## In the Court of Ap peals Second Appellate Dist rict of Texas at Fort Worth

___________________________ No. 02

- 19

- 00064

- CV

____________ _______________

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348

- 264569

- 13

Before Sudderth, C .J.; and Kerr, J. 1 Memor andum Opinion by Justice Kerr

1 Justice Lee Gabri el was a membe r of the original panel but has since retire d. Because they agree on the judgment, the two remaining justices decided the case. S ee Tex. R. App. P. 41. 1(b). 

### S IMONE 

### B ARRON 

### AND W ALID 

### Y AMMINE 

### , Appellants

V



### . I SSAM 

### A L 

### S HMAISANI AND 

### S HARON 

### S MIT H 

### , Appellees2 MEMORANDUM OPINION In separate briefing raising a plethora of issues, Simone Barro n and her b rother
Walid Yammine appeal the trial court ’ s judgment following a jury trial concerning a real

- estate tran saction invo lvin g Plai nt if

f

–

Appellee Issam Al Shmaisani and (in varying
role s) Defendant s

– Appellants and two of their sibling s . Re versing the judgment below in part, w e hold that the amount of attorney ’ s fees assessed against each Appella nt and awarded to Shmaisani under Chapter 12 of the Texas Civil Practice & Remedies
Code must be reversed and remanded to the trial court for a new trial

. W e also h old
that Appe ll ee Sharon Smith

— a third

- party defendant below

— cannot recover sanctions in the form of attorney ’ s fees against S imone Ba r ro n and render judgment accordingly

. In all other respects, we affirm the trial court ’ s ju dgment.
P ARTIES 2
Plain tiff

–

Appellee Issam Al S hmaisani : Fort Worth businessman w ho in late March
2012 agreed to bu y certai n p roper t y owned b y Wahid Yammine to stop a foreclo sure sale set for two days later by Wahid ’ s lien holder David Heal y . T hrough an optio n
ag reement , Wahid could later buy it back from Shmaisani

. Defendant Joseph I mad 3 Yammine ( “ Jose ph ” ) : Original pu rcha ser, in 2001, of

comme rcial propert ies located at 70 1, 705, and 7 09 North Main Street in F ort W orth

2 We s et o ut this guide to the parties for c larity. We intend n o disrespect by using f irst name s for Yammin e family members

.3 that are t he subject of this lawsuit ( col le cti ve ly, “ the 701 Property ” ) , as well as a

nea r by commerc ial prop ert y locat ed at 717 Nort h Main ( “ 717 Main ” ) , all of which
secured debt that Joseph owed Wahid

. A t th e close of evidence , Sh mai s ani nonsuit e d his claims against Jo seph. Defendant Wa hid Jos eph Yammine ( “ Wahid ” ) : R esident of Leb an o n who co nducts
his Texas real

- estate d ealings through his si blings , who live her e . I n January 201 2 , i n the name o f his dba New Fron tier F inan cial , Wah id foreclosed on and took

owners hip from Joseph of 717 Main and of the 701 Property

. I n August 2013, so me six m onths af te r Sh maisani su ed Wahid and Jos eph , Wah id filed for ba nkruptcy and ultimately recei ved a full discharge

. W ahid appe aled from the trial

- co urt judgment b u t dismissed his a ppeal wi thout filing a br ief.
De fendant

–

A

ppellant Wal id Joseph Yamm ine ( “ Wal ly ” ) : G oes by the nickname
Wa lly , whic h we will u se t o more easily d istinguish between W ahid and Walid

. Wally
was involv e d with t he April 2012 closing of the Wahid

– Shmaisani tra nsaction a nd

sa me

- day ostensible conveyance s from New Frontier /Wahid to Wally and to Wally ’ s business B W Co n struction of inter est s in the 701 Pro pe rty
. On that day, Wally a lso
received Wahid ’ s assignment of the 7 01 Prope rty repurchase option

. Defendant

–

Appellant S imon a Barron ( “ Simon e ” ) : Also invol ved with the closing , and held a power of attorney f or Wa hid

. Simone provided a recorded deed ’ s

3 Numerous d ocumen ts show Jo se p h ’ s middle initia l as “ K. ” Th e discrepancy is not legally sign i f icant here

.4 instrument nu m ber for attorney M ichae l Newman to ins ert into th e April 2 contra ct between Wahid and Shm aisani ; she later attempted to exercise the repurcha se option
on Wahid ’ s behalf ; and in 2014, she p u rchased assets , os t ensibly incl ud ing the 701
P roperty, from Wahid ’ s ban k ruptcy estate
. Simone represented hers elf at t rial.
Third

-Party Defend ant

–

Appellee Sharon Smith : Fee attorney working with Stewart
Title C o mpany
. Smith han d led the A p ril 2, 2 012 closing of the sale to Shmaisani. The
trial court directed a v erdict in Smith ’ s favor.
B AC KGROUND J ose ph buy s properties on Nor th Main Street; W ahid foreclose s on Joseph ’ s debt to him and acquires the 701 Pro p erty in 2012. Jo seph bough t the 70 1 Property in August 2001

. I t s legal descriptio n
encompasses 12 discrete lot s : L ots 1 th rough 6 a nd 43 thr ough 48 of Blo ck 27, Nort h
Fort W orth Addition to the City of Fort Worth. The next month , Joseph bo ug h t nearby 717 Main

. O n Ap ril 3, 20 09, several things ha pp ened with the 701 Property:

• J oseph conveyed it to Wahid by a sp ec ia l warranty deed ;

• W ahid s imu ltaneously conve yed the 70 1 Prop erty back to J oseph by special warranty deed ; and

• T o s ec ure Joseph ’ s $498,000 indebted ness to New Fr ontier , Jose ph e xecuted a deed of trust , with Lee Wo odburry as tr ustee, on the 701 Prope rt y

— a docu m ent not recorded fo r over two and a half years . 4

4 Conveya nces of real proper t y among th e Yammine family , sometimes wit h delayed filings and f or op aque reasons , have yielded o ther lawsuit s that ha ve made5 Afte r Joseph signed th e dee d of trust for New Frontier ’ s benefit but l ong before i t was recorded, Jos eph exec uted a second deed of trust in Janu ary 2010 on t he
701 Pro perty , this time to secu re a $30 0,000 loan fr om David Heal y t hat matured a year later

. Joseph sign e d a third deed of tr u s t

— the s econd in H e aly ’ s favor

— on
Mar ch 7, 2011 to secur e a 12

- month, $342,9 80 loan , again secured by the 701 Prop erty. T hrou gh t rustee Lee W oo dburry, Wahid/ New Frontier later foreclosed on its
lien s a nd received trustee ’ s deed s t o the 701 Property and to 717 Main, e a ch dated

their way to us
. In a ca s e from several y ears ag o, Jo seph sought unsuccessful ly to avoid a deed of t rus t he had ex ecu ted to secure a lo an from a third party (Lillian W ilso n, LLC) by transfe rr ing the property to Wa hid four days be fore t h e deed of tr ust was recorded

. 1901 N W 28t h S t

. Tr. v . Lilli an Wilson , LLC , 5 35 S.W.3d 9 6, 100 ( Tex. App.

— For t Worth 2017 , no pet.) ( affi rming vexatious

- lit igant ruling ent ered a ga inst Jo s eph and noting, “ Exclu ding an y consideratio n o f whether [ Joseph] Yam mine defraude d Lillia n Wilson by se cu r in g a lo an for delinqu en t ad va lorem t axes on a property tha t h e had pr e viously c on veye d [to Wahid] , the tax lien that Tarrant C o unty transf er red to L illi an Wilson had atta ched to the P roperty bef ore the dee d of trust was recorded in Jun e 2009. ” ). And i n tha t case as we ll as h ere, Jose ph repeatedly claimed to hav e di fficulty recall ing ev ents because of a car wreck. Id. at 98 & n

. 2 ( “ [Joseph ] claimed to hav e b een s uffer i ng from t he effects of a dif ferent ca r accid ent when Lillian Wil son depos ed h im on an ea rlier d ate. ” ). H igh blood pressure was added at this tr ia l to explain J oseph ’ s diff iculty fielding ques t ions. A question as simpl e as w hether Jo seph had e ver signed docum ents as “ Jose ph K. Yammine ” was met with, “ I don ’ t re member. And the reason I don ’ t remember is that I ’ ve been in two different accidents. I ’ v e been struck w ith trau ma, fa c ial tr auma . . . . ” Wally a lso b la m ed medical issues for his own ext ensive mem ory lapses a t trial , frequently invo king c hemotherapy t reatments and p neumonia

. Wahid

— a c omme rcial

- airline captai n b ased in L ebano n

— offered no medic a l excuse s but l ike wise pro f essed extr aordinary d ifficulty r ecall ing even ba sic even t s and docume n ts concerning the 701 Proper ty
.6 Janua r y 3, 2012

. The 701 Property remained en cumbered by the Healy li ens , but 7 17
Main had no H ealy lie ns against it

. H ealy schedules the 701 Property for forecl osure o n April 3, 2012 ; th e Yammines enlist S hmaisani to ke ep that from happening
. Because o f the un paid and past

- due Healy de bt , a for eclosure sa le o f the 701
P r operty was scheduled f or April 3, 2012 , a Tuesday

. Acting on Wa hi d ’ s behalf,
Sim one a nd Jo seph visited Sh maisa ni on Saturday, March 31, 2012, se eking to borrow
money t o pa y of f He al y and s top the foreclosu re. After S hm aisani expla ined that he

was “ not a bank, ” Simone and Joseph suggested that Shmaisa ni bu y the prop erty
outri ght and give Wahid an option to buy it b ack i n four months. According to
S hmai san i , to “kind of give [ him ] a good co mfort lev el in doing the deal ” Simon e offered to get attor ney Mich ael Newman

— who had done earl ier legal work for both
Shmaisani and the Yammines

— involved in the tra nsaction

. Simon e called Ne wm an while still at Sh mais ani ’s office a nd , as Sh maisani
recounted at trial , exp lained to Ne wman that Shmaisani wo uld be b uying the
prop erties tha t we re on “ Healy ’ s foreclosure li st
. ” At trial, Simon e insisted that
Shmaisani was instead buying t he non

- Healy

- burdened 7 17 Ma in.
S imone gives Ne wman an instrument numbe r to put in the sales contract, bu t t he as sociated warranty deed does not match any property on Healy ’ s foreclo s ure list.
Becaus e of the looming Tuesday fore closure sale, the parties w ere “ v ery fran t ic , ” in Newma n ’ s words, to finalize t he transacti on on Monday, April 2 , 20 12.7 T hat morning, then, Shmaisani , Simone, Wally, a nd Wahid (who h ad fl o w n in from
Leban on) w ent to Newman ’ s office to get a contract d raft ed and signed

. Accord ing to
bo th Shmaisani and N ewm an, Simone provided N ewman a warr anty deed ’ s instrume nt number

— D2012399 58

— for him to inser t into the $535,000 sales

contract
. But D2012399 58 a ctually refer s to 717 Main, not the 701 Proper t y . Newman

ex plained : S imone had broug ht a p i ece of pa per with her

- - that ’ s all she had

- - and said, “ W e need to draft a contra ct t o ta k e to the title company , ” so the y could th en proceed with t he

- - the closing or t he sale. And Simon e wa s just ver y adamant about th is piec e of paper [t hat] had a

- - it refe rred to an instrument number, the r e cor ding of a d eed in the Tarrant Count y de e d r e cords, and sai d, “ We nee d to put a contra ct together. We d on ’ t have time to look anything up or rese arch

. Just put this number down. This i s the instrum ent n umber to th e dee d for 70 1, 705, 709. ”

