NETCO, Inc. v. Diana Montemayor and Ludivina Flores--Appeal from 11th District Court of Harris County
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Opinion issued March 31, 2011.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-09-00705-CV
———————————
NETCO, INC., Appellant
V.
DIANA MONTEMAYOR AND LUDIVINA FLORES, Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2006-36666
OPINION
In this escrow account dispute, NETCO Inc. (NETCO) appeals from a
judgment against it and in favor of Diana Montemayor and Ludivina Flores.
Montemayor and Flores sued NETCO for breach of fiduciary duty, arising from
NETCO‘s failure to pay money it held in escrow to a valid lien holder upon
NETCO‘s closing of a real estate transaction. NETCO asserted a limitations
defense, which the trial court submitted to a jury. Following the jury‘s finding
against the merit of that defense, the parties submitted the breach of fiduciary duty
claim to the bench. The trial court found against NETCO and awarded damages.
On appeal, NETCO urges that it should have judgment notwithstanding the jury‘s
verdict because the plaintiff‘s counsel lacked reasonable diligence in effecting
service of process. In addition, it challenges the trial court‘s bench trial finding of
liability and its award of mental anguish damages.
We hold that the evidence supports the jury‘s finding that the plaintiffs
exercised reasonable diligence in obtaining service of process, and thus the trial
court did not err in denying NETCO‘s request for a jnov on its limitations defense.
We further hold that sufficient evidence supports the trial court‘s liability findings,
but that the award of mental anguish damages is not supported as a matter of law,
under the standard for mental anguish damages set forth in Parkway v. Woodruff.1
We therefore reverse that award. We affirm the judgment in all other respects.
BACKGROUND
In June 2002, Montemayor entered into a contract for deed with Matthew
Logan for the purchase of real property located at 8712 Kimwood in Houston,
1
901 S.W.2d 434, 444 (Tex. 1995).
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Texas. After a year of making payments, she decided that she and her cousin,
Flores, would purchase the property through a mortgage and deed of trust. Sterling
Bank had a lien on the Kimwood property to secure a loan that it had made to
Logan.
NETCO conducted the real estate closing for the transaction on December
10, 2003, acting as both title company and escrow agent for the transaction. As
part of the closing, NETCO prepared a title commitment and a HUD-1 settlement
statement. Montemayor and Flores purchased a title policy on behalf of their
lender to insure that, upon closing, clear title to the property would transfer. In the
commitment, NETCO acknowledged the Sterling Bank lien. But in the settlement
statement it did not list Sterling Bank as a lienholder entitled to funds at closing.
The ―Reduction in Amount Due to Seller—Payoff of first mortgage loan‖ line
item, typically used to indicate a payoff to the seller‘s lender, was left blank. Thus,
the proceeds that should have been directed to Sterling Bank, as a lien holder, were
instead paid to Logan, the seller. Montemayor, Flores, and NETCO signed the
HUD-1 settlement statement.
Montemayor and Flores also executed a document identified as NETCO‘s
Escrow Trust Disbursement Instructions. This document stated that Montemayor
and Flores authorized and directed NETCO to make disbursements for the
purchase of the property.
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NETCO‘s escrow agent issued a check for $88,703.35 to Logan. It did not
pay Sterling Bank any funds to resolve the bank‘s existing lien, to which Logan‘s
title was subordinated, nor did it secure a release of Sterling Bank‘s lien on the
property.
At closing, Montemayor and Flores paid NETCO $574 for title
insurance services and $250 for escrow services.
In 2005, Montemayor and Flores attempted to sell the Kimwood property to
Martha Morales. They testified that it was at that time that they discovered that
Sterling Bank had a lien on the property. Montemayor and Flores thus lacked
marketable title to the property, and could not complete the sale. Montemayor and
Flores subsequently abandoned the property, and it was foreclosed. Montemayor
and Flores purchased another home prior to the Kimwood foreclosure. At the time
the Kimwood property was foreclosed upon, the Sterling Bank lien was still
outstanding.
