Opinion
NO. 01-15-00137-CV
05-10-2016
STEVEN HILL, Appellant v. PREMIER IMS, INC., Appellee
On Appeal from the 133rd District Court Harris County, Texas
Trial Court Case No. 2011-68790
MEMORANDUM OPINION
Steven Hill, a former Executive Vice President at Premier IMS, left Premier with some of its employees. Premier sued him asserting, among other things, that he began working as a salesman at PrintMasters, a competitor, while still working at Premier and took some of its business to another competitor, Hitman. At trial, Hill was found liable for breach of contract, breach of fiduciary duty, fraudulent misrepresentation, and conversion of trade secrets. The jury awarded actual damages, lost profits, and attorney's fees. Hill raises six issues: (1) legally and factually-insufficient evidence exists to support his liability for each of the causes of action and the award of damages; (2) Premier did not elect a remedy; (3) Premier did not properly segregate attorney's fees; (4) the trial court did not properly set taxable costs; (5) the jury's responses were contradictory; and (6) Hill is entitled to attorney's fees. Because we agree that no evidence exists to support the full amount of damages, we affirm in part, reverse in part, and suggest a remittitur of damages.
Background
Premier is a mail services and marketing company that provides printing, digital imaging, and fulfillment services. Shortly after a merger with another similar company, Premier hired Hill, who previously owned his own printing company, as its "Executive Vice President."
Hill signed an employment agreement with Premier, which provided for a term of employment of three years. Hill was to "faithfully, industriously, and to the best of his ability, experience, and talent, perform all duties that may be required of and from him pursuant to the express and implicit terms hereof, to the reasonable satisfaction of employer." The agreement specified Hill's compensation and included (1) a 5% commission on certain accounts listed in the agreement and (2) a 2% commission on all Premier sales above $687,000 a month, among other forms of compensation.
Premier claims that Hill violated the employment agreement and thereby caused it damages by: (1) failing to properly terminate a copier agreement and (2) preparing to take some of Premier's business and employees to its competitors while still working for Premier. Hill, on the other hand, claims that Premier violated the employment agreement by not paying him commissions on some of the accounts listed in the agreement and by not paying him the 2% commission on sales over $687,000 for three months.
Copier Lease Termination
One of the "responsibilities" Premier "assigned" Hill was to terminate a lease on a copier machine. Hill accepted the assignment, telling Premier that terminating the agreement was "a piece of cake" and that he "was taking care of the copier." Hill, however, did not "properly terminate the contract," causing Premier to accrue additional charges of $6,500.
Transitioning to Hitman
As part of his marketing responsibilities at Premier, Hill developed a marketing plan for Hitman, a company that provides direct mailing services for automotive companies. Hitman placed one order with Premier to purchase certain mailings for a project. Premier never received another order from Hitman.
After beginning work on a marketing plan for Hitman, Hill began negotiating an employment opportunity with Hitman. During these discussions, Hill sent Hitman an email with "confidential financial information" about Premier's growth and profitability. About one month after beginning these negotiations, Hill signed a contract with Hitman and left Premier without notice. During the time Hill was negotiating a job with Hitman, Premier paid Hill over $23,000.
Hill claims Premier "didn't have the capabilities to do what [Hitman] wanted to do." Premier disagrees. It proffered testimony from an ex-partner at Hitman who testified that, had Hill not left Premier to work for Hitman, Hitman "would have done a significant amount of business with Premier." Using numbers provided by that ex-partner, Premier's attorney calculated that, had Hitman continued to use Premier's services, Hitman would have done between $425,000 and $3.2 million of business with Premier.
Around the same time Hill left Premier, Hitman also hired Anthony Amolochitis, a technology expert who had worked at Premier with Hill, to help build certain technology for Hitman's advertisement campaigns. Hill and Premier differ on Hill's involvement in Amolochitis's job change. Hill testified that Amolochitis was unhappy at Premier and was looking to change jobs. Hill stated he only provided a recommendation for Amolochitis after he applied to work at Hitman. Premier again countered with testimony from the same ex-partner at Hitman. The ex-partner testified that, while Hill still worked for Premier, Hill convinced Amolochitis to join him at Hitman: Hitman was only interested in hiring Hill if they could hire "both of them." Without Amolochitis, Hitman "didn't need [Hill]. . . . [It] needed both of them . . . [Hill] was going to direct [the project]; and [Amolochitis] was going to build it."
