*1 raised, 2 hearing, require so as section
only if recent severe the evidence indicates illness, at mental
mental least moderate
retardation, acts truly bizarre support its conten- See id. To
defendant. appellant cites to his incompetency,
tion of opinion incompe-
attorney’s regarding unresponsive
tency, to his answers by the This questioned
when trial court. a bona fide
evidence is insufficient raise therefore,
doubt, trial was not court hearing, much
required to hold a section appellant’s the question
less submit ap- to a
competency jury. Consequently, point of is overruled.
pellant’s second error judgment trial court’s is affirmed. BRADFORD, al., Appellants, et
Bruce al., VENTO, Appellees. et
Roell
No. 13-97-116-CV. Texas, Appeals
Court
Corpus Christi.
June 1999.
Rehearing 1999. Aug. Overruled (concluding that during (Tex.Crim.App.1983) 83-84 competency raised the course of is empanel when trial court it was error refuse the criminal action such that the Williams, attorneys testified to his See defendant’s must make determination. presented incompetence, testimony Arguably, at under since the 834. standard, incompetence). Both stan- testimony appellant’s some evidence of counsel was, good presently law. Until incompe- are appellant opinion, in his dards tent, Appeals is- respond Criminal reconciles this appellant’s inability to Court of sue, most recent and because Collier questions court’s constitutes "some” trial opinion mat- compel expression ter, of the Court’s that is sufficient court evidence compelled to follow Collier's bona hearing 2. we are under section See conduct State, generally fide doubt standard. Hawkins v. *7 Leach, Gurwitz, Atlas Rex N. Daniel G. McAllen, Hall, Townsend, Hogan, & Roger Townsend, Houston, appel- Dubose & lant. Garcia,
Felipe Jr., Law Offices of Ra- judgment $1,274,0001 appehees awarded in Garcia, P.C., mon Edinburg, Craig S. $6,500,0002 actual damages and in exem- Smith, Edwards, Donald B. Smith & Ed- plary damages. Taylor did not appeal. wards, Christi, Corpus for appellee. Appellants also challenge legal
factual sufficiency of the support- evidence ing the damages awarded for profits, lost property, conversion of anguish, mental OPINION exemplary damages. Appellants also Justice YÁÑEZ opinion delivered the argue appehees right waived their Court, in HINOJOSA, which Justices recover on their claim for tortious interfer- CHAVEZ, and joined. RODRIGUEZ ence prospective relations, with business opinion Our this case May dated and that judgment improperly permit- 1999 was withdrawn by order of this Court appehees ted damages to stack elements on May 1999. We now substitute this from different recovery theories of rather opinion in place. its than requiring them to elect theory one recovery. Appellees argue one cross Appellants Bradford, Bruce Prop- Simon point, the trial court have (“Simon”), should erty Group and Golden Ring awarded damages based on (“Golden”) the DTPA. We Mall Company challenge the in part affirm part, and reverse in render- legal and factual sufficiency of the evi- ing judgment appehants joint- that the are in support dence of a jury verdict in favor ly and severahy liable to appellees appellees (“the Roell and Debra Vento $864,000 $2,520,000 Ventos”). actual damages and (1) jury found Taylor, Tom in exemplary damages. Bradford, Simon, and Golden hable for (2) fraud; conspiracy civil I. Facts and Taylor hable for tortious interference prospective relations, contractual in- owned a business Valle Vista distress, tentional Texas, infliction of emotional Mall in Harlingen, selling sports and violations of the Deceptive sports cards and other Trade memorabilia. (DTPA); (3) Practices Act mall, lia- Bradford was manager ble for fiduciary breach of duty and breach Simon Property Group Ring and Golden of contract for sale of the business. The Mall were the owners of the mall. Vento3 20,000.00 profits: 1.We note that Lost $ total amount of actual 10,000.00 damages anguish: Mental Paragraph $ awarded in A of the trial judgment court’s is inconsistent with the 9A, Question conspiracy: civil amount of awarded 75,000.00 profits: Lost response questions $ Paragraph listed in A: 1A, 3A, 8A, 9A, 10,000.00 personal property: llA(c). Questions Loss of Be- $ 50,000.00 anguish: Mental $ challenge inconsistency cause no to the *8 7,000.00 Expenses: however, $ appeal, raised on we will not ad- dress the issue. lA(c), Question 1 intentional infliction of emotional Paragraph A judgment of the trial court's distress Bradford: purports following to include the actual dam- $100,000.00 Emotional distress: ages jury: awarded 1A, Question fraud: figure exemplary damages 2.This reflects 14,000.00 damages: Reliance $ $2,500,000 Bradford, $2,000,000 against $750,000.00 anguish: Mental $1,000,000 against Taylor, against Simon $1,000,000 Property Group, against and 3A, Question Taylor's fiduciary breach of duties to Ring Company. Golden Mall Vento: $100,000.00 profits: Lost 3.References to "Vento” mean Roell Vento. $250,000.00 anguish: Mental wife, Debra, Although party his is a to the 7,000.00 personal property: $ Loss of ownership lawsuit and claims to share in the husband, 8A, Question business with her she had little prospective in- tortious interference with contractual underlying relations: volvement in the events this case. a check for sports brought Taylor a who after $7000. was collector of memorabilia Taylor the store and money became involved with and to order stock Taylor used this at Valle Vista Mall. security for computer system and buy a business. began cards collecting sports
Vento years he was His inter- when eleven old. that the check Vento testified $7000 sports and other memo- sports est cards business, for half of the payment Taylor’s older, until, as a grew rabilia as he became contract, September dated produced and a man in the Dallas-Fort young living both de- signed by parties, 1994 and area, his free Worth he devoted much of Taylor’s a sale interest to Vento scribing going shops to and to time to trade shows upon Taylor payment effective $7000. his collection. At this time he enhance agreed that for testified he never to sale open decided that he wanted to a store of $7000, signature and his on the con- selling sports his own He and collectibles. couple forged. Over the next tract wife traveled the Rio frequently to Taylor go to to the store weeks continued and Valley family, Grande to visit Vento customers, wait on and “seemed trips by selling would finance these items initially de- pretty odd” Vento. Vento Valley. he had collected to collectors in the Taylor may have come to cided way very In this he became familiar with and hang store to “shoot the breeze out market in the sports collectibles whatever.” Valley. living While Vento was he Fort Worth 4, 1994, Vento to the On October went traded Taylor
often with and left items on mall office with a cashier’s check for $770 consignment in Taylor’s for sale store. October, rent for pay store’s Taylor’s Vento’s stock consignment at speak with Bradford. Vento asked grew point sixty per store to the where Bradford testified to different accounts Taylor’s actually cent of stock in store Vento, According their conversation. came from that in Vento. Vento testified he had bought he told Bradford that May Taylor agreed or June of 1994 he and it, outright and now owned all of store partners Taylor the business. the sale contract. Brad- showed Bradford began expressing get- soon an interest Vento, congratulated ford and mentioned ting altogether, out of the business he had known already that Vento purchasing outright two discussed Vento discussing were a sale of the store Taylor ownership. In August Taylor went on previous had conversations Bradford trip to in charge. Seattle and left Vento expressed Taylor. an interest point At parties the stories long in a term Bradford consulted lease. begin Taylor tes- diverge significantly. files, then told Vento that some tified when he returned from Seattle occupied space the store “should” rent expen- the store was “a mess” and some $2700, had “a getting and that been missing. sive items were also testi- at decent deal Bradford also said $770.” finan- mismanaged fied Vento had idea long-term that a lease was a bad cial accounts of the business failed to do sports generally card stores because having order new stock. He considered well in Brad- not do malls. Vento asked put firm “fire sale” the store back on longest ford what would be the lease *9 ground, it financial and estimated that replied “maybe get, could and Bradford take dollars would five to seven thousand we or longest can do is three-month every- all of taken care “get to sign wanted to six-month.” Vento back to normal so thing [the store] point, him at that but Bradford told lease operate properly through can and function month, worry” it that to come “not to going when the Christmas season was [he] “take care January back and would selling agreed to be the store.” Vento try him. get money, he would to and soon of’
Bradford proached testified Vento told him him morning of October 6 he was “in process” buying briefly the store him might told there be a Taylor, completed not that he had Vento, confrontation him between but purchase. Tay- Bradford told Vento that explain did not any Tay- himself further. negotiated lor had a lease that lasted lor testified that he told Bradford “what through December, November and going and was on” in “a way.” roundabout Af- that the lease non-assignable. was Taylor, Brad- ter his conversation with Bradford ford testified that he understood to Vento directed the security guard mall’s to re- Taylor’s employee, and was never main near the store. aware that Vento actually acquired had That morning Taylor and Vento have did any ownership interest in the store. Ven- another confrontation. Taylor testified to, however, testified that Bradford knew that he and his wife went to the store Vento had been Taylor’s partner. and, opened, upon before it discovering
