DONGMEI PAN AND ARCONSLP LLC v. LIHUA WANG AND SHUFENG ZHANG (2026)

OPINION

This appeal from a judgment rendered after a jury trial presents the novel question, “what duties arise from an extramarital relationship between two people, each of whom knows that the other is already married?” Does a married person have a cause of action for another married person's representation, or misrepresentation, of love for the paramour or for a broken promise to divorce one's spouse and marry the new love interest? Does, or should, Texas law recognize a cause of action for “fraud on the extramarital relationship”? Is an extramarital relationship a fiduciary relationship?

To all of these questions, the answer is no, and for the same reason: “[I]t is the policy of the law to encourage a continuation of the marriage relation and to lend no inducements to a discontinuance of it.”¹ As a matter of Texas law, neither party to the affair is bound by, or can justifiably rely on, promises and representations in contravention of that policy, and the trial court properly excluded duplicative evidence of them and refused to submit issues that rely on them.

The parties to this case also had employer/employee and contractual relationships, and they each claimed ownership of the same real property. We overrule the challenges to the legal and factual sufficiency of the evidence to support (a) the jury's finding that appellant Dongmei Pan fraudulently induced appellee Lihua Wang to pay her $44,0000; (b) the jury's finding that Pan alone breached a Joint Venture Agreement; (c) the jury's finding that Pan's company Arconslp LLC is liable to Wang for $16,000 in unpaid salary; and (d) the trial court's determination that Wang alone owns the disputed property. Finally, we find no abuse of discretion in the trial court's evidentiary rulings. Thus, we affirm the trial court's judgment.

I. FACTS

At all relevant times, Dongmei Pan and Lihua Wang have been married to other people. Wang and Pan began an extramarital affair in 2019 when Wang was Pan's subordinate at work. After Wang quit, their extramarital relationship continued long distance; Wang lived with his wife Shiyang Zhang and their daughter in Charlotte, North Carolina, and Pan lives with her husband in Texas.² Pan testified that in late 2019, Wang offered to leave his wife and marry Pan, and in early 2020, Pan accepted his marriage proposal despite her knowledge that she and Wang were already married to others.

In June 2020, Wang left his family and moved in with Pan and her husband. Pan had been laid off from her job but she created an income stream by starting a company, Arconslp LLC, that epoxies garage floors. While Wang lived with Pan and her husband, Pan used credit cards to pay for Wang's living expenses, her own living expenses, and Arconslp's business expenses.

A. Financial Transactions Among the Parties

Wang testified that Arconslp employed him, but Pan later denied this. Pan testified that she wanted to buy a house where she and Wang would live together, but Wang would not qualify for a mortgage if he revealed to lenders that he was actually unemployed. Pan could not overcome that barrier because she had been laid off from her job and was not authorized to work in the United States for another employer. According to Pan, their solution was to falsely identify Wang to lenders as an Arconslp employee.³ However, Arconslp's own records show that it paid Wang and withheld federal taxes, and Wang produced copies of documents he prepared as part of a bid package for an Arconslp customer. Wang testified that he continued working for Arconslp remotely when he was in Charlotte, North Carolina, in June through September of 2021, but that Arconslp did not pay him for those months.

There also were direct transfers of funds among Pan, Wang, and Arconslp that are likewise contested. Pan caused some payments Arconslp received from its customers to be paid or transferred to Wang, who testified that at least some of these payments went to him because he paid for the materials for those jobs. Pan additionally testified that she transferred some funds to Wang from her own account and from her joint account with her husband, and Wang testified that he also transferred money back to Pan.

But the largest disputed transfer is the money Pan claimed that she contributed to Wang's purchase of a house, discussed below.

B. The Real Property

On August 31, 2020, Wang signed a contract to purchase a house in Sugar Land (the Property) for $162,000. The sale closed on October 29, 2020. Although Pan argues that she contributed $44,000 toward the purchase of the house, she testified at trial that the $44,000 she refers to is the amount she owed to a friend for loaning her money—months after the purchase of the Property—to pay her credit-card debt.

As previously mentioned, Pan testified that while Wang lived with her and her husband, she used credit cards to pay for her living expenses, Wang's living expenses, and Arconslp's business expenses. In March of 2021, Pan told her friend and business associate Jian He that she had about $40,000 in credit-card debt on which she was being charged interest of around 20%. He offered to loan her money on better terms so she could pay off the debt. Pan drew up the promissory note, stating that she was borrowing $40,000 from He for one year at an annual rate of 10%, and would pay him $44,000 on March 8, 2022. Pan's attempts to obtain money from Wang to repay He would later become the subject of several claims and counterclaims between Pan and Wang.

C. The Joint Venture Agreement and Wang's Claim of Duress

Wang returned to North Carolina in May 2021 for his daughter's high-school graduation. A week later, he informed Pan that their relationship was over and that he had decided to reconcile with his wife. According to Wang, he continued working for Arconslp remotely.

Pan initially was distraught that Wang had left her, but after a few months, she began a campaign to make Wang, in her words, “lose [his] standing and reputation.”

Wang returned to Texas with his wife on September 26, 2021, to work on renovating the Property. While they were en route, members of Wang and Zhang's church in North Carolina received a blast email from Pan relating details of her affair with Wang and the negative things Wang allegedly had said about his wife. Pan included a link to an internet forum to which she said she would continue posting such things. She then messaged Wang, “I will share everything you have done with all your friends and family in China. Stay tuned!”

Wang and Zhang were still living at the Property on October 28, 2021, when Pan messaged Wang, “It hasn't even started yet. The great drama is about to unfold slowly.” She threatened to “build [Wang] a reputation” as versions of two Chinese entertainers she named. At trial, jurors received evidence that the two entertainers Pan named “are perceived by [the] Chinese public as scumbags because of messing with their female fans and young girls.”

