AFFIRMED IN PART AND REVERSE D AND RENDERE D IN PART and Opinion Filed August 18, 2020 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-00562-CV SILVER STAR TITLE, L.L.C., D/B/ A SENDERA COMPANY, Appellant V. MARQUIS WESTLAKE DEVEL OPMENT, INC., CDAVIS INVESTMENTS, LTD., PINETRAD A INTERESTS, LTD., WINGLAKE

HOLDINGS, LTD., AND WESTLAKE TOWN HALL , LLC, Appellees On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-14-11010
MEMORANDUM OPINION Before Justices Whitehill, Osborne, and Carlyle Opinion by Justice Whitehill A party breaches a contract if it fails to do something it prom ised to do. In this case, appellees successfully sued appellant for breach of contract. The pivotal question on appeal is whether any contract obliged appellant to return certain escrowed funds to appellees on de mand, as appellees claim. We conclude that the contracts at issue did not impose that obligation, so we revers e and render a take nothing judgment against appellees. We also overrule appellant ’s complaint about–2– the jury’s adverse finding on its counterclaim, and we affirm t he trial court’s take nothing judgment on that counterclaim.
I. B ACKGROUND A. Factual Allegations The Purchasers’ live pleadi ng alleged these facts: In April 2014, Marquis Acquisitions, Inc. contracted to buy cer tain land from Maguire Partners – Solana Land, L.P. (Seller). Appellant Sende ra Title (the Title Company) agreed to: hold in escrow, earnest money tendered by [Marquis] in the amou nt of $250,000.00. [The Title C ompany] also agreed to otherwise serv e as a neutral escrow agent and fiducia ry in the subject transaction w ith regard to that delivery, and all other deliveries, adhering to and com plying with [Purchasers’] delivery instruct ions and/or the agreements that [the Title Company] made with [Purcha sers] regarding the same. Marquis later assigned its contr act rights to appellees (Purcha sers). In anticipation of closing, Purc hasers delivered to the Title C ompany the $250,000 escrow deposit, just over $6 million in additional pur chase price funds, and various transaction documents . (The charge used these defi ned terms, so we use them in this opinion: (i) Contract of Sale means the real esta te sales contract at issue; (ii) Earnest Money means the $250,000 earnest money that the Co ntract of Sale required Purchasers to put up; a nd (iii) Escrowed Funds means t he additional $6 million in purchase price funds t hat Purchasers deposited with the Title Company.)–3– However, Purchasers notified th e Title company—pre-closing—to r eturn to Purchasers the closing documents and funds that Purchasers had tendered as there would be no closing, and th e closing did not occur. B. The Interpleader Case Trial evidence showed these facts: The Title Company received $250, 000 in Earnest Money. Section 4 of the sales contract is captioned EARN EST MONEY and required Purchase rs to deposit $250,000 with the Title C ompany. That section four gave that d eposit the defined term “Earnest Money.” (At no point did the sales contract expa nd that defined term to include any other funds dep osited with the Title Company.) Emails exchanged on Friday, July 25, 2014, indicated that the p arties expected the transaction to close the nex t Monday, July 28. At some poi nt around this time, the Title Company received from Pu rchasers $6 million in additi onal purchase funds, the Escrowed Funds. However, early Monday morning, Purchasers instructed the Title Company that it did not have funding authorization on the transaction. Shortly thereafter, Purchasers instructed the Title Company to return all funds tha t Purchasers had wired, meaning (i) the $250,000 Earn est Money and (ii) the $6 m illion in additional purchase money funds. The Ti tle Company did not do so. Instead, four days later, it filed an interpleader action again st Seller and Marquis, the original purchaser in Tarrant County and deposited almost $6.3 million,–4– plus a box of documents, with the district clerk. Purchasers l ater intervened in that

case. On August 29, 2014, the interpleader judge signed an agreed ord er granting a joint motion to dismiss the interpleader and release the interp leader property. Seller received $250,000 of the funds. Pur chasers received the docume nts and the rest of the funds. The dismissal order also provided that: IT IS FURTHER ORDERED, ADJUD GED, AND DECREED that this interpleader action and all of t he interpleader-related claims asserted by the parties in the above-styled a nd number[ed] matter are hereb y DISMISSED, and that Plaintiff-in-Interpleader Silver Star Title , LLC d/b/a Sendera Title is discharged under Rule 43, T EX

