Affirmed and Opinion filed October 2, 2013.

In The

Fourteenth Court of Appeals

NO. 14-11-00900-CV

CITIGROUP GLOBAL MARKETS REALTY CORP., Appellant

V.

STEWART TITLE GUARANTY COMPANY, Appellee

NO. 14-11-00901-CV

K.R. PLAYA VI, S. DE R.L. DE C.V., Appellant

V.

STEWART TITLE GUARATY COMPANY AND STEWART TITLE 

GUARANTY DE MEXICO, S.A. DE C.V., Appellees

On Appeal from the 295th District Court

Harris County, Texas

Trial Court Cause No. 2008-03256
2

O P I N I O N

In this consolidated appeal regarding a dispute over payment on title 

insurance claims to numerous properties in Mexico, appellants Citigroup Global 

Markets Realty Group and K.R. Playa VI, S. de R.L. de C.V. (K.R. Playa) 

challenge the trial court‘s take-nothing judgment in favor of appellees Stewart Title 

Guaranty Company (Stewart U.S.) and Stewart Title Guaranty de Mexico, S.A. de 

C.V. (Stewart Mexico).

1

 In four issues, Citigroup asserts (a) that the trial court 

erred in admitting the expert testimony of Bruce Greenberg regarding property 

valuation, (b) that there is legally insufficient evidence to support the jury‘s finding 

that an exclusion to the title insurance policies issued to K.R. Playa and Citigroup 

by Stewart Mexico and Stewart U.S. precludes coverage for ten of the sixteen 

subject properties, (c) that the jury‘s damages award of zero for the six properties 

to which the exclusion is not applicable is not supported by the evidence, and 

(d) that the trial court erred by ―barr[ing] Citigroup from bringing claims under 

Texas law for the insurer‘s violation of the Texas Insurance Code and its duty of 

good faith and fair dealing.‖ K.R. Playa contends that (1) Stewart Mexico did not 

prove that it was actually prejudiced by K.R. Playa‘s failure to comply with certain 

conditions in its title insurance policy, which does not absolve Stewart Mexico of 

liability under the policy; (2) Stewart Mexico had both constructive and actual 

knowledge of the title defect at issue in this case; thus K.R. Playa had no duty to 

provide Stewart Mexico with notice of this defect; and (3) both Stewart Mexico‘s 

and Stewart U.S.‘s repeated violations of a pre-trial motion in limine order 

 

1 Both Citigroup and K.R. Playa incorporated each others‘ briefs by reference. See Tex. 

R. App. P. 9.7 (permitting any party to join in or adopt by reference all or any part of, as is 

relevant here, a brief filed in an appellate court by another party in the same case). However, in 

doing so, they have risked preserving error if they failed to identify the rulings in the record 

preserving error on their own issues. See Tex. R. App. P. 33.1(a) (explaining that the record 

must show that the complaining party preserved a complaint for appellate review).
3

―deceived‖ the jury into believing that K.R. Playa ―owned‖ the properties at issue 

in this case, ―a misconception that poisoned the entire verdict.‖ After considering 

those issues necessary to final disposition of this appeal, we affirm.

INTRODUCTION

K.R. Playa purchased sixteen properties in Mexico and obtained title 

insurance from Stewart Mexico. K.R. Playa later obtained financing from 

Citigroup for its purchases of these properties. Citigroup purchased lender‘s title 

insurance policies for each property from Stewart Mexico, but also insisted that 

Stewart U.S. contractually agree to ―assume the entire liability of [Stewart Mexico] 

under‖ each policy and agree to ―pay any valid claim‖ under the policies to the 

same extent as if the entire liability had been insured by Stewart U.S. policies. 

These agreements provided Citigroup the right to enforce the policies against 

Stewart U.S. in Texas courts.

The record reflects that, at the time of trial, the following claims remained 

unresolved: (1) Citigroup‘s claims against Stewart U.S. for breach the lender‘s 

title policies, breach of the duty of good faith and fair dealing, and violations of the 

Texas Insurance Code;2and (2) K.R. Playa‘s claims against Stewart Mexico for 

breach of the owner‘s title policies.

 

2 Regarding the latter of these two, the trial court denied Citigroup‘s ―motion for 

application of Texas law‖ to its claims against Stewart U.S. 
4

BACKGROUND3

The Decree

On April 23, 1981, the president of Mexico issued an Expropriation Decree

(the Decree), pursuant to which the Mexican federal government took over six 

million square meters of land to create the Tulum National Park (the Park). 

According to the Mexican National Commission of Protected Natural Areas

(CONANP), the Park is federal property owned by the Mexican federal 

government. But the Decree does not provide any guidance, on its face, showing 

its application to any particular properties located in the Park. And 

notwithstanding the Decree, at the time of this dispute, some private individuals 

operated hotels and restaurants on land subject to the decree. Further, the Mexican 

federal government had taken no steps to enforce the decree or evict the 

commercial ventures.

The K.R. Playa Purchases

In late 2005, Kor Realty Group, a Los Angeles-based real estate developer

specializing in building luxury hotels, sought to develop a stretch of beachfront 

property in Tulum. This property was attractive to Kor because there were no 

high-end luxury hotels in the area with direct beach access. Additionally, the 

Mexican state of Quintana Roo, in which Tulum was located, was in the process of 

improving its airport and infrastructure. Finally, Kor anticipated that Tulum would 

be granted independence as a city in 2007, which would permit the local 

government to increase density in the area as an ―urban zone‖ and manage the 

zoning and development of this stretch of property.

