Kristine Arlitt v. PILF Investments, Inc.; Sonesta Holdings, Inc.; Jon D. Lowe, Substitute Trustee; Riverside Financial Group, L.L.C.; Graham Weston, Indiv. and as President of Et.Al.; Elizabeth Cluck Weston, Indiv.; Elwood Cluck, doing business as Law Offices , Et Al.--Appeal from 225th Judicial District Court of Bexar County

No. 04-98-00035-CV
Kristine ARLITT,
Appellant
v.
Graham WESTON, et al.,
Appellee
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 96-CI-07792
Honorable Juan Gallardo, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: December 1, 1999

AFFIRMED IN PART; REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART

Facts and Procedural Background

This suit involves a dispute over legal and equitable title to real property located at 417 East Mandalay Drive, San Antonio, Texas ("Mandalay property"). The dispute arose out of a divorce proceeding between Elwood Cluck and Kristine Arlitt. During the divorce proceedings, Arlitt filed suit against Graham Weston, Elizabeth Cluck-Weston, PILF Investments, Inc., Sonesta Holdings, Riverside Financial Group, John Lowe as Substitute Trustee, and Graham Weston as President of PILF, Sonesta, and Riverside (The Weston defendants).(1) Arlitt sought declaratory judgment to declare title to the real property, to remove cloud from title to the real property, and injunctive relief precluding foreclosure of the property. Arlitt also sought damages arising out of causes of action for breach of contract, constructive trust, conversion, fraud, the Texas Debt Collection Act, Deceptive Trade Practices Act, civil conspiracy, fraudulent transfers, usury, and breach of fiduciary duty. The defendants answered and filed counterclaims against Arlitt and cross-claims against Elwood Cluck.

In its counterclaim and in its cross-claim against Cluck, Sonesta sought to recover on a promissory note executed by Arlitt and Cluck in the amount of $82,157.41 principal plus interest. Arlitt and Cluck originally executed the mortgage, secured by the Mandalay property, with I.C.A. Mortgage. I.C.A. eventually sold the note to Source One Mortgage. Sonesta purchased the mortgage from Source One, and Arlitt and Cluck subsequently defaulted. Sonesta first sought a judgment giving it the right to foreclose the Mandalay property according to the terms of the promissory note and Deed of Trust and then pursue judgment for deficiency. In the alternative, Sonesta sought judgment for judicial foreclosure, and, in the further alternative, judgment for the outstanding amount of the promissory note and accrued interest.

In its counterclaim against Arlitt, PILF sought judgment to remove cloud on the legal title to the Mandalay property and declare that PILF held legal title to and possession of the Mandalay property, as evidenced by a valid Quit Claim Deed it received when it purchased the property from the IRS to satisfy Arlitt's and Cluck's tax liens. In the event legal title was awarded to Arlitt, PILF alternatively sought judgment for $98,500 to satisfy the amount it paid the IRS for the Mandalay property. Also in the event Arlitt was awarded legal title, and in its cross-claim against Cluck, PILF, as parent company of Riverside, alternatively sought to recover on a debt it alleged Riverside loaned Arlitt and Cluck to pay addititonal joint income taxes between 1987 and 1991. PILF alleged Arlitt and Cluck owed $46,225.31 on this loan.

Elizabeth Cluck-Weston filed a counterclaim against Arlitt and a cross-claim against Cluck, in the alternative to PILF's claims. In the event Arlitt was awarded legal title to the Mandalay property, Elizabeth Cluck-Weston sought to recover a judgment for the funds she allegedly advanced Arlitt and Cluck to make late payments on their mortgage loan secured by the Mandalay property. Elizabeth Cluck-Weston alleged Arlitt and Cluck owed $15,986.92 in principal plus past due interest. Elizabeth Cluck-Weston sought recovery of this amount, interest, and attorney fees only in the event Arlitt was granted legal title.

All defendants filed a counterclaim against Arlitt based on violations of the Civil Practice and Remedies Code, alleging Arlitt's claims were made in bad faith and for purposes of harassment.

Sonesta and PILF filed motions for partial summary judgment on their counterclaims. The trial court granted PILF's motion for partial summary judgment, holding that PILF "held legal title to the Mandalay property" because the quit claim deed received from the IRS was valid. The trial court granted Sonesta's motion for partial summary judgment in part, holding that Sonesta was the holder of a promissory note and lien executed by Arlitt and Cluck secured by the Mandalay property. Finally, the trial court granted a motion for partial summary judgment filed by all of the defendants on Arlitt's conversion claim; granted summary judgment on the fraud claim as to all defendants; granted summary judgment on the breach of contract claim as to all defendants; granted summary judgment on the breach of fiduciary duty claim as to all defendants; granted summary judgment on the usury claim as to all defendants, except Sonesta and PILF; and, granted summary judgment on the negligence and gross negligence claims as to all defendants.

To complicate matters further, after the trial court entered its order on the summary judgment motions, Arlitt filed an amended petition alleging the same and additional causes of action against multiple new defendants, including Cluck. The trial court granted the new defendants' motion to sever, except Elwood Cluck's motion. Accordingly, the case proceeded to trial on the remaining claims of fraud against Elwood Cluck, conspiracy to defraud Arlitt of title to the Mandalay property against Cluck, Graham Weston, Elizabeth Cluck-Weston, PILF, Sonesta, and Riverside, usury against Sonesta and PILF, and conspiracy to commit usury against Cluck, Graham Weston, PILF, and Sonesta. In addition, the counterclaims brought by PILF, Sonesta, and Elizabeth Cluck-Weston proceeded to trial.

After Arlitt rested, the trial court awarded a directed verdict in favor of Elizabeth Cluck-Weston, Sonesta, and PILF on their counterclaims, holding that Sonesta was entitled to recover from Arlitt and Cluck $82,157.41 as the principal amount on the promissory note executed by Arlitt and Elwood Cluck, and prejudgment interest of $23,749.60, and awarded judgment for $5,822.44 for 1995 property taxes. The trial court awarded PILF, as parent of Riverside, judgment for $46,225.51 principal and $10,334.25 prejudgment interest. The trial court awarded Elizabeth Cluck-Weston judgment for $15,986.92 principal plus $9,334.61 prejudgment interest.

