Opinion
No. 01-03-00034-CV
Opinion issued May 25, 2006.
On Appeal from County Civil Court at Law No. 1, Harris County, Texas, Trial Court Cause No. 727,682.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
MEMORANDUM OPINION ON REHEARING
Appellant, Robert R. Long d/b/a MWT, moved for rehearing en banc of our memorandum opinion of July 15, 2004. See Tex.R.App.P. 49.7. Appellee, United Welding Supply, Inc. (United) filed a response to the motion. We grant the motion for rehearing, withdraw our opinion and judgment of July 15, 2004, and issue this opinion and accompanying judgment in their stead.
We therefore dismiss as moot the motion for en banc reconsideration. See Brookshire Bros. v. Smith, 176 S.W.3d 30, 40 n. 2 (Tex.App.-Houston [1st] 2004, pet. denied) (supp. op. on rehearing).
United filed this lawsuit to recover a $4,274.02 unpaid balance for welding supplies and services provided to a business called Material Welding Technology (MWT), which United contends was owned or partly owned by Robert R. Long (Long). Long appeals from a judgment against "ROBERT R. LONG d/b/a MWT" in favor of United that ordered awards for (1) $4,272.02 in actual damages plus prejudgment and postjudgment interest on that sum, (2) $30,000 in exemplary damages, (3) $45,000.00 as sanctions for conduct that occurred pretrial and during trial, and (4) attorney's fees for trial, contingent attorney's fees for appeal, and costs of court.
In ten issues, Long challenges the jury's answers to 10 jury questions by asserting that (1) as to jury questions numbered one, two, three, four, six, and eight the evidence is legally and factually insufficient to support the jury's answers, and (2) as to the remaining jury questions numbered five, seven, nine and 10, the jury's answers are immaterial and cannot support the judgment. In issues 11 and 12, Long challenges the $45,000 sanctions award imposed by the trial court against him by asserting that United's motion for sanctions was untimely and that the trial court abused its discretion by imposing the award against him.
We conclude that the evidence is legally and factually sufficient to establish that Long, doing business as MWT, breached the contract with United and committed fraud against United. We therefore overrule issue numbers one, two, seven and nine. We overrule issues three, four, five, six, eight, and 10 because those issues are contingent on our resolution of other appellate issues. We also conclude that United waived its right to assert its motion for sanctions for Long's production of falsified documents during pretrial discovery because the record shows that United was aware of the conduct before trial, did not file a motion for sanctions for that conduct prior to trial, and did not obtain a ruling on that conduct prior to trial. However, because the trial court's judgment imposing sanctions is also premised in part on conduct that occurred after the commencement of trial, we reverse the sanctions award for redetermination of the amount, taking into consideration misconduct that occurred after the commencement of trial and evaluated in light of the jury's assessment of punitive damages against Long. We therefore sustain Long's issue 11 and, in part, 12. We affirm the judgment in all other respects.
Background
Carolyn Johnson is the president and owner of United, a company that was founded by her father over 25 years ago. In February 1999, Long applied for credit from United for the Randall Long Corporation (the Corporation), and United opened an account on credit for the Corporation. About two months later, United received a faxed application for credit from MWT on a preprinted form that was not filled out or signed by anyone. Credit was not extended to MWT.
Although United extended credit to the Corporation only, early sales by United of products and services were paid for by the Corporation and MWT. Later sales to MWT totaling $4,274.02 went unpaid. The record includes invoices for sales of products and services to MWT that occurred on the following dates: March 19, 22, and 23, 1999; April 19, 22, 23, 26, 27, 28, and 29, 1999; May 3, 1999; June 10 and 30, 1999; July 31, 1999; August 31, 1999; and September 17, 1999. The invoices show sales to MWT at the location 10440 Windfern in Houston, Texas. The sales to the Corporation were also sent to the same address on Windfern.Johnson acknowledged receiving a series of letters from Long, who identified himself as President of the Corporation, that informed United that, after April 1, 1999, the Corporation would no longer pay MWT's bills because William Sprayberry and David Watmough "have since taken MWT as their sole company." Long also informed United that although the Corporation "has paid over $30,000 in MWT bills to United," the Corporation would not be responsible for any other bills. Long further told United to send MWT's bills only to Watmough or Sprayberry at their home addresses and to discontinue sending MWT's bills to the Corporation or to Long. Long also refused to return property that belonged to United unless United gave him a personal release of liability for the MWT debt. In Johnson's opinion, Long was holding her property for ransom unless United released him from any personal liability for the MWT debt.
In two letters dated in September 1999, Long wrote to United stating that he did not have access to the key that opened the room where the "cylinders" that belonged to United were located, but stated that he was willing to cut off the locks to the room, if United provided "Robert R. Long" with a release from liability for all MWT debts. Long also requested a guarantee of protection from litigation for Long and the Corporation for seizure of the cylinders from MWT.
Johnson filed suit against Long for the debt owed by MWT to United, and the case was set for trial. Over the course of approximately a year while the case was pending, Long, in response to discovery requests, produced five or six documents of communication between him and United. Just before the second trial setting and shortly before mediation, Long produced approximately 18 documents of correspondence that he purported had been exchanged between them. Long gave that correspondence to his attorney, who tendered copies of the correspondence to United's attorney, in accordance with prior discovery requests for such matters.
Johnson believed that the 18 documents produced at the last minute by Long were "fake" because, according to Johnson, the events described in the letters never took place, and the letters were inconsistent with her manner of doing business. The "fake" letters produced by Long purportedly documented the following:
• United agreed to bill items ordered by Sprayberry to MWT, and United agreed that Long and the Corporation would not be "in any way responsible for these items ordered by Sprayberry or his partner David Watmough."
• Johnson was aware that Long was not part of MWT before any sales to MWT ever occurred and knew that the Corporation and Long should not be billed for any MWT purchases.
• Johnson represented to Long that United would "hold you harmless" for Sprayberry's and Watmough's debts.
• Johnson believed that Sprayberry and Watmough were "playing games with" United and the Corporation, and United thus decided not to accept any more orders from MWT or the Corporation.
• United would send a refund check to Long for payments he erroneously made on behalf of MWT.
