Opinion
No. 13-01-410-CV.
May 27, 2003.
Appeal from the County Court at Law No. 2 of Nueces County, Texas.
Before Justices YAÑEZ, CASTILLO, and DORSEY.
Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
MEMORANDUM OPINION
Appellant/cross-appellee Rose Tristan ("Tristan"), the sole proprietor of Rose Cleaning Services, sued appellee/cross-appellant C.A. Walker, Inc. ("Walker"), a general contractor, claiming breach of contract or quantum meruit and fraud. Tristan and appellant/cross-appellee Olga Cristan ("Cristan"), Tristan's sister and an employee of Rose Cleaning Services, also sued Walker for defamation. The jury found in favor of Tristan on her breach-of-contract and fraud claims and against Tristan and Cristan on their defamation claims. The trial court signed a judgment that reflected the jury's findings and awarded $20,411.25 to Tristan for breach of contract, $15,263.00 for fraud, pre-judgment interest on both awards, post-judgment interest on the total judgment, and, pursuant to section 38.001 of the civil practice and remedies code,$5,220.00 in attorney fees plus a conditional attorney-fee award on appeal. Walker appeals the adverse judgment. Tristan and Cristan appeal the take-nothing judgment on their defamation claims. We affirm in part and reverse and render in part.
Tex. Civ. Prac. Rem. Code Ann. § 38.001 (Vernon 1997).
I. WALKER'S ISSUES ON APPEAL
In three issues, Walker challenges the trial court's: (1) denial of Walker's motion for election of remedies; (2) denial of Walker's motion for judgment notwithstanding the verdict; and (3) award of attorney fees.
A. Double Recovery
In its first issue, Walker asserts that the trial court should have granted its motion for election of remedies, arguing that the damages the jury found on Tristan's fraud claim were the same damages the jury found on her breach-of-contract claim, which was the value of her uncompensated services, resulting in a double recovery. Tristan counters that the damages found by the jury for Walker's fraud were distinct and separate from the damages the jury found for Walker's breach of contract, which is not a double recovery.
We interpret Walker's issue as trying to assert the "one-satisfaction rule," which prohibits a plaintiff from obtaining more than one recovery for the same injury, rather than "election of remedies." See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991). The one-satisfaction rule differs from the election-of-remedies doctrine. See Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980) (citing suit seeking both damages for breach of contract and for recision as example requiring election of remedies). A litigant is entitled to sue and seek damages on alternative theories and may maintain multiple parallel or inconsistent claims. Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998) (per curiam); JHC Ventures, L.P. v. Fast Trucking, Inc., 94 S.W.3d 762, 774 (Tex.App.-San Antonio 2002, no pet.). However, when moving for judgment at the end of the legal proceeding, the litigant is not entitled to recover on each theory and must decide on which theory it ultimately relies. Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex. 1987); Fast Trucking, 94 S.W.3d at 774. The election-of-remedies doctrine bars relief only when (1) one has made an informed choice (2) between two or more remedies, rights, or states of facts (3) that are so inconsistent as to (4) constitute manifest injustice. Birchfield, 747 S.W.2d at 367; Fast Trucking, 94 S.W.3d at 774. A typical example of the context in which the election-of-remedies doctrine is applied is when an injured worker seeks coverage under both workers compensation and group insurance. See, e.g., Allstate Ins. Co. v. Perez, 783 S.W.2d 779, 781 (Tex.App.-Corpus Christi 1990, no writ). Like the one-satisfaction rule, the purpose of the election-of-remedies doctrine is to prevent double recovery for a single wrong. See Green Oaks, Ltd. v. Cannan, 749 S.W.2d 128, 131 (Tex.App.-San Antonio 1987), writ denied, 758 S.W.2d 753 (Tex. 1988) (per curiam). Unlike the one-satisfaction rule, however, the election-of-remedies doctrine is an affirmative defense that a defendant must specifically plead. France v. Am. Indem. Co., 648 S.W.2d 283, 285 (Tex. 1983). Compare Fast Trucking, 94 S.W.3d at 774 n. 11 (no waiver if not pleaded) with Perez, 783 S.W.2d at 782 (waiver if not pleaded). Although Walker pleaded other affirmative defenses to Tristan and Cristan's claims, it did not plead election of remedies.