 

3 Because of the voluminous record in this case, we provide a brief background section 

here for context and provide more specific facts relevant to our disposition as we discuss the 

issues in this appeal.
5

From early to mid 2006, Kor, through its Mexican subsidiary, appellant K.R. 

Playa,4purchased sixteen properties in the Tulum area (the ―Tulum Properties‖) for 

a total of nearly $55 million. The first eleven purchases of the Tulum Properties 

were handled by K.R. Playa managers Jim Reilly and David Lopez.5 Before the 

closing of the purchase of each property, K.R. Playa obtained title insurance 

commitments from Stewart Mexico.6 Stewart Mexico hired an agent to search 

public title records in connection with its issuance of policies for K.R. Playa‘s 

purchase of the first two Tulum Properties. This agent discovered a reference to 

the Decree in its title search, but stated in its report, ―By a Map indicating the area 

condemned by the Decree of April 23, 1981, to declare it the Tulum National Park, 

[the owner] shows that the tracts owned by him were not affected by such 

condemnation‖ (emphasis added). Stewart Mexico did not specifically list the 

Decree as an exception from coverage in any of its title policies.

In June 2006, K.R. Playa obtained state government issued land-use 

certificates showing the type of permitted use and the density (number of hotel 

rooms permitted in a given area) for each of the Tulum Properties pursuant to 

federal zoning law, the Programa de Ordenamiento Ecologico Teritorial (POET). 

According to these POET certificates, the zoning designation of the properties was 

 

4 K.R. Playa notes in its brief that ―Kor‖ and ―K.R. Playa‖ were used ―interchangeably‖ 

at trial. Accordingly, whenever we refer to ―K.R. Playa,‖ we are likewise referring to ―Kor‖ in 

this opinion. Moreover, the reporter‘s record does not contain testimony from any individuals 

who are employed or associated with K.R. Playa.

5 Reilly was K.R. Playa‘s general manager and Lopez was its administrative manager. 

Both were appointed by K.R. Playa on September 30, 2005. Both were removed from their 

positions on August 21, 2006. Neither Reilly nor Lopez testified at trial.

6 Although K.R. Playa‘s purchases of the Tulum Properties were initially financed by a 

private equity group, it later obtained a loan, secured by the properties, from Citigroup for 

approximately $41 million. As noted above, Citigroup obtained its own lender‘s title insurance 

on each of the Tulum Properties through Stewart Mexico, with further contractual assurances 

provided by Stewart U.S. 
6

as follows: (1) Ecological Policy: Conservation; (2) Prevailing Use: Wildlife; 

(3) Conditional Use: Infrastructure and Tourism. The density permitted for each 

property was up to thirty hotel rooms per hectare. 

Two months later, Kor hired a local environmental engineering firm, KaiserGAIA, to assist with development plans. Kaiser-GAIA informed Kor that, 

contrary to the POET land-use certificates, only parts of the Tulum Properties were 

zoned for development—those properties in the southern part of the area. 

According to Kaiser-GAIA, the northern portions of the Tulum Properties were all 

zoned ―AN5,‖ meaning ―zero density‖ was permitted in this area. However, 

Kaiser-GAIA informed Kor that Tulum officials had proposed an Urban 

Development Plan (PDU) with zoning laws for Tulum that differed from the 

federal zoning laws under POET. 

Kor was interested in a greater density than permitted under either POET or 

Tulum‘s proposed PDU. To that end, Kor hired the Mexico City law firm of Creel, 

Garcia-Cuellar y Muggenburg (Creel) and retained as a lobbyist Jorge Montano, 

the former Mexican ambassador to the United States and the United Nation. With 

the assistance of Montano, Creel, and Kaiser-GAIA, Kor and K.R. Playa personnel 

met with numerous Mexican government officials at federal and municipal levels 

seeking support for its development plans. But on February 1, 2007, Creel 

provided a memorandum to Stacy Shaw, Kor‘s general counsel, and the rest of 

Kor‘s legal team involved in the Tulum development, informing them that 

Kor/K.R. Playa could anticipate developing only a total of up to ninety-eight 

rooms in the southern area of the Tulum Properties and no rooms in the northern 
7

portion.7 Only camping and ecotourism would be permitted in the northern portion 

of the property under the federal zoning laws applicable to the area. 

Nonetheless, in early February 2007, Kor personnel, including Brad Korzen, 

CEO of Kor, met with federal and local officials and presented detailed plans for 

proposed development of the Tulum Properties. Korzen left these meetings ―pretty 

optimistic that our plans would be positively received. Certainly no one said 

 ̳You‘re approved,‘ because it was a long process to go through with an 

environmental impact report and other applications still to be done.‖ But Montano 

reported in an email to Korzen, Shaw, Jeff Smith—Kor Chief Operating Officer, 

Jean Loup Ziegler—a member of the Kor legal team, and several others on 

February 20, 2007 that:

President Calderon instructed his Cabinet that no development is permitted 

in the Tulum National Park;

The Mayor of Tulum ―made a 180 degree change after a call from Pres. 