Because Amolochitis was Premier's technology expert, Premier had to replace certain software "as a result of [his] departure." When asked about the cost of the software, the Premier witness testified that the "purchase of the . . . software" cost Premier $17,000—"$17,000 sounds about right." This figure was not supported by an invoice or other documentation at trial.
Leaving Premier to Work for PrintMailers
Shortly after leaving Premier, in addition to his job with Hitman, Hill began making sales calls for PrintMailers, another print and marketing company. The day Hill left Premier, Solidad Gutierrez, a Premier employee, also left Premier without notice to work for PrintMailers. Before leaving Premier, Gutierrez deleted from her Premier workstation many of the files containing information about ongoing Premier projects.
Premier asserted that Hill used Gutierrez to facilitate the transfer of some of his clients from Premier to PrintMailers. After Gutierrez left Premier, one of Gutierrez's former Premier clients, intending to contact Gutierrez at PrintMailers, instead sent an email to Premier discussing a project which Gutierrez was working on for the PrintMailers client. The email contained an attachment of a draft of the project sent by Gutierrez to the client. The draft contained artwork created by Premier. A sales representative at Premier testified that he believed Hill provided this artwork to Gutierrez because "a couple days" before Premier received this email, Hill asked Premier's graphic designer to "burn all [of the client's] files onto a CD [because] he needed them."
Trial
Premier sued Hill for breach of contract, breach of fiduciary duty, fraudulent misrepresentation, and conversion of trade secrets. Hill counterclaimed for breach of contract for unpaid commissions.
The jury found Hill liable on all four causes of action and awarded Premier $38,600 for "reasonable and necessary expenses [Premier] incurred as a result of [Hill's] actions" and $100,000 in lost profits. The jury found that "the reasonable fee for the necessary services of [Premier's] attorneys in this case" was $68,257.
Although the jury found that Premier failed to "pay certain commissions" to Hill, it found that Hill's "repudiation" of the employment agreement "excuse[d] performance" by Premier. Thus, Hill was awarded "zero" in damages for the unpaid commissions. The jury found that $21,000 was "a reasonable fee for the necessary services of [Hill's] attorneys in this case . . . . [for] trial" but the trial court did not award Hill any attorney's fees. Hill appeals.
Sufficiency of the Evidence
Hill argues that Premier presented legally or factually insufficient evidence to support its causes of action or the amount of damages.
A. Standard of review
When, like here, both the legal and factual sufficiency of the evidence are challenged, "we first review the legal sufficiency of the evidence to determine whether the record contains any evidence of probative value to support the factfinder's decision." Kellmann v. Workstation Integrations, Inc., 332 S.W.3d 679, 684 (Tex. App.—Houston [14th Dist.] 2010, no pet.). If a party attacks the legal sufficiency of the evidence, it must show no evidence exists to support the adverse finding. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Id.
If the evidence is legally sufficient, we then examine the factual sufficiency of the evidence. See Kellmann, 332 S.W.3d at 684. In conducting a factual sufficiency review, we "consider and weigh all of the evidence supporting and contradicting the challenged finding and set the finding aside only if the evidence is so contrary to the overwhelming weight of the evidence as to make the finding clearly wrong and manifestly unjust." McMahon v. Zimmerman, 433 S.W.3d 680, 691 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). B. Breach of contract
When several theories of liability support the same damages award, an appellate court determines whether the defendant is liable under any of those theories and then assumes that the plaintiff chose the cause of action that would give it the greatest recovery. See Lundy v. Masson, 260 S.W.3d 482, 506 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (holding that appellate court "will reform the trial court's judgment to effect such an election" that gives plaintiff "the greater remedy" when multiple causes of action support damages award and jury does not specify under which cause of action it awarded damages); cf. Jerry L Starkey, TBDL, L.P. v. Graves, 448 S.W.3d 88, 113-15 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding that plaintiff may, on remand, "relitigate his claims" including those for which there was legally insufficient evidence in first trial). Premier's breach of contract claim allows it the greatest recovery because a plaintiff can recover attorney's fees for breach of contract. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2015). Therefore, because we find that legally and factually sufficient evidence exists to support the jury's finding of liability under breach of contract, we do not address Premier's other causes of action.
