Opinion issued June 13, 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00044
- CV

——————————— SAAHIR RAMJI AND BEA CON BUILDERS INVESTM ENT GROUP, INC. , Appella nt s V. 6100 CLARKSON, L.P., MATT STASSI, HERBER T B. RICHARDSON, MELVIN GRANT, MELVIN E GUILFORD GRANT, AN D REGINA PETERSON, EXECUTOR O F THE REGINA GRANT P ETERSON TRUST , Appell e e s On Appeal from the 295th District Court

Harris County, Texas Trial Court Ca se No. 2014
- 50460
MEMORANDUM OPINION After being found liable by a jury for tortiously interfering with real estate
contract s by cutting out the “middleman” in a “pass

- through” sale or “flip,” making negligent misrepresentations to the sellers regarding the transactions, and then2

failing to c omply with the resulting contract with the seller, appellants, Saahir Ramji and Beacon Builders Investment Group, Inc. (hereafter, “Ramji) bring this appeal raising five issues: (1) legal and factual sufficiency to support the tortious interference finding s; (2) legal and factual sufficiency to support the breach

- of

contract findings; (3) legal and factual sufficiency to support the negligent misrepresentation findings; (4) legal and factual sufficiency to support the jury’s negative finding on an affirmative defense; and (5) trial court error in applying settlement credits. We affirm. BACKGROUND In 2012, Matt Stassi located residential property on Clarkson Lane in Houston that he was interested in buying. The property was four separate tracts: 0 Clarkson
L ane, owned by Melvin Grant; 6100 Clarkson Lane, owned by Lucretia Grant; 6102 Clarkson Lane, owned jointly by Melvin Grant and his sister, Melvina; and 6104 Clarkson Lane, owned by the Regina G. Peterson trust. Melvin Grant began negotiating wit h Stassi on behalf of his relatives. Though Stassi originally planned to develop the land himself, he, instead , decided to sell the property to another developer, Saahir Ramji , a real estate attorney and managing partner o f Beacon Builders Investment Grou p, Inc., who owned the adjacent property. To that end,3

Stassi, along with his business partner, Herbert B. Richardson, formed a limited partnership, 6100 Clarkson, L.P., 1 to “flip” the property from the Grants to Ramji. Thus, the “pass

- through” sale or “f lip” consisted of two sets of transactions. The “A

- B contra c ts” between the Grants and Stassi, for a collective price of $650,000, were signed on June 10, 2014, and all but one was set to close on August 18, 2014. 2 The “B

- C contracts” between 6100 Clarkson (as Stassi’s assignee) and Ramji, were also signed on June 10, 2014, for a collective price of “904, 384.00, and were also set to close on August 18, 2014, at the same time as the “A

- B contracts.” Before the August 18th closing, the parties became aware of an issue with the title to the tract owned by Lucretia Grant; the property was in the name of her late husband and his estate had not been probated. T he parties to the “A

- B Contracts” agreed to extend the closing until August 29th

. 3

1 For purposes of this opinion, Stassi, Richardson, and 6100 Clarkson, L.P. will be referred to collectively as “6100 Clarkson” unless referring to Stassi or Richardson, individually.

2 The sale from the Regina Grant Trust to Stassi was set to close on or before September 1, 2014.

3 Ramji claims that his obligations to purchase the properties from 6100 Clarkson pursuant to the “B

- C contracts” nonetheless expired on August 18, 2014, because he and Stassi talked about, but never agreed to, proceed with the sale of three of the four properties for a reduced purchase price. 6100 Clarkson does not have a claim for breach of the “B

- C cont racts,” thus whether the “B

- C contracts” had expired is not an issue

.4

On August 27, 2014, L eslie Kuhn, an escrow agent at Alamo Title Company, advised the parties that Alamo Title would not close any deals with 6100 Clarkson because Stassi had a pending IRS lien. She nonetheless advised them that they were welcome to seek another title company to close the deals. Both Grant and Ramji testified that Kuhn told the m that the Grants were “out of contract,” although Kuhn did not recall doing so. Kuhn denied giving Grant’s telephone number to Ramji, though there was evidence that she te x ted Ramji’s p hone number to Grant. On that same day, August 27th, two days before the “A

