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Deam Ranch Properties Ltd v. Bayliss11/30/2005
Dean Ranch Properties, Ltd., and Bayliss both appeal the trial court's judgment in Dean Ranch's suit for fraud in a real estate transaction. See TEX. BUS. & COMM. CODE ANN. § 27.01 (Vernon 2002). We affirm the judgment as reformed.
Capacity. In Bayliss's first issue, he contends that Dean Ranch lacked standing. Bayliss argues that he conveyed the property at issue to an individual, not to Dean Ranch, a limited partnership. This is an issue of capacity, not standing. Bayliss waived the issue by failing to file a verified denial. See TEX. R. CIV. P. 93; TEX. R. APP. P. 33.1(a); Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-49 (Tex. 2005); Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex. 1988) (per curiam); WHM Props., Inc. v. Dallas County, 119 S.W.3d 325, 330-31 (Tex. App.--Waco 2003, no pet.) (per curiam). We overrule Bayliss's first issue.
Prejudgment Interest. In Bayliss's second issue, he contends that the trial court erred in awarding prejudgment interest. Bayliss argues that the prejudgment-interest statute permits prejudgment interest only in wrongful death, personal injury , and property damage cases, but not on Dean Ranch's claim. See TEX. FIN. CODE ANN. § 304.102 (Vernon Supp. 2005). The case that Bayliss cites for that proposition does not so hold. See Johnson & Higgins, Inc. v. Kenneco Energy, 962 S.W.2d 507, 528 (Tex. 1998) (holding that prejudgment interest may be either statutory or equitable). The trial court did not err in awarding prejudgment interest. We overrule Bayliss's second issue.
Damages. In Dean Ranch's first issue, it contends that the trial court erred in not awarding it damages found by the jury. Dean Ranch sought damages for the value of the property and for interest on the note on the property. The jury awarded damages for interest but not for the value of the property, and the trial court did not order rescission. The interest that Dean Ranch seeks to recover is the interest that it paid on the debt incurred to purchase the property. Dean Ranch remains the owner of the property and the debtor on the note. Dean Ranch was awarded damages for the diminished value of the property. The prejudgment interest awarded by the trial court on the amount of the damages compensates Dean Ranch for the use or detention of money. Thus, the judgment represents the damages plus interest for the period of time prior to Dean Ranch's recovery. Accordingly, the trial court did not err in disregarding the jury's answer to the interest damages issue. See TEX. R. CIV. P. 300-301. We overrule Dean Ranch's first issue.
Attorney's Fees. In Dean Ranch's second issue, it contends that the trial court erred in not awarding it attorney's fees found by the jury. See TEX. BUS. & COMM. CODE ANN. § 27.01(e). The case went to the jury on three theories: negligence, common-law fraud, and statutory fraud in a real-estate transaction. See id. § 27.01(a). The jury found in favor of Dean Ranch on all three theories. Thus, absent an election by Dean Ranch, it was the trial court's duty to render judgment under the theory that would support the judgment under the theory that would support the largest recovery. Cf. McCarty v. Morrison, 468 S.W.2d 350, 351 (Tex. 1971) (mandatory duty to render judgment on verdict); Tate v. Wiggins, 583 S.W.2d 640, 644 (Tex. Civ. App.--Waco 1979, no writ) (same). The trial court awarded Dean Ranch damages in the amount of $123,000. The same amount of damages is proper under all three theories. The theory that yields the largest recovery is the Section 27.01 theory, because it is the only theory of the three under which attorney's fees are recoverable. See TEX. BUS. & COMM. CODE ANN. § 27.01(e).
Baylis
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