To prevail on a breach of contract claim, the plaintiff must show "(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained as a result of the breach." B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Hill does not challenge the first two elements of Premier's breach of contract claim. He does not dispute the existence of his employment agreement with Premier or his duty to "work faithfully, industriously, and to the best of his ability, experience and talent" for Premier during the employment term. Nor does Hill disagree that Premier performed or tendered performance of its contractual duties before Hill's repudiation. The two remaining elements of Premier's contract claim, then, are whether Hill breached his employment agreement and whether this breach caused Premier damages.
Although Hill argues that "no valid or enforceable contract existed . . . regarding competition of any kind," we construe Hill's argument to be contesting the interpretation of the contract and whether any provision created a non-compete agreement—not the existence of the employment agreement itself.
1. Contractual duty to work faithfully
Premier argued that the provision that Hill work "faithfully" for Premier required Hill to "act in the best interest of his employer" and that his actions injuring Premier's business interests violated this contractual duty.
The jury could have concluded that Hill breached his employment agreement to work "faithfully" for Premier by taking staff and business from Premier to its competitors, Hitman and PrintMailers, while working for Premier. Hitman's ex-partner testified that, while Hill was employed by Premier, Hill convinced Amolochitis, who was a member of Premier's technical staff, to leave Premier and join him at Hitman. Premier also provided evidence that Hill, while still employed by Premier, worked with Gutierrez to transfer some business from Premier to PrintMailers. We, therefore, reject Hill's legal sufficiency challenge to the breach element of the jury's breach of contract finding.
Under a factual-sufficiency standard, we also conclude that the evidence was sufficient to support the jury's findings. Although Hill denied that he was involved in Amolochitis's or Gutierrez's decision to leave Premier, the jury could have chosen not to believe Hill's testimony or to give more weight to Premier's witnesses, which we summarized above. Thus, we cannot say that the jury's finding that Hill breached his contractual obligation to work faithfully for Premier was "so contrary to the overwhelming weight of the evidence as to make the finding clearly wrong and manifestly unjust." McMahon, 433 S.W.3d at 691.
2. Contractual obligation to work industriously
Premier also argues that Hill breached his contractual duty to work "industriously" when he failed to properly terminate the copier lease. Premier's CEO and CFO both testified that Hill was responsible for terminating the copier lease and "improperly" terminated the lease, damaging Premier. There was evidence that it was easy—"a piece of cake" and "no problem" in the witness's words—to terminate the contract. Yet Hill did not properly terminate the lease. The testimony, however, was conclusory. See City of Emory v. Lusk, 278 S.W.3d 77, 89 (Tex. App.—Tyler 2009, no pet.) ("A conclusory and nonprobative opinion is legally insufficient to support a jury verdict").
The only evidence Premier proffered was that Hill said he would terminate the lease and the lease was not terminated. No evidence was presented to show that Hill failed to terminate the lease because he failed to work "industriously." The witnesses did not provide any details regarding the difficulty or consequences of prematurely terminating the lease. Although one witness testified that Hill said it was "a piece of cake" and "no problem" to terminate the lease, no evidence was presented that the lessor would accept an early termination. No witness testified to what steps, if any, Hill did or did not take to terminate the lease. Thus, "no evidence of probative value" exists to support the finding that Hill breached his employment agreement with Premier in failing to terminate the copier lease.
3. Damages for failure to work faithfully
The final element of a breach of contract claim is damages. "The ultimate goal in measuring damages for a breach of contract claim is to provide just compensation for any loss or damage actually sustained as a result of the breach. By the operation of that rule, a party generally should be awarded neither less nor more than his actual damages." Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 148 (Tex. App.—Dallas 2012, no pet.).
Premier provided evidence that Hill breached his contractual obligation to work faithfully by persuading Amolochitis to leave Premier. Because Amolochitis left, Premier had to replace its software. The cost of "just the software" was $17,000. Although no documentary evidence, such as an invoice, was presented, and the witness seemed unsure about the amount—testifying that "$17,000 sounds about right"—this number was not controverted.
Thus, under the legal-sufficiency standard, some "evidence of probative value" exists to support the jury's finding that Premier suffered damages as a result of Hill's breach. When examining all of the evidence under a factual-sufficiency standard, we cannot conclude that the jury's finding was "so contrary to the overwhelming weight of the evidence as to make the finding clearly wrong and manifestly unjust." McMahon, 433 S.W.3d at 691. Accordingly, we hold that legally and factually sufficient evidence exists to support the jury's finding of breach of contract.
