Alphonsus Ofor Ezeoke, Houston, TX, for Appellants. John Wesley Wauson, Anabel King, Sugar Land, TX, for Appellee.
Alphonsus Ofor Ezeoke, Houston, TX, for Appellants.
John Wesley Wauson, Anabel King, Sugar Land, TX, for Appellee.
Panel consists of Justices Christopher, Bourliot, and Zimmerer.
Frances Bourliot, Justice
Appellants Boniface I. Mbaka and Deluxe Barber School, LLC appeal from a judgment favoring appellee Chioma G. Nwakor in her lawsuit against them. Among other allegations, Nwakor asserted that Mbaka, her brother-in-law, took funds that belonged to her out of certain bank accounts without her permission and used some of the funds to buy a house. At the conclusion of trial, a jury determined that Mbaka failed to comply with his fiduciary duties to Nwakor, committed constructive fraud, theft, and conversion, and was unjustly enriched to Nwakor's detriment. The jury also found that Mbaka and his company, Deluxe Barber School, engaged in a conspiracy that resulted in damages to Nwakor. The jury determined that the amount of damages for each claim was $359,000 and that $200,000 of this amount was used to purchase a home in San Antonio, Texas. The trial court then entered judgment on constructive fraud for Nwakor, awarded her $359,000 plus attorney's fees, imposed a constructive trust lien on the San Antonio home, and ordered a foreclosure sale of that property.
In four issues, Mbaka contends that (1) the trial court erred in admitting certain bank records into evidence, (2) the evidence was legally and factually insufficient to support the jury's findings, (3) Nwakor lacked standing to bring her claims, and (4) the trial court erred in ordering foreclosure on the San Antonio property. Finding no error, we affirm the trial court's judgment.
Nwakor's testimony. Nwakor testified that after obtaining her law degree in her home country of Nigeria and her MBA in London, she took over her father's construction business in Nigeria. In 2011, she met Martin Mbaka ("Martin"), Boniface Mbaka's older brother, who imported cars from the United States to Nigeria and was a United States citizen. Martin began helping Nwakor obtain items that she needed from the United States, including a Range Rover vehicle and Caterpillar construction equipment. She would give him the necessary funds, and he would act as her agent in procuring the goods that she needed. She came to trust Martin, and they began dating in 2012 and got married in 2015.
According to Nwakor, when Martin was in Nigeria, he would have Mbaka, who lives in the United States, handle financial transactions for him. Martin told Nwakor that Mbaka worked for him. Originally, when he left the country, Martin would sign blank checks that Mbaka could use to make payments. Nwakor also left signed, blank checks with Mbaka on a couple of occasions for the same purpose. Nwakor said that Martin represented Mbaka was trustworthy, and she came to trust Mbaka because whenever he was directed to do something, he did it. She and Mbaka also became close friends who spoke daily. Mbaka even looked to Nwakor for advice when he was charged with a crime.
There was testimony that online access to bank accounts in the United States was not always possible from Nigeria.
According to a Texas criminal court judgment dated February 22, 2013, Mbaka pleaded guilty or no contest to the third-degree felony offense of theft, received deferred adjudication, and was placed on nine-year's probation.
Eventually, bank accounts were set up to facilitate the transfer of funds. Martin owned an account for his business Quietstorm (the "Quietstorm account"), Nwakor and Martin had a joint account to which they both had access (the "Nwakor-Martin account"), and Martin and Mbaka had a joint account to which they both had access (the "Martin-Mbaka account"). Nwakor explained that the purpose of these accounts was to facilitate her procurement of equipment and other items in the United States and that all of the money moving through these accounts during this time period originated with her. She referred to the Martin-Mbaka account as the "expense account," as it was the account from which Martin and Mbaka would pull money to pay her expenses as she directed. Nwakor also had personal accounts to which no one else had access.
After they got engaged, Nwakor and Martin bought a house in Sugarland, Texas in May 2014 with funds provided by Nwakor. In July 2014, they moved in along with Mbaka, his wife Clare Ihenacho, Mbaka and Clare's children, and Martin and Mbaka's mother. Nwakor testified that Mbaka did not pay rent or other expenses while living at the Sugarland home.
Nwakor referred to the house as belonging to her, but both her name and Martin's appear on the deed as owners. Nwakor stated that Martin told her she would need a United States' citizen's name on the deed.
Later in 2014, Nwakor wired $200,000 from Nigeria to be used as earnest money on a developmental property in Frost Ranch Enclave ("FRE"). The money went into the Nwakor-Martin account, and then Martin moved it to the Martin-Mbaka account before Nwakor instructed Mbaka to raise a draft for $220,000 payable to FRE. Mbaka raised the draft in Martin's name, but Nwakor said that there was no reason for him to have done so as he was aware it was her money. When Nwakor subsequently decided not to complete the purchase, FRE issued a reimbursement in the form of a cashier's check made out to Martin. The reimbursement check was sent to Nwakor and Martin's house where Mbaka and his family were living. At that time, Nwakor and Martin were in Nigeria. The check was subsequently deposited into the Quietstorm account. Nwakor stated that although the name on the back of the check was Martin's, Mbaka forged the signature.