. . . . [ T]h at ’ s what she g ave me and said that th a t ’ s wha t we need to put o n the contract beca use th at ’ s the deed t ha t refers to 701, 705, 709 Main Street.
E ven when Newman sugges ted that he pul l u p the instrum ent number on li ne , Simone respon ded that “ she was in just such a rush, that we di dn ’ t need to do th at, that we needed to hurry up a nd get t o the title com pany. ” New man testified that
Wah id was prese nt and everyone wa s “ on the same agenda: We need to get this done.
We nee d to stop the foreclosure. ” Newman did not recal l a nyone ’ s discussing 717
Main that day.8 T he hastil y pre pared sales contrac t th at Wahid and S hmaisani signe d and that

was shor tl y after ward taken to t he title compan y fo r clo sin g was bare

- boned , as thi s snipp et r eflects :

After the par ties and N ewm an arrived at the title company following an early
lu nch together , Sharon Smith

— a fee att orney wh o worked with Stewart Title

— t ook the sig ned c ont ract and began an unusually rush ed closing process. Smith understoo d
that the pro perty bei ng sold t o Shm aisani was “ the property be in g po sted for
forec losure, which makes sense, because n othing else would be a super

- rush. If it

wasn ’ t go ing to be lost w it hin 2 4 h ours, there ’ s no way I w ould ask my [ti tle] plant or

m y offi ce to put fort h that ef f

ort. ” Asked whe th er, in her 37 ye ars of ex perience, she
had “ever had someone come in and pay mo ney to pay off a lien aga inst a prop erty9 and not purchase t hat p r op erty, ” Smith replied, “N ot in a commercial transaction or a
foreclosur e tr a nsaction , no. ” As Smith al so testified , T h ey b rought us this contract. Out of due diligence, we pulled that instrument number up, and where I had heard nothing bu t we we re working th e foreclosed

- - the posted foreclosur e property, t hey did no t ma tch. At t hat poi nt we went back t o the parties, wh o we re sitting in our
con ference room, and told them: This i s not the property that is s ubject to forecl osure tomorrow. So if i t ’s this prope rty, we ’re no t g oing to be closing t his property on a rush orde r. And the y go: Oh, no. That is a mistake. It is t he p roperty that ’s posted for forecl osure. . . . T h e buyer a nd the seller and Mr. Newman and Simone told me that it was d e finit ely the proper ty that was g oing to be foreclosed. Smith ’ s t esti mony corroborated Sh m aisa ni , who asserted that Simone ha d had
him believe that “ this is the instrument number for wh at Mr. Healy was foreclo sing

on. ”
T he parties ag re e to Ne w man ’ s writing in the 701 Pro perty addresse s on the contract , and the c losi ng goes forward
. After Smith had determin ed that the ins tr ument number did not match
any thing on the foreclosure l ist , S m ith recalled that Newman said he woul d “ add

some ad dresses, if that will help, ” and d i d s o w hile Wahid and Shmaisani were
present : 70 1, 705, and 709 Ma in Street

. 5 Newm an testified that when he wrote in the

5 Al thoug h New man o m itte d “ North ” fro m the wri t ten

- i n addre sses, he testified that ever yone knew that the reference w as to 701, 705, and 709 N orth Ma in St r eet: “ [T] he Yammin es knew what property they o wned. They knew what pro perty that they we re dealing w ith. ”10 addresses on the contract , “ Wahid was there

. . . . [S imone ] was t here and fully a ware of these changes, and everybody was in agreement

. ” The first part of the contract now looked like this:

F rom Shmaisani ’ s $535 ,00 0 c onsideration , Healy ’ s li en s against the 701
P roperty w er e p aid off and release d the same day

. Smith e x plained that takin g care of
Hea l y w as the “ biggest co ncern, because if we didn ’ t take care of him, it didn ’ t matter; the pr operty wo uld b e gone t h e next mornin g on the courthouse ste ps. ”
A t clos ing, Wahid executed a warranty deed descri bing the conveyed property

a s “ See Attache d Ex hibit ‘ A ’ ” although no E xhibit A wa s att ached at the time

. In stea d, du e to the t ransaction ’ s r u shed nature , everyone invol ved agr eed that the legal
d e scription would be added after the title company completed its property report. According to Newman , everyon e was “ comfortable ” in letting the title compan y11 f inish its work and later “ a t tac h the legal description base d on t he r e s ea r ch that the y did. ” Newman testified that Smith had told everyone present that “ onc e th ey had the
title w ork finished, they would attach the le gal description that they u lti m ately [came]
up with, and every body understood a nd agreed and al l owed her to pr ocee d in that
fashion

. ”
S hmaisani said the same thing: t hey had all understoo d an d agreed that they

“ were leaving that date without exhibits because the title comp a ny w as, ag ain, still trying to figu re out what is residential and wha t is com mercial, [ 6 ] and leg al descr iptions or exhibits would follow, and we all had that understandi ng. None of us had a
p roblem with it. ” Sh maisa ni answer ed, “ Absolutely , ” when a sked if he had
understood that “ the exhibit that was going to be a tta ched to that deed wo uld have a desc ription of all the commercial property on which Mr. Healy had a l ien ”

— which

wou ld have included al l 1 2 of the 701 Property lots but not 717 Mai n. Both Shm aisani and Wahid signed t he requisite settlement statem ent, whi ch s howed the pr operty addr esse s as “ 70 1 N. Main Street, Fort W orth, TX 76164, 705 N. Main Stree t, F ort Worth, T X 7616 4; 709 N. Main , For t Worth, TX 76164. ”
A lso on Ap ril 2, Shma isani and Wahid executed an option agreement giving
Wah id u ntil Aug ust 2, 2012 to buy back , fo r $685 ,000, propert y de scribed on “ Exhibit

6 Healy had a lien against resi de n tial propert y that was also on the forec losure list , but S hmai sani was n ot inter e sted i n buy ing a nyt hing o ther than co mmercial property from Wahid

.12 A , ” which , when finali zed and recorded , mirr ored the Exhibit A ultimately atta ched to the warranty deed

. T he deed ’ s Ex hibit A l egal desc ription is added after t he post closing title wo rk
. W ith the flurry of Heal y
- focused activity at an end on A p ril 2 , S m ith ’ s of fice
turned its at tent ion t o finalizing the legal d escr iption for the warra nt y deed ’ s Exhibit
A , a pr ocess that included ensuring that Shmaisan i had acqu ire d on ly commercial lo t s . To that end, Smith, her escrow assistant Laura Whi te , and Newman corresponde d by
email over se vera l day s . Smith and White were initially conf used a bout whe ther Lots
43 t h r o ugh 48 of the 701 Property were residen tial (t hey we ren ’ t) , wi t h Smith ’ s having
understood at first that t hose six lots were n ’ t be ing conveyed to Shmais ani for that

r eas on . Newman corrected S mith b y pointing her to the deed s of trust for “ all of the
lots. ” In that same emai l, Newman informed Smith that he had “ had l unch with [W a lly ] and Joseph tod ay a nd t hey agreed wit h the lot s I to ld y ou. ” At trial, in
respo nse to b ein g asked if that emai l look ed like “ they had at lea st expressed their
consent that al l [12] lots were to be included an d attache d on E xhibit A , ” Newman
said , “ I mean, that ’ s always bee n the understanding the whole week ” of April 2, 2012.
Newman later instruct ed Wh ite in an A p ril 5 em ail: “ The dee d needs to contain the legals for 701, 70 5 & 709 Main which is lots 1

- 6 & 43

- 4 8. ”
When Exhibit A was fina lized a nd the deed recorded i n May 2012 , the
descri ption matche d the en t i re 70 1 Property

. Newman testified that throughout13 various and num erous meetings up thr ough the fall of 2 01 2 w ith S imone, and several meetings w ith Wally and Joseph, none of them claimed th at the war ranty deed to S hmaisani was wro ng an d shou ld instead hav e de s cribed 717 Main ; “ no one ha [d] ever mentioned that. ”
T he option ag ree ment

— which Newman reco rded on June 13, 2012

— also
attached t he 12

- lot 701 Property l e gal description as its Exhibi t A

. Si mone acknow le dged tha t Newman gave he r a copy of the option a n d that it “ specifically
describe [d] the 701, 705, and 709 Nor th Mai n properties

. ” Wah id testified that he had
learned abou t Exhib i t A maybe two to three weeks after closing and definit el y knew

a bo ut it by A u gust 2012

. Neither of them complained.
A fter the clos ing , Wahid and Wally co ntin ue to assert inter est s in the 70 1 Property ; Wal ly “ re - fo r ecloses ” on Wahid ’ s debt to Joseph
. Wah id an d Wally were not through with the 7 01 P ro perty ev en a fter Wa hid
sold it to S hmaisani on April 2

. L ater th at same day

— aroun d 5:00 or 5:30 p.m.

— and
usi ng a different notary, Wahid purported to convey a n undiv ided 50% interes t in the
7 01 P roperty to Wall y and to convey Lots 5 and 6 to BW Const ruct ion , Wally ’ s dba

. Th ese two deeds were recorded in October 2012 , af ter the option a g reement had expired

. And even tho ugh the opt ion was ex pressly non transferrable , also on A p ri l 2 and using y et another notary, Wahid assigned it to Wall y , an assignment that

— lik e the option ag ree ment itself

— cont a ined the 701 Property legal de scr i ption. Th i s14 assignm en t sta yed out of the officia l records un til Wahi d sub mitted it for re cording in
late A ugust 2012 , also after the option had expired

. More was to co me: i n late August 2 012 , a July 3, 2012 tru st ee ’ s deed executed by a “ W. Y ammine ” as truste e was r ecorded , reflecting a foreclosur e sale a fter Joseph
fail ed to pay hi s Apri l 20 09 $4 98,000 debt to New Frontier/Wa hid. This truste e ’ s deed ha s a whiff of déjà vu : N ew Frontier/ Wahid ( thr ough the real trustee,
Woodbu rry ) had already foreclosed on the 701 P ro p erty in Ja nua ry , which is h ow Wahid had title in t he first place and could t heref ore convey the 701 P roperty to S hmaisani i n April

. 7 Additionally, the W. Yammine trustee ’ s deed falsely recite d that a deed of trust dated April 3 , 2009 w as de livered to W. Y a m m ine as trustee on that da te and “ recorded De cember 30, 2011 under Tarrant Coun ty Clerk ’ s file

7 When Wa lly was que stioned about whethe r it was hi s “ W. Yammi ne ” signature
o n the July 2 012 de ed, he said, “ I don ’ t remember if it ’ s mine, you know, ” and , “ I ’ m no t sure. Let me see. No , I ’ m n o t sure. I can ’ t see very well. S o rry. It ’ s str ong ca ncer che mo , ” so mething he invoked multiple times in claim ing a la ck of memory. Asked by his o wn la wyer whether he had “ anything to do with ” that document, Wally respo nded, “ I don ’ t remember. I

- - my chemo, cancer chemo .

. . . ”
A s for Wahid , at trial he claimed total igno rance of t h e “ W. Yammine ” July 20 12 trustee ’ s deed

. This sequence of ev ents e choes those in still another a ppeal involving Wahi d , which ori gi n ated in o ur court befo re bein g transferred

. Yammine v. HDH Fin., LLC , No. 07

- 14

- 00169

- C V, 2015 WL 3750 339, at *1 (Tex. App.

