the district court first held that could not bring an action because surety had legal title to the property and we of course believe this is an accident and applicable because the court relied on a statute that was not in effect at the time that they breached the duty to convey legal title at the time of the breach and until which was in two thousand and fourteen and until the legislature enacted another statute which actually quite did i recorded executive or a contract contract he equated that with a gain retaining inventors and she didn't have a legal title the purpose of that of course is that without to the regular ordinary more traditional financial structure of a deed with a deed of trust and promissory note and all that and that she failed to do that so she bring this action first there's nothing in the statute that sets at as a requirement to recovering liquidated damages nothing and secondly  even more pointed is the fact that after was paid off and shoes do this deed that they didn't provide when she paid it off there was no debt there was no what there was argument i believe is just a sale now the third thing is is that the court seem to believe that in order to cover liquidated damages is that you must live continuously in an interrupted plea in the house that is the subject of this executor a contract i guess until you bring an action or as the action is concluded again nothing in the statute says that i pointed out in every several instances where a believe this as it is not the case but in a nutshell she bought the house with her husband and then husband they lived there for years it was a residence it's out of the lot inside a town it was not an investment property she lived as a residence the fact that when she got divorced which happens statute was amended that that did at least as of that date the statute vested legal title in her and she was didn't need a deed from that point forward are you with me at that point in time she had a legal legs i think the statu and that you have to have some actual damages before you get the penalty just as again assuming what you would do the best best case for cases that say that payment of interest and taxes are actual damned well the record was that she argue was because of that last sale in january of two thousand and five that she continued to pay interest and taxes after that date right james joyce what is your best case is that that and finally  it was as far as the president's i think the record certainly supports a sort of at least there's a fact question i mean there may be situations where you know actions that really bite for resident they didn't you know that is going one way or the other up and cite some of those cases if the court went for them on that but it was on the basis of the no genuine issue of internal fact this is different we do not you do not have to have a continuous and uninterrupted the that the texas statute forty one point zero zero one at sec applies to our case it applies to five point zero texas supreme court of the floors for says millennium interest and one of the questions was does five point zero seven nine require actual damages the court that whether or not the texas statute on exemplary damages applies to to a five point zero seven nine and we would argue that that it doesn't and i've got some questions of myself  it we have to prove malice fraud gross negligence and if that's cash you never going to get in damages and five point zero seven nine and of that even the least stringent conditions gross negligence it's  they just please play that we believe that five point zero seven nine has been looked at interviewed many times since the enactment of that statute forty  statute governing the exemplary damages and they didn't make any changes so the latest statue effect is five point zero seven i believe there's a conflict and and in any event around it we believe that that some other things i mean you get a jury that i supposed to give the that jury a charge of exemplary damages is served by for kate of trial on the damage issue and convincing evidence i'm wondering if i can is saying we just adopt the entire statute or do we not this one procedure but this one particular really meant to do that and i don't think i've think it would be a good idea windfall that's unmoored from any showing of actual damages and without any malicious conduct on the part of the appellee it's indeed the public seeks exemplary damages almost ten times the purchase price of this home and almost fifty times the amount of the only dollar figure listed in their petition or testified to in the ep elements deposition and that as judge ellen pointed out it was for approximately six thousand dollars in that unfortunately for the appellant there are at least three independent reasons to affirm the district court's grant of summary judgment which denied her this massive in an equitable windfall before oversight those three independent reasons i'd like to point out what this case is not about it's not about any of the usual nonsense you see from banks and loan servicers there's no allegation of extra fees collection of extra payments failure to disclose essential information collecting money that's not charging improper penalties none of the usual parade of horribles that banks and mortgage mortgage servicers are accused of are addition here instead well your honor that is true as a general principle here i would suggest it's not hard to prove actual damages with a slander of title action and that's the original action that this plaintiff appellant brought in is a sale a specific sale to a specific buyer for a specific amount had failed as a result of not having a warranty deed from the bank of new york she would have a very good actual damages case but there's no evidence of that in this record and indeed i would point the panel to texas supreme court case called l s e waltrip cited in our briefing to the trial court but didn't come up in our briefing to this court at six five six southwest second nine o two the pinpoint is nine zero four zero five texas supreme court very general testimony about a possible sale that never culminated in a specific offer a specific price and there's certainly no evidence it was thwarted by the absence of a warranty deed from the bank of new york time to my property i'm entitled to and i say we don't have to i think the texas legislature did provide a mechanism for that and that's what were five point zero eight one of the property code comes in and that's the conversion the ability to convert one of these executive contracts or contracts for deeds into a traditional mortgage to thereby show the amount of that quickly that the purchaser has acquired so the legislature judgment well if it gives you equitable title not full legal ti images in some cases may be hard to prove we're going to provide a liquid then i think we go to i sit down a possible read i think that is a plausible reading i think there's an equally plausible reading that's actually reinforced by the september  fifteen amendment in this is the fundamental question that issue in this case judge owen and that's the question of whether this temper fifth first point fifteen amendment codifies been clarified existing texas law and that's what we argued that with judge you know found below he uses the word clarify texas law in his summary judgment of your opinion or whether it's a fundamental modification of texas law and i would suggest and that's of course their position that it changed w this a statute as originally drafted is not a model of clarity and that's unfortunate been that's why the september first twenty fifteen amendment was we believe necessary to clarify the state of the law in the state of the law was if you look at the remedies that are provided if you look at the different remedies that flow as between a recorded executive or a contract which is what we have here in an unrecorded executive or a contract there are different sets of remedy it's the remedy for out what that amendment was meant to do to change the law or to clarify the law we say it's to clarify the law he says it's to change the law if it was to change the law then that remedial scheme that existed as before september first twenty fifteen doesn't make any sense if all it is is it's not a interest it wouldn't support