Calderon to the Governor. His statement doesn‘t leave any doubts. Zero 

density in the National Park. That is the opposite to what he said months ago 

to Stacy [Shaw, Kor‘s general counsel] and 10 days ago to Brad [Korzen].‖

According to the Mexican National Institute of Anthropology & History 

(INAH), ―it is clear that those who sold land after the 1981 expropriation 

made the operation against the law.‖

In response to this email, Kor hired another Mexico City law firm to 

investigate the Decree. This firm, Gonzalez Calvillo, researched the Decree and 

opined that, if the Tulum Properties fell within the expropriated area, the Mexican 

 

7 According to this memo, POET regulations defined ―room‖ as 

the lodging space destined to the rent [sic] per night operation, of which space 

allows to offer guest sanitary services, sleeping area for two, luggage storing 

room, and a lounge; it shall not include sites for the preparation or storage of 

foods or drinks; the total number of rooms for a tourism project includes the 

necessary rooms for service personnel without these increasing the total room 

number count.
8

federal government had title to them. At the suggestion of Gonzalez Calvillo, Kor

hired a surveyor to plot the metes and bounds of each property. The surveys, 

which Gonzalez Calvillo received on April 18, 2007, showed that the properties 

were within the expropriated area; thus, the firm concluded that the federal 

government had title to the Tulum Properties. Shortly thereafter, Gonzalez 

Calvillo filed title insurance claims on behalf of K.R. Playa with Stewart Mexico. 

On April 26, Kor informed Citigroup that it had ―recently been made aware of the 

possibility that all or a substantial part of the real property located in Tulum, 

Quintana Roo, Mexico and serving as collateral for [Citigroup‘s loan] may be 

subject to a title encumbrance that was not previously disclosed‖ to Kor/K.R. Playa 

by Stewart Mexico. Citigroup filed its own title insurance claims thereafter. All 

title insurance claims were denied by both Stewart Mexico and Stewart U.S.

The Litigation

Citigroup filed suit against Stewart U.S. in January 2008; K.R. Playa was 

later brought in as a third-party defendant and in turn, filed its own claims against 

Stewart Mexico and Stewart U.S. (collectively, the ―Stewart Companies‖). Prior to 

trial, as noted above, the trial court denied Citigroup‘s pre-trial motion for 

application of Texas law to its claims against Stewart U.S. Additionally, the trial 

court conducted extensive pre-trial hearings on Mexican law, ultimately deciding

that the Decree was ―valid and enforceable‖ and, through it, ―the Mexican 

government took or acquired the 16 Tulum lots‖ at issue in this case. However, the 

trial court explicitly declined to determine who ―owned‖ the properties or to 

instruct the jury that K.R. Playa did not ―own‖ the properties. 

A jury trial began in mid-February 2011 and continued until April 28, 2011, 

when the jury returned its verdict. As is relevant to our disposition of this appeal, 
9

the jury answered ―Yes‖ to the following question for ten out of the sixteen Tulum 

Properties:

Did K.R. Playa know of a defect, lien, encumbrance, adverse 

claim or other situation of fact or law and intentionally assume or 

agree to that defect, lien, encumbrance, adverse claim or other 

situation of fact or law as of the date of purchase of the 16 Tulum 

lots?

You are instructed that ―a defect, lien, encumbrance, adverse

claim, or other situation of fact or law‖ means the 1981 Expropriation

Decree as defined in the Definitions section of the Charge of the 

Court.

Answer ―Yes‖ or ―Nor‖ for each Property[.]

The Stewart Companies bore the burden of proof on this question. Regarding the 

six properties that the jury found K.R. Playa did not know of the Decree and 

―assume or agree‖ to its effect at the time of purchase, the jury was asked the 

following question, on which Citigroup bore the burden of proof:

What sum of money if paid now in cash would fairly and 

reasonably compensate Citigroup for its damages under the Lender 

policies?

In considering damages, consider the actual monetary loss or 

damage sustained or incurred by Citigroup, and select the lease of:

(i) the Amount of Insurance stated in Schedule ―A‖ of the 

Lender Polcies;

(ii) the difference between the value of the insured estate or 

right as insured and the value of the insured estate or right subject to 

the lien or encumbrance or other situation of fact or law insured 

against by the Lender Policies at the date Citigroup ascertained the 

facts giving rise to the loss or damage.

(emphasis added). As to each of the six properties, the jury found zero dollars in 

damages. The jury was asked a nearly identical question regarding the amount of 

money that would ―fairly and reasonably compensate K.R. Playa for its damages 
10

under the Owner Policies,‖ and found zero dollars in damages for all of the 

properties.

8

On June 30, 2011, the trial court entered a final take-nothing judgment in 

favor of the Stewart Companies. After Citigroup‘s and K.R. Playa‘s post-verdict 

motions were denied, this appeal timely followed.

9

SUFFICIENCY

We address Citigroup‘s and K.R. Playa‘s challenges to the sufficiency 

of the evidence issues first. In reviewing the legal sufficiency of the evidence, we 

view the evidence in the light most favorable to the finding, crediting favorable 

evidence if reasonable jurors could, and disregarding contrary evidence unless 

reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 

(Tex. 2005). When the appellant attacks the legal sufficiency of a finding on 

which it did not have the burden of proof, it must demonstrate that there is no 

evidence to support the finding. Id. at 810. We may not sustain a legal 

sufficiency, or ―no evidence‖ point unless the record demonstrates that: (1) there 

is a complete absence of a vital fact; (2) the court is barred by the rules of law or of 

evidence from giving weight to the only evidence offered to prove a vital fact; (3) 

the evidence to prove a vital fact is no more than a scintilla; or (4) the evidence 

established conclusively the opposite of the vital fact. Id.