Later on October finally con- key longer his no worked in the Taylor locks, fronted pres- about his continued store’s waited for Taylor Vento. store, ence at the and the argued two testified that when Vento arrived he about who him, owned the business. According walked over to Taylor’s confront Vento, Taylor to told him the business police.5 was wife went to call the The mall’s $7000, worth a lot more than and that security guard, who nearby was as he had just be, should be a down payment. $7000 been instructed to also entered the Vento insisted that the two had executed a appeared store. Bradford also on the binding contract complet- and the sale was shortly scene thereafter. Bradford ex- ed. Vento testified that he po- plained called the testimony his that he was near- lice, Taylor police but left before ar- purpose intervening for the Taylor rived. arise, testified that he did not that may confrontation but rath- know Vento had police, called the and that er because he was checking remodeling on he had left go home and gather being some work done at a neighboring store. papers try prove ownership. arrived, police they When the turned to
Taylor speak testified that he went to guidance Bradford for in sorting out the with Bradford on argument October 5 or 6 to tell him between Ac- Vento. disagreement Bradford, about the he had with Ven- cording police'asked him to.4 Bradford Taylor ap- lease, testified that whose name was on the and he Well, said, argues conspirators 4. Vento that "[l]ike are A: I like I don’t remember if it wont do when confronted inconsisten- morning was the 5th of the 6th. testimony, cies in their Q: Bradford and deposition Your said it was the 5th. began change their stories at trial to con- A: I understand that. And also at the de- already form.” After Bradford had testified position you I told at that time I wasn’t conversation, that the 6th the date timesf,] exactly positive of the either. Taylor’s testimony way: at trial went this Q: you go day ... did back that and tell parties 5. The contested the issue of who that; you, Mr. Bradford about didn’t police. police report called the listed on October the 5th? complainant, Bruce Bradford as the and two (by Taylor) A: On October the 5th? police person testified that the officers who Q: you Yes. Did talk to him? police complainant.” calls the However, is listed as “the really A: I don’t Like I remember. said cross-examination, the officers - before, I- explained they assumed Bradford had Q: you— Let askme made the call because the call came from confusing. A: The dates are I’ve done— Mall, Valle Vista where Bradford was the Q: I understand. manager, they but that could not be certain years ago. A: This was two placed consulting who had call without Q: According your deposition, ... on log. calling himself denied back, you October the 5th ... did come police. you because told Bruce Bradford that taking your Roell over store ... *10 outstanding buy the business Taylor’s debts and them that name was on informed Vento, According to Bradford lease. from him. belongs Tom.” police told the “the store However, with the deal Martin before police to one of the officers According consummated, Martin wanted to could be Villarreal, present, Angel Bradford Jose the business. Vento inventory see the owned Taylor shop, told him that only way testified that he was told that that did not want inside Bradford Vento key have a to see the Martin could causing the mall he was a scene. since sign was if a statement store he would Officer testified that the mall Villarreal liability. releasing the mall from all Vento him Taylor also told security guard that release, and he sign refused to such a officer, police Another was the owner. that, Martin left. Bradford testified al- Manning, testified that Bradford Charles though he in the officewhen Vento was not exactly Taylor did state that not was employees his appeared, and Martin owner, Taylor rather that the one but was phoned him him of the situation to advise agreement. Manning a lease Officer According and seek his instructions. him testified that Bradford told he wanted Bradford, sign was not asked to a Vento trespass charges against to file criminal release, “receipt” but a specifying rather Vento. Based on Bradford’s statements from Martin money that received that papers the fact Vento had no be to debts satisfy would Vento’s ownership, substantiate his claim of purpose, such as rent other police Manning him to leave. told Officer that new lease. Bradford testified his em- said he testified Vento wanted to re- ployees told him that Martin left because papers trieve his some from home and prove confusing. come he considered the situation too ownership, back his but back, if Manning later, advised him that he came week was allowed to re- One Vento charge him Bradford would with criminal move merchandise without release. trespass and he would be arrested. Brad- when he entered the Vento testified that Taylor ford had testified asked store, disarray” it in and not at was “total store, police to remove Vento all as he it. He estimated that had left police he told the “Mr. hasn’t Vento approximately in merchandise was $500 done anything wrong the mall.” Brad- missing. ford that he never also testified threatened attempted Vento also demonstrate a to charge trespass. Vento with criminal relationship close between Tay- On October Bradford and Taylor. He testified sold lor entered into a two-month cover lease to mall parking Christmas trees on the lot. and December. On November November testimony There was from Bradford and 23, 1994, injunction obtained an re- Vento Joyce Plohocky, another mall administra- him storing as owner the business. tor, paying rent was the $770 Vento testified that the value of the mer- was far standard rates. Vento also below $35,- hand in the store chandise on that Taylor testified that he told Bradford $40,000 on November when less 000— monthly under-reporting sales of him, it given business was back than the mall as a the business to means eject- had been on October when he was lessening required he was portion December, paid ed. in rent for Vento $770 mall, pay to the Bradford was uncon- but the mall but was informed office that he cerned. $1430, still owed because rent rose 15, 1995 January December to On $2200. Sufficiency Evidentiary II. Standards store, the mall locked Vento out appellants’ will with the chal- begin back charging that he owed $4168.66 appellees’ lenges findings to the favor electricity unpaid rent and bills. Eventu- liability. In on their various theories ally prospective arrangements made sufficiency challenge, we pay reviewing legal Martin to Louis business’s *11 724
consider all the evidence in light the most III. Fraud favorable to the prevailing party, indulging appellants’ first consider chal every reasonable inference in party’s that lenges jury finding to the on fraud. The favor. Associated Indem. Corp. v. CAT jury charge, taken from the Texas Pattern (Tex. 276, Contracting, 964 S.W.2d 286 Jury Charges, instructed the jury: 1998). Anything more than a scintilla of Fraud when- occurs evidence support is sufficient to the find party a. A misrepre- makes a material ing. Corp. Formosa Plastics v. Pre USA sentation, Contractors, Inc., Eng’rs sidio 960 misrepresentation b. The is made with (Tex.1998). 41, 48 When confront knowledge falsity of its or made reck- ing a factual insufficiency challenge, we lessly any knowledge without of the findings only overturn if they are so assertion, positive truth and aas against the great weight preponder ance of the evidence clearly misrepresentation as to be c. The wrong is made with Jones, unjust. v. the intention it Ortiz 917 S.W.2d should be acted on 770, (Tex.1996). 772 party, the other d. The party other acts in reliance on of the Most evidence in this case misrepresentation and thereby suf- came in testimony the form of from inter fers injury. ested Testimony by witnesses. an inter This instruction informed jury of the may ested witness establish a fact as a fraud, elements of common law which are: matter of if only testimony law could (1) (2) misrepresentation, a material untrue, readily if contradicted and is defendant knew the statement was false or clear, direct, positive, and there are no recklessly made the statement without tending impeach circumstances or dis (3) truth, knowledge of its the defendant credit it. Corp., v. Texas Brine Lofton intended plaintiff rely upon (Tex.1989). 384, If there is statement, (4) plaintiff upon relied nothing to suspicion testimony, cast on the (5) statement to his detriment. v. Stone is, if reasonable minds could not dif 183, Lawyers Corp., Title Ins. 554 S.W.2d fer, jury accept then the must the testimo (Tex.1977); Harrison v. Bass Enters. Powers, Ratliff, ny. William Jr. & Jack Co., Prod. (Tex.App.— 888 S.W.2d Another Look at “No Evidence” and “In writ). Corpus Christi no Evidence”, 69 Tex. L.Rev. sufficient (1991). But, if testimony is im jury was also instructed: peached, inconsistent, or suspect otherwise may Fraud also occur when- (even controverted), though directly not a. A party conceals or fails to disclose is, if might might reasonable minds or knowledge material fact within the it, accept jury reject then the may it. party, jury reject Id. The is free to an interested party par- b. The knows the other testimony witness’s uncorroborated based ty ignorant fact and does not on its observation of the witness’s demean- equal opportunity have an to discover or, attitude, incapable and similar factors truth, reproduction in a written record. Silva party c. The intends to induce the oth- Enz, (Tex.App.— party er to take some action conceal- denied). Corpus In Christi writ fact, ing failing to disclose the case, testimony of the various interest injury party d. The other suffers as a differs ed witnesses sharply many and is without acting knowledge result of the directly instances contradictory, leaving undisclosed fact. jury with no choice but make deci regarding sions which witnesses to believe informed This instruction concealment,” and which not to believe. elements “fraudulent also
725
months,
in
and
up
to three to six
Ap-
lease
as “fraudulent nondisclosure.”
known
in
interest
a
response
expressed
the instruction
pellants
challenge
did not
Vento’s
trial, and
jury
lease,
worry,
to the
at
him
to come
or its submission
told
not to
new
appeal.
in
challenge
it
do
time he would
January,
in
at which
back
Although
care of’
concerns.
