Opinion
No. 02-08-124-CV
Delivered: April 30, 2009.
Appealed from the 153rd District Court of Tarrant County.
PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.
MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
In two issues, Wanda Bonney and Marvin Bonney, Individually and D/B/A CompuQuick Tax (the "Bonneys"), assert that there was legally and factually insufficient evidence to support the trial court's judgment against them for breach of contract and the resulting damages. We reverse and render in part and reverse and remand in part.
II. Factual and Procedural History
With the assistance of her ex-husband, Marvin, Wanda operated two "fast tax" income tax service offices under the name CompuQuick Tax, in the Tarrant County neighborhoods of Meadowbrook and Woodhaven. In 2005, she entered into an Asset Purchase Agreement (the "Agreement") with Edward and Patricia Scott to transfer the Woodhaven business to the Scotts for $40,000. Dona Thorley, an experienced tax preparer and Woodhaven office manager who had worked for Wanda for ten years, agreed to work with the Scotts as office manager after they acquired the Woodhaven location.
The Agreement was signed by Wanda individually and on behalf of CompuQuick Tax, and also by Marvin to the extent that the Agreement applied to him.
The Agreement included the following provision:
5. Covenant Not to Compete. Seller (and any of the individual[']s family members, if they work in the business[)] shall not, either directly or indirectly, alone or with others, enter into or engage in the tax service business, other than the business located at 6320 Meadowbrook Drive, Fort Worth, Texas, for a period of five (5) years from the date of this closing of this agreement, by soliciting,acquiring, contacting to do business with for the purpose of soliciting their business,accepting, or otherwise communicating in any way with any of the current or previous customers of Seller, as more particularly identified in "Exhibit B", attached hereto and made a part hereof for all purposes. . . .
Additionally, each of Seller and the Individual (and any of the individual's family members, if they work in the business) agrees not to solicit any services of the Woodhaven accounts being sold by the Seller to the Purchaser, directly, indirectly or in any manner, nor solicit in any manner any past accounts, customers, supply resources of the business . . . for a period of five (5) consecutive years from the Closing Date.
The interlineations were initialed by the parties. "Exhibit B" contained a list of 369 customers.
The basis of the parties' dispute is the Scotts' complaint that the Bonneys, through actions taken by Thorley, breached this provision.
The trial court made the following findings of fact with regard to its judgment in favor of the Scotts against the Bonneys:
1. Plaintiffs and Defendant, Wanda Bonney, Individually and d/b/a CompuQuick Tax, entered into an Asset Purchase Agreement on November 5, 2005, which was closed on November 22, 2005.
2. The Asset Purchase Agreement entered into between Plaintiffs and Defendant, Wanda Bonney, Individually and d/b/a CompuQuick Tax, was for the sale and purchase of a tax service business, located at 1237 Woodhaven Boulevard, Fort Worth, Tarrant County, Texas.
3. The Asset Purchase Agreement included, but was not limited to, the sale of assets and a Customer List, consisting of three hundred sixty-nine (369) customers, acquired by Plaintiffs when they purchased said business.
4. The Asset Purchase Agreement entered into between the parties included a Covenant Not-To-Compete and Solicit, for a period of five (5) years, from the date of the Agreement.
5. The Asset Purchase Agreement also included a covenant that the Defendants, Wanda Bonney, Individually and d/b/a CompuQuick Tax, and Marvin Bonney, Individually, were not to use the Customer List to the detriment of Plaintiffs.
. . . .
8. Subsequent to the purchase of the tax service business located at 1237 Woodhaven Boulevard, Fort Worth, Tarrant County, Texas, by Plaintiffs[,] Defendant Dona Thorley worked for Plaintiffs between the dates of December 2005 and April of 2006.
. . . .
10. Defendant Dona Thorley contacted Defendant, Wanda Bonney, Individually, and d/b/a CompuQuick Tax, in the first week of December, 2006, pertaining to seeking employment with said Defendant, at the 6314 Meadowbrook Drive, Fort Worth, Tarrant County, Texas address, at which address said Defendant was then doing business.
11. Defendant Dona Thorley began sending out solicitation letters on December 19th and December 20th of 2006, to customers on the Customer List acquired by Plaintiffs under the Asset Purchase Agreement[,] soliciting said customer[s'] business to have their tax returns prepared by CompuQuick Tax at 6314 Meadowbrook Drive, Fort Worth, Tarrant County, Texas.
12. Defendant Dona Thorley began working for Defendant, Wanda Bonney, Individually and d/b/a CompuQuick Tax, on December 28, 2006.
