author: ADELE HEDGES, Chief Justice. KEM THOMPSON FROST, Justice,

text:
    In re HOUSTONIAN CAMPUS, L.L.C., Relator.
    No. 14-09-00631-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 16, 2010.
    Rehearing Overruled June 10, 2010.

      Andrew T. McKinney, IV, Houston, for appellant.
    David J. Sacks, Richard Haynes, Brian Weil Zimmerman, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices YATES and FROST.
   MAJORITY OPINION

ADELE HEDGES, Chief Justice.

In this mandamus proceeding, relator, Houstonian Campus, L.L.C. (“the Housto-nian”), complains of a discovery order requiring it to produce certain documents containing the identities of its members. See Tex. Govt. Code Ann. § 22.221 (Vernon 2004); see also Tex.R.App. P. 52. The Houstonian asks this court to compel the Honorable Judge Michael Gomez, presiding judge of the 129th District Court of Harris County, to set aside his discovery order of production signed June 18, 2009, or, alternatively, to instruct Judge Gomez to vacate his order as to specific production requests.

BACKGROUND

Deana Pollard Sacks, Real Party in Interest, filed a defamation suit against the Houstonian, a private members-only social and fitness facility, two named individuals, and Does 1-10 (Houstonian employees and/or members). Pollard Sacks alleged she was defamed by statements that she was guilty of reckless and dangerous driving and had made a racist comment. Also, Pollard Sacks alleged that by terminating her membership the Houstonian implied she had committed an act of serious misconduct or a crime. During discovery, Pollard Sacks propounded various requests for production. Ultimately, the Houstonian produced 1,713 pages of responsive documents, including complaints filed by club members. However, the Houstonian redacted the names of individual club members. The Houstonian objected to producing the names of the individual club members who filed the complaints, contending that (1) the names were not relevant to the defamation suit, (2) disclosure would violate its members’ privacy interests, and (3) disclosure violated the Houstonian’s right of association.

In response to the redactions, Pollard Sacks moved to compel the Houstonian to release the members’ names on the complaints and also moved for sanctions for redacting the names. The trial court subsequently signed an order compelling the production of the documents without the names redacted.

The Houstonian requests that we issue a writ of mandamus ordering Judge Gomez to reverse his decision on the Order to Compel Production of Documents and hold that the members’ names are confidential and irrelevant to Sacks’ causes of action. In its petition, the Houstonian claims that the trial court’s discovery order requires the Houstonian to produce documents that (1) contain private and sensitive information; (2) are not relevant; (3) are protected by the assoeiational rights by the First Amendment of the United States Constitution; and (4) encroach upon a private club’s interest in managing its own affairs.

DISCOVERY ORDER

Mandamus will issue to correct a discovery order if the order constitutes a clear abuse of discretion, and there is no adequate remedy by appeal. See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998); see also In re Maurer, 15 S.W.3d 256, 259 (Tex.App.-Houston [14th Dist.] 2000, orig. proceeding).

A. Abuse of Discretion

The Houstonian claims the discovery order constitutes an abuse of discretion because it is overly broad in that it requires the production of private and sensitive information neither relevant to the subject matter of the suit nor reasonably calculated to lead to the discovery of admissible evidence. While the scope of discovery is generally within the trial court’s discretion, the trial court must impose reasonable discovery limits. In re Graco Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex.2006) (per curiam). An order that compels discovery well outside the bounds of proper discovery is an abuse of discretion for which mandamus is the proper remedy. Id.

A party may obtain discovery of the contents of documents that constitute or contain matters relevant to the subject matter of the action. See Tex.R. Civ. P. 192.3(b). “Discovery is limited to matters relevant to the case.” Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 814 (Tex.1995). Discovery requests must be reasonably tailored to include only matters relevant to the case. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex.2003) (orig. proceeding); In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (orig. proceeding). It is not the burden of the responding party to tailor a reasonable discovery request for the requesting party. See In re Sears, Roebuck and Co., 146 S.W.3d 328, 333 (Tex.App.-Beaumont 2004, orig. proceeding). Rather, the requesting party has the responsibility to narrowly tailor its requests to produce. Id.

Although it involved a claim of product liability, not defamation, the case of In re Graco Children’s Prods., Inc., 210 S.W.3d at 600, is instructive. The court granted mandamus on the grounds that the discovery requests were impermissibly over-broad because they “were not reasonably tailored to the relevant product defect.” Id. at 601. As the court recognized, mandamus has been granted in products liability cases when a discovery order included (1) products the plaintiff never alleged they used, In re Am. Optical Corp., 988 S.W.2d at 713; (2) substances to which the plaintiffs never alleged exposure, Texaco, Inc. v. Sanderson, 898 S.W.2d at 814; and (3) vehicles without the fuel filler-neck that was allegedly defective, General Motors Corp. v. Lawrence, 651 S.W.2d 732, 734 (Tex.1983). As these authorities indicate, an order may constitute an abuse of discretion if it compels discovery of matters not relevant to the subject matter of the action.

In Sears, 146 S.W.3d at 334, the appellate court noted that only the asbestos-containing products to which the plaintiffs claimed their son had been indirectly exposed were involved in the lawsuit. The trial court’s order was erroneous because it required production of documents related to asbestos “without tying the discovery to the type of exposure ...” Id. Similarly, the trial court’s order in this case requires the disclosure of all names contained in the documents produced without tying the discovery to any issue related to the lawsuit.

In her suit, Pollard Sacks claims she was defamed by statements that she drove dangerously and recklessly and that she made a racist comment. Although we agree that the trial court could have reasonably concluded that the names of the members who made these alleged statements are relevant to the subject matter of the suit or reasonably calculated to lead to the discovery of admissible evidence, the order before this court did not order disclosure of just those members’ names. Instead, it orders disclosure of all the members’ names contained in all the documents produced and is therefore overbroad. The trial court is in a far better position than this court to determine which of the produced documents in fact relate to those statements and to tailor an order more narrowly drawn.

Pollard Sacks further claims she was defamed by the Houstonian by the act of terminating her membership. She asserts that the Houstonian has tolerated conduct by other members that is more egregious than that alleged of her in complaints and is known to only terminate membership for serious misconduct, such as crimes. The termination of her membership therefore implies the commission of an act of serious misconduct or a crime. This ground entitles Pollard Sacks to discover evidence of action taken, or not taken, by the Houstonian against other members about whom similar or more serious complaints were made. The identity of those members, however, is not relevant. Information is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the information. See Tex.R. Evid. 401. The identity of the other members does not make it more or less probable they received more favorable treatment than Pollard Sacks. The documents produced will reveal whether another member against whom a similar or more egregious complaint was filed received similar treatment, regardless of his or her identity.

The Houstonian has established that many of the names of the other members are not relevant to Pollard Sacks’s causes of action. Therefore, the trial court’s order to produce all the documents requested by Pollard Sacks without redaction of any names is overly broad because it compels discovery of matters that are not relevant to the case.

The trial court’s order is not reasonably tailored to the issues relevant to the pending case and is therefore outside the bounds of proper discovery. See In re CSX, Corp., 124 S.W.3d at 152-58. “When a discovery order fails to apply the rules of discovery, issuance of mandamus requiring the trial court to utilize those rules and procedures is appropriate.” In re Does 1-10, 242 S.W.3d 805, 819 (Tex.App.-Texarkana 2007, orig. proceeding). Because the trial court’s order requires production beyond that permitted by the rules of procedure, it constitutes a clear abuse of discretion. See In re Dana Corp., 138 S.W.3d 298, 301 (Tex.2004) (orig. proceeding). Accordingly, the Houstonian has established the trial court abused its discretion. We now must determine whether the Housto-nian has an adequate remedy on appeal.

B. Adequate Remedy on Appeal

In determining whether appeal is an adequate remedy, we consider whether the benefits of mandamus relief outweigh the detriments. In re Jacobs, 300 S.W.3d 35, 40 (Tex.App.-Houston [14th Dist.] 2009, orig. proceeding). Appeal is not an adequate remedy when the appellate court would not be able to cure the trial court’s discovery error. In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex.2009) (orig. proceeding). Furthermore, a party does not have an adequate remedy on appeal when a discovery order compels the production of patently irrelevant documents such that it clearly constitutes harassment or imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party. Walker v. Packer, 827 S.W.2d 833, 843 (Tex.1992).

As discussed above, the trial court’s order is not reasonably tailored to the issues relevant to the pending case and is therefore outside the bounds of proper discovery. Production of the documents without redaction would reveal the identities of an indeterminate number of the Houstonian’s members, most of whom are nonparties. This information is patently irrelevant to Pollard Sacks’s defamation suit, and disclosure of such irrelevant information would leave the Houstonian without remedy on appeal. In re Jacobs, 300 S.W.3d at 44-45 (finding no adequate remedy on appeal where trial court order compelled production of patently irrelevant documents).

Moreover, the redacted information that the trial court ordered disclosed is not only patently irrelevant, but highly personal and sensitive. The record before us reflects that the Houstonian’s personnel and membership files are kept in the strictest confidence, which includes reports and complaints made by individual members. Disclosure of the patently irrelevant — and highly private information — would violate confidences between the Houstonian and its members. Because the trial court’s order does not protect disclosure of the names of the members who have no connection to the underlying lawsuit, once their identities are revealed, any damage cannot be rectified. See In re Does 1-10, 242 S.W.3d at 811-12. Privacy once broken by the inspection and copying by an adversary cannot be retrieved. Accordingly, any error in disclosing the nonparties’ names cannot be cured on appeal. See In re Netherlands Ins. Co., No. 04-08-00815-CV, 2009 WL 962539, at *2 (Tex.App.-San Antonio 2009, orig. proceeding) (mem. op.) (citing Walker v. Packer, 827 S.W.2d at 843); see also In re Am. Optical Corp., 988 S.W.2d at 713.

