #1104 Date: July 27, 2009 Job: 30,000 MT shipment From: Port McKenzie, AK To: Shanghai, China 2014 Tex. App. LEXIS 5820, *11 Shipper: Sovereign Transport Service (Houston, TX) Amount: $50,000.00 Invoice #1105 Date: July 27, 2009 Job: 40,000 MT shipment From: Houston, TX To: Xiaman, China Shipper: AlpiUSA Amount: $52,300.00 Table’ (Return to related document text) Page 6 of 6 End of Document Rashaun Stagg@ LexisNexis’ User Name: Rashaun Stagg Date and Time: Tuesday, August 17, 2021 1:12:00 PM CDT Job Number: 150790982 Document (1) 1._Tex. Prop. Code § 5.024 Client/Matter: -None- Search Terms: Texas Property Code §5.021 Search Type: Natural Language EXHIBIT y Memo * D2 @ LexisNexis About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2021 LexisNexis Rashaun StaggTex. Prop. Code § 5.021 This document is current through the 2021 Regular Session, 87th Legislature with the exception of HB 1154, HB 3607, HB 4294, HB 4368, and SB 1126. Texas Statutes & Codes Annotated by LexisNexis® > Property Code > Title 2 Conveyances (Chs, 5 — 10) > Chapter 5 Conveyances (Subchs. A— G) > Subchapter B Form and Construction of Instruments (§§ 5.021 — 5.040) Sec. 5.021. Instrument of Conveyance. A conveyance of an estate of inheritance, a freehold, or an estate for more than one year, in land and tenements, must be in writing and must be subscribed and delivered by the conveyor or by the conveyor’s agent authorized in writing. History Enacted by Acts 1983, 68th Leg., ch. 576 (S.B. 748), § 1, effective January 1, 1984. Annotations LexisNexis® Notes Case Notes Bankruptcy Law: Case Administration: Administrative Powers: Stays: Relief From Stays: Miscellaneous Grounds Business & Corporate Law: Agency Relationships: Authority to Act: General Overview Business & Corporate Law: General Partnerships: Dissolution & Winding Up: General Overview Civil Procedure: Pleading & Practice: Defenses, Demurrers & Objections: Affirmative Defenses: General Overview Commercial Law (UCC): Negotiable Instruments (Article 3): Enforcement: General Overview Contracts Law: Contract Interpretation: Parol Evidence: General Overview Contracts Law: Statutes of Frauds: General Overview Contracts Law: Statutes of Frauds: Exceptions: Partial Performance Contracts Law: Statutes of Frauds: Requirements Contracts Law: Statutes of Frauds: Requirements: General Overview Rashaun Stagg@ LexisNexis User Name: Rashaun Stagg Date and Time: Tuesday, August 17, 2021 1:14:00 PM CDT Job Number: 150791101 Document (1) 1._Thornton v. Rains, 157 Tex. 65 Client/Matter: -None- Search Terms: 299 S.W.2d 287, 288 Search Type: Natural Language Narrowed by: Content Type Narrowed by US Cases Texas EXHIBIT @ LexisNexis | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2021 LexisNexis Rashaun Stagg© Caution As of: August 17, 2021 6:14 PMZ Thornton v. Rains Supreme Court of Texas February 6, 1957, Decided No. A-5724 Reporter 157 Tex. 65 *, 299 S.W.2d 287 **; 1957 Tex. LEXIS 552 *** R. L. Thornton v. H. E. Rains Et Al. Subsequent History: [***1] March 27, 1957. Rehearing Overruled Prior History: Error to the Court of Civil Appeals for the Second District, in an appeal from Denton County. Disposition: The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed. Core Terms deed, grantor, recorded, convey, daughter, delivery Case Summary Procedural Posture Petitioner title holder sought review of a decision from the Court of Civil Appeals for the Second District (Texas), which reversed a judgment for the title holder in a trespass to try title action and rendered a decision for respondent quitclaim owner. Overview The quitclaim owner and the titleholder acquired their respective interests in real property through a common grantor. That grantor had executed a deed of gift to his minor children. The deed was recorded four days later. Two years later the grantor conveyed the same property by warranty deed for consideration to another party. The titleholder acquired his interest through that chain of title. The minor children not aware of the deed or the record of it until after their father's death. They conveyed their interest to the quitclaim owner, who filed an action in trespass to try title against the titleholder. The trial court entered a judgment for the titleholder. The intermediate court reversed and rendered a decision for the quitclaim owner. On appeal, the court reversed because there was evidence in the record to uphold the findings of fact made by the jury that the common grantor had not intended by his first deed to effect a conveyance of the property to the minor children even though it had been recorded. The court noted that his subsequent acts were inconsistent with that intention. Outcome The court reversed the judgment of the intermediate