Nwakor also testified regarding a number of subsequent transfers of funds from the Quietstorm and Martin-Mbaka accounts ultimately to accounts or for purposes of Mbaka himself or his company, Deluxe Barber School. The transfers in question occurred between May and July of 2015, around the same time that Nwakor and Martin were in Nigeria getting married. Nwakor testified that Mbaka's unauthorized transfers of her money totaled $359,000.
In support of her testimony, Nwakor offered into evidence bank statements and other documentation pertaining to the transfers. She testified that she incorporated the documents into her own business records in the course of regularly conducted business activity. Mbaka's attorney objected to the records as containing hearsay and lacking authentication or a proper business records affidavit. Counsel further argued that Nwakor herself was incompetent to authenticate the records. The trial judge overruled the objections and admitted the records into evidence. Nwakor testified that neither she nor Martin authorized the transfers in question and the transfers were not loans or gifts. She further testified that the funds transferred belonged to her and not Mbaka or Martin. And she asserted that Mbaka was able to access Martin's Quietstorm account to make certain transfers because he knew Martin's personal information and was therefore able to obtain the password from the bank.
Nwakor discovered the unauthorized transactions in August 2015 when Martin told her that Mbaka had "emptied all the accounts." Nwakor said that she and Martin went to the district attorney's office to press criminal charges against Mbaka, but they decided to not pursue charges because Mbaka was still on probation for the prior offense and could be facing 25-30 years in prison with new charges against him. Additionally, Martin pleaded with Nwakor not to pursue the charges, saying, "[T]his is my only blood brother." According to Nwakor, the Mbaka family suggested that Mbaka could pay the money back over time, but no agreement was reached, so she and Martin filed the present lawsuit. Martin subsequently withdrew from the lawsuit prior to trial.
Nwakor also testified—based on transactional documents admitted into evidence—that Mbaka used $200,000 of her money to purchase a home in San Antonio for cash. The sale was originally to be financed but was changed to a cash transaction. The deed is in both Mbaka and his wife's names, and they have been living in the house since the purchase. Nwakor further stated that other amounts were used to lease office space for Mbaka's company, Deluxe Barber School. Nwakor described Mbaka and his wife's recent job history and asserted that they would not have been able to pay cash for the San Antonio property without the unauthorized transfers. Nwakor said that she has also loaned them money after each of their first two children were born and they had never paid the loans back. Nwakor said that before the unauthorized transfers, she had trusted Mbaka; they were good friends, and she entrusted him with her money.
On cross examination, Nwakor acknowledged that Mbaka did not withdraw any money from her personal accounts, the Quietstorm account predated her marriage to Martin, and she had no access to that account. She insisted, however, that the money transferred from the Quietstorm account was hers and not Martin's.
Forensic accountant's testimony. William Stewart, Jr. testified that he is a certified public accountant and certified fraud examiner who is also certified in financial forensics. In preparing his expert report, Stewart said that he looked at bank records, interviewed Nwakor, and read Mbaka's and Martin's testimonies from an earlier hearing. In his testimony and report, Stewart traced the flow of funds through the accounts with $359,000 ultimately going to benefit Mbaka. Stewart concluded, based on the evidence he reviewed, that Mbaka was responsible for the transfer of funds and the transfer was not authorized by Nwakor or Martin and did not benefit them. Stewart further explained that just because someone was a signatory on an account did not mean that the money in the account belonged to them, and he likened the situation to a bookkeeper for a company who has access to a company account but not ownership of the funds therein. On cross-examination, Stewart acknowledged that no money was transferred directly from any of Nwakor's personal accounts to Mbaka's personal accounts.
Mbaka's wife's testimony. Ihenacho testified that she had been working for Walgreens but stopped in 2014 to take care of their children. She said that in 2015, she and Mbaka probably did not make more than $40,000 combined. She acknowledged that Mbaka had been ordered to pay restitution as part of his criminal case. She further agreed that their family had been living in the house owned by Nwakor and Martin. She said that their application for a home loan for the San Antonio property was denied and Mbaka thereafter paid cash for the property but she did not know where he got the money.
Mbaka's testimony. Mbaka testified that he owns Deluxe Barber School as well as a healthcare company and he and Martin had a business together providing luxury vehicles to a state government in Nigeria. He explained that they sold land their father had owned to start buying the vehicles. Mbaka handled operations in the United States while Martin handled Nigerian matters. Funds from vehicles sold in Nigeria would pass through Martin's Quietstorm account and go into the Martin-Mbaka account so that Mbaka could then buy more vehicles. Mbaka asserted that the money to pay for the home that Nwakor and Martin bought had come from Martin's overseas business and not from Nwakor, whom Mbaka described as "a housewife." He further said that Martin was the source of the $220,000 in earnest money given to FRE, but when Martin decided he did not want to go through with that purchase, a check was sent to the house. Mbaka said that he deposited the check into the Quietstorm account as Martin directed, but Mbaka did not know what happened to the money after that.
Mbaka insisted that the Martin-Mbaka account was not set up to handle Nwakor's expenses but was for his and Martin's business. He said that he never withdrew any money from an account belonging to Nwakor, does not have access to her accounts, and did not need her permission to move money from the Martin-Mbaka account. He said the funds in that account were generated by their business and not hers and that his withdrawals from the account were reimbursements or simply him withdrawing his own money. He said that Nwakor worked in Martin's office and there was no way the funds belonged to her because she did not have any businesses of her own.