Furthermore, the harm that the Housto-nian might suffer by revealing the members’ names on the complaints cannot be remedied on appeal. See In re Weekley Homes, 295 S.W.3d at 323 (reasoning that a party does not have an adequate remedy on appeal when a trial court’s order imposes a burden on the producing party far out of proportion to any benefit the requesting party may obtain); see also In re Jacobs, 300 S.W.3d at 44-45 (finding no adequate remedy on appeal where trial court order compelled production of patently irrelevant documents).

For the above reasons, we hold that the Houstonian has no adequate remedy on appeal. Because there is no adequate remedy by appeal, relator is entitled to relief by mandamus. Accordingly, we conditionally grant the writ of mandamus and direct the trial court to vacate its order compelling production of all requested documents without redaction of names. See Tex.R.App. P. 52.8(c). The writ will issue only if the trial court fails to comply.

FROST, J., concurring and dissenting.

KEM THOMPSON FROST, Justice,

concurring and dissenting.

Mandamus relief is not an all-or-nothing proposition. Appellate courts can and do grant mandamus as to part of a trial court’s discovery order and deny mandamus as to the part of the order in which the trial court did not abuse its discretion. See In re Carbo Ceramics, Inc., 81 S.W.3d 369, 379-80 (Tex.App.-Houston [14th Dist.] 2002, orig. proceeding) (granting mandamus as to part of trial court’s discovery order compelling production of one document and denying mandamus as to part of same order that compelled production of other documents); In re Brewer Leasing, Inc., 255 S.W.3d 708, 715-16 (Tex.App.Houston [1st Dist.] 2008, orig. proceeding [mand. denied]) (granting mandamus relief as to some of the documents the trial court required a party to produce in an order and denying mandamus relief as to other documents the trial court ordered the party to produce in that order). Even though the majority concludes that the trial court did not abuse its discretion in part of the discovery order, the majority grants mandamus relief as to the entire order. This court instead should grant relief only insofar as the trial court abused its discretion and deny relief insofar as the trial court did not abuse its discretion.

This mandamus proceeding arises out of a discovery dispute over the relator’s redaction of names from two groups of documents produced to the real party in interest. The trial court ordered the relator to produce unredacted copies of both groups. The relator is entitled to mandamus relief as to the second group, and I respectfully concur in this court’s decision to grant mandamus relief as to those documents. As to certain documents in the first group, however, the trial court did not abuse its discretion in ordering unredaeted copies produced, and I respectfully dissent to this court’s grant of mandamus relief as to those documents. The majority does not fully address whether the trial court clearly abused its discretion as to the first group. Rather, this court, relying on an argument not asserted by the relator, grants mandamus relief as to both groups based on an abuse-of-discretion finding as to only the second group. Instead of granting mandamus relief as to the entire order, this court should deny mandamus relief as to certain documents in the first group.

Overview of Operative Facts

Relator Houstonian Campus, L.L.C. (“The Houstonian”), a defendant in the underlying litigation, complains of a discovery order requiring it to produce unre-dacted copies of certain documents. Production of the unredacted documents would reveal the identities of some of The Houstonian’s members whose names were blacked out when these documents were produced. The Houstonian asks this court to compel the Honorable Michael Gomez, presiding judge of the 129th District Court of Harris County, to set aside his discovery order of June 18, 2009, or, alternatively, to instruct Judge Gomez to vacate his order as to one of the two groups of documents. See Tex. Gov’t Code Ann. § 22.221 (Vernon 2004); see also Tex.R.App. P. 52.

Requests for Production of Documents

Real party in interest Deana Pollard Sacks, the plaintiff in the underlying suit, is asserting defamation claims against The Houstonian, a members-only social and fitness club. Sacks also has filed defamation claims against two named individuals and “Does 1-10.” The defamation claims relate to the termination of Sacks’s membership with The Houstonian. During discovery, Sacks propounded various requests for production. Ultimately, The Houstoni-an produced 1,718 pages of responsive documents; however, The Houstonian redacted from these documents all references to the names of individual club members. These redacted documents fall into two groups. One group includes complaints and other documents involving or arising from Saeks’s membership at The Housto-nian (hereinafter “First Group”). The other group includes documents relating to (1) all parking garage incidents or accidents during the previous five years, (2) all complaints filed with The Houstonian by its members during the previous five years, (3) all members of The Houstonian whose memberships were terminated, whether voluntarily or involuntarily, during the previous five years, and (4) all incidents of sexual activity, drunkenness, and illegal drug transactions on the premises of The Houstonian during the previous five years (hereinafter “Second Group”).

The Houstonian’s Objections to Production of Unredacted Documents

Regarding the First Group, The Housto-nian objected to revealing the names of the individual club members who filed the complaints about Sacks, and, prior to production, The Houstonian redacted these names on documents relating to these complaints. Because these names are redacted, the record does not reflect how many members made these complaints; however, in its discovery objections, The Houstonian represented that the names of four individual members had been redacted from these ten pages of documents (hereinafter “Complaint Documents”). The Houstonian asserted that these four members had a reasonable expectation of privacy when they made their complaints. The Houstonian stated that, if it were to disclose the names of these four members, then Sacks likely would add these members as defendants in this suit. The Hous-tonian argued that any such suit would lack merit because there is no evidence that the complaints by the four members were ever published to third parties.

As to the First Group and the Second Group, The Houstonian redacted the names of its members based on the following stated objections: (1) the members’ alleged right to privacy under their contracts with The Houstonian, (2) the members’ alleged general right to privacy, (3) the members’ right to freedom of association, and (4) the alleged irrelevance of the names of these members because they are not reasonably calculated to lead to the discovery of admissible evidence. As to the Second Group, The Houstonian asserted additional objections, including an objection that these requests were overly broad.

Trial Court’s Order Compelling Production of Unredacted Documents

In response to the redactions, Sacks moved to compel The Houstonian to reveal the members’ names on the complaints and also moved for sanctions for redacting the names. The trial court subsequently agreed with Sacks as to the disclosure of names and signed an order compelling the production of the documents without the names redacted.

The Houstonian then filed a motion for clarification. In this motion, The Housto-nian noted that the redacted documents it produced can be classified into two groups (the First Group and the Second Group) and that it believed the trial court’s order applied only to the documents in the First Group, which The Houstonian acknowledged are “reasonably related to the pending litigation.” The Houstonian noted that the Second Group contains complaints and information that are completely unrelated to Sacks’s lawsuit. The Houstonian asked the trial court to clarify that its order applied only to the First Group and not to the Second Group. The trial court stated that its order applied to all of the documents.

Arguments Asserted and Relief Requested in Mandamus Petition

In its petition for mandamus, The Hous-tonian asks this court to grant mandamus relief against Judge Gomez by instructing him to vacate his decision ordering The Houstonian to disclose the names of its members contained in the First Group and the Second Group and to hold that these names are confidential and irrelevant to Sacks’s claims. In the alternative, The Houstonian requests that this court instruct Judge Gomez to exclude the Second Group from his order compelling production because the requests to which those documents are responsive are overly broad as a matter of law.

In its mandamus petition, The Houstoni-an asserts that it has no adequate appellate remedy and that the trial court clearly abused its discretion by ruling that the member names should be produced, even though this information (1) is private and sensitive; (2) is not relevant and not reasonably calculated to lead to the discovery of admissible evidence; and (3) is protected by the members’ associational rights under the First Amendment of the United States Constitution. The Houstonian also asserts that the production of this information would encroach upon its interest as a private club in managing its own affairs. In the alternative, The Houstonian asks this court to grant mandamus vacating the trial court’s order as to the Second Group only.

Standard of Review

Mandamus will issue to correct a trial court’s discovery ruling if the relator shows that the ruling constitutes a clear abuse of discretion and that there is no adequate appellate remedy. See In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex.1998) (orig. proceeding); see also In re Maurer, 15 S.W.3d 256, 259 (Tex.App.Houston [14th Dist.] 2000, orig. proceeding). The Houstonian, as relator, has the burden of presenting a record and petition that show it is entitled to mandamus relief to correct a clear abuse of discretion by the trial court. See Tex.R.App. P. 52.3, 52.7; Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992) (orig. proceeding); In re Nelson, No. 14-04-00578-CV, 2004 WL 1516156, at *1 (Tex.App.-Houston [14th Dist.] July 8, 2004, orig. proceeding) (mem. op.). The inquiry mandated by precedent is whether The Houstonian, as relator, has established its entitlement to the extraordinary relief of a writ of mandamus, not whether the real party in interest (Sacks) has shown that The Houstonian is not entitled to mandamus relief. See Canadian Helicopters, Ltd., 876 S.W.2d at 305; In re Yamin, No. 14-07-01035-CV, 2008 WL 442575, at *1 (Tex.App.-Houston [14th Dist.] Feb. 19, 2008, orig. proceeding) (mem. op.).