• Long would be "forced to resort to legal means" if he did not receive the refund from United.
• Long would sell United's empty gas cylinders "at auction to the highest bidder" if United did not pick them up.
Johnson testified that she did not see these letters until less than a month before the case was set for trial the second time. In explaining reasons why she believed these letters produced by Long were forgeries, Johnson stated that she did not use that format on her letters at that time, the fax number listed on the letters was not the one that she used for her correspondence, the language and content of the letters purportedly sent by her contained information that she would never put into a letter to a client and used language that she would not use, and the contents of the letters were not consistent with her recollection of events. Johnson further relayed that she never discussed any reimbursement check with Long, never told Long that he would not be billed for MWT purchases, and that MWT never had an account on credit with United.
Believing that the correspondence was forged, United's attorney requested a court order requiring Long to tender the original correspondence documents to the court to be examined because United's attorney had only copies, not originals, of the correspondence documents that Long had produced around the time of mediation. The court, however, by agreement of the parties, ordered that Long tender the original correspondence, which United believed to be forged, to the custody of United's attorney. These correspondence documents, later identified as Exhibit 38, were kept in the file cabinet of United's attorney, except for two occasions when an employee of Long's attorney transported the documents to United's document examiner, waited with the documents while they were examined, and then transported the documents back to United's attorney's office. Janet Masson, United's forensic document examiner, examined the documents identified as Exhibit 38 and concluded that they were not authentic. In its case in chief, United offered and the court admitted Exhibit 38, that consisted of the documents that United's attorney represented were Long's originals of the "fake" correspondence between Long and United.
In May, 2001, United's attorney filed an Agreed Motion for Continuance and Plaintiff's Motion to Secure Evidence, which stated, as follows:
This case was mediated before Jeffrey Newport on April 18, 2001. At that time, the attorney for the defendant supplemented the discovery response by producing one packet including thirty-five (35) pages of documents and a second packet containing ten (10) pages of documents. . . . Basically, the correspondence from the plaintiff to the defendant included with those supplemented documents tended to destroy the plaintiff's case. Copies of those documents and some first generation documents have been reviewed by a forensic handwriting expert. The expert's conclusion is that the documents are not authentic and were manufactured. . . . [The expert] did not get to complete her examination. At the end of the day, an employee with counsel for Defendant, who delivered the documents and remained at the laboratory throughout the testing terminated the examination because he had to return the documents to Defendant. . . . Plaintiff requests that the court order that the documents in question be immediately turned over to the court so that they are secure and so that they can be properly examined for authenticity.
At trial, David Watmough testified that he was "involved" in MWT, but was never "officially" a partner with Long and that they "never had an agreement." Watmough stated that Long was "doing business as MWT" and that Long "did business as MWT with United Welding." Watmough further testified that Long presented him with a proposed partnership agreement for MWT, but Watmough never agreed to it or signed it. Watmough declined to sign the partnership agreement because it called for a monetary investment by Watmough, in contrast with his and Long's discussions that Long would take care of the money, Watmough would take care of technical aspects, and Sprayberry would solicit business. According to Watmough, Long alone was to pay MWT's bills. Watmough was asked, "This $30,000 that he paid for MWT bills are exactly what he owed and promised you and Sprayberry that he was going to pay for; didn't he?" Watmough replied, "If that was the total deal — the deal was he was going to go ahead and pay for materials and labor." When Watmough was further asked, "Do you know of any reason why Robert Randall Long doesn't owe United Welding the sum of $4,274.02?," he replied, "No, I don't know any reason why he would not owe that money." Watmough explained that when he was contacted by United about the MWT debt, he refused to pay the debt because he did not purchase or use the goods in question.
Steve Kamel testified as to an extraneous matter, explaining that he had been Long's attorney for an unrelated matter that involved a complaint about a vehicle that Long had purchased. Kamel sued Long for approximately $6500 for his refusal to pay Kamel's legal fees. Kamel testified that shortly before their second trial setting, Long produced to Kamel a number of falsified documents. According to Kamel, Long recreated letterhead and forged Kamel's signature on a series of documents that purported that Kamel had made a billing error, and that Kamel would issue a reimbursement check to Long for amounts that Kamel owed to Long.
The defense presented four witnesses at trial. Long denied that he had ever been a partner of MWT, that he prepared a proposed temporary partnership agreement or any other partnership agreement concerning MWT, that he did business as MWT, and that he owed the MWT debt. Long asserted that he accidentally paid some bills from United that were charged to MWT with the Corporation funds because the bills got mixed up together when Sprayberry worked for the Corporation. Long also stated that on another occasion, he paid $24,702.50 to United for a manipulator that was ordered by MWT and delivered to his shop because he thought that he might be able to use it in his work. Long stated that when he wrote to Johnson stating that Watmough and Sprayberry had "since taken MWT as their sole company," he told her that to make "sure that she was aware of that so if she had any credit out to them she could protect herself." According to Long, the person from whom Watmough and Sprayberry had taken MWT was named Viscek, whose first name was unknown. During cross-examination, however, Long acknowledged that there was no reference in any correspondence between him and United to any person named Viscek and that Viscek was never mentioned in Long's discovery responses that requested the disclosure of any person with knowledge of the case.
At trial, Long disputed that the documents in Exhibit 38 were his originals, suggesting that his original documents had been replaced with other documents, and thus implying that United's attorney or someone else had substituted these other documents in place of his originals. Long explained that he knew that the documents in Exhibit 38 were not his originals because he marked his original documents with a "permanent marker where you can make identifying marks that are only detectable by ultraviolet light" and the documents in Exhibit 38 did not have the marks when he "black light tested the documents." Long also explained that all but one of the documents in Exhibit 38 were signed with black ink and that for the past five years he signed his correspondence with blue ink only. Long said that the signature on the single document in Exhibit 38, dated January 20, 1999, that was signed in blue ink on the document "looks like" his signature, although that document did not have the ultraviolet markings on it. During cross-examination, Long acknowledged that it appeared to be his signature on the copies of the documents that were tendered to United's attorney at the mediation, which are exact duplicates of the original documents in Exhibit 38.