Mbaka additionally asserted that Nwakor and Martin owed him $400,000, although he said he had resolved most of that sum with Martin. He spoke of a subcontract he had been awarded by Nwakor and Martin in Nigeria to create a borehole as part of a larger construction project. Mbaka said he was never paid on that contract.
In rebuttal testimony, Nwakor stated that while she had awarded Mbaka a subcontract, he neither signed it nor started or completed the work and she did not owe him any money.
On cross-examination, Mbaka acknowledged that the transfers from the accounts occurred around the time of Mbaka and Martin's wedding in Nigeria and that he had previously pleaded guilty to theft. He admitted he had no documentation to support his assertions regarding his luxury car export business but explained that this was because Martin kept those documents. He further acknowledged that the personal financial statement he filed when applying for a home loan did not list his export business.
Martin's prior testimony. During trial, it was discussed that Nwakor's counsel had been attempting service of a subpoena on Martin but had been unable to effect it. The trial court therefore admitted into evidence a transcript of Martin's testimony at an earlier temporary injunction hearing before the court. In that testimony, Martin stated that Mbaka assisted with Martin's procurement business and had long lived with Martin because Mbaka was "never stable enough to live on his own financially." Mbaka helped with logistics and payments, and his compensation was getting to live expense free in Martin's house. Martin described one occurrence when Mbaka had run out of signed checks to use and forged Martin's signature on a check. Martin warned Mbaka that doing so would get him into trouble, and they opened the Martin-Mbaka account so that Mbaka could handle payments on Martin's behalf. Martin explained that he needed Mbaka to help make payments at times because his bank did not allow him to make transfers while he was in Nigeria.
In regard to the fund transfers at the heart of this case, Martin asserted that Mbaka managed to get Martin's online banking password and transfer money from accounts on which he was not a signatory to the Martin-Mbaka account on which he was a signatory. Martin said that Mbaka was not authorized to make transfers without permission and that neither he nor Nwakor had authorized the transfers in question. He provided the details of the unauthorized transfers and concluded that these transfers totaled around $370,000 and were used to purchase, renovate, and furnish the San Antonio property Mbaka and Ihenacho owned. He further testified that Mbaka forged the signature on the back of the FRE refund check.
Martin's trial testimony. After Martin's testimony from the hearing was admitted into evidence, Martin appeared in court to testify on Mbaka's behalf. Martin asserted that after filing the lawsuit with Nwakor, he was subsequently able to clarify some things that he had misunderstood and he "found [his] conscience." He said that he realized that in fact he had authorized Mbaka to transfer the money in question and therefore Mbaka had not stolen it. He explained that Mbaka had simply decided to reconcile their accounts with respect to the vehicle export business and, in effect, Mbaka was taking his own money out from the transactions that they had previously made and did not need authorization to do so. Martin said that Mbaka had grown frustrated because he had not been paid by Martin and Nwakor for the borehole subcontract they had awarded him. Martin also insisted that some of the transfers in question had been made by himself or Nwakor.
Martin acknowledged that Nwakor and Mbaka had had "the best relationship" and talked a lot and Nwakor would sometimes tell Mbaka things she needed to have done and he would do them. Martin said that the earnest money for the FRE property came from his Nigerian businesses and was not from Nwakor's funds. He asserted that Mbaka informed him when the refund check came back from FRE and he (Martin) told Mbaka to sign and deposit the check. Martin rejected the suggestion that he needed Nwakor's permission to transfer funds from the Nwakor-Martin account.
On cross-examination, Martin stated that although he did not specifically authorize the transfers in question, Mbaka had authority to make the transfers as a signatory on the Martin-Mbaka account. While Martin recognized that from 2013 to 2015, he only reported income of between $41,000 and $70,000 a year, he explained that this did not include profit from his businesses in Nigeria. He further acknowledged that the $2 million used to purchase the home he and Nwakor owned came through her account, but he insisted that she was not the source of those funds.
Jury verdict and judgment. At the conclusion of the trial, the jury found for Nwakor on breach of fiduciary duty, constructive fraud, theft, conversion, unjust enrichment, and conspiracy. The jury also determined damages for each claim amounted to $359,000 and that $200,000 of this amount was used to purchase the San Antonio property. The trial court granted judgment favoring Nwakor specifically on her constructive fraud claim and awarded her damages of $359,000 plus interest and attorney's fees. As stated, the court further imposed a constructive trust lien on the San Antonio property and ordered foreclosure and sale of that property.
We will begin our analysis with Mbaka's third issue, regarding standing, because if he is successful on that issue, it would require us to render judgment dismissing Nwakor's claims. We will then address Mbaka's second issue challenging the legal and factual sufficiency of the evidence. We then turn to his first issue regarding the admission into evidence of certain documents and, lastly, the fourth issue challenging the order of foreclosure on his property. I. Standing
Mbaka's third issue contests Nwakor's standing to bring this lawsuit. Mbaka essentially maintains that Nwakor does not have standing to bring any claims based on the transfer of funds alleged in this case because those funds belonged to either himself or Martin and not Nwakor.