Analysis as to the Complaint Documents

With respect to the Complaint Documents, The Houstonian argues the trial court abused its discretion by overruling its objections that the names of the four members who filed written complaints regarding Sacks are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. In her live pleading, Sacks has sued various Doe defendants whose names she does not know, but who, she alleges on information and belief, have made false and defamatory complaints against her. Under a liberal construction of this pleading, Sacks alleges that these Doe defendants published false and defamatory statements about her to third parties. Discovery regarding the members who have complained about Sacks might not yield evidence sufficient to raise a fact issue as to whether these individuals defamed Sacks. Nonetheless, on this record, the trial court did not abuse its discretion to the extent it concluded that the discovery of the names of these members is reasonably calculated to lead to the discovery of admissible evidence. See Giffin v. Smith, 688 S.W.2d 112, 113-14 (Tex.1985) (orig. proceeding) (per cu-riam) (conditionally granting mandamus relief ordering discovery of the identities of persons having knowledge relating to plaintiffs slander claim and compelling answers to questions regarding potentially slanderous communications); In re Maurer, 15 S.W.3d at 261 (denying mandamus as to discovery of names of individuals involved in incident who might have defamed the claimants who already were asserting defamation claims against other parties). Indeed, in the trial court, The Houstonian itself characterized these documents as “reasonably related to the pending litigation.”

The Houstonian has not shown that the trial court abused its discretion by ordering discovery of the names of members who made complaints against Sacks, over The Houstonian’s objection that the names of these members are private and sensitive information.

Freedom of association for the purpose of advancing ideas and airing grievances is a fundamental liberty guaranteed by the First Amendment. In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 871, 375 (Tex.1998) (orig. proceeding). The First Amendment requires that a compelling state interest be shown before a court may order disclosure of membership in an organization engaged in the advocacy of particular beliefs. Id. The Houstonian has not asserted in this original proceeding (or in the court below) that it is an organization engaged in the advocacy of particular beliefs, and The Housto-nian did not prove this fact as a matter of law in the trial court. In addition, The Houstonian concedes in its petition that this case does not involve state action. The Houstonian has not shown itself entitled to mandamus relief based on the First Amendment.

The Houstonian asserts in this court that by compelling disclosure of member names the trial court improperly encroached upon its interest as a private club in managing its own affairs. The Housto-nian did not object to the discovery on this basis in the trial court. Though the trial court gave The Houstonian until June 2, 2009, to file objections to the discovery in question, the trial court did not conclude that there was good cause to excuse The Houstonian’s failure to assert any objections after that date. See Tex.R. Civ. P. 198.2. Therefore, The Houstonian waived that objection. See id.; Bielamowicz v. Cedar Hill Indep. Sch. Dist., 136 S.W.3d 718, 723 (Tex.App.-Dallas 2004, pet. denied).

The Houstonian’s arguments as to the Complaint Documents lack merit. The trial court did not abuse its discretion in compelling the production of these documents in unredacted form. The majority errs in its analysis to the extent it grants mandamus relief and orders the trial court to vacate its order as to the Complaint Documents.

Analysis as to the Remaining Documents

The remaining issue is whether mandamus relief should be granted as to the Second Group and the redacted names in the First Group that are not in the Complaint Documents (collectively the “Remaining Documents”). In arguing for nondisclosure, The Houstonian claims that the trial court clearly abused its discretion by compelling production of private and sensitive information which , The Houstonian claims is neither relevant to the subject matter of the suit nor reasonably calculated to lead to the discovery of admissible evidence. Though the scope of discovery is generally within the trial court’s discretion, an order that compels discovery well outside the bounds of proper discovery is an abuse of discretion for which mandamus is the proper remedy. See In re Graco Children’s Prods., Inc., 210 S.W.3d 598, 600 (Tex.2006) (orig. proceeding) (per cu-riam). A party may obtain discovery of the contents of documents that constitute or contain matters relevant to the subject matter.of the action; however, it is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. See Tex.R. Giv. P. 192.3(a). Each discovery request must be tailored to include only matters reasonably calculated to lead to the discovery of admissible evidence. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex.2003) (orig. proceeding); In re Am. Optical Corp., 988 S.W.2d 711, 713 (Tex.1998) (orig.proeeeding). It is not the burden of the responding party to tailor a reasonable discovery request for the requesting party. See In re Sears, Roebuck and Co., 146 S.W.3d 328, 333 (Tex.App.Beaumont 2004,. orig. proceeding). Rather, the requesting party has the responsibility to narrowly tailor each of its requests for production. Id.

Abuse of Discretion

On this record, the trial court abused its discretion to the extent it found that the member names in the Remaining Documents are relevant or reasonably calculated to lead to the discovery of admissible evidence. Likewise, the trial court clearly abused its discretion by ordering The Houstonian to produce the Remaining Documents in unredacted form. This portion of the trial court’s order is not reasonably tailored to the issues in the pending case and is therefore outside the bounds of proper discovery. See In re Dana Corp., 138 S.W.3d 298, 301 (Tex.2004) (orig. proceeding); In re CSX, Corp., 124 S.W.3d at 152-53. Accordingly, as to the redacted documents other than the Complaint Documents, The Houstonian has established that the trial court clearly abused its discretion. Thus, the next issue in the mandamus inquiry is whether The Houstonian has an adequate appellate remedy.

Adequate Remedy on Appeal Whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of the costs and benefits of interlocutory review. See In re McAllen Medical Center, Inc., 275 S.W.3d 458, 464 (Tex.2008) (orig. proceeding). As this balance depends heavily on circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories. See id. Appeal is not an adequate remedy when the appellate court would not be able to cure the trial court’s discovery error. In re Weekley Homes, L.P., 295 S.W.3d 309, 322 (Tex.2009) (orig. proceeding).

As noted above, the trial court’s order is not reasonably tailored to the issues relevant to the pending case and thus falls outside the bounds of proper discovery. Production of these documents without redaction would reveal the identities of an indeterminate number of The Houstonian’s members, most of whom are nonparties. The requests for production regarding these documents are overly broad. There is no adequate appellate remedy as to the order compelling production of the Remaining Documents in unredacted form. See In re Dana Corp., 138 S.W.3d at 301-02. Because there is no adequate remedy by appeal, The Houstonian is entitled to relief by mandamus.

Conclusion

Instead of granting mandamus as to all of the trial court’s order, this court should deny mandamus relief as to the Complaint Documents and conditionally grant mandamus relief as to the Remaining Documents. Though I concur in the court’s decision to grant mandamus relief as to the Remaining Documents, I disagree with the majority’s analysis and disposition of relator’s request for relief. This court should direct the trial court to vacate its order only as to the Remaining Documents. To the extent the court directs the trial court to vacate its order as to the Complaint Documents, I respectfully dissent.

      . We refer to Pollard Sacks’s Original Petition which was before the trial court at the time the order at issue was signed.

      . In its discovery order, the trial court indicated that "nothing in this order precludes redaction of personal identifiers (i.e. social security [and] driver’s license numbers). In addition, the Court requests the parties submit to the Court an agreed protection order ... maintaining the confidentiality] of the documents as to third-parties, if ... the documents contain allegations of a sensitive and confidential nature.”

      . The dissent would order disclosure of all the names in the documents produced in the First Group based on this cause of action. The documents in the First Group, however, contain the names of more members than the four who allegedly made these defamatory statements.

      . Some of the documents produced are patently irrelevant. For example, one document concerns the size of the work-out towels.

      . Pollard Sacks also argues that the Houstoni-an has waived any legal objection to producing unredacted copies of documents that it has produced voluntarily, albeit in redacted form. We agree with Pollard Sacks to the extent that the Houstonian waived other objections when it voluntarily produced the documents. However, the Houstonian expressly objected to disclosing the names of its members. By producing the documents with the names redacted it complied "with as much of the request to which the party [had] no objection.” Tex.R. Civ. P. 193.2(b). A party is required to produce what is discoverable when only part of a request is objectionable. See In re Cl Host Inc., 92 S.W.3d 514, 516 (Tex.2002) (orig. proceeding). A response in accordance with the rules does not constitute waiver of the objection.
      Pollard Sacks further claims the Houstoni-an does not have a "legal” objection to disclosing the names of its members. As the cases already discussed demonstrate, a lack of relevance to the claims raised is a proper objection to an overly broad request.

      . Because we conditionally grant mandamus relief on the relevancy ground, we need not address the Houstonian's alternative argument for relief.

      . These documents were produced in response to requests for production numbers 1, 2, 6, 7, 8, 9, 11, and 12.

      . These documents were produced in response to requests for production numbers 3, 4, 5, 10, 13, 14, 15, and 16.

      . The ten pages of documents that fall into this category are contained in Exhibit 48 of the mandamus record, page numbers 113-14, 119, 121-24, and 137-39.

      . In its discovery order, the trial court indicated that "nothing in this order precludes redaction of personal identifiers (i.e. social security [and] driver’s license numbers). In addition, the Court requests the parties submit to the Court an agreed protection order ... maintaining the confidentiality] of the documents as to third-parties, if ... the documents contain allegations of a sensitive and confidential nature.”

      . The Houstonian does not argue that the trial court abused its discretion because some of the names the court ordered The Houstonian to produce are discoverable while other names the court ordered The Houstonian to produce are not discoverable. Indeed, in its alternative request for relief, The Houstonian asserts that, if this court concludes that the trial court did not abuse its discretion as to the First Group, this court should grant mandamus in part and vacate the part of the order pertaining to the Second Group. This alternative request is contrary to an argument that error only as to the Second Group would entitle The Houstonian to mandamus as to the entire order. Nonetheless, the majority concludes that, although the trial court did not abuse its discretion in ordering disclosure of some of the names, the fact that it ordered disclosure of all of the names renders the order "overbroad” such that this court must grant mandamus as to the whole order. See ante at pp. 182-83. The Houstonian has not made this argument, nor has The Houstonian requested this relief. ■

      . Notably, the majority does not conclude that the trial court properly ordered disclosure of the names of all four members whose names were redacted in the Complaint Documents. Rather, the majority concludes that the trial court did not abuse its discretion by ordering the disclosure of the names of the member or members who complained that Sacks drove recklessly and made a racist comment. See ante at pp. 182-83. The majority does not address whether the trial court abused its discretion in ordering the disclosure of the other names in the Complaint Documents. Though this court grants mandamus relief vacating the entire order, the majority does not address whether the trial court abused its discretion as to all the Complaint Documents, even though The Houstonian acknowledged in the trial court that these documents are related to the pending claims.