- B contracts” were set to close, Ramji called Grant to discuss the possibility of the Grants selling their property directly to Ramji, effectively cutting Stassi, the “middleman,” o ut of the transactions. Grant testified that Ramji told him that Alamo Title “was not going to close our deal and the contracts w ere dead and we were free to sell to whoever we choose.” Grant believed that he was under contract with Stassi until August 2 9th, but Ramji told him that he was not. On either August 29th or August 30th , Ramji and Grant met at a Chic k

- fil

- A restaurant to discuss a direct sale between the Grants and Ramji. 4 Ramji came to the meeting with a copy of the “A

- B contract” and offered to pay the Grants the same price. Grant asked for more, so Ramji and Grant renegotiated the price of the three

4 There is a dispute about the date of the Chic k

- fil

- A meeting, which will be discussed in more detail later in the opinion.5

lots that were then available so that the Grants would receive more th an they would have gotten from Stassi and Ramji would pay less than he would have paid Stassi. Ramji also told Grant that he needed to send a letter to terminate the “A

- B agreements,” which Grant did on August 31, 2014. 5
The contracts negotiated between th e Grants and Ramji (hereafter, “the Chic k

fil

- A contracts”) are dated August 29, 2014. Heidi Andrews, of Old Republic Title, the escrow agent for the Chic k

- fil

- A contract s , testified that she receipted the contracts on August 29, 2014. Andrews testified th at “we receipt a contract on the date it comes in to our office.” Unable to get in touch with either the Grants or Ramji about extending the closings beyond August 29th , Stassi filed a lis pendens on the properties. Ramji did not close the Chic k

- fil

- A con tracts with the Grants in light of the lis pendens

. 6100 Clarkson and the Grants filed suit against Ramji for tortious interference with the “A

- B contracts.” 6 The Grants also brought claims against Ramji for breaching the Chic k

- fil

- A contracts and negligen t misrepresentation. After a jury trial, the jury returned a verdict against Ramji in favor of 6100 Clarkson and the Grants. Specifically, 6100 Clarkson was awarded $254,358 and the Grants were

5 A termination letter by the Regina G. Peterson Trust was dated August 29, 2014.

6 Initially, 6100 Clarkson also had claims against the Grants, but those claims were settled.6

awarded $9,289.54 on their claims that Ramji tortiously inter fered with the “A

- B contracts” 7 The jury also found that Ramji had breached the Chic k

- fil

- A contracts with the Grants and awarded them $130,500 cumulatively, plus attorney’s fees and
pre - and post

-

judgment interest. Though the jury also found in favor of t he Grants on their negligent misrepresentation and tortious interference claim s against Ramji, the F inal J udgment does not include an award to the Grants based on the se findings. This appeal followed.

SUFFICIENCY OF THE EVIDENCE In issues one, three, and four, Ramji contends the evidence is legally and factually insufficient to support the jury’s findings regarding his (1) tortious interference with the “A

- B contracts ” between the Grants and Stassi, (2) breach of the Chick

- fil

- A contracts between the Grants and Ramji, and (3) negligent misrepresentation s to the Grants. We address each issue respectively. Standard of Review When, as here, an appellant attack s the legal sufficiency of an adverse finding on an issue on which he did not have t he burden of proof, he must demonstrate that no evidence supports the finding. Examination Mgmt. Servs., Inc. v. Kersh Risk

7 The amount awarded to 6100 Clarkson in the Final Judgment was adjusted to reflect a settlement with Alamo Title for $170,000, leavin g Ramji liable to 6100 Clarkson for $84,358.00. There is no award in the Final Judgment to the Clarks based on the tortious interference jury findings.7

Mgmt., Inc. , 367 S.W.3d 835, 839 (Tex. App.

— Dallas 2012, no pet.). We will sustain a legal sufficiency or “no

- evidence” challenge if the record shows any one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson , 168 S.W.3d 802, 810 (Tex. 2005). In conducting a legal

- sufficiency review, we consider the evidence in the light most favor able to the verdict and indulge every reasonable inference that supports it. Id. at 822. The term “inference”

means, [i]n the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved. Marshall Field Stores, Inc. v. Gardiner , 859 S.W.2d 391, 400 (Tex. App.