1. The Trial Court Record
The record shows that Tristan separately pleaded breach of contract, quantum meruit, fraud, and, along with Cristan, defamation. The trial court submitted each theory to the jury in separate liability and damages questions. The jury instructions in the breach-of-contract and fraud questions defined different measures of damages for the two claims:
As to breach of contract:
The difference between the amount paid by C.A. Walker, Inc. to Rose Cleaning Service for performing the work and the amount C.A. Walker had agreed to pay Rose Cleaning Service for such work, less the cost, if any, to C.A. Walker for completing the work or remedying any defect. (Do not deduct cost of completion attributable to C.A. Walker)
Question Number 5 read in its entirety:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Rose Tristan d/b/a Rose Cleaning Service for its damages, if any, that resulted from C.A. Walker, Inc.'s failure to comply with such agreement?
Consider the following elements of damages, if any, and none other.
The difference between the amount paid by C.A. Walker, Inc. to Rose Cleaning Service for performing the work and the amount C.A. Walker had agreed to pay Rose Cleaning Service for such work, less the cost, if any, to C.A. Walker for completing the work or remedying any defect. (Do not deduct cost of completion attributable to C.A. Walker).
Do not add any amount of interest on damages, if any. Answer in dollars and cents for damages, if any, that — were sustained in the past; Answer: $20,411.25 in reasonable probability will be sustained in the future Answer: 0.
As to fraud:
The reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service;
The reasonable value of the business Rose Cleaning Service to Rose Tristan.
Question Number 6 read in its entirety:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Rose's Cleaning Service for its damages, if any, that resulted from such fraud?
Consider the following elements of damages, if any, and none other.
The reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service;
The reasonable value of the business Rose Cleaning Service to Rose Tristan.
Answer separately in dollar and cents, if any, for each of the following:
Do not add any amount for interest on damages, if any
ANSWER: 15,263 dollars.
Walker did not object to the different measure-of-damages instructions in the questions submitted to the jury on Tristan's breach-of-contract and fraud theories of recovery. Nor did it move for an instructed verdict as to those questions.
With the court's measure-of-damages instructions before it, the jury found different damages for each of the two theories of liability. The judgment separately awarded the damages found by the jury and separately calculated the pre-judgment interest awarded on each. By contrast, in addition to breach-of-contract and fraud damages, the jury also found $20,411.25 in damages for Tristan's quantum-meruit claim, which Tristan had pleaded alternatively to the breach-of-contract claim. However, the judgment did not award Tristan damages on the alternative quantum-meruit claim.
2. Analysis
A double recovery does not occur unless the plaintiff obtains more than one recovery for the same injury. See Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998) (per curiam) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991)). Judgment awarding Tristan damages on both her breach-of-contract claim and her fraud claim is proper because: (1) Tristan pleaded separate theories of liability; (2) the two theories of liability arose from separate injuries; and (3) each theory of liability resulted in a separate finding of damages. See Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex. 1987) (discussing factors).
We find this case analogous to Medical Air Services Association v. Kebert, 26 S.W.3d 663, 667-68 (Tex.App.-Corpus Christi 2000, pet. denied). In Keber, a sales representative sued for sales commissions resulting from sales of an insurance product. We allowed recovery of both contract and fraud damages, noting that no double recovery resulted because the fraud damages constituted losses of additional commissions beyond the loss of renewal commissions awarded by the jury for breach of contract. Id. As noted above, the breach-of-contract damages instruction here defined a different measure of damages (the value of uncompensated services) than that defined by the fraud measure-of-damages instruction. The fraud damages instruction included, in addition to the value of Tristan's business to her, only the reasonable and necessary costs of any uncompensated services, not their value. We overrule Walker's first issue. See id.