The jury returned a verdict in favor of Arlitt against Elwood Cluck, finding Cluck committed fraud with malice. The jury found in favor of PILF and Sonesta on Arlitt's usury claims; found in favor of Cluck, Graham Weston, PILF, and Sonesta on the conspiracy to commit usury claims; and, found in favor of Cluck, the Westons, PILF, Sonesta, and Riverside on the conspiracy to commit fraud claim. The jury assessed all costs and attorney fees against the parties incurring them.

On September 29, 1997, after the jury's verdict, the trial court entered an order severing Arlitt's claims against Elwood Cluck from those against the Weston defendants because the jury was deadlocked on the issue of exemplary damages against Elwood Cluck. On October 14, 1997, the trial court entered a revised final judgment as to the Weston defendants, excluding Elwood Cluck. In its revised final judgment, the trial court incorporated its previous severance order, mandated that Arlitt take nothing against PILF, Sonesta, Riverside, Graham Weston, and Elizabeth Cluck-Weston, and summarized its directed verdict in favor of Elizabeth Cluck-Weston, PILF, and Sonesta. The trial court then entered a judgment notwithstanding the verdict, awarding attorney fees to Elizabeth Cluck-Weston, PILF, and Sonesta on their counterclaims. The trial court issued a permanent injunction in favor of the defendants; awarded PILF legal title to and immediate possession of the Mandalay property; and issued sanctions against Arlitt and her attorney, Dan Rutherford. The revised final judgment in favor of the Weston defendants, excluding Cluck, is the subject of this appeal.

On December 4, 1998, this court ordered the appeal to proceed solely on the clerk's record due to Arlitt's failure to pay for the reporter's record. Absent a reporter's record, this court may only review Arlitt's points of error that may be evident from the clerk's record alone. See Tex. R. App. P. 37.3(c). Arlitt presents seventeen points of error.

Discussion

The first contention that must be addressed is Arlitt's second point of error, in which she argues the trial court erred by severing her cause of action against Cluck from the Weston defendants after the jury returned its verdict. Arlitt contends the postsubmission severance violated Tex. R. Civ. P. 41 and 302.(2) Arlitt contends severance was improper because the matters in controversy are not separable without unfairness to the parties. Arlitt argues that "the facts and issues related to liability on the part of the appellees are so interwoven with the fraud committed by Cluck as to be inseparable."

The trial court has broad discretion regarding the severance and consolidation of cases under Tex. R. Civ. P. 41. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). Accordingly, the trial court's decision to grant a severance will not be reversed unless it has abused its discretion. Id. A claim is properly severable if (1) the controversy involves more than one cause of action; (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted; (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues, and; (4) severing the claim will do justice, avoid injustice, and further the convenience of the parties and the court. Id. The controlling reasons for a severance are to do justice and to avoid prejudice, delay, and further inconvenience. Id.; Union City Body Co., Inc. v. Ramirez, 911 S.W.2d 196, 199 (Tex. App.-San Antonio 1995, no writ).

Rule 41 of the Texas Rules of Civil Procedure provides that

Parties may be dropped or added, or suits filed separately may be consolidated, or actions which have been improperly joined may be severed and each ground of recovery improperly joined may be docketed as a separate suit between the same parties by order of the court or motion of any party or on its own initiative at any stage in the action, before the time of submission to the jury or to the court if the trial is without a jury, on such terms as are just. Any claim against a party may be severed and proceeded with separately.

A literal interpretation of Rule 41 implies that only complaints about improper joinder must be made prior to the time of submission to the jury. Otherwise, the general rule that "[a]ny claim against a party may be severed and proceeded with separately" applies, and the motion may be made at any time. See Johnson v. J. Hiram Moore, Ltd., 763 S.W.2d 496, 502 (Tex. App.-Austin 1988, writ denied)(citing law permitting severance of interlocutory summary judgment as authority for its holding that severance after jury verdict was not erroneous). After Johnson, however, the Supreme Court interpreted Rule 41 to mean all

[p]arties and actions may be severed 'at any stage of the action, before the time of submission to the jury, on such terms as are just.' Tex. R. Civ. P. 41. Rule 41 does not 'permit a trial court to sever a case after it has been submitted to the trier of fact.'

State Dept. of Highways and Public Trans. v. Cotner, 845 S.W.2d 818, 819 (Tex. 1993)(citing Coalition of Cities for Affordable Utility Rates v. Public Utility Comm'n, 798 S.W.2d 560, 564 (Tex. 1990), cert. denied, 499 U.S. 983 (1991)). Accordingly, a trial court abuses its discretion by granting a motion to sever filed after the jury verdict, regardless of the four-pronged test of severability. See Cotner, 845 S.W.2d at 819; Guaranty Federal Savings Bank, 793 S.W.2d. at 658. However, the Supreme Court allowed an exception to this strict rule under Texas Rule of Civil Procedure 320, holding that, notwithstanding the prohibition of Rule 41 against postsubmission severances, the trial court may grant a partial new trial "on part of the matters in a case only if 'such part is clearly separable without unfairness to the parties'" and provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested. Cotner, 845 S.W.2d at 819 (citing Tex. R. Civ. P. 320).

In the present case, the trial court effectively granted a partial new trial by severing Arlitt's fraud claim against Cluck from her claims against the remaining defendants. The trial court did not order a new trial on unliquidated damages alone, but instead ordered that the severed case "shall contain all remaining claims of Plaintiff Kristine Arlitt and Defendant Elwood Cluck, either one against the other." By severing the cases and assigning a new cause number and style name to Arlitt's case against Cluck, the trial court effectively ordered a new trial on the issues of liability and damages on Arlitt's fraud claim against Cluck. Therefore, the trial court's severance and order of partial new trial fits within the exception allowed under Tex. R. Civ. P. 320. To determine whether the severance, and effective new trial, was proper, this court must determine whether Arlitt's fraud claim against Cluck was clearly seperable from the remainder of the lawsuit without unfairness to the parties. See Cotner, 845 S.W.2d at 819; Tex. R. Civ. P. 320.