court and affirmed the trial court decision that the title holder had acquired superior title from a common grantor with the quitclaim owner. LexisNexis® Headnotes Evidence > Inferences & Presumptions > General Overview Real Property Law > Estates > Present Estates > Fee Simple Estates Real Property Law > Deeds > General Overview Real Property Law > Purchase & Sale > General Overview HN1%) Evidence, Inferences & Presumptions Where a deed has been signed, acknowledged and placed of record the presumption is that the grantor intended to convey the land according to the terms of the deed, but this presumption may be overturned where there is proof that the recording of the instrument was for some other purpose or through fraud, accident or mistake. If there was no intention on his part to deliver it or divest himself of title the deed is not effective as a conveyance. Rashaun StaggPage 2 of 5 157 Tex. 65, “65; 299 S.W.2d 287, **287; 1957 Tex. LEXIS 552, ***1 Headnotes/Summary Headnotes Deeds -- Intention of Parties -- Registration. The intention of a grantor at the time of his recordation of a deed executed to his two children for love and affection and one dollar, with the reservation that he was to receive all rents and revenues from said property until his death, was not controlling in determining whether he intended to convey title at the time the deed was executed, since he could have changed his intention at the time it was filed for record. Deeds -- Conveyances -- Registration -- Title. The recording of a deed for record is not essential to the conveyance of the title, nor will a deed pass title unless there is a delivery of it. Special Issues -- Intention of Parties. An issue enquiring as to the intention of the grantor at the time of filing a deed, conveying his property to his children with reservation that he was to receive all revenue and rents therefrom until his death, which [***2] the jury answered it was not his intention to convey same, was not an issue that could be answered as a matter of law. Presumption -- Deeds -- Fraud. The presumption that the signing, acknowledging and recording of a deed is an intention to convey the property described therein according to the tenue of said deed may be rebutted by proof that the instrument was for some other purpose or executed through fraud, accident or mistake. Intention of Parties -- Conveyances. If there was no intention on the part of the grantor to deliver the deed or divest himself of title the deed was not effective as a conveyance, and the mere fact that he had the deed recorded was not determinative of his intention to deliver it and place title in his children, who had no knowledge of his movements until after his death. Deeds -- Conflicts. The question of the delivery of a deed is one of intention on the part of the grantor to be determined from all the facts and circumstances surrounding the case, and where a grantor executed a deed to his children reserving a life estate to himself, which fact was never communicated to said grantees and they were unaware of such [***3] transaction until after his death, some thirty-three years later, a subsequent deed executed to third parties conveying a fee simple title to the same property for a consideration, gave rise to a conflict and both cannot stand, and since the later deed was for a valuable consideration it warranted the fee simple title in that grantee. Syllabus This is a trespass to try title suit brought by H. E. Rains and others against R. L. Thornton to determine the ownership of land under the facts and conditions as set forth in the body of the opinion of the court. The trial court decided in favor of defendant Thornton, but the Court of Civil Appeals was of a different opinion and reversed that judgment and rendered one for plaintiff Rains. 286 S.W. 2d 174. Thornton has brought error to the Supreme Court. Counsel: Hopkins & Hopkins and Ear! L. Coleman, all of Denton, Carrington, Cowan, Johnson, Brombery & Leeds and Paul Carrington, all of Dallas, for petitioner. The Court of Civil Appeals erred in reversing the judgment of the trial court in favor of petitioner since the evidence raised an issue of fact as to whether the deed in 1914 by C. H. Medlin intended a conveyance of title [***4] to be effective to his children, and since said court decided the evidence was insufficient it should have reversed and remanded the cause rather than to render judgment against petitioner. McFall v. Fletcher, 138 Texas 93, 157 S.W. 2d 131; McCartney v. McCartney, 93 Texas 359, 55 S.W. 310; Vannerberg v. Anderson, 146 Texas 302, 206 S.W. 2d 217. Charles F. Umphress, Pat H. Kveton, both of Dallas, and Doug Crouch, and Brantley Pringle, both of Fort Worth, for