NO CV FOR THE FIFTH JUDICIAL DISTRICT AT DALLAS, TEXAS. WAYNE A. MANOR, Appellant

Transcription

1 NO CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 March 7 P4:02 Lisa Matz CLERK IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT AT DALLAS, TEXAS WAYNE A. MANOR, Appellant v. ELLIOTT BRADLEY, VENDEMMIA, L.P. d/b/a RE/MAX PRESTON ROAD and MARILYN LAIR, Appellees th On appeal from the 199 Judicial District Court Collin County, Texas. No (Hon. Robert T. Dry) APPELLANT S REPLY BRIEF ORAL ARGUMENT REQUESTED PATRICK T. MULRY, P.C. PATRICK T. MULRY State Bar No Greenville Ave., Suite 200 Dallas, Texas Telephone: (214) Facsimile: (214) Attorney for Appellant Wayne A. Manor

2 Appellant s Counsel IDENTITY OF PARTIES AND COUNSEL Patrick T. Mulry PATRICK T. MULRY, P.C Greenville Ave., Suite 200 Dallas, Texas (214) (214) (fax) pat@patmulry.com Trial Counsel & Appellate Counsel for Wayne A. Manor Appellees Counsel B. Blake Cox Jennifer M. Covington LAW, SNAKARD & GAMBILL, P.C. 777 Main Street, Suite 3500 Fort Worth, Texas (817) (817) (fax) bcox@lawsnakard.com jcovington@lawsnakard.com Trial Counsel for Vendemmia, L.P. d/b/a ReMax Preston Road and Marilyn Lair Steven K. Hayes LAW OFFICE OF STEVEN K. HAYES 201 Main Street, Suite 600 Fort Worth, Texas (817) (817) shayes@stevehayeslaw.com Appellate Counsel for Vendemmia, L.P. d/b/a ReMax Preston Road and Marilyn Lair -i-

3 Grady R. Thompson MCWILLIAMS & THOMPSON 2713 Virginia Parkway, Suite 100 McKinney, Texas (972) (972) (fax) Trial Counsel & Appellate Counsel for Elliot Bradley -ii-

4 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL...i TABLE OF CONTENTS...iii ABBREVIATIONS & RECORD REFERENCES i v REPLY BRIEF... 1 CERTIFICATE OF SERVICE iii-

5 ABBREVIATIONS & RECORD REFERENCES Abbreviations Wayne A. Manor (Appellant)...Manor Elliot Bradley (Appellee)... Bradley Vendemmia, L.P. d/b/a Re/Max Preston Road (Appellee) Vendemmia Marilyn Lair (Appellee)...Lair Vendemmia and Lair, jointly.... Appellees Hon. Robert T. Dry...Judge Dry or the trial court Record References Cites to the Reporter s Record are in the form of ([vol #] RR [page #]). Cites to the Clerk s Record are in the form of ([vol #] CR [page #]). -iv-

6 TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Appellant Wayne A. Manor submits this reply brief seeking reversal of the trial court s judgment. Appellant files this reply brief pursuant to the Texas Rules of Appellate Procedure and all applicable Local Rules of this Court. As noted in Appellant s brief, Manor s evidence of damages was (and remains) undisputed. Appellees countered Manor s damages evidence with nary a hint of evidence or examination in dispute of Manor s damage evidence. A fact finder can only award damages within the range of the evidence put before the court. Accordingly, this Court should reverse the trial court s judgment and award the full and undisputed amount of damages that were proved at trial, or, alternatively, remand to the trial court for a new trial on the damages issue. Appellant s reply brief will concisely detail the problems found in Appellees Brief and explain why this Court should disregard Appellees argument. Inaccuracies Contained in Appellee s Statement of Facts. Appellees Statement of Facts contains numerous misstatements and inaccuracies which mislead this Court as to the evidence presented to the trial court. To that extent, the Appellees brief serves to obfuscate, rather than to illuminate. Appellees statement of facts is so shot through with argumentative and conclusory statements which are unsupported by the record that to point out every instance would not only be tedious -1-