The remainder of the lawsuit that is the subject of this appeal includes: (1) Arlitt's usury and conspiracy to commit fraud claims against the remaining defendants that were presented to the jury and decided in the remaining defendants' favor; (2) Arlitt's claims against the remaining defendants that were decided by summary judgment: fraud, conversion, breach of contract, breach of fiduciary duty, negligence, and gross negligence, (3) the remaining defendants' counterclaims against Arlitt, decided pretrial by summary judgment, and (4) the remaining defendants' counterclaims against Arlitt that were decided by directed verdict.

Arlitt's pleadings allege Cluck committed fraud by representing to Arlitt that all mortgage payments on the Mandalay property were current, all IRS taxes affecting her interest in the Mandalay property were paid, the IRS tax claim had been satisfied, and all ad valorum taxes were current. Arlitt alleged independent actions committed by the Weston defendant that constituted fraud, namely, failure to inform her of their acquisition of the title and mortage lien note on the Mandalay property. Although tied up in the same saga, Arlitt's allegations of fraud against Cluck are clearly separable from her allegations of fraud, usury, conversion, breach of contract, breach of fiduciary duty, negligence, and gross negligence against the remaining defendants. Arlitt's fraud allegations against Cluck are centered on independent actions taken by him, not affected by the actions alleged in her severed claims against the remaining defendants. Severance and partial new trial did not result in unfairness to the parties, but allowed for avoidance of further delay and inconvenience.

Arlitt's second point of error is overruled.

In her first point of error, Arlitt contends the trial court erred by rendering a deficiency judgment in favor of Sonesta, even though it had not yet sought foreclosure of the Mandalay property. Arlitt contends that, by law, Sonesta is entitled to such deficiency judgment only after it exhausts the security. Consequently, Arlitt contends the deficiency judgment was premature, and in error.

Arlitt and Cluck executed a promissory note eventually held by Source One Mortgage and secured by the Mandalay property. Arlitt and Cluck defaulted on the note, and Source One was in the process of foreclosing on the Mandalay property when the IRS seized the Mandalay property on July 11, 1994. The IRS proceeded to sell the property to satisfy outstanding personal and business tax obligations of Cluck from 1984, outstanding personal tax obligation of Cluck and Arlitt from 1992, and employee withholding tax obligations of Cluck's law practice from prior years. The outstanding tax obligations totaled $98,500. On September 6, 1994, at the IRS auction of the Mandalay property, PILF, through Graham Weston, satisfied the outstanding tax obligations, paying $98,500 to the IRS, and received in return a Quit Claim Deed of Trust on the Mandalay property. Graham Weston later discovered the foreclosure proceedings by Source One, and, through Sonesta, purchased the mortgage lien note to prevent forfeiture of the Mandalay property through this foreclosure.

While Arlitt is correct in her argument that a valid foreclosure sale must occur before a real estate note holder is entitled to a deficiency judgment,(3) her argument must fail because Sonesta was not awarded a deficiency judgment. Sonesta was awarded a judgment for the amount owed on a debt. The holder of a note secured by real property may sue on the note and recover a personal judgment against the maker without first resorting to the security. See Williams v. Henderson, 580 S.W.2d 37, 39 (Tex. Civ. App.-Houston [1st Dist.] 1979, no writ). Sonesta first sought entry of a judgment giving it the right to foreclose on the Mandalay property and sue for any deficiency. However, the trial court awarded an alternatively plead source of relief and awarded a judgment in the amount of the debt owed. Accordingly, the judgment was not a deficiency judgment. Because the court held by summary judgment that Sonesta was the holder of the note executed by Arlitt and Cluck, and the note was in default, and because this court must presume that such debt owed was proven at trial, the trial court did not err by awarding judgment to Sonesta for the amount owed on the debt. See id.

Arlitt also contends the trial court erred by awarding judgment in the amount of $5,822.44 to Sonesta for reimbursement of 1995 property taxes because the trial court held the 1994 IRS sale of the property to PILF was valid, and PILF held legal title to the Mandalay property. Because PILF purchased the property from the IRS subject to any existing or unpaid liens, including property taxes, Arlitt contends she was no longer responsible for the taxes following the 1994 IRS sale. Arlitt's contention is correct.

Property taxes "are the personal obligation of the person who owns or acquires the property on January 1 of the year for which the tax is imposed." Tex. Tax Code Ann. 32.07 (Vernon 1992). The "owner" of property for tax purposes is the person holding legal title to property. Childress County v. State, 92 S.W.2d 1011, 1015 (1936); General Elec. Capital Corp. v. City of Corpus Christi et al., 850 S.W.2d 596, 599 (Tex. App.-Corpus Christi 1993, writ denied).

As the holder of legal and equitable title to the Mandalay property in 1995, PILF was responsible for the property tax obligations. See Childress County, 92 S.W.2d at 1015.

Arlitt's first point of error is overruled in part and sustained in part. The trial court's judgment against Arlitt for 1995 property taxes was in error and is reversed and rendered as to this assessment.

In her third point of error, Arlitt complains the trial court erred by awarding more than one alternatively plead request for relief by awarding PILF clear title to the Mandalay property and judgment for $46,225.51, and awarding Elizabeth Cluck-Weston a judgment in the amount of $15,986.92.

In their joint counterclaim pleading, PILF and Elizabeth Cluck-Weston separately explained the basis for their causes of action and explicitly listed their requested relief and alternative requests for relief. PILF first listed its claims. Elizabeth Cluck-Weston's counterclaim and request for relief followed PILF's. While Elizabeth Cluck-Weston's counterclaim was separate from PILF's, it was not independent of PILF's counterclaim and requests for relief. Elizabeth Cluck-Weston requested relief in the alternative by stating in her pleading, "Thus, in the unlikely event plaintiff is granted title to the Mandalay property, then Elizabeth Cluck-Weston seeks recovery. . . ." In the section entitled "Prayer for Relief," the parties enumerated their requests for relief again by listing them and their alternative requests. In the listing, Elizabeth Cluck-Weston's request for relief followed PILF's requests and alternate requests. Elizabeth Cluck-Weston's request for relief was preceded by the words "in the alternative."