On October 29, 2021—the day after that message—Wang signed a Joint Venture Agreement that Pan's attorney had prepared. The Agreement imposes financial obligations on Wang, but no benefits. It requires him to obtain Pan's advance approval of any remodeling and renovation projects on the Property, and of the budget for such projects, and to additionally pay for the mortgage payments, property taxes, and costs to maintain the Property. It requires him to complete the remodeling/renovations and list the Property for sale within six months, that is, by April 29, 2022, and to obtain Pan's approval of any purchase offer. However, the Agreement gives Pan “the first right to buy the Property over other prospective buyers at market price” as determined by an appraiser.

Upon the sale of the Property, the Agreement requires payments to be distributed in the following order: (1) the mortgage loan would be paid in full, (2) $44,000 would be paid to Pan, (3) Wang would be reimbursed for the costs and expenses he spent to maintain or renovate the Property, and (4) the remainder would go to Pan. If the sales proceeds were insufficient to pay off the mortgage and to pay Pan $44,000, then Wang would be responsible for any outstanding balance on the mortgage and “shall pay [Pan] out of his own pocket” the outstanding balance of the $44,000 within one day of the sale, with interest accruing on the unpaid balance at 2% per day. The Agreement neither required nor prohibited either party from possessing, accessing, occupying, or leasing the Property, but it acknowledged that Wang is the titleholder of record.

D. Wang's Claims of Fraudulent Inducement and Assault

Pan still was not content. Under the terms of the Agreement, Wang was not obligated to obtain $44,000 for Pan, either from the sale of the Property or from his own pocket, until after Pan's $44,000 debt to Jian He fell due.

The day after Wang signed the Agreement, Pan messaged him several times, stating that “it takes decades of work to build a good reputation, but a bad one would only take a few days to build.” She threatened to spread the same kind of information that she had sent to Wang and Zhang's church in North Carolina to Wang's daughter, his daughter's classmates, the Chinese community in New York, one of Wang's business associates, and “everyone whom we both know.” She said this “will bring stigma to Charlotte Church,” “completely discredit[ ]” “all of the Chinese churches in the United States,” and “your loved ones' reputation will all be ruined.”

On November 5, 2021, Pan physically attacked Wang. She went to the Property, and according to a witness who was there talking about the Bible with Wang's wife Zhang, Pan either entered through a partly open door or kicked the door in. Pan repeatedly slapped Wang, and hearing this, the visitor hurriedly left.

Wang's testimony suggests a motive for Pan's behavior. He testified that Pan “kept urging me to transfer her—transfer $44,000,” and “she said, if I do—I do not—I did not do that, I was not allowed to leave [Houston].” Wang further testified that Pan had three conditions for them to “break up peacefully”: (1) Wang had to pay Pan $44,000, (2) Wang had to have sex with her 20 times, and (3) Wang had to work for her for free for two years. According to Wang, he would not agree to the second and third conditions, so Pan revised them, eliminating the third condition entirely and reducing the second condition to instead require Wang to satisfy her sexually “three to five times.”

Wang agreed. He had sex with Pan three times, the last time being on November 22, 2021. Wang and his wife left to return to North Carolina the same day.

Unbeknownst to Wang, Pan had recorded these sexual encounters. Wang testified that Pan sent a recording of the last encounter not only to Wang's church in North Carolina, but also to Chinese churches in other states.

At this point, Wang's wife agreed to loan Wang $44,000 to pay off Pan. She transferred $44,000 to Wang from her bank in China, and on December 1, 2021, Wang transferred the money to the Chinese account designated by Pan. This was corroborated by bank records and by Jian He. He testified that Pan told him in December 2021 that the money Pan owed him would be transferred to his bank in China, and he stated that the money did not come from Pan's bank but from “her friend's bank.”

According to Wang, Pan then attempted to revise her conditions yet again, telling Wang to either pay her $250,000 or transfer title to the Property to her. Wang testified that he refused, and that Pan later told him he should give her a million dollars. Again, Wang refused Pan's post-payment attempts to revise her conditions for a peaceful break-up.

Wang and his wife returned to the Property on March 30, 2022, but Wang's break-up with Pan did not become any more “peaceful.” That night, Pan came to the Property with He and another man. Wang testified that they “demanded that I transfer the deed to Ms. Pan and leave Houston immediately.” Wang stated that before he could respond, Pan began slapping him repeatedly, “[o]ver ten times.” Jian He testified that Pan only slapped Wang once before He stopped her. The encounter ended after Wang's wife Zhang called the police, who took Pan away.

Jian He testified that when Pan was not present, Wang claimed to own the Property. When asked what Wang said of the Property when Pan was present, He stated that “[Wang] doesn't give specific answer. But he just tell Ms. Pan he says the house is yours, you know.”

E. The Lawsuit

Four days after Pan assaulted him for the second time, Wang signed a listing agreement to sell the Property. Pan immediately filed a notice of lis pendens, so the listing was removed less than three hours after it was posted. A week later, Pan filed this suit, and when the suit had been pending for nearly two years, Wang added his own counterclaims.

After many of the parties' claims and cross-claims were decided by directed verdict or eliminated at the charge conference, the remaining claims were submitted to the jury, excepting only the competing claims to ownership of the Property; that issue was later decided by the trial court. It appears from the judgment that the jury and the trial court rejected Arconslp's and Pan's arguments that Wang's employment and his purchase of the Property were fraudulent. The jury found that Arconslip should pay Wang salary for June through September 2021; that Pan alone breached the Joint Venture Agreement; that Pan fraudulently induced Wang to pay her $44,000; and that Pan assaulted Wang. On the other hand, jurors assessed no damages against Pan except for a nominal award of $1 for assault. They did, however, hold Arconslp liable to Wang for $16,000 in unpaid salary. The trial court resolved the Property claim in Wang's favor and declared Pan's notice of lis pendens null and void.

Pan moved unsuccessfully for judgment notwithstanding the verdict and for a new trial before bringing this appeal.

II. ISSUES PRESENTED

When a party presents multiple grounds for reversal, we begin with those that could result in the greatest relief. Zarsky v. White, 704 S.W.3d 211, 217 (Tex. App.—Houston [14th Dist.] 2022, pet. denied). As a result, we generally decide issues that could result in rendition of judgment before those for which remand is the only remedy. Bradleys' Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (per curiam) (citing TEX. R. APP. P. 43.3). We accordingly begin with challenges to the legal sufficiency of the evidence. But because challenges to the factual sufficiency of the evidence require us to review the same material included in our legal-sufficiency review, we have reordered the issues presented to address legal and factual sufficiency together.