— Houston [1st Dist.] 1993, writ dism’d w.o.j.) (internal quotations omitted). “For a jury to infer a fact, it must be able to deduce that fact as a logical consequence from other proven facts.” Id. If there is more than a sc intilla of evidence to support the challenged finding, we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors,
Inc. , 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its8

existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex. 2004) (internal quotations omitted). However, if the evidence at trial would enable reasonable and fair

- minded people to differ in their conclusions, then jurors must be allowed to do

so. City of Keller , 168 S.W.3d at 822. “A reviewing court cannot substitute its judgment for that of the trier

- of

- fact, so long as the evidenc e falls within th[e] zone of reasonable disagreement.” Id. When an appellant attack s the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, he must demonstrate that the adverse finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986). In conducting a factual

- sufficiency review, we examine, consider, and weigh all the evidence that supports or contradicts the fact finder’s determination. See Dow Chem.
Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001); Plas

- Tex, Inc. v. U.S. Steel Corp. , 772 S.W.2d 442, 445 (Tex. 1989). We note that the jury is the sole judge of the witnesses’ credibility, and it may choose to bel ieve one witness over another; a reviewing court may not impose its own opinion to the contrary. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003). When presented with conflicting testimony, the fact finder may believe one witness and disbelieve others, and it may resolve inconsistencies in the testimony of any witness. McGalliard v.9

Kuhlmann , 722 S.W.2d 694, 697 (Tex. 1986). We set aside the verdict only if the evidence is so weak or the finding is so against the great weight and p reponderance of the evidence that it is clearly wrong or manifestly unjust. See Dow Chem. Co. , 46 S.W.3d at 242; Pool v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986). Tortious Interference In issue one, Ramji contends there is legally and factually ins ufficient evidence to support the tortious interference findings. Specifically, Ramji argues that the “A

- B contracts” between the Grants and Stassi had expired. In support of his position, Ramji argues that “6100 Clarkson’s only witness on the issue (Mel vin Grant, the seller of the real estate) testified that he intentionally waited for the contract with 6100 Clarkson to expire before he negotiated with [Ramji] to sell the Grant Properties. ” Ramji’s position is that the Chick

- fil

- A contracts were negotiated and signed on August 30, 2014, the day after the “A

- B contracts” did not close, and, as such, the Grants were no longer “under contract” with 6100 Clarkson. Ramji contends that “no reasonable jury could find that the contracts be tween Melvin Grant and [Ramji] were executed on Friday, August 29, (when the contracts between Grant and Stassi were ostensibly still valid and enforceable),” thus “no reasonable trier of fact could award damages to either 6100 Clarkson or the Grants for t ortious interference.”10

Legal Sufficiency
A s previously noted, because Ramji attack s the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof , he must demonstrate that no evidence supports the finding. Examinati on Mgmt. Servs. , 367 S.W.3d at 839. To determine whether a scintilla of evidence was presented, we consider the evidence in the light most favorable to the verdict. City of Keller , 168 S.W.3d at 822 The parties to the “A

- B contracts”

— Stassi, Richardson, and the Grants

— all agree that the contracts had been extended until August 29th. The record shows that Ramji was aware through a series of emails from Leslie Kuhn at Alamo Title that the “A

- B contracts” between the Grants and Stassi had been extended until August 29th. Ramji himself testified, both at trial and in his prior deposition, that he met with Melvin Grant at the Chick

- fil

- A restaurant on August 29th. The contracts signed by Ramji and Grant at that meeting are dated August 29, 2014. Heidi Andrew s, the escrow agent at Old Republic Title , testified that to “receipt” an earnest money contract “means that the contract is brought to you and you write down in a certain section of the contract that you’ve received the contract.” When asked what Old Rep u b lic’s policy was for dating receipted contracts, Andrews replied, “We11

receipt a contract on the date that it comes into our office .” The Chick

- fil

- A contracts were “receipted” by Old Republic on August 29, 2014. This is more than a scintilla of evidenc e that the Chick

- fil

- A contracts were signed by Ramji and Grant on August 29, 2014, not August 30, 2014 as Ramji now claims. 8 Factual Sufficiency
B ecause Ramji also attack s the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof , he must demonstrate that the adverse finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain , 709 S.W.2d at 176. In support of his argument that the Chick

- fil

- A contracts were signed on August 30, 2014, Ramji points to Melvin Grant’s testimony, both in his deposition and at trial, that he met with Ramji at the Chick