. R. C IV . P. Such dismissal and discharge shall, i n no manner whatsoever, dischar ge or dismiss, or prejudice or impair, the rights or ability of any D efendant or Intervenor to file or assert cla ims or causes of action against Silver Star Title, LLC d/b/a Sendera Title, if any, in any way related to t he interpleader, including but not limited to Plaintiff’s pre-inte rpleader conduct, all of which are reserved by the Defenda nts and Interv enors. C. Procedural History About three weeks after the inte rpleader dismissal, Purchasers sued the Title Company and two individuals (t he Title Company’s owner and CEO Charles Brown and escrow officer Jeanie Acord) for fiduciary breach, contract breach, conspiracy, and aiding and abetting. The Title Company counterclaimed for contract breach and promis sory estoppel.–5– The claims against the individual defendants dropped out of the case, and remaining claims and counterclaims were tried to a jury. The jury answered seven questions as follows: 1. The Title Company breached the Contract of Sale and Purchasers’ subsequent esc row instruction letters. 2. Purchasers did not waive th e Title Company’s breaches. 3. The Title Company lawfully a nd in good faith retained and interpleaded the $250,000 earnest money. The Title Company did not lawfully and in good faith retain and interplead “Other Escrowed Funds” (with “Escrowed Funds” previously defined as “all funds other than the Earnes t Money delivered to Sendera Title by [Purchasers]”). 4. Purchasers’ contract breach damages were: (i) $249,000 as th e Purchasers’ loss resulting from the Title Company’s failure to return “the Earnest Money and/or Escrowed Funds” upon Purchasers’ demand and (ii) $63,401 as the Purchasers’ reasonable and necessary expens es incurred in attempting to recover those funds. 5. The Title Company breached its f iduciary duty to Purchasers. 6. Purchasers’ fiduciary breach damages were $90,000, representing the Purchasers’ mone tary loss resulting from the Title Company’s failure to retu rn the funds upon demand. The jury also found that Purchasers’ reasonable and necessary expenses in attempting to r ecover the funds were $0. 7. The Title Company did not incu r any “costs, claims or expens es” in connection with performing its duties under the Contract of Sale relating to the Earnest M oney or the Escrowed Funds. Purchasers moved for judgment, a nd the Title Company moved for judgment notwithstanding the verdict and for new trial.–6– The trial judge signed a judgment that awarded Purchasers all t he damages that the jury found, plus prejudgment interest. The Title Company then moved for judgment notwithstanding the v erdict, to modify or vacate, and for new trial. The trial judge signed an order that granted this motion in part, vacated the original judgment, and included the following language: The Courts finds there is insufficient evidence to support the Jury’s award to Plaintiffs of $90,000.00 as a remedy for the breach of fiduciary duty the Jury found was committed by Defendant [the Title Compa ny]; accordingly, and under the theory of election of remedies, it i s ORDERED that Defendant’s Motion to Vacate and for JNOV is GRANTED to the extent that this particular Jury awarded remedy and recovery shall be den ied by the Court. That same day, the judge signed a new final judgment awarding P urchasers only the contract breach damages found by the jury, plus prejudgment int erest. The judgment also ordered the Titl e Company to take not hing on its countercl aims. The Title Company filed a second motion for judgment notwithsta nding the verdict and for new trial, whi ch the trial judge denied. The T itle Company then timely appealed.
II. I SSUES The Title Company’s opening brief lists four issues presented, labeled A though D, and each issue has two or three sub-issues. We parap hrase the four overarching issues as follows: A. Did the trial court err by entering judgment for Purchasers on their contract breach claims?–7– B. Did the trial court err by entering judgment for Purchasers for the contract breach dama ges found by the jury? C. Did the trial court err by failing to give proper effect to the interpleader judgment? D. Did the trial court err by denying judgment for the Title Company on its affirmative de fenses and counterclaims? III. A NALYSIS A. Issue A: Is the evidence legally insufficient to support th e findings that the Title Company brea ched the contracts? Yes. We conclude that the contracts did not require the Title Company to return the Purchasers’ purchase money of about $6 million on de mand. Accordingly, the evidence that the Title Company retained and then interpled that money is no evidence that the Title Company breached the contracts. 1
1. Standard of Review When an appellant attacks the legal sufficiency of the evidence to support an adverse finding on an issue on wh ich it did not have the burden of proof, it must show that no evidence supports the finding. 2 Guillory v. Dietrich , 598 S.W.3d 284, 293 (Tex. App.—Dallas 2020, pet. denied). When evidence is so weak that it does no more than create a surmise or suspicion of the matter to be proved, the evidence is no more than a scintilla and, in legal effect, is no evidenc e. Id . Evidence is legally