Long denied that his signature appeared in the documents in Exhibit 38, which included two documents dated May 22, 1999, and documents dated February 28, 1999, April 1, 1999, June 1, 15, and 17, 1999, July 15, 1999, August 1 and 18, 1999, September 14 and 28, 1999, and January 31, 2000. In explaining that the signature was not his original signature, Long explained, "Let me say that is a pictorial representation of my signature but I signed my signature on the bulk of the correspondence I have with blue ink and have for the past . . . five years."
United's attorney objected to Long's testimony on the grounds that Long had not disclosed prior to trial, as requested in discovery, that he believed the documents in Exhibit 38 were not his documents. United's attorney argued to the court that "[t]here has never been an allegation in this matter before today when he was on the stand that these documents are fake and that anybody manipulated any of these documents." The trial court, however, allowed Long to testify about his beliefs that his original correspondence was not what was marked as Exhibit 38.
Other witnesses testified briefly for the defense. Kendall Jaegar testified that he was the certified public accountant who handled Long's personal and corporate matters and that he had never heard of a company called MWT. Loyce Boullion, Long's wife, testified that she had never heard of MWT until after the lawsuit was filed by United and that if Long had stated he was thinking about forming a partnership, she would have referred him to an attorney that specializes in that type of work. George Bost testified that he was employed by Long at the Corporation and assisted Long in videotaping documents that had been marked with the ultraviolet marker.
Standards of Review
In assessing Long's challenge to the legal sufficiency of the evidence to support the jury's findings of breach of contract and fraud, we must determine "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Legal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Id. If the evidence would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Id. at 822. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement. Id. Although the reviewing court must "consider evidence in the light most favorable to the judgment, and indulge every reasonable inference that would support it[,] . . . if the evidence allows of only one inference, neither jurors nor the reviewing court may disregard it." Id. A legal sufficiency point must be sustained (1) when there is a complete absence of a vital fact; (2) when rules of law or evidence preclude according weight to the only evidence offered to prove a vital fact; (3) when the evidence offered to prove a vital fact is no more than a scintilla; or (4) when the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
In assessing Long's challenge to the factual sufficiency of the evidence to support the jury's findings of breach of contract and fraud, we must weigh all the evidence, both supporting and conflicting with the finding, and may set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Comm'n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 582 (Tex.App.-Houston [1st Dist.] 1994, no writ). In reviewing this challenge, we first examine all the evidence to determine if some evidence supports the trial court's finding, see Lofton v. Tex. Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986), and, if so, then determine, in light of the entire record, whether the finding is so against the great weight and preponderance of the evidence that the finding is clearly wrong and manifestly unjust. Cain, 709 S.W.2d at 176; M.D. Anderson Hosp. Tumor Inst. v. Felter, 837 S.W.2d 245, 247 (Tex.App.-Houston [1st] 1992, no writ). In conducting our review, however, we must be mindful of the fact finder's role as the sole determiner of credibility of the witnesses and the weight to give their testimony and may not substitute our opinion for the fact finder's solely because we might have resolved the facts differently. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Felter, 837 S.W.2d at 247.
Breach of Contract
In his first two issues, Long asserts that the trial court erred by awarding judgment for breach of contract because the evidence is legally and factually insufficient to support the jury's affirmative answers in response to jury questions one and two. The jury answered "yes" to jury questions numbers one and two that asked, respectively, "Did Robert R. Long and United Welding Supplies, Inc., enter into an agreement that United Welding Supplies, Inc. would supply goods and services to Robert R. Long and that Robert R. Long would pay for those services?" and "Did Robert R. Long fail to comply with his agreement, if any, with United Welding Supplies, Inc.?"
We begin by examining the scope of Long's complaint in this appeal. Excluding the legal authority for the standard of review for legal and factual sufficiency of the evidence, Long's entire appellate brief consisted of one and a half pages of argument that pertained to all of his first 10 appellate issues. Long's reply brief, entitled "Pre-Submission Brief," filed on the day that this case was submitted for decision but after its submission, clarified his appellate points asserted in his initial brief. Long's reply brief explained,
The argument in Long's brief states, in its entirety, states as follows:
At trial, counsel for United seemed determined to establish that after the transaction in question, Robert Long took improper and unethical steps to exonerate himself from liability for the debt in question. That issue was not submitted to the Jury for its consideration. Unfortunately for United, the evidence in support of United's issues that were submitted to the Jury was not nearly so well-developed.
The Court can parse the record from beginning to end and-based upon the standards of review set forth above-find no legally or factually sufficient evidence to support the Jury's findings that: (1) Robert R. Long entered into an agreement that United Welding Service, Inc., would supply goods and services to Robert R. Long and that Robert R. Long would pay for those services (CR 104); (2) that Robert R. Long failed to comply with that agreement (because the agreement never existed) (CR 105); (3) that United substantially relied to its detriment on any promise by Long (CR 106); (4) that Robert R. Long "knowingly accepted and used" any goods or services from United (CR 107); (5) that Robert R. Long made "a material misrepresentation" (CR 109); (6) that United acted in reliance on any misrepresentation by Robert R. Long (CR 109); (7) that any such misrepresentation was made "with the intention that it should be acted on by United" (CR 109); (8) that Robert R. Long had any "actual, subjective awareness" of any risk involved in his conduct pertaining to the transaction with United (CR 111).
Based upon the lack of legally and factually sufficient evidence to support these findings, the Jury's findings of $4,274.02 in contract damages (CR 108), and $4,274.92 in fraud damages (CR 110), as well as the Jury's awards of trial and appellate court attorney's fees (CR 112) and exemplary damages (CR 113), are immaterial, do not support recovery in and of themselves, and therefore, cannot stand as a matter of law. Further, in the absence of actual or exemplary damages, the trial court's award of pre-judgment and post-judgment interest, all writs and processes and costs of court cannot stand as a matter of law. CR 138-40. See Tex. R. Civ. P. 131 (costs only go to successful party to a suit); Tex. Finance Code Ann. Chapter 304 (only judgments earn prejudgment and postjudgment interest); Tex. Civ. Prac. Rem. Code Ann. section 38.001 (attorney's fees only recoverable for valid claims, the validity of a claim cannot be determined until final judgment).