7 and onerous, but would cause Manor s reply brief to bust through the page limits provided in the Rules of Appellate Procedure. Given the simplicity of Manor s argument on appeal, one is tempted to suggest that Appellees are attempting to obfuscate through volume. Manor will again take a different tack and, therefore, this reply brief will hit only the high points. A. Misstatements about Manor and Lair s Relationship Appellees make great hay of Manor s prior real estate experience, yet fail to note that it was precisely due to Manor s experience that he sought out Lair to assist him in the purchase of the Property at issue in this dispute. As Appellees correctly note, Manor knew what he wanted to do with the Property and in what order he wanted to construct the buildings, and that is why he specifically asked Lair who claimed to have great experience in this particular neighborhood to help him with the purchase of the Property. Manor was relying upon the purported wisdom and experience of his real estate agent to guide him through this transaction. Lair had a profound and fiduciary duty to guide Manor, but instead her efforts in this case as illustrated by Appellees statement of facts amounted to little more than signing up Manor as a client and collecting a commission check at the end. As Appellees concede, Manor asked Lair to help him to do what he wanted with the Property, and Lair failed to do so to Manor s detriment. -2-

8 B. Misstatements About Damages Evidence More importantly, Appellees mischaracterize the damages evidence that was introduced at the bench trial. Appellees claim that Manor did not introduce evidence to prove up his total damages. As indicated in the Reporter s Record, Manor introduced his evidence of damages and it was admitted without objection. 3 RR Appellees never made any cross-examination, argument, or introduced any evidence in opposition to Manor s damages claims. Appellees also argue in their statement of facts that no evidence about the contingent future sale of the Property was entered before the Court. However, in the very section about which Appellees complain, Manor explains to the Court that he is only seeking construction-related damages that he was forced to abandon due to the restrictive covenants about which Lair did not warn him, and not damages related to the purchase of the land itself. 3 RR 29. If Appellees were concerned about an offset or credit to the damages entered as evidence, they had the opportunity to introduce evidence in support of that contention. As witnessed by the lack of evidence thereto, Appellees apparently chose not to contest the damages figure or introduce the contention that they were entitled to mitigation of damages. Having failed to raise this issue at trial, Appellees cannot now raise it for the first time on appeal. Similarly, Appellees claim that Manor failed to prove that the attorneys fees incurred were not segregated by claim and that they were not proved up as reasonable -3-

9 and necessary. As to the former claim, it is yet another example of a matter that must receive an objection at the trial level or it is waived at the appellate level. Appellees never objected that Manor s attorneys fees calculations needed to be segregated by cause of action and it is disingenuous for Appellees to attempt to raise that issue for the first time on appeal. With regard to proving up that his attorneys fees were reasonable and necessary, Manor and Appellees agreed on the record that the predicate for the fees being reasonable and necessary was laid, and then Appellees never cross-examined on the issue. The only evidence before the Court at the time was that Manor s attorneys fees were fair, necessary and reasonable. 3 RR Inconsistencies in Appellee s Argument: Role and Effect of Judicial Comment. Appellees claim that an appellate court cannot construe comments of the trial court as findings of fact and conclusions of law, and Manor agrees. The trial court did not issue findings of fact and conclusions of law, despite being requested to do so. But if Appellees make the argument that the Court s statements from the bench cannot be used to indicate the intent of the court in the absence of its findings, then it is curious and inconsistent that Appellees then attempt to use the Court s statements from the bench to assert that the Court had multiple reasons for issuing a take-nothing judgment. See Appellee s Brief, p

10 CONCLUSION Evidence was presented to the trial court that Manor suffered damages as a result of the breach of fiduciary duty by Appellees Vendemmia and Lair. No evidence was presented to the trial court by any party that disputed Manor s evidence of damages or that indicated any reduced offset versus Manor s damages. The trial court granted a take-nothing judgment, stated on the record that there was no evidence of the future sale price of the land, and speculated that it could not calculate damages without knowing about a possible future value about which no evidence was entered and for which Manor was not seeking damages. Because there is no evidence to support the court s finding of zero damages, the judgment should be reversed and remanded. Respectfully submitted, PATRICK T. MULRY, P.C. Patrick T. Mulry Texas Bar No Greenville Ave. Suite 200 Dallas, Texas Telephone: (214) Telecopier: (214) pat@mulrylaw.com -5-

11 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was delivered to counsel for all parties in accordance with the Texas Rules of Appellate Procedure on March 7, Patrick T. Mulry -6-