IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-51118

BRENDA G. MATTHEWS STIDHAM, 

 Plaintiff - Appellant

v.

OCWEN LOAN SERVICING, L.L.C.; THE BANK OF NEW YORK MELLON, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:16-CV-193

Before OWEN, Chief Judge, and KING and STEWART, Circuit Judges.

PER CURIAM:*

Brenda Stidham and her then-husband, Ray Matthews, entered into an 

executory contract to purchase a house in Odessa, Texas, in 1994. Stidham 

made her final payment on October 2014, but she did not receive the deed 

transferring ownership of the house until August 2016. Stidham primarily 

sought liquidated damages under § 5.079 of the Texas Property Code, which 

requires sellers to transfer legal title to property covered by an executory 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 6, 2020

Lyle W. Cayce

Clerk

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contract within thirty days of the purchaser’s final payment. The district court 

granted summary judgment to the defendants, finding that Stidham was not 

entitled to liquidated damages. We AFFIRM.

I.

A.

Stidham and Matthews entered into an executory contract to purchase a 

house from Nick and Shirley Flaker in 1994. Under the contract, after Stidham 

and Matthews made 240 monthly payments, the Flakers would be obligated 

“to convey a General Warranty Deed to the premises.” The parties do not 

dispute that the Flakers later sold their rights, which resulted in the Bank of 

New York as the owner of the loan and Ocwen Loan Servicing, L.L.C. (Ocwen) 

as its loan servicer.

Stidham and Matthews moved into the house a few months after the 

contract was signed, and lived there until they separated, pending divorce, in 

August 1997. During their separation period, only Matthews lived in the house, 

and once their divorce was finalized in January 1998, only Stidham lived there.

In January 2015, Stidham moved into a nearby property, which she inherited 

from her father. Stidham claims to have lived in both places until she started 

renting the house in April 2016. Around this time, Stidham also contemplated 

selling the house to a prospective buyer, but she never discussed an actual 

price or received an offer.

In August 2015, Ocwen confirmed to Stidham that the executory contract 

“was satisfied and paid in full” on October 27, 2014. Ocwen also noted that 

“there [was] no lien to be released” because Stidham’s “mortgage [was] not of 

record.” In response, Stidham requested through her attorney that Ocwen, as 

“the present title holder,” execute a deed conveying her title to the house. She 

also stated, “If a Special Warranty deed cannot or will not be executed by the 

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title holder, Brenda Stidham will have no alternative but to file a trespass to 

title lawsuit to clear up the title to her realty.”

B.

In May 2016, Stidham filed suit in Texas state court alleging trespass to 

try title and other torts against the Bank of New York and Ocwen (collectively 

BONY). BONY removed the suit to federal court and filed a warranty deed 

conveying the house to Stidham on August 9, 2016. Stidham then filed an 

amended complaint seeking (1) liquidated damages under Texas Property 

Code § 5.079 for failing to provide a recorded warranty deed within thirty days 

after the contract was paid in full and (2) actual damages for the taxes and 

insurance that she paid on the house between October 27, 2014, (when the 

contract was paid in full) and August 9, 2016 (when the deed was recorded).

BONY moved for summary judgment, which the district court granted.

The district court concluded that Stidham was not eligible for liquidated 

damages because, among other things, the executory contract that the Flakers 

recorded in 1997 also operated as a deed. The district court did not expressly 

evaluate whether Stidham suffered actual damages, or if she did not, whether 

that precluded her from collecting liquidated damages under § 5.079. This 

appeal followed.

II.

We review the district court’s grant of summary judgment de novo.

Vuncannon v. United States, 711 F.3d 536, 538 (5th Cir. 2013). “Summary 

judgment is required when ‘the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of 

law.’” Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Fed. R. Civ. P. 

56(a)). Although we interpret the facts and draw all reasonable inferences in 

favor of the nonmoving party, Ion v. Chevron USA, Inc., 731 F.3d 379, 389 (5th 

Cir. 2013), “[s]ummary judgment is appropriate when the record does not 

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contain evidence that would lead a reasonable jury to find in favor of the nonmoving party,” BMG Music v. Martinez, 74 F.3d 87, 89 (5th Cir. 1996). 