“take
Vento’s
non
there to be actionable
For
arrange-
specifically about
Vento asked
fraud,
duty to
there must be a
disclosure
Bradford re-
a new lease and
ments for
Brown,
Hoggett
disclose.
during
file
the store’s lease
viewed
472,
(Tex.App.
[14th
487-88
—Houston
writ).
Bradford failed to advise Vento
meeting,
duty
such a
no
Whether
Dist.]
Id.;
due for De-
that additional rent would be
“entirely
question
a
of law.”
exists is
McKendrick,
required
850
that he would be
Ralston Purina Co. v.
cember and
(Tex.App.
Antonio
683
for a new lease.
apply
S.W.2d
—San
denied).
may
A duty
writ
to disclose
jurors
reasonably
could
have con-
The
(1)
there is a
arise in four situations:
when
was the
that Bradford knew Vento
cluded
(2)
fiduciary relationship;
when one volun
acknowledged
that he
Ven-
new owner and
information,
whole
tarily discloses
him and
ownership by congratulating
to’s
(3)
disclosed;
when one
truth must be
payment
rent
from
accepting
October
representation,
a
new information
makes
admitted that he reviewed
him. Bradford
must be disclosed when that new informa
meeting with
during
file
his
store’s
representation
tion makes the earlier
mis
inquiries
to Vento’s
response
(4)
untrue;
when one
leading or
a
lease. Vento testified
long-term
about
partial
conveys
a
disclosure and
a
makes
nor
ever
that neither Bradford
impression. Hoggett,
false
971
at
S.W.2d
lease,
existing
copy
him a
showed
(citing
Corp.
487
Formosa Plastics
v. Pre
copy
a
though
requested
even
he
Contractors, Inc.,
Engineers
sidio
ques-
Taylor on several occasions. Vento’s
(Tex.App. Corpus
S.W.2d
146-47
—
lease were
to Bradford about the
tions
Christi, 1995),
grounds,
rev’d on other
ignorance about
sufficient to show Vento’s
(1997);
Purina,
Ralston
knowledge that
the lease and Bradford’s
635-36).
at
information.
Vento lacked such
Appellees point to two incidents of
failed to inform
Vento testified Bradford
fraud,
arising
meeting
both
from a
be
non-assignable and
him that the lease was
tween Vento and Bradford at
the mall
reapply
pro-
as a
required
he would be
1994:(1)
office on October
Bradford’s
tenant,
spective
and that an additional
misrepresentation that Vento could contin
amount of rent was due for December.
operating
existing
ue
the store under the
reasonably have concluded
could
(2)
month,
per
lease for
Brad
$770
not to disclose such infor-
Bradford chose
require
failure
certain
ford’s
to disclose
mation in order to induce Vento to retain
required
ments Vento would be
to meet
in mall location.
the store
its
prior
acceptance
to his
as a tenant.
Moreover,
assurance that he
Bradford’s
during
Vento testified
the October
long-term
“take care of’ Vento’s
would
he had
meeting, he told Bradford that
failure
January
and his
lease concerns
store,
purchased
copy
showed him a
regarding
pertinent
information
disclose
contract,
expressed
the sales
interest
obtaining a new lease
procedures
executing long-term
a
lease. He further
partial
disclosure which con-
constituted
him
congratulated
Bradford
testified
impression.
dutyA
to dis-
veyed a false
store,
mall
purchase of the
checked the
may arise when one
close information
property,
told Vento the
files on the
conveys a
partial
disclosure and
makes
paying
had
was “a
rent
been
$770
Plastics,
impression. See Formosa
false
Vento,
According to
Brad-
decent deal.”
re-
at 147.
check, 941 S.W.2d
When
accepted the
October rent
ford
$770
a new
inquiries
about
“probably”
arrange
sponded
Vento’s
told Vento he
could
lees,
lease
accepting the rent check in the
indulging every reasonable inference
telling
favor,
amount of
Vento he would in their
remaining
$770
mindful that
him in January,
conveyed
“take care of’
the jury was free to resolve contradictions
impression
the false
rent increase
testimony
and disbelieve the uncor-
January
would not occur until
at the earli-
testimony
roborated
of any interested wit-
est, and
*13
executing
that
a new lease
awas
ness,
testimony
the
in this case is distilled
formality.
mere
way:
bought
the
Vento
business from
Taylor for
Vento went to Brad-
$7000.
Vento relied on Bradford’s assurances
pay
ford’s office to
the
rent for Octo-
$770
that he would “take care of’ him in Janu-
ber, where he told Bradford that he and
ary
copy
and did not
demand
of the lease
Taylor
longer partners
were no
but rather
result,
from Bradford. As a
Vento testi-
that he
outright.
now owned the business
that
inventory
personal
fied
he lost his
collection,
sold,
responded
inquiries
Taylor
Vento’s
and for which
about a long-term
by telling
the mall collected a
lease
him “not
percentage of the sales
evidence,
considering
worry”
revenues. After
the
with it that month and that he
find there
legally
factually
January.
we
is
suffi- would “take care of’ Vento in
later,
cient
support
jury’s finding
days
Taylor
spoke
evidence to
Two
and Bradford
fraud,
and accordingly,
appel- briefly
likely
overrule
about a
confrontation be-
point
lants’ second
of error.
Taylor.
tween Vento and
When the con-
police
frontation came and the
turned
Conspiracy
IV. Civil
guidance,
Bradford for
he told them that
Vento,
Taylor, not
was the rightful owner
A
conspiracy
civil
is a combina
business,
eject
and told them to
persons
accomplish
tion
two or more
Vento under the threat of criminal
an unlawful
tres-
purpose
accomplish
or to
pass charges
days
if he
Eleven
purpose by
lawful
returned.
unlawful means. Tri
that,
Communications,
after
Bradford entered into a lease
plex
v. Riley,
Inc.
(Tex.1995).
agreement for
conspir
November and December
Civil
intent,
acy requires specific
is,
Taylor, despite knowing
Taylor
with
parties must be aware
had sold out to Vento.
harm or
wrongdoing
inception
at the
of the combi When Vento
was able
reenter his
nation or agreement.
Id.
$35,000 $40,-
injunction,
store under an
—
Appellees point to three
al-
incidents of
000 worth of
missing.
merchandise was
leged
conspiracy.
civil
The first was a Although
back in
Vento was
control of
plan
Taylor
business,
between Bradford and
to oust
pay
he was unable to
the full
his store and sell Vento’s mer-
past
December rent or the
due debts of
chandise,
Taylor
gaining
and the mall
company,
and he was locked out of the
proceeds.
The second was the lease
pay
business for his failure to
these debts.
signed by
Taylor
Bradford and
on October
arranged
buyer
for a
When Vento
to satis-
which authorized
to sell the
debts,
fy his
Bradford and the other mall
mall,
business’s merchandise
when
employees initially
office
insisted
Ven-
knew that
both
the merchandise now be-
to release the mall from all claims before
longed
Vento. The third involves the
him
permitting
to show his merchandise to
Bradford, Simon,
unjustified refusal of
potential
buyer.
buyer
left with-
accept
Golden to
Louis Martin’s check to
completing
out
the sale and did not return
pay Vento’s debts unless Vento also
permitted
until
him the
Vento was
to show
agreed
sign
releasing
a statement
signing
store without
the release form.
mall from liability.
all
When
Vento was allowed to reenter
store,
he found
more merchandise was
Adopting
proper approach
to the
missing.
It
these facts
is undeniable from
conducting legal sufficiency
evidence when
review,
is,
wronged by
that Vento was
these events.
viewing
all of the evidence
However,
light
appel-
appellees’
in the
most favorable to the
the weakness in the
(RDP),
that offered
program
paucity
Program”
conspiracy allegation
civil
Tay-
rates for small businesses.
showing that Bradford and
reduced rental
evidence
together.
to work
RDP and his
agreed
acceptance
lor
into the
Taylor’s
rent of
both
for a base
negotiation
$770
to International
Appellees refer us
inmall
arrival at the
preceded Bradford’s
Holloway,
Bankers
Ins. Co. v.
Life
time,
March,
there
any given
At
1993.
(Tex.1963), which stated
5.W.2d
other RDP
approximately two dozen
were
cases,
that,
conspiracy
testi
in the mall. Bradford also
tenants
injured party
necessarily
must
have
operating
if
fied that
were
recourse
to circumstantial
evidence.
space,
space
in the
would
store
the inferences and
only by
For it is
at
spaces
there
more
empty because
were
men
and nat-
properly
deductions which
fill them. This
the mall than tenants to
others in
urally draw from the acts of
*14
cases,
clear,
direct, testimony
positive,
that their intentions can be
such
They
likely
pro-
are not
to
if
readily
ascertained.
contradicted
untrue.
could be
in
hearing
claim them the
of witnesses.