13. Defendant Dona Thorley became an employee and agent of Defendant, Wanda Bonney, Individually and d/b/a CompuQuick Tax, on December 28, 2006.
14. Subsequent to December 28, 2006, Dona Thorley, acting [as] an employee and agent of Wanda Bonney, Individually and d/b/a CompuQuick Tax[,] continued to solicit customers off of the Customer List acquired by Plaintiffs under the Asset Purchase Agreement.
15. Subsequent to December 28, 2006, Dona Thorley, acting [as] an employee and agent of Wanda Bonney, Individually and d/b/a CompuQuick Tax, posted fliers at Plaintiffs' business address at 1237 Woodhaven Drive, Fort Worth, Tarrant County, Texas, in an attempt to solicit customers to said Defendant's Meadowbrook office.
16. Defendant, Wanda Bonney, Individually and d/b/a CompuQuick Tax, and [Defendant] Marvin Bonney, became aware of the fliers being posted by Dona Thorley after December 28, 2006; yet they failed to take any action to take those fliers down.
17. Subsequent to December 28, 2006, Dona Thorley, acting as an employee and agent of Defendant Wanda Bonney, Individually and d/b/a CompuQuick Tax, made telephone calls to solicit customers on the Customer List purchased by Plaintiffs under the Asset Purchase Agreement.
18. Defendant Wanda Bonney, Individually and d/b/a CompuQuick Tax, and Defendant, Marvin Bonney, received the benefit of said solicitation by Defendant Dona Thorley on their behalf.
19. As a natural and probable consequence of the solicitation by Dona Thorley, as an employee and agent and on behalf of Defendants Wanda Bonney, Individually and d/b/a CompuQuick Tax, and Marvin Bonney[,] Plaintiffs lost business income for the tax season of 2006, in the amount of $12,546.00.
20. Plaintiffs incurred actual damages in the amount of $12,546.00 for the tax season 2006.
. . . .
22. Plaintiffs incurred reasonable and necessary attorney's fees in prosecuting this suit, in the amount of $23,581.25.
23. Plaintiffs incurred costs of court . . . [amounting to] $4,629.25.
The trial court made the following conclusions of law:
2. Defendants, Marvin Bonney, Individually and Wanda Bonney, Individually and d/b/a CompuQuick Tax, breached paragraph five (5) of the Asset Purchase Agreement entered into between Plaintiffs and Defendants.
3. As a natural and probable consequence of the breach of paragraph five (5) of the Asset Purchase Agreement by Defendants Marvin Bonney, Individually, and Wanda Bonney, Individually and d/b/a CompuQuick Tax[,] Plaintiffs are entitled to recover actual damages in the amount of $12,546.00.
4. As a result of the breach of paragraph five (5) of the Asset Purchase Agreement by Defendants, Marvin Bonney, Individually, and Wanda Bonney, Individually and d/b/a CompuQuick Tax[,] Plaintiffs are entitled to recover their reasonable and necessary attorney's fees in the amount of $23,581.25, pursuant to section 38.001 of the Texas Civil Pr[actice] and Remedies Code and Section 35 of the Asset Purchase Agreement.
5. Plaintiffs are entitled to recover total damages against Defendants Marvin Bonney, Individually, and Wanda Bonney, Individually and d/b/a CompuQuick Tax, jointly and severally, in the total amount of $36,137.25.
. . . .
8. All costs of court are assessed against Defendants Marvin Bonney, Individually, and Wanda Bonney, Individually and d/b/a CompuQuick Tax.
9. Plaintiffs are entitled to recover against Defendants Marvin Bonney, Individually, and Wanda Bonney, Individually and d/b/a CompuQuick Tax, jointly and severally, post-judgment interest on [their] actual damages of $36,137.25, at the rate of ten percent (10%) per annum.
This appeal followed.
III. Legally and Factually Sufficient Evidence
In their two issues, the Bonneys assert that the evidence is legally and factually insufficient to support the trial court's findings and conclusions that they breached the Agreement and the damages therefrom.
A. Standard of Review
The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury's answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). When findings of fact are filed and are unchallenged, they occupy the same position and are entitled to the same weight as the verdict of a jury; they are binding on an appellate court unless the contrary is established as a matter of law or there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Raman Chandler Props., L.C. v. Caldwell's Creek Homeowners Ass'n, Inc., 178 S.W.3d 384, 390 (Tex.App.-Fort Worth 2005, pet. denied).
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).
In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). When we sustain a legal sufficiency issue, it is our duty to render judgment for the appellant because that is the judgment the trial court should have rendered. See Tex. R. App. P. 43.3; Vista Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex. 1986).