B. Legal Sufficiency of Damages for Fraud
Walker does not challenge on appeal the legal sufficiency of the evidence to support the jury's fraud damages finding on the basis of "[t]he reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service." Rather, Walker asserts, in its second issue, that the evidence is legally insufficient to show that Tristan's "business would have any value or lost any profits in the future." Walker argues that evidence that Tristan's business would have any future value or lost profits is too speculative to support the jury's fraud damages finding. Tristan counters that the evidence is legally sufficient to establish the value of the loss of her business. We first determine if Walker preserved its legal-sufficiency complaint.
1. Preservation of Error
Except for fundamental error, to preserve any complaint for appellate review, a party must present to the trial court a timely and specific request, objection, or motion. Tex.R.App.P. 33.1(a); Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999) (per curiam). In particular, to preserve a legal-sufficiency challenge, a party must have specifically raised its complaint in: (1) a motion for instructed verdict; (2) an objection to the submission of a jury question; (3) a motion for judgment notwithstanding the verdict; (4) a motion to disregard the jury's answer to a vital fact question; or (5) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); U.S.A. Precision Machining Co. v. Marshall, 95 S.W.3d 407, 411 (Tex.App.-Houston [1st Dist.] 2002, pet. denied).
The requirements of motions for new trial are governed by the Texas Rules of Civil Procedure. Rule 321 requires a party to designate each point it relies on in a motion for new trial in such a way that the trial court can identify and understand the complaint. See Tex.R.Civ.P. 321. The purpose of a motion for new trial is to provide an opportunity for the trial court, by granting a new trial, to cure any errors. D/FW Commercial Roofing Co. v. Mehra, 854 S.W.2d 182, 189 (Tex.App.-Dallas 1993, no writ). In addition, rule 322 provides that the court shall not consider points in a motion for new trial couched only in general terms. See Tex.R.Civ.P. 322. Therefore, the allegations in a motion for new trial must be sufficiently specific to enable the trial court to understand what the movant alleges was error. Id. Finally, an issue raised on appeal must correspond to a motion made to the trial court. In re T.R.S., 931 S.W.2d 756, 758 (Tex.App.-Waco 1996, no writ); D/FW Commercial Roofing, 854 S.W.2d at 189. A motion for new trial that states one legal theory cannot be used to support a different legal theory on appeal. D/FW Commercial Roofing, 854 S.W.2d at 189.
2. The Trial Court Record
As discussed above, the jury charge provided a two-fold instruction of the measure of damages on Tristan's fraud claim:
The reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service;
The reasonable value of the business Rose Cleaning Service to Rose Tristan.
Walker did not object to the instruction, and the record reflects that Walker did not move for an instructed verdict on the fraud damages question. Walker's post-trial motion asked for judgment notwithstanding the verdict "as to any amount awarded by the jury for the Plaintiff's loss of her business," arguing "[t]here was legally insufficient evidence to support any such finding." Similarly, Walker argued in its motion for judgment notwithstanding the verdict that "no economist or any other person provided evidence as to [Tristan] suffering any economic loss due to her business failing. All the record contains is rank speculation." Finally, Walker's legal-sufficiency point in its motion for new trial argued that "there is no evidence to support the jury's answer to . . . the question of damages for the loss of Plaintiff's business."
3. The Issue on Appeal
On appeal, however, Walker presents the following issue:
The trial court erred in denying Appellant's Motion for Judgment Notwithstanding the Verdict because the evidence is legally insufficient to support the jury's verdict since there was no credible evidence beyond mere speculation that the plaintiff's business would have any value or lost any profits in the future.
In support of its legal-sufficiency issue, the only authority cited by Walker in its brief focuses on the speculative nature of future losses as a measure of breach-of-contract damages. City of Dallas v. Villages of Forest Hills, L.P., Phase I, 931 S.W.2d 601, 606-07 (Tex.App.-Dallas 1996, no writ). The appellate court in Villages of Forest Hills agreed with the court below that "damages relating to future stages of the project" and other elements of damage contingent on the occurrence of future events "were too speculative to be recoverable." Id. Similarly, relying on the argument that Tristan presented "no evidence of out-of-pocket loss separate from the unpaid cleaning services which were already compensated for by the jury under their breach of contract finding," Walker's reply brief on appeal argues that Tristan's testimony established no "certainty whatsoever in any loss of profits from future jobs."