A judgment should conform to the pleadings; therefore, this court will view the pleadings as a whole. See Khalaf v. Williams, 814 S.W.2d 854, 858 (Tex. App.-Houston [1st Dist.] 1991, no writ). While Elizabeth Cluck-Weston's claims and request for relief are pleaded separately from PILF's requests, her request for relief in the body of the pleading and in the enumerated listing of requests for relief were pleaded in the alternative, and the determinate action did not occur. PILF was awarded legal title to the Mandalay property. Accordingly, Elizabeth Cluck-Weston's counterclaim pleading, when read completely, does not support the trial court's judgment award in regard to Elizabeth Cluck-Weston.

In PILF's counterclaim pleading, it alleged it held a valid quit claim deed through its purchase of the Mandalay property in the IRS auction. PILF requested a judgment declaring such quit claim deed to be valid and awarding legal title to PILF. Alternatively, and in the event the court awarded legal title to Arlitt, PILF requested judgment in the amount it paid the IRS at auction for the Mandalay property, $98,500. Also, in the event Arlitt was awarded legal title to the Mandalay property, PILF sought recovery of $46,225.51 that its subsidiary, Riverside, loaned Arlitt and Cluck to pay for joint income taxes for 1987 through 1991. PILF requested the alternative recovery of the Riverside loan amount in both the body of the pleading and in the prayer for relief. Because PILF requested recovery of the Riverside loan only in the event Arlitt was awarded legal title, the trial court's judgment awarding $46,225.51 does not conform to the pleadings when read as a whole. PILF was awarded legal title, therefore, the trial court's award of the alternative request of $46,225.51 on behalf of Riverside was improper.

Arlitt's third point of error is sustained. The trial court's judgment awarding PILF judgment in the amount of $46,225.51 and awarding Elizabeth Cluck-Weston judgment in the amount of $15,986.92 is reversed and rendered.

In her fourth and fifth points of error, Arlitt contends her due process rights have been violated by the trial court's assessment of an excessive supersedeas bond and by this court's order that she proceed without the reporter's record. Arlitt contends that she has been enjoined from selling assets, even separate property, until the divorce settlement between her and Cluck is final. Because the trial court has failed to lift this injunction, Arlitt contends she has been rendered unable to pay the supersedeas bond and unable to pay for the reporter's record. Arlitt contends the trial court has prevented meaningful review of this case, or access to the courts, by preventing her from raising the capital necessary to proceed and, thus, violating her due process rights.

Following trial, the trial court ordered Arlitt to post a $425,000 supersedeas bond to prevent PILF from taking possession of the Mandalay property. Arlitt did not post the bond. Because Arlitt failed to pay for the reporter's record, estimated at a cost of $22,000, this court ordered her appeal to proceed on the clerk's record alone.

The Texas Rules of Appellate Procedure provide a method for appellants to suspend the execution of judgment by filing a "good and sufficient bond," by making a cash deposit, or by providing alternate security ordered by the court. Tex. R. App. P. 24.1. In the event the appellant attempts to suspend the judgment by filing a supersedeas bond, the rule provides for the amount of the bond. Tex. R. App. P. 24.2. The intent of the rule is to enable the appellee to collect the judgment against the appellant and his sureties if the judgment is affirmed. Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 657 (Tex. App.-Houston [14 Dist.] 1987, writ denied); Mudd v. Mudd, 665 S.W.2d 128, 130 (Tex. App.-San Antonio 1983, no writ). This court may review the excessiveness of the amount of the security or the trial court's exercise of discretion in assessing the amount and type of security only upon a motion filed in this court by one of the parties. Tex. R. App. P. 24.4; see TransAmerican Nat. Gas Corp. v. Finkelstein, 911 S.W.2d 153, 156 (Tex. App.-San Antonio 1995, no writ).

Arlitt filed a motion in this court requesting reduction of the amount of the assessed supersedeas bond. This court denied the motion. Arlitt is not entitled to additional review of the trial court's assessment of supersedeas bond. However, to the extent Arlitt contends her constitutional rights have been violated, we will review her complaint.

The Texas Constitution guarantees all litigants the right to redress their grievances, or "the right to their day in court." LeCroy v. Hanlon, 713 S.W.2d 335, 341 (Tex.1986). The "open courts provision" of the Texas Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

Tex. Const. art. I, 13.

No excessive bail, fine, or punishment has been imposed upon Arlitt. By due process of law an amount has been adjudged to be owed to PILF, Sonesta, and Elizabeth Cluck-Weston and PILF was awarded legal title to the Mandalay property. It does not violate the Constitution of this State for our courts to protect that judgment. It is, in fact, consistent with our Constitution that the successful litigant's right to property should be afforded due protection by the courts that determined that property right. The trial court did not assess the supersedeas bond beyond the constraints of Rule 24.3. We, therefore, hold that Rule 24 of the Texas Rules of Appellate Procedure is not unconstitutional as applied in this case.

To the extent Arlitt complains this court violated her right to access to the courts by ordering her to proceed on the clerk's record alone, her argument also fails. A party may proceed on appeal without advance payment of costs if the party files an affidavit of indigence with or before the notice of appeal to receive a free reporter's record. Tex. R. App. P. 20.1(c). Arlitt did not file an affidavit of indigence prior to or at the time she filed her notice of appeal and, therefore, was not entitled to proceed without payment for the reporter's record. See Ford v. Whitehead, No. 04-98-00668-CV (Tex. App.-San Antonio, March 24, 1999, n.w.h.), 1999 WL 155952. On October 2, 1998, and November 18, 1998, this court ordered Arlitt to provide written proof that she either paid the reporter's fee, made arrangements to pay the reporter's fee, or was entitled to appeal without paying the fee. Arlitt failed to respond. Arlitt was not denied access to meaningful review or access to the appellate court.

Arlitt's fourth and fifth points of error are overruled.

In her sixth point of error, Arlitt complains that the trial court's judgment is defective on its face because it recites that the trial court granted a directed verdict on PILF's, Elizabeth Cluck-Weston's, and Sonesta's counterclaims after she rested and before those parties put on any evidence.

