EUSTACE H. WINN, JR., BETTY LEE JONES WINN, AND JOHN C. KISALUS, TRUSTEE OF THE EUSTACE H. WINN, JR., FAMILY TRUST, Appellants v. EPG PARTNERS, LLC, CDX, LLC, CDX APACHE DEL SUR, LLC, AND CDX RIO, LLC

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 5th District Court of Appeals » 2010 » EUSTACE H. WINN, JR., BETTY LEE JONES WINN, AND JOHN C. KISALUS, TRUSTEE OF THE EUSTACE H. WINN, JR., FAMILY TRUST, Appellants v. EPG PARTNERS, LLC, CDX, LLC, CDX APACHE DEL SUR, LLC, AND CDX RIO, LLC

State: Texas

Court: Texas Northern District Court

Docket No: 05-08-00716-CV

Case Date: 12/21/2010

Plaintiff: EUSTACE H. WINN, JR., BETTY LEE JONES WINN, AND JOHN C. KISALUS, TRUSTEE OF THE EUSTACE H. WINN, JR.

Defendant: EPG PARTNERS, LLC, CDX, LLC, CDX APACHE DEL SUR, LLC, AND CDX RIO, LLC, Appellees

Preview:EUSTACE H. WINN, JR., BETTY LEE JONES WINN,
AND JOHN C. KISALUS, TRUSTEE OF THE
EUSTACE H. WINN, JR., FAMILY TRUST,
Appellants v. EPG PARTNERS, LLC, CDX, LLC, CDX
APACHE DEL SUR, LLC, AND CDX RIO, LLC,
Appellees
AFFIRMED; Opinion Filed December 21, 2010.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-08-00716-CV
EUSTACE H. WINN, JR., BETTY LEE JONES WINN, AND
JOHN C. KISALUS, TRUSTEE OF THE EUSTACE H. WINN, JR.,
FAMILY TRUST,                                                                                                            Appellants
V.
EPG PARTNERS, LLC,
CDX, LLC, CDX APACHE DEL SUR, LLC,
AND CDX RIO, LLC, Appellees
On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 06-03056
MEMORANDUM OPINION ON MOTION FOR REHEARING
Before Justices O'Neill, Lang, and Myers
Opinion By Justice Lang
On August 19, 2010, this Court issued a memorandum opinion affirming the trial court's judgment in this case.
After requesting and receiving an extension of time to file a motion for rehearing, Eustace H. Winn, Jr., Betty Lee
Jones Winn, and John C. Kisalus, trustee of the Eustace H. Winn, Jr., Family Trust (collectively the Winns) timely
filed a motion for rehearing on October 4, 2010. We deny the Winns' motion for rehearing. We withdraw our August
19, 2010 opinion and vacate the judgment of that date. This is now the opinion of the Court.
This case arises from a dispute over the consideration due to the Winns resulting from Eustace Winn's agreement
to sell his ownership interest in EPG back to EPG as reflected in the redemption agreement. The trial court rendered a
final judgment against the Winns and in favor of EPG Partners, LLC, CDX, LLC n/k/a Mr. Exploration Venture, LLC
(as successor) (CDX), CDX Apache Del Sur, LLC n/k/a CDX Tapicito, LLC (by merger) (Apache), and CDX Rio,
LLC (Rio). The Winns appeal the final judgment, which ordered that the Winns take-nothing on their counterclaims
and granted EPG, CDX, Apache, and Rio's request for a declaratory judgment.
In three issues, the Winns argue the trial court erred when it: (1) granted EPG and CDX's amended motion for
summary judgment and Apache and Rio's conditional motion for summary judgment because they raised an issue of
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material fact precluding judgment as a matter of law on their securities act counterclaims; (2) granted summary
judgment respecting EPG, CDX, Apache, and Rio's request for declaratory relief and attorneys' fees; and (3) signed the
final judgment because it (a) awards EPG, CDX, Apache, and Rio relief for which they did not plead, i.e., it “details”
the amount of consideration and states they did not have an interest in the property, and (b) the post-judgment interest
rate is “wrong.”