On April 18, 2007, Montemayor and Flores sued NETCO.
They also
asserted a claim against Logan, which he settled for $35,000. After the trial court
denied NETCO‘s motion for summary judgment on limitations, it bifurcated the
case, and tried the limitations defense to a jury. The jury returned findings that
favored Montemayor and Flores. The trial court then held a bench trial on the
remaining issues in the case. It awarded Montemayor and Flores $41,135.20 in
economic damages and $50,000 for mental anguish. After applying an offset of
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$35,000 to credit the settlement from Logan, the trial court rendered judgment for
$56,135.20.
STATUTE OF LIMITATIONS
NETCO contends that the trial court erred in denying its motion for jnov
after the jury found that Montemayor‘s and Flores‘s breach of fiduciary duty
claims were not barred by the statute of limitations. Both parties agree that the
applicable statute of limitation for a breach of fiduciary duty claim is four years.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.004 (West 2002). The jury found that
(1) Montemayor and Flores should have discovered that the proceeds of the closing
were paid to Matt Logan, not Sterling Bank, by May 30, 2005; and (2) that
Montemayor and Flores had exercised due diligence in serving NETCO with this
lawsuit. The jury‘s second finding is necessary if we determine that the service
date was outside the limitations period, and the jury‘s accrual date is incorrect as a
matter of law.
Montemayor and Flores maintain that the jury‘s finding that the limitations
period did not begin to run until they attempted to sell the property and
―discovered‖ the Sterling Bank lien on May 30, 2005, is legally correct. NETCO
responds that the discovery rule is not applicable here, and that the limitations
period began to run on December 10, 2003—the date of the real estate closing.
NETCO further asserts that because it was not served with process within four
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years of that date, the breach of fiduciary duty claims against it are time barred as a
matter of law. We agree with NETCO‘s legal contention about the accrual date,
but we uphold the jury‘s second finding about diligence in service. We agree with
the trial court that NETCO failed to establish its limitations defense as a matter of
law because some evidence supports the jury‘s conclusion that the plaintiffs
exercised reasonable diligence in securing service.
A. Standard of Review
Rulings on motions for jnov are reviewed under the same legal-sufficiency
test as are appellate no-evidence challenges if made on an evidentiary basis. See
Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009) (citing
City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). When such a ruling is
based on a question of law, we review that aspect of the ruling de novo. In re
Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) (―[Q]uestions of law are always
subject to de novo review.‖); John Masek Corp. v. Davis, 848 S.W.2d 170, 173
(Tex. App.—Houston [1st Dist.] 1992, writ denied) (providing that jnov is proper
when legal principle precludes recovery); see also Morrell v. Finke, M.D., 184
S.W.3d 257, 290–91 (Tex. App.—Fort Worth 2005, pet. denied) (concluding that
trial court erred by denying defendants‘ motion for jnov because plaintiff‘s claims
against them were barred by statute of limitations). A jnov is proper when a
directed verdict would have been proper. See TEX. R. CIV. P. 301; Fort Bend Cnty.
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Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991); CDB Software,
Inc.v. Krell, 992 S.W.2d 31, 35 (Tex. App.—Houston [1st Dist.] 1998, pet.
denied). A motion for jnov should be granted when the evidence is conclusive and
one party is entitled to recover as a matter of law or when a legal principle
precludes recovery.
Phar-Mor, Inc. v. Chavira, 853 S.W.2d 710, 713 (Tex.