As we have reordered the issues, Pan and Arconslp argue that (1) there is legally insufficient evidence that Pan fraudulently induced Wang to pay her $44,000; (2) there is legally and factually insufficient to support the jury's findings that Pan breached the Joint Venture Agreement; (3) there is legally and factually insufficient evidence to support the jury's findings that Wang did not breach the Joint Venture Agreement and that Pan did breach the Agreement; (4) the evidence is legally or factually insufficient to support the findings holding Arconslp liable to Wang for $16,000 in unpaid salary; (5) the evidence is legally or factually insufficient to support the trial court's determination that Wang owns the Property; (6) because there was legally sufficient evidence of Pan's claims for fraud on the extramarital relationship, breach of fiduciary duty, and unjust enrichment, the trial court reversibly erred in failing to submit them to the jury; (7) the trial court abused its discretion in granting Wang's motion to withdraw most of his deemed admissions; (8) the trial court erred in denying Pan's motion to exclude undisclosed evidence of Wang's damages; and (9) the trial court erroneously excluded some of Pan's “relationship evidence.”

III. CHALLENGES TO THE SUFFICIENCY OF THE EVIDENCE

Our legal-sufficiency review of a jury finding begins with the jury's charge. In the absence of an objection to the charge, we measure the sufficiency of the evidence against the charge as submitted. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). Here, none of issues presented concern a preserved charge objection.

When measuring the legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict, crediting the evidence supporting the verdict if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally insufficient if (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or 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. Id. at 810. The ultimate test is whether the evidence at trial would enable reasonable and fair-minded people to reach the answer under review. Id. at 827.

When a party challenges the factual sufficiency of the evidence, we review all of the evidence in a neutral light and will reverse the trial court's judgment only if the evidence supporting the finding is so weak, or so contrary to the overwhelming weight of the evidence, as to make the judgment clearly wrong and manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We may not substitute our judgment for that of the factfinder, even if the evidence would clearly support a different result. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998).

Finally, whether reviewing the evidence for legal or for factual sufficiency, we defer to the jury's reasonable credibility determinations. Wilson, 168 S.W.3d at 820; Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004).

A. Wang's Fraudulent-Inducement and Breach-of-Contract Claims Against Pan

Pan's first two issues challenge the jury's findings against her on Wang's claims of fraudulent inducement and breach of contract; however, the jury assessed no damages for either cause of action, and errors in civil cases are not reversible unless the error “probably caused the rendition of an improper judgment” or “probably prevented the appellant from properly presenting the case to the court of appeals.” TEX. R. APP. P. 44.1(a).

Pan asserts that the jury's finding that she breached the Joint Venture Agreement was harmful because Wang used Pan's breach as an excuse for his own failure to perform under the contract. But the jury charge shows otherwise. Wang's and Pan's respective claims for breach of contract were submitted independently, and the jury was instructed that Wang's failure to comply with the Agreement is excused if (1) Wang entered the Agreement under duress caused by Pan, or (2) Pan waived compliance. Jurors were not permitted to excuse Wang's alleged noncompliance on the ground that Pan, too, breached the Agreement.

In sum, it is unnecessary to detail the evidence supporting the jury's challenged findings because the findings were harmless in any event. We overrule these two issues.

B. Pan's Claim for Wang's Breach of the Joint Venture Agreement

In this issue, Pan challenges the jury's negative answer to the following question:

QUESTION NO. 9

Did Wang fail to comply with the Joint Venture Agreement?

Instruction

Failure to comply by Wang is excused if the agreement was made under duress caused by Pan. Duress is the mental, physical, or economic coercion of another, causing that party to act contrary to his free will and interest. The threat of harm must be imminent, and the threatened party must have no present means of protection. It must cause the threatened person to do what there was no legal obligation to do.4

Failure to comply by Wang is excused if compliance is waived by Pan. Waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right.

Pan contends that the evidence is legally insufficient to support the jury's negative answer because the evidence conclusively establishes that Wang breached the Agreement, and there is no evidence that Wang signed under duress from Pan or that Pan waived compliance with the Agreement.⁵ Because we conclude that there is legally sufficient evidence of duress as defined in the jury charge,⁶ we do not address Pan's remaining arguments.

In light of the Agreement's content and the timing of its execution, jurors could reasonably infer that Wang signed the Agreement under duress as defined in the jury charge. The Agreement itself is “all stick and no carrot”; it required Wang to assume obligations and liabilities but conferred no rights or benefits. It required Wang to remodel or renovate the Property, maintain it, and make the mortgage and tax payments, all at his own expense, then list it for sale. After the sale, which Pan must approve, Wang would receive, at best, reimbursement of those costs. At worst, the sales proceeds would not be enough to pay off the mortgage and to pay Pan $44,000, leaving Wang personally liable for the deficiency. Thus, the Agreement itself provides no incentive for Wang to sign it. In doing so, Wang was doing what he had no legal obligation to do: if he owned the Property, he was not legally obligated to convey the sales proceeds to Pan, and if he did not own it, then he had no legal obligation to Pan to renovate and maintain her Property.

Pan, however, offered disincentives for refusing to sign the Agreement. While Wang and Zhang were on their way to Texas on September 26, 2021, Pan had emailed the membership of Wang and Zhang's church with details of Wang's infidelity, as well as offensive statements about Wang's wife that Pan attributed to Wang. Moreover, Pan had included with the email a link to an internet site with assurances that she would continue to post more such information at the site in the future. Wang testified that he was “scared” because Pan “said she will continue sending messages like this.”