Arlitt's complaint fails because a directed verdict is proper if the evidence conclusively establishes a party's right to judgment as a matter of law. See Orozco v. Orozco, 917 S.W.2d 70, 73 (Tex. App.-San Antonio 1996, writ denied). Therefore, a defendant may urge a motion for directed verdict on a counterclaim after the plaintiff has rested and before the defendant presents any evidence. If granted, such action is proper if reasonable minds can draw only one conclusion from the evidence presented. Wedgeworth v. Kirskey, 985 S.W.2d 115, 116 (Tex. App.-San Antonio 1998, writ denied); Cadle Co. v. Bankston & Lobingier, 868 S.W.2d 918, 921 (Tex. App.-Fort Worth), writ denied 893 S.W.2d 949 (1994), cert. denied, 516 U.S. 810 (1995). Absent a reporter's record, this court cannot determine whether the evidence presented established entitlement to the directed verdict as a matter of law, and must presume that the evidence supported the ruling and judgment of the trial court. See Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996). In any event, the judgment is not defective on its face. See Wedgeworth, 985 S.W.2d at 116; Cadle Co., 868 S.W.2d at 921.

Arlitt's sixth point of error is overruled.

In her seventh point of error Arlitt contends the trial court erred by refusing to submit a jury question on the issue whether the debts incurred by Cluck were joint debts. In her eighth point of error Arlitt contends the trial court erred by granting a directed verdict on PILF's, Elizabeth Cluck-Weston's, and Sonesta's counterclaims because the evidence presented raised a fact issue. In her tenth point of error, Arlitt contends the trial court erred by refusing to submit a jury question on the issue whether Graham Weston and Elizabeth Cluck-Weston held a confidential or special relationship with her, establishing a fiduciary duty.

This court may not analyze the substance of these points of error without reviewing the reporter's record. In the absence of a complete record, we presume that the evidence supports the trial court's conclusions. Feldman, 960 S.W.2d at 614; Villanueva v. Office of the Atty. Gen., 935 S.W.2d 953, 956 (Tex. App.-San Antonio 1996, writ denied); Tex. R. App. P. 37.3(c). Arlitt's seventh, eighth, and tenth points of error are overruled.

In her ninth point of error Arlitt contends the trial court erred by granting partial summary judgment in favor of the Weston defendants on her claims of fraud and breach of fiduciary duty. Arlitt also contends the trial court erred by failing to allow her to amend her pleadings prior to its award of partial summary judgment on these claims.

The movant of a motion for summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Accordingly, a defendant moving for summary judgment must show, as a matter of law, the plaintiff has no cause of action as pleaded. Leir Sieglar, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); GNG Gas Sys., Inc. v. Dean, 921 S.W.2d 421, 426 (Tex. App.-Amarillo 1996, writ denied). The defendant need not disprove all the elements of the plaintiff's cause of action, only one. See e.g. Walker v. Harris, 924 S.W.2d 375, 378 (Tex. 1996)(defendant negated duty); Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 481-82 (Tex. 1995)(defendant negated causation). In deciding whether a disputed material fact issue precludes summary judgment, we take as true all evidence favoring the non-movant. See Nixon, 690 S.W.2d at 548-49. Every reasonable inference from the evidence will be indulged in favor of the non-movant, and any doubts will be resolved in its favor. See id.; Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984).

The Weston defendants' motion for partial summary judgment, filed on January 14, 1997, refers to Arlitt's third amended petition. Arlitt's response to the motion for partial summary judgment refers to her fourth amended petition, also filed on January 14, 1997. A party must obtain leave of court before filing an amended pleading within seven days of trial. See Tex. R. Civ. P. 63. Leave shall be granted absent a showing of surprise. Id. Rule 63 applies to summary judgment hearings, but we are to construe the rule liberally. See Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490-91 (Tex. 1988). Unless the record shows the court denied leave to file, we presume the trial court considered the amended pleading. Id. The record does not reflect a motion for leave to file an amended pleading, a motion to strike the pleading based on its late filing, or a ruling on either. Rule 166a(c) provides that the trial court should render a summary judgment on the pleadings on file at the time of the hearing. See Tex. R. Civ. P. 166a(c). Because it appears that the fourth amended petition was before the trial court at the time the defendants' summary judgment motion was considered, we will presume the trial court considered the amended petition.

In her fourth amended petition, Arlitt alleged the Weston defendants committed fraud by making false misrepresentations to her regarding the IRS tax claims and the status of the mortgage payments on the Mandalay property. Specifically, Arlitt alleged Cluck, as a representative of the Weston defendants, failed to disclose certain information to her. Effectively, this petition alleged the Weston defendants committed fraud by misrepresentations and committed conspiracy to commit fraud through Cluck's failure to disclose certain information. Arlitt alleged that only Elizabeth Cluck-Weston committed breach of fiduciary duty, as an employee of Elwood Cluck's law firm, by appropriating confidential information for her personal financial benefit and by participating in fraudulent activity against Arlitt.

The Weston defendants' summary judgment evidence contained (1) a deposition excerpt from Arlitt, in which she admitted that the Weston defendants made no false representations to her and that she never relied on any representation made by them; (2) an affidavit from Graham Weston in which he attests he made no misrepresentations as alleged in the petition, and; (3) an affidavit from Elizabeth Cluck-Weston in which she attests she made no misrepresentations as alleged in the petition and she never appropriated confidential information for her personal benefit. This summary judgment evidence was sufficient to show, as a matter of law, Arlitt had no cause of action for fraud or breach of fiduciary duty as pleaded.(4)

Arlitt responded to the motion for summary judgment with an affidavit in which she attests that Graham Weston and Elizabeth Cluck-Weston concealed from her certain information, most importantly, that (1) they had purchased the Mandalay property from the IRS; (2) they had acquired the mortgage lien note; (3) they had entered into numerous business relationships and partnerships with Cluck; (4) the IRS had seized the Mandalay property and was planning to sell it. The response also included a multitude of other documents evidencing the business transactions of the defendant parties. This evidence does not show any existence of a material issue of fact in relation to Arlitt's fraud allegations against the Weston defendants regarding the pleaded material misrepresentations, nor does it raise a fact issue as to her claim of breach of fiduciary duty against Elizabeth Cluck-Weston. See Welder, 985 S.W.2d at 174-75. Because Arlitt's response failed to show the existence of a fact issue in relation to the fraud cause of action as pleaded or the breach of fiduciary duty, the trial court did not err by granting partial summary judgment on the allegations of fraud and breach of fiduciary duty.