 

8

The question relating to K.R. Playa‘s damages was not limited to only those properties 

that Citigroup‘s damages question was; it covered all sixteen of the Tulum Properties. 

9

Specifically, K.R. Playa‘s notice of appeal states that it is appealing from: the trial 

court‘s September 12, 2011 order denying its motion for judgment notwithstanding the verdict 

(JNOV) or alternatively for new trial; the final judgment; and the trial court‘s January 30, 2011 

order applying Texas law to and dismissing its claims against Stewart U.S. Citigroup noticed its 

appeal from the June 30, 2011 final judgment, the February 8, 2011 order on motion for 

application of Texas law and motion for summary judgment, and the September 12, 2011 order 

denying its motion for JNOV and motion for new trial.
11

To evaluate the factual sufficiency of the evidence, we consider all the 

evidence and will set aside the finding only if the evidence supporting the finding 

is so weak or so against the overwhelming weight of the evidence that the finding 

is clearly wrong and unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–

07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

A. K.R. Playa’s Knowledge of the Decree

In Citigroup‘s second issue, it asserts that there is legally and factually 

insufficient evidence to support the jury‘s verdict that ―K.R. Playa  ̳assumed‘ or 

 ̳agreed‘ to a total failure of title.‖ This issue is a challenge to the jury‘s findings 

that K.R. Playa assumed or agreed to the Decree‘s effect as to ten of the sixteen 

Tulum Properties at the time it purchased these properties. Further, although 

Citigroup states that this issue encompasses a factual sufficiency challenge, in the 

argument of this issue, Citigroup focuses solely on legal sufficiency. Thus, we 

only address the legal sufficiency of the jury‘s finding.

As noted above, the jury found that, as of the purchase date of ten of the 

sixteen Tulum Properties, K.R. Playa knew about the Decree and assumed or 

agreed to its effect. Again, where, as here, a party attacks the legal sufficiency of 

the evidence to support an adverse jury finding on an issue for which it did not 

have the burden of proof at trial, it must show that no evidence supports the jury‘s 

adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 

215 (Tex. 2011). 

The following evidence supports the jury‘s finding that K.R. Playa ―knew‖ 

about the Decree and ―assumed or agreed‖ to its effect when it purchased these 

properties. Raul Negrete was a real estate appraiser in Mexico hired by K.R. Playa 

in early 2006 to evaluate two properties in the Park it was interested in purchasing. 

Negrete testified that he spoke with Lopez and Reilly before he provided the 
12

appraisals to K.R. Playa. He stated that he told Lopez that ―the zone that they were 

thinking about investing in was in a special position because a decree had been 

issued in that zone.‖10 According to Negrete, Reilly and Lopez informed him that 

―they were going to deal with the SEMARNAT authorities on this matter and that 

they were going to try to find a way to resolve the matter.‖ The record reflects that 

SEMARNAT refers to the Environmental and Natural Resources Ministry of 

Mexico. 

Further, Raymond J. Thoman, III, the sales broker for one of the Tulum 

Properties, Playa Pamela, acknowledged in his testimony that, in Tulum, the terms 

―Tulum National Park‖ and ―Decree‖ were virtually synonymous. He stated that 

he had participated in two sales of land in the Park, including the sale of Playa 

Pamela to K.R. Playa. According to Thoman, he dealt with Reilly and Lopez in 

this land sale. Reilly and Lopez told him that they were ―well aware‖ that the 

property was in the Park. Thoman explained that they ―didn‘t seem too concerned 

about . . . anything as long as they bought the land.‖ Thoman testified that they 

discussed the zero density issue within the Park and that Reilly and Lopez were 

aware of the risk that K.R. Playa might not be able to build anything on the land 

because of zoning and archeological restrictions. In fact, Thoman explained that 

Reilly and Lopez seemed to know about the Solidaridad/Tulum PDU. Importantly, 

this PDU was admitted into evidence and contains the text of the Decree,11 as well 

 

10 Negrete also informed Lopez that people in the region believed the decree ―was invalid 

and did not apply to the zone.‖ 

11 The language of the Decree makes clear that the Mexican federal government is taking 

the described property to protect and preserve it as a national park ―allowing the entrance to 

visitors but, but in a controlled manner.‖ It declares it a National Park named ―Tulum.‖ Finally, 

the Decree states that the federal government ―shall take possession of the expropriated surface 

area.‖
13

as the metes and bounds description of the National Park. Kor CEO Brad Korzen 

testified that Reilly reviewed this PDU. 

From this evidence, jury could reasonably have concluded that Reilly and 

Lopez (a) knew the lots were within the Tulum National Park, (b) knew the Park 

was created by the Decree that expropriated the area within its boundaries, and 

(c) intentionally ―assumed and agreed‖ to the Decree when they purchased the ten 

Tulum Properties at issue. 