Pan argues that Wang could not have signed the Agreement under duress because Wang himself proposed the terms on September 26, 2021—the same day that Pan sent the blast email to Wang and Zhang's home church. But the evidence she cites is a message from Wang on that day, stating, “I think I can come over to resolve three things. 1. Matters between us, 2. Matters concerning our common assets, 3. The Hailiang project and me and other miscellaneous matters.”⁷ Jurors reasonably could have found that Pan's representation that Wang proposed the terms of the Agreement at that meeting is inconsistent with Pan's message to Wang two days later:

You have been here for several days, and you should tell me about the future arrangements for the house. After all, I am the real owner of this house. You left whenever you wanted, as if you and I were never together. You also come whenever you want and stay there without consulting my opinion. You act like you are living in a place that has nothing to do with me. You never tell me your arrangements. Is it appropriate for you to do this to me? I have endured it again and again, and I can no longer tolerate what you do. I almost couldn't help but rush into [the Property] to fight with you. Please tell me your arrangements now.

Wang replied,

Find someone to renovate it first, then sell it.

That's basically what I think.

Find someone to look at the remodeling first.

Stop making troubles now. I haven't finished the thing with the church yet.8

The next day, Pan twice messaged Wang that she was so angry that she could no longer control herself.

The day before Wang signed the Agreement, Pan renewed her earlier threat, texting him, “It hasn't even started yet. The great drama is about to unfold slowly.” She stated that she would “build [him] a reputation” like that of two other people that were identified to the jury as people “perceived by [the] Chinese public as scumbags because of messing with their female fans and young girls.”

Finally, on October 29, 2021, Pan sent Wang another email containing language that jurors could reasonably construe as a veiled threat against his reputation and business interests:

You ran away with your house. If you want to repay the money, then you will repay it no matter what, and you will even donate your blood or kidney to repay it, because you have been irresponsible and walked away, leaving me in debt to buy a house for you, and leaving me physically and mentally harmed by you ․ Not to mention that you own multiple properties in Shanghai and the United States and ha[ve] accumulated the social connections over 30 years. You can even borrow them all․ Only those who believe in you will become fools in the end․

․

One day, you will understand that people who are too selfish will eventually be criticized by thousands of people and lose their dignity throughout their lives.

Wang signed the Agreement that day.

There also is evidence that weighs against an implied finding of duress. Perhaps the strongest of that evidence is Wang's email to Pan on October 28, 2021, in which Wang stated, “I have no objection to the terms that have been written in the contract,” and questioned Pan about the tax consequences of the Property's eventual sale. But on the other hand, Pan expressly threatened Wang's reputation later that same day in her message that “[t]he great drama is about to unfold slowly.” Especially when one considers that Pan had already publicized her affair with Wang to the members of his church without any prior warning, jurors reasonably could conclude that Pan was purposefully communicating an imminent threat of harm to Wang's reputation from which Wang had no means of protection.

Viewed in the light most favorable to the verdict, the evidence is legally sufficient to support the jury's finding that Wang did not breach the Joint Venture Agreement, and the jury's implied finding that Wang was excused from complying with the Agreement because he signed it under duress. Viewing all of the evidence in a neutral light, the evidence supporting these express and implied findings is neither so weak, nor so contrary to the overwhelming weight of the evidence, as to make the findings clearly wrong and manifestly unjust. We accordingly overrule this issue.

C. Wang's Wage Claim Against Arconslp

Arconslp argues that the evidence is legally or factually insufficient to support the jury's findings of liability and damages for Wang's unpaid salary. The jury made those findings in response to the following questions:

QUESTION NO. 14

Should Arconslp pay salary to Wang for June to September 2021?

QUESTION NO. 15

What is the reasonable value of Wang's salary owed by Arconslp?

The jury answered Question 14 in the affirmative, and in response to Question 15 the jury found that the reasonable value of Wang's salary for those four months was $16,000. These questions appeared for the first time in the final draft of the charge, and because Pan neither objected to the final draft nor proposed any changes, she failed to preserve any complaint of charge error.⁹ We accordingly measure the sufficiency of the evidence by the charge as submitted.

Pan first argues that Wang failed to disclose evidence of these damages, but that argument does not affect the legal or factual sufficiency of the evidence; it is instead a complaint about the trial court's denial of Pan's motion to exclude undisclosed evidence of damages, which we address infra in Section IV.B.

In Pan's remaining arguments, she contends that the jury's finding that Arconslp should pay salary to Wang for June through September of 2021 cannot stand because there is legally or factually insufficient evidence of various elements of an unjust-enrichment claim or of unjust-enrichment damages. But Questions 14 and 15 do not mention unjust enrichment or any of its elements or available damages. Jurors were instructed only to answer Question 14 “ ‘Yes’ or ‘No,’ ” and to answer Question 15 “with an amount in dollars and cents.” Substantively, jurors had unfettered discretion to rely on any criteria they chose when deciding whether Arconslp “should ․ pay salary to Wang” for the four months at issue. And because we cannot know what criteria the jurors used, or even if they all used the same criteria, we cannot conclude that the evidence on which they relied is legally or factually insufficient.

We overrule this issue.

D. Wang's and Pan's Cross-Claims of Property Ownership

Wang is the Property's legal titleholder, but Pan claims that Wang holds the property in a purchase-money resulting trust for her benefit.

A purchase-money resulting trust “arises by operation of law when title is conveyed to one person but the purchase price or a portion thereof is paid by another.” Cohrs v. Scott, 161 Tex. 111, 115, 338 S.W.2d 127, 129 (1960). At the moment the deed is executed conveying the property to the legal titleholder, the person who provided the purchase price acquires equitable title; if that person paid only a portion of the purchase price, then the person acquires equitable title in the same proportion that the contributed funds bear to the total price. Haynes v. Molina, No. 01-19-00917-CV, 2021 WL 4155822, at *6 (Tex. App.—Houston [1st Dist.] Sept. 14, 2021, pet. denied) (mem. op.). The legal titleholder is considered to hold the property in trust for the benefit of the equitable titleholder. Id. But for a resulting trust to arise, “the payment must be made at the time of purchase and the person seeking to impose a resulting trust must have paid the money in the character of a purchaser.” Sahagun v. Ibarra, 90 S.W.3d 860, 864 (Tex. App.—San Antonio 2002, no pet.) (citing Lifemark Corp. v. Merritt, 655 S.W.2d 310, 317 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.)). If the person who paid all or part of the property's purchase price did so as a loan to the legal titleholder, then the payor acquires no equitable title. Lifemark Corp., 655 S.W.2d at 318.