      . The majority states that "the trial court is in a far better position than this court to determine which of the produced documents in fact relate to [certain] statements and to tailor an order more narrowly drawn.” Ante at p. 182. However, we are not presented with a situation in which the documents have yet to be produced or identified or in which the nature or purpose of the redactions is unknown. All of the Complaint Documents have been produced, and the nature of the redactions (names of individuals making complaints against Sacks) is known to all parties, the trial court, and this court. The only thing in issue is the redaction of names on these ten pages. Because these pages already have been produced in redacted form, no in camera inspection or additional hearing is required to resolve this issue. Likewise, this court can rule that certain documents in the First Group can remain redacted just as clearly and easily as the trial court.

      . The majority states that "the record before us reflects that The Houstonian’s personnel and membership files are kept in the strictest confidence, which includes reports and complaints made by individual members.” The record does not support this statement. Instead, the record reflects that the membership contracts and The Houstonian’s Rules and Regulations do not state that complaints and grievances will be kept confidential.

      . Sacks argues, among other things, that The Houstonian is not a private club. It is not necessary to address this issue in this mandamus proceeding.

      . The majority concludes that mandamus should be granted as to the entire order even though the trial court did not abuse its discretion in the part of the order compelling disclosure of certain names by the production of unredacted documents. See ante at pp. 182-83. The majority cites no authority for this proposition, and it is not a correct statement of Texas law. See In re Brewer Leasing, Inc., 255 S.W.3d 708, 715-16; In re Carbo Ceramics, Inc., 81 S.W.3d at 379-80. In addition, though the majority states that some of the names are discoverable, the majority also makes statements indicating that none of the names are discoverable. See, e.g., ante at p. 183 ("Production of the documents without redaction would reveal the identities of an indeterminate number of the Houstonian's members ... [t]his information is patently irrelevant to Pollard Sack’s defamation suit”), p. 184 n. 6 (stating that the court has "conditionally grant[ed] mandamus relief on the relevancy ground”).

      . At one point in its petition, The Houstoni-an asserts that the trial court’s order is "overly broad.” However, The Houstonian explains that it is arguing the order is overly .broad because the order "requires the production of documents that bear no relation to the facts and claims in Plaintiff's Original Petition.” The Houstonian does not argue that the order is overly broad because the trial court orders the disclosure of some names that are discoverable and of some names that are not discoverable. The Hous-tonian argues that the order is overly broad because the trial court requires production of unredacted documents in response to overly broad requests for production, not because part of the order is subject to mandamus and part of it is not.

      . Sacks also argues that The Houstonian has waived any objection to producing unredact-ed copies of documents that it has produced voluntarily, albeit in redacted form. Sacks is correct to the extent that The Houstonian waived other objections when it voluntarily produced the documents. However, The Houstonian expressly objected to disclosing the names of its members. By producing the documents with the names redacted, The Houstonian complied "with as much of the request to which the party [had] no objection.” Tex.R. Civ. P. 193.2(b). A party is required to produce what is discoverable when only part of a request is objectionable. See In re Cl Host Inc., 92 S.W.3d 514, 516 (Tex.2002) (orig. proceeding). A response in accordance with the rules does not constitute waiver of the objection. Sacks further claims The Houstonian does not have a "legal” objection to disclosing the names of its members. However, The Houstonian objected to these documents on the ground that the requests were overly broad.


source: Caselaw Access Project

author: CHARLES W. SEYMORE, Justice.

license: Public Domain

text:
    Pepper LEE, Appellant, v. Leland DYKES, Appellee.
    No. 14-08-00488-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 27, 2010.

      Ralphael V. Wilkins, Houston, for appellant.
    Thi Anh Tran, Charles Lee Daugherty, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
   OPINION

CHARLES W. SEYMORE, Justice.

Pepper Lee appeals the portion of a final judgment awarding appellee, Leland Dykes, $13,000 for conversion damages. Lee contends the evidence is legally and factually insufficient to support the jury’s finding that Dykes sustained damages in this amount. Because we agree the evidence is legally insufficient to support the jury’s finding, we reverse and render with respect to the award of damages for conversion and affirm the remainder of the judgment.

I. Background

According to Dykes, in January 2005, he and Lee became engaged to be married. Dykes gave Lee a diamond ring, which he considered “predicated” on their impending marriage and not a gift. Dykes also paid the down payment, monthly payments, insurance premiums, and taxes on a home purchased in Lee’s name. Both parties signed a document entitled, “Property Agreement/Financial Responsibility” (“the property agreement”), which provided, “[i]n the event of incompatibility in the relationship ..., [Dykes] will assume the financial responsibility of [the property] and will be added to the ownership and continues possession so as to release [Lee] for homestead rights.” Their relationship ended on May 15, 2006; however, according to Dykes, Lee refused to return the ring and give Dykes possession and part ownership of the property.

Dykes sued Lee for breach of contract, fraud, and conversion, among other claims. Dykes requested damages and equitable relief including imposition of a trust and equitable lien on the real property. Lee filed a counterclaim for various causes of action.

A jury found as follows: Lee did not fail to comply with the property agreement; Lee did not commit fraud; Dykes expended $110,000 for purchase of the real property; Dykes gave Lee the ring “upon the condition” that they marry; Lee ended the engagement on May 15, 2006; and “reasonable cash market value” of the ring on that date in Harris County, Texas was $13,000. The jury also found in Dykes’s favor on Lee’s counterclaim. .

On April 1, 2008, the trial court signed a final judgment awarding Dykes $123,000 in damages, representing $110,000 relative to the real property and $13,000 for conversion of the ring. The trial court also imposed a resulting trust and equitable lien against the real property relative to the $110,000 Dykes expended thereon and ordered foreclosure of the lien. The trial court ordered that Lee take nothing on her counterclaim. Lee filed a motion for new trial, which the trial court denied by written order.

II. Analysis

Lee originally presented four issues, challenging the money judgment for $123,000 in Dykes’s favor. In her first and fourth issues, Lee attacked the portion of the total damages award representing $110,000 relative to the real property, arguing the jury made no liability findings to support such an award. However, after Lee filed her brief, Dykes filed a release of judgment relative to this $110,000 in damages. Accordingly, Lee’s issues challenge this award are now moot. We will affirm the judgment relative to the $110,000 in damages, recognizing it has been released.

Lee’s remaining complaints pertain to the $13,000 portion of the damages award imposed for conversion of the ring. In her second and third issues, Lee contends the evidence is legally and factually insufficient to support the jury’s finding that reasonable cash market value of the ring on or about May 15, 2006 in Harris County was $13,000. Lee objected to submission of this jury question on the ground there was no evidence of market value of the ring. For the reasons explained below, we agree there was no evidence to support the jury’s finding.

A. Standard of Review

When examining a legal-sufficiency challenge, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. Id. at 827. There is “no evidence” or legally-insufficient evidence when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. See id. at 810; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. City of Keller, 168 S.W.3d at 827.

B. Conversion Damages

The only evidence Dykes offered to prove reasonable cash market value of the ring on May 15, 2006 in Harris County, Texas was his testimony that he purchased it for $26,000 in December 2004 from a jeweler in Houston. Dykes contends this testimony regarding purchase price established market value at the time of conversion and thus supported the jury’s award of a lower amount. In contrast, Lee contends this testimony was not evidence of market value at the time of conversion.

Preliminarily, we note that, under Texas law, “fair market value” is defined as “the price the property will bring when offered for sale by one who desires to sell, but is not obliged to sell, and is bought by one who desires to buy, but is under no necessity of buying.” Exxon Corp. v. Middleton, 613 S.W.2d 240, 246 (Tex.1981); Taiwan Shrimp Farm Village Ass’n v. U.S.A. Shrimp Farm Dev., Inc., 915 S.W.2d 61, 71 (Tex.App.-Corpus Christi 1996, writ denied) (applying similar definition in conversion case). In the present case, no legal definition of “reasonable cash market value” was submitted to the jury, and neither party cites any portion of the record showing an objection to lack of, or a request for, such a definition. Additionally, the jury was instructed, “[w]hen words are used in this charge in a sense that varies from the meaning commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other meaning.” Therefore, we measure sufficiency of the evidence against the commonly-understood meaning of “reasonable cash market value.” See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000) (holding, when no objection is made to jury issue, sufficiency of evidence is measured against charge given by court rather than some other unidentified law).

Nonetheless, we conclude that the commonly-understood meaning of “reasonable cash market value” is similar to the legal definition of “fair market value”; i.e., the amount the owner could realize on the “market.” Accordingly, cases addressing sufficiency of the evidence under the legal definition of “fair market value” are persuasive in this case. See Kroger Co. v. Brown, 267 S.W.3d 320, 322-23 (Tex.App.Houston [14th Dist.] 2008, no pet.) (citing cases considering sufficiency of evidence to support “disfigurement” finding under legal definition despite reviewing jury finding of “disfigurement” under commonly-understood meaning because legal definition and commonly-understood meaning were similar).

