OPINION
The Supreme Court of Texas remanded this matter back to this Court for consideration of whether to remand for a new trial on damages or to suggest a remittitur, and to consider issues not considered in the original opinion.
See Aquaplex, Inc. v. Rancho La Valencia, Inc.,
Background
The factual background involved in this case is explained in some detail in our original opinion and we refer the reader to that recitation.
See Rancho La Valencia, Inc. v. Aquaplex, Inc.,
Upon motion for rehearing, we addressed the issues of declaratory relief, the lis pendens, and injunctive relief. We held that the declaratory relief could not stand because the nature of the assignment upon which it was allegedly based was, in fact, a collateral assignment and not a complete assignment.
Rancho La Valencia, Inc. v. Aquaplex, Inc.,
In the Supreme Court’s opinion, the Court set forth the elements of a fraud claim under the MSA.
Aquaplex,
Analysis
Prior to considering the issues that the Texas Supreme Court ordered us to consider, there remain some issues from the initial appeal which we must first consider.
Ratification
Appellants’ initial appeal alleged that the trial court erred in refusing to submit appellants’ ratification question to the jury. However, the ratification question, as suggested by appellants, went to the issue of fraud in connection with the Joint Venture Agreement (JVA). The record before us clearly demonstrates that appellees have foregone any recovery under the JVA and have elected to recover only under the fraud theory in connection with the MSA. Accordingly, there can be no abuse of discretion by the trial court in connection with the JVA because a failure to submit that issue could not have led to the rendition of an improper judgment.
1
See
Tex.R.App. P. 44.1(a)(1);
Tex. Dep’t of
*140
Human Servs. v. E.B.,
Exclusion of Evidence
Appellants next complain that the trial court abused its discretion when the trial judge ordered that appellants could not elicit testimony that they had attempted to perform their obligation to fund the $100,000 requirement for interest and property taxes in connection with the JVA property under the terms of the MSA. A trial court abuses its discretion when it acts without regard to any guiding rules or principles.
Downer v. Aquamarine Operators, Inc.,
Appellants’ contention is grounded on the theory that the trial court’s exclusion of the evidence was based on the fact that testimony about conversations between trial counsel for. both sides would require trial counsel be disqualified. Appellants’ argument, when boiled down to its essence, is that the trial court could have allowed the testimony under Rule 3.08(a)(5) of the Rules of Professional Conduct.
See
Tex. Disciplinary Rules Prof’l Conduct R. 3.08(a)(5),
reprinted in
Tex. Gov’t Code Ann., tit. 2, subtit. G., app. A (West 2005). However, appellants have not cited this Court to any cases holding that where the trial court
could
have taken a certain action, but did not, it must necessarily amount to an abuse of discretion. As appellees point out, the Texas Supreme Court has concluded that disqualification of trial counsel is a severe measure that impacts a litigant’s ability to have his case tried by counsel of his choice.
See In re Nitla,
In balancing these competing interests, we note that, the record demonstrates that the offer to fund the $100,000 account occurred after March 25, 2005, the final date for performance under the MSA. Further, the nature of the conversation was that appellants wanted to revive discussion of settlement under the MSA, while appellees already considered the MSA breached. Therefore, there is a real issue regarding whether the purported evidence had any relevance at that point in time.
See In re Slusser,
When reviewing the trial court’s ruling in light of the record before us, we have determined that the trial court followed the guiding rules and principles of law at issue.
See Downer,
Declaration That Appellants Had Breached the MSA as a Matter of Law
Appellants next contend that the trial court erred when it issued an order, during a pre-trial hearing, finding appel *141 lants had breached the MSA as a matter of law. According to appellants, the order was in error because there was neither a motion to enforce the MSA pending before the trial court nor was there a motion for summary judgment pending before the trial court. The essence of appellants’ complaint is that the trial court took this action without any proper request or authority to do so.
Appellants’ contention does not consider the authority of a trial court to act pursuant to Texas Rule of Civil Procedure 166(g).
See
Tex.R. Civ. P. 166(g).
2
Rule 166(g) permits a trial court to identify legal matters to be ruled on or decided by the trial court in a pre-trial hearing.
Id.
The record before us reflects that the trial court held a pre-trial hearing on November 28, 2005, that encompassed a number of issues and, during that hearing, the issue of appellants’ failure to fund the MSA was discussed. At the conclusion of that discussion, the trial court ruled that appellants had breached the MSA as a matter of law. We are convinced that the trial court’s act was correct pursuant to Rule 166(g) and was not error.
See Walden v. Affiliated Computer Servs. Inc.,
Crime-Fraud Exception
Appellants next contend that the trial court committed harmful error when it found the crime-fraud exception applied to the testimony of appellants’ previous attorney, Kemp Gorthey. It is appellants’ position that no prima facie showing of fraud was made that authorized the trial court to admit Gorthey’s testimony over appellants’ assertion of privilege. Texas Rule of Evidence 503 provides that communications between a client and his attorney are privileged and the client can refuse to disclose, and prohibit others from disclosing, those confidential communications. Tex.R. Evid. 503(b), (c). However, Rule 503(d)(1) provides an exception to the privilege granted. The exception states:
(d) Exceptions. There is no privilege under this rule:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a fraud.
Tex.R. Evid. 503(d)(1).