The record
Lofton,
following question.” question must relationship, plaintiff business actually money, 8A asked sum of if “What (1) a probability a show: reasonable cash, in paid fairly now would and reason relationship contractual would have been compensate plaintiffs ably for dam (2) entered; intentional, malicious inter an ages, any, you if attribute to the conduct of that relation vention with the formation (3) justification;9 (empha- ship; privilege in ?” complained question no. 3 without spective relations. Supreme held in Sterner v. contractual or business 9. The Texas Court Bank, Co., 686, See, e.g., Corpus v. Christi Nat. Marathon Oil 767 S.W.2d 689-90 Garner 469, (Tex. 1989) (Tex.App. Corpus justification 477 that a claim of or ex 944 S.W.2d — 1997, denied); Heritage existing with contractual re Christi writ Hill cuse interfere Resources, 89, (Tex. Inc., The S.W.2d 109 lations is an affirmative defense. Su 964 1997, denied); pet. preme App. Robles v. Court has not addressed whether the Paso —El 552, Inc., reasoning Graphics, 965 S.W.2d of Sterner extends to cases involv Consolidated 1997, (Tex.App. ing prospective [14th Dist.] contractual or business rela 561 —Houston Tarleton Rosiere, denied); State Univ. v. majority post decisions writ tions. A -Sterner 948, (Tex.App. 952 appeal addressing the issue have 867 S.W.2d the courts of —Eastland 1994, Corp. v. At- agr.); Coastal involving pro- writ dism’d not extended Sterner to cases
731
(4)
damage
finding,
or loss.
the omitted element
is deemed
resulting
actual
Resources,
Inc.,
Heritage
support
judgment
long
Hill v.
964
as
found
(Tex.App.
109
Paso
S.W.2d
the evidence
objection
as
was made and
no
—El
denied)
pet.
(citing
v. San Jacin
Gonzalez
P.
supports
finding.
See Tex.R. Civ.
such
416, 421
Hosp.,
to Methodist
905 S.W.2d
Farm,
279;
Browning-Ferris,
Reyna,
Inc. v.
852 S.W.2d
itting
justification
absence of
or excuse as
540,
1992)
(Tex.App.
548
Antonio
rev'd
plaintiffs
element of
case for tortious interfer
—San
(Tex. 1993);
grounds,
on other
865
925
prospective advantage);
ence with
Caller-
648,
Corp. Allsup,
Exxon
Co.,
Publishing
Times
cations, Inc.,
Inc. v. Triad Communi
1991,
denied);
(Tex.App. Corpus Christi
writ
—
18,
(Tex.App.—
855 S.W.2d
Republic
Corp.,
Gillum v.
Health
778 S.W.2d
1993,
writ) (omitting
Corpus
ab
Christi
no
1989, writ) (all
(Tex.App.
no
—Dallas
justification
sence of
or excuse as element of
including
justification
absence of
or excuse as
plaintiffs
with
case for tortious interference
plaintiff's
involving
element of
case in cases
prospective contracts or business relation
prospective
tortious interference with
con
ships).
see,
relations).
e.g.,
business
But
tractual or
police
to tell the
release interfered with Vento’s contract
ford failed
his knowl-
regarding
claims of owner-
edge
with Martin.
Vento’s
that it
ship
understanding
or even
was his
However, legally
factually
suf
purchas-
in
process
that Vento was
support appellants’
ficient evidence does
store;
instead,
ing
unequivocally
he
recovery
prospective
for the
contracts with
police
belongs
told the
“the store
to Tom
Vento’s customers. The evidence shows
he
[Taylor].” Vento also testified that was
probability
reasonable
that contractual re
deprived
leave the
forced to
store and
lations would have been entered into.
when,
any opportunity
conduct business
in
experience
Vento had considerable
sell
direction,
police
at Bradford’s
advised
memorabilia,
ing sports
large
collection
him to leave the store and threatened to
merchandise,
and an established and
charges
trespass
arrest him on
criminal
expanding customer
He
base.
also testi
if he returned.
fied to the volume of customer sales at the
similarly supports
The evidence
during
store
his association with
element,
finding
deemed
of the third
ab-
following
purchase
his
of the store.
justification.
man-
privilege
sence of
As
Appellants
appellees
contend that
mall,
have
ager
may
of the
been
satisfy
have failed to
this element of the
in
justified
telling
police
although
they
cause of action because
failed to iden
ownership
dispute,
was in
of the store
tify any specific contract
that had been mall’s records nonetheless reflected that
with,
interfered
Robles v.
citing
Consoli
of a
Taylor was
leaseholder
non-as-
Inc.,
Graphics,
dated
965 S.W.2d
justified,
signable lease. Bradford was not
(Tex.App.
pet.
[14th Dist.]
however,
—Houston
in telling
police
denied).
agree
We do not
that Robles
store,
mentioning
owned the
without
supports appellants’ position,
ap
or that
days
paid
Vento had
the rent two
earlier
pellants’ position is a correct statement of
him
the new owner.
and had told
he was
The actual
holding
law.
Robles was
considered the emotional dis-
uphold summary judgment
in favor of
tress,
profits
anguish,
mental
and lost
pro
ground
the defendant on the
that one
conduct,
caused
Bradford’s
tortious
spective
illegal
contract
and unen
was
fairly
that the
would
found
Ventos
and,
against public policy,
forceable as
reasonably compensated for such tortious
issue,
regard
to the other contract at
$20,000
them
awarding
interference
justified.
the defendant’s conduct was
Ro
$10,000
profits
damages for lost
bles,
Although
733
(3)
store;
cy supporting
jury
lying
the
of of which
located in the
finding
favor
was
appellees on their claim for
in
police
intentional
to the
about who owned the business
fliction of emotional distress. To recover
trespass
and threatening Vento with
tort,
plaintiff
prove
under this
must
the
(4)
a
charges;
subsequently entering
lease
1)
that
intentionally
the defendant acted
or
Taylor’s
with
that facilitated
sale of
2)
recklessly,
the conduct was “extreme
(5)
property;
allowing
Vento’s
Vento’s
3)
outrageous,”
and
the
of the
actions
de
property to be ransacked and stolen while
fendant caused the plaintiff emotional dis
(6)
store;
of
and
Vento was locked out
4)
tress,
resulting
emotional dis
that
release all claims
demanding
Vento
Casas,
tress
severe.
v.
was
Wornick Co.
key
releasing
before
when
Vento
(Tex.1993).
The “in
Martin
pay
came to
Vento’s debts and see
tent”
of
tort
requires
element
the store.
actor either intend to cause severe emo
distress,
supports
the jury’s finding
tional
or that severe emotional
evidence
primary
distress be
risk created
of
of
liability
intentional infliction
emo-
Veg
actor’s conduct. Standard
Fruit
tional
threatening
distress. Bradford’s
Co., Inc.,
Johnson,
etable
al. v.
et.
trespass charges,
criminal
Vento with
his
(Tex. 1998).10
62, 63
Rude behav
unequivocal
police
statement
to the
equate
ior
outrageousness,
does not
and Taylor
store,
owner
and his
is not outrageous
behavior
because
simply
dispute
failure
inform
police
Alexsis, Inc.,
it is tortious. Natividad v.
ownership
over
are evidence that Brad-
(Tex.1994). Rather,
875 S.W.2d
ford’s conduct was extreme and outra-
“outrageous”
element is
to re
meant
geous
caused
Vento
suffer severe
quire
“beyond
possible
behavior that is
all
emotional distress. The
reason-
could
bounds
decency,
and to be regarded as
ably have concluded that Bradford’s con-
atrocious, and
utterly
intolerable
civi
primarily likely
duct was intended or
lized community.” Twyman
Twyman,
v.
cause
severe emotional distress.
(Tex.1993).
855 S.W.2d
“Severe
Vento testified that at Bradford’s di-
emotional distress” means
so
distress
se
rection, was forced to leave
store on
he
person
vere that no reasonable
could be
being
October 6 without
to re-
allowed
expected to
undergoing
endure it without
personal
belongings, including
trieve
suffering.
unreasonable
Benavides
personal
items
his
collection. He
from
Moore,
(Tex.App.—
following
ejection
also
testified
his
denied).