— Amarillo Ju ne 12, 2015, p et. de nie d) (mem. op.) ( “ The dispute a ros e after Wahid released lie ns attach ing to various parcels of re alty. The liens arose from deeds of tr u st execut ed in his favor by the la ndowner. After th e liens were released, the landown er sold the pr operty to HDH via warra nty d eeds. After the latter t ran s action occurred , the trus tee under the pr ior deeds of trust co nveye d to Wahid title to the r e a lty

. H D H then su ed Wahid to re move the cl oud on its title. ” ).15 #D 211315107 ”

— but that wa s the inst rument number and date associate d with the Woodburry dee d of trust. S imone exercises Wa hid ’ s option to re a cquire the 701 Pr op erty, although the purchase n ever mate riali zes. During the t ime b efore the W a hid

– Wally/BW d eeds, the option assignme n t, or the “ re

- for eclos ure ” tru stee ’ s deed was fi led of record , Wahid ’ s repurc has e op tion
faced a n A u gust 2, 2012 deadline

. Des pite Wahid ’ s havi ng assigned the op tion to Wally in A p ril , Simone went to Newman ’ s office on July 31, 2012 and sign e d, as
Wahid ’ s agent under a power of attorne y, a document st ating that W ahid was

ex er cisin g hi s op tion “ concerning the property located at 701, 701 [s ic ], 705 and 709
N. M ain Street, Fort W orth, Tar rant C o unty, Texas. ” And on th e option period ’ s final
da y , Simone

— again acti ng f o r Wa hid

— rec o rded h is “ notice of ex er cise o f o pt ion

. ”
That notice attached the same legal des cription of the 701 Property as th e o pt ion
agreement ’ s E xhibit A , which in turn was the s ame legal description as t he Wahid

– Shma isani warranty de ed ’ s Exhibit A

. T he option was never consummated , and Shmaisani remained as the recor d

owne r of the 701 Property

— o r so he thought, until Febr uary 14 , 2013.
S h maisan i finds out about W ahid ’ s and Wally ’ s p ostclosing mis

- “ deeds. ”
On t ha t 201 3 Valentine ’s Day , S hmaisa ni visit ed the Tarran t C o unty A ppraisal
District offices and not o nly learned of Wahid ’s April 2 conveyances to Wally and BW
Constr uction b ut also sa w why h is re c ent onl ine property searc h had revealed that in16 the su mmer of 20 12, th e 701 Property ’ s ow nership had been changed in the off icial
records from him to New Frontier

. That change was of course b ased on “ W.
Yam mine ” ’s ha ving foreclosed J oseph ’s earl ie r deb t to Wahi d , for the seco n d time , b y

a di ff erent truste e

— and allegedly with no k nowledge whatsoever o n Wahid ’ s part
.

Liti gatio n en sues. Sh maisani sued Wahid and Joseph al most imm edia tely

. Six months later, in Aug ust 2 013 , things came to a gr inding hal t wh en W ahid filed bankruptcy

. 8 The automatic stay was eventually l ifted and this litigati on cont inued , but am o ng the
Yammines the 701 Property remained a hot potato (or a pea under a shell, depe nding

on o ne ’ s p oi nt of view)

. In the bankru pt c y proceedin g , Wa hid had listed Lots 1
th r ough 6 of the 701 P ro p erty amo ng his bankruptcy estate ’ s three page s of real

p roper ty i nterests held during the statutor y pre

- petition per i od , all of which he valued
col lec t iv el y at over $2 million

. In O ct ober 20 1 4 , the bankruptcy co urt entered an

o rder appro ving the sale of all of Wahid ’ s r eal

- estate a ssets to S i m one for

— $10,000.
T h e bankr uptcy c ourt app arent ly approved this massive discount beca us e of

u ncertainty o ver whether Wahid owned all or any part of the a ss ets , noting in its order

8 Wally himself had fil ed bankr uptcy earlier, around August 2012, in itial ly li sting
a mong his e state ’ s personal

- property asset s the assigned o ption agreement a nd , in amended sc hedules , a 50% interest in the 70 1 Proper ty. Soon a fter we heard or al argumen t , W ally filed bankru ptcy again , triggering a n aba tement of th is a ppeal until Shmais a ni obtain ed an orde r lif ting the automatic s tay
. Brother Joseph w as also no
s tr anger to se rial b ankruptcy p roceedi n gs, unable to recal l at trial even whether he had filed bankr uptcy fewer or more t han five times

.17 that th e cour t “ has not made and is not making any determinati on that the [ B ankruptcy] Estate has a ny interest in the Sched uled [Real] Property lis t ed on
Ame nded S ch e dule A. ” Simon e promptly transferred Lots 1 through 6 of the 70 1
P roperty to a n en tity she cont rolled called the “ 701, 705, & 709 N. M a in Stree t Tru st ” although that October 2014 warranty dee d was not recorded until Dece mber 2015 ,

ove r tw o years after this lawsuit started

. 9
S hmaisani amended his pet ition i n May 2 0 15 t o a dd Wally and Simone as
defendants. Shortly afterward, Wahid filed a third

- party actio n against Smith a nd
Stew art Title

. W ally later f iled his o wn counter claims agai nst Smith, Stewart Title , and
Shmai sani to quiet titl e, f or real

- estate fraud , and for vi ol ations of the Texas The ft Liability Act. 10 See Tex. Civ. Prac. & Rem. Code Ann. § § 134.001

– .005.
In D ecem be r 2016, Simone filed a v oluntary Chapter 13 b ankruptcy petition , putting yet ano ther halt to the trial

- cou rt proceedings

. O n Shmaisani ’ s mot ion to li ft
stay , a motion that is not in our record, the bankruptcy co urt ordered that the “ st ay afforde d by 1 1 U. S.C. § 362 is hereby terminated with resp ect to [Shma isani] in order

9 Simone testified that she wa s the trustee of th a t trust and b el i eves that she was
a lso the trus t ’ s beneficiary , but that t he tru st had been diss olved an d its asse ts “ w ent back to ” her by way of some document she c o uld not describe at trial; nor could she re c all the attorney who had c reated the tr ust documents for he r .
10 Stewart Title won s umm ary judgment o n Wally ’ s claim s against it , an d Wahid later di smissed his clai ms against Stew art Title

. Smit h was thus the only th ird

- par ty defenda nt at trial. The tr ial court directed a verd ict in her favor , and n o one has comp lai ned to us a b out th a t rul ing.18 to pursue state cour t lit igat ion in a ma tter en title d I ssam Al Shmaisani v. Wahid J.
Ya mmine, et al , 3 48

- 264569

- 13 and relate d , inter a lia , to ” the 701 Property.
Shmaisani l ate r supplement ed his petition against Wahid and Wall y to assert waiver, estoppel, and ratification as bars to Wahid ’ s or Wally ’ s atte mpts to “ reform,

mo dify or vo id the d eed conveying ” t he 701 P roperty. J URY V ERDICT ; J UDGMENT
A t the en d o f a six

- day trial , the j ur y ret urned a unanim ous v erdi ct finding that:

• W ahid and Shmaisani agreed that Smith was authorized to add an Exhibit A legal description of the 7 01 Proper ty after post closing ti tle wo rk was com pleted (Question 1) ;

• W ahid ra t ifi ed the April 2 conve yance of the 701 Prop erty to S hmaisani (Que sti on 2) ; waived his righ t to contes t the Exhibit A legal description that
was adde d to the warranty de ed (Que stion 3) ; a nd w as estoppe d fr om a sserting that the warranty deed did not con vey the 7 01 P roperty , as described in Exhibit A, to S hmai sani (Question 4 ) ;

• S h maisani did n ot obtain the deed to th e 701 Property by fraud (Q uest ion 6) ;

• S hmaisani was a goo d

- faith p urc hase r f o r value without notice of Wahid ’ s near

cont empor ane ous deeds to Wally and to B W Con structio n (Qu esti on 7) ;

• W ally was not a good

- fa ith purchaser for value wi thou t n otice of the deed conveying t he 7 01 Proper ty to S hmaisani (Qu es tio n 8) ;

• W ah id fraudulentl y e xecuted , and Wally f rau dulently caused to be filed, the A pril 2 warranty d eeds to W ally (50% interest in the 701 Property) and to B W Construc tio n (Lots 5 a nd 6) ( Question s 9 ( a) and (b) ) ;

• W a lly fr audulently execu t ed and c au sed t o b e filed the W. Yammine Jul y 2012 trus tee ’ s deed conveying the 70 1 Property to New Front ier / Wahid (Qu estion 9 (c) ) ; and19 • S imone fraudulently executed and caused to be filed the deed conveying Lots 1 through 6 to the “ 701, 705, and 7 09 N. Ma in Str ee t Trust. ” ( Que stion 9(d )) A fte r a nu mber of postverdict motions went back and forth , inc ludi ng ones inv olving Shmaisani ’ s attorney ’ s fees and Smith ’ s m otion for sancti ons against Wahid
under Rule 1 3 of the Texas Rules of Ci vi l Proc ed ure , the trial court e nt ere d i ts final judgment in No vember 2018 , orderi ng th at S hmaisani recover

—

• t itle to and possess ion o f the 701 Property;

• n othing from Wahid (be cause of his discharge in bankr up t cy) ;

• $ 30 , 000 fr o m Wall y for three fraudulent p r op erty

- records filings;

• $ 10 ,000 from Si mone for her fraudulent prope r ty

- re cord s fi ling ;

• $ 120,000 in reasonable and necessary attorney s ’ fees from Wall y , together with conditional a ppella te attorney s ’ fees , under the Fraudul ent Li en Act , Chapter 12 of the Texas Civil Practice & Remedies Code ( CP RC ) ; and

• $ 40,000 in reason a bl e a nd n e cessary attorney s ’ fees under Chapter 12 fro m Simone , plus conditional a ppellate attorney s ’ fees

. A s to Smith ’ s Rul e 13 mo t io n again st Wahi d , the trial cour t awarded Smith $ 21,265 as r easonable and necessary attorney s ’ fees , but again st Si mone and not Wahid

. Th e trial cou rt also ordered that “ De fe ndants, a s Counterclaimants, take nothing by the ir counterclaims ” against S h maisan i. This ap peal followed.
I SSUES ON A PPEAL
S imone has raised five issues , which w e pa r a phr ase : 1. T he Wahid

– Sh mai s ani warranty d eed is void because n o property de scription was attached whe n Wahid executed it , w ith t hese su b issue s :20 ( a) W hether t he s tat u te of f rauds allow ed the contra ct to be orally modified ; ( b) W hether s uffic ient ev ide nce suppor ted the submi ssi on of a jury question asking if Wahid wa s es topped f r o m asserting that the deed di d not convey the 701 Pro perty t o S hma i s a ni; and ( c) W hether su fficient evidence supported the jury ’ s finding that W ahid had rati fi ed the con veyance of the 70 1 Propert y to Shmaisani ; 2. T he evidence was legally and fac tua lly ins ufficient to establi sh that Simo n e v

iolated CPRC Section 12.002 ; 3. T he lift

- stay order in Simone ’s ban kruptcy case was not so broa d as to a llo w the tri al court t o award monetary damages or attorneys ’ fees against her ; 4. S imone c ann ot be t a gged with Ru le 13 sanctions when Smith sought them on l y agai nst Wahid ; and
5. S hmaisani fail ed to segregate his attorney ’s fees

. W a ll y ’s fiv e is sue s o verla p wi th Simone ’s to var ying degr ees : 1. T he trial court abused its disc retion by overrulin g Wally ’s j ury

- charge objections;
2. T he Wahid

– Shmaisa n i con veyance was void f or l ack of a l egal descr iption o r, alternatively, for an erroneous le ga l des crip tion , with three su bparts: ( a) Wah id and Sh maisani had no meeting of the minds abo ut mo dif ying the contract ; ( b ) The evidence was not legall y or fa c t ually sufficient to sh ow that Wahid ra tif ied the contract; and ( c) The ev i denc e wa s not legally or fac tually suff icient to show that Wahid was estopped from c hallenging t he contract ’ s v a lid it y or th at he waive d his rig ht to do so ; 3. S hmaisa ni did not mee t hi s Section 12.002 burden with legally or factually
su f f icie nt e vidence and is thus not en ti tle d to a jud gment against Wally;21 4. T h e trial court erred by e n t ering a take