App.—Houston [1st Dist.] 1993, writ denied) (citing Mancorp, Inc. v. Culpepper,
802 S.W.2d 226, 227 (Tex. 1990)).
B. Accrual Date
The discovery rule defers the accrual of a cause of action until the plaintiff
knows, or by exercising reasonable diligence, should know of the facts giving rise
to the claim. Barker v. Eckman, 213 S.W.3d 306, 311–12 (Tex. 2006). For the
discovery rule to apply, the injury must be inherently undiscoverable and
objectively verifiable. Id. at 312; Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313
(Tex. 2006). When analyzing the applicability of the discovery rule in cases in
which the alleged injuries arise from a breach of fiduciary duty, the claims are
generally considered inherently undiscoverable. S.V. v. R.V., 933 S.W.2d 1, 8
(Tex. 1996); Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.
1996). Nonetheless, once the fiduciary‘s misconduct becomes apparent, the
claimant cannot ignore it, regardless of the fiduciary nature of the relationship.
S.V., 933 S.W.2d at 8; Computer Assocs., 918 S.W.2d at 456. In other words, such
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claims accrue when the claimant knows or in the exercise of ordinary diligence
should know of the wrongful act and resulting injury. Murphy v. Campbell, 964
S.W.2d 265, 271 (Tex. 1997). The date that a claimant knew or should have known
of an injury is generally a fact question. Childs v. Haussecker, 974 S.W.2d 31, 44
(Tex. 1998). However, if reasonable minds could not differ about the conclusion
to be drawn from the facts in the record, the start of the limitations period may be
determined as a matter of law. Id.
Based on the evidence presented at the jury trial, NETCO established as a
matter of law that Montemayor and Flores knew or should have known about their
injury at the date of the closing—December 10, 2003. The closing documents
showed the existence of the Sterling Bank lien on schedule C of the title
commitment.
The owner‘s affidavit that Montemayor and Flores executed
contained this commitment.
In contrast, the HUD-1 settlement statement
authorized the disbursement of funds to Logan, the Harris County tax
commissioner, and the local school system, but did not authorize a disbursement to
Sterling Bank. The settlement statement contained a section entitled ―Reduction in
Amount Due to Seller.‖ A line in that section, which indicates whether there has
been a payoff of first mortgage loan, was left blank, thereby indicating that Sterling
Bank had not been paid. Montemayor and Flores signed the settlement statement
as well.
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Thus, the record shows that at closing, Montemayor and Flores signed
documents (1) indicating the existence of a lien by Sterling Bank, but
(2) recognizing that NETCO proposed to disburse funds to parties that did not
included Sterling Bank. They are presumed to know the content and effect of the
documents they signed. See First City Mortg. Co. v. Gillis, 694 S.W.2d 144, 147
(Tex. App—Houston [14th Dist.] 1985, writ ref‘d n.r.e.) (―If no fraud is involved,
one who signs an agreement without knowledge of its contents is presumed to have
consented to its terms and is charged with knowledge of the agreement‘s legal
effect.‖). In addition, a properly recorded lien provides notice to all persons of its
existence. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 887 (Tex. 1998). The
Sterling Bank lien was a properly recorded lien. Accordingly, we hold that the
statute of limitations began to run on the closing date, December 10, 2003, as a
matter of law.
C. Diligence in Service
Montemayor and Flores sued NETCO on April 18, 2007, within the fouryear limitations period that began to run on December 10, 2003. However, they
did not achieve service on NETCO until April 15, 2008, four months after
limitations had expired.
If a plaintiff files its petition within the limitations period, service outside the
limitations period may still be valid if the plaintiff exercises diligence in procuring
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service on the defendant. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009);
Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam) (citing Zale Corp
v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per curiam)). Once a defendant
has affirmatively pleaded the defense of limitations and shown that service was
untimely, the burden shifts to the plaintiff to prove diligence in her efforts to
effectuate service. Ashley, 293 S.W.3d at 179; Proulx v. Wells, 235 S.W.3d 213,
216 (Tex. 2007) (per curiam). Diligence is determined by asking ―whether the
plaintiff acted as an ordinarily prudent person would have acted under the same or
similar circumstances and was diligent up until the time the defendant was served.‖
Ashley, 293 S.W.3d at 179 (quoting Proulx, 235 S.W.3d at 216).