A. Standards of Review
Standing, a component of subject-matter jurisdiction, is a constitutional prerequisite to maintaining suit under Texas law. Tex. Ass'n. of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 444–45 (Tex. 1993). The standing doctrine requires a concrete, personal injury to the plaintiff that can be addressed by the court. See Heckman v. Williamson Cty. , 369 S.W.3d 137, 154 (Tex. 2012). For standing to exist, there must be a real controversy between the parties that will be determined by the judicial declaration sought. Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist. , 925 S.W.2d 659, 662 (Tex. 1996). Only the party whose primary legal right has been breached may seek redress for an injury. Alarcon v. Velazquez , 552 S.W.3d 354, 358–59 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). Without a breach of a legal right belonging to a specific party, that party has no standing to litigate. Id.
Standing cannot be waived and can be raised for the first time on appeal. Tex. Ass'n. of Bus. , 852 S.W.2d at 444–45. When reviewing standing on appeal, we construe the petition in favor of the plaintiff and, if necessary, review the entire record to determine whether any evidence supports standing. Id. at 446. Whether a party has standing to bring a claim is a question of law reviewed de novo. Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998).
Because the trial court awarded judgment to Nwakor specifically on her constructive fraud claim, we will first consider whether she had standing to make that claim. Because we conclude that she did have standing to raise that claim and, below, that the evidence supported the jury's affirmative finding on that claim, we need not and do not consider Nwakor's standing to bring her other claims. Mbaka contends that Nwakor lacked standing because she did not plead or present evidence that she owned the funds in question or that Mbaka withdrew any funds from her personal accounts. Although Mbaka acknowledges that Nwakor alleged that he appropriated funds from "the plaintiffs," he asserts that she failed to specify how the funds in question were transferred from her account. He further emphasizes that all Nwakor's allegations were based on transfers from the Martin-Mbaka account and she never alleged that Mbaka transferred any funds from her personal account. Mbaka also asserts that he did not owe Nwakor a fiduciary duty and she suffered no personal, concrete injury.
Although not a matter of standing, Mbaka briefly suggests under this issue that Nwakor did not plead a cause of action for constructive fraud. Generally, a judgment must conform to the pleadings. See Tex. R. Civ. P. 301 ; Adeleye v. Driscal , 544 S.W.3d 467, 484 (Tex. App.—Houston [14th Dist.] 2018, no pet.). A judgment unsupported by pleadings is typically void unless the claims in question were tried by express or implied consent of the parties. See Tex. R. Civ. P. 67 ; Adeleye , 544 S.W.3d at 484. Here, although Nwakor's live petition did not use the words "constructive fraud," she did plead that a fiduciary relationship existed, that Mbaka breached his fiduciary duties to her, and that he committed common law fraud against her. Common law fraud encompasses both actual and constructive fraud. Saden v. Smith , 415 S.W.3d 450, 470 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) ; Bank One, Tex., N.A. v. Stewart , 967 S.W.2d 419, 444 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).
Additionally, a breach of fiduciary duty is a form of constructive fraud, and pleadings alleging a breach of fiduciary duty have been held sufficient to allege fraud. See Redmon v. Griffith , 202 S.W.3d 225, 240 (Tex. App.—Tyler 2006, pet. denied), overruled on other grounds by Ritchie v. Rupe , 443 S.W.3d 856 (Tex. 2014) ; Stum v. Stum , 845 S.W.2d 407, 415 (Tex. App.—Fort Worth 1992, no writ). Accordingly, we conclude that Nwakor's pleadings were sufficient to raise a claim for constructive fraud in this case. See Stum , 845 S.W.2d at 415 (holding that pleadings were sufficient to raise a fraud claim despite not explicitly alleging fraud). Moreover, even if constructive fraud had not been properly pleaded, Mbaka offers no analysis regarding whether that claim was tried by consent. See Adeleye , 544 S.W.3d at 484.
Most of Mbaka's assertions run contra to Nwakor's live pleading and the evidence at trial. While it should be noted that in her amended petition—which was filed after Martin withdrew from the lawsuit—Nwakor still listed Martin as a plaintiff and used the plural term "plaintiffs" throughout, that does not negate the fact that she also identified herself as a plaintiff. Thus, when the amended petition states that Mbaka stole funds belonging to the plaintiffs, "use[d] the funds for personal purposes inconsistent with [his] obligations and responsibilities to Plaintiffs," and "the Plaintiffs sustained damages as a result," this is necessarily an allegation that Nwakor personally sustained a concrete injury due to Mbaka's actions. See Heckman , 369 S.W.3d at 154. Such language is used repeatedly throughout the amended petition, including in the background section and in the allegations of fraud and breach of fiduciary duty. Additionally, the petition alleged that "[t]he $220,000.00 [earnest money] deposit was funds from Chioma Nwakor and belong[ed] solely to Chioma Nwakor" and that Mbaka forged the reimbursement check and made unauthorized transfers of the funds for his own benefit. This, too, alleged a personal, concrete injury to Nwakor. See id.
Moreover, as we discuss in detail below regarding the sufficiency of the evidence, Nwakor repeatedly and consistently testified at trial that the money Mbaka transferred from the accounts belonged to her and not Mbaka or Martin and that she did not authorize the transfers in question. There was also evidence that the transfers in question went to benefit Mbaka and not Nwakor. Accordingly, both the live pleading and the evidence at trial supports the conclusion that Nwakor has standing to sue Mbaka for constructive fraud. See Tex. Ass'n. of Bus. , 852 S.W.2d at 446. We therefore overrule Mbaka's third issue.