If this Court agrees with the legal sufficiency points asserted herein, then the only portion of the judgment that remains is the award of sanctions, which is the subject of the next section of this brief.
(emphasis in original).
This case has never been about whether or not MWT owed $4,274.02 to United. That issue has never been disputed. The primary issue in this case is whether Robert R. Long himself and individually committed the wrongful conduct inquired about in Jury Questions Nos. 1 through 8 . . . None of the evidence pointed out by United in its Brief of Appellee establishes that Robert R. Long himself did any of the wrongful conduct that was attributed to him by the Jury. That is why the factual and legal sufficiency challenges contained in the Brief of Appellant were asserted.
Although the arguments in support of Long's seven sufficiency challenges consist of fewer than two pages, citing only four cases and few record cites, we address these challenges because "[w]hen a complete absence of evidence is alleged, the reviewing court must include the entire record within its scope of review" and thus legal sufficiency issues are not waived. City of Arlington v. State Farm Lloyds, 145 S.W.3d 165, 167-68 (Tex. 2004) (holding that appellate court was required to search entire record for legal sufficiency challenge even though appellant did not include specific record cites and only cited to "entire record").
The elements of a breach of contract claim are (1) the existence of a valid contract between plaintiff and defendant, (2) the plaintiff's performance or tender of performance, (3) the defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-Houston [1st] 2002, pet. denied). Long does not dispute that United performed or tendered performance and that United suffered damage as a result of the breach. See id. Similarly, Long does not dispute that there is a valid contract between MWT and United, nor does he dispute that MWT breached the contract with United, but he asserts only that he did not do business as MWT and could not therefore be held individually accountable for actions taken by MWT.
We begin by noting that Texas law has long recognized that when, as here, a judgment is rendered against an individual doing business as an unincorporated association, that judgment is binding on the individual. See Old Republic Ins. Co. v. EX-IM Servs. Corp., 920 S.W.2d 393, 396 (Tex.App.-Houston [1st] 1996, no writ); Holberg Co. v. Citizens Nat. Assurance Co., 856 S.W.2d 515, 517 (Tex.App.-Houston [1st] 1993, no writ); Tex. Rev. Civ. Stat. Ann. art. 6135 (Vernon 1970); Tex. R. Civ. P. 28. The record here shows that the only objections posed to the jury charge by Long were to the sufficiency of the evidence to submit the questions. Long did not object to the jury charge on the grounds that it inquired about him individually, nor did he object to the judgment in the trial court, which is imposed against "Robert R. Long d/b/a MWT."
The jury in this case was presented with legally and factually sufficient evidence to establish that Long was responsible for the MWT debt to United. Direct evidence established that Long was doing business as MWT. Johnson testified that Long did business as MWT and that Long was responsible for paying the MWT debt due to United. Watmough stated that Long was "doing business as MWT," Long "did business as MWT with United Welding," and Long alone was responsible for any bills charged to MWT. Watmough denied that he was responsible for the MWT debt because he did not purchase or use the goods in question.
Furthermore, the record demonstrates that Long implicitly acknowledged that he was personally responsible for the MWT debt owed to United. In two letters that Johnson received from Long, Long offered to give Johnson access to her property only if she would personally release him, "Robert R. Long," from the liability for the MWT debt owed to United. The September 1999 letters stated that United needed to provide a "release from liability for all debts of MWT for Robert R. Long." We conclude that the jury could reasonably have inferred that Long believed he was liable for MWT's debt to United, given that he was requiring a release of that liability.
The record further demonstrates that when the parties were in anticipation of mediation, Long produced falsified letters that purported to hold him personally harmless for the debt. The jury could infer, from this evidence, that Long believed that he was personally responsible for the debt to United, and thus falsified correspondence in an attempt to avoid responsibility for his debt as MWT.
Long's defense at trial consisted of his testimony that he was not a part of MWT, that a person with the last name of Viscek was the third partner in MWT, and that the records that the court possessed were not his original documents. Additionally, Long's wife and accountant testified that they had not heard of MWT until after the lawsuit was filed. The jury was within its discretion to find Long's defense that he never did business as MWT not credible because (1) Long's letters to United stated that Watmough and Sprayberry "have since" taken MWT, thus acknowledging that before April 1999, Watmough and Sprayberry did not own MWT, (2) MWT's business and the Corporation carried the same address, (3) Long paid for some MWT bills with the Corporation funds, (4) Long's claim that a person named Viscek was the third partner in MWT was incredible given that Long never mentioned the name of Viscek in any of his correspondence to United and never mentioned the name of Viscek in any of the discovery responses that requested the identity of witnesses prior to trial, (5) Long implicitly acknowledged his responsibility for the MWT debt by demanding a release of personal liability in exchange for the cylinders that belonged to United, (6) Johnson's testimony established that Long falsified documents that purported to establish that he was not personally liable for the MWT debt, and (7) Watmough testified that Long did business as MWT with United and that Long was responsible for the MWT goods and services that were purchased from United.
Viewing the evidence for legal sufficiency in the light most favorable to the jury's findings, we conclude that the evidence is legally sufficient to show that Robert R. Long did business as MWT and was responsible for the actions of MWT in breaching the contract with United. In conducting a neutral review of all the evidence for factual sufficiency, both evidence tending to support and tending to negate the jury's findings, we conclude that the record demonstrates that Robert R. Long did business as MWT and was responsible for the actions of MWT in breaching the contract with United, and that the opposing evidence does not so greatly preponderate against the evidence supporting the jury's findings as to demonstrate that they are clearly wrong and manifestly unjust.
We overrule Long's first and second issues.
Promissory Estoppel
In his third issue, Long asserts that the evidence is legally and factually insufficient to support the jury's affirmative answer in response to jury question number three that asked whether United substantially relied to its detriment on Long's promise, if any, and whether the reliance was foreseeable by Long. Question number three asked, "Did United Welding Supplies, Inc. substantially rely to its detriment on Robert R. Long's promise, if any, and was this reliance foreseeable by Robert R. Long?" The jury answered "yes." Because we hold that the evidence is legally and factually sufficient to establish that Long breached the contract with United, we need not address whether the evidence is legally and factually sufficient to establish that United was entitled to recover under the alternate theory of promissory estoppel. See Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th] 1999, pet. denied) (stating promissory estoppel is generally viable alternative to breach of contract); Doctors Hospital 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634 (Tex.App.-Houston [14th] 2004, pet. abated) (stating that when party recovers on promissory estoppel claim, it does not have valid contract claim).