Moreover, “[t]his Court can affirm the district court’s decision based on any 

legally sufficient ground, even one not relied upon by the district court.” Id.

III.

As noted, the district court determined that Stidham was ineligible for 

liquidated damages under § 5.079(b). In doing so, the district court concluded 

that BONY did not have title at the time of the alleged violation, that Stidman

failed to convert the executory contract into a promissory note and deed of trust 

as required by the statute, and that she failed to comply with chapter 5 of the 

Texas Property Code since she did not continually reside at the house. We

agree that § 5.079(b) does not permit Stidham to recover liquidated damages, 

although we do so for different reasons.

BONY argues that Stidman cannot recover liquidated damages because 

she “provided no evidence demonstrating she suffered actual damages.”1 This 

argument has two parts. BONY first asserts that chapter 41 of the Texas Civil 

Practice and Remedies Code (chapter 41) requires plaintiffs like Stidham to 

first prove that they suffered actual damages before they may recover 

liquidated damages under § 5.079. Second, BONY contends that Stidham did 

not suffer any actual damages. Analyzing each part of this argument 

sequentially, we conclude that BONY is correct.

A.

Chapter 41 expressly “applies to any action in which a claimant seeks 

damages,” which includes “an action for which damages are awarded under 

another law of this state.” Tex Civ. Prac. & Rem. Code Ann. § 41.002(a)-(b). 

This chapter also “prevail[s] over all other law to the extent of any conflict.” 

1 Although BONY argued this point below, the district court did not address it.

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§ 41.002(c). Importantly, chapter 41 provides that “exemplary damages may be 

awarded only if damages other than nominal damages are awarded.”

§ 41.004(a). Exemplary damages are “any damages awarded as a penalty or by 

way of punishment but not for compensatory purposes.” § 41.001(5).

BONY contends that liquidated damages arising from § 5.079(b) qualify 

as “exemplary damages” under chapter 41 because they can be “awarded as a 

penalty.” Accordingly, BONY concludes that “Chapter 41 requires proof of 

actual damages as a predicate to exemplary damages.”

As a preliminary matter, we find this reading persuasive because it is 

supported by the plain language of chapter 41. After all, liquidated damages 

can be awarded for punitive purposes, see, e.g., Comm’r v. Schleier, 515 U.S. 

323, 332 & n.5 (1995), and the liquidated damages at issue here do not clearly

serve a compensatory purpose. If these liquidated damages qualify as

exemplary damages, then Stidham must show that she is entitled to damages 

other than nominal damages, i.e., actual damages.

Nonetheless, this is a question of Texas state law, and therefore “we are 

‘guided by the decisions of state intermediate appellate courts unless other 

persuasive data indicate[ ] that the [state’s] Supreme Court would decide 

otherwise.’” Stem v. Gomez, 813 F.3d 205, 213 (5th Cir. 2016) (alterations in 

original) (quoting Patin v. Thoroughbred Power Boats Inc., 294 F.3d 640, 646 

(5th Cir. 2002)). Although neither the Texas Supreme Court nor any

intermediate appellate courts appear to have interpreted § 5.079 in the context 

of chapter 41, Texas intermediate appellate courts have interpreted § 5.077, 

which “share[s] a similar statutory formula for computing liquidated 

damages,” Flores v. Millennium Interests, Ltd., 185 S.W.3d 427, 433 (Tex. 

2005). Additionally, the Texas Supreme Court has held that § 5.077 liquidated 

damages are “penal in nature,” id., although it declined to address whether 

they qualify as exemplary damages under chapter 41, id. at 434.

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Two intermediate Texas appellate courts have concluded that liquidated 

damages arising under § 5.077 qualify as exemplary damages under chapter 

41. See Smith v. Davis, 462 S.W.3d 604, 613 (Tex. App.—Tyler 2015, pet. 

denied); Henderson v. Love, 181 S.W.3d 810, 817 (Tex. App.—Texarkana 2005, 

no pet.). Both opinions reasoned that, because § 5.077 liquidated damages are 

“penal,” they therefore satisfy chapter 41’s definition of exemplary damages, 

which includes “any damages awarded as a penalty.” Smith, 462 S.W.3d at 613 

(citing Tex. Civ. Prac. & Rem. Code Ann. § 41.001(5)); accord Henderson, 181 

S.W.3d at 816-17 (same). Consequently, both courts concluded that purchasers 

must establish actual damages in order to collect liquidated damages under 

§ 5.077. Smith, 462 S.W.3d at 613; Henderson, 181 S.W.3d at 816-17.