1 The Title Company preserved this argument in its second motion for judgment notwithstanding the verdict and for new trial, which the trial court denied. See Defterios v. Dallas Bayou Bend, Ltd. , 350 S.W.3d 659, 664 (Tex. App.—Dallas 2011, pet. denied). 2 The Title Company’s brief is not clear whether it intends to a ssert an alternative factual sufficiency issue. But our sustaining its n o evidence issues regarding Pur chasers’ contract breach claims means we would not reach the Title Company’s factual sufficiency issue i f it were being asserted.–8– sufficient if it would allow reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). In conducting our legal sufficiency review, we view the evidenc e in the light most favorable to the verdict and indulge every reasonable infe rence that would support it. Id . at 822. We must credit evidence favorable to the verdict if a reasonable person could, and we must disregard contrary evidenc e unless a reasonable person could not. Id . at 827. We measure the sufficiency of the evidence against the court’s jury charge if the challenging party didn’ t object to the charge. Osterberg v. Peca , 12 S.W.3d 31, 55 (Tex. 2000). Here, although th e Title Company raises some c omplaints about the jury charge, they are not germane to our analysis; thus, we app ly the Osterberg rule. 2. Applicable Law The elements of a contract breach claim are (i) a valid contrac t, (ii) performance or tendered performan ce by the plaintiff, (iii) bre ach by the defendant, and (iv) damages sustained by the plaintiff as a result of that breach. Dixie Carpet Installations, Inc. v. Re sidences at Riverdale, LP , 599 S.W.3d 618, 625 (Tex. App.— Dallas 2020, no pet.). “A breach of contract occurs when a party fails to perform an a ct it has explicitly or impliedly promised to perform.” Gaspar v. Lawnpro, Inc. , 372 S.W.3d 754, 757 (Tex. App.—Dal las 2012, no pet.).–9– When we interpret a contract, our goal is to ascertain the part ies’ intent as expressed in the instrument. URI, Inc. v. Kleberg Cty. , 543 S.W.3d 755, 757 (Tex. 2018). “‘[O]bjective, not subjectiv e, intent controls,’ so the focus is on the words the parties chose to memorialize their agreement.” Id . (footnote omitted). “[O]ur quest is to determine, objectivel y, what an ordinary person usi ng those words under the circumstances in which they a re used would understand them to mean.” Id . at 764. “Contract terms are given their plain, ordinary, and gene rally accepted meanings unless the contract its elf shows them to be used in a technical or different
sense.” Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 662 (Tex. 2005). “Additionally, courts construe contracts from a utilitarian sta ndpoint bearing in mind the particular business activity sought to be served, a nd will avoid when possible and proper a constructi on which is unreasonable, inequ itable, and oppressive.” Hackberry Creek Country Club, In c. v. Hackberry Creek Home
Owners Ass’n , 205 S.W.3d 46, 56 (Tex. App. —Dallas 2006, pet. denied). Whether a party has breached a contract is a legal question for the court, not a fact question for the jury, if the facts of the parties’ cond uct are undisputed or conclusively established. Grohman v. Kahlig , 318 S.W.3d 882, 887 (Tex. 2010). 3. Applying the L aw to the Facts a. The Jury Findings We start with the jury charge. See Osterberg , 12 S.W.3d at 55. This is Question 1, with the jury’s “yes” answers:–10– Did Sendera Title fail to comply with its obligations under the Contract of Sale or the Escrow Agreement? Answer “Yes” or “No” for each of the following: 1. Contract of Sale YES 2. Escrow Agreement YES The charge defined “Escrow Agree ment” as plaintiffs’ exhibit 4, which was one of four July 24, 2014 escrow i nstruction letters from Purch asers’ lawyers to the Title Company. Escrow officer Jeanie Acord accepted those lett ers by signing them on July 25, 2014. And, as discussed earlier, the j ury charge defined “Contract of Sale” as plaintiffs’ exhibit 1, which was the April 2014 real estate con tract of sale signed by Seller, Purchasers’ predecessor in interest, and the Title Comp any. Consistent with the Contract of Sale, the charge defined “Earnest Money” to mea n the $250,000 that Purchasers delivered to the T itle Company. Although the Contra ct of Sale does not use the term, the charge defin ed “Escrowed Funds” to mean all o ther funds that Purchasers delivered t o the Title Company. The contract damages question, Question 4, effectively limited the universe of relevant breaches to the Title Company’s failure to return t he Earnest Money and additional purchase funds to Purchasers on demand. Specificall y, Question 4 submitted only the two follo wing damages categories: 1. The monetary loss sustained by [Purchasers] as a result of Sendera Title’s failure to retu rn the Earnest Money and/or Escrowed Funds at the time o f [Purchasers’] demand.–11– [Answer: $249,000.00] 2. The reasonable and necessary expenses incurred by [Purchaser s] in attempting to recover the Earnest Money and/or Escrowed Funds. [Answer: $63,401.00] Thus, given the charge’s defined terms, the retained and interp led closing documents are not at issue. 3
b. The Evidence In the Contract of Sale, Seller agreed to sell about 86 acres i n the Town of Westlake to Purchasers’ predece ssor for about $17 million. The development plan for the land included Westlake’s city hall, a shopping center, and housing. Acord signed the Contract of Sa le under a paragraph reciting, “ The Title Company acknowledges receipt of this Contract on April 28, 2014 and agrees to accept the Earnest Money subject to the terms and conditions se t forth in this Contract.” Beneath Acord’s signa ture, someone handwrote, “Rece ived $250,000. 00 earnest money,” and Acord also signed for the Title Company und er that notation. Hickok testified that his c ompany supplied the $250,000. The Contract of Sale includes the following provisions: [§ 4.A.] Earnest Money. [This section required the purchaser t o deposit $250,000 earnest money with the Title Company, of which

3 Because we conclude that there is no evidence that the Title C ompany breached either contract, we need not address Seller’s argumen ts that these questions violat ed the Casteel rule. See Crown Life Ins. Co. v. Casteel , 22 S.W.3d 378 (Tex. 2000).–12– $1,000 was non-refundable and woul d be Seller’s upon any termin ation of the Contract of Sale.] [§ 4.B.] . . . If Purchaser terminates this Contract on or pri or to the expiration of the Inspection Period (hereinafter defined), all of the refundable portion of the Earnest Money shall be returned to Pu rchaser. If Purchaser does not terminate t his Contract on or prior to th e expiration of the Inspection Pe riod, the Earnest Money shall be nonrefundable to Purchaser unless this Contract is terminated purs uant to Sections 6, 10 or 13(B) hereof. If this Contract is terminated pursuant to any of Sections 6, 10 or 13(B) after the expiration of the I nspection Period, the refundable portion of the Earnest Money shall be re turned to Purchaser. The Earnest Money shall be paid to Seller at the Closing and shall be applicable t o the Purchase Price.