When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). When conducting a factual sufficiency review, a court of appeals must not merely substitute its judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The trier of fact is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Id.
Conclusions of law may not be challenged for factual sufficiency, but they may be reviewed to determine their correctness based upon the facts. Citizens Nat'l Bank v. City of Rhome, 201 S.W.3d 254, 256 (Tex.App.-Fort Worth 2006, no pet.); Dominey v. Unknown Heirs Legal Representatives of Lokomski, 172 S.W.3d 67, 71 (Tex.App.-Fort Worth 2005, no pet.). We will uphold a conclusion of law if the judgment can be supported on any legal theory supported by the evidence. Rischon Dev. Corp. v. City of Keller, 242 S.W.3d 161, 167 (Tex.App.-Fort Worth 2007, pet. denied), cert. denied, 129 S. Ct. 501 (2008); Tex. Dep't of Public Safety v. Stockton, 53 S.W.3d 421, 423 (Tex.App. 2001, pet. denied). We review conclusions of law de novo, and we will not reverse them unless they are erroneous as a matter of law. Rischon Dev. Corp., 242 S.W.3d at 167; Stockton, 53 S.W.3d at 423.
B. Breach of Contract
In their second issue, the Bonneys challenge the legal and factual sufficiency of the evidence to support the trial court's breach of contract finding and conclusion.
1. Ratification
"Ratification is the affirmance by a person of a prior act which when performed did not bind him, but which was professedly done on his account, whereby the act is given effect as if originally authorized by him." Disney Enters., Inc. v. Esprit Fin., Inc., 981 S.W.2d 25, 31 (Tex.App. 1998, pet. dism'd w.o.j.). "Ratification may occur when a principal, though he had no knowledge originally of the unauthorized act of his agent, retains the benefits of the transaction after acquiring full knowledge." Land Title Co. of Dallas, Inc. v. F.M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex. 1980). The critical factor in determining whether a principal has ratified an unauthorized act by his agent is the principal's knowledge of the transaction and his actions in light of such knowledge. Id.
The chief distinction between an employee and an agent is that an agent is employed to represent its principal in business dealings and to establish contractual relations between the principal and third parties, while an employee is not. See Duke v. State, 725 S.W.2d 289, 290 (Tex.App. 1986, pet. ref'd). However, an employer can make some manifestation to a third party that he is conferring authority on his employee to act as an agent, or it may be shown that the employer showed such a lack of ordinary care as to clothe the employee with the indicia of authority, that is, the employer knowingly and voluntarily permitted the employee to act in an unauthorized manner. See City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 627 (Tex.App.-Fort Worth 2003, pet. denied); Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 550 (Tex.App. 2003, no pet.); Suarez v. Jordan, 35 S.W.3d 268, 273 (Tex.App. 2000, no pet.). Apparent authority is based on the doctrine of estoppel, and one seeking to charge the principal through apparent authority of an agent must establish conduct by the principal that would lead a reasonably prudent person to believe that the agent has the authority that he purports to exercise. Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 629 (Tex. 1981).
2. Findings of Fact
In findings of fact numbers 13 through 18, the trial court found that Thorley became Wanda's employee and agent on December 28, 2006; that after that date, Thorley continued to solicit customers from the Customer List acquired by the Scotts under the Agreement by posting fliers at the Woodhaven office to advertise services at the Meadowbrook office and making phone calls to solicit customers on the Customer List; and that the Bonneys became aware of the posted fliers after December 28 and failed to take any action to remove them.
The evidence at trial reflects that, near the end of 2006, Edward Scott informed Thorley that he intended to close the Woodhaven location and asked Thorley to move to the new Camp Bowie location, an invitation she rejected. After exploring her options, Thorley called Wanda in December to see if she had work available for her at the Meadowbrook location. She began work on December 28, "as an employee of Wanda Bonney's," after she had already sent seventy to eighty letters between December 19 and 24 to former customers to get business to return to her at the Meadowbrook office. The letters she sent out did not go to all Woodhaven office customers because she did not know "each of the clients personally." She also called a few of the customers that she referred to as her "personal customers."
The nine-sentence letter read in part:
I wanted to let you know the NEW OFFICE is located at 6314 Meadowbrook Drive, Fort Worth, TEXAS 76112. Yes, I will be working at this office and look forward to seeing you beginning December 29, 2006. . . . Remember, I appreciate your past tax business and will continue to provide the latest tax credit information to you.
Thorley testified that she sent the letters out on December 19 and December 20. However, the envelopes for the letters that were marked "return to sender" show post-marked dates as follows: December 21, 22, 28, and 30, 2006, and January 3, 2007.