No intermediate appellate courts have held to the contrary. One court

held, without addressing chapter 41, that § 5.077 does not impose an actualharm requirement, Marker v. Garcia, 185 S.W.3d 21, 29 (Tex. App.—San 

Antonio 2005, no pet.), and commented in dicta in another decision, again 

without considering chapter 41, that “Section 5.079 does not include a 

requirement that the buyers be harmed,” Zuniga v. Velasquez, 274 S.W.3d 770, 

775 n.4 (Tex. App.—San Antonio 2008, no pet.).

2

Because they did not consider chapter 41, neither Marker nor Zuniga is 

useful for interpreting whether liquidated damages qualify as exemplary 

damages. We therefore find that the plain language of chapter 41 and 

intermediate appellate decisions such as Smith and Henderson are instructive: 

plaintiffs seeking liquidated damages under § 5.079(b) must first demonstrate 

that they suffered actual damages.

2 Tellingly, Henderson notes that these cases were “speaking just of Section 5.077 

standing alone and not speaking to whether the provisions of Chapter 41 apply.” Henderson, 

181 S.W.3d at 817 n.7 (citations omitted).

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B.

We now evaluate whether Stidham suffered actual damages. Stidham 

contends that she did because BONY did not transfer title until August 2016, 

which allegedly prevented her from selling the house to a specific buyer before 

that time.3 Stidham acknowledges that she had not agreed on a price with her 

prospective buyer, but she argues that, at the very least, if she had been able 

to sell the house, she would not have been required to pay property tax or 

property insurance. BONY counters that this does not constitute actual 

damages because Stidham’s tax and insurance benefits ultimately benefitted 

her own interest in the property.

Under Texas law, “actual damages are either ‘direct’ or ‘consequential.’”

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997)

(citation omitted). Under this framework, “[d]irect damages are the necessary 

and usual result of the defendant’s wrongful act; they flow naturally and 

necessarily from the wrong,” and “[c]onsequential damages, on the other hand, 

result naturally, but not necessarily, from the defendant’s wrongful acts.” Id.

While consequential damages do not need to be “the usual result of the wrong,” 

they “must be foreseeable, and must be directly traceable to the wrongful act 

and result from it. . . . [I]f damages are too remote, too uncertain, or purely 

conjectural, they cannot be recovered.” Id. (citations omitted). Because 

homeowners usually must pay taxes and insurance on their home, Smith’s 

alleged damages are better categorized as consequential damages rather than 

direct ones. Stidham must therefore establish that her tax and insurance 

payments can qualify as consequential damages.

3 Stidham’s amended complaint seeks $6,358.39 in “actual damages” for the money 

that she spent on property taxes and property insurance from October 27, 2014, (the date of 

her final payment) to August 9, 2016 (the date when BONY recorded the deed).

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The summary-judgment record reveals that she cannot. In deposition, 

Stidham claimed that she spoke to someone, “a specific buyer,” about selling 

the house. Nonetheless, Stidham did not specifically identify the buyer, and a 

price was not discussed. Accordingly, Stidham perhaps lost a potential sale, 

but she did not offer evidence that she lost an actual sale. Cf. Ramsey v. Davis, 

261 S.W.3d 811, 817 (Tex. App.—Dallas 2008, pet. denied) (noting that 

damages for slander of title include “the amount of money the seller would have 

realized if the sale had been consummated”). Because Stidham offers no 

evidence of why the sale failed to progress, her claimed damages are not 

“directly traceable to the wrongful act.” See Perry Equip. Corp., 945 S.W.2d at

816. Instead, they are “too remote” and “uncertain,” id., to qualify as 

consequential damages.

Since Stidham did not suffer actual damages, which chapter 41 requires, 

liquidated damages are unavailable under § 5.079(b). Accordingly, we need not 

address Stidham’s arguments that the district court erred by concluding that 

Stidham had legal title at the time of the alleged breach, that she failed to 

convert the executory contract as required, and that she failed to comply with 

chapter 5 of the Texas Property Code.

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.

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