. . . . 12. CLOSING.

. . . . [§ 12.C.] Purchaser’s Closing D ocuments. At the Closing, Purchaser shall deliver to Se ller at Purchaser’s expense: (1) The Purchase Price . . . .

. . . . 13. DEFAULT.

. . . . [§ 13.A.] (2) Seller’s Remedies. If Purchaser fails to close this Contract for any reason except Seller’s default or the terminat ion of this Contract pursuant to a right to terminate set forth in this Con tract, Purchaser shall be in default an d Seller may, as Seller’s sole remedy, terminate this Contract, in which event, the Earnest Money shal l be paid to Seller as liquidated damages for the Purchaser’s breach of t his Contract, and neither party shall have any further obligation h ereunder except for the obligations that e xpressly survive the terminati on of this Contract. In no event shall Purc haser be liable to Seller for any punitive, speculative, conseque ntial, or other damages.

. . . .–13– 16. EARNEST MONEY PROVISIONS.

. . . . [§ 16.B.] Termination by Purchase r. If Purchaser elects to term inate this Contract pursuant to its rights under Sections 6 or 9 [ent itled “Review of Title Documents” and “Inspection,” respectively], Ti tle Company shall pay the refundabl e portion of the Earnest Money t o Purchaser two (2) business days f ollowing receipt of the termin ation notice under any such Section from Purchaser (as long as the cu rrent investment can be liquidated within one day) and this Contract shall thereupon terminate. No notic e to Title Company from Seller sh all be required for the release of the Earnest Money to Purchaser by T itle Company. The Earnest Money sha ll be released and delivered to Purchaser from Title Company upo n Title Company’s receipt of Purchaser’s termination notice, despite any objection or potent ial objection by Seller. Seller agrees it shall have no right to b ring any action against Title Company whic h would have the effect of del aying, preventing, or in any way interr upting Title Company’s delivery of the Earnest Money to Purchaser pursuant to this Section, any remedy of Seller being against Purc haser, not Title Company. [§ 16.C.] Other Terminations. U pon a termination of this Contr act other than as described in Section 19(B)[ 4 ] above, either party (the “Terminating Party”) shall give written notice to the Title Com pany and the other party (the “Non-Termin ating Party”) of such terminati on and the reason for such termination. Such request shall also const itute a request for the release of the Earnest Money to the Terminating Party. The Non-Terminating Party shall then have five (5) business day s in which to object in writing to the release of the Earnest Money to the Terminating Party. If the Non-Te rminating Party makes such an objection, the Title Company sha ll retain the Earnest Money unt il it receives either written instructions executed by both Seller an d Purchaser as to the disposition of the Earnest Money, or a cour t order, decree or judgment, which is not subject to appeal, to deliver the Earnest Money to a particular party, in which event the Earnest Money