Corpus
Christi
writ
store,
depressed
he became
ill,
physically
weight,
lost
suffered nausea
Appellees point to six
tak
actions
appetite,
loss of
was embarrassed
en by Bradford which they argue were
by having
explain
and humiliated
his
(1)
extreme and
are:
outrageous. They
plight
He testified
to former customers.
misleading Vento into
believing
(2)
sports
collectors and
tenant;
memorabilia
secure in his
as a
con
status
“very tight” community,
dealers
spiring
deprive
him of
are
collection,
on,”
personal
people
“something
going
business and
much
heard that
is
independent
10.
only
Standard. Fruit
involved an
tion of emotional distress is
barred
claim of intentional
infliction
emotional
risk that
"when the
emotional distress will
solely
distress based
conduct
reckless
merely
result is
incidental to the commission
of the defendant. The court held that recov-
Recovery
tort.”
at 68.
some other
Id.
ery for intentional
infliction
only
emotional dis-
pri-
or
available if
"conduct is intended
tress is "available
in those
situations
likely
marily
produce
severe emotional
which severe emotional distress is the intend-
... even if the actor’s conduct also
distress
primary
consequence
ed
risk of the actor’s
harm,
produces
physical
such
some other
Fruit,
(emphasis
conduct.” Standard
at 67
injury.” Id. at 67.
added). Thus, recovery for intentional inflic-
*20
to the individual
reputation
credibility
certainty
that his
and
reasonable
damaged by being
v. United States
irreparably
wrongdoers.
were
Amstadt
(Tex.
644,
out” of his
store.
Corp.,
“thrown
own
Brass
1996)
v. East Tex.
(citing Landers
Salt
Appellees also identified Bradford’s re-
251,
Co., 151
Disposal
Water
Tex.
fusal,
January
to
ac-
allow Vento
(1952)).
731, 734
agreed
to
unless
to
property
cess
the
against
a
of all claims
the
execute
release
the inju
is such a case where
This
mall.
had
access for the
requested
ap
the
be
by
ries suffered
Ventos cannot
purpose
showing
property
limited
of
the
to
portioned
certainty to
with reasonable
the
Martin,
prospective buyer.
a
Brad-
Louis
example,
wrongdoers.
individual
For
the
it
ford’s conduct
extreme because was
appellees
anguish
mental
suffered
unnecessary unjustified,
protect
Taylor’s
from
fraud and
resulted
interests,
with
mail’s
and interfered
Ven-
fiduciary duty
breach of
cannot
distin
opportunity
property.
sell
to’s
guished
anguish
from the mental
suffered
Moreover,
reasonably
jury
could
have
result
tortious interfer
as a
of Bradford’s
the “primary
concluded that
risk” created
prospective
with
contractual
rela
ence
by Bradford’s conduct was severe emotion-
Similarly,
possible
sepa
it is not
tions.
We find the evi-
al distress for Vento.
a
profits
appellees
lost
as
rate
factually
legally
dence
sufficient
of
from the
Taylor’s wrongdoing
result
jury’s finding
liability
of
for
support
a
profits
as
result of Bradford’s
lost
infliction
emotional
intentional
distress
of Brad
The tortious acts
wrongdoing.
appellants’
point
fifth
of er-
and overrule
although
not executed
Taylor,
ford
ror.
scheme,
pursuant
concerted
never
to produce
theless
effect
sin
combined
Single Injury;
VII.
Joint and Several
injuries
appellees
gular,
to the
indivisible
Liability
Damages;
for Actual
ap
apportioned among the
that cannot be
Damages
Improper Stacking of
pellants.
that, if
Appellants
contend
we de
us
appropriate
It
most
seems
a
finding
civil
jury’s
termine that
this,
that,
involving
in a
such
multi
case
conspiracy
supported by
not
legally
of ac
ple
multiple
defendants
causes
evidence,
no
sufficient
then there is
basis
produce
single
tion
nevertheless
appellants jointly and
making
sev
jury
should first be asked about
injury,
damages attributable
erally liable for the
issues,
then, if
have made
liability
they
However,
civil
Taylor.
conspiracy
impose liability, the
findings sufficient to
joint
only
imposing
basis for
to answer one
jury
be instructed
should
liability
liability. Joint and several
several
questions that simulta
damages
set of
the tortious acts
appropriate
is also
when
pertains to
of action
neously
all
causes
produce
multiple
combine to
tortfeasors
However, the
and all of the defendants.
injury.
single,
indivisible
Austin Road
required
this
that the
charge in
case
jury
Pope,
147 Tex.
216 S.W.2d
Co.
damages
each cause
Gonzales,
jury assess
(1949); Bristol-Myers Co. v.
action,
differing
jury
found
(Tex.Civ.App.
—Cor
types
for the various
amounts
grounds,
pus Christi
rev’d on other
The
(Tex.1978)).
of action.
the various causes
term “in under
735 Question Type Damages Cause of Action Liable of Amount of Damages Number Defendants 14,000 Taylor 1A property fraud lost Bradford $ Simon & Golden in reliance $750,000 Taylor anguish 1A fraud Bradford Mental Simon Golden & $100,000 3A Taylor profits breach of lost fiduciary duty $250,000 3A Taylor anguish breach of mental fiduciary duty 6B DTPA $100,000 Bradford Lost use “laundry Taylor property list” of 6B DTPA expenses Bradford 20,000 $ “laundry Taylor list” 6C DTPA profits Bradford and $100,000 lost “laundry Taylor list” tort, 8A profits interference Bradford and 20,000 lost $ Taylor with contract tort, 8A anguish interference Bradford and mental 10,000 $ contract 10 DTPA omitted omitted “unconscionable” Therefore, we are Berry Property Management v. injury. confronted with mental anguish $250,000, findings $750,000, of Bliskey, 850 (Tex.App.— $10,000; $100,00011 profits lost of findings Corpus by agr.). Christi writ dism’d $20,000; $14,000 and a finding prevailing party Where the not has elected property lost in reliance on fraud. single recovery jury’s from among findings, the court findings should use the
Texas recognizes the “one sat affording greater recovery render rule, isfaction” which prevents plaintiff v. Tex judgment accordingly. from obtaining more than recovery one Birchfield Hosp., arkana Mem’l injury. the same Stewart Title Guar. Co. (Tex.1987). Applying this rule the facts v. Sterling, (Tex.1991). case, of this we hold that the Ventos are applies This rule when defendants commit electing $750,000 limited only mental the same act well as when defendants $100,000 anguish damages, profits, in lost differing commit acts which result in a $14,000 Id. A property in rebanee single injury. lost jury award of differ fraud.12 ing wrongful Tay for the Because the acts of type amounts same of damages produce under lor and different causes of action does Bradford combined to prevent application one these damages satisfac and the cannot be plaintiffs tion them, rule if the only reasonably suffered one apportioned between $100,- jury’s findings 11. By holding, appellants' We consider 12. we sustain error, 000 in property” "lost use of to be the same point argued eleventh $100,000 finding profits. as a in lost appellees improperly permitted had been "property” lost the use of was his stack their recoveries. store and merchandise. The value Vento lost deprived being proper- of this use ty ability profits. was the to make *22 jury Taylor found that appellants severally are and liable The also jointly actual committed full amount of had DTPA “un the and Bradford appellants’ vari- damages which survives The elements of conscionable” violations. challenges appeal. ous this a DTPA cause of action “unconscionable” (1) (2) consumer, is the plaintiff are the a DTPA
VIII. engaged in an defendant unconscionable (8) appellants’ action, chal- Finally, we consider action or course of that consti jury finding appel- of lenge to the favor producing tuted a cause of the consumer’s appel- lees on their DTPA claim and the damages. Bus. & Com.Code Tex. Ann. trial point argues which that the (Vernon lees’ cross 17.50(a)(3) 17.50(a)(1); Supp. §§ judge to elect requiring erred them 1987).14 or An “unconscionable action remedies, prevented them between which practice of is “an act or course action” recovering damages by the awarded which, detriment, takes a consumer’s action. jury the on their DTPA cause of advantage knowledge, ability, the lack of of capacity the consumer to “laundry experience,
The DTPA list” or elements of a (1) a plaintiff degree” cause the is a or grossly of action are: a unfair “results (2) consumer, in a engaged the defendant the value received gross disparity between false, misleading, deceptive prac- act or or paid, in a transaction and consideration tice, (3) by that was the consum- relied involving transfer consideration.” Tex. (4) er, producing a and constituted 17.45(5) (Vernon § & Bus. Com.Code Ann. damages. cause of the consumer’s actual 1987).15 a taken Proof that defendant has 17.50(a)(1) § & Tex. Ann. Bus. Com.Code a lack of knowl advantage of consumer’s 1987).13 (Vernon Although appellants the ability experience grossly or a edge, evidence argue that there was insufficient requires proof “resulting degree unfair committed “laundry fist” noticeable, was glaringly unfairness that violation, challenge not the they DTPA did complete unmitigated.” flagrant, sufficiency supporting evidence Koonce, 579, 584 Chastain by Taylor, and we have deter- violation (Tex.1985). determining one For whether jointly mined the are appellants DTPA, under the Texas is a consumer the damages actual as- severally liable for the (1) Supreme adopted has test: Court jury action. by sessed on all causes of seeking acquire goods acquiring or Furthermore, damages by found (2) those by purchase or lease services DTPA claim are jury “laundry on the fist” the basis of the goods or services must be by jury on greater no than found those complaint. Id. at 581. brought ap- by other causes of action However, charge did jury already to be pellees, we have found damages for this to assess ask suffi- supported by factually legally appellees urge The us Therefore, cause of action. appellants’ cient evidence. damages award consider the entire actual did not commit a arguments that Bradford $1,274,000, court, by trial are moot. ed “laundry list” DTPA violation did not effect 17.50(a)(1) 14. The 1995 amendments 13.Section business 1989, 17.50(a)(3). by & code amended Acts See Tex. Bus. commerce text of Section 1, 380, 2, September (Vernon Leg., 17.50(a)(3) § effective Supp. § 71st ch. Ann. Com.Code Leg., ch. 74th Acts 1999). September § 1995. See Tex. effective 17.50(a)(1) (Vernon § Bus. & Com.Code Ann. 17.45(5) 1995 to amended in 15. Section lawsuit, present ac- Supp.1999). A like the defi- "gross disparity” prong of the delete the tion, 8, 1994, prior to the on November filed & Com.Code See Tex. Bus. nition. Ann. amendments, is effective date (Vernon 17.45(5) Supp.1999). The amend- § applicable governed the law claim to our discussion. ment not relevant prior of the amendments. to the effective date changes are our discus- not relevant to sion. finding recovery support appellees deemed on the issue un- for the on their judgment der rule 279. The stated that DTPA claims. L.P., Group Simon Property