- fil

- A on August 30th because he believed that he was “under contract” with Stassi through the 29th . However, Grant also testified as follows:

8 Additionally, there was evidence that the “A

- B contracts” would not automatically terminate upon the passing of a closing date. Instead, the contracts would terminate once a party gave a notice of termination. Here, Melvin and Melvina Grant signed notices of termination dated August 31, 2014, and Regina Gray signed a notice of her termination on August 29, 2014. This too, is some evidence, that the “A

- B contracts” were still in effect at the time that Ramji and Grant signed the Chic k

- fil

A contracts.12

Q: Now there’s been some testimony that you were pretty sure at your deposition you remember that meeting happen

—happening on August 30th, correct? Meeting at Chick

- fil

- A? A: Correct. Q: Looking at these docu ments and seeing this signature, is it possible that you got that date wrong in your head? A: It’s possible. Thus, the jury heard conflicting evidence about the date the Chick

- fil

- A contracts were signed. Ramji testified multiple times that they were signed on August 29th, the title company “receipted” it on August 29th, and Grant contradicted his earlier testimony by conceding that it was “possible” that the contracts were signed on August 29th. In contrast, Grant testified in his deposition that th e contract was signed on August 30th

. When presented with such inconsistencies, the jury may believe one witness and disbelieve other, and it may resolve inconsistencies in the testimony of any witness. McGalliard , 722 S.W.2d at 697. The evidence supporting the trial court’s finding is not against the great weight and preponderance of the evidence. Damages Although not raised as a separate issue on appeal, Ramji complain s that there is no evidence that 6100 Clarkson suffered any damages as a resu lt of Ramji’s tortious interference because the measure of damages was improperly calculated. Essentially, Ramji contends that 6100 Clarkson should not have been awarded the13

difference between the “A

- B contracts” and the price it planned to “flip” the
pro perties to Ramji for, but should have been awarded the difference between the original “A

- B contract” price and the amount that the Grants eventually sold the property for in 2016

. In Jury Question 3 , the jury was instructed to “[ c ] onsider the following elements of damages [for 6100 Clarkson’s tortious interference claim] , if any, and none other ”: The difference, measured at the time of the interference, between the amount [6100 Clarkson] would have made on the sale of the properties to [Ramji], and the a mount they agreed to pay for those properties. The jury answered $254,358.00, which is the amount that 6100 Clarkson would have made had it been able to “flip” the properties to Ramji as planned

. Although Ramji characterizes this issue as one of eviden ce sufficiency, his substantive argument is that Jury Question 3 presents an improper measure of damages. “A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, de finition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” T EX
. R. C IV
. P. 274 ; At the charge conference, Ramji objected to the use of the word “damages” in Jury Question 3 and requested that the term “lost profits” be used instead. He also objected that “the instruction on the elements of damages is defective because there14

is no evidence that there was a pending sale of the properties to [Ramji] at the time of the alleged interference .” However, h e never objected to the instruction using the difference between the price that 6100 Clarkson had to agreed to pay the Clarks and “the amount [it] would have made on the sale of the properties to [Ramji] , ” nor did he suggest or r equest that the jury be instructed to look at the 2016 sales price price of the properties in calculating the damages. Thus, to the extent that Ramji is complaining about the instruction regarding the measure of damages submitted to the jury in Jury Quest ion 3, the issue is waived. See State Dep’t of Highways & Pub. Transp. v. Payne , 838 S.W.2d 235, 241 (Tex. 1992 ); see also Tribble & Stephens Co. v. Consol. Servs., Inc. , 744 S.W.2d 945, 949 (Tex. App.

— San Antonio 1987, writ denied) (holding that defendan t waived right to complain on appeal that plaintiff offered insufficient evidence of proper measure of damages because defendant failed to point out to trial court that improper measure of damages was submitted to jury). Thus, damages are measured by the instruction given. See Eq uistar Chems., L.P. v. Dresser

- Rand Co. , 240 S.W.3d 864, 868 (Tex. 2007). Here, there was evidence that Stassi agreed to pay the Clarks $650,026 and 6100 Clarkson, Stassi’s assignee, would have resold the property to Ramji for $9 04,384, for a difference of $254,358, which is the exact amount the jury awarded. Thus, the evidence is legally and factually sufficient to support the damages under the charge given.15