Thorley also had her daughter post fliers around the vacant Woodhaven location, announcing her return to CompuQuick, at least some of which were put up on January 2 or 3, 2007. There was no evidence that the Bonneys or Thorley did anything to remove the fliers.
The fliers state, "COME SEE: Dona Thorley — Tax Specialist," and they list the Meadowbrook office address and phone number.
When thirty of Thorley's letters were returned as undeliverable, Wanda saw them, inquired who had sent them, and told Thorley "she could not do that, that we had an agreement. " The Bonneys both testified that this was the first time they were made aware that Thorley had been soliciting clients for the office. Thorley testified that she was unaware of the prohibition against soliciting clients because Wanda had not discussed her negotiations with Scott for the Woodhaven office sale with her — Thorley learned of the sale after it occurred. Neither Wanda nor the other Meadowbrook office employees, nor apparently the Scotts, had warned Thorley against soliciting Woodhaven customers.
From Wanda's testimony, it appears that "we" meant Wanda and the Scotts.
Marvin testified that he became aware of the solicitation letters after New Year's, when Wanda showed him one of the letters.
When asked at trial why she did not mention the non-compete agreement to Thorley, Wanda testified that Thorley "had worked for Ed[ward] Scott the year before. My employees the year before knew not to compete, and I thought at that time Dona [Thorley] knew from Ed not to compete. . . . [and] I did not even think about it."
The Scotts only point to the following email to Thorley from Edward: "Okay. Sorry you can't work for us next tax season. . . . Only issue I foresee is whether you plan to contact any of our clients or work for Wanda. I'd like to make this a friendly departure so please let me know your plans. Thanks." Thorley did not respond to this email.
Edward Scott learned of the solicitation letters on December 28 or 29, and the fliers on January 2 or 3, and he sent a demand letter to the Bonneys on January 10, accusing them of violating the Agreement, demanding that they cease solicitation of the Woodhaven office clients, and requesting an agreed temporary injunction regarding further solicitation. Wanda responded through her attorney that they were doing an internal investigation and had issued an instruction to stop any type of solicitation.
3. Analysis
There is nothing in the record to show that Thorley was Marvin's employee or that he authorized her solicitations. Marvin testified that he was only in the office three to four days during the entire tax season because he had been diagnosed with prostate cancer and was undergoing treatment during that time. He testified that during most of that period he "was either incapacitated, recovering, or busy getting ready to go to the hospital."
With respect to Wanda, there is no evidence that Thorley was employed at Meadowbrook by Wanda in any capacity other than as an employee, nor is there evidence that Wanda manifested to third parties that Thorley was employed to act as an agent for Wanda or CompuQuick Tax. However, we hold that there is legally and factually sufficient evidence that Wanda showed a lack of ordinary care so as to clothe Thorley "with the indicia of authority" of an agent. See City of Roanoke, 111 S.W.3d at 627. Wanda should have been aware of Thorley's solicitation activities because Thorley had worked for Wanda for around ten years, had solicited clients on an annual basis while doing so, and had done so by sending out fliers. Wanda testified that she had made her other employees aware they were not to compete for Woodhaven's customers, but she failed to tell Thorley. After becoming aware of Thorley's solicitations, Wanda failed to notify Scott about the issue, or to notify the Exhibit B customers about the error, or to attempt to screen or redirect customers solicited from Woodhaven who came to her office. See Land Title Co. of Dallas, Inc., 609 S.W.2d at 756 — 57. Therefore, the evidence is legally and factually sufficient to support the trial court's finding and conclusion that Wanda breached the Agreement.
Thorley testified that she sent out fliers every single year.
Because there is no evidence before this court that the Marvin directly breached the contract with the Scotts, nor to attach Thorley's actions to him, we sustain this portion of the Bonneys' second issue. We overrule the Bonneys' second issue as it pertains to Wanda.
C. Damages
Wanda argues that the evidence is legally and factually insufficient to support the "judgment, findings, and conclusion[s] of damages" asserted by the Scotts against her.
We will not address further claims against Marvin because we have held there is no evidence that he committed breach of contract.
During the course of the lawsuit, an outside attorney was appointed to audit the Bonneys' 2006 customer list to determine which of those customers were part of the Exhibit B customer list belonging to the Scotts and the amounts paid by those customers to the Bonneys. Counsel reported back that 109 names appeared on both lists, and it was subsequently determined that the income derived by the Bonneys' tax service from those 109 clients amounted to $12,546.