4 There is no § 19(B); § 19 is a single, unlettered paragraph ad dressing offer and acceptance. The Title Company suggests, and Purchasers do not dispute, that this is a scrivener’s error. The intended reference seems to be § 16.B, “Termination by Purchaser.”–14– shall be delivered in accordan ce with such notice, instruction, order, decree or judgment. [§ 16.D.] Interpleader. Seller and Purchaser agree that upon a ny controversy regarding the Earnes t Money, unless mutual written instructions are received by the Title Company directing the Ea rnest Money’s disposition. the Title C ompany may either await disposi tion of any proceeding relating to the Earnest Money or, at the Titl e Company’s option, interplead all parties and deposit the Earnes t Money with a court of competent juris diction in which event the Title Company may recover all of its court costs and reasonable attorneys’ fe es. Seller or Purchaser, whichever loses in any such interpleader action, shall be solely obligated to pay such cos ts and fees of the Title Compan y. [§ 16.E.] Liability of Title Com pany. The partie s acknowledge t hat the Title Company is acting solely as a stakeholder at their re quest and for their convenience, that the Title Company shall not be deem ed to be the agent of either of the parties, and that the Title Company shall not be liable to either of the parties for any action or omission o n its part taken or made in good faith, and not in disregard of this Contr act, but shall be liable for its negligent acts and for any loss, cost o r expense incurred by Seller or Purchaser resulting from the Title Compan y’s mistake of law respecting the Title Company’s scope or nature o f its duties. Seller and Pu rchaser shall jointl y and severally indem nify and hold the Title Company harmless from and against all costs, cla ims and expenses, including reasonable attorneys’ fees, incurred in con nection with the performance of the Ti tle Company’s duties hereunder, e xcept with respect to actions or omissions taken or made by the Title Company in bad faith, in disregard of this Contract or involvin g negligence on the part of the Title Company. On Monday, July 21, 2014, the town of Westlake adopted a resolu tion approving the assignment of devel opment agreements regarding th e land from Seller to one of the Purchasers, Marqui s Westlake Development, Inc. H ickok testified that he controlled all five Purchaser s and believed Ma rquis Westlake Development, Inc. was the “lead company” o f the Purchasers.–15– On Thursday, July 24, four of the Purchasers sent letters to th e Title Company that listed the closing documents Purchasers would be deliverin g and contained detailed instructions to the T itle Company about their handling . That same day, Purchasers’ lender, PlainsCapita l Bank, sent four similar lette rs to the Title Company. On Friday, July 25, on the Title Company’s behalf, Acord signed each Purchaser letter under the words “agreed to and accepted.” The Title Company received Purchasers’ documents, about $6 million in funds from Purchasers, and about $11 million in funds that Purchasers were borrowing from PlainsCapital Bank. But that same day, Hickok talked to Jeff Blackard, one of his p artners who had “really conceived this whole development” but was not putti ng any money into the transaction. Hickok and Blackard had a disagreement about who was going to “control this deal,” and Hickok t hought that he probably didn’t want to partner with Blackard. Hickok decided he would use the weekend to think thr ough how to do the deal. Purchasers’ lawyer, Hap Stern, also testified that there were still some unresolved issues in the closing process at the end of July 25. Nevertheless, the transaction parties exchanged em ails at the end of the day sugg esting that the transaction was “ready to go.” On Monday morning, July 28, Stern learned from Purchasers that there was a problem and they were going to postpone the closing. He called Acord and told her that Purchasers were going to request that everything be return ed. At 8:51 a.m.,–16– Stern sent Acord an email seeking to confirm their conversation that the Title Company did not have funding authorization on the transaction. At 9:01, Acord sent a confirmation email. At 9:13, Stern sent Acord an email that said, “[W]e hereby authorize and instruct you to return all funds wired by the Pur chasers’ [sic] to Purchasers in accordance with the following wiring instructions : [account information followed.] Please confirm receipt of this instruct ion and when the wire has been initiated (with the Fed eral Reference Number) when ava ilable.” At 9:21, Acord replied, “OK.” At some point on July 28, the Title Company’s owner and CEO Cha rles Brown, who was out of town, lear ned about the problem with the transaction. He testified that he called Seller before it made any claim to the escrowed funds. Later that day Seller sent the Title C ompany and Hic kok a letter sayi ng that Seller claimed all $17 million in the Title Compa ny’s possession. But later t hat day Seller and Purchasers consented to the Title Company’s returning the $11 m illion loaned by PlainsCapital Bank, and it did so. Four days later, the Title Company filed its interpleader actio n and deposited the documents and almost $6.3 m illion with the district clerk. On August 29, 2014, the interpleader judge signed an agreed ord er disposing of the suit. Seller received $250,000 of the funds. Purchaser s received the rest of the funds and the documents.–17– c. Is there any evidence that the Title Company breached the Contract of Sale by retaining and interpleading Purchasers’ $6 million in purchase funds des pite Purchasers’ demand? No, the Contract of Sale did n ot require the Title Company to i mmediately return purchase funds it subsequently received from Purchasers upon Purchasers’ demand, nor did it prohibit the Title Company from interpleadin g those funds.
1. General Discussion At the outset, we note that the jury found in answer to Questio n 3 that the Title Company lawfully and in good faith retained and interpled the $ 250,000 earnest money. As Purchasers’ counsel agreed at oral argument, this ne gated the jury’s Question 1 contract breach findings as to the Title Company’s r etaining and interpleading the earnest money. See Clayton v. Mony Life Ins. Co. of Am. , 284 S.W.3d 398, 401 (Tex. App.—Beaumont 2009, no pet.) (interpleade r relieves stakeholder of potential liability to pay out single fund more than once); Petro Source Partners, Ltd. v. 3-B Rattlesnake Ref. (1990), Ltd. , 905 S.W.2d 371, 374–78 (Tex. App.—El Paso 199 5, writ denied) (treating proper interple ader as defense to claims brought in separate lawsuit). Thus, the only question i s whether the Title Company’s retaining and interpl eading Purchasers’ additional $6 million of purchase funds breached the Contract of Sale or Purchasers’ sub sequent escrow instruction letters. The Title Company argues that its retaining and interpleading t he purchase funds did not breach the Contract of Sale because the contract doesn’t contemplate–18– that the Title Company would receive the purchase money before closing and therefore is silent regarding the Title Company’s duties regard ing that money. As the Title Company correctly state s, the Contract of Sale doesn’ t say that the Title Company will receive the purchase price; rather, § 12(C)(1) sta tes that “[a]t the Closing, Purchaser shall deliver to Seller at Purchaser’s expen se . . . The Purchase Price.” 5 Thus, the Title Company concl udes, the Contract of Sale impos ed no duty on the Title Company to return the purchase funds on Purchasers ’ demand or not to interplead them later. 2. Sections 13(A)(2) and 16(D) Purchasers argue that Contract o f Sale §§ 13(A)(2) and 16(D) li mited the Seller’s remedies and the Title C ompany’s interpleader rights a nd, thus, obliged the Title Company to return the purc hase funds to Purchasers on dem and. We disagree with Purchasers’ ar gument. Sections 13(A)(2) and 1 6(D) don’t mention the $6 million in additional Escrowed Funds, much less require the Title Company to return them t o Purchasers on demand. Section 13(A)(2) provides that if Purchasers fail to close the Contract for any reason except Seller’s default or a permitted termination, Sell er’s sole remedy will