4. Analysis
Walker did not present to the trial court any complaint that the evidence of lost future value of the business or lost profits in the future is legally insufficient to support the jury's fraud damages finding. Nor does Walker provide to this Court any issue on appeal or authorities or citations to the record that raise the legal-sufficiency complaint it presented to the trial court. We find that Walker did not present to the trial court the same legal-sufficiency complaint it presents on appeal.
To the extent Walker's argument on appeal can be construed as addressing the same legal-sufficiency point it raised in its motion for new trial, we note that Walker did nothing more than summarily repeat the issue in its brief, without citation to legal authority or substantive analysis. Thus, we find that Walker inadequately briefed the issue and failed to preserve it on appeal. See Tex.R.App.P. 38.1(h); see also Morales v. Morales, 98 S.W.3d 343, 346 (Tex.App.-Corpus Christi 2003, no pet. h.) (finding that inadequately briefed argument does not preserve issue for review).
Moreover, even if Walker had presented to the trial court the same legal-sufficiency complaint it now raises, the measure-of-damages instruction in the fraud question submitted to the jury did not include the value the "business would have" or any lost "profits in the future" in the definition. Rather, the instruction included "[t]he reasonable value of the business Rose Cleaning Service to Rose Tristan" without reference to future value or lost profits. Walker did not object to either of the two measures of damages defined by the fraud damages instruction. Nor does it argue on appeal that the instruction did not define the proper measure of damages. We find that Walker waived in the trial court its legal-sufficiency issue on appeal that "there was no credible evidence beyond mere speculation that the plaintiff's business would have any value or lost any profits in the future."
Finally, the fraud damages instruction provided the jury a second basis from which to determine its finding, a measure of damages independent of the value of the business: "[t]he reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service." Walker did not challenge the jury's fraud damages finding on the basis of that instruction by moving for instructed verdict on that basis or by objecting to submission of the instruction, moving for judgment notwithstanding the verdict, moving to disregard the jury's answer, or moving for new trial on that basis. See Cecil, 804 S.W.2d at 510-11 (Tex. 1991); U.S.A. Precision Machining, 95 S.W.3d at 411. Walker does not present an issue on appeal attacking the legal sufficiency of the evidence to support the jury's fraud damages finding on the basis of that instruction. To the extent Walker discusses the sufficiency of evidence of Tristan's out-of-pocket costs to support the jury's fraud damages finding, it neither cites authority nor argues why evidence of "[t]he reasonable and necessary costs of any uncompensated cleaning services performed by Rose's Cleaning Service" is legally insufficient to support the jury's fraud damages finding. We find that Walker failed to preserve the issue on appeal. See Tex.R.App.P. 38.1(h); see also Morales, 98 S.W.3d at 346. The jury's fraud damages verdict finds support on the basis of the unchallenged "costs of any uncompensated cleaning services" measure of damages instruction, without regard to the value of the business. Accordingly, we overrule Walker's second issue.
C. Attorney Fees
In its third issue, Walker asserts that the trial court abused its discretion in awarding attorney fees to Tristan, arguing that: (1) Tristan presented no evidence of the fees she incurred and therefore waived the claim; (2) the jury charge contained no question regarding the claim; and (3) judicial notice by the court of evidence to support the attorney-fee claim was improper. Tristan counters that the parties agreed during presentation of Walker's motion in limine to submit the attorney-fee issue to the court rather than to the jury. She argues that the award of attorney fees was within the trial court's discretion pursuant to its authority to take judicial notice of relevant factors in accordance with section 38.004 of the civil practice and remedies code.
Tex. Civ. Prac. Rem. Code Ann. § 38.004 (Vernon 1997).