Issues one, two, and the first part of issue three are decided against the Winns. We need not decide the second
part of issue three. The trial court's final judgment is affirmed. We issue this memorandum opinion because the issues
in this appeal are settled. See Tex. R. App. P. 47.4.
I. PROCEDURAL BACKGROUND
In their original petition, EPG, CDX, Apache, and Rio requested a declaratory judgment that concluded: (1) the
redemption agreement between EPG and the Winns does not entitle the Winns to claim or receive any rights in real
property not specifically described in the redemption agreement; (2) EPG and CDX have performed all acts required of
them under the redemption agreement; (3) the Winns have received from EPG, CDX, Apache, and Rio all the
consideration to which they were entitled under the terms of the redemption agreement; and (4) the trust has no right
to receive further consideration from EPG, CDX, Apache, or Rio by way of money or property. Attorneys' fees were
also sought.
The Winns answered, generally denying the claims. They asserted the following counterclaims against EPG: (1) a
request for a declaratory judgment concluding that the redemption agreement terminated according to its own terms;
(2) breach of contract and rescission respecting the redemption agreement due to material mistake; (3) fraud in a stock
transaction; (4) securities fraud under the Texas Securities Act; (5) securities fraud under the Mississippi Securities
Act; (6) registration violations under the Texas Securities Act; (7) registration violations under the Mississippi
Securities Act; (8) negligent misrepresentation; (9) breach of fiduciary duty; and (10) common law fraud. Also, the
Winns asserted a counterclaim against CDX, Apache, and Rio alleging they aided and abetted EPG in committing
securities fraud under the Texas Securities Act. Further, the Winns' counterclaims sought a full accounting of all the
books and records of EPG, CDX, Apache, Rio, and other related corporations, and attorneys' fees against all of the
counter- defendants.    See Footnote 1
EPG, CDX, Apache, and Rio answered by generally denying the counterclaims. They also asserted several
affirmative defenses and pleas in avoidance, including waiver and ratification. Then, EPG, CDX, Apache, and Rio
filed an amended petition seeking a declaratory judgment and attorneys' fees, and adding claims against Eustace Winn
for breach of fiduciary duties as a manager of EPG and breach of contract respecting the redemption agreement.
Eustace and Betty Winn filed a motion to realign the parties, claiming they were the true plaintiffs even though EPG,
CDX, Apache, and Rio filed the lawsuit.    See Footnote 2
Then, EPG and CDX moved for summary judgment on the Winns' counterclaims. First, they sought traditional
summary judgment on their request for a declaratory judgment. Second, they sought traditional summary judgment on
their affirmative defenses of statute of frauds and their plea in avoidance of ratification. Finally, they sought a
traditional summary judgment on the Winns' counterclaims, arguing that the counterclaim for rescission was without
merit because there was no mutual mistake and their remaining counterclaims lacked merit as a matter of law because
the summary judgment evidence demonstrates there was no misrepresentation of a material fact.
The Winns responded that issues of fact and law relating to EPG and CDX's alleged fraud precluded summary
judgment on EPG and CDX's request for a declaratory judgment and their counterclaims. Also, they responded that
EPG and CDX failed to plead the affirmative defense that the statute of frauds barred their counterclaims. Further, they
responded that the plea in avoidance of ratification and the affirmative defense of waiver do not apply as a matter of
law to violations of the Texas Securities Act. Then EPG, CDX, Apache, and Rio filed a supplemental answer to the
Winns' counterclaims asserting generally as to all claims the affirmative defense of the statute of frauds.
The trial court granted EPG and CDX's amended motion for summary judgment, concluding that EPG and CDX
were entitled to judgment on their request for a declaratory judgment. Also, the trial court determined that there was no
genuine issue of material fact and that EPG and CDX were “entitled to judgment as a matter of law on all [of the
counterclaims] asserted against them in this action by [the Winns].”
After the trial court granted EPG and CDX's amended motion for summary judgment, Apache and Rio filed a
conditional motion for summary judgment. They claimed they were entitled to summary judgment on the same basis as
EPG and CDX because (1) EPG and CDX sought identical declaratory relief against the Winns; (2) the Winns asserted
counterclaims against Apache and Rio based on the same theory of liability as their counterclaim against CDX; and (3)
the trial court granted summary judgment on these same issues in favor of EPG and CDX in this matter. Apache and
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Rio's conditional motion for summary judgment was granted.