Several courts, including the Texas Supreme Court, have indicated that, not only is purchase price generally inadmissible to prove subsequent market value, but it does not constitute evidence of market value even if admitted. In Redman Homes, Inc. v. Ivy, 901 S.W.2d 676, 679 (Tex.App.-El Paso 1995), rev’d, in part, on other grounds by Redman Homes, Inc. v. Ivy, 920 S.W.2d 664 (Tex.1996), the owners of a mobile home sued the manufacturer, alleging faulty wiring caused a fire which destroyed the home and its contents. The measure of damages for both the home and its contents was the difference in market value of the property immediately before and after the loss. Id. at 685. The defendant argued the evidence was legally and factually insufficient to support the jury’s finding that the owners sustained property damage totaling $79,000. See id. at 685-86.

The only evidence offered to prove value of the home immediately before the fire was the owner’s testimony that he purchased it for $43,000 ten months before the fire. Id. at 685. The court stated,

The historical cost of the home, however, has little bearing on its market value immediately before the fire. Indeed, purchase price is ordinarily not even admissible to show market value at a particular later time.... Competent evidence of the value of the mobile home will refer both to its market value, as defined above, and will reflect the proper temporal specificity.

Id. (citing Rosenfield v. White, 267 S.W.2d 596, 601 (Tex.Civ.App.-Dallas 1954, writ ref'd n.r.e.); San Antonio Public Serv. Co. v. Murray, 59 S.W.2d 851, 854 (Tex.Civ.App.-Beaumont 1933), writ dism’d by 127 Tex. 77, 90 S.W.2d 830 (1936)).

Nevertheless, the jury was asked to assess aggregate damages for both the home and its contents in a single issue, and the owners presented testimony sufficient to establish market value of the contents. Id. at 685-86 & n. 8. Thus, the evidence was legally sufficient to support the jury’s finding that the owners sustained some damages. Id. at 686. The owners’ failure to present evidence of damages to the home factored into the court’s factual-sufficiency analysis. See id. at 686 & n. 8. The court held the evidence was factually insufficient to support the damages award of $79,000 because the contents were valued at only $46,605, but there was no competent evidence regarding market value of the home. See id.

When upholding the court of appeals’s legal-sufficiency conclusion, the Texas Supreme Court stated, “[The defendant] argues, and the [owners] concede, that his statements about the cost of the home were not admissible to show its market value at the time of the loss.” Redman Homes, 920 S.W.2d at 668 (citing Rosenfield, 267 S.W.2d at 601; Murray, 59 S.W.2d at 854). We recognize the supreme court did not directly state that purchase price alone is legally insufficient to establish market value of property at a later date. See id. at 668-69. In fact, the court’s above-cited quote was framed as though the case presented merely an issue on admission of evidence. See id. at 668. However, the court of appeals expressly noted that the defendant did not challenge admissibility of evidence regarding historical cost of the home, but instead the only issue presented was sufficiency of evidence to support the jury’s assessment of damages. See Redman Homes, 901 S.W.2d at 685 n. 6. The supreme court implicitly recognized that the owners presented no evidence regarding market value of the home because the court explained it would be required to render judgment for the defendant, rather than remand, if it determined the owners presented no evidence regarding market value of the contents. See Redman Homes, 920 S.W.2d at 668-69.

Accordingly, we construe Redman Homes as authority from the Texas Supreme Court that purchase price alone is legally insufficient to establish market value of property at a later date. See id.; see also Dolenz v. Sorensen, No. 05-95-00447-CV, 1996 WL 729923, at *7-8 (Tex.App.Dallas Dec. 06, 1996, no writ.) (citing lower court’s Redman Homes opinion when stating “[e]vidence of purchase price is not competent evidence of market value” and holding testimony regarding previous cost of boat did not constitute evidence of market value at time of trial); Winkle Chevy-Olds-Pontiac, Inc. v. Condon, 830 S.W.2d 740, 745 n. 5 (Tex.App.-Corpus Christi 1992, writ dism’d) (noting, pre-Redman Homes, that “Texas law holds the price the injured party paid for chattel is not determinate of its fair market value for conversion purposes.”); 15 Tex. Jur. 3rd Conversion § 69 (citing Condon and stating that generally measure of compensatory damages for conversion is fair market value of property at time of conversion and not “the price the plaintiff paid for the personalty”).

In contrast, Dykes asserts that we “need only look at” Burns v. Rochon, 190 S.W.3d 263 (Tex.App.-Houston [1st Dist.] 2006, no pet.). In Bums, the court held that the owner’s testimony regarding the price he previously paid for certain equipment was legally and factually sufficient to support the trial court’s finding he sustained conversion damages in the same amount when the defendant did not object to the testimony or present controverting evidence of market value. Id. at 271. Therefore, at first glance, Bums supports Dykes’s position. See id. However, we disagree that the authority cited therein supports the court’s holding. The court stated, “[i]n determining both fair market value and actual value, courts have considered the purchase price paid by an owner, particularly when evidence of the purchase price is neither objected to nor controverted.” Id. at 270 (citing Wutke v. Yolton, 71 5.W.2d 549, 552 (Tex.Civ.App.-Beaumont 1934, writ ref'd); Murray, 59 S.W.2d at 854). In the cited cases, the courts indeed considered the purchase price but did not hold that price was alone sufficient to prove market value at a later date.

Specifically, the Wutke court concluded that evidence regarding the amount the plaintiff paid for certain furniture several years before the date of the conversion was admissible on the issue of actual value. 71 S.W.2d at 552. However, the court continued,

When goods of this character are destroyed, a proper method of arriving at their value at the time of loss is to take into consideration the cost of the articles, the extent of their use, whether worn or out of date, their condition at the time, etc., and for them to determine what they were fairly worth. The cost alone would not be the correct criterion for the present value, but it would be difficult to estimate the value of such goods, except by reference to the former price in connection with wear, depreciation, change of style, and present condition.

Id. (emphasis added) (quoting Wells, Fargo Express Co. v. Williams, 71 S.W. 314, 315 (Tex.Civ.App.1902, no writ)).

In Murray, the defendant apparently argued that the trial court erred by permitting the plaintiff to testify regarding purchase price of his vehicle three-and-a-half years before the accident in which it was damaged. 59 S.W.2d at 854. The court of appeals stated, “The general rule is that ‘testimony as to the cost of or price paid by the owner for real or personal property is not admissible on an issue as to its market value, especially when remote in point of time, or where it was purchased at another place.’ ” Id. (quoting 17 Tex. Jur. 442). However, the court held this “proposition cannot avail” the defendant because he did not object at trial on the ground the purchase was too remote in time or place and his objection that the testimony was immaterial and irrelevant lacked merit. Id.

The Murray court’s holding is not exactly clear. Although the court recited the “general rule” that purchase price is inadmissible to prove market value, it seemed to suggest price may be admitted to establish market value if the opponent does not object on the ground the purchase was too remote in time or place. See id. Nevertheless, the Murray court addressed only an admission-of-evidence issue and not a legal-sufficiency challenge. See id. Further, although damages were awarded based on market value of the vehicle, the court did not specify whether any evidence in addition to purchase price was presented to establish market value. See id.

Therefore, we respectfully disagree with the Bums court, as well as some other courts, citing Murray for the proposition that purchase price alone, if admitted without objection or uncontroverted, is legally sufficient to prove an item’s market value at a later date. See Burns, 190 S.W.3d at 270 (citing Murray, 59 S.W.2d at 854); see also Marley v. Wallace, No. 12-01-00225-CV, 2002 WL 31761150, at *2-3 (Tex.App.Tyler Dec. 11, 2002, no pet.) (not designated for publication) (citing Murray when stating purchase price may be related “tenuously” to market value at a later time, but when admitted without objection, it alone provides more than a scintilla of, and is the most probative, evidence of market value); Blanken v. Krasoff, No. 03-00-00541-CV, 2001 WL 838436, at *2-3 (Tex. App.-Austin July 26, 2001, no pet.) (not designated for publication) (same).

Additionally, we decline to follow these cases because their holdings are contrary to Redman Homes. In Redman Homes, by indicating the owners’ testimony regarding purchase price was not evidence of subsequent market value of the home, despite no challenge to admission of the testimony and apparently no controverting evidence, the supreme court effectively negated the reasoning that purchase price is probative of market value if admitted without objection or uncontroverted. See Redman Homes, 920 S.W.2d at 668-69.

Moreover, we disagree with the suggestion in Bums and similar cases that evidence is necessarily legally-sufficient to support a certain element of a claim simply because it is admitted without objection or is uncontroverted. See Burns, 190 S.W.3d at 270; Marley, 2002 WL 31761150, at *2-3; Blanken, 2001 WL 838436, at *2-3. We recognize that inadmissible evidence does not necessarily lose its probative value if admitted without objection. See, e.g., Téx.R. Evid. 802 (“Inadmissible hearsay admitted without objection shall not be dénied probative value merely because it is hearsay.”). However, it does not follow that inadmissible evidence is necessarily probative if it is admitted without objection or is uncontroverted. See Porras v. Craig, 675 S.W.2d 503, 505 (Tex.1984) (“Irrelevant evidence, even when admitted without objection, will not support a judgment.”).

Even if we did not construe Redman Homes as Texas Supreme Court authority for the proposition that purchase price is alone legally insufficient to prove market value at a later date, we would nevertheless follow the courts of appeals, including the lower Redman Homes court, which have reached this conclusion. See Redman Homes, 901 S.W.2d at 685-86; Dolenz, 1996 WL 729928, at *7-8; Condon, 830 S.W.2d at 745 n. 5. Quite simply, it is not axiomatic that a plaintiff can sell property for the same amount at which he purchased it. Consequently, we reject Dykes’s argument that he proved the market value of the ring on the date of conversion was $26,000 and thus we may uphold the jury’s award of any amount equal to or less than $26,000.