C. Amount of damages
The jury awarded Premier $38,600 as "[r]easonable and necessary expenses" that Premier incurred as a result of "Hill's actions," without distinguishing among the various theories of liability. Hill did not object to the lack of segregation. Hill argues that the evidence is legally and factually insufficient to support the jury's damages award.
Premier points to three different losses totaling $23,500 that Premier allegedly suffered because of Hill's actions. First, Premier provided evidence that the cost of "just the software" that it had to replace when Amolochitis left Premier was $17,000. This loss can be tied to Hill's breach of contract, as discussed in the previous section.
Second, Premier provided evidence that, because Hill did not properly terminate the copier lease, Premier had to pay an additional $6,500 to the lessor. This second loss, however, cannot be tied to Hill's breach of contract because legally insufficient evidence exists to find that Hill breached his contract with Premier by failing to terminate the copier lease. Thus, we cannot take this loss into account when reviewing the jury's award of damages.
Third, Premier argues that it is entitled to $23,309.43, which is the full amount it paid Hill during the time Hill was negotiating for a position with Hitman. Although Premier presented evidence at trial that Hill "was not doing a good job" for Premier and that he "was almost absentee," it did not present evidence that Hill did absolutely no work for Premier and thus did not earn any of his compensation under his employment agreement. Premier does not point us to any case law, nor can we find any, holding that an employer can refuse to pay any compensation to its employee when the employee is negotiating employment with another company. Thus, we cannot conclude that Premier presented legally sufficient evidence of these damages.
Accordingly, we hold that legally and factually sufficient evidence exists to support the jury's finding of breach of contract and damages of $17,000.
D. Lost Profit Damages
The jury awarded Premier $100,000 in consequential damages for lost profits. Hill argues that "[n]o evidence was offered in support of lost profits. . . . [T]he measure of damages is for net lost profits, not gross lost profits or gross sales or revenues. . . . [Premier] offered no such proof." We agree. "Lost profits are damages for the loss of net income to a business and, broadly speaking, reflect income from lost-business activity, less expenses that would have been attributable to that activity. . . . The calculation of lost-profits damages must be based on net profits, not gross revenue or gross profits." Kellmann, 332 S.W.3d at 684.
Premier did not offer any evidence of "net profits" at trial. Two witnesses testified in support of Premier's lost business opportunities. The first witness, Premier's CFO, testified only to the "change between the sales" in the year after Hill left. The CFO repeatedly conceded that she could not answer questions about Premier's profit margin or expenses. The second witness, an ex-partner at Hitman, also did not testify regarding Premier's profit margin or expenses.
Premier did not provide any evidence of "net profits" or of "expenses" to allow the jury to subtract "expenses that would have been attributable to that" lost business activity. Kellmann, 332 S.W.3d at 684. Thus, no evidence of Premier's profits exists to support the jury's award of lost-profit damages.
E. Suggested remittitur
We have concluded that there was no evidence to support the award of $38,600. When an appellate court holds that evidence of damages is legally insufficient to support the judgment, one of two situations exist: either there is some evidence that the claimant suffered damages but "no evidence" that the claimant suffered damages in the amount awarded by the jury or there is "no evidence" that the claimant suffered damages at all.
When there is evidence to support some damages, but not the amount awarded by the jury, "it is not appropriate to render judgment." Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007); see Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. and Research Corp., 299 S.W.3d 106, 124 (Tex. 2009). In that situation, "we must remand for a new trial, unless we can suggest a remittitur." Eoff v. Central Mut. Ins. Co., 461 S.W.3d 648, 660 (Tex. App.—Dallas 2015, no pet.); see JP Morgan Chase Bank, N.A. v. Prof'l Pharmacy II, No. 02-11-00373-CV, 2014 WL 7473779, at *23 (Tex. App.—Fort Worth Dec. 31, 2014, no pet.) ("a court of appeals may exercise its power to suggest a remittitur when there is insufficient evidence to support the full amount of damages awarded but sufficient evidence to support a lesser award"). In other words, if part of a damage verdict lacks sufficient evidentiary support, the proper course is to allow the prevailing party to either accept the remittitur or have the case remanded for a new trial. Samuels v. Nasir, 445 S.W.3d 886, 894 (Tex. App.—El Paso 2014, no pet.) (quoting Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987)); see also TEX. R. APP. P. 46.3 ("The court of appeals may suggest a remittitur. If the remittitur is timely filed, the court must reform and affirm the trial court's judgment in accordance with the remittitur. If the remittitur is not timely filed, the court must reverse the trial court's judgment."); Eoff, 461 S.W.3d at 660 (suggesting remittitur on appeal because evidence was legally insufficient to satisfy full damages award); Hernandez v. Sovereign Cherokee Nation Tejas, 343 S.W.3d 162, 175-76 (Tex. App.—Dallas 2011, pet. denied) (suggesting remittitur of punitive damages and actual damages based on insufficient evidentiary support for jury's finding of damages).