II. Sufficiency of the Evidence
In his second issue, Mbaka challenges the legal and factual sufficiency of the evidence to support the jury's findings. As stated above, we need consider only the evidence as it pertains to the constructive fraud finding on which the trial court based its judgment.
A. Standards of Review
When reviewing for legal sufficiency, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that supports the finding. City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002).
In reviewing the factual sufficiency of the evidence, we consider all of the evidence and set aside the judgment only if it is so contrary to the overwhelming weight of the evidence that it is clearly wrong and manifestly unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986). The factfinder is the sole judge of witness credibility and the weight to be given testimony. Keller , 168 S.W.3d at 819.
Where, as here, the parties have not objected at trial to the substance of the law set forth in the jury charge, we review sufficiency of the evidence in light of the legal standards contained in the unobjected-to charge. See Osterberg v. Peca , 12 S.W.3d 31, 55 (Tex. 2000) ("[I]t is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge.").
The trial court's charge on constructive fraud reads as follows:
QUESTION NO. 4
Did Boniface Mbaka commit constructive fraud against Chioma Nwakor?
Constructive Fraud is the breach of a legal or equitable duty that the law declares fraudulent because it violates a fiduciary relationship. Constructive fraud encompasses those breaches that the law condemns as fraudulent merely because they tend to deceive others, violate confidences, or cause injury to public interests, the Defendant's mental state being immaterial. Constructive fraud is the breach of a legal or equitable duty which the law declares fraudulent because it violates a relationship of trust and confidence.
The jury answered the question "yes."
Mbaka argues that there was insufficient evidence that a fiduciary relationship existed between Nwakor and himself or that he committed any fraudulent action against Nwakor since he did not make any unauthorized transfers of Nwakor's money. Mbaka does not differentiate in his arguments between legal and factual sufficiency standards, so we will consider his arguments under both standards together.
1. Fiduciary Relationship
Although Question no. 4 did not define "fiduciary relationship," Question no. 1 did, and the trial judge generally instructed the jury that "[i]f my instructions use a word in a way that is different from its ordinary meaning, use the meaning I give you, which will be a proper legal definition." Question no. 1 asked whether a fiduciary relationship existed between Nwakor and Mbaka and then instructed the jury, "An informal fiduciary duty may arise from a moral, social, domestic or purely personal relationship of trust and confidence, generally called a confidential relationship. A familial relationship does not by itself establish a fiduciary relationship." It could be argued that this instruction was inadequate to convey relevant Texas law on informal fiduciary relationships, see, e.g., Cho v. Kim , 572 S.W.3d 783, 800 (Tex. App.—Houston [14th Dist.] 2019, no pet.), but Mbaka neither objected to this instruction below nor challenges it on appeal. Accordingly, this instruction provides the legal framework for analyzing the sufficiency of the evidence regarding the existence of a fiduciary relationship in this case. See Osterberg , 12 S.W.3d at 55 ; see also GB Tubulars, Inc. v. Union Gas Operating Co. , 527 S.W.3d 563, 568 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) ("Where, as here, the parties have not objected at trial to the substance of the law set forth in the jury charge, we review sufficiency of the evidence in light of legal standards contained in the unobjected-to charge.").
Nwakor presented evidence of several factors that together support the jury's conclusion that Nwakor and Mbaka were in an informal fiduciary relationship as defined by the charge, i.e., one that arose "from a moral, social, domestic or purely personal relationship of trust and confidence." First, both Nwakor and Martin testified that Nwakor and Mbaka had a very close relationship. Nwakor explained that she and Mbaka spoke daily, she trusted him, and he sought her guidance regarding his legal troubles. Martin stated that Mbaka would do things for Nwakor when she asked him. Second, Nwakor and Mbaka lived together. Although evidence indicated Nwakor spent much of her time in Nigeria, she trusted Mbaka and his family to live expense free in her home even when she was not there. Third, there was a history of trust in their relationship. Nwakor had previously left signed, blank checks for Mbaka to use as she directed. She also trusted him to make payments on her behalf when she was in Nigeria from accounts holding her funds, accounts for which he had direct access. As Nwakor put it, she entrusted Mbaka with her money. Additionally, she had twice loaned him money when his children were born and had awarded him a subcontract on a construction project. Lastly, Nwakor was engaged to Mbaka's brother, and they got married during the period when Mbaka was making the allegedly unauthorized transfers. Although the jury charge instructed that "[a] familial relationship does not by itself establish a fiduciary relationship," this suggests that a familial relationship could be a factor in establishing an informal fiduciary relationship.
Mbaka did not deny a personal relationship with Nwakor, but he did deny that she ever trusted him with her money. Mbaka asserted instead that the money in the accounts was either Martin's or related to Martin and Mbaka's business. As the trier of fact, however, the jury was free to believe Nwakor's testimony over that of Mbaka. See City of Keller , 168 S.W.3d at 819.