We review for abuse of discretion a trial court's award of statutory attorney fees. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990); Llanes v. Davila, No. 13-02-129-CV, 2003 Tex. App. LEXIS 392, at *13 (Corpus Christi Jan. 16, 2003, pet. filed). The parties do not dispute that Tristan presented no evidence in support of her claim for attorney fees. We have reviewed the portion of the record to which Tristan directs us. By motion in limine and argument in support of the motion, Walker's counsel informed the trial court that: (1) Tristan had not disclosed in discovery the amount of the total attorney fees claimed, the hourly rate or contingency basis of the fees, or over what period of time the fees were incurred; and (2) Tristan had not designated an expert witness on attorney fees. The trial judge asked Tristan's counsel if the attorney-fee claim was based on an hourly rate or on a contingent basis. Counsel responded that the claim was based on the civil practice and remedies code. At the end of the discussion, the only agreement reached on the record was that Tristan's counsel would approach the bench before raising the attorney-fee issue in the presence of the jury.
The judgment recites that the trial court took judicial notice of factors determinative of the reasonableness and necessity of Tristan's attorney fees pursuant to section 38.004. Section 38.004, however, provides that the court, in a jury case, "may take judicial notice of the usual and customary attorney's fees and of the contents of the case file without receiving further evidence" only if "the amount of attorney's fees is submitted to the court by agreement." Tex. Civ. Prac. Rem. Code Ann. § 38.004 (Vernon 1997). No such agreement appears in the record. See Tex.R.Civ.P. 11. Accordingly, we hold that the trial court, in the absence of an agreement in the record to submit the attorney-fee issue to the court instead of to the jury, abused its discretion in awarding attorney fees. We sustain Walker's third issue.
II. TRISTAN AND CRISTAN'S ISSUE ON APPEAL
The jury found that a statement alleged by Tristan and Cristan to be defamatory was made by a Walker employee and that it was false. However, the jury also found that the statement was neither published nor slanderous, nor did it proximately cause damage to either Tristan or Cristan. In a single issue on appeal, Tristan and Cristan assert that the trial court erred in overruling their motion for new trial, arguing that the jury's adverse answers to subparts of the defamation questions are against the great weight and preponderance of the evidence and manifestly unjust.
We construe Tristan and Cristan's complaint as a factual-sufficiency challenge of the jury's adverse findings to questions on which they bore the burden of proof at trial. See Raw Hide Oil Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.App.-Amarillo 1988, writ denied) (noting that party attacking for factual insufficiency adverse finding on question on which it bore burden of proof at trial must show that finding is against "great weight and preponderance of the evidence"); see also Ritchey v. Crawford, 734 S.W.2d 85, 86-87 n. 1 (Tex.App.-Houston [1st Dist.] 1987, no writ) (quoting Robert W. Calvert, " No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 366 (1960)). In reply to Tristan and Cristan's issue on appeal, Walker, as appellee, responds in its fourth issue that the jury's verdict on the defamation claims is more than supported by the evidence.
1. The Trial Court Record
Rule 324 requires factual-sufficiency challenges to be raised in a motion for new trial. Tex.R.Civ.P. 324(b); U.S.A. Precision, 95 S.W.3d at 411. In their motion for new trial, Tristan and Cristan urged the trial court to grant a new trial "because the jury's answers to the questions as to the alleged defamation and related damages are against the great weight and preponderance of the evidence and manifestly unjust." The motion for new trial was overruled by operation of law. We find that Tristan and Cristan satisfied the prerequisites of a factual-sufficiency appeal of the jury's defamation liability findings by a timely filed motion for new trial raising their complaint that the jury's defamation liability and damages findings are against the great weight of the evidence. See Tex.R.Civ.P. 324(b)(3), 329b; see also Tex.R.App.P. 33.1.
We note that Tristan and Cristan did not in their motion for new trial discuss the evidence they claimed greatly outweighs and preponderates against the jury's defamation findings, nor did they cite any case law or argue any evidence or authority in support of the point they raised. Because we dispose of Tristan and Cristan's issue on other grounds, we do not decide whether their general factual-insufficiency point in the motion for new trial, unsupported by reference to either the evidence or the law, satisfied the specificity requirements of rules 321 and 322. Tex.R.Civ.P. 321, 322; see D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex.App.-Dallas 1993, no writ) (finding that general factual-insufficiency point in motion for new trial did not inform trial court of complaint regarding double recovery raised on appeal).