In her brief, Arlitt contends that she established a valid cause of action for fraud by concealment in her response to the motion for summary judgment, and she submitted competent summary judgment evidence in support thereof. Arlitt contends she should have been allowed to amend her pleading to conform to her new allegations prior to the trial court's grant of the partial summary judgment. In this argument, Arlitt assumes that she can raise a valid cause of action in a response to a motion for summary judgment. A cause of action can only be raised in a petition or an amended petition. In the event a party wishes to assert a new cause of action after a motion for summary judgment has been filed, the party may file an amended petition, and the summary judgment movant may respond to the new allegations prior to the hearing on the motion for summary judgment. See Johnson v. Rollen, 818 S.W.2d 180, 183 (Tex. App.-Houston [1st Dist.] 1991, no writ). In the event a party wishes to assert a new cause of action after the summary judgment hearing, the party may do so only upon permission of the court. Tex. R. Civ. P. 166a(c). In the absence of compliance with Rule 166a(c)'s requirement of "permission" to file additional pleadings raising new causes of action, the trial court is limited to reviewing only those pleadings on file at the time of the summary judgment hearing to determine if plaintiff plead a viable cause of action. Leinen v. Buffington's Bayou City Service Co., 824 S.W.2d 682, 685 (Tex. App.-Houston [14th Dist.] 1992, no writ).

As in Leinen, there was nothing in the record to show that Arlitt sought or obtained leave of court to file an amended petition raising new allegations of fraud, or even brought it to the attention of the court so it could be considered at the time of the hearing on the motion for summary judgment. See id. Therefore, the trial court did not abuse its discretion by refusing to consider a new cause of action raised in Arlitt's response to the motion for summary judgment. Id.

Arlitt's ninth point of error is overruled.

In her eleventh point of error Arlitt contends the trial court erred by dismissing her breach of fiduciary duty claims against the appellees and in failing to submit a jury question of confidential and special relationship.

As discussed above, the trial court did not err by granting summary judgment on the only breach of fiduciary duty claim alleged against Elizabeth Cluck-Weston. In the absence of a complete record, we presume that the evidence supports the trial court's decision to exclude a jury question on the issue of fiduciary duty in relation to the other defendants. See Feldman, 960 S.W.2d at 614; Tex. R. App. P. 37.3(c). Arlitt's eleventh point of error is overruled.

In her twelfth point of error, Arlitt contends the trial court erred by failing to find Graham Weston, Elizabeth Cluck-Weston, and PILF guilty of constructive fraud as a matter of law. "[C]onstructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests." Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964). Fiduciary duties arise as a matter of law in certain formal relationships, including attorney-client, partnership, and trustee relationships. See Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988) ("As a fiduciary, an attorney is obligated to render a full and fair disclosure of facts material to the client's representation."); Johnson v. Peckham, 120 S.W.2d 786, 788 (Tex. 1938) (partners owe each other a fiduciary duty requiring full disclosure); Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996) ("Trustees and executors owe beneficiaries a fiduciary duty of full disclosure of all material facts known to them that might affect the beneficiaries' rights") (internal brackets and quotations omitted). However, certain informal relationships may give rise to a fiduciary duty. See, e.g., MacDonald v. Follett, 180 S.W.2d 334 (Tex. 1944). Such informal fiduciary relationships have also been termed "confidential relationships" and may arise "where one person trusts in and relies upon another, whether the relation is a moral, social, domestic or merely personal one." Fitz-Gerald v. Hull, 237 S.W.2d 256, 261 (Tex. 1951). Because not every relationship involving a high degree of trust and confidence rises to the stature of a formal fiduciary relationship, the law recognizes the existence of confidential relationships in those cases "in which influence has been acquired and abused, in which confidence has been reposed and betrayed." Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex. 1980). The existence of a confidential relationship is usually a question of fact. See MacDonald, 180 S.W.2d at 339; Schiller v. Elick, 240 S.W.2d 997, 1000 (1951).

Because the existence of a fiduciary relationship that is requisite to a finding of constructive fraud is a question of fact for the jury, Arlitt's contention fails. In the absence of a complete record, we presume that the evidence, or lack of evidence, supports the trial court's decision to exclude a jury question on the issue of fiduciary duty and constructive fraud. See Feldman, 960 S.W.2d at 614; Tex. R. App. P. 37.3(c). Arlitt's twelfth point of error is overruled.

In her fourteenth point of error Arlitt contends the trial court erred by finding appellees' judgments against Cluck to have priority over her judgments because the appellees committed constructive fraud as a matter of law. In light of our discussion in relation to Arlitt's twelfth point of error, this argument fails. Arlitt's fourteenth point of error is overruled.

In her thirteenth point of error Arlitt contends the trial court erred by failing to hold Graham Weston, Elizabeth Cluck-Weston, and PILF jointly and severally liable for the $100,000 awarded to her as damages for Elwood Cluck's fraud. Arlitt further argues that in the event exemplary damages are awarded, these parties should be held jointly and severally liable for exemplary damages as well.

Arlitt's argument is without merit. The jury found that Graham Weston, Elizabeth Cluck-Weston, and PILF did not commit conspiracy to commit fraud and awarded damages to Arlitt to compensate her for Cluck's fraud committed against her. Arlitt can establish no basis to hold these parties jointly and severally liable for the damages awarded to Arlitt in relation to her fraud claim against Cluck. In any event, a new trial has been granted on this issue.

Arlitt's thirteenth point of error is overruled.

In her fifteenth point of error Arlitt contends the trial court abused its discretion by issuing discovery sanctions after the conclusion of trial for document destruction that occurred prior to trial. Arlitt argues that the defendants' failure to obtain a pre-trial ruling on the discovery dispute waived any claim for sanctions.