The elements of promissory estoppel are a promise, foreseeability by the promisor that the promisee would rely on the promise, and substantial reliance by the promisee to his detriment. Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th] 1999, pet denied).
We overrule Long's third issue.
Quantum Meruit
In his fourth and fifth issues, which concern the jury's affirmative answer to question number four, Long asserts that the evidence is legally and factually insufficient to establish that Long "accepted and used" the services rendered or materials furnished and that the jury's answer is immaterial and cannot support a judgment based upon the jury's affirmative answer to it. Jury question number four asks,
Did United Welding Supplies, Inc. perform compensable work for Robert R. Long? One party performs compensable work if valuable services are rendered or materials furnished for another party who knowingly accepts and uses them and if the party accepting them should know that the performing party expects to be paid for the work.
The jury answered "yes." Because we hold that the evidence is legally and factually sufficient to establish that Long breached the contract with United, we need not address whether the evidence is legally and factually sufficient to establish that United was entitled to recover under the alternate theory of quantum meruit. See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990) (stating "A party may recover under quantum meruit only when there is no express contract).
To recover under the doctrine of quantum meruit, a party must establish (1) either valuable services or materials or both were furnished, (2) to the party sought to be charged, (3) which were accepted by the party sought to be charged, (4) under such circumstances as reasonably notified the recipient that the plaintiff, in performing, expected to be paid by the recipient. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992).
We overrule Long's fourth and fifth issues.
Actual Damages
In his sixth issue, Long asserts that the jury's answer to question number five is immaterial and cannot support a judgment if this court sustains Long's attacks on the jury's first, second, third, and fourth findings. Jury question number five was predicated on the Jury's answering "Yes" to any of the jury questions numbered two, three, or four, which are described in detail above, and asked, "What sum of money, if any, if now paid in cash, would fairly and reasonably compensate United Welding Supplies, Inc. for its damages, if any, that resulted from Robert R. Long's failure to comply with the agreement with United Welding Supplies, Inc.?" The jury answered "4,274.02." Long's sixth issue is predicted on our sustaining his issues one, two, three, or four, which we have not sustained.
We overrule Long's sixth issue.
Fraud and Fraud with Malice
Long's seventh issue complains that, concerning the jury's affirmative answer to question number six, the evidence is legally and factually insufficient to show that Long made a material misrepresentation, that Long had any intent that United rely upon any such representation, and that United acted in reliance upon any such representation. Long's ninth issue asserts that the evidence is legally and factually insufficient to support the jury's affirmative answer to the fraud with malice jury question, which was jury question number eight.
Jury questions six and eight pertained to United's claims for fraud and fraud with malice. The jury answered "yes" to jury question number six, which stated:
Did Robert R. Long commit fraud against United Welding Supplies, Inc.? Fraud occurs when —
a. a party makes a material misrepresentation.
b. the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth as a positive assertion,
c. the misrepresentation is made with the intention that it should be acted on by the other party, and
d. the other party acts in reliance on the misrepresentation and thereby suffers injury.
"Misrepresentation" means a promise of future performance with an intent, at the time the promise was made, not to perform as promised.
The jury also answered "yes" to jury question number eight. It states, as follows:
Do you find by clear and convincing evidence that the harm to United Welding Supplies, Inc. resulted from fraud with malice?
"Clear and convincing evidence" means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations sought to be established.
"Malice" means:
(a) a specific intent by Robert R. Long to cause substantial injury to United Welding Supplies, Inc.; or
(b) an act or omission by Robert R. Long,
(i) which, when viewed objectively from the standpoint of Robert R. Long at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(ii) of which Robert R. Long had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.
A promise to do an act in the future is actionable fraud when made with the intention, design and purpose of deceiving and with no intention of performing the act. Formosa Plastics Corp. v. Presidio Eng'rs Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998). Failing to perform a contract, standing alone, is not evidence of intent on the promisor's part, at the time of making the promise, not to perform as promised. See id. at 48. As a general rule, the failure to perform the terms of a contract is a breach of contract, not a tort. CrimTruck Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 597 (Tex. 1992). Thus, to prove fraud, a plaintiff must present evidence that is "relevant to [the defendant's] intent at the time the representation is made." Formosa, 960 S.W.2d at 48.
As explained in more detail above under the breach of contract section, Long presents a single assertion concerning why the evidence is insufficient to establish fraud and fraud with malice. In his reply brief, Long phrases his complaint about the fraud issues as follows:
Turning to the issue of fraud, each species of Fraud inquired about in the court's charge requires the making of a misrepresentation. United admits in its brief that `United's fraud claim focuses on Long's false representations that he would pay for the goods furnished.' But there exists one fatal flaw in United's position, the record contains no evidence that Robert R. Long made a false representation of material fact.
Long does not dispute that MWT committed fraud upon United or that United was owed $4,274.02 for unpaid goods and services. We therefore address only Long's complaint concerning the lack of evidence that he personally made a false representation of material fact.
The record shows that MWT had possession of cylinders belonging to United at Long's business address on Windfern street and that Long refused to allow United to regain possession of those cylinders unless United waived the opportunity to seek legal recourse against Long personally for the MWT debt. Additionally, Long created false documents of correspondence that never existed between himself and United, which purported to establish that United owed money to Long for erroneously billing Long for the MWT account. In a similar pattern of deception, before requesting goods and services from United, Long had accepted services from an attorney, refused to pay for those services, and then created false documents that purported to show that Long did not owe money to the attorney. The jury could reasonably infer from this evidence that Long materially misrepresented to United an intent to pay for goods and services with a present intent not to pay for them and made that misrepresentation with knowledge of its falsity, much like he did not pay for the legal services rendered by Kamel. The circumstantial evidence of acts that occurred before and after Long's refusal to pay for the goods and services is sufficient to show that Long was doing business as MWT, Long engaged in a pattern of deception, and Long had fraudulent intent and no intention of ever paying for the goods when he ordered them. See Formosa, 960 S.W.2d at 48-49.