Moreover, we acknowledge that the jury did not decide the purchase price represented the market value at the time of conversion because it awarded $13,000 rather than $26,000. However, assuming that $26,000 even represented market value at the time of purchase, there was no evidence regarding the dollar amount attributed to any depreciation between the purchase and the date of conversion. We recognize that the ring may not have depreciated by half its market value, or may have even appreciated in market value, during this period. However, we also cannot foreclose the possibility the ring depreciated by even more than $13,000 during this period. Consequently, the jury’s finding that market value of the ring one-and-a-half years after purchase was half the price was an assumption unsupported by any evidence.

Finally, the Bums court also cited, and Dykes reiterates, the “well-settled” general rule that a property owner may opine regarding the value of his own property. Burns, 190 S.W.3d at 270-71; see Porras, 675 S.W.2d at 504. However, this rule is inapplicable here because Dykes did not testify regarding the value of the ring. Rather, he testified regarding only purchase price which, for the reasons we have discussed, was legally insufficient to establish market value at the time of conversion. See Dolenz, 1996 WL 729923, at *7-8 (reciting rule that owner can testify regarding market value of property while also recognizing purchase price is not evidence of market value). Accordingly, we sustain Lee’s second issue, and we need not consider her third issue, challenging factual sufficiency of the evidence to support the conversion damages.

We reverse the portion of the $123,000 monetary judgment that consists of $13,000 for conversion damages and render judgment that Dykes take nothing on his conversion claim. We affirm the remainder of the judgment.

      . Lee does not challenge the equitable relief relative to the $110,000 expended by Dykes on the real property; she appeals only the award of monetary damages.

        . We note that courts use various terms such as "market value," "fair market value,” and "cash market value,” but these terms are synonymous. See Panola County Appraisal Dist. v. Panola County Fresh Water Supply Dist. Number One, 69 S.W.3d 278, 282 n. 2 (Tex. App.-Texarkana 2002, no pet.). Therefore, for consistency, in the remainder of our discussion, we will refer to "market value” relative to both this case and other cases cited herein.

      . The court had previously set forth the same definition of "market value” that we have recited. Redman Homes, 901 S.W.2d at 685.

      . Although the supreme court affirmed the court of appeals on all substantive issues, the supreme court reversed the court of appeals’s judgment because it improperly remanded for a new trial on only damages instead of both liability and damages. Redman Homes, 920 S.W.2d at 669-70.

      . We also note the supreme court framed the above-cited pertinent quote as merely reciting the defendant’s argument, and the owners' concession, that purchase price is inadmissible to prove market value. See Redman Homes, 920 S.W.2d at 668. However, the court also cited authority supporting its statement, thus indicating it agreed with the point conceded. See id. More importantly, the court’s explanation that there would be no evidence of damages if the evidence were insufficient to prove value of the contents demonstrated the court not only agreed with the concession but also deemed price insufficient to prove market value of the home. See id. at 668-69.

      . The court also mentioned that the owner presented testimony concerning revenues generated by the converted equipment. Burns, 190 S.W.3d at 271. However, the court then stated that evidence of purchase price was legally and factually sufficient to support the jury’s assessment of damages. Id.

      . However, some courts have cited Murray as authority that purchase price is generally inadmissible to establish market value without any qualification based on whether the purchase was remote in time or place to the operative date for establishing market value. See, e.g., Redman Homes, 920 S.W.2d at 668; Taiwan Shrimp Farm Village Ass’n, 915 S.W.2d at 71.

      . The court of appeals's opinion is not clear regarding the reason it concluded that evidence of purchase price was material and relevant because it did not mention the basis on which the plaintiff proved damages relative to the vehicle. See Murray, 59 S.W.2d at 851-54. However, the Texas Supreme Court’s opinion dismissing the defendant’s writ of error reflects that the jury was asked to determine "reasonable market value” of the vehicle before and after the collision. Murray, 90 S.W.2d at 831.


author: JEFFREY V. BROWN, Justice.

text:
    HOME LOAN CORPORATION d/b/a Expanded Mortgage Credit, Appellant, v. JP MORGAN CHASE BANK, N.A., Appellee.
    No. 14-09-00119-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 29, 2010.

      Lucy Haroutunian Forbes, Houston, for appellant.
    William Lance Lewis, Gregory Marshall Sudbury, Marcie Lynn Schout, Matthew Joseph Kita, Dallas, for appellee.
    Panel consists of Justices YATES, SEYMORE, and BROWN.
   OPINION

JEFFREY V. BROWN, Justice.

Home Loan Corporation d/b/a Expanded Mortgage Credit appeals the trial court’s grant of summary judgment in favor of JPMorgan Chase Bank, N.A. On appeal, Home Loan Corporation (“HLC”) specifically contends the trial court erroneously granted summary judgment because there are genuine issues of material fact regarding whether HLC breached its contract with JPMorgan Chase Bank (“JPMor-gan”), and whether HLC breached any representation, warranty, or covenant provisions in its contract with JPMorgan. Additionally, HLC argues the trial court should not have awarded JPMorgan specific performance because JPMorgan failed to meet the requirements to obtain specific performance. Finally, HLC complains JPMorgan should not have received its attorney’s fees and expenses because it failed to prove the amount received as a matter of law. We affirm.

I

For about six years, HLC was a correspondent mortgage banker for JPMorgan. During that time, JPMorgan purchased prime mortgage loans from HLC. On February 22, 2007, HLC and JPMorgan signed a letter confirming HLC’s intention to sell JPMorgan thirty-one of its sub-prime mortgage loans for about $6,755 million. This transaction was JPMorgan’s first subprime loan purchase from HLC. On March 20, 2007, HLC and JPMorgan entered into a contract titled “Mortgage Loan Purchase, Sale and Interim Services Agreement” (the “Agreement”). In the Agreement, HLC and JPMorgan agreed the “closing date” for purchase of the loans would be on or around March 20, 2007. Additionally, the “cut-off date” would be two business days before the “closing date” or funding date.

In the “Representations, Warranties and Covenants of Seller” section of the Agreement, HLC agreed: (1) all loan payments due before the “cut-off date” would be made as of the “closing date”; there were no material defaults of the terms of the loans; and there was not more than one delinquency on the loans during the preceding twelve-month period. The Agreement also contained an “Early Payment Default” provision that stated:

With respect to Mortgage Loans for which the first scheduled monthly principal .and interest amortization payment due to [JPMorgan] after the Closing Date is not paid by the Mortgagor by the last day of the month in which the payment is due, [HLC] shall, within five (5) Business Days of receipt of notice from [JPMorgan], promptly repurchase such Mortgage Loan from [JPMorgan] at the Repurchase Price, including without limitation, costs and expenses incurred in the enforcement of [HLC’s] repurchase obligation hereunder; provided, however, that [JPMorgan] must request that [HLC] repurchase such Mortgage Loan within ninety (90) days of the date the Mortgagor becomes delinquent on the first scheduled monthly principal and interest amortization payment due to [JPMorgan].

Hence, if the mortgagors defaulted or HLC violated a representation or warranty provision, HLC would have to repurchase the loans from JPMorgan at the specified repurchase price. Additionally, HLC was responsible for servicing the loans until they were transferred to JPMorgan on April 10, 2007. HLC sent the mortgagors a “good-bye” letter on March 23, 2007, explaining their loans had been transferred to JPMorgan. The “good-bye” letter indicated when HLC would stop servicing the loans as well as where the mortgagors should sent their payments. On April 23, 2007, JPMorgan sent a “hello” letter, which complied with the HLC’s “good-bye” letter and the Real Estate Settlement Procedures Act, to the mortgagors advising them of the service transfer, when JPMorgan would start accepting their payments, and where to send the payments.

Three of the thirty-one loans, XXXX4728 (“Loan A”), XXXX4764 (“Loan B”), and XXXX4806 (“Loan C”), are the subject of this lawsuit because these mortgagors defaulted on their payments. The mortgagors’ April payment was due April 1, 2007, but the mortgagors had until April 30 to timely make the payment. They did not make their April payments. Because the three loans defaulted, JPMorgan requested HLC to repurchase the loans in accordance with the Agreement. HLC refused to repurchase the loans, and JPMor-gan filed a breach-of-contract claim against HLC. In addition to its breach-of-contract claim, JPMorgan alleged HLC violated representation, warranty, and covenant provisions in the Agreement because HLC knew the mortgagors for Loan A and Loan B had not made timely payments in either January or February 2007.

JPMorgan moved for a traditional summary judgment on both its breach-of-contract claim and its claims for breach of representations, warranties, and covenants. The trial court granted JPMor-gan’s motion for summary judgment. In its order, the trial court awarded JPMor-gan: (1) damages in the amount of $953,357.85; (2) $44,000 in reasonable and necessary attorney’s fees; (3) $1,656 in reasonable and necessary expenses; (4) post-judgment interest at the rate of 5 percent per annum, compounded annually, from date of judgment; and (5) all taxable costs of court. Additionally, the order instructed JPMorgan to transfer Loans A, B, and C to HLC after HLC paid the total amount awarded to JPMorgan. This appeal followed.