On March 23, 2005, appellants’ trial counsel filed a motion to withdraw and request for continuance. In his verified motion, Gorthey outlined, as cause for the motion, that he was of the professional opinion that appellants were attempting to use his services to perpetrate a fraud. The trial court allowed counsel to withdraw by written order entered on March 24, but denied the motion for continuance. On March 25, Rancho filed a voluntary petition in bankruptcy, and the case was removed to Federal Court that same day. While the bankruptcy proceeding was pending, appellees issued a subpoena duces tecum for Gorthey for August 24. On August 23, appellants applied for a protective order. A deposition was commenced on August 24, but the documents subpoenaed were furnished for an in camera inspection by the judge hearing only the adversary proceeding. Subsequently, on October 13, the Bankruptcy Court for the Northern District of Texas (Dallas Division) ruled that the bankruptcy had been filed in bad faith. The bankruptcy was *142 dismissed with prejudice, and, on October 17, the case was remanded to State Court.
On October 19, appellees filed a motion to compel production of the documents and to depose Gorthey. The trial court in this matter considered the motion to compel on November 3, and, after an in camera inspection of the documents and hearing the arguments of counsel, it ordered that those documents be produced and the deposition of Gorthey be taken. The court expressly allowed appellees to question Gorthey about communications with his client regarding the subject matter of the fraud in question. No application for writ of mandamus was pursued by appellants following the trial court’s ruling on the motion to compel. Prior to the trial of this matter, appellants urged no motions requesting a running objection to the introduction of the documents at issue or Gorthey’s testimony. The matter was raised to a limited extent during the discussions of a motion in limine presented by appellants. However, during the trial of the case, appellants’ voiced no objection when the documents at issue and Gorthey’s testimony were introduced. Further, from the record, we find that Turner testified at length about the facts surrounding Gorthey’s withdrawal and the allegations of fraud.
In analyzing appellants’ issue regarding the attorney-client privilege, we first observe that appellants did not challenge the ruling of the trial court that a
prima facie
case had been established by writ of mandamus. The pursuit of a writ of mandamus to reverse the ruling of the trial court is a method of presenting an allegation of an erroneous trial court ruling for review.
See Barnes v. Whittington,
The subject matter was discussed during a pre-trial hearing that considered a number of matters, including motions in limine. However, even if the record demonstrated that the evidence now complained of was part of that discussion, a ruling on a motion in limine preserves nothing for review.
Richmond Condos. v. Skipworth Commercial Plumbing, Inc.,
The record further demonstrates that, when the documents were offered during the trial, appellants’ counsel stated, “No objections to those, Your Honor.” In order to preserve a complaint for our review, a party must present the trial court with a timely request, objection, or motion that states the specific grounds for the desired ruling.
See
Tex.R.App. P. 33.1(a). Here, appellants wholly failed to do so. Further, when a party affirmatively asserts that he or she has “no objection” to the admission of the complained-of evidence, any error in the admission of the evidence is waived, even in the face of a pre-trial ruling.
See Tex. Dep’t of Transp. v. Pate,
Factual Sufficiency
The Texas Supreme Court’s opinion directs this Court to consider the factual sufficiency issues raised by appellants and not heretofore addressed. In reviewing the initial briefing filed by appellants, we have identified a challenge to the factual sufficiency of the evidence to support *143 the jury’s finding of fraud in connection with the execution of the MSA. Specifically, appellants argue that the evidence was overwhelming that appellants intended to perform pursuant to the terms of the MSA. 3
Standard of Review
In reviewing a challenge to the factual sufficiency of the evidence to support an adverse jury finding on an issue upon which the opposing party had the burden of proof, we will set aside the jury’s finding only if the evidence supporting the same is so weak as to be clearly wrong and manifestly unjust.
See Int’l Metal Sales, Inc. v. Global Steel Corp.,
No. 03-07-00172-CV,
Analysis
The evidence presented to the jury regarding fraud in the execution of the MSA revolved around actions that Turner took after the MSA had been signed. Specifically, the steps Turner took to effectuate the MSA. Testimony revealed that the attorney then representing appellants continued to question whether Turner intended to fund the $100,000 requirement of the MSA. Much of the evidence centered on Turner’s insistence that he was going to fund the requirement but that other things needed to happen. Ultimately, the attorney formed a conclusion that Turner had no intent to effectuate the MSA and so testified. When a timeline is constructed regarding the events leading up to the failure of the MSA to be completely funded, there was evidence presented to the jury that Turner was consulting with bankruptcy attorneys in another city at the same time he was insisting to his trial counsel that he intended to abide by the MSA. Most of the testimony highlighted by appellants in their brief that contradicts the jury’s answer to the fraud question consists of Turner’s self-serving statements of what he intended to do. From a total review of all of this evidence, it is clear that the issue was resolved based upon the credibility of the witnesses and the weight to be given their testimony. This is the singular province of the jury.
Id.
Likewise, resolving those conflicts in the evidence was the duty of the jury.
Id.
Based upon these considerations, we cannot say that the answer of the jury to the question about fraud was clearly wrong and unjust.
See Int’l Metal Sales, Inc.,
Damages and Remittitur
Next, we turn to the issue of damages as determined by the jury. In our
*144
original opinion, we held that there was no evidence to support the award of damages.
See Rancho La Valencia, Inc.,
Conclusion
Having overruled all of Rancho’s issues regarding liability and sufficiency of the evidence, we affirm the judgment of the trial court on liability for fraud in the execution of the MSA, but remand to the trial court for a new trial on the issue of damages, including the amount of punitive damages.
Notes
. Further, we note that since Aquaplex elected post-judgment to forego any recovery under the JVA, if the trial court erred regarding submission of the ratification issue, such error would be harmless. See Tex.R.App. P. 44.1(a)(1).
. Further reference to the Texas Rules of Civil Procedure will be by reference to “Rule
. Our examination of the briefs filed by appellants reveals that the other matters complaining of the factual sufficiency of the evidence dealt with the JVA. Appellees have foregone any recovery under the JVA and, accordingly, those issues are not before the Court.