Moreover, as noted above, Long did not object to the jury charge on the grounds that it inquired about him individually or to the judgment in the trial court, which is imposed against "Robert R. Long d/b/a MWT." The judgment is binding on him individually because it is rendered against him individually doing business as an unincorporated association. See Old Republic Ins. Co., 920 S.W.2d at 396.
Viewing the evidence for legal sufficiency in the light most favorable to the jury's findings, we conclude that the evidence is legally sufficient to show that Robert R. Long committed fraud. In our neutral review of all the evidence for factual sufficiency, both evidence tending to support and tending to negate the jury's findings, we conclude that evidence in the record demonstrates that Long committed the fraud and that the opposing evidence does not so greatly preponderate against the evidence supporting the jury's findings as to demonstrate that they are clearly wrong and manifestly unjust.
We overrule Long's seventh and ninth issues.
Damages for Fraud, Exemplary Damages and Attorneys Fees
In his eighth issue, Long contends that the evidence is legally and factually insufficient to support the jury's findings in response to jury question number seven that Long committed fraud which resulted in damages of $4,274.02 to United. Jury question number seven was predicated on a "yes" answer to jury question number six. Long's complaint asserts that his eighth issue is contingent on our sustaining the jury's other findings, which we have not sustained.
The jury responded "4274.02" to jury question number seven that asked the following:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate United Welding Supplies, Inc. for its damages, if any, that resulted from such fraud? Consider the following elements of damage, if any, and none other. Cost of goods and services provided by United Welding Services, Inc. to Robert R. Long.
We overrule Long's eighth issue.
In his tenth issue, Long states, "As a result of this Court's disposition of the previous issues on appeal, the trial court's award of attorney's fees, exemplary damages, and prejudgment and post judgment interest and costs of court cannot stand." Jury question number 10, which concerned exemplary damages, was predicated on an affirmative response to jury question number eight. In jury question number nine, the jury determined that United was entitled to reasonable attorney's fees.
Question number 10 asked:
What sum of money, if any, if paid now in cash, should be assessed against Robert R. Long and awarded to United Welding Supplies, Inc. as exemplary damages, if any, for the conduct found in response to Question 8?
"Exemplary" damages" means an amount that you may in your discretion award as a penalty by way of punishment. Factors to consider in awarding exemplary damages, if any, are —
a. The nature of the wrong.
b. The character of the conduct involved.
c. the degree of culpability of Robert R. Long.
d. The situation and sensibilities of the parties concerned.
e. The extent to which such conduct offends a public sense of justice and propriety.
f. The net worth of Robert R. Long. The jury responded "$30,000."
United was awarded amounts of $20,000 for preparation for trial, $10,000 for an appeal to the Court of Appeals, $10,000 for making or responding to an application for writ of error to the Supreme Court of Texas, and $10,000 if application for writ of review is granted by the Supreme Court of Texas.
As set forth above, Long predicated his tenth issue on appeal only on our sustaining his issues described above, which we have not sustained. He did not assert any independent challenge to the judgment or the jury's findings. For example, Long has not asserted a complaint on appeal that the trial court's judgment awards both exemplary damages and attorney's fees and thus reflects that no election of remedies was made. We note that a plaintiff may not recover exemplary damages for a breach of contract. See Amoco Production Co. v. Alexander, 622 S.W.2d 563, 571 (Tex. 1981). Likewise, a plaintiff generally may not recover attorney's fees for a claim of fraud. See Gulf States Utils. Co. v. Low, 79 S.W.3d 561, 567 (Tex. 2002) (holding attorney's fees are not generally recoverable unless provided by statute or contract). Although Long objected to the trial court's judgment on this basis in his amended motion for new trial, he did not assert the matter as a basis for reversal in this Court, and we therefore do not address this issue. See Tex.R.App.P. 38.1(h).
We overrule Long's issue number 10.
Discovery and Trial Sanctions
In issue 11, Long contends that United waived any complaint regarding the conduct by Long that the trial court concluded was sanctionable because United was aware before trial of the sanctionable conduct and failed to bring its challenges prior to trial. In issue 12, Long asserts that the trial court abused its discretion in ruling that Long pay $45,000 to United as a sanction because (1) United did not raise its claim for sanctions until after the trial began, (2) Long did not introduce the documents in question into evidence at the trial, but rather objected to their introduction, and (3) the trial court's conclusions are erroneous and unfounded.
"Failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes waiver of any claim for sanctions based on that conduct." Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) (holding that when party is aware of pretrial misconduct, such as abuse of discovery, party must request pretrial hearing and ruling, or party waives right to complain about misconduct). Although a party may not have conclusive evidence of misconduct until after the commencement of trial on the merits, a party's failure to obtain a pretrial ruling concerning pretrial misconduct, of which it is aware, results in waiver of the right to complain about the pretrial misconduct. Meyer v. Cathey, 167 S.W.3d 327, 333 (Tex. 2005) (holding that although Meyer obtained conclusive proof of misconduct during trial, Meyer failed to preserve claim for sanctions by not objecting prior to trial because Meyer was aware from deposition testimony that Cathey made false representations during discovery concerning content of resume). A party does not lose its right to obtain sanctions during or after trial, however, when the party was unaware of the objectionable matter prior to trial or when the objectionable matter occurred after the commencement of trial. Id.
The first mention of a motion for sanctions that appears in the record occurred on the second day of the jury trial, when United asked the trial court to sanction Long for injecting false documents into discovery. Long's trial attorney responded to the motion for sanctions by asserting that it was brought untimely and was a surprise to him. In explaining that he had not had time to prepare a response to United's motion for sanctions, Long's trial attorney stated, "This is the first I've ever heard of a sanction motion, so I haven't had time to prepare a response to that." The trial court responded to Long's objections by stating, "Then you would not object to the Court carrying this along and ruling at the conclusion of the jury verdict?" Long's trial attorney then agreed to address the sanctions issue after the receipt of the jury's verdict. Most importantly, this discussion did not occur until the second day of trial.