respondent. Since the Court of Civil Appeals was of the opinion that there was no credible competent evidence of a lack of intention on the part of C. H. Medlin to convey the remainder of his estate after his life estate to the Rashaun StaggPage 3 of 5 157 Tex. 65, *65; 299 S.W.2d 287, **287; 1957 Tex. LEXIS 552, ***4 grantees by his 1914 deed, it properly set aside the jury finding and reversed and rendered this case in behalf of the remainder claimant, under said deed. Ford v. Hackel (Com. App.) 77 S.W. 2d 1043: Henry v. Phillips, 105 Texas 459, 151 S.W. 532; Southwestern Lbr. Co. on N. J. Evans, 275 S.W. 1078. Judges: Mr. Justice Culver delivered the opinion of the Court. Mr. Justice Smith, joined by Justice Walker, dissenting. Opinion by: CULVER Opinion [*67] [**288] Our former opinion is withdrawn [***5] and the following substituted therefor. In 1914 C. H. Medlin executed a deed purporting to convey to his two minor children a tract of land in consideration of One Dollar and love and affection. On the same day, it was acknowledged before a notary public and filed for record and recorded four days later. The rents, revenues, use and possession of the land were reserved by the grantor during his lifetime. Some two years later C. H. Medlin, joined by his wife whom he had married subsequently to the date of the 1914 deed, conveyed the same land by general warranty deed for a consideration of Thirty-four Hundred and No/100 ($ 3,400.00) Dollars to W. L. Powell, and in 1918 Powell conveyed the land to J. J. Medlin, a brother of C. H. Medlin by warranty deed. In 1951 J. J. Medlin and wife conveyed the land to R. L. Thornton. In 1952 the grantees in the 1914 deed, Amos W. Medlin and Hattie Mae Medlin Beckwith, for the recited consideration of Ten Dollars [*68] quitclaimed all of their interest in the land to H. E. Rains. Respondent, Rains, sued petitioner, Thornton, in trespass to try title. The trial court's judgment in favor of Thornton was reversed and rendered for Rains. [***6] 286 S.W. 2d 174. We are of the opinion that the trial court's judgment should be upheld. Among other issues answered, that are irrelevant to a decision, the jury found that, at the time the deed from C. H. Medlin to his two children was filed for record, Medlin did not intend to convey the land to his children. Respondents contend that the language of the special issue is vague and ambiguous and improperly inquires as to grantor's intention at the time the 1914 deed was filed for record. They correctly say that the intention of the grantor at the time of the recordation of the deed is not necessarily controlling or in most cases material for the reason, that if Medlin did execute and deliver the 1914 deed with the intention to vest the "remainder estate" in his children it would not matter that he changed his intention at the time it was filed for record. However, the only objection leveled to the issue by respondents was: "Because the same is a question of law and further because there is no evidence to support said issue." Of course the recording of a deed is not essential to the conveyance of title, but without delivery title will not pass. We think the issue as submitted [***7] was not one that could be answered as a matter of law. The controlling question then is whether or not there is any evidence to support the jury's finding. It is well settled that HNIF) where a deed has been signed, acknowledged and placed of record the presumption is that the grantor intended to convey the land according to the terms of the deed, but this presumption may be overturned where there is proof that the recording of the instrument was for some other purpose or through fraud, accident or mistake. Koppelmann v. Koppelmann, 94 Texas 40, 57 S.W. 570; tn MeCartn 13 Texas 55 (310. Even if C. H. Medlin had caused the deed to be recorded, that fact of itself would not have been determinative of the question of delivery of the deed and his intention to place title in his children. If there was no intention on his part to deliver it or divest himself of title the deed was not effective as a conveyance. McGuire v. Clark, 85 Neb. 102, 122 N.W. 675; Younge v. Gilbeau, 70 U.S. 636, 18 L. Ed. 262. [*69] The question of delivery of a deed is one of intention on the part of grantor to be determined from all the facts and circumstances. Pou v. Dominion Oil [***8]_ Co., 265 S.W. 886 (Com. App. judgment [**289] adopted); Taylor v. Sanford, 108 Texas 340, 193 S.W. 661. There is some evidence, even though negative in character, upon which the jury might rely in support of its verdict. The proof showed that Medlin married his second wife shortly after signing the deed and although he lived 38 years after 1914 he never told