But in some cases, "remittitur is not appropriate" and we must remand for a new trial without giving the party an opportunity to accept a remittitur. Indian Oil Co., LLC v. Bishop Petroleum Inc., 406 S.W.3d 644, 659-60 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). For example, in Bishop Petroleum, the prevailing party "presented an unsegregated lump sum figure backed up by numerous invoices." Id. On that record, the appellate court noted "there is no way to parse through all of Bishop Petroleum's invoices and allocate damages between amounts for which [the opposing party] admits he is . . . liable . . . and [those] for which he is not . . . liable . . . . " Id.; see also Fairways Offshore Expl., Inc. v. Patterson Servs., Inc., No. 01-11-000790CV, 2013 WL 371601, at *10 (Tex. App.—Houston [1st Dist.] Jan. 31, 2013, pet. denied) (mem. op.) (stating remittitur was not available because there was no reasoned basis for segregating "an amount that could be properly awarded").
Unlike Bishop Petroleum, we can "parse through the record" and determine "an amount that could be properly awarded." See id. There is legally and factually sufficient evidence that Premier had to pay $17,000 to buy new software as a result of Hill breaching his contractual duty to work "faithfully" for Premier by persuading Amolochitis to join him at Hitman. While the evidence was disputed, it supports a jury award of $17,000. Because the evidence supports a damages award of $17,000, but does not support an award of $38,600, we conclude that we may suggest a remittitur to $17,000. See JP Morgan Chase Bank, 2014 WL 7473779, at *23 (suggesting remittitur when evidence was legally and factually insufficient to support full damages award but was sufficient "to support a lesser damages" award). Under these facts, Premier has "the option of accepting the remittitur or having the case remanded for a new trial." Samuels, 445 S.W.3d at 894. If the remittitur is timely filed, we will modify and affirm the judgment; if not, we will reverse the judgment and remand for a new trial. Eoff, 461 S.W.3d at 660.
Election-of-Remedy
Hill argues that "[w]hen a plaintiff's petition contains alternative theories for recovery, the court cannot render a judgment awarding relief on all theories. . . . Here, [Premier] has asserted breach of contract, breach of fiduciary duty, fraudulent representations, and conversion of trade secret. . . . [Premier] needed [to] elect its remedy so that the measure of damages can be appropriately determined." Premier responds that "[Hill's] argument that [Premier] failed to elect a remedy misinterprets what it means to elect a remedy . . . . The election of remedies [doctrine] requires that a party [choose] one of two inconsistent, but coexisting modes of procedure and relief. [Premier] is receiving one recovery."
The election-of-remedies defense precludes a party from seeking both forms of alternate relief when the party (1) successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice to allow both. Krobar Drilling, L.L.C. v. Ormiston, 426 S.W.3d 107, 113 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). The defense exists to "prevent a party who has obtained a specific form of remedy from obtaining a different and inconsistent remedy for the same wrong . . . . Remedies are inconsistent when one of the remedies results from affirming the transaction and the other results from disaffirming the transaction." Id. The defense, however, "does not apply . . . where the remedies are neither inconsistent nor repugnant." Id.
The election-of-remedies defense is an affirmative defense that a defendant must "plead, prove, and secure favorable jury findings thereon, unless it was established as a matter of law by undisputed evidence." Ginn v. NCI Bldg. Sys., Inc., 472 S.W.3d 802, 840 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Hill did not plead, prove, or secure favorable jury findings on the election-of-remedies defense. Thus, "unless it was established as a matter of law by undisputed evidence," Hill has waived this defense. Id.
Even if preserved, this defense is inapplicable because Premier would have recovered all of its damages under its breach of contract claim. Thus, we overrule Hill's election-of-remedies issue.