After the jury's verdict, United filed its first written motion for sanctions requesting sanctions in an amount of $75,000 for Long's production of falsified documents during discovery. About two weeks later, United filed an amended motion for sanctions that added assertions regarding Long's conduct during trial. The trial court held a hearing on the sanctions motion on September 20, 2002. At that hearing, the court inquired whether any pretrial motion for sanctions was made by United, because the court's file did not contain a written pretrial motion for sanctions. A discussion then ensued about whether an oral motion for sanctions was made prior to the commencement of trial. The record shows, as follows:
United's Plaintiff's Motion for Sanctions asserted its "factual basis for sanctions," as follows:
After trial of this cause, the jury returned a verdict awarding plaintiff actual damages . . . During a mediation shortly before this case was set for trial for the second time, the defendant produced supplemental discovery documents which purported to show that the plaintiff's representative, Carolyn Johnson, erroneously billed the defendant for welding supplies ordered by a partnership in which the defendant denied any interest. The plaintiff was then required to hire a document examiner to prove that the documents, and her signature, were forged by the use of computer technology. Additional documents were produced, backdated, and signed by defendant. The forged documents increased the expenses of litigation and further delayed the trial of this case.
The substance of this allegation was reasserted on September 23, 2002, in Plaintiff's First Supplemental Motion for Sanctions.
Plaintiff's First Amended Motion for Sanctions and Plaintiff's First Supplemental Motion for Sanctions, stated as follows:
At trial, defendant for the first time alleged that original documents transmitted by his former attorney to opposing counsel and examined by a forensic document examiner, who testified as an expert for the plaintiff at trial, were in fact forgeries. (Admitted Plaintiff's Exhibit 38). The allegation was denied not only by plaintiff's counsel but by defendant's former counsel, Ed Hennessy. Defendant has asserted an affirmative defense that he was not liable individually in this matter. This pleading was frivolous and rejected by the jury. Defendant manufactured documents to support this defense. (Admitted Plaintiff's Exhibit 38).
[The Court]: I had requested the parties to look for a Motion for Sanctions because I recalled one being presented to the Court. There is no written Motion for Sanctions in the file. The Motion for Sanctions is one that was made orally prior to the beginning of the trial. I at that time instructed the parties that I would take it up posttrial and would not take it up during the trial. Mr. Scully, is that your recollection?
[Long's attorney]: I don't remember the substance of the Motion for Sanctions but I do remember Mr. McCormick raising the issue prior to trial.
[The Court]: And that I refused to accept it at that time?
[Long's attorney]: I believe that's correct, Your Honor.
[The Court]:Is that your understanding, Mr. McCormick?
[United's attorney]:Yes, Your honor; I just don't remember the timing of it, Your Honor, when it was made.
[The Court]: I think it was just before I was about to bring in the jury for voir dire, which is not a good time to bring a motion before the Court.
After determining that an oral motion for sanctions was made before the commencement of trial, the trial court conducted an evidentiary hearing, at which Long and United's attorney each testified. Long's testimony at the sanctions hearing acknowledged that before trial, no one, other than his own attorneys, was aware of his belief that Exhibit 38 did not contain his original correspondence.
The record shows, as follows:
[United's attorney]: So you knew at the time of your deposition that there's no way that those documents could be original documents because they were signed in black ink — at least the majority of them — and not in blue?
[Long]: I didn't think they were. No, I didn't [think] they were originals.
[United's attorney]: And at that time neither you nor either of your attorneys, prior to trial, let the Court know or let opposing counsel know that you intended to dispute those documents as being true, original documents?
[Long]: I wasn't going to dispute them; I was going to let the expert dispute them.
[United's attorney]: So no one could have known then, Mr. Long, about your defense that these were fraudulent documents, the documents that are in Exhibit 38, until the time of trial because you never let anyone know that you were going to make those allegations?
[Long]: I let Ed Hennessy know and I let Paul Sculley know.
[United's attorney]: Did you let anyone else know?
[Long]: No, I did not.
After the hearing, the trial court's judgment ordered sanctions in the amount of $45,000.00 against Long for his pretrial conduct that consisted of injecting forged documents upon the trial court in an attempt to avoid payment of a legal debt and submitting other forged documents during the discovery process in this case and his conduct during trial that consisted of denials, for the first time at trial, that the signature on the original documents was his signature.
The complete text of the trial court's judgment regarding the sanctions issue stated:
The imposition of this monetary sanction results from the defendant, ROBERT R. LONG d/b/a MWT, injecting forged documents upon the Court in an attempt to avoid payment of a legal debt and then denying that the signature on the documents was his signature for the first time at trial. ( See Plaintiff's Exhibit 38.) The Court reserves the finding of whether or not this is the first instance in which the defendant, ROBERT R. LONG d/b/a MWT, has conducted himself in this manner. The Court finds that this defendant submitted other forged documents during the discovery process in this case. The Court finds that this defendant's actions defile and defy the institution of the judiciary and the administration of justice. This sanction is imposed pursuant to the Court's inherent power to sanction to protect the dignity, independence and integrity of the court system and to aid in the administration of justice. Further, the imposition of this sanction is based on Texas Rules of Civil Procedure 13, Texas Rules of Civil Procedure 215 and Texas Civil Practice and Remedies Code 10.001 et seq. and the inherent powers invested in this Court.
Two of the grounds for the imposition of sanctions in the trial court's judgment plainly reference conduct that occurred pretrial — the tendering of forged documents to avoid payment of a legal debt and submitting forged documents during the discovery process. Because United was aware of these discovery abuses before trial, United was required to obtain a pretrial ruling to avoid waiving its right to complain about sanctions for the pretrial conduct. See Meyer, 167 S.W.3d at 333; Remington Arms Co., 850 S.W.2d at 170.