The order granting EPG and CDX's amended motion for summary judgment and the order granting Apache and
Rio's conditional motion for summary judgment were incorporated into the trial court's final judgment, which states, in
part, the Winns “take nothing by their [counter]claims and causes of against [EPG, CDX, Apache, and Rio].” The final
judgment also dismisses without prejudice EPG, CDX, Apache, and Rio's remaining claims against Eustace Winn for
breach of fiduciary duty and breach of contract.
I. SUMMARY JUDGMENT ON THE WINNS' COUNTERCLAIMS
In issue one, the Winns limit their appeal to claim the trial court erred when it granted summary judgment only as
to their counterclaims of securities fraud under the Texas and Mississippi securities acts. They argue the trial court
erred when it granted EPG, CDX, Apache, and Rio's motions for summary judgment because they raised an issue of
material fact precluding judgment as a matter of law. EPG, CDX, Apache, and Rio respond in their brief filed with
this Court that, inter alia, “all of the Winns' fraud [counter]claims were barred by the contract and other operative
documents was [sic] presented to the trial court in support of the summary judgment. [The Winns] do not challenge
this ground on appeal; the judgment must therefore be affirmed.” In their brief, EPG, CDX, Apache, and Rio support
this argument with a reference to the clerk's record that cites the portion of EPG and CDX's amended motion for
summary judgment, which appears under the heading “[The Winns] Cannot Avoid the Contract by Claiming
Fraudulent Inducement.” The majority of the argument in this subsection focuses on the element of reliance in a fraud
claim, arguing that “[r]eliance on an oral representation that is directly contradicted by the express terms of a written
agreement between the parties is not justified as a matter of law.” However, that subsection concludes that “allowing
parties to legally rely upon oral representations that are expressly contradicted in the written agreement directly
conflicts with, and therefore negates, two main goals of contract-to avoid future disputes and to provide certainty to the
contracting parties. [The Winns'] attempts to introduce parol evidence must be rejected and [EPG and CDX] are
entitled to summary judgment.” A few pages before this subsection and appearing under the same main section
heading, EPG and CDX insert a subsection entitled “[The Winns'] [Counter]claim that [Eustace] Winn was Promised a
10% Override is Barred by the Statute of Frauds.” In that section, they argue that because the alleged oral promise is
not in writing, it fails to satisfy the statute of frauds and is barred as a matter of law. In their reply brief, the Winns
argue, for the first time in their appeal, the issue that their securities fraud claims are not barred by their “constructive
knowledge of the misrepresentations and omissions” and the defenses “are only applicable to common-law claims, not
statutory securities fraud, and the Winns are no longer pursuing any common-law claims.”
A. Standard of Review
When more than one ground is asserted in a motion for summary judgment and the trial court does not specify the
grounds on which it rendered summary judgment, an appellant must challenge each ground asserted. See Malooly
Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Worldwide Asset Purchasing, LLC v. Rent-A-Center E., Inc.,
290 S.W.3d 554, 569 (Tex. App.-Dallas 2009, no pet.). If an appellant fails to challenge one of the grounds for
summary judgment, an appellate court may affirm the summary judgment on that ground alone. See Worldwide Asset,
290 S.W.3d at 569.
B. Application of the Law to the Facts
EPG and CDX moved for summary judgment, inter alia, on their affirmative defense that the counterclaims were
barred by the statute of frauds. EPG and CDX argued the Winns' “counterclaims” and Eustace Winn's “claims” were
barred by the statute of frauds.    See Footnote 3  They concluded this argument in the amended motion for summary
judgment stating, “Thus, [the Winns] [counter]claims that EPG promised to convey a 10% overriding interest,
regardless of the form of payment, is unenforceable under the statute of frauds and [EPG and CDX] are entitled to
summary judgment on [the Winns'] counterclaims.” Then, in footnote no. 3 of the amended motion for summary
judgment, under the section titled “[The Winns'] Tort and Statutory Counterclaims Fail as a Matter of Law,” EPG and
CDX argued “[a]s noted elsewhere herein, if the promise was that [Eustace] Winn was to receive a 10% override as
[the Winns] claim, such a promise would be barred by the statute of frauds and unenforceable.”    See Footnote 4
The Winns responded that EPG and CDX moved for summary judgment on the affirmative defense of the statute
of frauds, but they failed to plead the affirmative defense that the statute of frauds barred their counterclaims. Then,
EPG, CDX, Apache, and Rio filed a supplemental answer to the Winns' counterclaims asserting the affirmative
defense of the statute of frauds. Specifically, they asserted that:
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[EPG, CDX, Apache, and Rio] assert that [the Winns'] claims for a 10% interest in the nature of an override and/or any
other claims for any cash, profits, participation or royalty interest in the property owned by [Apache] are barred by the
statute of frauds.