While the evidence was not overwhelming in support of the fiduciary relationship finding, when judged in light of the charge instructions, such evidence was more than a scintilla and not against the great weight and preponderance of the evidence. See BMC Software , 83 S.W.3d at 795 ; Cain , 709 S.W.2d at 176. Based on this evidence, the jury reasonably concluded that Nwakor and Mbaka were in an informal fiduciary relationship that arose "from a moral, social, domestic or purely personal relationship of trust and confidence."
2. Fraudulent Action
Mbaka next challenges the evidence regarding whether he committed any fraudulent act against Nwakor, i.e., under the terms of Question no. 4, an act that violated their relationship of trust and confidence. Specifically, Mbaka argues that (1) there was no evidence he withdrew any money from Nwakor's personal accounts, (2) the transfers in question were authorized, and (3) Nwakor and Martin owed him money. We will begin our analysis of this issue by reviewing the relevant evidence. We will then address Mbaka's specific arguments.
As set forth above, Nwakor testified in detail regarding Mbaka's unauthorized transfers from accounts holding her funds—and only her funds—to accounts or for purposes of Mbaka and Deluxe Barber School. According to Nwakor, the unauthorized transfers totaled $359,000 and went to pay for Mbaka's San Antonio property and to lease office space for Deluxe Barber School, among other things. Nwakor's testimony was supported by that of Stewart, the forensic accounting expert, who traced the flow of funds through the accounts with $359,000 ultimately going to benefit Mbaka and Deluxe Barber School. Stewart concluded based on the evidence he reviewed that Mbaka was responsible for the transfer of funds, neither Nwakor nor Martin authorized the transfer, and the transfer did not benefit them.
In his prior testimony, Martin stated that Mbaka was "never stable enough to live on his own financially." Martin further confirmed Mbaka made unauthorized transfers from the accounts and used them to purchase, renovate, and furnish the home in San Antonio. When he testified at trial, however, Martin asserted that he realized after his prior testimony that Mbaka in fact had authority to make the transfers and was simply reconciling their accounts and taking out his own money. In her testimony, Ihenacho confirmed that Mbaka paid cash for their house after the financing fell through, but she did not know where he got the money.
Mbaka testified that the funds in the relevant accounts came from his and Martin's businesses and were not Nwakor's funds. He said that he never withdrew any money from an account belonging to Nwakor, does not have access to her accounts, and did not need her permission to move money from the Martin-Mbaka account. He also asserted that Martin and Nwakor still owed him money on the borehole subcontract.
Mbaka first contends that there was no evidence he withdrew any money from Nwakor's personal accounts. While this statement is accurate, and, in fact, Nwakor testified that Mbaka did not withdraw any money from her "personal accounts," this does not mean that Mbaka did not wrongly acquire funds belonging to Nwakor. As stated, Nwakor repeatedly testified that Mbaka took $359,000 of her money from certain accounts without authorization. Martin also testified that Mbaka took money from the accounts without authorization, and Stewart traced the money from the accounts to uses benefitting Mbaka.
Moreover, contrary to Mbaka's assertions, the mere fact that he may have had access to certain accounts and the fact that the Mbaka-Martin account was a joint account did not mean that Mbaka owned any funds in those accounts. See Stauffer v. Henderson , 801 S.W.2d 858, 861 (Tex. 1990) ("It is not at all unusual for a person to deposit his or her funds into an account upon which another person is authorized to draw merely for the convenience of the depositor. The owner of the money intends only to facilitate disbursement of the funds for his or her own purposes, not to transfer title to the co-signator on the account."); see also Hicks v. State , 419 S.W.3d 555, 559 (Tex. App.—Amarillo 2013, pet. denied) ("[W]e conclude that a party to a joint account is entitled to lawfully draw monies from the account. That authority alone, however, does not establish the party's ownership of the funds. Nor does it alone divest title to the funds from the actual owner.").
Second, Mbaka contends that the transfers in question were authorized. Although Mbaka and Martin made this representation in their trial testimony, the jury was free to reject this testimony and instead believe Nwakor's testimony and Martin's prior testimony that the transfers were unauthorized. See City of Keller , 168 S.W.3d at 819.
Lastly, Mbaka asserts that Nwakor and Martin owed him money, thus suggesting that he was therefore entitled to take Nwakor's money from the accounts. Nwakor, however, denied that she owed Mbaka anything. The only documentary evidence Mbaka presented in this regard was an award letter relating to the borehole subcontract. Nwakor, however, testified that Mbaka never signed the subcontract and did not perform the work, and the documentary evidence does not refute this. Once again, the jury was free to accept Nwakor's testimony. See id.
Based on the foregoing analysis, more than a scintilla of evidence supports the jury's finding that Mbaka committed an act that violated his relationship of trust and confidence with Nwakor and such finding was not against the great weight and preponderance of the evidence. See BMC Software , 83 S.W.3d at 795 ; Cain , 709 S.W.2d at 176. Finding no merit in any of Mbaka's arguments, we overrule his second issue.
III. Authentication of Bank Records
In his first issue, Mbaka contends that the trial court erred in admitting Nwakor's exhibits 1-29 into evidence. In his brief, Mbaka alleges both that the exhibits contained hearsay and that Nwakor failed to authenticate them; however, in the trial court, Mbaka only objected based on lack of authentication. Accordingly, we will only address the authentication grounds in this appeal. See Tex. R. App. P. 33.1(a) (requiring a timely and sufficiently specific request, objection, or motion to preserve error for appeal).