his children nor anyone else about the 1914 deed. Neither the notary who took the acknowledgment, nor the county clerk testified. The children did not learn of the execution when recordation of the deed until after their father's death when Rains solicited the quitclaim deed Rashaun StaggPage 4 of 5 157 Tex. 65, “69; 299 S.W.2d 287, **289; 1957 Tex. LEXIS 552, ***8 from them in 1952. J. J. Medlin, after he acquired the land from Powell, lived on and cultivated it and paid the taxes for thirty-three years. The brothers, C. H. Medlin and J. J. Medlin, were neighbors for years and visited each other many times. C.H. never told his brother of the 1914 deed to the children. If Medlin had caused the deed to be recorded with the intention of conveying title to his children he must have knowingly been guilty of perpetrating a fraud upon his subsequent grantee and permitting a brother likewise to be defrauded. ["*"9] The case of Ford v. Hackel, 124 Texas 402, 77 S.W. 2d 1043, is relied upon by petitioner, Thornton. The facts there in all material aspects run closely parallel to those in our case. Rutherford executed a deed of gift to a daughter and the deed was filed and recorded four days later. Five years later Rutherford conveyed by warranty deed for a valuable consideration an undivided one-half interest in the same land to another daughter. The grantor had continued to treat the land as his own, living on it and having many discussions about the land without disclosing that he had executed the first deed. Although the grantor lived for eighteen years after the date of the first deed, the daughter was not aware of the deed or the record of it until after his death. In Ford v. Hackel the court holds that although the evidence is wholly circumstantial, a fact issue is raised saying: "On the other hand, the fact that neither of the grantors ever apprised their daughter, Mrs. Hackel, of the instrument, or of the gift which it purports, together with the subsequent conduct of the grantors respecting the land, as shown above, including their act in deeding part of the land to another daughter, [***10] present a [*70] state of facts from which an inference may be fairly drawn that the grantors did not know that the instrument was recorded, and therefore did not authorize the recording of it. It is thus seen that the question of delivery of the instrument was one for determination by the jury. The contention of the plaintiffs in error is no evidence to show that the grantors authorized the instrument to be put of record, is overruled." The facts before us seem every whit as strong to raise a fact issue as they do in Ford v. Hackel. The respondent, Rains, seeks to distinguish the Ford case and to avoid its application here for the reason that the grantor, Medlin, in the deed to his children reserved the use of the property to himself for his lifetime, and later conveyed the fee simple title to another, whereas in the Ford case the grantor gave a fee simple title to his daughter and thereafter for a valuable consideration deeded one-half of the property to another daughter. The respondent argues that since the grantor, Medlin, retained a life estate which he had the right to enjoy and which he could convey, the execution of the 1916 deed would not necessarily conflict with [**11] or contradict the 1914 deed. In other words he says that the 1916 deed conveyed and only conveyed the life interest retained by the grantor. We think this makes no material distinction. Certainly both deeds conflict with each other; they are inconsistent and both cannot stand. The 1916 deed for a valuable consideration warranted the fee simple title to Powell. Respondents cite the case of Henry v. Phillips, 105 Texas 459, 151 S.W. 533, where it is said, that the testimony of a witness to the effect that after the date [**290] of the execution of the deed by the grantor he had listed the property for sale and offered to sell the tract was not admissible for the reason that it was hearsay evidence and in disparagement of the grantor's deed. No contention is made that the evidence in our case is hearsay and it is also noteworthy that Henry v. Phillips is not cited in Ford v. Hackel, decided some twenty-three years later. Furthermore, the cases are not in conflict. In Henry v. Phillips the grantor duly executed a deed, deposited it in a bank for safekeeping with instructions that it be delivered to the grantees upon grantor's death. This evidence was held by the court sufficient [***12] to constitute delivery of the deed as a matter of law, and the court went on to say that “what constitutes a delivery of a deed is a question of law, but whether there was in fact a delivery [*71] of the deed under consideration