“Defendants Mall Ring Company, Golden Bruce Brad- Anguish Damages IX. Mental ford, individually and Tom individu- appellees have determined that ally jointly severally are hable for single must select a award for mental an- *23 damages by questions the in jury found case, In guish damages. this their fraud 1A, 9A, HA(c) 3A, 8A, $1,274,- total action, for jury cause of which the awarded 000.” total The actual of the amounts the $750,000 them in anguish, gave mental jury in by awarded the listed answers the recovery. them the maximum $1,393,000. trial figure court is Had the in the trial judgment court’s exceeded the anguish damages may Mental jury total amount the awarded for the be awarded when there is direct evidence causes of the action trial court intended to nature, duration, of severity the judgment, might possi- include the it plaintiffs anguish, establishing thus a sub ble to infer that the trial court intended disruption stantial plaintiffs daily the the reflect finding excess to a deemed of routine, degree of high or evidence a of damages the for Ventos’ DTPA cause of pain mental and distress that is more than However, action. trial because the court vexation, worry, anxiety, mere embarrass than awarded less jury the awarded for ment, or anger. Parkway Woodruff, Co. v. the of action appar- causes the trial court (Tex.1995). There ently to intended judgment, include the must also be that amount of evidence the we cannot that say any of trial the court’s damages mental anguish found is fair and award of actual damages was meant to reasonable, the appellate court must reflect a finding deemed of for conduct “meaningful evidentiary a review” DTPA Ventos’ action. Fur- cause of of Fidelity the amount found. v. Saenz thermore, trial court’s delineation of Underwriters, Guar. Ins. by jury amounts awarded for the (Tex.1996). various of causes action that contributed to the overall actual damages award works case, In this Vento testified that against Ventos’ argument ejected when he from property was judgment contains a finding deemed dazed, “confused, up October he damages on their DTPA causes action. set,” and mad [he] “so couldn’t even drive.” The court not did include the Ventos’ re- He further testified: covery under DTPA in its itemization. Q. knowing So it feel you how did Therefore, possible it not to conclude store, it, bought got a loan thou- that recovery of damages amount (sic) you sand of dollars lit- dollars under DTPA “support[s] the judg- erally your out of kicked own store? ment.” Tex.R. Civ. P. 279. take, A. if they you It feels like know— The harm appellees by caused took they you— it’s like if I don’t know. underlying misconduct both DTPA causes I can’t it. explain unexplainable. It’s I Therefore, of action was the same. mean, really hap- it feels bad. Until it appropriate damages appellees’ on the pens somebody you what I know DTPA “unconscionable” cause of action part mean. take They your away. life are no than more those awarded point, work Everything you for at appellees’ on the DTPA “laundry list” in, money all the we sunk the inven- all action, cause of and it consequence is of no items, tory, personal they just let some appellees whether the on both of recover it, guy you very take know. It seems only their DTPA theories or one. There- simple just and in go someone fore not appellants’ we need rule on ninth ruin point your three life. And it arguing of error that the evidence minutes legally factually years, insufficient two you struggle takes X. Profits Lost try you later if can years three see get it It bad. back. feels re appellees’ next consider evidence that Vento could There was profits. Here we covery again, for lost incidents, very after these became eat single injury rule have that the determined thin ill as result. Debbie Vento to a appellees be limited requires that house, he would not leave the testified that $100,000. single recovery of To recover go “dragged” and had to be work must profits, party for lost show home all his brother so he wouldn’t be the amount the loss competent evidence time, thinking hap- had about what certainty. Texas Instru with reasonable that he pened to him. Vento also testified Energy Mgt., ments Teletron other frequently ran into collectors and (Tex.1994). It nec is not sports people had in the memo- known susceptible to essary profits should be *24 business, of rabilia and the embarrassment calculation; it that there exact is sufficient part.” “the those encounters was worst may ascer they data from which be be the ef- testified that emotional Vento also degree of certain tained with reasonable case underlying fects of the this events (quoting and Id Southwest ty exactness. the of trial. improved had not as of time Owen, 423, 115 Battery Corp. v. 131 Tex. the na- that the shows We hold evidence (1938)); 1097, 1098-99 S.W.2d Thedford ture, duration, severity of Vento’s and Co., R. Pac. 929 S.W.2d Missouri distress, consequent as a emotional as well de (Tex.App. Corpus Christi writ — disruption in his routine. daily substantial nied). the is established Where business next the must consider the profit at the time when making and Although amount of awarded. or the tort commit contract was breached Supreme mandated the Texas Court has ted, facts together with profit, such other size “meaningful evidentiary review” of the circumstances, rea may indicate with awards, anguish incorporeal the of mental certainty profits amount of sonable the contin anguish damages nature of mental Instruments, at lost. Texas to make it a rare case where we can ues 279. jury’s against say findings that the are so reasonably cer constitutes the What preponderance of great weight lost is a fact inten wrong unjust. profits tain evidence of clearly as to be evidence hazy (citing Ath simply, something Put how can so as Id. Holt sive determination. Industries, Heine, anguish amount mental dam the dollar of erton Inc. v. there “dearly wrong?” ages (Tex.1992)). While of requirement The may cases where the amount be some proof in the of lost certainty” “reasonable one of clearly wrong, this is not awarded is flexi sufficiently intended to be profits is case, In had de Vento those cases. circum myriad of ble accommodate his building voted his life collection profits for in which claims lost stances his own goal operating the ultimate of Although supporting documen arise. Id. he Just as was sports memorabilia store. weight the evi may affect the tation wrongful goal, it was about to realize that dence, produce the necessary it is him, put back and was ly snatched opinions or esti supporting the documents it take position in a from which would Holt, at profits. mates of lost reviewing After size years to recover. 84. anguish jury’s award for mental argument appellants’ of the Much can, we that the as we hold meaningfully testimony of appeal an attack oh the is $750,000 dam anguish in mental award of expert estimated Vento’s witness who great weight and against is not so ages earnings. Appellants argue future evidence as to be preponderance information faulty relied on expert overrule clearly wrong unjust, at arriving faulty methodology point employed See id sixth of error. appellants’ ny. sports Many appellants’ estimates. While the memorabilia busi- However, arguments are valid. even if the apparently through periods ness went expert’s testimony disregarded entirely, others, were less lucrative than we do not testimony provided legally Vento’s own agree profitability that the of the business factually support sufficient evidence to preclude recovery was so uncertain as to jury’s finding profits. on lost profits. for lost early prior Vento that in testified Appellants argue that would not Vento store, purchasing he and had mall, have received a new lease from the an agreement whereby Vento received prevented have him from would thirty percent of profits the store’s net profits earning the lost awarded from sales at the end of month. each He jury. argu- There are two flaws in this further testified that all after store ex- First, reasonably ment. could penses paid, monthly were his share of the have concluded were it not Brad- profits approximately $1500 $2000. misconduct, Taylor’s ford and would In July Vento and became financially have been in condition sound partners profits and Vento’s share mall, good and on terms with the and could fifty percent. increased to He testified easily have lease. obtained new profits July his half second if flaw is that even Vento had been approximately $2400, July but *25 unable to obtain a new Valle lease at Vista month,” that, was “a general, slow and in mall, jury reasonably