- no thing judgment o n Wall y ’s counte rclaims ; and
5. B e caus e Shmaisani ’s Sect ion 12.002 claim fai ls, Sh mais ani is not entitled to attorney ’s fees ; a l te rn ativ ely, Shmaisani failed to segreg ate his f e es as required

. B ecause of their commonalities , w e will discuss certa in issues together

. S TANDAR DS OF R EVIEW
W e m ay s ustain a legal

- su fficiency challenge

— that is, a no

- evidence challenge

— only wh en (1) the recor d be ars no evidence of a vita l fact, (2) the r ules of
law or of evide nce bar the court fro m giving weight to the on ly ev idence offered to
prov e a vit al fact , ( 3) t he evidence offer ed to prov e a vital fact is no more than a mere scint illa , o r (4) the e viden ce e stablishes conclusively t he opposite of a vital fact. Shields

v. Ltd. P’ship v. Bradbe rry , 526 S.W.3d 471, 480 (Te x. 2017 ) ; see al so Ford Motor C o. v. C

a s

t illo , 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g); Uniroyal G oodrich Ti re C o. v. Martinez , 977 S.W .2d 328, 334 (Tex. 1998) (op. on reh’g). In determining whether
l egally sufficient evi dence support s the findin g u nd er review, we must con sider

e vidence f a vora ble to the findin g if a rea sonable factfinder could , and we must disregard con tra ry evid ence unle ss a reasonable factfinder co uld not

. Cent. Ready Mix
Concrete Co. v. Islas , 228 S.W.3d 64 9, 651 (Tex. 2007); City of Ke ller v. Wi lson , 16 8 S.W.3d
80 2, 80 7, 82 7 (Tex. 2005). W e ind ulge “ ever y reasonable inference deducible from the

e vide nce ” in su pport of the challenged finding. Gunn v. McCoy , 554 S.W.3d 645 , 658 (Tex. 2018 ).22 N either S i mone nor Wally pre served factua l

- sufficiency co mplaint s for appeal

a s we exp lain later , so we do not recite th at standard of rev iew

. A trial court abuses its disc retio n if it fails to analyze the law correctly or misapplies the la w to estab lished facts, In re Dawson , 5 50 S.W.3d 625, 62 8 (Tex. 2018) (o rig. pr oceeding) (per c uriam) ; Iliff v. Iliff , 339 S.W.3d 74, 78 (Tex. 2011), or if it s decision is so arbitrar y and unre ason able that it amounts to a cl ear and prejudici al
error of law. In re Olshan Found. Repair Co ., LLC , 32 8 S.W.3d 883, 888 (Tex. 201 0) (orig. p roceedin g).
We revie w c laim s of jury

- char ge error for an abuse of discretion

. See Thota v. Young , 366 S.W.3 d 678 , 68 7 (Tex. 2012) (“We r eview a t rial cou rt’s de cision to sub mit or refuse a partic ular instruction under an ab use of discretion standa r d of r eview.”) ; Ma tl oc

k Plac e Apartments, L .P . v. Druce , 369 S.W.3d 355, 382 (Tex. Ap p.

— Fort Worth
201 2, pet. den ie d). W hen the appellant challenges an instru ction or definition as lega ll y incorre ct, we r eview t he instructio n or definition de nov o. Matloc k Plac e , 3 69
S.W.3d a t 382. I f the charge is l ega lly correct, the trial co ur t has broad dis cretion in submitting que stion s, d efinitio ns, and ins tructions. Id

.23 D ISCUSSION S

imone ’ s I ssue 1/ Wally ’ s Issue s 1 & 2 A
. T he April 2, 2012 Wahid

– Shmaisani deed was n ot i ncu rably void ; th e partie s ag reed that the legal description for t he 7 01 Property cou ld be added later , and it w as . Wah id and S hmaisani signed a real

- estate contract that, at Simone ’ s insistence , referred to property by an instrument numbe r only

. Simo ne tol d New man not t o bother loo king up t hat n umber online. When cl osing attorney Smit h , who did l ook it
up , becam e p uzz led because the i nstrument number ’ s associated d eed didn ’ t match
any prop erty on th e Healy foreclosure list, Newman ad ded

— with the buyer ’ s and
seller ’ s know le dge and in the ir presenc e

— t he imperiled 701 P roperty addres ses to the

contract
. W hen Wahid s i gn ed the warranty deed that day , no property descriptio n was included or attached ; Smith added i t later a nd then recorded the d e ed with a n E x hibit
A that describ ed the 70 1 P roperty. Altho ugh conflicting, the tr ial testimony indic ated
that S m ith did so wit h b oth Wah id ’ s and Shmaisani ’ s blessing , and the jury agreed

. S i mone and Wally argue that the deed was void w hen it was execut ed because it
la cked a prope rty de sc ri ption

. See Tex. Bus. & Com. Code Ann . § 26.0 1(b)(4) ; Tex. Prop. Co de Ann. § 5.021 . According l y, th ey c ontend, the trial court should not have

even asked the jury whethe r Wahid and Shmaisani had agreed t hat S m ith could add
th e property d escr iption ; nothi n g could a nim ate a void dee d , they say, s o Quest ion 1
was an incorrec t statem ent of the law.24 If the iss ue w as simply whether the deed was valid wh en executed, the answer
would be no . Se e Tex. Bus. & Com. Code Ann. § 26.01(b)(4) ; T ex. Pr op. Code Ann

. § 5.021 ; AIC Mg mt. v. Crews , 246 S.W.3d 640, 645 (Tex. 2008) (holding that valid
conveyan ce o f rea l pr operty m u st contain sufficien t description of property ) . Th e deed ’ s validity would th us h ave b ee n a purely legal ma tter for the trial cour t to determine

. But Shmaisani p re sented evidence that he and Wahid had a gre ed that the
title c ompany cou ld ad d an Exhi bit A th at would describe the 701 Property

. T he evidence and the j ury ’ s answer to Question 1 place this cas e squarel y wi thin the holding s o f cases lik e Fos ter v. Lessin g

, 346 S.W.2d 939 (Tex . App.

— Waco
19 6 1, wri t ref ’ d n.r.e.) , which rec ognize that a sel ler o r grantor can authorize someone

to add descr iptions later t o cure an init ial and otherw ise fatal defect.
In Foster , a specific

- p erfo rma nce case, t he jury f oun d that the parties had
authorized a real

- estate agent to add a leg al description to the i r si gned contract after a survey was completed. The a ppe llate court affirme d the t rial court ’ s r esulting judgme nt , hol ding that t he renegi ng s ell er cou ld no t invoke the statu te of fra uds to invalidate the contr act after the agent added the descr iption. I d

. at 942

– 43 . Th at is,
because the ev idence esta blished the parties ’ auth orization t o t he agent , the later

ad ded description conv e rte d an initially u nenforc eab le c ontr act int o a n enforce able

one : T he contracts as prepared and signed, an d containing no descripti on o f the l and involved were not so wholly void that they were not t hereafter25 oper ative and effective by the insertion, if a u tho rized by the s el ler, o f a co rr ect descr ip ti o n of the land intended to be s old.
I

d

. at 942. Foster also supp ort s the trial court ’ s submi ssio n of Qu estion 1, which asked : D id Wahid Yammine and Issam Al Shm aisani agree o n April 2, 20 12 that S haron Smith was a uth orized to a dd the le gal des cri pt io n of

“ The P rop erty ” (se e Definition No. 1 ) as Exhibit “ A ” to the General Warranty Deed (dated Apri l 2, 2012) after she comple ted the title work after the closin g on A pril 2, 2012 f or fil ing of the deed in the publi c dee d
r ecords? T he jury a nsw er ed yes , just as t he Foste r jury did in response to a subs tantively
identica l question

. Id

. at 942

– 43

. On our facts, Question 1 was entirely proper. Like here, the i ssue in Fost e r “ was not whether the writings conta ined an
ad e quate descri ption of the p roperty, but w he ther the s tatute of frauds could be invoked after the initial writings

. . . were lat er suppl ement e d t o include descripti ons sufficient for s tatut e of frauds pu rposes. ” La wler v. Dix to r Int ’ l, Inc. , No. 05

- 9 7

- 00286

- CV , 1999 WL 58809 7 at *3 (Tex . App.

— Dal la s Aug . 6, 1999, no pet.) ( not designated for publication)

. If evi dence show s the part ies ’ agreemen t to add a property
des cription aft er a dee d is executed, the deed as aug m ented is val i d and convey s real
property. Fos ter , 346 S.W

. 2 d at 942 ; cf. Republic N at ’ l B ank of Dallas v. Stetson , 3 90
S.W .2d 257, 261 (Tex. 19 65) (holdin g th at deed lack ing descripti o n w hen it was
executed conveyed no thing, w here undisputed evidence sh owe d that g r antor “ gave no authority to anyone to fill in the d es crip tio n or alter th e docum ent ” ) ; Glasscock v

. Farmers R oyal ty Hold i ng Co

. , 152 F. 2d 537, 538

– 39 ( 5th Cir. 1945) (holding that parties ’ stipulation

— th at grantor had exec uted two mine r al d e ed s lacking property26 d escr iption s but with the understanding that grantee s c ould lat e r insert d escription s
on gra ntor ’ s auth orit y

— establ ished tha t dee ds were “ title[

- ]passi ng instruments and passed title to the minerals in question , ” as the trial court found , th e reby making i t

un neces sary to determine separ ate ratific ati on argument )

. Indeed, the Gla ssco ck court ob s erved what had long been tru e even in 1945 : W hateve r may be the s ta te of the law [] elsewhere as to whe ther a dee d which has been signed in blank, autho ri ty and spec i fic directi on being given to th e grantee t o f ill in the descriptive data, is o per ative or in o perative, it has been man y times declare d by the Texas c ourts th at such a deed, after the descripti on has been properly filled in, would be operative t o pass titl e [

. ] T hreadgil l v. Butler , 60 Tex. 599 [, 600

– 0 1 ( 1884 ) ] ; Tarr ant C ounty v. McLemore , Tex. Sup., 8 S.W. 94 [ , 96 (Tex. 1 888 )].
I

d

. (footno tes omitted).
The jury here faced competi ng views of what the parties did and didn ’ t agree to

on A p ril 2, 2012

. It res olved those differe n ces in Shma is ani ’ s favor , i n the pro cess making the w e ig ht and cred ibility de t erm inations that are a ju ry ’ s exclusive prov i nce. See Gold en Eagle Archery , Inc. v. Jackson , 116 S.W. 3d 757, 761 (Tex. 2003) (holding that
factfinder is t he sole judge of th e witnes ses’ c re dibility and t he weig ht to be given their

tes timony )

. Mo reover , n o ne of the Yammi nes argued to the tri al c ourt

— or to us

— that the evide n ce was legall y or factua lly insufficient to support the jury ’ s fi nding of an agreement that the 701 Property lega l de s cri ption could be a dded after closing

. 11 See In

11 Wally and Wahid filed a JNOV motion combined with a m otio n to disregard jury findings in whi ch they arg ued that Question 1 “ {i } is not supported by Plain tif f

’ s ple adi ng s and {ii} constitutes a l e gal conclusion an d an improper statement of the la

w. ” They contended that if the trial court relied on the jur y ’ s answer to Q uestion 127 r

e M.S. , 115 S.W.3d 534, 547 (Tex. 2003) (noting that R ule 324 (b)(2 ) requires a motion
for new trial to pr es erve factual

- s ufficiency complaint) ; T.O . Stanley Bo ot Co. v. Bank of
El Paso , 847 S.W .2d 218, 2 20

– 2 1 (Tex. 1 9 92) (expla ining that a n o

- evidence issu e must be preserved by moving for an instructed verdict, mo v i ng fo r judgment
notwithstand ing the verdic t, objecting t o s ubmitting the question to t he jury, mov ing to disreg ard the jury ’ s ans wer to a vita l fa ct questio n, or movi ng for a new t r ial)

. Thu s,

t o the extent that Simone or Wally tacitly c omp lains that legal ly or factually
insufficient ev idence su p p or ted th e answer to Question 1 , they have waived that

com plaint. 12 Wally r aises a related subi ssue a rgui ng t hat there was no meeting of the minds
be tween Wahid and Shmaisani about modifying the c ont ract by Ne wman ’ s inse rting
the 701 Property add r esses or b y Smith ’ s adding Exhib it A

. H e also argues that a valid

contract m odifica tion must be supported by c onsi dera tio n, citing W hi

te v. Harrison , 390 S.W. 3d 66 6, 674 (Tex . A pp.