II

HLC complains that the trial court erroneously granted JPMorgan summary judgment because JPMorgan hindered HLC’s ability to comply with the Agreement, and HLC did not breach any representation, warranty, or covenant provisions in the Agreement. In relation to the breach-of-contract issue, HLC argues the trial court should not have granted summary judgment because: (1) there is a genuine issue of material fact demonstrating JPMorgan impeded the mortgagors from making timely payments on the loans; (2) there is a fact issue in deciphering whether the late payments resulted from HLC’s breach of contract or JPMorgan’s servicing transfer; and (3) there is a fact issue concerning the forfeiture of HLC’s contract benefits given the “nominal damages that [JPMorgan] incurred.” In raising these arguments, HLC claims JPMorgan’s negligence caused the mortgagors to make untimely payments; hence, HLC has an affirmative defense to JPMorgan’s breach-of-contract claim. In response, JPMorgan argues HLC is procedurally barred from presenting its affirmative defenses because it failed to plead the defenses at the trial level; it further argues contributory fault or negligence is not a defense to a breach-of-contract cause of action. Additionally, JPMorgan contends even if HLC’s defenses are not barred, they are insufficient to raise a genuine issue of material fact to defeat the summary judgment.

We review the trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). The party moving for a traditional summary judgment has the burden to show that no genuine issue of material fact exists. Tex.R.App. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). If no material fact issue exists, then the party is entitled to judgment as a matter of law. Tex.R.App. P. 166a(c); Willrich, 28 S.W.3d at 23. We will assume that all evidence favorable to the non-movant is true and indulge every reasonable inference in favor of the non-movant. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). If the movant establishes it is entitled to summary judgment, then the burden shifts to the non-movant to raise a genuine issue of material fact to defeat the summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Lundstrom v. United Servs. Auto. Ass'n-CIC, 192 S.W.3d 78, 84 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). Here, the trial court did not specify in its summary-judgment order which ground it found meritorious. If the trial court fails to state why it found the summary judgment meritorious, we must affirm the summary judgment if any of the theories presented to the trial court and preserved on appeal are meritorious. Knott, 128 S.W.3d at 216: Jackson v. Tex. S. Univ.-Thurgood Marshall Sch. of Law, 231 S.W.3d 437, 439 (Tex.App.-Houston [14th Dist.] 2007, pet. denied).

In reviewing the substantive contract law, we do not apply Texas law because the parties’ Agreement is governed by New York law. Under New York law, for a party to prevail on a breach-of-eon-tract claim, he must establish: (1) the existence of a contract; (2) the party’s performance of the contract; (3) the opposing party’s breach of the contract; and (4) damages. WorldCom, Inc. v. Sandoval, 182 Misc.2d 1021, 701 N.Y.S.2d 834, 836 (Sup.Ct.1999); see Furia v. Furia, 116 A.D.2d 694, 498 N.Y.S.2d 12, 13 (1986). Both parties agree they formed a valid contract — the Agreement. Additionally, the summary-judgment evidence demonstrates the mortgagors for Loans A, B, and C did not timely make their April payments; hence, HLC breached the Early Payment Default provision in the Agreement. But HLC asserts an affirmative defense of negligence or comparative fault arguing JPMorgan caused the mortgagors’ late payments. HLC further contends although it used the terms “negligence” and “comparative fault” in its answer and response to JPMorgan’s summary-judgment motion, “negligence and/or comparative fault is synonymous with waiver/excuse” in a breach-of-contract case. We review New York law to determine the validity of HLC’s argument.

In Viacom International, Inc. v. Midtown Realty Co., a landlord, tenant, and the tenant’s insurance company disputed who should pay for fire damage to the leasehold. 235 A.D.2d 332, 652 N.Y.S.2d 740, 740-41 (1997). The lease provided that if the “premises were partially damaged by fire, ‘the damages thereto shall be repaired by and at the expense of Landlord.’ ” Id. at 741. The insurance company moved for partial summary judgment against the landlord based on his contractual obligation to make repairs at his expense. Id. The lower court denied the insurance company’s motion because it concluded there was a fact issue as to whether the fire was negligently caused. Id. The Viacom court found the lower court erred because “negligence is not a defense to a cause of action for breach of contract.” Id.; see also City of New York v. 611 W. 152nd St., Inc., 273 A.D.2d 125, 710 N.Y.S.2d 36, 38 (2000) (“The negligence and gross negligence defenses are meritless, since claims based on negligent or grossly negligent performance of a contract are not cognizable.”).

Furthermore, New York courts have emphasized that a defendant cannot claim a defense of contributory or comparative negligence to breach-of-contract causes of action. Castleton Holding Corp. v. Forde, No. 19861/05,15 Misc.3d 1111(A), 2007 WL 925678, at *4 (N.Y.Sup.Ct. Mar. 23, 2007). New York law expressly prohibits a “plaintiffs culpable conduct from being asserted as a defense” in a breach-of-contract action. Am. Express Equip. Fin. Corp. v. Mercado, 34 A.D.3d 880, 824 N.Y.S.2d 187 (2006) (citing Nastro Contracting, Inc. v. Agusta, 217 A.D.2d, 874, 875, 629 NY.S.2d 848 (1995)). Courts have stressed that if a defendant wishes to pursue a negligence claim against a plaintiff, then the defendant must counterclaim instead of asserting negligence or comparative negligence as a defense. See, e.g., Camp Kennybrook Inc. v. Kuller, 214 A.D.2d 264, 632 NY.S.2d 874, 875-76 (1995) (explaining when the appellees stated they did not pay the appellant the amount due under the contract, the appel-lees’ reasoning — the appellant breached its duty of care and supervision — “sound[ed] in tort and should have been interposed as a counterclaim with a demand for affirmative relief, not as a defense”).

JPMorgan is correct in arguing that HLC has failed to preserve its affirmative defenses of waiver or excuse for appellate review. HLC did not address either of these defenses in its pleadings or in its response to JPMorgan’s motion for summary judgment. The non-movant has the burden to expressly present to the trial court reasons it avoids summary judgment if the movant has proved it is entitled to summary judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Augusta Court Co-Owners’ Ass’n v. Levin, Roth & Kasner, P.C., 971 S.W.2d 119, 122 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). If the non-movant fails to meet the burden, then the non-movant has waived the issue on appeal. See City of Houston, 589 S.W.2d at 678; Levin, Roth & Kasner, 971 S.W.2d at 122.

Additionally, HLC does not cite to any relevant authority that discusses how courts have interpreted negligence or comparative negligence to be synonymous with waiver or excuse. See Tex.R.App. P. 38.1(i); Sterling v. Alexander, 99 S.W.3d 793, 798-99 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). “An issue not supported by authority is waived.” Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Because HLC breached the contract and waived its affirmative defense of waiver or excuse, the trial court properly granted summary judgment in favor of JPMorgan. Furthermore, the trial court’s order granting summary judgment does not specify why it found the summary judgment meritorious; therefore, we must affirm the summary judgment if any of the theories JPMorgan presented to the trial court and preserved on appeal are meritorious. See Knott, 128 S.W.3d at 215; Jackson, 231 S.W.3d at 439. Because we have concluded JPMorgan’s breach-of-contract claim is meritorious, we do not need to discuss the merits of JPMorgan’s claim that HLC also breached warranty, representation, or covenant provisions in the Agreement. Accordingly, we overrule HLC’s first and second issues.

Ill

In its third issue, HLC complains the trial court should not have awarded JPMorgan specific performance because JPMorgan failed to meet the requirements to obtain specific performance. In reviewing specific performance, HLC argues (1) JPMorgan could not demonstrate HLC could perform, (2) money damages were the adequate remedy, (3) JPMorgan did not fully perform its duties under the Agreement, and (4) JPMorgan “failed to show how the balance of equities favored specific performance.” JPMorgan contends the trial court’s order did not award it specific performance, but the order awarded JPMorgan money damages, which is an appropriate remedy.

Both HLC and JPMorgan cite DB Structured Products, Inc. v. Baltimore American Mortgage Corp. to illustrate monetary damages is a proper remedy in this case. See No. 07 Civ. 4109(DLC)(KNF), 2009 WL 399746, at *4-5 (S.D.N.Y. Jan. 23, 2009), rev’d on other grounds, No. 07 Civ. 4109(DLC), 2009 WL 948343 (S.D.N.Y Apr. 7, 2009). But while HLC relies on DB Structured Products to show that specific performance is inappropriate in cases like this, JPMorgan contends the relief it received in this case is identical to that allowed in DB Structured Products. DB Structured Products involved a contract with an early-payment-default provision similar to the one in this case. See 2009 WL 399746, at *2. The contract also contained a provision requiring the defendant to repurchase the mortgage loans if the mortgagors defaulted. Id. DB Structured Products (“DBS”) requested both specific performance and monetary damages. Id. at *4. When Baltimore American Mortgage Corporation (“BAMC”) failed to timely appear after being sued in federal court, the district judge determined a default judgment should be entered and referred the case to a magistrate to determine what damages, if any, should be awarded to DBS. Id. at *1. The magistrate decided BAMC breached its contract with DBS, but it recommended that the district court award DBS only nominal damages instead of the full repurchase price. Id. at *10. The magistrate judge also concluded specific performance was not an appropriate remedy because there was no uncertainty of the value of the defaulted loans. Id. at *4-5.

DBS objected to the magistrate’s recommendations. DB Structured Prods., Inc., 2009 WL 948343, at *2. After hearing the objections, the district court rejected the magistrate’s damages assessment and awarded DBS the full repurchase price of the loans. Id. The court also instructed DBS to “[wjithin thirty days following payment in full of the amount awarded by this judgment, [to] return to BAMC the Mortgage Loans as set forth in the Purchase Agreement.” Id.