2. The Issue on Appeal
On appeal, Tristan and Cristan's sole issue presents only that "the jury's answers to certain subparts of questions number 10 and 14, respectively, in the Charge of the Court were against the great weight and preponderance of the evidence and manifestly unjust." However, in two damages issues submitted separately from the defamation liability issues (questions number 13 and 17, respectively), the jury found zero damages for defamation for past injury to Tristan and Cristan's reputations and for their mental anguish, humiliation, and embarrassment. The damages question submitted in conjunction with Tristan's defamation claim was not conditioned on a liability finding. Cristan's defamation damages question was conditional. Nonetheless, the jury answered the defamation damages questions as to both Tristan and Cristan, responding "0" as to each element of damages for each. Tristan and Cristan do not challenge the jury's findings of zero damages for defamation, either by their issue on appeal or in their argument.
3. Analysis
When a jury's finding of no damages is undisputed, any error in the jury's liability finding is harmless. Harris v. Gen. Motors Corp., 924 S.W.2d 187, 188 (Tex.App.-San Antonio 1996, writ denied); Mitchell v. Chaparral Chrysler-Plymouth Sales, Inc., 572 S.W.2d 359, 360 (Tex.Civ.App.-Fort Worth 1978, writ ref'd n.r.e.). The jury's findings of no damages for defamation fully support the take-nothing judgment on Tristan and Cristan's defamation claims. San Antonio Press, Inc. v. Custom Bilt Mach., 852 S.W.2d 64, 66 (Tex.App.-San Antonio 1993, no writ). Thus, even if the jury had found liability for defamation, the jury's no-damages findings compelled a take-nothing judgment on the defamation claims unless, for example, Tristan and Cristan also successfully challenged on appeal the no-damages findings as against the weight of the evidence. See id. Moreover, because of the deference we give jury findings, we may not set aside no-damages findings for factual insufficiency without detailing the evidence and saying why the findings are against the weight of the evidence. Id. This we cannot do, for in the absence of fundamental error, we may not sustain a challenge that was not preserved in this Court. Id. (citing Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (per curiam)). A jury's no-damages finding does not present fundamental error. See id. Even if we were to sustain Tristan and Cristan's defamation liability issue, the unchallenged no-damages findings on their defamation claims would require us to affirm. See id.
We note that Tristan did not object to the non-conditional submission of her defamation damages question, nor did she raise the non-conditional submission as a point in her motion for new trial or as an issue on appeal. Similarly, Cristan did not complain in her motion for new trial or raise on appeal that she need not challenge the jury's no-damages finding because the jury should not have reached the conditional defamation damages question in the first place. Thus, on this record, we conclude that neither the non-conditional submission of Tristan's defamation damages question nor the conditional submission of Cristan's alters our analysis. See Canales v. Nat'l Union Fire Ins. Co., 763 S.W.2d 20, 22 (Tex.App.-Corpus Christi 1988, writ denied) ("The damage issues were not conditioned on the answer to the liability issues. Thus, if all the appellants' requested issues had been submitted and answered in their favor, they would still recover zero damages."). Since Tristan and Cristan did not raise an issue on appeal complaining of the jury's defamation no-damages findings, we do not consider their challenges to the defamation liability findings. See Chaparral Chrysler-Plymouth, 572 S.W.2d at 360. We hold that Tristan and Cristan, by not challenging the jury's defamation no-damages findings on appeal, waived the sole issue they present to this Court that the jury's defamation liability findings are against the great weight and preponderance of the evidence and are manifestly unjust. See id.
III. CONCLUSION
We leave the jury's findings undisturbed. Having overruled Walker's first and second issues, we affirm the portion of the trial court's judgment awarding Tristan damages on her breach-of-contract and fraud claims. Having sustained Walker's third issue, we reverse the portion of the trial court's judgment awarding attorney fees to Tristan, render judgment against her on that claim, and modify the judgment of the trial court to reflect that Tristan take nothing by her claim for attorney fees. Having held that Tristan and Cristan waived their sole issue on appeal, we affirm the portion of the trial court's judgment that Tristan and Cristan take nothing on their defamation claims.