Although
ordinarily a fact question, a plaintiff‘s evidence may demonstrate a lack of
diligence as a matter of law ―when one or more lapses between service efforts are
unexplained or patently unreasonable.‖ Id. (quoting Proulx, 235 S.W.3d at 216).
The plaintiff has the burden to explain every lapse in effort or period of delay.
Proulx, 235 S.W.3d at 216 (citing Gant, 786 S.W.2d at 260).
Here, the jury found that Montemayor and Flores exercised diligence in
serving NETCO. The following timeline is relevant to their attempts to serve
NETCO:
April 18, 2007
NETCO is sued. Plaintiffs request service through the secretary
of state on NETCO‘s registered agent for service of process in
Texas.
10
May 15, 2007
First attempt to serve NETCO at the address provided by the
secretary of state as the address for NETCO‘s registered agent.
The attempted service is by certified mail return receipt
requested; it is returned for an insufficient address.
May 24, 2007
Second attempt to serve NETCO at the address on file with the
secretary of state by certified mail return receipt requested. The
letter is returned ―undeliverable as addressed.‖
June 18, 2007
Third attempt to serve NETCO at the same address by certified
mail return receipt requested.
The letter is returned
―undeliverable as addressed.‖
June 19, 2007
Fourth attempt to serve NETCO at the same address by
certified mail return receipt requested. The letter is returned for
an insufficient address.
December 3, 2007 Limitations expires.
January 2, 2008
In response to inquiries, the Texas Department of Insurance
informs counsel that NETCO is not an insurance company and
that if they desire for the department to effectuate service on
NETCO, they must provide the authority for their request.
January 7, 2008
Plaintiffs request that the Texas Department of Insurance serve
NETCO. The Department of Insurance notifies counsel that it
does not require title insurance companies to register with the
department.
February 13, 2008 NETCO files an amended statement of registered agent for
service of process with the secretary of state, naming a different
agent in Houston, Texas.
March 31, 2008
Plaintiffs‘ counsel hires a professional process server, who
attempts to effectuate personal service on NETCO at the
physical location of the registered agent in Carrolton, Texas.
After physically viewing the premises, the process server
informs plaintiff‘s counsel that NETCO‘s agent is no longer at
the address that NETCO had on file with the secretary of state.
April 1, 2008
Plaintiffs‘ professional process server attempts personal service
on NETCO‘s president in Buffalo Grove, Illinois. The
attempted service is not successful.
11
April 15, 2008
Plaintiffs serve NETCO via substituted service on the secretary
of state, which agreed to forward service to the president of the
company after multiple attempts at service on the registered
agent had failed.
NETCO argues that, as a matter of law, these service attempts show a lack
of diligence. Like the trial judge and the jury in this case, we disagree. The
plaintiffs filed suit against NETCO within the limitations period. They obtained
service within four months of the expiration of limitations. Most relevant to the
consideration of diligence here is NETCO‘s failure to maintain a correct address
for its agent for service of process with the secretary of state, as required by law for
companies that do business in Texas.
Service of process on corporations is governed by the Texas Business
Organizations Code. The Code places a duty upon corporations to maintain a
registered agent and office, and to notify the secretary of state of any change to
either. See TEX. BUS. ORGS. CODE ANN. §§ 5.201, 5.202 (West 2010). The Code
provides that the secretary of state becomes the agent for service of process of a
corporation whenever a corporation fails to maintain a registered agent in Texas, or
whenever its registered agent cannot be found with reasonable diligence at the
registered office. See TEX. BUS. ORGS. CODE ANN. § 5.251 (West 2010).