The 29 exhibits at issue were all bank records and included records from a Ginscon Construction Company account in Nigeria (1, 2), the Nwakor-Martin account (3, 5, 7, 8, 13, 15), Nwakor's personal account (4, 6, 9), the Martin-Mbaka account (10, 11, 16, 18, 21, 22, 23, 25, 26, 27, 28), and the Quietstorm account (17, 20, 24), as well as a cashier's check to FRE and the reimbursement check from FRE (12, 14), Mbaka's personal financial statement (19), and a wire transfer slip from Deluxe Barber School's account to a title company (29). Voluminous bank records were also admitted in other exhibits from accounts belonging to Mbaka and Ihenacho as well as Mbaka's businesses, including Deluxe Barber School. Records from the title company used for the purchase of the San Antonio property were admitted as well. Mbaka did not object to the admission of these other financial records.
We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Gharda USA, Inc. v. Control Sols., Inc. , 464 S.W.3d 338, 347 (Tex. 2015). We will uphold the trial court's decision as long as it is within the zone of reasonable disagreement. Diamond Offshore Servs., Ltd. v. Williams , 542 S.W.3d 539, 545 (Tex. 2018). The authentication requirement "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a). Evidence may be authenticated in various ways, including by direct testimony from a witness with knowledge that a matter is what it is claimed to be. Tex. R. Evid. 901(b)(1) ; Nicholas v. Envtl. Sys. (Int'l) Ltd. , 499 S.W.3d 888, 900 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
A party seeking reversal based on the erroneous admission of evidence must establish that the error probably resulted in an improper judgment. Interstate Northborough P'ship v. State , 66 S.W.3d 213, 220 (Tex. 2001). Typically, this requires the complaining party to show that the judgment turns on the erroneously admitted evidence. Id. Thus, we ordinarily will not reverse a trial court's judgment on the basis of erroneously admitted evidence if it was cumulative and not controlling on a material dispositive issue. Tex. Dep't of Transp. v. Able , 35 S.W.3d 608, 617 (Tex. 2000). In determining if admission of the evidence in question probably resulted in the rendition of an improper judgment, we review the entire record. See Interstate Northborough , 66 S.W.3d at 220. We begin our analysis by noting that the majority of the challenged exhibits were also attached to Stewart's expert report, and Mbaka did not object to the admission of that report along with its attachments. See In re R.H.W. III , 542 S.W.3d 724, 740 (Tex. App.—Houston [14th Dist.] 2018, no pet.) ("When evidence identical or similar to the objected-to evidence is admitted elsewhere without objection, there is no harm.") (citing Reliance Steel & Alum. Co. v. Sevcik , 267 S.W.3d 867, 873 (Tex. 2008) ). This includes seventeen of the twenty-nine exhibits: 3, 8, 10, 11, 14, 16, 17, 18, and 20 through 28. Additionally, the details of two exhibits were also reflected in other exhibits. Exhibit 12 is the earnest money check written to FRE, and it is reflected in a bank statement that was attached to Stewart's report. Exhibit 29 is a wire transfer from Deluxe Barber School to the title company handling the purchase of the San Antonio property. It is reflected in the closing documents for that property, which were introduced in another exhibit (32). It was also the subject of testimony from multiple individuals. Accordingly, we conclude that any error in admitting these nineteen exhibits was harmless. See id.
Of the remaining ten exhibits, two were bank statements for one of Nwakor's businesses (1, 2), three were statements for her personal bank account (4, 6, 9), and four were statements for her joint account with Martin (5, 7, 13, 15). Nwakor specifically testified that these exhibits were statements for her bank accounts, she possessed knowledge regarding the statements, and she had reviewed them for accuracy. She further stated that she kept the statements in the course of regularly conducted business activity and she is the custodian of the statements. Although this testimony may not be a model for proving authenticity—for example, it would have been preferable for Nwakor to testify that the exhibits were "true and accurate" copies of the bank statements—we cannot say that admitting the documents based on this testimony was outside the zone of reasonable disagreement. See Tex. R. Evid. 901 ; Diamond Offshore , 542 S.W.3d at 545 ; Nicholas , 499 S.W.3d at 900 ; see also Miears v. McPherson , No. 04-17-00514-CV, 2019 WL 208584, at *2 (Tex. App.—San Antonio Jan. 16, 2019, pet. denied) (mem. op.) (holding property owner sufficiently authenticated his own property deed); Baker v. City of Robinson , 305 S.W.3d 783, 792 (Tex. App.—Waco 2009, pet. denied) (holding former city employee demonstrated knowledge sufficient to authenticate copy of city ordinance); cf. Harpst v. Fleming , 566 S.W.3d 898, 908 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (holding documents were not sufficiently authenticated when witness did not testify that each document "is what it is claimed to be," how he obtained the documents, or that the documents were accurate and unaltered). The trial court therefore did not err in admitting these nine exhibits.