5 Purchasers assert that § 12 contemplated an escrow delivery of the additional purchase price funds because § 12(C) is entitled “Purchaser’s Closing Documents” and lists “The Purchase Price” as one of the things “Purchaser shall deliver to Seller at Purchaser’s expens e” at closing. But § 12 doesn’t mention escrow or say that any of “Purchaser’s Closing Documents” will be delivered to the Title Company, and § 12(C) expressly says that Purchaser shall deliver the listed items “to Seller” at closing. So, we reject Purchasers’ assertion.–19– be to terminate the Contract and receive the earnest money. Se ction 16(D) provides that if a “controversy regarding the Earnest Money” arises, the Title Company has the right to await the disposition of any proceeding relating t o the earnest money or to file an interpleader over the earnest money. Neither provis ion mentions purchase funds beyond the earnest money, r equires the Title Company to r eturn such purchase funds on demand, or forbids the Title Company from interpleadin g such funds. Although § 16(D) expressly allows the Title Company to interple ad the Earnest Money—which was all it received when it agreed to the Contract of Sale—it did not forbid the Title Company from retaining or interpleading any ad ditional funds it received in the future. Indeed, the $6 million in additional E scrowed Funds are not mentioned in and are not within the Contract of Sale’s scope. Stated differently, the Contract of Sale by its terms does not govern the additional $6 million Escrowed Funds. Because the Contract of Sale doesn’t impose any duties on the T itle Company regarding Purchasers’ purchase funds, or even hint that any suc h duties exist, we don’t read §§ 13(A)(2)’s and 16(D)’s silence on the subject to imply a Title Company duty to return those funds on demand. We conclude that §§ 13(A)(2) and 16(D) do not require the Title C ompany to return Purchasers’ $6 million in additional purchase funds, the E scrowed Funds, on demand or pro hibit the Title Company from interpleading those funds. Consequently, the evid ence that the Title–20– Company retained and interpled those funds is no evidence it br eached §§ 13(A)(2) or 16(D). 3. Section 16(E) Purchasers also rely on Contract of Sale § 16(E), “Liability of Title Company.” We quote the key passa ge, with bracketed numbering a dded for convenience: “[T]he Title Company [i] shall not be liable to e ither of the parties for any action or omission on its part taken or made in good faith, and not in disregard of this Contract, but [ii] shall be liable [a] for its negligen t acts and [b] for any loss, cost or expense incurred by Selle r or Purchaser resulting from the Title Company’s mistake of law respecting the T itle Company’s scope or nature o f its duties.” First, we consider clause [i]. Purchasers argue that the Title Company breached clause [i] because there was evidence that the Title C ompany’s CEO Charles Brown either “failed to r egard the Contract” or “disreg arded the same.” But this misconstrues clause [i] as imposing a duty on the Title Co mpany when the clause’s plain language actua lly limits the Title Company’s lia bility with a “good faith, and not in disregard of thi s Contract” defense. Clause [i] doesn’t suggest that a Title Company act or omission th at doesn’t breach any other c ontract provision somehow becomes a breach merely because the act or omission isn ’t “in good faith” or the Title Company somehow “disregard[s]” the Contract withou t actually breaching it. Thus, any evidence that Brown did not consult or consider the Contract–21– of Sale’s terms in deciding what to do with Purchasers’ purchas e money is no evidence of a contract breach. Second, we consider clause [ii] . Purchasers don’t argue that t here’s any evidence the Title Company acted negligently, so we dispense wi th clause [ii][a]. But Purchasers do assert that there was evidence to support a b reach finding under clause [ii][b]—that Brown made a mistake of law by not returnin g Purchasers’ additional purchase money on dema nd. However, they don’t expla in why Brown’s decision not to return the additional purchase money on demand was a mistake of law. We have already concluded that the Title Company’s retain ing and interpleading that money didn’ t breach any other Contract of Sa le duty. Similarly, we conclude in the following section that there is l egally insufficient evidence of an escrow instruction letter breach th at might constitute an applicable mistake of law. For these reasons, we conclude that the evidence is legally ins ufficient to support the jury’s finding that the Title Company breached the Contract of Sale by retaining and interpleading th e $6 million in purchase funds.–22– d. Is there any evidence that the Title Company breached the escrow instruction letters by retaining and interpleading Purchasers’ $6 million in additional purchase funds despite Purchasers’ demand? No, the escrow instruction lette rs did not require the Title Co mpany to return Purchasers’ purchase funds on de mand or forbid the Title Compan y from interpleading them. The jury charge asked whether the Title Company breached one sp ecific escrow instruction letter, the one sent on behalf of Purchaser CDavis Investments, Ltd. and admitted at trial as plaintiff’s exhibit 4, so we will refer to the escrow instruction letters as “PX4” in our analysis. The Title Company argues that PX4 neither (i) requires the Titl e Company to return the additional purchase funds on demand nor (ii) prohibi ts the Title Company from interpleading those funds in the event of a dispute. The Title Company’s argument is persuasive. We quote PX4’s rel evant passages, noting that the term “B orrower” refers to the particu lar Purchaser involved, CDavis Investments: We [attorneys for CDavis Investments] are delivering original execution counterparts of the following documents and instrumen ts (collectively, the “Closing Docu ments”), which are to be held b y you in strict accordance with the p rovisions of this escrow letter . . . : [list of 21 documents, such as various agreements, certificatio ns, and disclosures]. . . . All of the foregoing documents and instruments are herei nafter collectively referred to as the “Closing Documents.”–23– At any time prior to the actual consummation and funding of the Closing, Borrower and this firm reserve the right to withdraw t he Closing Documents without further obligation to any party hereu nder, and by your execution hereof, you hereby agree to immediately r eturn same to the undersigned upon such instruction. Absent any such withdrawal instructions or any amendment hereto, you are hereby instructed to hold the Closing Documents in escrow until the fo llowing events have occurred:

. . . . C. You have received from Borrower the following: (i) the Borrower’s Statement (herein so called), executed by Borrower a nd your company (which may be delivered via fax or email), and (ii ) good funds (the “Funds”) . . . in a ccordance with the amount(s) set forth on the Borrower’s Statement. We agree with the Title Company th at under PX4 the Purchasers’ purchase funds are not “Closing Documents” that the Title Company “agree [d] to immediately return” upon request. Specifically , PX4 defines “Closing Docum ents” as twentyone specific documents, and the purchase funds are not among th em. Moreover, PX4 refers to the purchase funds later and defines th em as “Funds.” PX4 confirms the distinction betw een the Closing Documents and the Funds in a later paragraph beginning, “Your disbursement or recordation of the Closing
Documents or your disbursement of the Funds will signify your agreement wit h Borrower and our firm that . . . .” (Emphasis added.) Purchasers argue, and the Title Company concedes, that the Cont ract of Sale defines “Purchaser’s Closing Documents” as including the purcha se price of over $17 million. But we agree with the Title Company that that def inition does not govern PX4’s interpretation, for two reasons.–24– First, as explained above, PX4 c ontains its own different defin ition of “Closing Documents.” PX4 specifically defines “Closing Documen ts” as used in that document as “[a]ll of the f oregoing documents and instrume nts,” and the foregoing list does not include t he additional purchase money. Moreover, PX4 subsequently defines the money the Title Company will receive f rom the Purchaser and its Lender as the “Funds.” For purposes of PX4, then, “Clo sing Documents” does not include the purchase money. Second, PX4 doesn’t actually use the Contract of Sale’s term th at Purchasers rely on—“Purchaser’s Closing Documents.” Rather, PX4 defines a nd uses the term “Closing Documents.” And in PX4, the Title Company promised to “immediately return” the Closing Documents—not Purchaser’s Closing Documents . Parties are free to define contract terms as they please, and courts will u se those definitions in effectuating the parties’ agreement. See TEC Olmos, LLC v. ConocoPhillips Co. , 555 S.W.3d 176, 181 (Tex. App.—Houston [1st Dist.] 2018, pet. d enied) (“A term’s common-law meaning will not override the definition given to a contractual term by the contracting parties.”). Here, the PX4 parties agreed tha t “Closing Documents” did not i nclude Purchasers’ purchase money, so the Title Company’s promise to r eturn the Closing Documents immediately on demand was not a promise to return the $6 million on demand. Thus, we conclude that PX4 did not require the Title C ompany to return the purchase funds to Purchasers on demand.–25– It also does not mention interpleader, much less forbid the Tit le Company from interpleading the purchase funds. Accordingly, we conclude that th ere is legally insufficient evi dence that the Title Company breached PX4. e. Does the jury’s fiduciary breach finding supply an independent basis for a ffirming the judgment? Purchasers argue that we can affirm the judgment because the Ti tle Company doesn’t challenge the jury’s fiduciary breach finding. Accordi ng to Purchasers, the evidence supporting the fiduciary breach finding also supports a finding that the Title Company breached contract obligations that involved the perform ance of those fiduciary duties. The Title Company responds that Pu rchasers’ argument fails beca use the trial court ruled that there was no ev idence to support the jury’s fi duciary breach damages finding and Purchasers have not challenged that ruling on appea l. They also argue that a fiduciary breach finding will not support a contract bre ach remedy. We reject Purchasers’ argument. The Title Company is correct t hat the trial court ruled that there was no evidence to support the jury’s $9 0,000 finding for fiduciary breach damages. 6 Purchasers have not challe nged that ruling on appeal.