Pan contends that the trial court's judgment in Wang's favor on the parties' competing claims of Property ownership must be reversed because (1) Pan conclusively proved that she is the equitable owner of the Property due to a purchase-money resulting trust; (2) Wang's $44,000 payment to her is not relevant to ownership of the Property; (3) the trial court abused its discretion by overruling her hearsay objection to two of Wang's exhibits used to show that he paid the mortgage on the Property, and (4) the Property was not a gift to Wang.

As a threshold matter, Wang argues that we cannot reach the merits of Pan's arguments concerning a purchase-money resulting trust because Pan did not plead the existence of such a trust but instead raised the issue for the first time in her post-trial motions. We disagree. A claim has been sufficiently pleaded if “the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). Pan alleged that she holds equitable title to the Property due to her payment of the purchase money, and that the Property was titled under Wang's name “for temporary convenience.” She asked the court to hold that the Property belongs solely to her. This was sufficient. See Johnson v. Coppel, No. 01-09-00392-CV, 2012 WL 344757, at *3–4 & n.3 (Tex. App.—Houston [1st Dist.] Feb. 2, 2012, no pet.) (mem. op.) (plaintiff adequately pleaded a purchase-money resulting trust by alleging that he has equitable title; that he paid the full purchase price; and that he seeks “to set aside the other deeds and vest all title—both legal and equitable—in his name”).

Pan, however, did not conclusively prove that she has equitable title. A person seeking to establish that he or she paid a portion of the purchase price “in the character of a purchaser” “must prove that the consideration paid to the grantor was at the time it was paid to the grantor the property of [the payor].” Lifemark Corp., 655 S.W.2d at 316–17. But by Pan's own testimony, the $44,000 she refers to as part of the Property's purchase price is the amount that she owed to Jian He for a personal loan to pay off her credit cards, and there is no evidence that when Wang purchased the Property, he paid part of the purchase price using Pan's credit card.

In her appellate brief, Pan asserts that there is “sufficient evidence” to prove equitable title, and refers us to particular paragraphs of her motion for new trial. But in the motion, Pan stated that “she, through her personal funds and company's income, provided money and resources to enable Wang to pay the down payment and get [a] mortgage loan through his account” and that she “provided money to Wang to increase Wang's financial ability to purchase the Property.”¹⁰ But helping Wang to pay for the Property and increasing Wang's ability to finance it is not the same thing as paying part of the purchase price herself “in the character of a purchaser.”

Moreover, Pan stated that she provided this financial assistance in the form of “salary and bonus payment from Arconslp,” “direct payment from Arconslp customers to Wang,” and “Pan's personal funds.” But Pan has not shown that these funds were her property when Wang paid the Property's seller. Money that Wang was paid by Arconslp and its customers were not shown to be Pan's property, and some of the personal funds she refers to were transferred from Pan's joint account with her husband. None of the transfers of personal funds occurred at the time Wang purchased the Property; all or nearly all were made before Wang had even contracted to buy the Property.

Pan's remaining arguments do not support her contention that the trial court erred in implicitly rejecting her claim of equitable title. She argues that Wang's $44,000 payment to her is not relevant to ownership of the Property, but she did not raise that objection when the evidence was admitted. Moreover, the payment is some evidence that the money Wang received to increase his ability to purchase the Property was intended as a loan. Pan also maintains that the trial court abused its discretion in overruling her hearsay objection to two exhibits Wang offered to show that he made the mortgage payments on the Property. Admission of that evidence was harmless in any event because it was cumulative; Wang testified without objection that he made the mortgage payments, and Pan does not contend otherwise. Finally, Pan's assertion that she did not gift the Property does not affect our analysis because there is no “gift” finding to contest.

In sum, the conflicting evidence is legally and factually sufficient to support, but not to compel, judgment for either party, and the trial court reasonably found the evidence favoring Wang to be more credible.

We overrule this issue.

E. The Trial Court's Refusal to Submit Pan's Additional Claims

Pan next contends that the trial court erred in refusing to submit her claims for fraud on the extramarital relationship and breach of fiduciary duty, as well as claims by both herself and Arconslp for unjust enrichment.

A party is entitled to a jury question, instruction, or definition if the pleadings and evidence raise that issue. TEX. R. CIV. P. 278. If there is some evidence to support the submission, the trial court commits reversible error if it fails to do so. See MEMC Pasadena, Inc. v. Riddle Power, LLC, 472 S.W.3d 379, 388 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (discussing a jury instruction). We review a trial court's decision to refuse a particular jury question or instruction for abuse of discretion. See Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam).

1. Fraud on the extramarital relationship

The trial court rendered a directed verdict against Pan on her claim for breach of the promise to marry, and she does not challenge that ruling. Nevertheless, Pan argues on appeal that Wang made material misrepresentations to Pan “that she was his only true love, he would divorce his wife, and he would marry Pan.” She contends that because Wang made such representations, the trial court erred in refusing her proposed jury question, “Did Wang commit fraud against Pan in connection with their personal relationship?”

Pan refers to this as “fraud on the relationship,” but the type of relationship matters. Although “fraud on the community” is a doctrine that can affect the division of community property in a divorce action, there is no analogous doctrine for “fraud on the extramarital relationship.”

The existing cause of action for fraud also does not apply. One of the elements that a plaintiff must prove in a fraud claim is that the plaintiff “actually and justifiably relied upon the representation and thereby suffered injury.” Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). But “a person may not justifiably rely on a representation if there are ‘red flags’ indicating such reliance is unwarranted.” Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010) (quoting Lewis v. Bank of Am. NA, 343 F.3d 540, 546 (5th Cir. 2003)) (cleaned up). Here, Pan could not justifiably rely on Wang's promise to divorce his wife and marry the already-wedded Pan, because Pan's knowledge of the pre-existing marriages is such a “red flag” as matter of law. See Dismukes v. Burt, 279 S.W.2d 493, 494 (Tex. App.—Fort Worth 1955, no writ) (promisee's own marriage “inhibits any reliance” on such assurances). Thus, there was no viable fraud claim to submit.