However, the record also reflects testimony that, of the 109 names, three were duplicates, and that nine of the remaining 106 had not returned to Scott after the first tax year. Seventeen others were not charged a fee. Scott testified that he identified nine names related to Thorley and that he attempted to break out the customers that "could be really considered personal clients." Thorley testified that she had approximately 100 or more customers that she would consider "personal clients." On the list of 109 customers, Thorley highlighted forty-three as family members or close personal friends. The Scotts did not call any of the 109 customers as witnesses to establish whether they were influenced by Thorley's actions in their decisions to use the Meadowbrook office.
Edward Scott testified that he sent out 150 surveys to determine why his original Woodhaven clients did not follow him to the Camp Bowie location, but he received only seven responses, and he could only remember two: one of those indicated that the Camp Bowie office's location was the problem and the other reason was not revealed at trial.
Furthermore, Wanda testified that in the "fast tax" preparation business, location was the most important factor:
You look for low income areas; you look for check cashing places; you look for nail shops that would — that the low income visits; you look for apartments. The more apartments you have, the more nail shops you can find close by, or Blockbuster, anything like that where the low income people will go. . . . [The majority of the business comes from] approximately around three miles. . . . at least 85 to 90 percent.
Thorley and Marvin concurred in Wanda's evaluation; Marvin stated, "Without location, you're going to lose money," and observed that the Camp Bowie area was too affluent for a fast tax business. Edward Scott acknowledged that the fast tax business requires high volume and that the business's general model is to be in places with a lot of apartments, but he testified that location is not necessarily the only factor. He also testified that he relocated the Woodhaven office to Camp Bowie because of "some safety concerns at the Woodhaven location," some issues with the Woodhaven office's landlord, and "at that point we were wanting to attract more bookkeeping clients versus just tax preparation clients[,] and the Camp Bowie location was a nicer place."
Under the Agreement, the Scotts received a list of 369 Woodhaven office customers. In the 2005 tax year, at the Woodhaven location, the Scotts kept 199 of those customers, but they lost 170, even though Thorley remained the office manager. After the Scotts relocated the Woodhaven office to Camp Bowie Boulevard, around twelve to fourteen miles away, and Thorley declined his offer of employment, the Scotts retained only forty of the remaining 199 customers. There was also some testimony about the Scotts' continued use of the CompuQuick Tax name on the Woodhaven office's front door and their use of folders listing both the Woodhaven and Meadowbrook locations of CompuQuick Tax.
Wanda testified that in the fast tax business, from year to year, she would lose between fifty and seventy-five customers, or 10% to 15%. Marvin testified that annual loss of customers is around 30%.
Marvin testified that when employees leave, "they usually take a chunk of customers. "
Edward Scott testified that they "did not want to make it confusing for any of the clients by changing signs or anything of that nature. "
Although Scott potentially could have suffered a net loss of 159 customers due to Thorley's actions, the evidence also showed that the loss, or at least some of it, was also attributable to (or in conjunction with) the loss of Thorley as his office manager, confusion created by his continued use of the CompuQuick Tax name, and the change of office locations. Therefore, while there is some evidence that some customers went to the Meadowbrook office as a result of the solicitations, because none of the 109 customers at issue testified that they used the Meadowbrook office because of the solicitations, let alone that they were previous Woodhaven customers who changed locations for that reason, we find that the evidence that the wrongful solicitations caused damages amounting to $12,546.00 is so weak, or so contrary to the overwhelming weight of all the evidence, that it should be set aside and a new trial ordered. Therefore, we overrule Wanda's legal sufficiency challenge to the amount of damages, but we sustain her factual sufficiency challenge.
The record reflects a correlation between thirteen solicitation letters and $2,153.00 in fees paid to the Bonneys from Woodhaven Office customers and between forty-three solicitation letters from Thorley to her "personal" customers and $5,276.00 in fees paid to the Bonneys from Woodhaven Office customers.
After a factual sufficiency review, this court cannot remand only the damages issue for new trial if the defendant contested both liability and damages in the trial court. Tex. R. App. P. 44.1(b); Willis v. Donnelly, 199 S.W.3d 262, 276 n. 27 (Tex. 2006); Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001).
IV. Conclusion
Having sustained Marvin Bonney's legal sufficiency challenge as to breach of contract, we reverse the trial court's judgment as to him and render judgment that the Scotts take nothing by way of this suit as to him. Having overruled Wanda Bonney's legal and factual sufficiency complaint as to breach of contract and her legal sufficiency complaint as to damages, but sustaining her factual sufficiency challenge as to damages, we reverse the trial court's judgment as to her and remand this case to the trial court for a new trial on the Scotts' claims against her.