In a written order, the trial court granted EPG and CDX's amended motion for summary judgment and the same
order states that during the hearing, the trial court “granted leave for all necessary amendments and supplements filed
as of the date of the hearing to be considered as part of the record for the hearing.” Apache and Rio moved for
conditional summary judgment on the same basis as EPG and CDX, which the trial court granted. The trial court's
orders granting summary judgment do not state the grounds on which summary judgment was granted. These orders
were incorporated into the trial court's final judgment.
On appeal, the Winns claim that the evidence raises a fact issue that EPG, CDX, Apache, and Rio made multiple
misrepresentations and omissions to Eustace Winn. Also, they argue that as a matter of law, EPG, CDX, Apache, and
Rio's plea in avoidance of ratification and affirmative defenses of waiver, disclaimer of reliance, merger clause,
mitigation, comparative fault, due diligence, and causation do not apply to claims for violations of the Texas and
Mississippi securities acts. Further, they argue the exemptions to the Texas and Mississippi securities acts do no
preclude their counterclaims. However, the Winns do not assert as error the granting of summary judgment on the
ground of the statute of frauds or provide argument negating EPG, CDX, Apache, and Rio's affirmative defense of the
statute of frauds.
As indicated above, the record reflects that one of the grounds supporting summary judgment asserted by EPG,
CDX, Apache, and Rio was that the Winns' counterclaims were barred by the statute of frauds. The Winns have not
raised before this Court any claimed error in granting the summary judgment on the basis of the affirmative defense of
statute of frauds, which was raised in EPG, CDX, Apache, and Rio's pleadings as well as being specifically identified
in their amended motion for summary judgment as a ground supporting summary judgment. Because the Winns do not
challenge every possible ground for the trial court's summary judgment on their counterclaims, we must conclude the
trial court did not err when it granted summary judgment in favor of EPG, CDX, Apache, and Rio on the Winns'
counterclaims for violations of the Texas and Mississippi securities acts.    See Footnote 5  See Worldwide Asset, 290
S.W.3d at 569.
Issue one is decided against the Winns.
C. On Motion for Rehearing
In their motion for rehearing, the Winns argue EPG, CDX, Apache, and Rio did not raise the statute of frauds in
their brief filed with this Court as a basis for finding the Winns “waived” error resulting from the trial court's order
granting summary judgment on the securities fraud counterclaims. The Winns contend this Court should not have
researched and developed the statute of frauds argument sua sponte. We cannot agree with the Winns' interpretation.
First, it was EPG, CDX, Apache, and Rio who raised the proposition that the Winns had not addressed all of the
defenses that EPG, CDX, Apache, and Rio had raised in the trial court. In fact, it is clear the Winns recognized that
they had not addressed all of the defenses in their opening brief because they stated in their reply brief that their
securities fraud claims are not barred by their “constructive knowledge of the misrepresentations and omissions” and
the defenses “are only applicable to common-law claims, not statutory securities fraud, and the Winns are no longer
pursuing any common-law claims.” Addressing the point in their reply brief is too late. The point was not properly
addressed by the Winns on appeal. See Dallas County v. Gonzales, 183 S.W.3d 94, 104 (Tex. App.-Dallas 20006, pet.
denied) (reply brief may not be used to raise new issues); see also Tex. R. App. P. 38.1(f), 38.3.