Applying the appropriate standard of review, we conclude that Citigroup has 

not established that there is no evidence to support the jury‘s finding. See id. 

Stated differently, there is legally sufficient evidence to support the jury‘s finding 

that, at the time K.R. Playa purchased the ten properties at issue, it knew and 

assumed or agreed to the effects of the Decree.12 Accordingly, we overrule 

Citigroup‘s second issue.

 

12 In K.R. Playa‘s briefing, it challenges the jury‘s answers to questions three and four. 

In these questions, the jury answered ―yes‖ to the following questions:

Did K.R. Playa fail to notify Stewart Mexico promptly in writing within thirty 

(30) business days from the date K.R. Playa knew of [the Decree‘s effect on the 

Tulum Properties] that might cause loss or damage for which Stewart Mexico 

may be obligated under the Owner policies with the intent to prevent prompt 

verification of the circumstances of the claim?

* * *

Do you find that, in response to Stewart Mexico‘s request for information related 

to [the Decree], K.R. Playa concealed or made a false declaration of fact with the 

intent to cause Stewart Mexico to make an error that may exclude or reduce its 

obligations under the Owner Policies?

Our determination that sufficient evidence supports the jury‘s finding that K.R. Playa knowingly 

purchased these ten properties subject to the Decree, coupled with our discussion infra regarding 

the jury‘s zero damages findings as to those properties the jury determined K.R. Playa did not 

purchase subject to the Decree, fully supports the trial court‘s take nothing judgment in favor of 

the Stewart Companies. See Tex. R. App. P. 47.1 (―The court of appeals must hand down a 

written opinion that is as brief as practicable but that addresses every issue raised and necessary 

to final disposition of the appeal.‖). Accordingly, we overrule K.R. Playa‘s first and second 

issues as moot.
14

C. The Jury’s Award of Zero Damages

In issue three, Citigroup asserts that, as to the six of the Tulum Properties the 

jury found that K.R. Playa did not know about the Decree and assume or agree to 

its effect as of the date of purchase, the jury‘s findings of zero damages lacks

sufficient evidentiary support. Citigroup challenges only the factual sufficiency of 

the evidence to support the jury‘s damages findings. As noted above, when 

evaluating the factual sufficiency of the evidence, we consider all the evidence and 

will set aside the finding only if the evidence supporting it is so weak or so against 

the overwhelming weight of the evidence that the finding is clearly wrong and 

unjust. Mar. Overseas Corp., 971 S.W.2d at 406–07; Cain, 709 S.W.2d at 176.

Citigroup asserts that the jury‘s verdict on damages represents a ―significant 

departure‖ from the range of evidence presented at trial and thus cannot stand, 

citinge Lieber v. Tex. Mun. Power Agency, 667 S.W.2d 206, 209 (Tex. App.—

Houston [14th Dist.] 1983, writ ref‘d n.r.e.), disapproved of on other grounds by

Callejo v. Brazos Elec. Power Coop., Inc., 755 S.W.23 73, 75 (Tex. 1988). Lieber, 

however, involved a condemnation action in which the primary issue was the 

depreciated market value of property. Id. 

Here, however, the jury was asked to determine damages by selecting the 

lesser of (a) the amount for which the properties were insured or (b) the difference 

between the value of the insured estate or right as insured and the value of the 

insured estate or right subject to the Decree. The jury clearly determined that 

option (b) resulted in the lesser amount and made its findings based on that 

calculation. Thus, we must determine if there is factually sufficient evidence to 

support the jury‘s findings. And Citigroup bore the burden of proof on this issue 

for its question.
15

Importantly, this question did not ask the jury to consider the amount that 

K.R. Playa paid for the properties, the market value of the properties, or the value 

that K.R. Playa or Citigroup believed these properties to be worth. Rather, it 

simply asked the jury to consider the value of the insured properties as insured. 

And, as noted above, the jury was instructed that the April 23, 1981 Decree was 

valid and enforceable and that the Mexican Federal Government ―took or 

acquired‖ each of these lots through this Decree.13 Under the language of the 

charge, as insured, the properties were already ―taken or acquired‖ by the valid and 

enforceable Decree. K.R. Playa‘s knowledge or lack thereof regarding the Decree 

or its effect was simply not something that the jury was asked to consider in

answering the damages question.

14

 Thus, the jury, based on the charge given and 

the court‘s instructions,15 could have determined that the value of the properties as 

insured was identical to the value of the properties subject to the Decree because, 

the properties as insured, were already subject to the Decree.

 

13 The jurors took oaths to render their verdict according to the law as it was given to 

them in the charge. See Tex. R. Civ. P. 236. The charge instructed the jurors that if they failed 

to follow the instructions, they would be guilty of juror misconduct. The jury is presumed to 

have followed the court‘s instructions. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 

S.W.3d 851, 861–62 (Tex. 2009).

14 Although K.R. Playa adopted Citigroup‘s brief, Citigroup confined its argument on 

damages to its own damages question. As noted above, the jury found zero damages for only six 

of the ten properties as to Citigroup, but as to K.R. Playa, the jury found zero damages for all 

sixteen properties. Thus, K.R. Playa has waived any issues relating to the jury‘s zero damages 

findings, except to the extent that it is relevant to any of the issues that K.R. Playa properly 

preserved and addressed in its own briefing. See Tex. R. App. P. 33.1(a), 38.1(i). However, we 

note that, for the same reason that factually sufficient evidence supports the jury‘s finding of zero 

damages in response to the question regarding Citigroup‘s damages, factually sufficient evidence 

likewise supports the jury‘s finding of zero damages in response to the similar question posed to 

the jury regarding K.R. Playa‘s damages.