— Dallas 2012 , no pet.). W all y did not raise th e s e

in r end ering a judgme nt, the court “ would im prop erly find that a writte n c on tract to s ell real estate could be o r ally m odified and that the o ral modific ation of th e writte n contract was enforceable. ” This contention is not the same as one that challeng es ev identiary su fficiency. See Tex. R. App. P. 33.1 (a)(1); Banda v . Garcia , 955 S.W.2d 270, 27 2 (Tex. 199 7) ( hol din g that complaint on a ppeal must match th at presented in trial court)

.

12 Simone was the only defendant to move fo r a new trial, but her new

- tr ial motion contai ned no specific grounds , stating on ly that she “ re

- urge [d] the poi n ts raised in the post

- jud g m ent motions and responses and a sk [ed] the Cou rt to grant her
a new trial in this case. ”28 speci fic argum e nt s in the trial cour t, although we suppose that arguing no meeting of
the minds at this stage might theoretically be tan t amo unt to complaining t hat the jury
should not ha ve be en a sked, o r should not have answered yes to , Q uestion 1

. C f.
Mu sallam v. Al i , No. 02

- 1 6

- 0028 2

- CV , 20 19 WL 1950179, at *8 (Tex. App.

— Fort Worth May 2, 2 019, no pet.) (mem. op. on remand ) (rejecting argument that jur y should n ot have been asked wh ether pa rties had agreed to ce rtain ter ms ; although whether an agreem ent co nstitute s a contra ct is generall y a legal ques ti o n , “ w hen a meeting of the minds is contested, determination of the existence of a contract is a
q uest ion of fac t ” ). W e have already resolved the Exhibit A i ssue in Shmais a ni ’ s favor;
the balance of Wal ly ’ s sub issue h a s been waived. 13 See Te x. R. App. P. 33 .1(a)(1)(A);
Banda , 95 5 S.W .2d at 27 2

. In short, b y finding an agreement that Smith could add an Exh ibit A desc ribin g the 701 P rop erty , the jury effect ively reviv ed the w ar ranty deed , thereby justifyin g t he
trial co ur t ’ s judgment decreein g that S h ma isa ni owns the 701 Pro perty
. 1
. W i th the jury ’ s “ yes ” answer to Question 1, Question s 2 t hrough 4 becam e i m material to the final judg ment . Althoug h it could have , t he trial co ur t did not condition the ju ry ’ s ans wering Q u es tion 2 ( Wahid ’ s ratif ication) , Q ues ti on 3 ( Wahid ’ s waiver), or Question 4 ( Wahid ’ s estoppel) upo n answering “ no ” to Question 1

. That is , fi nding a n agr eem ent

13 Regardless, Wally was a stranger to the contra ct, and w e ha ve serious concerns in any event about wh e the r a stranger to a contr a ct can assert that the contract i ng parties did not have a m eeting of the m inds.29 con sisting of “ X ” does not need belt

- and

- suspender s fin ding s that a party also lat er

r atified th e agreement for X by do ing Y , o r waiv ed a challenge to its validity , or is estopped from denying its validity

. O nce a jury finds t hat par ties agreed to s ome thing , that ag reement is e nforceabl e unl ess the opposi ng party h as some legal excuse f or

a voiding it

. See , e .g. , Tex. R. Ci v. P. 94 (li s t in g examples of affirmative defenses). Here
i t was Shmaisani , not Wahid , who pleaded t h e se three aff irma tive “ defens es ” as

s upplements to his liv e petition , ap paren tly as alterna ti ve ways to obtain a judgm ent that Shmai s ani o wned the 701 Prop erty in case t he jury declined to find that Wahid
and Shmaisani had affirmatively agreed to let Smith add Exhibit A

. F or example, e ven if the jury had a nswered Q u e stion 1 “ no, ” Wahid co ul d

non e t h eless have ratif ied the conveyance to Shmaisani by W a hid ’ s as signing the
pu rc hase option to W ally or by att emptin g to exercis e the original option himself , because both the as sign ment and the option contract identified t he 70 1 Property and necessarily recognized that S hmais ani o w n ed it

. See R e serve Petrol eum Co. v. Hodge , 213
S.W .2 d 456, 45 7

– 58 (Tex . 1948) (holding that by executing mineral lease re ferring to

“ mineral deeds proper ly e xecuted a nd now of record, ” mineral ow ners had ratified
conveyance even though earlier mineral deeds lacked property description s when sig ned and owners h ad not authorized adding descriptions to deeds before they were
recorded ) ; see also Glas s co ck , 152 F.2 d at 540 ( a pproving trial court ’ s find ing that , because deeds we re effective to pass tit le, dete rmining the que stion of later ratific ation through grant or ’ s executing a lease was unn eces s ar y , b ut never theless concludi ng that30 grantor ’ s en tering in t o lea se c onstitute d ratification and noting “ se ttled law in Texas
that the ex ecution by the grantor i n qu estioned instruments of later instrum ents, recogniz ing t he prior instrum ents as valid and e ff ecti ve, oper ates as a comple te ratification and validatio n of t hem, whether as originally executed they w ere void or
voidable ” ).
Because we affirm the trial court ’ s ju dgment based on the Question 1 findin g ,

we n eed no t consider Sim one ’ s and Wall y ’ s ar gu ments concer ning the ratification, waiver, and e stoppel fin dings in Shmaisani ’ s fav or . T h ose findings were no t material
to the judgment. See Spencer v. Eagle Star In s. Co. o f Am. , 876 S.W.2d 154, 157 (Tex.
199 4) (n otin g th a t answer to a jury question is im mater ial “ wh en it was prop erly
submitted but has been rende red i mmat erial by o ther fin ding s ” ).
2
. Wally ’ s c harge

- related co m plaints fail. In his first issue, whic h over lap s somewhat with his second, Wa l l y compla ins
th at the trial court erred in overrul i ng hi s jury

- c harge objections to Questio ns 1, 4, and
7

. T o p rese rve error about a n incorrect jury que stion o r instruction, t he complaining party must time ly and plai nly make the trial court aw are of th e c o m p laint a nd obt ai n a ruling. Ford Motor Co. v. Led e sma , 24 2 S.W. 3d 32, 43

– 44 (Tex. 2007 ); S tate Dep’ t of Highways & Pub . Transp. v

. Payne , 838 S.W.2d 23 5, 241 (Tex. 1992) (op. on reh’g); see Tex. R. Civ. P . 274.
T he record shows that al th ough Wally an d W a h id objec ted jo in tly to Question
1 (authority to add Exh ibit A) as an “ improper s tatement of the law ” and to Questi on31 7 ( Shmaisan i as a good

- faith purchas er) as “ not a control ling issue ” and as

“ immat erial , ” only Wahi d obje cted to Question 4 ( e st oppel)

. T he defe ndants did not
ado pt one another ’ s charge o bjections, s o t o the extent we might ot herw ise b e called
up on to consider Wally ’ s complaint ab out Q uestion 4 , w e need not do so

. S ee Wolfe v.
Devon E nerg y Pr od. Co. , 3 8 2 S .W.3 d 434, 451 (Tex. A pp.

— Wa co 2012, p et. denied) (o bserving that if a party di d not make its own objections in the tria l court a nd did not adopt another party ’ s objec tions, “ i t is foreclosed from relying on the objection of

a n other p a rty to preserve it s c omplaint for a ppellate re vie w ” )

. In any eve n t, as we explaine d ab ove, the estoppel finding was immaterial to the eventual judgment

. As for Question 1 , Wally argues as he did at the cha rge c onfere nce t hat it w as an improp e r stateme nt of the law. For the reasons we have already ex plai ned , the question was proper. See Foster , 346 S.W

. 2 d at 942

– 43.
Fi nall y , Wal ly assails Ques t ion 7

— in which the jury f ound that Shm aisani w a s a good

- fait h purchaser for val u e wi thout no t ice of Wahid ’ s ( lat er

- recor ded ) Apri l 2
conveyances to Wally and BW Con struction

— as immaterial to the case ’ s outcome, surplusage, and a comme nt on th e weight of the evidence. Wally c ites no authority for

an d d o es not analyz e these asserti ons . See Tex. R. App. P. 38.1( i ) (stating th at “ brief

must contain a c l ear and c oncise argument for the contentions made, with appropriate
citations to authoriti es and to the record ” ) ; Hamilton v. Willia ms , 2 98 S .W.3d 334, 3 37 ( Tex . App.

— F o rt Worth 2009, p et. denied) (noting that appellate court will not
consider an ap pe llan t ’ s issue wher e appellant fails to pro vide legal ar gument in32 support)

. N or do es Wally explain how the trial court mig ht have rever sibly er r ed by
includi ng Qu e stion 7

. T o o b tain r eversal of a judgment based on tri al

- c ourt error , a n appellan t must show t hat the error occurred and that it probably caused rendition of an imprope r judgment or probably p revented the appellant from properly present ing
the case t o th i s court. Tex. R . App. P. 44. 1 (a); Romero v. KPH Consoli dation , I nc. , 166
S.W.3d 21 2, 225 (Tex. 2005 ). Wally has not made the requisite showing.
We overrule Simone ’ s fi rs t issue and Wally ’ s f i rst and second is sues. S

imone ’ s I ssu e 3
B
. T he bankruptcy c ourt t erminated th e autom atic s tay unconditionally and t hus allowed money damages and attorney s ’ f ees to be assessed against Simone
. Simone argues in h er third issue that t h e bankruptcy court terminate d the

auto matic stay of this litigati on only so tha t t he tr i al court could determine tit le and
poss essio n issues , characterizing the order as “ lifting the stay of state court activity f or the limi t ed purpose o f ‘ any future actions taken by [Shmai sani] to e xercise [h is] rights to ownership o r to obta in excl u s ive po s session of the Real Prop e rt y . ’ ” As a result,
Simone contends , the trial co urt erred by entering a judgment a gainst her on anything
other t han o wnership and possession issues

— that is, Shmais ani cannot recover
Sectio n 12.002 damages o r associated attor ney ’ s fees fr o m her. We dis agree w ith
Simone ’ s interpretation

. Section 362(d) o f th e Bankruptcy Code authorizes a ba n kruptcy court to grant
relief from the auto ma tic stay “ such as by t erminating , annul ling, modifying, o r33 conditi oning ” t h e stay . 11 U.S.C. A

. § 3 6 2(d). “ W e strictly construe an order modifying
the automat ic stay. ” Dickin son v. Dickinson , 324 S.W.3d 653, 656 (Tex. App.

— Fort Worth 2010, no pet.) (di scu ssing bankruptcy

- court o rder modif ying stay to allow
d iv orce to be fin a l ized for specific itemized m atters ) ; s e e also Steph ens v. Hemyari , 21 6
S

. W.3d 526, 529 (Tex. Ap p.