2. Breach of fiduciary duty

Pan argues on appeal that the trial court erred in failing to submit her cause of action for breach of fiduciary duty. The only basis Pan asserts for concluding that she and Wang had a fiduciary relationship is her statement they “were in a romantic relationship and cohabitated together from 2019–2021. A relationship of trust and confidence existed between them due to this relationship.” But such evidence is legally insufficient, as a matter of law, to support the existence of an informal fiduciary relationship. See In re Estate of Grogan, 595 S.W.3d 807, 817 (Tex. App.—Texarkana 2020, no pet.) (“[E]vidence of a romantic relationship, even a long-standing one, does not constitute evidence of a fiduciary relationship.”); Smith v. Deneve, 285 S.W.3d 904, 911–12 (Tex. App.—Dallas 2009, no pet.) (evidence that an unmarried couple lived together for fourteen years, had joint bank accounts and insurance policies, and shared expenses is insufficient to raise a fact issue on the existence of an informal fiduciary relationship). The trial court accordingly did not err in refusing to submit this claim to the jury.

3. Unjust enrichment

Pan complains of the trial court's refusal to submit Questions 21–24 of the Proposed Charge. Proposed Question 21 asked if Wang was unjustly enriched by obtaining benefits from Pan, and was accompanied by the instruction, “The doctrine of unjust enrichment is appropriate ‘when one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage.’ ” Proposed Question 22 was the accompanying damage question. Proposed Question 23 was the liability question on Arconslp's unjust-enrichment claim, with the same instructions about fraud, duress, or the taking of an undue advantage, and Proposed Question 24 was its accompanying damages question. For argument in support of this issue, Pan refers us to three paragraphs in her motion for new trial. There, she argued that Wang was unjustly enriched by obtaining benefits from her by occupying the Property, allowing his family members to live there, and by leasing the Property to others. These are not benefits that Wang received from Pan because the trial court concluded that Wang owns the Property. As for Arconslp's unjust-enrichment claim, Arconslip argued that Wang was unjustly enriched by receiving extra salary and receiving payments directly from Arconslp's customers. But the proposed damages question on Arconslp's unjust-enrichment claim did not ask the jury to consider extra salary, and as for money Wang received directly from Arconslp's customers, Pan, as Arconslp's owner, authorized the payments to enable Wang to purchase the Property, and he used the money as intended. That she did so in reliance on Wang's promise to divorce Zhang and marry Pan does not render Wang's retention of that benefit unjust, given that Pan's reliance on Wang's promise was itself unjustifiable.

We overrule Pan's challenges to the trial court's refusal to submit these causes of action.

IV. EVIDENTIARY RULINGS

Pan's remaining issues challenge the trial court's rulings (a) granting Wang's motion to withdraw deemed admissions, (b) denying Pan's motion to exclude evidence of Wang's undisclosed damages; and (c) sustaining objections to particular testimony by Pan at trial.

We review evidentiary rulings for abuse of discretion. Zarsky, 704 S.W.3d at 222 (citing Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016)). An appellate court may not reverse a judgment on the ground that the trial court made an error of law unless the error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting the case on appeal. TEX. R. APP. P. 44.1(a). If the erroneously admitted or excluded evidence was crucial to a key issue, then the error was likely harmful. Zarsky, 704 S.W.3d at 222. The ruling was likely harmless if the evidence at issue was cumulative or the remaining evidence was so one-sided that the error likely made no difference. Id.

A. The Trial Court's Grant of Wang's Motion to Withdraw Deemed Admissions

Although Pan complains of several evidentiary rulings, she focuses primarily on the trial court's ruling granting Wang's motion to withdraw 97 of 163 deemed admissions.

Pan had served the requests for admission on November 17, 2022. Wang's counsel Yanpin Yang did not answer them when due, and Pan's attorney Wanchan Ohyan emailed Yang on December 29, 2022, reminding her that Wang's answers to the requests for admissions were past due and requesting an immediate response. On January 5, 2023, Yang replied that Wang's discovery responses “will be sent to you soon.” Over a year later, Pan filed a traditional motion for partial summary judgment in which she cited nearly fifty of Wang's deemed admissions as support for the motion. Wang neither answered the requests for admission nor moved to withdraw them. His summary-judgment response is not in the record, but he filed two sur-replies, neither of which mention the deemed admissions. The trial court denied Pan's summary-judgment motion.

A week before trial, Pan included the deemed admissions on her exhibit list and asked in her motion in limine that Wang's counsel approach the bench before attempting to introduce evidence contradicting the deemed admissions. This finally prompted Wang's counsel to file a motion to withdraw most of the deemed admissions. With trial days away, the trial court granted the motion to withdraw.

On appeal, Pan argues that the trial court erred in granting the motion because (1) opposing counsel's delay was unreasonably long and showed a substantial lack of diligence, and (2) Pan was substantially prejudiced by the delay.¹¹

To determine whether the trial court's ruling was an abuse of discretion, one first must identify the standard the trial court had to apply. That standard varies depending on whether the deemed admissions would preclude the admitter's claims or defenses from being litigated on the merits. If the deemed admissions are not merits-preclusive, the trial court may grant a motion to withdraw them if the movant shows (a) good cause for the withdrawal; and (b) the opposing party will not be unduly prejudiced by the withdrawal, which will subserve presentation of the case on the merits. If the deemed admissions are merits-preclusive, then due-process concerns are implicated just as they are with death-penalty sanctions. The party opposing withdrawal bears the burden to show the movant's “flagrant bad faith or callous disregard for the rules”¹² —conduct that would justify a presumption that the movant's claims or defenses lack merit ¹³ —and a heightened degree of “undue prejudice.” See Marino v. King, 355 S.W.3d 629, 634 (Tex. 2011) (per curiam) (“[T]here is nothing to suggest that King was unable to prepare for trial without the admissions and thus no evidence that their withdrawal will cause him undue prejudice ․”); Yacoub v. SureTec Ins. Co., No. 14-13-00274-CV, 2015 WL 1928618, at *4 n.4 (Tex. App.—Houston [14th Dist.] Apr. 28, 2015, no pet.) (mem. op.) (no undue prejudice absent evidence that party would be unable to prepare for trial).