Second, even if EPG, CDX, Apache, and Rio had not addressed the issue in their brief on appeal, this Court's
conclusion did not advocate on their behalf or conclude the Winns' issue was “waived.” Rather, this Court applied the
appropriate standard of review, i.e., if an appellant fails to challenge one of the grounds for summary judgment, an
appellate court may affirm the summary judgment on that ground alone. We did not conclude the Winns' issue was
waived. Instead, we affirmed the trial court's judgment on an unchallenged ground. However, the Winns appear to
assert that EPG, CDX, Apache, and Rio had the burden to reassert and reargue the grounds urged in their motions for
summary judgment. We consider the Winns' argument to contend that if the unchallenged ground supporting the trial
court's judgment was not expressly reasserted by EPG, CDX, Apache, and Rio on appeal, the trial court's summary
judgment must be reversed based on the Winns' argument on appeal. While an appellee-movant may have the burden
of showing his entitlement to summary judgment in the face of properly assigned error by the appellant-nonmovant, he
does not have the burden of preserving for appellate review grounds that supported or may have supported the trial
court's judgment on which the appellant-nonmovant has assigned error. See Nat'l Cas. Co. v. Commonwealth Lloyds
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Ins. Co., No. 07-97-0419-CV, 1999 WL 314832, *2 (Tex. App.-Amarillo May 19, 1999, pet. denied) (op. on motion
for reh'g) (not designated for publication). Here, the trial court did not expressly render summary judgment on a
particular ground. In order to challenge the summary judgment, appellant was required to assign error and argue
against all the grounds presented to the trial court. See id. (emphasis in orig.).
III. DECLARATORY JUDGMENT
In issue two, the Winns argue that the trial court erred when it granted EPG, CDX, Apache, and Rio's request for
declaratory relief and attorneys' fees. EPG, CDX, Apache, and Rio respond that this issue is waived because the Winns
assert this argument for the first time on appeal. The Winns reply that they preserved this issue for appeal because the
argument presented in their motion to realign the parties is the same as their argument on appeal and the “Motion to
Realign Parties and the hearing on their motion was more than sufficient 'to make the trial court aware of their
complaint that the declaratory judgment was improper.' [citation omitted]”
A. Applicable Law
Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an appellate complaint. To
preserve a point for appellate review, a party must make a timely, specific objection or motion to the trial court that
states the grounds for the ruling sought with sufficient specificity, unless the grounds are apparent from the context,
obtain a ruling on the complaint, and comply with the rules of evidence or procedure. Tex. R. App. P. 33.1. Complaints
and arguments on appeal must correspond with the complaint made at the trial court level. Knapp v. Wilson N. Jones
Mem'l Hosp., 281 S.W.3d 163, 170 (Tex. App.-Dallas 2009, no pet.). To preserve an error for appeal, a party's
argument on appeal must comport with its argument in the trial court. Id. at 170-71.
B. Application of the Law to the Facts
EPG, CDX, Apache, and Rio requested a declaratory judgment that concluded: (1) the redemption agreement
between EPG and the Winns does not entitle the Winns to claim or receive any rights in real property not specifically
described in the redemption agreement; (2) EPG and CDX have performed all acts required of them under the
agreement; (3) the Winns have received from EPG, CDX, Apache, and Rio all the consideration to which they were
entitled under the terms of the agreement; and (4) the trust has no right to receive further consideration from EPG,
CDX, Apache, or Rio by way of money or property. They also sought an award of attorneys fees pursuant to sections
37.009 and 38.001 of the Texas Civil Practice and Remedies Code.
On appeal, the Winns argue that although EPG, CDX, Apache, and Rio “won the race to the courthouse,” their
request for a declaratory judgment is simply a defense to the Winns' counterclaims alleging they engaged in fraud,
breach of fiduciary duties, and other acts. The Winns argue that Texas law does not permit a party to present an
affirmative defense in the guise of a request for declaratory judgment in order to obtain attorneys' fees and expenses
that would otherwise be unavailable. According to the Winns, this point was raised before the trial court in their
motion to realign the parties. EPG, CDX, Apache, and Rio claim this argument was raised for the first time on appeal.
In their motion to realign the parties, the Winns argued, in part, as follows:
The current alignment does not accurately reflect the common interests and antagonistic interests between and among
the parties. Although [EPG, CDX, Apache, and Rio] originally filed suit, the Winns are the true claimants in this
matter. Specifically, [EPG, CDX, Apache, and Rio] filed a claim against the Winns seeking a declaratory judgment
that a particular Redemption Agreement did not entitle the Winns to an overriding royalty interest in certain property.