Prior to trial, the Weston defendants filed a pretrial motion for discovery sanctions based on allegations that Arlitt destroyed evidence. The trial court deferred its ruling on this motion, concluding that any ruling prior to trial would affect the jury's verdict on the contested fact question whether Arlitt had possession of the "Notice of Seizure" and could be construed as a comment on the weight of the evidence. After the jury reached its verdict in the case, the trial court entered its ruling on the pretrial motion for sanctions. Based on the jury's finding that Arlitt did have possession of the "Notice of Seizure" and its own conclusion that Arlitt destroyed the document, the trial court ordered monetary sanctions of $5,000.

When a trial court finds that a party has abused the discovery process, it may impose an appropriate sanction. Tex. R. Civ. P. 215(3). But, sanctions imposed under Rule 215 must be just under the circumstances. Tex. R. Civ. P. 215(2)(b); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). When determining whether the sanctions a trial court imposes are just, we consider two factors. First, we consider whether there is a direct relationship between the offensive conduct and the sanctions. TransAmerican, 811 S.W.2d at 917. This analysis necessarily requires determining whether the underlying conduct actually constitutes an abuse of the discovery process. Second, we consider whether the sanctions are excessive. Id. We review the trial court's imposition of discovery sanctions under an abuse of discretion standard. See Bodnow Corp. v. City of Hondo, 721 S.W.2d 839, 840 (Tex. 1986); Humphreys v. Meadows, 938 S.W.2d 750, 751 (Tex. App.-Fort Worth 1996, writ denied). We will not disturb the trial court's ruling unless it acted without reference to any guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

There is a limitation upon a party's right to seek sanctions for discovery abuse. The failure to obtain a pretrial ruling upon discovery disputes that exist before the commencement of trial constitutes a waiver of any claim for sanctions based upon that conduct. Remington Arms Co., Inc. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993); See Olney Savings & Loan Ass 'n v. Farmers Market of Odessa, Inc., 764 S.W.2d 869, 871 (Tex. App.-El Paso 1989, writ denied); 3 Roy W. McDonald, Texas Civil Practice 17.9. However, this rule does not mean that no trial court may impose discovery sanctions posttrial for pretrial discovery abuse. See Remington, 850 S.W.2d at 170. Such a rule would absolutely bar imposition of sanctions for discovery abuse revealed for the first time during or after the trial. See id. If pretrial discovery abuse is not revealed until after the trial has begun, or even after trial, a party cannot be said to have waived a claim for sanctions. id.

Remington gives a trial court discretion to carry a pretrial motion for discovery sanctions until after trial. The trial court's decision to defer its ruling to avoid affecting the jury verdict on related issues was a prudent one.

Next, this court must determine whether the discovery sanction imposed was just under the circumstances. See TransAmerican, 811 S.W.2d at 917. Because we have no reporter's record, this court must assume that the evidence showed Arlitt abused the discovery process and supported the jury verdict that she had possession of the "Notice of Seizure." The trial court assessed a monetary sanction of $5,000, which held a direct relationship to the offensive conduct. The amount was not excessive. Therefore, the trial court did not abuse its discretion by assessing monetary discovery sanctions against Arlitt.

Arlitt also argues that the question submitted to the jury regarding whether she destroyed certain evidence was ambiguous and did not give a definite conclusion from which the trial court could assess discovery sanctions. Her argument must fail. The clerk's record does not show that Arlitt objected to the questions as submitted to the jury to preserve this error. And, without a reporter's record, we must assume that the evidence supported the verdict.

Arlitt's fifteenth point of error is overruled.

In her sixteenth and seventeenth points of error, Arlitt contends the trial court had no jurisdiction to award a judgment non obstante verdicto (j.n.o.v.) for attorney fees to PILF, Sonesta, and Elizabeth Cluck-Weston.

The jury was asked what amount would be a reasonable fee for Arlitt's and for the Weston defendants' attorney related to different aspects of trial preparation, the trial, and any possible appeal. The jury returned an answer of $0 for each. Later, the trial court entered a j.n.o.v., awarding attorney fees to PILF, Sonesta, and Elizabeth Cluck-Weston, "jointly and severally," against Arlitt and Cluck in the amount of $180,000 for preparation and presentation of the case to the jury, $35,000 for a successful appeal to this court, $20,000 for application of writ of error to the Supreme Court, and $10,000 for successful appeal to the Supreme Court.

A court may enter a j.n.o.v. only when a directed verdict would have been proper. Tex. R. Civ. P. 301; Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex. 1967). A directed verdict is proper when

no probative evidence exists to raise a fact issue on the material questions presented. Sibai v. Wal-Mart, Stores, Inc., 986 S.W.2d 702, 705 (Tex. App.-Dallas 1999, no writ). In reviewing grant of a directed verdict, the reviewing court must consider all the evidence in the light most favorable to the party against whom the trial court directed a verdict and disregard all contrary evidence and inferences. Id.

The general rule in Texas regarding attorney fees is that each litigant must compensate his own attorney. Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964). Recovery of attorney fees from an opposing party is allowed, however, when a statute or a contract between the parties authorizes such recovery. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914, 915 (Tex. 1967). Any award of attorney fees, pursuant to statute or under common law, is within the discretion of the trial court. Absent a showing of an abuse of discretion, the award or failure to award fees will not be disturbed on appeal. Simms v. Lakewood Village Property Owners Ass'n, Inc., 895 S.W.2d 779, 787 (Tex. App.-Corpus Christi 1995, no writ); Houston Lighting & Power Co. v. Dickinson Indep. Sch. Dist., 641 S.W.2d 302, 311 (Tex. App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.).

The Texas Civil Practice and Remedies Code provides for recovery of attorney fees under specific parameters. A party may recover attorney fees under Section 37.009 in any proceeding for declaratory judgment. Tex. Civ. Prac. & Rem. Code 37.009. The award or denial of attorney fees under Section 37.009 is within the sound discretion of the trial court. See Redwine v. AAA Life Ins. Co., 852 S.W.2d 10, 17 (Tex. App.-Dallas 1993, no writ). The Declaratory Judgment Act is not available, however, to settle disputes already pending before a court. Id. Therefore, an award of attorney fees on a counterclaim brought under the Act that presents no new controversies, but is brought solely to pave the way for an attorney-fee award is improper. See id.; John Cheznik Buick Co. v. Friendly Chevrolet Co., 749 S.W.2d 591, 594 (Tex. App.-Dallas 1988, writ denied).