Because we have found the evidence legally and factually sufficient to support the judgment on 6100 Clarkson’s tortious interference claims, we overrule issue one. Breach of Contract Regarding the Grants’ breach

- o f

- contract claims against Ramji, the jury charge asked: Did [Ramji] fail to comply with the terms of any of the following agreements to purchase the properties located at 0 Clarkson, 6102 Clarkson, and 6104 Clarkson? The jury responded “yes” as to all three properties. In issue three, Ramji argues that the evidence is legally and factually insufficient to sup port the jury’s findings that he breached a contract to purchase these properties from the Grants “after the Grants testified that the sole reason that the sale of the Grant Properties to [Ramji] did not occur was because of the filing of

a lis pendens by 6100 Clarkson.” The essential elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach. B & W Supply, Inc. v. Beckman , 3 05 S.W.3d 10, 16 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied). Here, Ramji’s argument is that “[t]he Grants’ breach of contract claims fail because those contracts did not close and fund due to the Grants’ failure to be able16

to tender marketable title upon the closing date (because of the lis pendens filed by 6100 Clarkson ) .” As such, he is attacking the fourth element of a breach

- of

- contract claim, i.e., that the damages were caused by his breach

. Ramji’ s argument is , in effect, that his performance was excused because of a prior material breach by the Grants , i.e., that they failed to deliver marketable title because of the lis pende n s. When one party to a contract commits a material breach of that contr act, the other party is discharged or excused from further performance. PAJ, Inc. v. Hanover Ins. Co. , 243 S.W.3d 630, 633 (Tex. 2008). However, t he contention that a party is excused from its contract performance by the other party’s prior material breach is an affirmative defense. Henry v. Masson , 333 S.W.3d 825, 834 (Tex. App.

— Houston [1st Dist.] 2010, no pet.). The question of whether a party’s breach of a contract will render the contract unenforceable against the other party generally presents a dispute for resolution by the trier of fact. Id. at 835. Moreover, the party relying on an affirmative defense has the burden to obtain findings of f act on the issue. XCO Prod. Co. v. Jamison , 194 S.W.3d 622, 635 (Tex. App.

— Houston [14th Dist.] 2006, pet. denied). Here, Ra mji never pleaded a prior material breach as an affirmative defense
to the Grants’ contract s ; more importantly he did not request or obtain a jury finding on it. As such, he may not complain for the first time on appeal that his performance was excused by the Grants’ prior material breach.17

Ramji also challenges the first element of breach of contract

— the existence of a valid contract

— at least as it applies to the sale of 6102 Clarkson Lane, owned jointly by Melvin Grant and his sister, Melvina. Specifically, Ramji argues that the agreement to sell the property is unenforceable, at least as to Melvina’s share of the property, because she never actually signed the sales agreement. A contract for the conveyance of real property must comply with the statute of frauds to be enforceable. Lewis v. Adams , 979 S.W.2d 831, 834 (Tex. App.

— Houston [14th Dist.] 1998, no pet.). To comply with the s tatute of frauds, the contract must be in writing and signed by the party to be charged with the agreement. T EX
. B US
. & C OM
. C ODE A NN
. § 26.01(a). However, the statute of frauds , too , is an affirmative defense to the enforcement of a contract , which must be pleaded or it is waived. T EX
. R. C IV
. P. 94; Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc. , 48 S.W.3d 865, 875 (Tex. App.

— Houston [14th Dist.] 2001, pet. denied); Engelman Irrigation Dist. v. Shields Bros., Inc. , 960 S.W.2d 343, 353 (Tex. App.

— Corpus Christi 1997), pet. denied, 989 S.W.2d 360 (Tex. 1998) (per curiam). Again , the party relying on an affirmative defense has the burden to obtain findings of fact on the issue. XCO Prod. Co ., 194 S.W.3d at 635

. Here, Rajmi never p leaded the statute of frauds as an affirmative defense to Melvine’s contract, nor did he request or obtain a jury finding on it. As such, he18

may not complain for the first time on appeal that Melvine’s contract is invalid because she never signed it.
Acco rdingly, we overrule issue three. Negligent Misrepresentation In Jury Question 7, the jury found that [Ramji] “[made] a negligent misrepresentation on which the Grants justifiably relied entering upon into any of the following agreements to purchase [the Grants’ properties.” In Jury Question 8, the jury awarded the Grants $3,096.51 for each of the three properties. However, the Final Judgment does not include any award to the Grants based on the negligent misrepresentation findings. In issue four, Ramji contends the evidence is legally and factually insufficient to support the jury’s findings on the Grants’ negligent misrepresentation claims. However, because the Final Judgment does not include an award to the Grants based on the negligent misrepresenta tion findings, error, if any, by the trial court in denying Ramji’s post

-

judgment motions on the negligent misrepresentation issues, is harmless. We overrule issue four.