15 See, e.g., Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that appellate 

court should review sufficiency of evidence based on charge given); Hirschfield Steel Co. v. 

Kellogg Brown & Root, Inc., 201 S.W.3d 272, 283–86 (Tex. App.—Houston [14th Dist.] 2006, 

no pet.) (reviewing sufficiency of evidence based on unobjected-to jury instruction).
16

Accordingly, after considering all the evidence, the jury‘s finding of zero 

damages is not so weak or so against the overwhelming weight of the evidence that 

it is clearly wrong and unjust.16 Mar. Overseas Corp., 971 S.W.2d at 406–07; 

Cain, 709 S.W.2d at 176. We overrule Citigroup‘s third issue.

EXPERT TESTIMONY

In Citigroup‘s first issue, it argues that the trial court erred in admitting the 

testimony of the Stewart Companies‘ expert Bruce Greenberg because his 

testimony was unreliable and caused harmful error. A decision to admit or exclude 

evidence rests within the sound discretion of the trial court. Bay Area Healthcare 

Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam). A trial 

court abuses its discretion when it acts without regard for guiding rules or 

principles. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). But 

even if the trial court abuses its discretion in admitting certain evidence, we only 

reverse if the error was harmful—in other words, if it probably resulted in an 

improper judgment. Id.

 

16 Further, the jury‘s zero damages award could be regarded as a simple failure of K.R. 

Playa‘s proof on this issue. Accord Kormanik v.Seghers, 362 S.W.3d 679, 689–90 (Tex. App.—

Houston [14th Dist.] 2011, pet denied) (explaining that a jury‘s award of zero damages award 

may, in some contexts, result from a failure of proof under the measure of damages submitted by 

the trial court). Although there was expert testimony in this case, the two experts provided 

widely disparate testimony regarding the hypothetical market value of the subject properties if 

the Decree were not in effect. For example, Randall Bell, Kor/K.R. Playa‘s expert, testified that 

the hypothetical market value of Tulum lots 10, 11, and 17, if they were not subject to the 

Decree, would be approximately $7.1 million, $6.8 million, and $1.6 million. Bruce Greenberg, 

the Stewart Companies‘ expert, testified that the hypothetical market value of these same 

properties would be approximately $3.2 million, $1.8 million and $246,000 if they were not 

subject to the Decree. Finally, Adam Miller with Starwood Ceruzzi, testified that he worked 

with Kor on the Tulum acquisitions. He stated that he did not recall how Kor determined the 

value of the Tulum Properties before making offers and that he could not recall being presented 

with any appraisals for any of the Tulum Properties or having any discussions regarding the 

value of the properties before Kor/K.R. Playa purchased them. Based on this evidence, the jury 

may have determined that K.R. Playa failed to establish, by a preponderance of the evidence, any 

value for these properties. See id.
17

Here, as discussed above, the evidence is sufficient to support the jury‘s 

findings that K.R. Playa knew about the Decree and purchased the ten Tulum 

Properties subject to it. The evidence is further sufficient to support the jury‘s zero 

damages findings regarding the six Tulum Properties that K.R. Playa purchased 

with no knowledge of the Decree. None of these findings turn on Greenberg‘s 

testimony. Accordingly, even if the trial court abused its discretion in admitting 

Greenberg‘s testimony—a question we need not determine—we cannot say that his 

testimony probably resulted in an improper judgment. See id.; Tex. R. App. P. 

44.1. 

Indeed, Citigroup acknowledges in its briefing that the jury‘s zero damages 

findings were not supported by Greenberg‘s testimony because Greenberg valued 

its damages at nearly $4 million for the six lots at issue. Thus, Citigroup 

essentially concedes that the jury ignored Greenberg‘s testimony on the basis for 

which it was proffered—calculating damages. See Bayer Corp. v. DX Terminals 

Ltd., 214 S.W.3d 586, 609 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) 

(―Because the jury‘s damages award is supported by a calculation and related 

evidence not specifically relied upon by DX‘s expert, it cannot be shown that the 

ensuing judgment turned on the expert‘s testimony.). Accordingly, we overrule 

Citigroup‘s first issue.

CITIGROUP’S STATE LAW CLAIMS

In Citigroup‘s fourth issue, it asserts that its ―Texas law claims should be 

restored.‖ As noted above, Citigroup brought claims against Stewart U.S. based on 

Stewart U.S.‘s alleged bad faith and Texas Insurance Code violations. Citigroup 

claims that the ―district court barred Citigroup from urging these claims by holding 

that Mexican law governed instead of Texas law.‖ In support of this issue, 
18

Citigroup directs us to a trial court order denying its motion for the application of 

Texas law to its claims against Stewart U.S.17

 

17 This order, signed on February 8, 2011, states:

After considering Citi‘s Motion for the Application of Texas Law to Citi‘s Claims 

Against Stewart Title Guaranty Co. as well as Stewart Title Guaranty Co. and 

Stewart Title Guaranty de Mexico‘s motions for summary judgment, the 

pleadings, the response, the affidavits, and other evidence on file, the Court 

DENIES Citi‘s Motion for the Application of Texas Law to Citi‘s Claims Against 

Stewart Title Guaranty Co.