6 The trial court’s order granted the Title Company judgment not withstanding the verdict on Purchasers’ fiduciary breach claim for two reasons: insufficien t damages evidence and the election of remedies doctrine.–26– Moreover, we agree with the Title Company that Purchasers canno t connect the fiduciary breach finding with the contract breach damages f indings. The jury charge did not connect them; rather, it expressly limited the c ontract breach damages to those damages resulting from th e breach or breaches the jury found in answer to Question 1 (the contract b reach liability question). Additionally, the fiduciary breac h question, Question 5, did no t reference any contract breach or require the j ury to find a contract breach t o find a fiduciary breach. Rather, Question 5 instructed the jury to find a fiduciary brea ch if the Title Company “failed to exercise a high degree of care to conserve the Earne st Money and Escrowed Funds and pay it only to those entitled to receive it” or “failed to act in the utmost good faith or exercise the most scrupulous honesty towar ds” Purchasers. Thus, the jury charge affords no basis for concluding that the Title Company’s fiduciary breach or breaches w ere also contract breaches. We reject Purchasers’ argument th at the fiduciary breach findin g provides a basis for affirming their contract breach judgment.
4. Conclusion We hold that (i) the jury’s answer to Question 3 gave the Title Company an interpleader defense regarding its retaining and interpleading the $250,000 Earnest Money and (ii) the Title Company’ s retaining and interpleading Purchasers’ $6 million in additional purchase funds did not breach either the Contract of Sale or the escrow instruction letters. Accordingly, we sustain Issue A’s legal sufficiency–27– challenge, which makes it unnece ssary for us to address the rem aining arguments under Issue A. We also need not address Issues B and C. B. Issue D: Is the jury’s failu re to find that the Title Compa ny incurred expenses related to performing its Contract of Sale duties supp orted by insufficient evidence? Our disposition of Issue A means that the only part of Issue D we need to address is the argument regard ing the Title Company’s countercl aim. Specifically, the Title Company makes a sufficiency challenge to the jury’s “ no” answer to Question 7, which asked— Did Sendera Title incur any costs, claims or expenses, includin g reasonable attorneys’ fees, in c onnection with the performance of its duties under the Contract of Sale that related to the Earnest M oney and/or the Escrowed Funds? The Title Company preserved this argument in its second motion for judgment notwithstanding the verdict or new trial. The standard of revi ew is whether the evidence established a “yes” answer as a matter of law (legal s ufficiency) or the “no” answer is against the great weight and preponderance of the evi dence (factual sufficiency). See Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241–42 (Tex. 2001) (per curiam). We reject the Title Company’s ar gument. Its brief’s entire dis cussion of the evidence consists of (i) two references to Contract of Sale pro visions purportedly entitling the Title Company to recover its fees and expenses fr om Purchasers and (ii)–28– the assertion, “Sendera sought those fees,” supported by two re porter’s record references. The first record reference is to a passage of Brown’s testimony in which he described the course of the inte rpleader lawsuit. At the end o f that passage, counsel asked Brown if he was asking the jury for his expenses and reas onable attorney’s fees “incurred in the connection and the performance of your du ties and in the defense of this case,” and Br own answered, “Yes, sir.” The second record reference is to a stipulation reached out of the jury’s presence that the Title Company’s reasonable and necessary atto rney’s fees in this lawsuit were $125,000 in the tri al court through trial, with ad ditional amounts in the event of appeal. But the jury charge asked whether the Title C ompany incurred expenses “in connection with the performance of its duties unde r the Contract of Sale.” Assuming the jury knew of the stipulation, the Title Co mpany has not shown that the jury acted unreasonably by rejecting the Title Company ’s position that its current litigation fees were sufficiently connected with the Ti tle Company’s performance of its Contract of Sale duties. In sum, we conclude that the T itle Company has not shown that t he jury’s answer to Question 7 was either c ontrary to conclusive proof or against the great weight and preponderance of the evidence. Thus, the trial cour t did not err by denying the Title Company’s second motion for judgment notwiths tanding the–29– verdict and new trial regarding the jury’s answer to Question 7 . To that extent, we overrule Issue D.
IV. D ISPOSITION We reverse the trial court’s judgment to the extent it awards r elief to Purchasers on their claims, and we render judgment that Purchas ers take nothing on their claims. In all other respects, we affirm the trial court ’s judgment.

190562F.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE–30– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SILVER STAR TITLE, L.L.C., D/B/A SENDERA TITLE, Appellant

No. 05-19-00562-CV V. MARQUIS WESTLAKE DEVELOPMENT, INC., CDAVIS INVESTMENTS, LTD., PINETRADA INTERESTS, LTD., WINGLAKE HOLDINGS, LTD., AND WESTLAKE TOWN HALL, LLC, Appellees On Appeal from the 95th District Court, Dallas County, Texas Trial Court Cause No. DC-14-11010. Opinion delivered by Justice Whitehill. Justices Osborne and Carlyle participating.

In accordance with this Court’ s opinion of this date, the judg ment of the trial court is AFFIRMED in part and REVERSED AND RENDERED in part. We REVERSE the trial court’s judgment to th e extent it awards monetary re lief to appellees Marquis Westlake Devel opment, Inc., CDavis Investment s, Ltd., Pinetrada Interests, Ltd., Wingl ake Holdings, Ltd., and Westlak e Town Hall, LLC, and we RENDER judgment that appellees Marquis Westlake Development, Inc., CDavis Investments, Ltd., Pinetra da Interests, Ltd., Winglake H oldings, Ltd., and Westlake Town Hall, LLC take nothi ng from appellant Silver Star Title, L.L.C., D/B/A Sendera Title. In all othe r respects, the trial court’s judgment is AFFIRMED

. It is ORDERED that appellant Silver Star T itle, L.L.C., D/B/A Sendera Title recover its costs of this a ppeal from appellees Marquis W estlake Development, Inc., CDavis Invest ments, Ltd., Pinetrada Interest s, Ltd., Winglake Holdings, Ltd., and Westlake T own Hall, LLC. The obligations o f Great American–31– Insurance Company as surety on appellant’s supersedeas bond are DISCHARGED

. Judgment entered August 18, 2020.