Here, the jury could reasonably have concluded that, although multiple
attempts to serve process via NETCO‘s registered agent failed, the blame lay with
NETCO, not plaintiffs‘ counsel. See G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d
12
815, 818 (Tex. App.—Houston [1st Dist.] 1996, no writ) (upholding default
judgment where record demonstrated service via the secretary of state on
company‘s registered agent, and company failed to notify secretary of state of
registered agent‘s change of address); Ingram Indus. Inc. v. U.S. Bolt Mfg., Inc.,
121 S.W.3d 31, 34 (Tex. App.—Houston [1st Dist. 2003, no pet.) (holding that
copy of original citation returned unexecuted with the notation ―bad address‖
sufficient to show registered agent could not be found with reasonable diligence,
and upholding default judgment against corporation).
It is undisputed that
plaintiffs‘ counsel served NETCO at the address it had provided for its registered
agent on four occasions. Plaintiffs‘ counsel testified that the secretary of state‘s
office requested a showing that multiple efforts at service on the registered agent
had failed before it would agree to forward service of process on the president of
the company. This testimony was not controverted.
NETCO points to a five and a half month period of inaction before the
expiration of limitations, and urges that the jury could not find diligence in the face
of this delay. When several service efforts at the address provided by the secretary
of state failed, plaintiffs‘ counsel confirmed the address with the secretary of
state‘s office. That office verified that the address that plaintiffs‘ counsel used was
correct. Counsel attempted to locate NETCO‘s agent of service of process through
the Department of Insurance, but was told that title insurance companies do not
13
register agents through that agency. Counsel then attempted alternative means of
service through NETCO‘s physical address and through NETCO‘s president.
Counsel‘s private process server personally confirmed that NETCO had no
registered agent at the physical address that it had provided to the secretary of
state. Plaintiff sought substituted service in the trial court, and achieved service
within four months of the expiration of limitations. Plaintiffs‘ counsel offered a
sufficient explanation for the delay: NETCO‘s failure to update its registered
agent for service of process hampered service. Cf. Ashley, 293 S.W.3d at 179
(noting that plaintiff made no explanation for lapse in service attempts). Her trial
testimony regarding her efforts to achieve service supports the jury‘s verdict. See
Proulx, 235 S.W.3d at 217 (noting that defendant‘s efforts to avoid service is
circumstance to consider in determining plaintiff‘s diligence); G.F.S. Ventures, 934
S.W.2d at 816 (noting that, under Texas law, secretary of state becomes agent for
service of process on corporation whenever corporation fails to maintain registered
agent in Texas, or whenever its registered agent cannot be found with reasonable
diligence at registered office.); see also TEX. BUS. ORGS. CODE ANN. § 5.251 (West
2010).
We hold that the evidence supports the jury‘s conclusion that the plaintiff
exercised diligence, and thus the trial court did not err in submitting the issue to the
jury or in denying NETCO‘s motion for jnov.
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D. Admission of Evidence
Lastly, NETCO contends that the jury‘s findings on diligence should be
reversed because the trial court admitted a letter from Dan Kuhn, an employee in
NETCO‘s legal department to the Texas Department of Insurance. In the letter, he
states:
As I understand the complaint, [Montemayor and Flores]
allege that NETCO incorrectly disbursed funds in their
settlement and did not pay off the contract seller‘s lien.
I have reviewed the file and discussed with file with
[other NETCO personnel] and the complaint appears
accurate . . . . Inadvertently at the settlement of the
transaction the funds necessary to satisfy the Sterling
Bank lien were instead disbursed directly to Matt Logan
and not to Sterling Bank.
When this error was discovered well after settlement, I
immediately made contact with Matt Logan and was told
by Mr. Logan that he would contact Sterling Bank and
take care of procuring a release of lien.
Whether to include or exclude evidence is a matter committed to a trial court‘s
discretion, requiring reversal only if any error probably caused it to render an
improper judgment. Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex.
2004). NETCO contends that the trial court abused its discretion in admitting the
letter because it came after the date by which all had learned that the Sterling Bank
lien still existed. It further contends that a reference to NETCO‘s error had the
potential of unfairly prejudicing the jury against its limitations defense. The letter,
15
however, was responsive to the suggestion that NETCO had introduced through
witnesses that it had not made any error during the closing because it had disbursed
the settlement amounts in accord with the HUD-1 settlement statement, and
Montemayor and Flores were fully informed that Sterling Bank would not be paid.