In response, the Winns filed counterclaims against [EPG, CDX, Apache, and Rio] . . . and alleged, among other things,
breach of contract, fraud in a stock transaction, Texas and Mississippi securities fraud, registration violations of the
Texas and Mississippi Securities acts, common law fraud, negligent misrepresentation, breach of fiduciary duty, and
negligence.
It has thus become clear that both [EPG, CDX, Apache, and Rio] . . . are actually joint Defendants, and the Winns are
the true Plaintiffs in this action. Therefore, the parties should be realigned so that their respective interests are properly
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described on the correct sides of the docket. . .
The Winns advise this Court that the trial court did not sign an order denying their motion to realign. However, they
claim the trial court's order granting EPG, CDX, Apache, and Rio's request for a declaratory judgment implicitly
overruled their request to realign the parties. See Tex. R. App. P. 33.1 (to preserve point for appellate review party
must obtain a ruling on complaint).
We conclude that the Winns' argument on appeal does not comport with the argument in their motion to realign
the parties. The motion to realign the parties only advised the trial court that the Winns claimed they were the real
plaintiffs in the lawsuit. That motion did not advise the trial court of the Winns' claim, as asserted on appeal, respecting
EPG, CDX, Apache, and Rio's request for a declaratory judgment. The record does not show the Winns made a timely,
specific objection or motion to the trial court that states the grounds for the ruling sought with sufficient specificity or
that they obtained a ruling on their complaint. See Tex. R. App. P. 33.1. Accordingly, we conclude the Winns have
failed to preserve this issue for appellate review.
Issue two is decided against the Winns.
IV. RELIEF GRANTED AND POST-JUDGMENT INTEREST
In issue three, the Winns argue the trial court erred when it signed the final judgment because (1) it awarded EPG,
CDX, Apache, and Rio relief for which they did not plead and (2) the post- judgment interest rate is wrong.
A. Relief Granted in the Final Judgment
The Winns claim the final judgment improperly (1) “details numerous percentages of ownership in various
interests that [they] were [] entitled to receive as consideration” and (2) states “[n]one of the 10% cash flow interest in
the nature of an override in any portion of the properties owned or ever owned by [CDX, Apache, or Rio].” EPG,
CDX, Apache, and Rio respond that the judgment's description of the consideration tracks the precise language
requested by the Winns in their response and objections to EPG, CDX, Apache, and Rio's motion for entry of a final
judgment, and the “interests” listed in the final judgment were specified in their amended motion for summary
judgment. Also, they respond that the Winns raise this issue for the first time on appeal when they complain of the
language stating they did not have an interest in the property.
1. Applicable Law
A party to a lawsuit cannot ask something of a trial court and then complain on appeal that the trial court
committed error in granting that party's request. See Ne. Tex. Motor Lines, Inc. v. Hodges, 158 S.W.2d 487, 488
(1942); Naguib v. Naguib, 137 S.W.3d 367, 375 (Tex. App.-Dallas 2004, pet. denied). This rule is grounded in even
justice and dictated by common sense. See Ne. Tex. Motor Lines, 138 Tex. at 282, 158 S.W.2d at 488; Naguib, 137
S.W.3d at 375. When the record on appeal conclusively establishes that the trial court entered its judgment in full
compliance with an appellant's request, all complaints by the appellant about the trial court's action in so doing are
foreclosed. See Naguib, 137 S.W.3d at 375.
Also, to preserve a point for appellate review, a party must make a timely, specific objection or motion to the trial
court that states the grounds for the ruling sought with sufficient specificity, unless the grounds are apparent from the
context, obtain a ruling on the complaint, and comply with the rules of evidence or procedure. Tex. R. App. P. 33.1.