— Dallas 2007, pet. denied) (strictly c onstr uing order
conditional ly lifting st ay to all ow fore c l osure on specific d ate and hold i ng that creditor
failed to establish as matter of law that foreclo sure that occu r r ed the following m onth did not violate automatic stay)

. B ut t he o rder at issue here , ent ered after an evidentiary hearing , d id not

“ modi fy ” or “ condition ” the s tay

— it terminated the stay so that Shmaisan i ’ s case coul d proceed

. See 1 1 U.S.C.A. § 362 (d) (usin g “ t erminating, annul ling, modifying, or
conditioni ng ” disjun ctive ly ). T he order allowed Shmaisa n i “ to p ursue state court litigatio n in a matter entitled Issam Al Shmaisani v. Wahid J. Yammine, et al [.] , 34 8

- 264569

- 13 and related , inter ali a , to the real prope rty described below ”

— the 70 1 Property

. Th e langua ge used i s broad and does n ot purpo r t to l i mit Shmaisani ’ s causes of a ctio n or remedies to purely nonmo net ary or title

- related ones. As our s iste r court in Aus tin has noted, “ [ i] n ordin ary use, ‘ relate s to ’ means to have a con nection with,

to ref er to, or to concer n. . . . The termi nology ‘ r elate s to ’ is very broad in its or dina ry
usage . . . . ” Tex

. Dep ’ t of Pub

. Safety v. Abbott , 310 S.W.3d 6 70, 674

– 75 (Tex. App.

— Austin 2010 , no pet.) ( construing “ relates t o ” la nguage in stat ute in accord ance wi th
ordinar y use); se e also O ’ Banion v . Inland W

. Cl e a r Lake Gulf Shores GP, LLC , No. 01

- 15

-34 00704

- CV, 2017 WL 5494695 , at *10 (Tex. App.

— Houston [1st Di st.] Nov. 16, 2017, no pet.) (mem. op .) ( broad ly con str u ing court decree requiring party to inde m n ify
another for de bts, etc. “ in re lati on to ” particular bu si nes s and n oting that “ [t]he phr ase ‘ re lates to ’ is recognized a s ‘ very broad ’ in scop e, ” citing nu mero us cases). By
lif ting the stay fo r litigat ion “ rela ted to ” the 701 Property, t he bankruptcy court thus expanded rather tha n cabined what S hmaisani might b e a b le to claim, prove , and

rec over wh en it came to issues invo lving the 701 Property

. 14 And if the cou rt had simply ended the sentence after giving the cause number , its intent would have been equally clear.
W e are simi larly unpersuaded by Simone ’ s argu me nt t ha t the o rder ’ s second
part

— terminat ing the st ay a lso “ with re spect to any future ac tion s ” taken “ to exer c ise [ Shmaisani ’ s ] rig ht s to ownership or t o o btain exc lusive possession of the Real Property ”

— lift ed the sta y only as to nonmone tary relief an d is t he decret al language
that m atters
. T h e second decretal para graph is untethered from the one allow i ng the
p ending litigation to proc eed without conditions

. R eading the o rder in its entirety and

co n sidering i ts express terms and plai n lan guage , its mo s t salien t feature is that the

14 The partie s ha ve foc used their attention on arguing ov er what the “ inter alia ” in the lift

- stay order mean t. To us, because “ related to ” is broad to begi n with, addin g
“ in ter a li a ” simply reinforces that the stay was lifte d so that Sh maisan i could p ur s ue his 701 Pro perty

- relate d claims

— whatever they were . We ar e p articularly confident in how we read the ord er co nsiderin g that S h maisani ’ s Se ction 12.002 and a ttorney s ’

- f ee claims a gainst Simone (and Wally) h ad been on file fo r th ree m ont hs bef ore S i mon e filed ba nkruptc y and for si x months when the stay w as lifted.35 sta y was lifted for Shm aisani to pu rsue state

- co urt litig ation rel ated to the 7 01 Property w ith out restri ct ing the type o f judgment the st ate court might enter
. The
follow

- on paragra ph a utho ri zing Sh m aisani to ta ke “ any future a ctions ” hews more closely to th e idea that he might eventually need a writ of possess ion or si mila r
po stjudgment assistance and co uld t ake such steps without coming b ack to the bankrup tcy court
. We overrule Si mone ’ s thi rd issue.
S

imone ’ s I s

s

ue 2 /

Wally ’ s I ssue 3 C
. E vidence abounded that both Simone and Wal ly viol a ted CPRC Sec tion 12.00 2 (a) , th e Fraudulent Lien Act
. In their r espective second and th ird issues, Simone and Wally argue that the
evidence was leg al l y and factu ally i nsuff icient to s upport the jury ’ s answers to Q u estions 9(b), (c), and (d) (findin g CPRC Section 12.002(a) violatio ns o n both their
parts )

. Because neithe r Simone nor Wally moved for a new trial , we need not consider factual sufficiency , see In re M.S. , 115 S.W.3d at 547, and will instead ask whether more than a sci ntilla of evi den ce e x ist ed that either Simone or Wally vio late d the Act

. Keeping in mind t hat w e ind ulge “ ever y reasonable inference de ducible from the

e vidence ” in support of the challenged findi ng s , Gunn , 554 S .W.3d at 658 , t he answer
is yes. The elements of a claim for a f raudulent lien or claim agai nst real prop erty are that a person (1) m ake s, presents, or uses a document knowing th at it is a fraudule nt36 claim against real pro perty ; (2) intend s t hat t he docum ent be given legal effect ; a nd (3) intend s to cause physi cal, fi n ancial, or mental or emotional inj ury to another
person
. See Tex . Civ . P rac. & Rem. Code A nn. § 12.002( a) ; Br ewer v. Green Li zard Holdings, L.L.C . Series SR , 406 S.W.3d 399, 4 03 (Tex. App.

— F o rt Worth 2013, no pet.); Preston G ate, LP v. Bukaty , 248 S.W.3d 8 92, 896

– 9 7 (Tex. App.

— Dalla s 2008, no pet.)

. 15 Here , the jury was inst ruc ted on these elements and f ound in a nswer to Question s 9(b) and (c) that W ally fraudulently cause d to b e f iled two docu ments

— the
late

- in

- th e

- day A p ril 2 warranty dee ds from Wah id to W a lly and to B W
Construc tio n

— a nd fraudu lent ly executed and caused to be fi led a third document

— the W. Yammine July 2 012 trustee ’s deed. In answering Q uestion 9 ( d) , th e j ury found

15 Section 12.002 (a) pro vides : (a) A person ma y not mak e, presen t , o r use a documen t or other re cor d w ith: (1) knowledge that the docu ment or other record is a fraudulen t court reco rd or a fraudulent li en or claim against real o r personal property or an i nterest in real or person al property; (2) i ntent tha t the doc umen t or other reco rd be given t he s a m e legal effect as a court record .

. . , evidencing a valid lien or cl aim against real or personal prop e rty or an interest in rea l or personal pro perty; a nd (3) intent to cause ano ther person to suf fer: ( A) physic al inj ury; (B) financial inju ry; o r (C) mental anguish or emotiona l distress.37 that S i m one fraudulently execut ed and ca used to b e filed one d ocument

— the deed

c o nveying Lots 1 through 6 to h er trust after she acquired Wa hid ’ s real

- estate portfolio from his bankrup tcy estat e . As a result of those findings, the trial c our t awarded Shm aisani the statutor y maximum of $1 0,000 per fraudulent filing , f or a total of $30 ,000 against Wally an d $10,000 against Simone

. See Tex. Civ. Prac. & Rem

. Code Ann. § 12.002(b)(1)(A) (providing t hat a person who violates the Act is liab le
fo r th e greater of $10,00 0 or actual dam ages caused by the vi olation ).
1
. Evidence of Simone ’ s Sec tion 12.00 2 violati on . Simone claims that the evidence shows nothing mo re t han that someone filed the
October 201 4 deed from her to her trust. The deed recites that t he trust ’ s mailin g add res s i s P.O. Box 11781 in Fort Worth; the deed w as submitted fo r re cording by
the 70 1, 705, & 709 N Main Street Trust ; and the address to w hich the dee d was to be
returned after rec ord ing was P.O. Box 11781

. Not on ly is t his the sa me po st

- o ff ic e box Simone used for hers elf in recor di ng Wahid ’ s Augu st 2 012 option

- exercise notice , but in her appellate brief she affirmatively represented that s h e in fact f iled thi s deed
i n December 2015

. She next claims that even i f she filed it , there was no evidence th at she knew
the d eed was fraudul ent. But the jury heard from Simone that the deed conveyed Lots 1 through 6 of the 701 Propert y to the trust ; th at she had k nown since 2012 t hat
W ahid h ad conveyed those lots to Shmaisani ; and th at she had test ified under oath in
Wahid ’ s bankr up t cy proceeding that Shmaisani had acquired Lots 1 t hrough 6

. The38 fa ct that the bankr uptcy court approved the trustee ’ s sal e to Simone of Wahi d ’ s re al

estate holdings , allegedly including Lo ts 1 through 6 , is i rrelevant in the face of her superior knowledge, especially since the bankruptcy court effecti vely threw u p i ts ha nds in t he appro val order by explicitly di savowing any d ete rmin a tion t ha t W ahid
owned any of the l isted real

- p roperty interests

. 16 Simone acknowledged that she knew
in Octo ber 2014 what the ba nkru ptcy court ’ s order said in that rega rd

. As f or intent to cause injury , th e third element, we start with the overarch ing principle that “ [i]nt ent is a fact que st ion uniquely w ithin the realm of the trier of fact because it so depends upon the credibility of the witnesses and the weight to be giv en

to their testimony ” and “ invari ably must be prov en by circums tantial evide nce. ” Spoljaric v. Perciv al Tours , Inc. , 7 08 S.W.2d 432, 434 , 435 ( Tex. 1986). See also Consol.
Rei nforcement, L.P. v. Cheraif , No. 04

- 18

- 00443

- CV, 2019 WL 2272890 , at *2 (Tex. Ap p.

— Sa n Antonio Ma y 29, 2019, no pe t.) (applying Spo ljaric in Cha pter 12 conte xt).
Because Simone , on W ahid ’ s b ehalf, ha d tried to exer cise the o ption to repurchase the 701 Property and filed a notice to that effect on August 2, 2012 , she knew in October

16 Simone ’ s theory seems t o b e that s he ca nnot have violate d the Act because she “ be lieved she was a bona fid e purchaser [B FP] for good value be cause she purchased the property fro m the bankru ptcy t rustee. ” More than a scintilla of evidence negate s the idea that Simone was a BFP

. S ee , e .g. , Madiso n v. Gordon , 39 S .W.3d 604, 606 (Tex. 2001) ( notin g that t o receive special protectio n as BFP, “ one mus t acq uire prope rty in go od fai th, for value, an d w ithout notice of any third

- party claim or interest ” ) ; Aston Meadows, Ltd. v . Devon Ene r gy P rod. Co. , 35 9 S.W.3d 856, 859 (Tex. App.

— Fort Worth 2 012, pet. denied) (reciting that noti ce sufficient to defeat BFP status m ay b e actual or con structive and tha t actual notice “ re sts on person al information or k nowledge ” )

.39 2014 th at Wahid did no t own that proper ty despite he r disingenuous argument tha t lau n derin g it thr ough Wah id ’ s ban kruptcy tr u stee cu red all ills

. That fact, combined
with her obfuscat ing the entire A p ril 2012 transaction by givi ng Newman what w as really a decoy i nstrume nt numbe r for the contract, is more th an a scintilla of evi dence
that Simon e intended to cause injury to S h m aisani. Ha d Simone ’ s and her brothers ’ legerdemain succeeded in put ting the 701 Property back in to Yammin e hands , Sh maisan i would have paid $ 535,000 for exa ctly nothing

— and thus been fin ancially injured

— as t his ex chang e sug g ests: Q. [Shmaisani ’ s counse l]

- - o nce ag ain, the question is: M y client paid $535,000 at closing. Your family got the benefit of paying off the Healy li ens. You ’ re claimin g an in terest i n the property. Your brother W ally is claiming an i nteres t in the p r operty. What did my client ge t f or his $53 5,000? A. [Simone] I don ’ t have an answer. 17 Simone relies heavily on a Chapter 12 c ase from our sis ter court in D allas concerning leg ally insufficient evidence of intent to cause injur y . Aland v. Marti n , 271
S.W.3d 424 (Tex. A pp.