Both parties introduced concepts of liability into evidence. We hold that the trial
court acted within its discretion when it admitted the letter.
The letter
demonstrated that the Sterling Bank lien had not been released, and that NETCO
itself did not discover the error until ―well after settlement.‖ Although we have
held that the discovery rule does not apply to the accrual date in this case, the
accrual date was an issue that the trial court asked the jury to decide, and thus the
letter had some relevance. NETCO did not seek a limiting instruction, or ask that
the letter be redacted, to ameliorate any concern that the jury would use the letter
for an inadmissible purpose. See TEX. R. EVID. 105(a).
BREACH OF FIDUCIARY DUTY
A. Liability
Turning to the merits, NETCO complains that the trial court‘s finding that
NETCO breached its fiduciary duty is legally insufficient because NETCO
complied with its obligations as an escrow agent as a matter of law. NETCO
contends that it disbursed the escrow funds ―as instructed,‖ and that ―it cannot
violate a fiduciary duty by doing exactly that which [Montemayor and Flores]
16
instructed [it] to do.‖ It further contends that Montemayor and Flores‘ proof of
breach fails for lack of expert testimony to support it.
NETCO prepared the settlement statement and also prepared the title
commitment. The latter reflected the lien held by Sterling Bank, but the former did
not. NETCO was charged with the knowledge of the lien in the title commitment
that it prepared.
NETCO did not pay the lien holder as listed in its title
commitment, and it did not secure a release of the Sterling Bank lien. NETCO
stipulated at trial that part of its obligation was to secure such a release:
THE COURT: It is undisputed that when [Montemayor
and Flores] refinanced with New Century that Sterling,
which was Logan‘s mortgage company, the first lien that
they have on the property did not get paid off?
COUNSEL FOR NETCO: That is correct.
THE COURT: NETCO admits they should have done it.
It was a mistake. It didn‘t get paid.
COUNSEL FOR NETCO: We admit we should have
gotten a release from Sterling Bank.
Kuhn, a senior examiner for NETCO, also admitted that NETCO had erred. In
addition, Logan testified at trial that he called NETCO shortly after receiving the
closing proceeds and inquired whether NETCO had obtained a release from
Sterling Bank. A NETCO representative responded that it must have been done
since Logan had received the check.
17
A title insurer who acts as an escrow agent has a duty to exercise a ―high
degree of care to conserve the money and pay it only to those persons entitled to
receive it.‖ City of Fort Worth v. Pippen, 439 S.W.2d 660, 665 (Tex. 1969). In
Pippen, the city sued Rattikin, its title insurer, after discovering that Rattikin‘s
vice-president had paid a city land agent part of the funds that the city had
escrowed to pay the seller. Id. at 662–63. Rattikin argued that it was not liable
because it was the city‘s own agent who benefitted from the diversion of funds,
and the city received title to the properties in question. Id. at 665. The Texas
Supreme Court rejected this defense, and held that Rattikin was liable for breach of
its duty ―regardless of the fact that the [c]ity received exactly what it intended to
buy.‖ Id. Similarly, NETCO argues that Montemayor and Flores signed the
settlement statement that indicated that NETCO had not deducted the lien amount
from the payment to Logan, and thus responsibility for the problem falls to them.