In response to Wang's motion to withdraw most of his deemed admissions, Pan asserted that the deemed admissions “are about underlying facts,” but this does not mean that they are not merits-preclusive; indeed, she states in the same response that her earlier traditional motion for partial summary judgment was “based on Defendant's deemed admissions.” Primarily, Pan argued that Wang had failed to show good cause under the non-merits-preclusive standard, that is, he failed to show that his failure to respond was neither intentional nor the result of conscious indifference but was instead due to accident or mistake. Pan asserted she would be unduly prejudiced because Wang filed his motion to withdraw just five days before trial, so “several fact issues will suddenly be at dispute,” but Pan would be unable to conduct further discovery or amend her pleadings. Her only argument under the merits-preclusive standard was, “Defendant's significant delay in responding to RFA are in flagrant bad faith or callous disregard for the rules.”

Pan has not cited, and we have not found, any case in which the reviewing court held that a trial court abused its discretion in allowing a party to withdraw merits-preclusive deemed admissions before trial. Given that requests for admissions are not intended to preclude trial on the merits,¹⁴ some courts have gone so far as to hold that any prejudice resulting from relying on such admissions and failing to prepare to try the case on the merits is not “undue.”¹⁵

Without enunciating such a bright-line rule, we nevertheless are not persuaded that the facts in this case are so egregious that the trial court lacked discretion to permit withdrawal of the deemed admissions. The trial court reasonably could conclude that even if Wang's attorney was grossly negligent in failing to move for withdrawal sooner, the circumstances did not justify a presumption that Wang's claims and defenses lack merit. See also E.I. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (reviewing court cannot conclude that the trial court abused its discretion simply because the reviewing court would have ruled differently or the trial court “committed a mere error in judgment.”).

We overrule this issue.

B. The Trial Court's Denial of Pan and Arconslp's Motion to Exclude Undisclosed Evidence of Damages

Shortly before trial, Pan and Arconslp filed a motion to exclude evidence of Wang's damages that were not included in his amended disclosures under Texas Rule of Civil Procedure 194.2(b)(4). They contend that Wang's amended disclosures, filed on the last day of discovery, do not disclose the amounts of his economic damages and the methods used in calculating them, and thus, the trial court erred in denying the motion. Because Wang succeeded in recovering economic damages only on his claim against Arconslp for unpaid wages, this issue appears to be directed to Wang's wage claim.

Under the Texas Rules of Civil Procedure, litigants must disclose, among other things, “the legal theories, and in general, the factual bases of the responding party's claims or defenses.” TEX. R. CIV. P. 194.2(b)(3). Litigants also must disclose “the amount and any method of calculating economic damages.” TEX. R. CIV. P. 194.2(b)(4). A party that fails to make, amend, or supplement a discovery response, including a required disclosure, may not introduce the evidence or material that was not timely disclosed unless the trial court finds either that there was good cause for the untimeliness or that the untimeliness will not unfairly surprise or unfairly prejudice the other parties. TEX. R. CIV. P. 193.6. The record must support the trial court's express or implied findings. Id. We review the trial court's decision for abuse of discretion. Arshad v. Am. Express Bank, FSB, 580 S.W.3d 798, 807 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Wang disclosed both the amount of his wage claim and the method of calculating that amount in his live pleading, where he stated, “Wang seeks monetary [damages of] $16,000 plus pre and postjudgment interest ․ The salary is calculated based on four months of salary ($4,000 each month based on the offer of annual salary of $48,000) from June 2021 to September 2021 when Wang had provided services to Alconslp.” Wang repeated the information in his amended disclosures, stating, “Wang began working for Arconslp earning a salary of $4,000 a month. In June 2021, Wang decided to return to his family and broke up the relationship with Pan. Arconslp stopped paying Wang for services already provided by Wang and now owes a total of four-month salary, i.e., $16,000.00.”

It is true that Wang's damage calculation appears in his disclosure under Texas Rule of Civil Procedure 194.2(b)(3) (disclosure of “ the legal theories and, in general, the factual bases of the responding party's claims or defenses”) rather than under the next subsection, Rule 194.2(b)(4) (disclosure of “the amount and any method of calculating economic damages”). But both disclosures are on the same page of the same document. The trial court would not have abused its discretion in impliedly finding either that Wang adequately disclosed the method he used in calculating his damages for unpaid wages or that Arconslip was not unfairly surprised by the information.

We overrule this issue.

C. The Trial Court's Exclusion of Pan's “Relationship Evidence”

In her last issue, Pan contends that the trial court “did not allow Plaintiffs to present facts and evidence related to the romantic relationship between Pan and Wang.” She refers to the purportedly excluded evidence as “Relationship Evidence,” and although she does not tell us what that evidence is, her citations to the record lead us to two objections.

The first of the two objections Pan cites was made after Pan testified that Wang “said he will proactively talk to his wife and then he will give up all his financial interests and then he will get a divorce.” Lawrence Cerf, the attorney for Wang's wife Zhang, then asked to approach the bench, where he objected that Pan should not continue testifying about Wang's breach of a promise to marry her because Pan admittedly knew Wang was married when he proposed. The trial court sustained the objection. Pan's attorney then said, “You just blocked the entire facts of the other causes,” and the trial court responded, “I'm not blocking all the cause of actions.” The attorney asked for clarification of the scope of the ruling, and the trial court stated, “You can introduce evidence to those causes of action.” Although there was further discussion that a breach of such a promise is not actionable because the promise itself is unenforceable, the ruling remained the same.¹⁶

The second objection Pan cites was made after her attorney asked Pan “[w]hat kind of kisses” and “what kind of touches” Wang gave her, which elicited testimony from Pan describing the way Wang kissed her and the placement of his hands on Pan's body. Pan's attorney then asked, “You also mentioned there was some sex conduct between you. Would you like to describe these incidents briefly?” Attorney Cerf objected, “This is unnecessarily explicit. We're all adults. We know what sex is.” The trial court sent the jury out and instructed Pan's attorney that she could establish that Pan and Wang had a sexual relationship without “going into the details what happened inside the bedroom and things of that nature.”