Segregation of Attorney's Fees
Hill argues that the jury question for award of attorney's fees to Premier did not properly segregate attorney's fees for work Premier's attorney performed on its breach-of-contract claim from its other claims. Thus, Hill requests that, "[t]o the extent this award is upheld following this appeal, this award should modified/reformed."
"Generally, a party seeking attorney's fees must segregate those fees incurred in connection with a claim that allows their recovery from fees incurred in connection with claims for which no such recovery is allowed." Alief Indep. Sch. Dist. v. Perry, 440 S.W.3d 228, 245 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). "Settled law, however, holds that a party waives any error arising from possibly awarding nonrecoverable fees when the complaining party does not object to failure to segregate between legal services for which fees are properly recoverable and those for which no recovery of fees is authorized." Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 516 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 823 (Tex. 1985) ("Because [the party] did not object to the failure of the trial court to segregate the attorney's fees between the claims, they have waived that point.").
Hill did not object at trial to the lack of evidence or request a jury instruction regarding segregation of attorney's fees. He, therefore, waived this issue.
Taxable Costs
Hill argues that the trial court improperly awarded taxable costs: "The judgment should state that costs are awarded against a certain party, not the amount of the costs awarded . . . . Here Appellee simply attached to its Motion for Judgment, its own evidence and placed a number in its proposed judgment, prior to a certified cost bill by the clerk."
A successful party can recover its costs from the losing party. TEX. R. CIV. P. 131. Hill does not provide, nor can we locate any authority addressing Hill's argument that "[t]he judgment should [not] state . . . the amount of the costs awarded." It is permissible for the court to calculate costs if a party challenges the clerk's bill of record. See Operation Rescue-Nat'l v. Planned Parenthood of Houston & Se. Tex., Inc., 937 S.W.2d 60, 86-88 (Tex. App.—Houston [14th Dist.] 1996, aff'd as modified, 975 S.W.2d 546 (Tex. 1998)) (affirming trial court's order setting taxable cost amount after motion to retax costs). Hill's one paragraph, conclusory argument that "[j]udgment should be modified as to reflect taxable costs after they have been properly certified by the court" provides no argument about why Texas law does not allow the judgment to state the amount of the costs awarded.
The only case Hill cites in this section of his brief held that the trial court's failure to assess costs does not affect the finality of the judgment—not that the trial court cannot assess the amount of taxable costs. See City of Marshall v. Gonzales, 107 S.W.3d 799, 803 (Tex. App.—Texarkana 2003, no pet.).
Hill does not argue that the amount of taxable costs the trial court awarded was incorrect. Nor did Hill challenge the taxable costs awarded through a motion to retax costs in the trial court. See Gumpert v. ABF Freight Sys., Inc., 312 S.W.3d 237, 239 (Tex. App.—Dallas 2010, no pet.) ("A party that wishes to challenge items contained in the clerk's bill of costs must file a motion to retax costs.").
Accordingly, we overrule Hill's taxable-costs issue for failure to adequately brief the issue. See TEX. R. APP. P. 38.1(i) (requiring brief to contain citations to legal authority in support of arguments); Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.) ("Failure to cite legal authority or to provide substantive analysis of the legal issues presented results in waiver of the complaint.").
Jury Answers
The jury answered "yes" to the question "Did Premier IMS, Inc. fail to pay certain commissions to Steven Hill?" The jury then answered "zero" in response to the question, "What sum of money, if any, paid in cash now, would fairly and reasonably compensate Steven Hill for commissions he was not paid?" Hill argues that these two jury answers "are in fatal conflict, rendering the entirety of the judgment fatal to the extent it is entered in favor of either party."
If a party believes that the jury's answers are in conflict, the party must object before the court discharges the jury. Meek v. Onstad, 430 S.W.3d 601, 605-07 (Tex. App.—Houston [14th Dist.] 2014, no pet.). "The rationale behind this rule is that, if a party voices such a complaint before the jury is discharged, the trial court may take action to resolve the conflict." Id. at 606. If some of the jury's answers are in conflict, "the court shall instruct the jury in writing and in open court of the nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional instructions as may be proper, and retire the jury for further deliberations." Id. (internal citations omitted). The trial court has no mandatory duty to resolve conflicts in the jury's answers without the party's objection to the jury's answers. Id.
Hill did not object that the jury's answers were in conflict before the jury was dismissed. Accordingly, Hill did not preserve this issue for appeal and waived any potential conflict in the jury's answers.