— Dal las 2008, no pet.). That case held that a husband could
not recover under the Act after his wife ’ s divorce lawyer placed a lien agai nst

commun ity proper ty t o secure payment of fees and f ailed to remove th e li en at the
husba n d ’ s request. Id . at 432

– 33. The appellate court looked at the evidence as a

17 Wah id ’ s lawyer took the po sition that beca use Wahid had bee n disc harged in bankruptcy , Wahid “ had nothing he could give back ” to Shmaisani if the deal was
unwou nd.40 whole and concluded that it was “ equally consistent ” with both an intent and a lack of
i ntent on the lawyer ’ s pa rt to cause injury

. Id. at 433 ( noting that “ [w]hen the

c ircumstance s are equally c onsist ent with ei ther of t w o facts, neither fact may be
inferred ” ) ( quoting City of Keller , 168 S.W.3d at 813 )

. “ The final test for legal

s uffic ienc y must always be whet h er the evidence at trial would enable reasonable and
f

air

- mi nded people to r each the v erdict under revi ew. ” City of Ke ller , 168 S.W. 3 d at
827

. Here, in view of Simone ’ s cagey explanations , and deferring as we must to the jur y ’ s weight and credibility ass e ssm ents, we cannot agree that intent versus lack of
in tent w ere anythin g like reaso nab ly equ ivalent opt ions on th is rec ord

. T he facts more closely resemble those of such cases as Brewer v. Green Lizard Holding s and Bernard v.
B an k of Am erica

. See Brewe r , 406 S .W.3d 399; Bernard v. Bank of Am. , No. 04

- 12

- 00088

- CV, 2013 WL 4417 49 (Tex. A p p.

— San Antonio Feb. 6 , 2013, no pet.) (mem. op.). In
Brewer , we affirmed sum mary judg ment f or Green Lizard , which had purcha sed a lot
at a deli nquent

- tax sale only to discov er t hat Brewer was occupying the property
under a deed purportedly given him by a representative of the former own er . Brewer , 406 S.W.3d at 401. Brewer had also filed a mechani c ’ s lien o n the property for
servi ces ostensibly r en dered after he recorded the deed

. Id

. In holding that Green
Lizard had establi shed all elements of i ts Chapt er 12 claim

— includi ng in tent to
in jure

— as a matter of law , we recapped the evidence this way:41 A ppellee [Green Lizard] presented ev i dence that a co rp orate officer of the entity from which appellant [Brewer] purported to take hi s title to the propert y had no knowledge of appellant and that t he entity never conveyed [the] property to appell a nt. T he deed appellant re co rded in the propert y records is dat ed before the fore c losure [ on the lender ’ s deed of trust from the former owner] but was not recorded u ntil sev eral months later. . . . Nor did h e provide any evidence that he filed the document s to p rotect a legitimate interest in the prope r ty. Additionall y, the mechanic ’ s lien and cer tifi cate of acknowledgement were both filed . . . the day before the tax s ale.
I

d. at 404. Bernard inv olved defaul ting home owners who, after receiving notice of the
b ank ’ s scheduled foreclosure sale, executed and filed a “ su bstitut ion of trustee ”
document re flecting that the Bern ards, not the bank, were the deed of trust ’ s b en efici aries and purport ing to n ame a substi tute trustee
. 2013 WL 441749, at *1. Relying on that document, t he Berna rds th en sought an inj unction to stop the bank ’ s foreclosure and succe ed ed in dragging things out in court before the bank finally won

summa ry j udgmen t on its Chapter 12 co u nter claim. Id. at *4. Affirming , the San
Antonio cour t note d that the Bernards ’ uni latera lly drafting, si gning, and fil in g the

“ sub stitut ion of t rustee ” do cument to stop the forecl osure, coupled with their failing

to pay th ei r mortgage “ for nearly two yea r s wh ile sti ll residing in the home,
demonst rate [d] an intent to cause the Bank financ ial ha rm. ” Id. Addit ionally, there w as

“ nothing in the record to sug ge st that the Berna rds filed the ‘ Substitution of Trus tee ’
document to l eg itimately protect their prop ert y in teres t s . ” Id.
S imilar to Brewer ’ s and the Bernard s ’ shenanigans , w e find nothi ng here to suggest a ny intent other than to ha rm Shmaisani through (a ) S i mone ’ s purcha se of42 Wahid ’ s alleged real

- property assets , includin g s ome of the 701 Property, from the
b ankrupt cy trus tee over a y ear after S hmaisani h ad sued Wahid , (b) Simone ’ s immediate transfer of th a t property to he r trust in Oc t ober 2014 (a transf e r not recorded until Decemb er 2 015) , or (c) her vague testimony abou t t itle having
somehow returned from the trus t to her with the assi stance of some lawyer whose

name she co uld not recall

. As in Brewer and Bernard , none o f this evid ence p oint s to a n inte n t to legitimately protect Simone ’ s (or her brothers ’ ) property in ter est s ; Simone
knew that Sh maisani had bought t he 7 01 Property , b ut she nevertheless executed and filed a deed transferring part of th at pro perty to a trust she controlled

. T h e evid ence of S imone ’ s Section 12.002 violation is legally sufficient , and w e

overr ule her second issue.
2
. E videnc e of Wally ’ s Section 12.0 02 violations
. Wally ’ s combined JNOV motion and moti on to disregard j ury f indin gs argued only t hat the re was no evidence that Wa l ly had “ filed or caused to be filed the Warranty Deed d ocuments conv eyin g ” a half interest in the 70 1 Property to Wally
and L ots 5 and 6 to BW Construction , or that he had “ f raudulently executed or

caus ed t o be filed ” or “ prepared or filed ” the W. Yammine trustee ’ s deed

. In his appellate brief ing , Wally h as added a new argumen t : that there was no evidence that
he “ int ended to cause financial injury to any one . ” 18

18 Un like Wahid , Wally did not raise a no

- evid enc e argument in the trial court
on the intent

- to

- injur e elemen t , even tho ugh Wahi d and Wally jointly fil ed their43 A t trial, Wally claim e d to recall virt ually nothing about the two warran ty deeds
or the trustee ’ s deed. Concerning the April 2012 deed to Wally of the half inter est , Wa lly eac h time responded “ I don ’ t rememb er ” when aske d if he had submitted the
docume n t for fili ng (as the document reflects on its face , showing as it does “ Wally
Yammine ” as the “ Sub mitter ” ) . Wally gave the same response when asked wh y he had
waited until Octobe r to file it

. As for the deed to BW Con structio n , “ I don ’ t

reme mber ” was also the word

- for

- word answer to questions about the “ circumstances surrounding the execu tion of [ that] document ” and “ why [he] wa ited until October
31st of 2 012 to file this d ocument after it w as purpor tedly execute d i n April. ” The

“ Submitt er ” shown on this deed was W ally ’ s dba, BW Construction. Notably, Wally
never denied having filed th e two dee ds.
Wa ll y similarly “ d [ id

] n ’ t reme mber ” if it was his signature on the July 2012

trustee ’ s d eed , whether he had “ eve r been a trustee associat ed with a deed of trust, ” or where that document

— which , like the war ranty deeds, was notarized

— had come
from. postverdict motion

. T heir specific attac ks on the j ury ’ s answers to Que stions 9(a) , (b ), and (c) we re personalized , an d each brother ’ s attac k was su bstantiv e ly diff erent from the other ’ s . See Dupree v. Piggl y Wigg ly Shop Rite Foods, Inc. , 542 S.W.2d 882, 892 (Tex

. App.

— Corpus Chr isti 1976, writ ref ’ d n.r.e .) (op. on reh ’ g) , ( disapproved of on other grounds , Fifth Club, Inc. v. Ramirez , 196 S.W.3d 788 (T ex. 2006) ) ( se tting forth elemen ts required in motion to di srega rd findings, including “ sp ecify[ing ] t he reason why the fi nding or findings should be disregarded ” ). Altho ugh Wally has thus not pr eserved this particular c omplaint , we woul d conclude that the evidenc e of intent to injur e wa s legally suffi cient for the sam e reasons as in our analysis of Sim one ’ s Section 12.002 is sue , above.44 Q . [by Shmais ani ’ s counsel] All right. Mr. Yammine, le t m e ask you this: T his document , th is truste e ’ s deed that we have in Exhi bit 18, that reflects that somebody by the name of W. Yammine he ld a foreclo sure sale

. . . on J uly 3rd of 2012 and sold the property at fore closure to New Frontier Financial. Do you ha ve any recollecti on of acting as a trustee and attemptin g to se ll p rope rty at a foreclosure sale to New Frontier Financial on July 3 rd, 2012? A. [Wal ly] I don ’ t reme mber, Mr. Parrish. A gain, this is not a denial

. The jury had before it va rio us exhibits signe d by Wahid , who was the o nly
other candidate to be “ W. Yammine , ” 19 a nd cou ld easily co ntr ast those signatu res with th e one on the trus tee ’ s deed

. In fact, Wahid agreed that the “ W. Yammine ”
si gna ture on the tr ust ee ’ s deed was no t his own , bu t when asked if it wa s Wally ’ s, Wahid sai d only that he wasn ’ t sure
. The jury als o heard Joseph respon d, “ I don ’ t remember ” when he was asked , in connection with that deed , whether he had ever
executed a de ed of trust i n fav or of Wally that was sec ured by the property ; like Wahid, Joseph couldn ’ t identify Wally ’ s signature. The jury al so heard fr om Newman that Wally kn ew and understood that the entire 701 Property w as being s old to Shmaisani and that Wally never said othe rwis e in later meet ings with Newman. The jury also knew that Wahid had assign e d the option to repu rchase the 7 01 Proper ty to

19 Wally was asked if he knew “ anybody else [other than himself and Wahid] not related t o the family that goes by W. Yammine ” and re sponded, “ I ’ m not sure. I haven ’ t looke d up anybody else

. ”45 Wally an d that that option

— another document Wally couldn ’ t remember

— w as notarize d and re corded

. I n c ontrasting Wally ’ s (indeed, all the Yammines ’ ) near

- constant memory failures with th e contents of record ed , notarize d instruments, the jury was well w ithin its rights to answer “ yes ” to Questions 9(b) and ( c)

. C f. Thomas v . Bobby D. Assoc s. , No.
12

- 01

- 0 0361

- CV, 2002 WL 14 29821, at *2 (Tex. App.

— Tyler June 28, 2002, pet. denied) (not desig nated for publicatio n) ( affirmin g denial of postdefault new

- trial
motion where record contained proper return of service and no ting that w here appellant ’ s affidavit stat ements were “ contra dictory as, in one instance, he denies being served with citation, but in another, stat es th at he c annot remember being

se rved with ci tation, ” the trial court , as judge of weight and credibil ity issues, wa s free

to resolv e inconsistenci es ) ; see als o 3A J. Wi gmore , Evidence § 1043 at 1061 ( Chadbourn rev. 1970) (observing, in context of impeaching for getful witness with prior statem ents, t hat “ the unwilling witness often takes refuge in a failure to remember, and the astute liar is some times impregnabl e unless his flank ca n be exposed to an atta ck of this sort ” )

. We overrule Wally ’ s third issue.46 W ally ’ s Issue 4
D
. W ally did not pre serve e rror regar ding his coun terclai ms , nor did he put on any evi dence to support them
. In his fourth i ssue, Wal ly argu es that the t ri a l court erred by e ntering a take

nothing j udgment on hi s cou nt e rclaims against Shmai sa ni to quiet title, fo r real

- e sta te fraud , and for violations of the T exas Theft Liability Act. Wal ly wai ved his fourth
i ssue by fail ing to r equest a jury question on his counter claims, by fail ing to preserve error about any such omi ssions from the charge , and by fail ing to seek a ruling from
the co urt on his counterclai ms as a m atte r of law. See Tex. R . App. P. 33.1(a)(1) (A) ; Raymax Mgmt., L .P . v. SBC To w er Hold i ngs LLC , No. 02

- 1 6

- 00013

- CV, 2017 WL
3821897 , at *3 n. 11 (Tex. A pp.