the could have deter- picked up business fall during the months. mined that Vento would moved his have If profits month, the were in a slow $4800 comparable business to another mall of the jury could have concluded that size. Vento testified that a network exists enough store money during made its among and many sport collectors collectors periods “slow” to stay in and business spend great seeking of out deal time enjoy profits greater when business im- proved. Moreover, they want. merchandise From this testi- Vento testified that his purchase expanded mony, of the store it jury store’s would reasonable for the by customer base drawing business from many to conclude that of Vento’s custom- his own well-established customers. Were ers him would follow to a new location. $35,000 $40,000 it not depletion for the testimony, jury Based on Vento’s could — inventory place took during peri- that reasonably appellees have found that the store, od Vento was exiled from the he compensated by fairly awarding would be probably unexpect- could have handled the $100,000 profits. him lost for overrule (ie., ed higher financial burdens rent in appellants’ point seventh error. bills) unpaid December electricity and returned, encountered when he and re- Property XI. Lost in Reliance mained in years Ap- business for come. jury appellees The awarded the pellants argue was evidence too $14,000 in property lost in reliance on speculative, contingent, and uncertain be- fraud. Vento testified that he was before fluctuating cause of market conditions ejected by Taylor from the store sports memorabilia There business. Bradford, the value of the merchandise was sports evidence of a sales $45,000 $50,000. He store was testi — up memorabilia store tend to go down fied that when the store returned to was depending happening sports, on what’s him, the remain value of merchandise particularly depending local whether $10,000. ing Vento also testified doing teams are well. Appellants also disappeared worth of merchandise $500 point testimony sports to Bradford’s for by when he was locked out the mall not stores, they may memorabilia although en- Therefore, paying his testi success, bills. Vento’s joy brief or seasonal do not do mony supported would an award of as long Obviously well in the run. have jury $40,500 high was free to disbelieve for property, Bradford’s testimo- as lost and the 740 $14,000
jury’s philosophy for supported underlying award of factually legally and sufficient evidence. exemplary punish is to imposing point tenth of er- appellants’ We overrule wrongdoers provide example an ror. Borden, Inc. potential wrongdoers. other Guerra, 515, (Tex. v. 860 527 S.W.2d Separate Liability XII. of Simon and 1993, App. Corpus Christi writ dism’d — Damages Golden for Punitive process requires exempla agr.) Due 14, question asks, response In ry in their damages must be “reasonable any, money, sum of if should be “[w]hat pur of their light amount and rational against the De- assessed the Plaintiffs pose punish has and to what occurred punitive exemplary fendant as dam- repetition.” Id. (quoting deter its Pacific ages?” as follows: answered 1, Ins. v. 499 Haslip, Mut. U.S. Co. Life (Texas), a. Simon Group Property 1032, 1 113 L.Ed.2d S.Ct. L.P. $1,000,000.00 (1991)). Here, b. we find that the evidence 20,000.00 Tom Taylor $ c. Bruce Bradford, individually separate wrongdoing by mall is insuffi manager Mall of Valle Vista $2,500,000.00 Ring d. Golden Mall L.P. $1,000,000.00 Company imposition support separate cient to appellants Although note that punitive damages against Simon Gold they challenge “do not and Gold [Simon en. liability vicarious Bradford’s en’s] are Simon Golden undeni acts,” they complain that Si nonetheless ably responsible actions. for Bradford’s lia separately mon and cannot be Golden agents Corporations only through “act punitive damages they ble did because Oaks, Hammerly some character.” Inc. commit acts separately wrongful (Tex.1997) Edwards, solely through “acted Bradford.” (citing Fort Worth Elevators Co. v. Rus response, appellees point In to Brad- sell, Tex. *26 suit, testimony that after Vento filed ford’s (1934), grounds by overruled on other people” the mall’s and “home office” “legal Co., Wright & 725 v. S.W.2d Gifford-Hill interac- developments were advised of and (Tex.1987)). damages Punitive 714 tions with Vento. When Bradford was a properly against can be awarded master of to request informed Vento’s show the an an principal or because of act other Martin, property to he discussed the Louis (a) if, if, agent only principal but the autho mail’s Be- legal matter with the counsel. act, doing the of the rized the and manner of this contact with Simon and Gold- cause (b) principal agent unfit and the or the lawyers, appellees argue, en’s Simon and (c) him, in or employing was reckless the policy responsible are for the mail’s Golden managerial in a ca agent employed initially refusing permit of Vento acting scope the pacity and was un- to Louis Martin show his merchandise of (d) employer the or a employment, or releasing a less he first document signed ap manager employer ratified or liability. the mall from Hammerly, 958 at proved the act. S.W.2d appellants that Brad- agree with supplied) (citing Restate (emphasis 391 vague dealing with Ven- ford’s reference (1939)); § see also Pur 909 ment of ToRts “through legal people our our home Prattco, Inc., vis S.W.2d assess- office” is insufficient to merit the (Tex.1980) fac (setting forth these same punitive against Simon damages ment of citing 909 of tors and section top liability on of their for Restate Golden un which is against Brad- (Seoond) punitive damages assessed ment of ToRts, changed original from the testimony concerning ford. Bradford’s Restatement Elevators, the Tex In Fort Worth lawyers the mall’s is consultation with ToRts). Supreme used the construct Court rec- only specific mentioned in the instance corporate distinguish “vice principal” involvement concerning ord direct Hammerly, employees. acts of mall. acts from counsel for the manager conspired plaintiffs at 391. dants a As violate mall, responsible manage is for rights, joint Bradford several assessments department ment of “a or division” of the exemplary damages upheld. have been business, corporation’s accordingly, Warner, In pres- at 599. (“vice principal.” principal” “vice See id. case, ent evidence link be- shows includes con those whom master has wrongful tween the actions Bradford management fided the of the whole or a and Taylor. On October business). department or division of his wrongfully authority used his to assist Taylor ousting the store by from We hold that Simon and Golden are telling owned pobce $2,500,- jointly severally liable by threatening store and Vento with crimi- punitive 000 in damages against assessed trespass charges. nal Bradford’s state- Bradford, $1,000,000 puni- but that the pobce ments to the enabled to seb tive damages assessed Simon against merchandise, including the store’s Vento’s $1,000,000 in punitive damages as- personal ap- collection. We hold that the against sessed Golden be must deleted pebants properly jointly were made appellees’ recovery. severahy for the exemplary damages bable Liability XIII. Joint and Several Taylor. assessed against Exemplary Damages Exemplary Damages XIV. Amount of Appellants complain further no basis for imposing joint exists and sev complain Appebants also appellants eral liability exempla for the exemplary damages against assessed ry damages against Taylor. awarded In them Exemplary damages are excessive. support, appellants cite former section reasonably must proportional be to actual practice 41.005 of the civil and remedies damages, although there can no set code, provides: exemplary ratio actual and between dam In any action which are two there ages which bewill considered reasonable. defendants, more an exemplary award of Co., Bernal, Southwestern Inc. v. Ref. specific must be toas a defen- (Tex.App. Corpus — dant, and each defendant only is liable granted). Christi pet. Unless the
for the amount of award made large award is as to that it so indicate is a *27 against that defendant.16 result passion, prejudice, of or or that the disregarded, evidence has been the verdict Appellants’ rebanee on section 41.005 is of the jury is conclusive and not be will set misplaced appbca- because under the law excessive, by aside as either the trial court present action,17 ble to the that section or on appeal. Berry Property Mgmt., 850 does not apply to intentional torts. Trans- S.W.2d at 669. Prods., Inc., Texpar Energy, Inc. v. 788 fer 713, S.W.2d 717 (Tex.App. Corpus— reviewing In exemplary awards of writ). 1990, Christi no damages, fobowing we consider the fac law, (1) (2) however, the Under common tors: wrong, the nature of the the (3) closely involved, where the defendants are related character the conduct of the (4) the degree or evidence estabbshes a link between culpabibty wrongdoer, of actions, the parties defendants their the wrongful situation and sensibihties of the (5) concerned, or where are findings there that the defen- the extent section, 41.005, 1, lawsuit, action, formerly § 16. This present was re- 1995. A like the 1995, by 8, § numbered Leg., 41.006 1994, Acts 74th filed prior on November to the effec- September § ch. effective 1995. amendments, gov- tive date of is the unchanged. The text is by applicable prior erned the law the claim to the date of the effective amendments. Chapter practice 17. the 41 of civil and reme- amended, September dies code was effective reasonably public propriety a of could have been of- such conduct offends sense justice. (citing at Wright, by fended such conduct. Kraus, Nat.