HLC is correct in stating that under New York law, to receive specific performance a party must show: (1) there is a valid contract between the plaintiff and the defendant; (2) the plaintiff has substantially performed under the contract and is willing and able to continue to perform; (3) the defendant is able to perform its obligations; and (4) the plaintiff has no adequate remedy at law. See EMF Gen. Contracting Corp. v. Bisbee, 6 A.D.3d 45, 774 N.Y.S.2d 39, 44 (2004). HLC is also correct in contending JPMorgan requested specific performance as a remedy or relief in its summary-judgment motion. But HLC incorrectly asserts JPMorgan did not seek damages in its summary-judgment motion. Although JPMorgan requested specific performance as its remedy in the body of its motion for summary judgment, its prayer stated,

“[JPMorgan] requests that this Court: (a) grant [JPMorgan’s] Motion for Summary Judgment in its entirety; (b) award [JPMorgan] specific performance of the Agreement such that HLC is required to pay [JPMorgan] $953,357.85 ... and upon receipt and deposit of the funds[JPMorgan] will transfer the three Default Loans to HLC in accordance with the Agreement....”

The trial court’s order stated, “[JPMor-gan] is awarded damages in the amount of $953,357.85 from HLC ... [and] upon HLC’s payment to [JPMorgan] of the total amount awarded to [JPMorgan] in this Judgment, [JPMorgan] shall transfer [Loans A, B, and C] to HLC.” The relief JPMorgan was seeking in its prayer is the exact relief the trial court awarded to JPMorgan, which is not specific performance, but damages according to DB Structured Products. See 2009 WL 948343, at *2 (“[T]he Court agrees that there was other competent evidence in the record to support [DBS’s] requested damages amount.”).

HLC alternatively argues that if JPMorgan properly received monetary damages, the damages were excessive because JPMorgan failed to mitigate its damages as New York law requires. In HLC’s response to JPMorgan’s summary-judgment motion and its brief, it contends “there are generally two ways to measure damages of a loan in a repurchase case.” The first method is foreclosure, and the second method is selling the loans to a secondary purchaser. Because JPMorgan failed to use either of these methods, HLC complains JPMorgan did not mitigate its damages. JPMorgan contends HLC waived this argument on appeal because it never properly raised the issue of mitigation at the trial level.

In reviewing a summary judgment, “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” Tex.R. Civ. P. 166a(c); see also Tex.R.App. P. 33.1(a)(1) (mandating that to preserve a complaint for appeal, the record should demonstrate the complaint was made to the trial court). Motions and responses for summary judgment must stand or fall on the grounds expressly presented to the trial court. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993). A non-movant, therefore, must expressly present to the trial court the reasons it avoids summary judgment. See City of Houston, 589 S.W.2d at 677-79.

Although HLC argued in its summary-judgment response that the damages could be measured in either of two ways, it did not discuss the need for mitigation. Instead, HLC’s argument specifically countered JPMorgaris assertion that monetary damages may be difficult to calculate. In its summary-judgment response, HLC neither portrays either of the damage-calculation methods as any kind of mitigation nor cites any case law concerning mitigation. Accordingly, HLC waived its mitigation argument. Because HLC waived this argument and we concluded the trial court properly awarded JPMorgan damages, we overrule HLC’s third issue.

IV

In its fourth issue, HLC complains the trial court’s award of $44,000 in attorney’s fees is improper because JPMorgan failed to prove its attorney’s fees as a matter of law. In the Agreement between HLC and JPMorgan, both the Early Default Provision and the Repurchase Price definition allow JPMorgan to recover attorney’s fees if HLC breaches the contract. See supra Part II. HLC relies on two New York cases for the proposition that under New York law, trial courts require an itemized billing statement or invoice specifically describing the attorney’s work, hourly rate, and hours worked to award attorney’s fees. See Scheichet & Davis, P.C. v. Steinger, 183 A.D.2d 479, 583 N.Y.S.2d 407, 408 (1992); Paul G. Marshall, P.C. v. Alpha Zenith Media, Inc., No. 114522/06, 19 Misc.3d 1101(A), 2008 WL 660427, at ⅜2 (N.Y.Sup.Ct. Feb. 28, 2008). Because JPMorgan did not include this information in its summary-judgment evidence, HLC claims the affidavit from JPMorgaris lead counsel, Wm. Lance Lewis, detailing the attorney’s fees is conclusory.

The amount of attorney’s fees to award to a party is within a trial court’s discretion. SO/Bluestar, LLC v. Canarsie Hotel Corp., 33 A.D.3d 986, 825 N.Y.S.2d 80, 82 (2006). A court factors the difficulty of the issues involved, the time and labor required, and the skill and effectiveness of counsel when deciding what attorney’s fees should be awarded. Id. “ ‘[T]he court must possess sufficient information upon which to make an informed assessment of the reasonable value of the legal services rendered.’ ” Id. (quoting Bankers Fed. Sav. Bank FSB v. Off W. Broadway Developers, 224 A.D.2d 376, 638 N.Y.S.2d 72, 74 (1996)). A sufficient affidavit discussing attorney’s fees describes the hours the attorneys expended as well as the hourly rate for similar legal work in the community. Id. In SO/Bluestar, LLC v. Canarsie Hotel Corp., the court held the attorney’s affidavit detailing attorney’s fees was “wholly inadequate” because the affidavit lacked the attorney’s hourly rate, services performed, or any information that would assist the court in deciding the reasonableness of the fees. Id. Although HLC cites cases requiring a plaintiff to support its claim for attorney’s fees with an itemized billing statement, as JPMorgan notes in its brief, those cases involve account-stated claims, not breaeh-of-contract claims. See Scheichet & Davis, P.C., 583 N.Y.S.2d at 408; Paul G. Marshall, P.C., 2008 WL 660427, at *2. After reviewing attorney’s fees under New York law, we conclude SO/Bluestar is more akin to the legal and factual issues in the case at bar.

Here, Lewis’s affidavit included the range of billing rates for the attorney’s working on the case — $190 to $275 per hour. The affidavit also provided a description of what work was performed, such as “propounding and responding to substantial written discovery, preparation and attendance at the deposition of HLC’s corporate representative, investigation and preparation of several discovery related motions and the response to a discovery related motion, preparation and attendance at several hearings, and the investigation and preparation of the Motion for Summary Judgment.” Additionally, Lewis opined the attorney’s hourly billing rates were comparable to other attorneys practicing in Harris County. Finally, Lewis stated he reviewed the nature of the case, the nature of the services required, the amount of money involved in the case, the experience and skill needed to perform the service required, as well as other factors in deciding what fees were reasonable under the circumstances. Based on the information in the affidavit and the requirements under New York law, we cannot conclude the trial court abused its discretion in awarding $44,000 in attorney’s fees to JPMorgan. Accordingly we overrule HLC’s fourth issue.

For the foregoing reasons, we affirm the trial court’s judgment.

      . JPMorgan in fact purchased the loans on March 20.

      . The "cut-off date” was March 16.

      . The "Repurchase Price” was defined as:
      The greater of par or the related Purchase Price Percentage, multiplied by the outstanding principal amount of the Mortgage Loan subject to repurchase on the date of repurchase, plus: (i) accrued interest at the rate set forth under the Mortgage Note through the day prior to the date of such repurchase; (ii) any and all costs and expenses, including reasonable attorney fees, incurred by [JP Morgan] to effect the repurchase; (iii) any and all advances made by [JP Morgan] or its agent and charges due from Mortgagor and (iv) any costs and damages incurred by [JP Morgan] or any assistance of [JP Morgan] in connection with any violation by the repurchased Mortgage Loan of any representation or warranty.

      . Neither HLC nor JP Morgan disputes that New York law governs the Agreement.

      . Neither HLC nor JP Morgan disputes that the mortgagors failed to make their April payments on time.

      . An issue is "expressly” presented if the non-movant’s written answer or response to the motion for summary judgment fairly appraises the trial court and movant of the issues the non-movant believes should defeat summary judgment. Tello v. Bank One, N.A., 218 S.W.3d 109, 119 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

      . HLC cites to Horizon/CMS Healthcare Corp. d/b/a Heritage Western Hills Nursing Home v. Auld for the proposition that under Texas’s fair-notice standard, we should assume that pleading negligence or comparative fault is synonymous with pleading waiver or excuse. 34 S.W.3d 887, 896-97 (Tex.2000). In Auld, the supreme court concluded that although Horizon/CMS pleaded Section 41.008 of the Texas Civil Practice and Remedies Code, Horizon/CMS discussed this section as the punitive-damages cap provision of Chapter 41, which is actually Section 41.007 of the Texas Practice and Remedies Code. Id. Even though Horizon/CMS pleaded the wrong provision, the court held it was clear from the pleadings what Horizon/CMS intended, and "there was, and is, only one punitive-damages cap provision in Chapter 41 [of the Texas Civil Practice and Remedies Code].” Id. at 897. Auld is not similar to the case at bar because the affirmative defense of negligence/comparative fault and the affirmative defense of waiver/excuse are used for different facets of the law — tort and contract. Additionally, a special exception would have not aided in explaining how a tort defense could be used to fend off a breach-of-contract claim. We are not persuaded by HLC’s argument.

      . We will not address HLC’s argument that the forfeiture of HLC’s contractual benefits is a “harsh result” because we decided JP Morgan’s breach-of-contract claim was meritorious, and the court’s relief in its order to grant summary judgment mirrors the relief provided in the Agreement.

      . HLC also argues the expenses the trial court awarded to JP Morgan are improper. But HLC failed to make this argument at the trial court; therefore, it waived this issue on appeal. See Tex.R. Civ. P. 166a(c).