Other claims upon which an attorney fee award may be statutorily predicated are expressly listed in 38.001. Section 38.001 provides for recovery of attorney fees in suits founded on an oral or written contract. Tex. Civ. Prac. & Rem. Code 38.001(8)(Vernon 1986). To recover attorney fees pursuant to Chapter 38, a party must (1) prevail in the cause of action for which attorney fees are recoverable under the chapter, and (2) recover damages. See Green Int'l Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). In addition, recovery of attorney fees under the statute requires: 1) representation by an attorney; 2) presentment of the claim to the opposing party or a representative of the opposing party; and 3) failure of the opposing party to tender payment of the just amount owed before the expiration of thirty days from the day of presentment. Id. 38.001-.002; New Amsterdam Casualty Co., 414 S.W.2d at 915; Sikes v. Zuloaga, 830 S.W.2d 752, 753 (Tex. App.-Austin 1992, no writ). Because the defendants sought an award of attorney fees under different chapters of the Texas Civil Practice and Remedies Code and for different reasons, we will analyze the award separately, although it was awarded "jointly and severally."

Sonesta

Sonesta pleaded for recovery of attorney fees pursuant to Section 38.001(8) of the Texas Civil Practice and Remedies Code, as a suit founded on a written contract. The written contract that forms the basis of this award is the original mortgage lien note. The note provided that in the event the debtor fails to pay as required, the Note Holder (Sonesta) has the "right to be paid back by [the debtor] for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees."

Arlitt contends that under the contract terms, Sonesta was only entitled to attorney fees in the event it sued to recover on the debt owed, but not in a suit to try title. Because the suit was not a valid collection attempt on a debt owed, but a suit to declare title, Arlitt contends the note terms did not allow for the recovery of attorney fees.

Arlitt's contention is based upon her arguments in her first point of error, in which she argues that a holder of a real estate lien note cannot sue on the note without first foreclosing on the security. Because Sonesta did not first foreclose on the property, Arlitt contends this is a suit to try title, not a suit on a debt owed. As discussed earlier, this contention is false, and Sonesta's counterclaim was a valid action on a debt owed. The note terms allow for the recovery of attorney fees to enforce the payment of the note. Therefore, Sonesta was entitled to recover attorney fees under Section 38.001(8) pursuant to the mortgage lien contract. In the absence of a reporter's record, this court must presume that Sonesta affirmatively established its entitlement to attorney fees.

The trial court did not err by awarding attorney fees to Sonesta pursuant to Section 38.001(8) of the Texas Civil Practice and Remedies Code by j.n.o.v.

PILF

PILF filed a counterclaim under the Declaratory Judgment Act, Section 37.009 of the Tex. Civ. Prac. & Rem. Code, seeking declaration of legal and equitable title to the Mandalay property. PILF sought to recover attorney fees under this counterclaim. However, PILF's counterclaim presented no new controversy, and the issue of declaration of title was already pending before the court, as it raised by Arlitt's original petition. Because PILF's counterclaim under the Declaratory Judgment Act presented no new controversy, it may not serve as the basis of its award of attorney fees. See Redwine, 852 S.W.2d at 17. In addition, as discussed earlier, PILF was not entitled to, nor did it receive any monetary damages that would otherwise entitle it to an award of attorney fees. See Green Int'l, 951 S.W.2d at 390.

The trial court erred by awarding attorney fees to PILF.

Elizabeth Cluck-Weston

Elizabeth Cluck-Weston sued, in the alternative and in the event title was awarded to Arlitt, to recover on a promissory note executed by Arlitt and Cluck. Although title was not awarded to Arlitt, the trial court awarded Elizabeth Cluck-Weston a judgment in the amount of the debt. As discussed earlier, this award was in error. Because Elizabeth Cluck-Weston was not entitled to receive damages, she was not entitled to receive an award for attorney fees. See Green Int'l, 951 S.W.2d at 390.

The trial court's j.n.o.v. awarding attorney fees to Elizabeth Cluck-Weston was improper.

Arlitt's sixteenth point of error is sustained. The trial court's award of attorney fees to Sonesta is reversed and remanded to determine appropriate attorney fees for Sonesta, only, and the trial court's award of attorney fees to PILF and Elizabeth Cluck-Weston is reversed and rendered. We need not reach Arlitt's seventeenth point of error.

Conclusion

The trial court's judgment awarding $5,822.44 to Sonesta for reimbursement of 1995 property taxes is reversed and rendered. The trial court's judgment awarding PILF $46,225.51 and Elizabeth Cluck-Weston $15,986.92 is reversed and rendered. The trial court's judgment awarding attorney fees to PILF and Elizabeth Cluck-Weston is reversed and rendered. The trial court's judgment awarding attorney fees to Sonesta is reversed and remanded to determine appropriate fees. The trial court judgment is affirmed in all other respects.

Karen Angelini, Justice

DO NOT PUBLISH

1. Arlitt's suit against Lowe was later dismissed, and such dismissal is not the subject of this appeal.

2. This contention has been the subject of several petitions for writ of mandamus filed in this court, the first of which was filed by Arlitt on October 17, 1997, three days after the entry of the trial court's final judgment. We will construe Arlitt's petition for writ of mandamus as a timely objection to the trial court's severance. Even after being so hotly contested, the issue whether the severance was proper still remains unaddressed and unsettled.

3. "A prerequisite to the recovery of a deficiency judgment is the establishment of the deficiency by a valid foreclosure sale." Casa Monte Co. v. Ward, 342 S.W.2d 812, (Tex. Civ. App.-Austin 1961, no writ).

4. To show fraud by misrepresentation, a plaintiff must show: (1) a material misrepresentation, (2) which was false, (3) which was either known to be false when made or was asserted without knowledge of the truth, (4) which was intended to be acted upon, (5) which was relied upon, (6) and which caused injury. Welder v. Green, 985 S.W.2d 170, 174-75 (Tex. App.-Corpus Christi 1998, n.w.h.)