Alamo Bank v. Appellants complain that the trial (Tex.1981)). 908, 910 court’s judgment exemplary damages as- wrong” Although jury The “nature of the and the contains an error. imposition exemplary damages favor against “character of conduct” sessed $20,000.00, damages. wrong judgment of Bradford in the of exemplary amount fully damages threatened Vento with criminal tres exemplary against Tay- assessed $2,000,000.00. pass charges police and told the lor in the amount of belonged Taylor, though even store re- agree appellants’ complaint, ownership Vento claimed and had knew judgment form the trial court’s consistent him copy shown of the sales contract. jury’s findings. with the prevented wrongfully Vento from eliminating After the recoveries by doing expelling business at his store unsupport have determined to be we mall, and, thereby, him from the facilitated evidence, appel ed sufficient legally of The Taylor’s plundering Vento’s stock. jointly lants and remain sever culpability wrongdoer” of “degree of $864,000in ally damages.18 liable for actual similarly imposition exemplary supports correcting After the erroneous amount as damages. police attempted When the against Taylor judgment, sessed dispute Taylor and deal with the between $2,520,000. at exemplary damages stand Vento, in a position Bradford alone was than three slightly This amount less informed, impartial in an manner. assist damages. Af times amount of actual Instead, he chose deliberately to mischar- evidence, reviewing ter we conclude of affairs a manner acterize state exemplary amount assessed in proved to Vento’s busi devastating damages relationship bears reasonable aspirations. ness damages the actual awarded and sensibilities of the “situation Borden, 860 and was not excessive. See parties” supports imposition also of exem- (exemplary damages award S.W.2d at 528 damages. Again, in a plary Bradford was five the actual award times position authority, while Vento was a excessive); Thetford, Goswami novice, protect business unable (Tex.App. Paso —El Taylor. The rights challenged by when denied) (award exemplary damages writ “the to which such final factor is extent actual nineteen times the amount of dam public justice sense conduct offends excessive). appel ages not We overrule This also weighs factor propriety.” error. eighth point lants’ At the mo- exemplary damages. favor of police turned to Bradford ment XV. Conclusion *28 completely dependent guidance, Vento The the trial court is af- (i.e., judgment of speak on Bradford to the whole truth part; in we part firmed in and reversed legitimate have a appeared that Vento to appellants the are judgment render that ownership) thereby protect to claim severally appellees liable the Instead, jointly and to he made mis- Vento’s interests. $2,520,- $864,000 damages in actual police to fur- for leading statements exemplary damages. in damage by gratuitous- to thered Vento if ly trespass charges him with threatening returned, Opinion by Dissenting it for Chief Justice thereby making harder
he joined by SEERDEN Justice protect property ROBERT J. Vento to assert justice and J. BONNER DORSEY. rights. jury’s The sense $750,000 $14,000 property reliance on lost in mental 18. This amount reflects $100,000 profits, fraud. anguish damages, in lost to two claim- Dissenting Opinion by judgment Chief Justice as which of the SEERDEN. ants owned the business.
I dissent respectfully majority from then with rival Bradford was faced opinion upholds to the extent that it liabili- claimants and written lease that still Bradford, ty and damages against Simon as the Whether Taylor showed lessee. or and Golden. I would hold that there was Taylor had sold his to a third business support no any findings evidence to of the party, Taylor the written lease between of liability, including tortious interference obligated protect and the mall mall to relations, with contractual that the award Taylor’s to that until such right lease time of mental anguish damages inappropri- is was, Taylor relinquished as it. It there- and, ate in present appro- case if even fore, Bradford, entirely reasonable as excessive, priate, was and that there was lessor, protect right to continue to support no evidence to the award for lost peaceful possession tenant to profits. Vento, until the right leasehold third-party purchaser, could estab- to Support Finding No Evidence lished. there Nor is indication that a Tortious Interference explanation background fuller of the facts majority only concedes that the act changed Bradford would have the re- Bradford, by which Simon and Golden sult It day. entirely speculative could be tortiously held liable for interfer- police what might actions the have taken ing with Vento’s contractual relations is they had had the whole story concerning representation Bradford’s police to the knowledge relationship Bradford’s of the Taylor owned the store at the time of between Taylor and Vento. I would hold the confrontation Taylor between and Ven- no there was evidence to show that 6,1994. to on October representation This wrongfully Bradford acted his fail- police eject caused the Vento and re- story ure to police relate whole possession store of the store. proximately caused to be removed Vento However, I would hold that Bradford’s resulting the mall interfer- actions under the circumstances were not ence with Vento’s contractual relations tortious, they nor proximately did cause with his customers. Vento’s injury. police, Bradford, Neither the nor had Anguish Damages Inappropriate Mental the authority to right posses- determine I would hold that is not also enti- sion as between and Vento. The tled to anguish flowing mental did, however, police authority have the present from his claims for tortious inter- keep peace and to anyone arrest Bradford, against ference and Gold- Simon they probable had cause to believe was en. private trespassing on property. To that end, they anguish damages gener Mental are not looked to mall Bradford as man- ager ally landlord tell them which of recoverable a tort action based space two rival rights claimants owned the out growing of a con breach mall leased to Collector’s Choice. tract. v. Crop Rubalcaba Pacific/Atlantic (Tex. Inc., Exchange, Had Bradford disclosed that Vento came App. writ); Delgado Paso no him days several him —El before and told Hosp., Methodist purchased paid had the business and *29 (Tex.App. [14th Dist.] no rent space, Taylor on that but that still —Houston writ); Corp., Doe v. SmithKline Beecham ownership, claimed we do know what not (Tex.App. 855 S.W.2d 258 police the officers would have done. The —Austin 1993), modified, as 903 S.W.2d suggests they evidence not were look- affirmed (Tex.1995). ing present grows to for 347 The action background informa- tion, but, testified, as the senior officer for out of a of breach contract Vento
744 First, of Taylor the Vento’s estimates the sales purchased a business from and agreement under lease which 1994 as a matter of law. associated were insufficient in operate that business was the Valle not how he Vento has shown “estimated” deny I would re- Accordingly, Choice, Vista Mall. the monthly sales of Collector’s anguish damages. covery of mental these nor did Dr. De Santos know how Los generated. testi- estimates were Vento’s No Evidence Lost of Profits personal not have mony shows he did amount, I would hold that the evidence Finally, of exact nor is knowledge the support an legally insufficient how he arrived at any there indication profits. amount of the award of lost speculative are at They estimates. these by competent loss must be shown evidence best a reliable means of and do offer certainty. Szczepanik v. with reasonable profits. calculating Co., First Southern Trust 883 S.W.2d Second, assuming accuracy of even (Tex.1994); Texas Instruments v. Tel under his calculations for 1994 the owner- Inc., Energy Management, etron ship management Taylor, there was and of (Tex.1994). 276, 279 At a mini S.W.2d been profits no what would have indication mum, profits or of lost opinions estimates operation management under Vento’s facts, objective figures, on must based of the business. amount lost or data from which the of to be a small The record shows this profits may Szczepanik, be ascertained. labor dependent upon business direct 649; Ind., at Holt Atherton S.W.2d of proprietor. of the The loss skill (Tex. Heine, Inc. is, accordingly, a difficult proprietor 1992). determining to account for variable as largely speculative, that are Profits without profitability future of business dependent an uncertain or activity on could, perhaps, be Taylor. This obstacle conditions, chancy or on changing market with sufficient evidence of overcome opportunities, promotion or on of business operation and manner of how products entry or into unknown untested Tay- planned compensate loss of markets, or on the success of unviable lor, of Vento’s own together evidence unproven enterprise, new cannot be manage business on ability to a small Instruments, Inc., Texas recovered. own. Moreover, determining at 279. enterprise unproven, However, whether an of present such record is devoid experience per- is on the focus en- depends almost such evidence and enterprise in the and the sons involved profitability un- past tirely on evidence activity, the business nature of control. Taylor’s management der Id. relevant market. at 280. profitability of of the This is not indicative proprietorship as a under the business sole case, expert, Vento’s present In the know do not management. We Vento’s Santos, De Los at- economist Dr. Gilbert as same abilities whether Vento has the by taking tempted profits show lost successfully operate a business monthly sales Vento’s estimates customer base or to retain the generated by Collector’s Choice his own net Ac- years. the amount of his 30% taking up then built over first months of that profits for the five under man- Vento’s cordingly, business deposits shown year, reflected enterprise. See agement unproven is an checkbook, extrapolating Vento’s Inc., Instruments, at Texas then a 5% profit margin 15.5%. He used specu- I would hold the evidence 279-80. ten-year period in sales over a growth rate support any cer- and insufficient lative profits period. over project lost Vento’s profits under tain measure lost the busi- control of management sole reasons, agree I that this For do not two ness. adequate profits. measure was an *30 judg-
I would the trial reverse court’s take-nothing judgment
ment render a Bradford,
in favor of Simon and Golden. joins in DORSEY this dissent.
Justice ZAPATA, Individually
Enedina and as
Representative Estate of Aaron
Joseph Lozano, Deceased Minor
Child, Lozano, Appellants, and Oscar CLINIC,
THE CHILDREN’S Tom M.D.,
McNeil, Joseph
Oshman, M.D., Appellees.
No. 13-98-200-CV. Texas,
Court Appeals
Corpus Christi.
June 1999.
Rehearing Aug. Overruled 1999.