The record shows, however, that the trial court refused to hear and refused to rule on an oral pretrial motion for sanctions made by United. But the record does not show the substance of United's oral pretrial motion. We cannot discern from the record before us that the trial court refused to hear, consider, or rule on the same grounds for sanctions that were later asserted during trial. We conclude that United did not preserve its pretrial, off-the-record oral motion for sanctions because it did not obtain a pretrial ruling on the issue of fraudulent documents produced during pretrial discovery. Further, we hold that the trial court's refusal to rule on any oral pretrial motion for sanctions does not excuse United's failure to make a record as to the basis for sanctions, because the record does not show the substance of that motion on which the trial court refused to rule and that the motion could have pertained to conduct other than the issue of the fraudulent documents.
The record suggests that the motion for sanctions concerning the injection of forged documents through pretrial discovery was first made during trial rather than pretrial. On the second day of trial, when United asked the trial court to sanction Long for injecting false documents during discovery, Long's trial attorney responded by asserting that United's motion for sanctions was brought untimely and that "This is the first I've ever heard of a sanction motion, so I haven't had time to prepare a response to that." Thus, even if we were to conclude that United raised its motion for sanctions at that point, this did not occur until the second day of trial, which was untimely. Meyer, 167 S.W.3d at 333; Remington Arms Co., 850 S.W.2d at 170. Although Long's attorney agreed to defer discussion of the motion for sanctions from mid-trial to posttrial, that agreement was made after an objection to the timeliness of the sanctions motion. Regardless of whether the sanctions issue was discussed when it was first brought by United's trial attorney on the second day of trial or whether the sanctions matter was discussed after the jury trial by agreement of the parties, the motion was untimely asserted under Remington Arms and Meyers because the motion, which pertained to pretrial discovery complaints, should have been brought pretrial. Meyer, 167 S.W.3d at 333; Remington Arms Co., 850 S.W.2d at 170. We therefore conclude that Long's agreement to defer the discussion from mid-trial to posttrial does not constitute waiver of his complaint that the sanctions motion concerning pretrial conduct was untimely asserted.
Part of the judgment for sanctions, however, was premised on Long's denial for the first time at trial that the signature on the documents was his signature, conduct that occurred after the commencement of trial. Conclusion of Law number two states that "The assertion by defendant at trial and the sanctions hearing that Exhibit 38 did not contain the documents that were tendered by the defendant as original documents pursuant to a Motion to Secure Evidence interfered with the orderly and proper administration of justice, defiled the institution of the judiciary, delayed trial of this cause, and needlessly increased the expenses of litigation."
In three findings of fact, the trial court found that (1) Long forged and produced in supplemental discovery, false documents with intent to commit a fraud upon the Court and to abuse the discovery process; (2) the forged documents increased the expenses of litigation, delayed the trial of this case, violated Rules 13 and 215 of the Texas Rules of Civil Procedure, and directly abused, compromised, attacked and violated the Court's dignity, independence, integrity and ability to administer justice; and (3) the conduct by defendant was part of an intentional pattern of producing forged documents in the litigation process.
The trial court entered three conclusions of law, as follows:
1. The defendant has engaged in a fraud upon the court, abused the discovery process, and abused the litigation process through the use and misuse of forged documents.
2. The assertion by defendant at trial and the sanctions hearing that Exhibit 38 did not contain the documents that were tendered by the defendant as original documents pursuant to a Motion to Secure Evidence interfered with the orderly and proper administration of justice, defiled the institution of the judiciary, delayed trial of this cause, and needlessly increased the expenses of litigation.
[3]. A monetary sanction against the defendant in the sum of . . . ($45,000) is appropriate. There is a direct relationship between the offensive conduct and the propriety of the sanction. . . . The defendant's conduct is reprehensible and a monetary sanction by the court in the amount of . . . ($45,000) is appropriate to the Texas Rules of Civil Procedure and the inherent power of the Court to impose sanctions in order to protect the dignity, independence, and integrity of the Court and to aid in the administration of justice.
When a trial court uses its inherent powers to sanction, the trial court's discretion is limited in the following ways: (1) there must be a direct relationship between the offensive conduct and the sanction imposed; and (2) the sanction imposed must not be excessive. Greiner v. Jameson, 865 S.W.2d 493, 499 (Tex.App.-Dallas 1993, writ. denied); State v. PR Investments Specialty Retailers Inc., 180 S.W.3d 654, 673 (Tex.App.-Houston [14th] 2005, no pet. h.). In other words, the punishment should fit the crime; the sanction must be directed against the abuse and toward remedying the prejudice caused to the innocent party. Id. Because we have concluded that United waived its right to assert the pretrial complaints that resulted in sanctions, we further conclude that the trial court must reassess the sanctions imposed to address only the sanctionable conduct that occurred after the commencement of trial. Moreover, we note that United presented the same evidence regarding false documents produced by Long as a basis for the jury to award punitive damages. The jury did so, and thus, United relies on this evidence to support the jury's award of punitive damages against Long. We therefore reverse the $45,000 sanctions award for redetermination in light of the holdings in this opinion.
In issue 12, Long asserts that the trial court abused its discretion by ordering Long to pay United $45,000 as a sanction because United did not raise its claim for sanctions until after the trial began. For the reasons explained above, we sustain that portion of issue 12 that complains about the untimeliness of the sanctions award concerning pretrial misconduct. Within issue 12, Long also asserts that he did not introduce the documents in question into evidence at the trial, but rather objected to their introduction. The record reflects that United's attorney offered the documents into evidence to show Long's pattern of deception to avoid payment for the debt. Although United's attorney offered the documents into evidence, the imposition of sanctions was for Long's conduct during trial for denying for the first time at trial "that the signature on the documents was his signature." Long also contends within issue number 12 that the trial court's conclusions are erroneous and unfounded. Long has not included any argument as to issue 12 to support his assertions within the one and one-half pages that constitute the argument section of his entire brief. To the extent that Long is challenging the trial court's conclusions of law, Long's failure to explain his assertion constitutes waiver of that issue in this appeal. See Ryan v. Abdel-Salam, 39 S.W.3d 332, 336 (Tex.App.-Houston [1st] 2001, pet. denied); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex.App.-Houston [1st] 2000, no pet.).
Conclusion
We reverse the award for sanctions for redetermination upon consideration of conduct that occurred only after the commencement of trial. We affirm the judgment of the trial court in all other respects.