AFFIRMATIVE DEFENSE OF JUSTIFICATION19

The jury charge included the following justification affirmative defense question regarding the tortious interference claims: Did Saahir Ramji have a good

- faith belie f that he justifiably could discuss, negotiate, and enter into contracts for the purchase of the four tracts of land owned by the Grant family to protect his own financial interest? The jury responded, “No,” as to each of the properties. In issue three, Ramji attacks the jury’s negative finding s on h is justification defense to the tortious interference claims. Specifically, Ramji claims that the evidence established as a matter of law that [he] had a good faith belief that he was “justified in seeking to purchase the Grant Properties from the Grants[.]” Standard of Review and Applicable Law When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Fra ncis , 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil
Co. , 767 S.W.2d 686, 690 (Tex. 1989)

. In reviewing a “matter of law” challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evide nce to the contrary. Dow , 46 S.W.3d 241; Sterner , 767 S.W.2d at 690

. If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Dow , 46 S.W.3d at 241; Sterner , 767 S.W.2d at 690

.20

The point of error should be sustained only if the contrary proposition is conclusively established. Dow , 46 S.W.3d at 241; Croucher v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983)

. When a party attacks the factual s ufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow , 46 S.W.3d at 242; Croucher , 660 S.W.2d at 58

. The c ourt of appeals must consider and weigh all the evidence and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow , 46 S.W.3d at 2 42; s ee Pool v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986)

. In doing so, the court of appeals must “detail the evidence relevant to the issue” and “state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.” D ow , 46 S.W.3d at 242. Justification is an affirmative defense to tortious interference with contract. Prudential Ins. Co. of Am. v . Fin. Review Servs., Inc. , 29 S.W.3d 74, 77

– 78 (Tex. 2000). Even when a plaintiff presents evidence of each element of torti ous interference, a defendant still may prevail by establishing the affirmative defense of justification. Tex. Beef Cattle Co. v. Green , 921 S.W.2d 203, 210 (Tex. 1996). T he justification defense is based on either the exercise of (1) one’s own legal right s or (2) a good

- faith claim to a colorable legal right, even though that claim ultimately21

proves to be mistaken. Id. at 211 ; Sakowitz, Inc. v. Steck , 669 S.W.2d 105, 107 (Tex. 1984), overruled on other grounds by Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690 (Tex. 1989). Analysis Ramji argues that “no reasonable jury could find that Ramji did not have a good

- faith belief that, as of Saturday, August 30, 2014, after the contracts between Grant and 6100 Clarkson had expired and were no longer valid an d enforceable, he could justifiably negotiate and enter into contracts with the Grants.” Ramji’s justification defense is based on the same argument that he made in issue one regarding the sufficiency of the evidence to support the tortious interference fi nding, i.e., that the “A

- B contracts” expired on August 29, 2014, and that he , in good faith signed the Chick

- fil

- A contracts the next day. For the same reasons that we found the evidence legally and factually sufficient in issue one, we also conclude that there is legally and factually sufficient evidence to support the jury’s rejection of Ramji’s affirmative defense. SETTLEMENT CREDITS In issue five, Ramji contends the “trial court erred in denying [ Ra mji’s] Post

Judgment Motion requesting application of a $50,000 settlement credit against economic damages awarded the Grants and against Beason for pretrial settlem ent monies received by the Grants from Alamo Title for the same injuries.” Under this22

one issue, Ramji raises three distinct claims: (1) that th e Grant’s breach

- of

- contract damages should have been reduced by a $50,000 settlement credit that the Grants received from Alamo Title based on the Grants’ claims against Alamo Title for negligent misrepresentation; ( 2 ) that the damages that the jury award ed to the Grants on their negligent misrepresentation claims, and which Ramji claims reflect the amount of the Grants’ property taxes, are duplicative of other awards ; and (3) that 6100 Clarkson’s damages should be modified by subtracting 6100 Clarkson’s

c losing costs. We address each contention respectively. Settlement Credit

— the Grants In a single paragraph of his brief, and with a single citation to Crown Life Ins.