But as the jury did in Pippen, the trial court in this case reasonably could have
concluded that Montemayor and Flores‘s failure to catch NETCO‘s error on the
settlement statement does not excuse NETCO from liability as title insurer and
escrow agent—it prepared both the settlement statement and the title commitment
and ―was paid a fee for its services and for the careful handling of these funds.‖
See id. NETCO did not secure the release of the Sterling Bank lien; its obligation
to do so was among the purposes for which it was hired in the first place. Its
18
failure to secure the release of lien is some evidence of a breach of its duties. See
Chilton v. Pioneer Nat’l Title Ins. Co., 554 S.W.2d 246, 248 (Tex. Civ. App.—
Waco 1977, writ ref‘d n.r.e.) (holding that title insurer‘s failure to cash two escrow
checks and deposit them, as done in normal course, was some evidence of breach
of fiduciary duty). NETCO does not otherwise challenge the breach, except to say
that expert testimony was required. It cites no authority for this contention, but its
own admission regarding its error precludes reversal on this basis. Kuhn agreed
that the escrow fee paid to NETCO ―obligated NETCO in the ordinary course of
business to have paid off or gotten a release of the Sterling Bank lien.‖ We hold
that sufficient evidence supports the trial court‘s finding that NETCO breached its
duties as title insurer and escrow agent.
B. Mental Anguish Damages
In Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995), the Texas
Supreme Court set out the requirements for proof of recovery for mental anguish
damages. Mental anguish is the pain resulting from grief, severe disappointment,
indignation, wounded pride, shame, despair or public humiliation. See id. at 444
(quoting Trevino v. Sw. Bell Tel. Co., 582 S.W.2d 582, 584 (Tex. Civ. App.—
Corpus Christi 1979, no writ)).
A trial court cannot award mental anguish
damages without either ―‗direct evidence of the nature, duration, or severity of
[plaintiffs‘] anguish, thus establishing a substantial disruption in the plaintiffs daily
19
routine‘, or other evidence of ‗a high degree of mental pain and distress‘ that is
‗more than mere worry, anxiety, vexation, embarrassment, or anger.‘‖ Saenz v.
Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996) (quoting
Parkway, 901 S.W.2d at 444).
In this record, there is some evidence of damage to the plaintiffs‘ credit
reputation, and expenses that the plaintiffs incurred to improve and maintain the
house. These are economic losses, and were subsumed within the trial court‘s
actual damages finding. The evidence to support an award of mental anguish is
Montemayor‘s testimony. Flores did not testify. Montemayor testified that the
NETCO‘s error made her feel: ―basically pretty furious,‖ ―pretty devastated and
furious to say the least,‖ and ―extremely furious.‖ This is the complete record on
the matter of mental anguish.
But to recover damages for mental anguish in a case in which the loss is
purely economic, one must prove severe and enduring grief. See id.; see also
Parkway, 901 S.W.2d at 444. In Parkway, the Texas Supreme Court held that the
worry and anger that the plaintiffs had due to the flooding of their home did not
entitle them to mental anguish damages.
See Parkway, 901 S.W.2d at 444.
Similarly, in Saenz, the plaintiffs‘ worry about losing their house due to a loss of
income did not rise to a compensable level of mental anguish. Saenz, 925 S.W.2d
at 614. We hold that the trial court erred in awarding mental anguish damages
20
because the evidence in the record does not approach the ―high degree of mental
pain and distress,‖ long in duration and severe, that is necessary to support such an
award. See id.; Parkway 901 S.W.2d at 444. We therefore reverse the award of
those damages.
CONCLUSION
We hold that legally sufficient evidence supports the jury‘s finding that the
plaintiffs exercised diligence in obtaining service of process and the trial court‘s
finding that NETCO is liable for breach of fiduciary duty.2 But the finding of
mental anguish damages, sustained in connection with the economic loss, is not
supported by legally sufficient evidence. We therefore reverse that award. We
affirm the judgment in all other respects.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
2
NETCO also challenges a breach of contract finding by the trial court as lacking
sufficient pleadings to support it. But the trial court rendered judgment on the
breach of fiduciary duty claim, and not on a contract claim. Because we uphold
the breach of fiduciary duty claim and the trial court did not render a judgment on
breach of contract, we need not address NETCO‘s request that we disregard the
trial court‘s contract finding.
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