2. Application of the Law to the Facts
In their response and objections to EPG, CDX, Apache, and Rio's motion for entry of a final judgment, the Winns
objected to the paragraph in the proposed final judgment setting out the consideration the Winns were entitled to
receive. Then, the Winns requested that the proposed final judgment be modified and provided the specific language
they asked the trial court to include in the final judgment. The portion of the final judgment setting out the
consideration the Winns were entitled to receive is identical to the language the Winns requested. The Winns cannot
complain on appeal that the trial court erred because the final judgment improperly sets out the consideration when the
Winns expressly requested the inclusion of that very language. See Naguib, 137 S.W.3d at 375
Also, the Winns complain that the pleadings do not support the statement in the final judgment that “[n]one of the
10% cash flow interest in the nature of an override in any portion of the properties owned or ever owned by [CDX,
Apache, or Rio].” However, the Winns did not object to this language in their response and objections to EPG, CDX,
Apache,and Rio's motion for entry of a final judgment or otherwise present this issue to the trial court after it signed
the final judgment. See Tex. R. App. P. 33.1. Accordingly, we conclude the Winns did not preserve this issue for
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appellate review.
The first portion of issue three is decided against the Winns.
B. Post-Judgment Interest
In a letter brief to this Court, the Winns concede that they failed to object to the excessive interest rate in the trial
court and this Court's opinion in Marauder Corp. v.Beall, 301 S.W.3d 817 (Tex. App.-Dallas 2009, no pet.) forecloses
their arguments regarding the correction of the post- judgment interest rate in the final judgment. Accordingly, we
need not consider the second portion of issue three.
V. CONCLUSION
The trial court did not err when it granted summary judgment in favor of EPG, CDX, Apache, and Rio because
the Winns do not challenge every possible ground for the trial court's summary judgment on their counterclaims. Also,
the Winns failed to preserve for appellate review their issue claiming that the trial court erred when it granted EPG,
CDX, Apache, and Rio's request for declaratory relief and attorneys' fees. The Winns cannot complain on appeal that
the final judgment improperly sets out the amount of consideration because they requested that specific language.
Further, the Winns failed to preserve for appellate review their complaint regarding the language in the final judgment
that states they did not have an interest in the property. Finally, the Winns have conceded their issue claiming that the
trial court erred when it awarded EPG, CDX, Apache, and Rio relief for which they did not plead and the post-
judgment interest rate is wrong.
The trial court's final judgment is affirmed.
The Winns' motion for rehearing is denied.
DOUGLAS S. LANG
JUSTICE
080716HF.P05
Footnote 1 The Winns also asserted third-party claims against Joe French & Associates, P.C., and Joseph J. French, Jr.,
alleging claims for fraud in a stock transaction, securities fraud pursuant to the Texas Securities Act, securities fraud
pursuant to the Mississippi Securities Act, registration violations of the Texas Securities Act, registration violations of
the Mississippi Securities Act, negligent misrepresentation, breach of fiduciary duty, common law fraud, and
negligence. These claimed were severed from the suit against EPG, CDX, Apache, and Rio.
Footnote 2 The Winns advise that a hearing was held on this motion, but the trial court did not enter an ordering
denying their motion to realign the parties.
Footnote 3 In their motion for rehearing, the Winns argue “[t]his statute-of-frauds ground does not even mention the
securities-fraud claims and was asserted to challenge the Winns' contract [counter]claims.” However, EPG and CDX
did not specify in their argument that their affirmative defense of the statute of frauds applied only to the Winns'
contract counterclaims. Instead, they refer to all of the Winns' counterclaims.
Footnote 4 In their motion for rehearing, the Winns argue that the section of EPG and CDX's amended motion for
summary judgment titled “[The Winns'] Tort and Statutory Counterclaims Fail as a Matter of Law,” “listed only three
grounds for granting summary judgment on the Winns' tort and statutory fraud claims. None of the three grounds even
mention the statute of frauds.” The Winns do not address footnote no. 3 in that section.
Footnote 5 In their motion for rehearing, the Winns argue that “the statute of frauds is not a defense to statutory
securities-fraud claims” and this “Court's ruling that the statute of frauds applies to statutory securities-fraud claims
nullifies the Legislature's intent and conflicts with the plain language of the Texas Securities Act.” However, we make
no ruling on the merits of EPG, CDX, Apache, and Rio's affirmative defense of the statute of frauds. We merely
conclude the trial court did not err because the Winns did not challenge all possible grounds on which the trial court's
judgment could have been based.
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