Citigroup further directs us to this colloquy in the Reporter‘s Record between its trial 

counsel and the court:

MR. BILLECK: Your Honor, one thing -- I just want to make sure the 

record is clear. And I know we‘re doing this in very summary fashion; but when 

we talk about ruled in Stewarts‘ favor with respect to the insurance code claim, 

the bad faith claim --

THE COURT: Well, I ruled that Texas law did not apply and Mexican law 

applies, and there is no such cause of action under Mexican law.

MR. BILLECK: That‘s right. There’s no summary judgment as a matter of 

the failure to prove the element. It’s only you find Mexican law applies, so you do 

not believe those claims belong in this case. If it‘s later determined Texas law 

applies, we‘re not prevented from saying there was no ruling on the merits. We 

now get to prove our damages and recover under those.

THE COURT: I did not go through the analysis under Texas law of the 

validity of your bad faith claims because I determined that Texas law did not 

apply, Mexican law applies. So because of that there is no such cause of action 

under Mexican law; and so, therefore, that will not be a part of this case.

MR. BILLECK: Understood.

THE COURT: I think probably the proper way for me to say it on the 

record is if another court disagrees with me, you have not waived your argument 

with regard to those causes of action from an evidentiary standpoint. My ruling 

was based on a finding that Texas law did not apply.

(emphasis added).

After oral argument of this appeal, Citigroup filed a letter brief directing us to a reporter‘s 

record reference where the trial court stated, ―However, whether the company did a good or a 

bad investigation is not an issue in this case because I granted the Stewarts‘ summary judgment 

on those points.‖ But Citigroup has not directed us to, nor have we found, any ruling by the trial 

court other than these recollections of alleged previous rulings definitively stating that, as to 

Citigroup’s state-law claims against Stewart U.S., Mexican law applies. 
19

Citigroup is correct that choice of law is decided as a matter of law and 

reviewed by this court de novo. See Sonat Exploration Co. v. Cudd Pressure 

Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008). However, Citigroup failed to 

preserve this issue by obtaining any adjudication of these claims. Although the 

trial court denied its motion for the application of Texas law, Citigroup has not 

directed us to any order denying, dismissing, or otherwise adjudicating its bad faith 

and unfair settlement claims against Stewart U.S.18 These claims were thus still at 

issue at the time of trial, and Citigroup should have formally sought submission of 

them to the jury. Its failure to do so resulted in waiver of those claims. See Tex. 

R. Civ. P. 279 (―Upon appeal all independent grounds of recovery or of defense 

not conclusively established under the evidence and no element of which is 

submitted or requested are waived.‖); Gulf States Utils. Co. v. Low, 79 S.W.3d 

561, 565 (Tex. 2002) (explaining that a party waives an entire theory of recovery 

or defense by not objecting to its omission from the charge, pursuant to Rule 279). 

Because the record does not reflect that the trial court expressly ruled on 

these claims and Citigroup failed to submit these claims to the jury, this issue 

presents nothing for our review. Accordingly, it is overruled. 

VIOLATIONS OF LIMINE ORDER

In K.R. Playa‘s third issue, it asserts that it is entitled to a new trial because 

―Stewart[ Mexico]‘s numerous violations of orders on motions in limine deceived 

the jury into believing that K.R. Playa owned the properties, a misconception that 

poisoned the entire verdict.‖ But a motion in limine does not preserve any issue 

 

18 In its briefing, Citigroup relies on Sonat Exploration Co., a summary-judgment case 

from the Supreme Court of Texas, and suggests that we should construe all fact questions against 

Stewart U.S. See Sonat Exploration Co., 271 S.W.3d at 231 (―As the trial court made its 

decision here by summary judgment, we construe all fact questions against the movant . . . .‖). 

Thus it appears that Citigroup was under the mistaken impression that a summary-judgment 

motion had been granted adjudicating its state-law claims against Stewart U.S.
20

for appellate review. To preserve error as to an improper question asked in 

contravention of a sustained motion in limine, a timely objection is necessary. 

Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986); see Tex. R. App. P. 

33.1(a); Tex. R. Evid. 103(a)(1). Otherwise, a trial court is denied the opportunity 

to make a curative instruction or mistrial ruling. Pool, 715 S.W.2d at 637. Where 

a trial court‘s order on a motion in limine is violated, we review the violations to 

see if they are curable by instructions to the jury to disregard them. E.g., Dove v. 

Dir., State Emps. Workers’ Comp. Div., 857 S.W.2d 577, 580 (Tex. App.—

Houston [1st Dist.] 1993, writ denied) (providing that prejudicial questions by 

appellee, which violated order on motion in limine, to which motions for mistrial 

were requested by appellant and denied by trial court, probably caused the 

rendition of an improper judgment). We will only reverse if these violations 

probably caused the rendition of an improper judgment. Cf. id.; see also Tex. R. 

App. P. 44.1(a).