That leaves exhibit 19, which is Mbaka's personal financial statement that he purportedly prepared in conjunction with the purchase of the San Antonio property. On cross-examination, Mbaka was questioned in detail about this statement. He acknowledged its accuracy on some points, but he did not specifically confirm that he wrote it. Regardless, it cannot be said that the judgment in this case turned on the admission of this document into evidence. See Interstate Northborough P'ship , 66 S.W.3d at 220. There was considerable other evidence regarding Mbaka's finances admitted into evidence, including bank statements for accounts of both Mbaka and his businesses as well as the testimony of Nwakor and Martin. Accordingly, any error in the admission of this document was harmless. We overrule Mbaka's first issue.
IV. Foreclosure Order
In his fourth issue, Mbaka contends the trial court erred in ordering foreclosure on the San Antonio property. As discussed above, Nwakor pleaded for and received a constructive trust lien on the San Antonio property and the trial court ordered foreclosure and sale of that property. Mbaka specifically argues under this issue that (1) foreclosure violated the Texas Constitution because the property was his and Ihenacho's homestead, (2) there was no testimony that he used money he improperly obtained from Nwakor to purchase the property, and (3) the jury was not asked a question about foreclosure. We find no merit in any of these arguments.
The Texas Constitution has long protected homeowners against the forced sale of their homesteads except for those classes of indebtedness specifically enumerated in Article 16, section 50(a) of the Texas Constitution. See Tex. Const. art. XVI, § 50 (a); Wood v. HSBC Bank USA, N.A. , 505 S.W.3d 542, 545 (Tex. 2016). Mbaka asserts that the San Antonio property was his and Ihenacho's homestead. In support, he cites to a printout from the Brazos County Appraisal District's website listing an "HS" exemption for that property. This printout was attached to Mbaka's motion for new trial.
Nwakor argues that Mbaka waived this argument by not submitting evidence during trial to establish that the property was his homestead. We presume without deciding that Mbaka preserved this argument in the trial court.
However, even if Mbaka properly designated the property as his homestead, he is not entitled to the constitutional protection against foreclosure under the circumstances of this case. Texas courts have long held that a homestead designation does not protect wrongfully acquired funds or property from foreclosure, because such funds or property are merely held by the acquirer in trust for the true owner; thus, when wrongfully acquired funds are used to purchase real property, no homestead rights can attach to that property. See, e.g., In re Estate of Byrom , No. 12-12-00374-CV, 2013 WL 3967432, at *1 (Tex. App.—Tyler July 31, 2013, pet. denied) (mem. op.) ("The homestead law does not protect property or funds obtained with money misappropriated by a fiduciary."); Bransom v. Standard Hardware , 874 S.W.2d 919, 928 (Tex. App.—Fort Worth 1994, writ denied) ("[T]he homestead protection afforded by the Texas Constitution was never intended to protect stolen funds."); Md. Cas. Co. v. Schroeder , 446 S.W.2d 117, 121 (Tex. Civ. App.—El Paso 1969, writ ref'd n.r.e.) (holding wife could not assert homestead rights in property purchased with money husband embezzled); Baucum v. Texam Oil Corp. , 423 S.W.2d 434, 442 (Tex. Civ. App—El Paso 1967, writ ref'd n.r.e.) ("It has long been decided that [the] homestead and exemption laws of this State were never intended to be, and cannot be, the haven of wrongfully obtained money or properties. [T]he property wrongfully obtained never belonged to the individual anyway."); see also Curtis Sharp Custom Homes, Inc. v. Glover , 701 S.W.2d 24, 25–26 (Tex. App.—Dallas 1985, writ ref'd n.r.e.) (en banc) (holding foreclosure was impermissible when embezzled funds were used only to improve and not purchase homestead property).
Mbaka further argues that there was no evidence that he used improperly obtained funds to purchase the property. The jury found that Mbaka used $200,000 of the money he unlawfully acquired from Nwakor to purchase the San Antonio property. This finding was supported by (1) Nwakor's testimony that Mbaka moved $359,000 of her money without permission from certain accounts and used that money for his own purposes, including $200,000 to purchase the San Antonio property; (2) Martin's testimony that Mbaka was "never stable enough to live on his own financially," made unauthorized transfers from the account and used them to purchase, renovate, and furnish a home in San Antonio, and forged Martin's signature on the back of the FRE refund check; (3) Ihenacho's testimony that Mbaka paid cash for the property after financing fell through but she did not know where he got it; (4) Stewart's testimony tracing the flow of funds through the accounts with $359,000 ultimately going to benefit Mbaka; and (5) documentary evidence supporting the conclusion that Nwakor's money was used to purchase the property. Mbaka and Ihenacho were not entitled to homestead rights in the San Antonio property because it was purchased with wrongfully acquired funds. See Byrom , 2013 WL 3967432, at *1 ; Bransom , 874 S.W.2d at 928 ; Curtis Sharp , 701 S.W.2d at 25–26 ; Schroeder , 446 S.W.2d at 121 ; Baucum , 423 S.W.2d at 442.
In his last argument on this issue, Mbaka complains that the jury was not asked a question specifically about foreclosure. Mbaka, however, neither cites any authority in support of this assertion nor makes a cogent argument that the issue was required to be submitted to the jury. Accordingly, this argument is inadequately briefed. See Tex. R. App. P. 38.1(i) ; Sklar v. Sklar , 598 S.W.3d 810, 827 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Finding no merit in any of Mbaka's arguments, we overrule his fourth issue.
Having overruled each of Mbaka's appellate issues, we affirm the trial court's judgment.