— Fort Worth Aug. 31, 2017, pet . deni ed) (mem. op.
on reh ’ g) ( n oting t hat party waived ability to recover on particular claim whe n party

“ failed to request a jury questi on on that cause of action in the court ’ s charge a nd to preserve error regarding its omission from the charge, or t o o btain a ruling from the

court on the cl aim a s a matter of law ” ). In fact, when expressly given t he chan c e to tell the jury what he was cla iming , Wally pun ted : “ I have to re a d th e

- - my pet ition. I
don ’ t have it with me now. ” Wally never put on e vidence of his cou nterclaims.
W e overru le Wally ’ s Is sue 4.47 S

imone ’ s Issue 4
E
. S mith is not e nti tled to recover Rule 13 sanctions from S imone
. In h er fourth issue, Simone argues that t he trial court erroneo usly awarded
sanctions in the form of attorney ’ s fees t o Smith. We agr ee. Smith filed a po stj udg ment motion for sanctions against Wa hid

. In its final judgment, the trial court ord ered that “ Sharon Smith ’ s Rule 13 Motion for Sanctions [ be] gr anted and that Sharon Smith recover from Simone Barron the sum of $21 ,26 5
as reasonable and nec ess ary attorneys ’ fees. ” Simone po i nts out that Smith did not
seek sanction s against Simone and so this aspect of the judgmen t has no pleadings to

su p port it. Smith has not filed a brief with us nor otherw ise appeared in this ap pe a l , and the record offers no basis on wh i c h to affirm th e award.
We sustain Simo ne ’s fourth issu e and reverse and render t his part of the trial

court ’s ju dgment.
S imone ’ s Issue 5/ W ally ’ s Issue 5
F
. S hmaisani failed to segregate his attorney ’ s fees , an d w e c annot tell how the trial court arriv e d at the amount of fees it awarded
. In their fifth and final issues , Simone and Wally ch allenge the trial court ’ s

a ward of attorney s ’ fees t o S hmaisani unde r Chapter 12

. See Tex. Civ. Prac

. & Rem. Code Ann. § 12 .002 (b )(3) (providing that a “ person who v i ola tes Subsection (a)

. . . is
liable to each injured pe rson for

. . . reasonable attorney ’ s fees ” ). Because we have upheld the jury ’ s finding s and affirmed t he resulting judgment that Simon e and Wally48 violated th e Ac t , Shmaisani is entitled to recover hi s re asonable attorneys ’ fees. But we

must remand this iss ue to the trial court because the record does not support the
amounts awarded.
D uring trial, t he part ies announced their agree ment to submit the issue of

at torn ey s ’ fees postverdict

. In a cc o rdance with th at agreement, Shmaisani la ter submitted hi s attorney ’s affidavit , a suppl emental affidavit , and billing records . In all,
Shmaisa ni reques ted $265,811 i n fees from Wahid, Wally, and S i mone, joi n t ly and severally. The tria l court ’s eventu al judgment awarde d Sh maisani $120 ,000 in

rea sonable and necessary attorney ’s fees under Chapter 12 fr om Wally and $40,000
from Simone , for a total of $160,0 00. The trial cour t also awarded c o nditional appellate a ttorneys ’ fees in d iffering amo unts
. S everal weeks after it e ntered jud gment, the trial court pr epared and filed
f indings of fac t and conclusions of law

. The trial court ’ s fin dings of fact read , in th eir entirety : T he equivalent jury findings, had the matter been submitted t o a jury, would have been submitt ed subs t a nt ially as follows : W hat is a reasonable fee for the neces sary services of Issam Al S hmais ani ’ s attorney incurred for t he prosecution of hi s claim against W alid ‘ Wally ’ Yammine for which you answe red ‘ yes ’ in
ans we r to Q uestion 9c , stated in doll ars and ce n ts: A nswer with an amount for each of the following:
1

. For representation through tria l and the compl etio n of the p roceedings in the tria l court:49 A nsw e r: $120,000
2

. For successful represent ation throu gh ap peal t o the court of appeals: A ns wer: $16,00 0 3

. For successful representation through the Supreme C our t: A nswer: $8,0 00 4

. The Co urt makes these finding s as i ts Findings of Fact regardin g reason a ble and nece ssary attorney s ’ fees pursua n t to Te x. Civ. Prac. & Re m. Code, section 1 2.002( b)(1)(B)(3) [sic]

. T here were no similar findings made in c onnection with the fee award aga inst Simone , and we do not have a r eporter ’s record of any postve r dict hearing.
T he attorney s ’

- fe e aw ard s have several pr oblems that necessit ate a remand

. First, the trial court appea rs t o h ave simply quadruple d the Chapter 12 $10,000

- per

violation statut ory p ena lties against W ally and Sim one in arri ving at its attorn e y ’ s

- fee

amounts

— b ut Chapter 12 calls for an award of “ r ea sonable ” fees, not o ne tied i n

som e way to the statutory penal ty. See Tex. Civ. Prac. & Re m . Code Ann. § 12.002(b) (3 ). Second, the $12 0,000 that would result from multiplying Wally ’ s three Chapter 12 v iolations by $40,000 doesn ’ t mesh with the trial court ’ s finding of fact
th at refers only to Question 9(c) , which inv olved only one of W ally ’ s three fraudule nt filing s . Third, altho ugh the billing records predate by many mo nths the addi tion of
Simone and W ally as defendants, we can find nothing to suggest that Shmaisani or the

tr ial court atte mpted to carve out any f ees from that earlier time

. Fourth, attorney s ’50 fees are not recoverable for any of Shmaisani ’ s non

- Chapter 12 causes of action (to quiet titl e or, alternatively, for tre spass to try title ) , s o Shmaisani either had to

s egregat e his recoverable from h is nonrecov erable fees or show that his clai ms were so intertwined as to mak e segregation not reaso nably possible. See Tony Gullo Mo tors I,
L. P. v. Ch apa , 212 S. W.3d 299, 311

– 13 (Tex. 2 006) (discussing o bligation to segregate
fees unle ss claims are inter twined) ; P oag v. Flories , 3 17 S .W.3d 820, 828

– 29 (Tex.
A pp.

— Fort Worth 2010, pet. denied) ( noting that attorneys ’ fees are not recoverable
in titl e

- related suits)

. I n resp onse to Wally ’ s (and Wahid ’ s) op position to Shmaisani ’ s motion for
attorneys ’ fees, Shmais ani asse rted that the c laims “ were so intert wined that they
could not be seg regated ” and that “ [e]v en if the Court were persuaded that some

s e gr egatio n should have be en made, the agg regate amount of a ttorney ’ s fees is some
evidence of what the segregated a mount sh ould be. ” Sh maisan i th en asked the tri al

court to determine the appropria te amount. Nei ther the judg m ent nor the findings of
fact and conclus i ons of law, how ever, mentioned whether the fees s hould have been
segrega t ed and , if so, how the trial court arrive d a t an appropriate amount out of t he roughly 250 pages o f billing records

. Cf. 4922 Holdings, LLC v. Rivera , No. 14

- 19

- 0092 2

- CV , 2021 WL 174 5 384, at *12 (Te x. App.

— Houston [14th Dist.] May 4 , 2021,

n o p et
. h.) (de ferring to trial court ’ s award where party ’ s “ concerns about double
bill in g a nd hours bille d for unrecoverable pos t

- trial work [were] addresse d by the trial

court ’ s findings of fact, w herein the cour t reduced the hours billed and re m oved51 potenti al double b illing issues ” after t he trial court “ comb ed through Obialo ’ s invoice,
reduci ng ma ny of the hour ly amounts reflected, removi ng all hours reflec ted fo r

serv ices connected with River a ’ s claims against 4922 Holdings, and reducing by hal f
the amount billed for paralegal hours , ” citing El Apple I, Ltd. v. Olivas , 370 S.W.3d 757,
763 (Te x. 20 12) )

. The trial court here does not seem t o have engaged in s uch analysis. In addition, Shmaisani ’ s a t torneys ’

- fee af fid a v

its do not include evidence o f the Arthu r Andersen f actors that were reaffirmed in Rohrmoos Ve ntu re v. UTSW DVA Healthca r e, LLP , 578 S.W.3d 469, 494 (Tex. 2019), and without which “ the fact finde r has no meaningful way to determine if t he fees sought are in fact reasonable and necessa ry. ”
Id. (citing Ar thur Andersen & Co. v. Perry Equip. Corp. , 94 5 S. W.2d 812, 818

– 19 (Tex. 1997)).
W e sustain Simone ’ s and Wally ’ s fifth issue s, reverse the trial cou rt ’ s awards of
attorneys ’ fees, and rema n d the fee issue for a new trial.
S

imone ’ s Additio nal C omplaints G
. L ack i ng any analysis at all, Simone ’ s concludin g kitchen

- sink complaints are inad equately briefed and borderline frivolous
. T he final section of Simone ’ s opening brief , consisting of one se ven

- line
para graph and no citations to authorit ies, mentions th ree thing s she claims warrant a
new trial. First, S i mone cites to two pages of the r ecord in asserting that she had objected to a particular ju ror ’ s continuing to serve. Th ose record citat ions are not only
flat wrong, but the trial court specifically stated that “ i f anybody wants to move t o52 excuse [the jur or in question ] and use the alternate, now is your time to do it. ” Getting
no response , the trial court f ollowed up with, “ All r ight. There ar e no takers. ” Next,
Simone asserts that a mistrial should have been gran ted aft er Newman allege dly
referred to Shm aisani ’ s attorneys ’ fees being paid by St ewart Title , but s he gives us no

reco rd citation either to suc h testimony or t o a ny mistrial motion

. Finally, Si mon e

assert s that a proposed jury question was wrongly exclud ed from the charge

. 20
A lthough arguing the substance of an appellate complaint within the body of a
brief can overcome a failure to list it as an issue presented , a party must still do some

actua l analysis. See Tex. R. App. P. 38 .1(f) , ( i); Baumgart v. Arch er , 58 1 S.W.3d 819, 827 n.5 (Tex . App.

— Hou ston [1st Dist.] 2019, pet. denied) ( noting that the court would consider appellant ’ s evidence of defa mation discussed in body of brief even t hough
appe llant did not challenge trial court ’ s finding on Texas Citizen Parti cipation Act
claim in his list o f is sues) ; Hamilton , 298 S.W.3d at 337 (noting that appellate court will
not consider issue wher e appellan t fails to pro vi de legal ar gument in sup port)

. Sim one made zero effort to explain why any of these three alleged error s should entitle her to

a new tr ial , so to the extent we might consider the se as issues raised , we overrule
them

.

20 Simone ’ s pro posed question was, “ D id Issam Al Shmaisani fraudulently alter the deed through hi s lawyer , Michael Newman, after April 2, 2012? ” Th e trial court denied her request.53 C ONCLUSION Having susta i ned Simone ’ s fo urth issue, we reverse a nd render the trial court ’ s award to Sha ron Smith of $21,265 from Simon e. Havi ng sustained S i mone ’ s and Wally ’ s f ifth issues, w e reverse the award of attorneys ’ fees to Shmaisani and remand
those issues t o the trial court for a new trial. In all other resp ects, we a ffirm the trial

court ’ s judgment

.

/s/ Elizabeth Kerr E lizabeth Kerr Justice
D eli vered : June 3, 2021