First, we note that K.R. Playa has failed to identify any specific order on a 

motion in limine signed by the trial court. Rather, it directs us to an unsigned order 

in the clerk‘s record. However, prior to opening argument, the parties were 

cautioned by the trial court to refrain from putting any evidence before the jury that 

Citigroup could foreclose on the Tulum Properties. The trial court further stated 

that, should any party suggest 

directly or indirectly, by questioning or testimony or other evidence, 

that this expropriation decree is not valid, that these properties are not 

included within that expropriation decree and that, actually, therefore, 

there is no loss of title that‘s the basis of this lawsuit, meaning the 

basis of the insurance claim,

then the court would provide ―some sort of instruction‖ to the jury. The trial court 

further agreed that that the Stewart Companies should refrain from suggesting that 
21

K.R. Playa could convey title to the Tulum Properties. The court noted that the 

title companies could present evidence of how the properties were ―otherwise 

marketable‖ because of (a) a provision in the title insurance policies concerning 

such marketability, (b) certain ―hope contracts‖ that are apparently specific to 

property acquisitions in Mexico, and (c) the issue of property valuation with the 

encumbrance, i.e., the value of the Tulum Properties notwithstanding the effect of 

the Decree. The trial judge clarified, however, that there should not be any 

suggestion that Citigroup or K.R. Playa could validly sell the property with good 

title.

K.R. Playa identifies numerous alleged violations of the trial court‘s 

instructions. K.R. Playa or Citigroup objected to several of these violations and 

the trial court instructed counsel for the Stewart Companies outside the presence of 

the jury to refrain from making reference to certain matters. Additionally, because 

of the Stewart Companies‘ violations of the trial court‘s orders, the trial court twice 

verbally instructed the jury that the Decree was ―valid and enforceable.‖ Finally, 

in the jury charge, the trial court instructed the jury ―that the April 23, 1981 

Expropriation Decree is a valid and enforceable decree.‖ The Decree was defined 

in the charge as ―the April 23, 1981 Expropriation Decree by which the Mexican 

Federal Government took or acquired the 16 Tulum lots.‖ 

Several other alleged violations of the limine order identified by K.R. Playa, 

however, were unobjected-to or objected-to well after the alleged violation 

occurred. Further, many of the alleged violations identified in K.R. Playa‘s 

briefing on this issue resulted in an unspecified objection by either Citigroup or 

K.R. Playa, followed by a discussion off the record, with the trial court then 

sustaining the unspecified objection. Finally, K.R. Playa identifies several 

unobjected-to alleged violations of the court‘s orders that occurred during Stewart 
22

Mexico‘s closing argument. None of these alleged violations preserved any error 

for our review, either because no objection was made or we cannot determine from 

the record the nature of the objection and ruling. See Pool, 715 S.W.2d at 637;

Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1). 

Moreover, K.R. Playa does not identify anywhere in the record that either it 

or Citigroup sought a mistrial for the Stewart Companies‘ alleged violations of the 

court‘s orders. See, e.g., Dove, 857 S.W.2d at 580 (motion for mistrial made after 

limine order violated and denied by trial court); Kendrix v. S. Pac. Transp. Co., 

907 S.W.2d 111, 114 (Tex. App.—Beaumont 1995, writ denied) (same). In fact, in 

at least one instance on the record, Citigroup‘s counsel specifically stated that it 

did not want a mistrial.19 

Here, as noted above, the trial court provided two verbal instructions during 

trial that the Decree was valid and enforceable. It further instructed the jury in its 

charge to that effect as well as providing a definition in the charge that the 

Mexican Federal Government ―took or acquired the 16 Tulum lots‖ through the 

Decree. As noted above, we presume that the jury followed the trial court‘s 

instructions. Columbia Rio Grande Healthcare, L.P., 284 S.W.3d at 861–62. 

Under these circumstances, K.R. Playa has failed to establish that any properly 

preserved violations of the trial court‘s orders probably caused the rendition of an 

improper judgment. See Tex. R. App. P. 44.1(a). Accordingly, we overrule K. R. 

Playa‘s third issue.

 

19 Rather, in support of its argument that the Stewart companies‘ ―repeatedly‖ violated 

the trial court‘s ―orders on motions in limine,‖ K.R. Playa focuses on the jury‘s findings that it 

assumed or agreed to the Decree and the jury‘s award of zero damages to it. But we have 

already determined that both of these findings are supported by sufficient evidence. 
23

CONCLUSION

In summary, we have determined that there is legally sufficient evidence to 

support the jury‘s finding that, at the time K.R. Playa purchased ten of the sixteen 

Tulum Properties at issue, it knew and assumed or agreed to the effects of the 

Decree. For the remaining six properties, there is sufficient evidence to support the 

jury‘s finding of zero damages as to each of them. We have further concluded that 

the admission of Bruce Greenberg‘s testimony, if erroneous, probably did not 

cause the rendition of an improper judgment and that Citigroup failed to preserve 

its complaints regarding its state-law claims. Finally, K.R. Playa has not 

established that any of the properly preserved violations of the trial court‘s orders 

probably caused the rendition of an improper judgment. Our disposition of these 

issues supports the trial court‘s take-nothing judgment in favor of the Stewart 

Companies.

Accordingly, we overrule all four of Citigroup‘s issues and all three of K.R. 

Playa‘s issues. See Tex. R. App. P. 47.1. The judgment of the trial court is 

affirmed. 

/s/ Sharon McCally

Justice

Panel consists of Justices Brown, Jamison, and McCally.