v . Casteel , 22 S.W.3d 378, 390 (Tex. 2000), Ramji argues that the Grants received a $50,0 00 settlement from Alamo Life for their tortious interference claims against the title company and that the breach

- of

- contract damages that the Grants obtained from Ramji as a result of the breach of the Chick

- fil

- A contracts should be reduced by that amou nt because they were for the “same injury.” However, Ramji provides no argument or authority analyzing Casteel or its progeny 9 or how the one

satisfaction rule should have been applied in this case. A party must not only cite relevant authority and the record but must also provide substantive legal analysis.

9 We note that Casteel has been cited in reference to settlement credits in almost 80 appellate opinions , none of which are cited or discussed by appellant.23

Smith v. Smith , 541 S.W.3d 251, 260

– 61 (Tex. App.

— Houston [14th Dist.] 2017, no pet.) It is not our duty to fashion a legal argument for a party. Guimaraes v. Brann , 562 S.W.3d 521, 538 (Tex. App.

— Houston [1st Dist.] pet. filed ) (citing Canton

Carter v. Baylor Coll. o

f M ed. , 271 S.W.3d 928, 931

– 32 (Tex. App.

— Houston [14th Dist.] 2008, no pet.) )

. There being no substantive legal analys is, the briefing on this issue is inadequate. The issue is waived. However, even if we were to consider the merits, the record in this case is inadequate to show trial court error. In a recent decision, Sky View at Las Palmas, LLC v. Mendez , 555 S.W.3d 10 1 (Tex. 2018), the Texas Supreme Court applied the

one - satisfaction rule to a settlement credit. The court held that the nonsettling defendant seeking the settlement credit has the burden to prove its right to the credit. The defendant may introduce the se ttlement agreement or other evidence of the settlement amount. Id. at 107

– 08 (citing Mobil Oil Corp. v. Ellender , 968 S.W.2d 917, 927 (Tex. 1998)). The burden then shifts to the plaintiff to show that certain amounts should not be credited. Id. (citing Utt s v. Short , 81 S.W.3d 822, 828 (Tex. 2002)). The plaintiff can rebut the presumption that the nonsettling defendant is entitled to a settlement credit by presenting evidence showing that the settlement proceeds would not amount to a double recovery. Id. Although Ramji claims in his brief that he is entitled to receive a settlement credit for monies that Alamo Title paid to the Grants, the record does not show that24

Ramji introduced evidence proving such entitlement. His post

- judgment motion does not have any evidence attached . And, although a hearing was held on his post

judgment motions, we have no record of that proceeding and no indication that it was an evidentiary hearing. Ramji does not allege that the record contains the settlement agreement betwee n the Grants and Alamo Title, nor does he point to anything else in the record that establishes the amount and terms of the settlement. 10 Appellant’s brief contains what purports to be a calculation of the settlement credit, but it contains no citations to the record

. As such, based on the record before us , we cannot conclude that Ramji prove d his right to a credit, thus the burden never shifted to the Grants to show that the damages would not amount to a double recovery. Duplicative Award for Property Taxe s

— the Grants Ramji argues that “the jury’s answer to question 8 (negligent misrepresentation) should be set aside and the damages accordingly reduced in the Final Judgment” because they are the same property taxes awarded in Jury Q uestion 4 (tortious interference). However, we have already noted that the Final Judgment does not include any award to the Grants based on either J ury Q uestion 4 or J ury Q uestion 8. The Grants recovered only on their breach

- of

- contract claims

.

10 The Final Judgment acknowledges a settlement between Alamo Title and the Grants, but it provides no information about the amount or terms of the settlement.25

Closing C osts

— 6100 Clarkson Ramji also contends that “6100 Clarkson’s damages should be modified by subtracting 6100 Clarkson’s closing costs from the gross sales price, including brokers’ commissions, sales expenses and prorations.” However, his brief provides

no authority or argument on this issue, thus is waived. T EX
. R. A PP
. P. 38.1(i). We overrule issue five. C ONCLUSION We affirm the trial court’s judgment.

Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Good man and Countiss.