Hill's Attorney's Fees
Hill requests that we "reform the judgment to reflect that he be awarded such fees as found by the jury . . . . The jury found that [Premier] failed to [pay] certain commissions to [Hill], and while failing to award a dollar amount for those commissions . . . did indicate that [Hill] was also entitled to reasonable attorney's fees indicating the amounts of same."
Despite Hill's assertion that his right to attorney's fees is "currently reflected in the Final Judgment entered by the Court on December 8, 2014," the judgment does not award Hill attorney's fees.
A trial court may submit jury questions on reasonable attorney's fees of each party "so that it would be in a position to award attorney's fees to the successful party." Ice Bros. v. Bannowsky, 840 S.W.2d 57, 62 (Tex. App.—El Paso 1992, no writ). That is what the trial court did. Id. Hill's trial counsel acknowledged this procedure during trial. With regard to a proposed jury question about the recovery of attorney's fees, the court and Hill's attorney engaged in the following discussion:
THE COURT: I'm not going to tell [the jury] who has to pay because that's none of their business because it may not be that anybody has to pay.
MR. WRIGHT: True.
THE COURT: You know, I mean, I do the final judgment.
MR. WRIGHT: That's absolutely correct.
THE COURT: So, what they're to do—I mean, and that wasn't the question. The question was: What's the reasonable fee?
MR. WRIGHT: That's absolutely correct.
The jury was not deciding whether Hill was entitled to attorney's fees—only what a reasonable amount of attorney's fees would be so that the trial court "would be in a position to award attorney's fees to the successful party." Id. at 62. Hill was not the prevailing party at trial. Thus, the trial court did not err in refusing to grant Hill attorney's fees.
Premier's Motion for Attorney's Fees on Appeal
Premier filed a motion with this court for "attorney's fees associated with responding to this appeal," arguing that, if attorney's fees are mandatory, "then appellate attorney's fees are also mandatory when proof of reasonable fees is presented." We deny that motion.
For a breach of contract claim, "the trial court has no discretion to deny attorney's fees when presented with evidence of the same. . . . If trial attorney's fees are mandatory . . . , then appellate attorney's fees are also mandatory when proof of reasonable fees is presented." Vending v. Johnson, 466 S.W.3d 143, 154 (Tex. 2015). A party requesting attorney's fees, however, bears "the burden to demonstrate the reasonable and necessary amount of their attorney's fees, for both the trial and appellate levels." In re United Servs. Auto Ass'n, 446 S.W.3d 162, 178 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding [mand. pending]); see also Replacement Rent-A-Car, Inc. v. JCD, Inc., No. 05-92-00379-CV, 1992 WL 379424, at *4 (Tex. App.—Dallas Dec. 22, 1992, no writ) (not designated for publication) (holding that failure to submit jury question on appellate attorney's fees results in waiver of appellate attorney's fee claim).
Although appellate attorney's fees would have been mandatory if proof of reasonable fees had been presented to the trial court, Premier provided no such proof. Thus, Premier did not meet its burden to demonstrate its appellate attorney's fees and its motion asking us to award those fees is denied.
Premier's attorney did submit an affidavit attached as an exhibit to its appellate brief stating that reasonable fees for this appeal is $21,875. "[W]e cannot consider documents attached as appendices to briefs and must consider a case based solely upon the record filed." WorldPeace v. Comm'n for Lawyer Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Thus, this affidavit does not constitute "proof of reasonable attorney's fees." --------
Conclusion
We affirm the jury's finding of liability for breach of contract. Because Premier did not provide evidence of lost profits, we reverse the trial court's award of damages for lost profits.
The evidence provided at trial only supports actual damages of $17,000. Thus, we suggest a remittitur of the actual damages award to $17,000 against Hill. In accordance with Rule 46.3 of the Texas Rules of Appellate Procedure, if Premier files with this court, within fifteen days of the date of this opinion, a remittitur to that amount, the trial court's judgment on damages will be modified and affirmed. If the suggested remittitur is not timely filed, the trial court's judgment will be reversed and the cause will be remanded for a new trial on liability and damages. See Rancho La Valencia, Inc. v. Aquaplex, Inc., 383 S.W.3d 150, 152 (Tex. 2012) (holding that if party rejects remittitur, court of appeals must remand for new trial on liability and damages).
Harvey Brown
Justice Panel consists of Chief Justice Radack and Justices Massengale and Brown.