is a question of fact to be determined by the jury.” We are of the opinion that the holding in Ford v. Hackel is fairly applicable to the facts of this case and that there is evidence in this record to uphold the findings of fact made by the jury. The judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed. Associate Justice Norvell not sitting. Opinion delivered February 6, 1957. Dissent by: SMITH Dissent Mr. Justice Smith, joined by Justice Walker, dissenting. Rashaun StaggPage 5 of 5 157 Tex. 65, *71; 299 S.W.2d 287, **290; 1957 Tex. LEXIS 552, ***12 ON MOTION FOR REHEARING The dissenting opinion filed herein on July 11, 1956 is withdrawn, and the following dissent is substituted therefor: On further consideration of this case, | am still convinced that, considered in any such sense as would defeat the operative effect of the deed, there is no evidence to sustain the finding of the jury that C. H. Medlin did not intend to convey the land in question to his children. To defeat the operative effect of a [***13] deed which the grantor has caused to be recorded, it must be shown that the recording was induced by fraud, accident, or mistake, or that it was for some purpose other than to convey title to the named grantee. McCartney v. McCartney, 93 Texas 359, 55 S.W. 310; Koppeimann v. Koppelmann, 94 Texas 40, 57 S.W. 570. No such showing was made in this case. The type of evidence to which the majority refers is relevant on the issue of whether C. H. Medlin caused the deed to his children to be recorded and it was specifically so held in Ford v. Hackel, 124 Texas 402, 77 S.W. 2d 1043, but it was not relevant on the issue of whether C. H. Medlin intended the deed to operate as a conveyance of title to his children. | am of the opinion that there is evidence, under the rule of Ford v. Hackel, supra, that C. H. Medlin did not cause the deed to his children to be recorded, but that whether he did or did not do so was a fact issue; that the burden was on petitioner to request the submission of an issue inquiring whether C. H. Medlin caused the deed to be recorded, and that having failed to do so [*72] petitioner waived such ground of recovery. Rule 279, Texas Rules of Civil Procedure. \[***14] further contend that there is no evidence to support the jury finding that C. H. Medlin did not intend to convey the land to his children, and that judgment for petitioner cannot rightfully be rested on a conclusion that the evidence would support an answer, favorable to petitioner, to an unsubmitted issue. If we were at liberty to assume from the jury's answer to the submitted issue that it would also have answered, on the same evidence, that C. H. Medlin did not cause the deed to be recorded, we could disregard the submitted issue and the jury's answer thereto as immaterial. But we cannot indulge that assumption. Both issues are ultimate issues. A finding, supported by evidence meeting the test of Ford v. Hackel, supra, that C. H. Medlin did not cause the deed to be recorded would render immaterial any issue of his intention, but a finding that he caused it to be recorded would entitle petitioner to no relief or recovery in the absence of a further finding, supported by a type of evidence not in this record, that he did not intend the deed to operate as a conveyance. The latter possibility demonstrates, | think, that the submitted issue cannot be considered as embracing the [***15] issue [**291] of whether C. H. Medlin caused the deed to be recorded. It seems obvious that this case was tried on an erroneous theory and was submitted on an improper issue. | would therefore be inclined to remand the case for retrial, as we did in Benoit v. Wilson, 150 Texas 273, 239 S.W. 2d 792, and Eaton v. R. B. George Investments, 152 Texas 523, 260 S.W. 2d 587, if that course were open to this Court under the Rules. That course is not open to us. This Court may remand the cause to the trial court under Rule 505, Texas Rules of Civil Procedure, because it was tried on an erroneous theory, only when it has reversed the judgment of the Court of Civil Appeals on some other ground or when error is assigned in this Court to the failure of the Court of Civil Appeals to remand under Rule 434. Benoit v. Wilson, 150 Texas 273, 239 S.W. 2d 792, 798. We are not at liberty to reverse an errorless judgment of the Court of Civil Appeals. Chevalier v. Lanes, Inc., 147 Texas 106, 213 S.W. 2d 530, 535, 6 A.L.R. 2d 1045; Scott v. Walker, 141 Texas 181, 170 S.W. 2d 718, 722. The judgment of the Court of Civil Appeals should be affirmed. [*73] Associate Justice Walker joins in [***16] this dissent. Opinion delivered February 6, 1957. Second motion for rehearing overruled, March 27, 1957. End of Document Rashaun Stagg