the remedy of foreclosure the record executive or a contract supports the remedy of foreclosure the under court executor contract allows rescission in forfeiture those are fundamentally different remedies and that's what gives us the best insight into the texas legislature sink thinking when it passed the original version of the statute in one thousand nine hundred five so it's a relatively young statute statute was aimed to do it was aimed to protect low income buyers of so called coal in the us homes along the texas mexico border who don't have access to the traditional mortgage system this case is very far removed from the colon s system in outside of paso and in the rio grande valley this is a much more traditional purchase that was recorded in the property rector records of ector county texas and it was convertible under five point zero eight one and as your honor asked my opposing counsel is there evidence that she asked for a title no she had the ability to proceed under five point zero eight one she never did  this business about judge should hell including five point zero eight one in his summary judgement opinion it's cause opposing counsel some confusion or consternation i think i can clear that up one of the two statutes under which he seeks liquidated damages is five point zero eight one that was just a district court disposing of his five point zero eight one claim the other claim is under five point seven nine that's the more central the flagship claim related to the failure to immediately yield up a warranty deed now judge even if my opposing counsel is right and the amendments of september first twenty fifteen represented a fundamental change of texas law rather than as judge should it chanel found a clarification of texas law there's still as your honor judge joan already pointed out the tremendous obstacle of civil practice and remedies code chapter forty one chapter forty one is almost universally applicable to claims in texas unless there is a carve out in the statute there is no carve up from from section forty one in the property code five point seven nine or five point zero eight one and so what does section forty one do it requires a showing of actual damages in order to recover exemplary damages here all they seek is exemplary damages indeed when boney bank of new york gave title on august ninth twenty fifteen in response to this lawsuit get it gave the warranty sought how did she react did that end the matter no she amended to the current the live version of her pleading september sixth twenty sixteen version of her pleading which suddenly seeks only liquidated damages it went from a situation in which the plaintiff appellant was seeking a warranty deed from the bank of new york to a situation in which he's seeking over three hundred thousand dollars in liquidated damages on a thirty seven thousand dollars house purchase and six thousand dollars worth of of of taxes and insurance and i would respectfully suggest that those taxes in insurance in no way represent actual damages and that's consistent with the public's testimony in deposition she paid taxes because it was her understanding her correct understanding that if those taxes aren't paid the taxing authorities could in time seize the house she was protecting her interest in that house whatever the legal definition of that interest she has honor look at her life petition in in the record there is no breach of contract claim there is no slander of title claim there all it seeks is liquidated damages under five point zero seven nine and five point zero eight one five point zero eight one fails on its face because she never sought to convert within the meaning of the statute five point zero seven nine sales because this is a home that she no longer resides in that she is used as a rental property and that she's seeking damages for during the time she's using it as a rental property she moved out of this home in january twenty fifteen she began to renting the home for five hundred fifty dollars a month in april twenty six well i just think that's because that's the period for which she seeking these damages i mean clearly her hands were tied if she's not residing in the property if she can rent the property out during the period in which she's complaining she didn't have a warranty deed from bank of new york it again goes to that issue of damages in her testimony she paid insurance because she was worried about natural disasters her testimony and she paid taxes because she was worried about the taxing authorities taking the house away she was protecting her interest as she understood it she hasn't brought a breach of of contract claim and cheap non seated with amendment the amendment her slander of title claim all that leaves us these these this quest for massive liquidated damages and word from actual damages on word from the sort of bad conduct that even in florida the texas supreme court looked at five point seven seven which is a companion piece to five point seven nine three certified questions from this court first question was five point zero seven seven violated in florida the texas supreme majid jordi held no it was not the conduct was not sufficiently bad sufficiently outrageous to warrant those sorts of liquidated damages second certified question from this court are those liquidated damages penal in nature certainly they are that's a central third question from this court the texas supreme court declined to answer whether civil practice in remedies code section forty one applause if section forty one applies then there has to be that showing of actual damages in that correlation that due process correlation between actual damages and the exemplary or punitive damages that flow from them and if we're at a ratio of fifty to one which is again the ratio they seek off of these failure the payment of insurance and payment of taxes the ratio of fifty to one actual two exemplary aides is off the constitutional map  is the entire line of authority from the u s supreme court we don't get into that because that did not suit you know that's not what the district court held the district court did not get there in its analysis because i think there are three much simpler ways and the lender doesn't give you d within thirty days then you could liquidate damages seems to me that does does clearly contemplate a situation where the purchaser had the right under eighty one to convert but chose not to just chose to continue making the payments to the end of the executor contract if you had to comply with eighty one before you get to seventy nine that's nonsensical because you would never get to the end of executor or a contract if you were required first to tender or new five point zero seven nine and what the district court held in what tony in auckland argue is that because of the distinction in the remedies for recorded versus unrecorded and informed by the clarification of the texas legislature in new five point zero seven on the filing of an executive or a contract in this case with the property records of after county has the same legal effect as a here if it can be foreclosed then as a matter of law she has title she has title and that's what allows us boney in auckland to foreclose also i would note in the divorce proceedings her ex husband signed  warranty deed conveying to her his interest in this home again implying that the record ation of the executor a contract created a legal interest in this property a recognized legal interest in this yes just very open seems to complain that we no longer have slander title action because it requires pacific sales offer an acceptance where without evidence cherry stand that is so that is just the problem with five point zero seven nine who is going to offer you money on house when you do not have title to it that's the whole point something ought to be noted is that i think the statute now requires the seller to record an executor a contract they change it up in several respects they require that the seller record the contract so that it court to state that this clarification issue is just counter to the texas law has been for years and years and years that's not clarification  they've looked at it again and again and they still have it in there so i think your honour's this is this is what the law is now and i ask for your judgment