Pan argues that the excluded Relationship Evidence was material not only to the claims and counterclaims of “title of the property, fraud, breach of the Joint Venture Agreement, salary payment, etc.” but also to the defenses to those claims and counterclaims. But the jury did hear evidence that Wang promised to divorce his wife and marry Pan, and did not do so. And the jury also heard that Wang and Pan had consensual sex both before their break-up and after Wang initially returned to Texas. Neither of those facts were even disputed, and Pan does not explain why further repetition or more graphic descriptions of these circumstances would have made any element of the claims or defenses more or less likely.

We overrule this issue.

V. CONCLUSION

Given her knowledge that she and Wang were already married to other people,

Pan could not justifiably rely on his promise to divorce his wife and marry her. Because the promise is against public policy, it gives rise to no legally cognizable duties or expectations. This barrier defeats not only Pan's claim for Wang's breach of the promise to marry, but also her other causes of action that treat the promise as one on which Pan could or did justifiably rely. See Pitts v. Rivas, 709 S.W.3d 517, 525 (Tex. 2025) (“[T]he law should not reward artful pleading.”).

We overrule each of Pan's issues that have been preserved and presented for review, and we affirm the trial court's judgment.

FOOTNOTES

1.   Myles v. Arnold, 162 S.W.2d 442, 445 (Tex. App.—El Paso 1942, writ ref'd). A “writ refused” case from this period is treated as binding precedent from the Supreme Court of Texas.

2.   At trial, Pan always referred to her husband as her “separated husband,” claiming they had been separated since 2017, but in fact, Texas does not recognize legal separation, and even an agreement for a future separation is void under Texas law when made between cohabiting spouses who are not then in the process of separating but who continue living together.

3.   At a bench conference, Pan's attorney Wanchan Ohyan actually admitted to the trial court that her trial strategy was to show that Pan had engaged in fraud, but that Pan and Wang “are kind of accomplice[s]” and Wang “cannot make advantage of this situation.”

4.   As originally proposed, the last two sentences of the “duress” instruction had been omitted. They were added at the request of Pan's counsel, who had no further objections.

5.   Pan additionally argues that there is no evidence of a settlement agreement, but again, we must measure the evidence by the charge as submitted, and it does not mention a settlement agreement.

6.   “Duress” normally refers to “improper or unlawful conduct or threat of improper or unlawful conduct that is intended to and does interfere with another person's exercise of free will and judgment.” Weinberg v. Baharav, 553 S.W.3d 131, 134 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (quoting Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878–79 (Tex. 2005)). The charge in this case did not require the jury to consider only threatened conduct that was “improper or unlawful.”

7.   There was no testimony about “the Hailiang project” but the exhibits include an invitation for Arconslp to bid on the “Hailiang Copper Tubing Facility Project.” The documents include a space for Wang's signature as Arconslip's “principal engineer.”

8.   Emphasis added.

9.   Pan asserts that the trial court erred in refusing her proposed instruction on waiver, but the record shows that her request was directed to Question 27 of the proposed charge, which asked, “Was Arconslp unjustly enriched by obtaining benefits from Wang?” Predicated on an affirmative answer to Question 27, Question 28 was directed to the equitable remedy of disgorgement rather than actual damages. The trial court refused Pan's proposed waiver instruction to accompany Question 27, but the trial court later refused to submit Questions 27 and 28 entirely, so Arconslp's unjust-enrichment claim does not appear in the final charge at all. In contrast, Wang's wage claim against Arconslp originally had been omitted from the proposed charge, and it appeared for the first time, without objection, as Questions 14 and 15 in the final charge.

10.   Emphasis added.

11.   We do not consider Pan's appellate arguments that Wang's attorney Wanchan Ohyan (a) made false representations to the trial court about the date she learned of the requests for admissions and the reasons for her untimely response; (b) engaged in a pattern of discovery abuse; and (c) is an experienced litigator. These arguments rely on representations or evidence that were neither before the trial court when it granted Wang's motion nor offered in connection with Pan's post-trial motions.

12.   Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam).

13.   See Marino v. King, 355 S.W.3d 629, 634 (Tex. 2011) (per curiam) (holding there was good cause for withdrawing deemed admissions because, among other things, there was “nothing to justify a presumption that Marino's defense lacks merit”); TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 918 (Tex. 1991) (“Discovery sanctions cannot be used to adjudicate the merits of a party's claims or defenses unless a party's hindrance of the discovery process justifies a presumption that its claims or defenses lack merit.”).

14.   See Marino, 355 S.W.3d at 632 (requests for admission “were never intended” to obtain admissions of the validity of an opponent's claims or the invalidity of one's own defenses).

15.   In re Abercrombie, No. 02-23-00395-CV, 2024 WL 853360, at *5 (Tex. App.—Fort Worth Feb. 29, 2024, orig. proceeding); Time Warner, Inc. v. Gonzalez, 441 S.W.3d 661, 668–69 (Tex. App.—San Antonio 2014, pet. denied); see also Medina v. Zuniga, 593 S.W.3d 238, 246 (Tex. 2019) (“[W]e do not hold that such requests are outside the scope of Rule 198” although “we will not reward their use in that manner by upholding sanctions like those granted in this case.”).

16.   Pan had already testified to these facts many times. She stated that one exhibit shows “the discussion back then Defendant Wang wants to marry me” and “shows he said he want to marry me and if not—and then he's going to get divorced and wait for me.” Of another exhibit, Pan stated, “this is Defendant Wang trying to tell me that he wants to marry me.” She described a conversation between “Defendant Wang and I and he was telling me that he wants to marry me.”

Tracy Christopher Chief Justice