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applying one-satisfaction rule to fraudulent-inducement and breach-of-contract claims
Summary of this case from Pollitt v. Comput. Comforts, Inc.Opinion
No. 05-16-00274-CV
06-27-2017
WIN SHIELDS PRODUCTIONS, INC. AND WINFRED L. SHIELDS, Appellants v. SERNERICK GREER, Appellee
On Appeal from the 191st Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-13-13903
MEMORANDUM OPINION
Before Justices Evans, Stoddart, and Boatright
Opinion by Justice Stoddart
Win Shields Productions, Inc. (WSP) and Winfred L. Shields appeal an adverse judgment for damages for breach of contract and fraudulent inducement following a jury trial. In twelve issues, appellants complain the evidence is legally insufficient to support the fraudulent inducement finding against Shields, the evidence is factually insufficient to support the damage findings for breach of contract and fraudulent inducement, the judgment allows a double recovery for a single injury, the evidence of attorney's fees was not properly segregated, and the trial court erred by allowing improper closing argument and calculating prejudgment interest.
For the following reasons, we affirm the trial court's judgment as to breach of contract damages, but reverse the trial court's judgment as to fraudulent inducement liability and damages and as to attorney's fees. We remand the case for a new trial on the claim for fraudulent inducement and on attorney's fees. It will be necessary for the trial court to assess prejudgment interest based on the outcome of the new trial and appellee's election.
BACKGROUND
Sernerick Greer sued WSP for breach of contract and Shields for fraudulent inducement. WSP is a television production company formed by Shields in 1992. Shields is the executive producer and president of WSP. In 2013, Shields contacted Greer to act in a television pilot WSP was filming. In September of 2013, after the pilot was finished, Shields asked Greer to join WSP as an audio producer. Greer testified that Shields told him WSP was funded, "they had millions, and we were ready to roll."
Greer signed a contract with WSP on September 19, 2013. He quit his existing jobs and went to work for WSP on September 30, 2013. The contract provided that Greer would be paid $3,000 a week, receive 3,500 shares of stock in WSP, and have twenty-five paid days off each year. Additionally, WSP would pay expenses for business-related meals.
Shields hired Gary Garza to be the CEO of WSP in September of 2013. Garza testified he met Shields while Garza was working at Boy Scouts of America. Garza was looking for a change, but did not want to leave his nineteen-year career at Boy Scouts unless it was to work for someone he knew and trusted. Shields told Garza the money was in place and he was ready to go with building the company. Garza left Boy Scouts and went to work for WSP.
Jonathan Miller worked on the pilot for WSP in August of 2013. He testified that Shields approached him in September about working full time for WSP. Miller wanted to be sure before he signed a two-year contract that the company had funding. According to Miller, Shields "said he had the funding in place to bring on a full-time staff," "the company was funded, we had money in the bank," and the company had "$6 million in the bank to cover salaries for [] two years for everyone, regardless of whether we actually sold a show or a film." Miller signed a contract similar to the one Greer signed and went to work for WSP on September 30, 2013.
Greer and the other employees were not paid on the first payday after September 30, 2013. Shields sent an e-mail to the employees explaining there was a problem transferring money into the correct account because the address on the account was not the corporate address. The money would not be transferred until it could be verified the account was not compromised. Shields said this would make the checks late, but he hoped to straighten it out "so you can all get your checks by Friday at least." Greer never received a check.
The next week, Shields sent an e-mail to Greer and the other employees stating that he was going to Austin to transfer enough money to cover corporate wages until the end of the year. He stated that even if there was a hold on the money, they would be able to pay the first three weeks by October 22, 2013 and the pay the rest of the year on time. On October 23, 2013, Shields sent an e-mail stating that the "funding I have been working on has not been done the way I was led to believe it would." He continued,
One of the mistakes I have made is to relate as fact what I was told. Thereby causing great disappointment. So, I'll refrain from making any more statements about anything until after it has happened. I'm still working every day on this issue and after we are funded, I will contact you immediately.
Greer worked for WSP for four weeks, but was never paid. Garza and Miller also testified they were never paid by WSP. On October 28, 2013, Greer's attorney sent a demand letter to WSP for payment of the four-week's salary due Greer plus expenses, and for the 3,500 shares in the company. Greer filed suit against WSP for breach of contract on November 21, 2013 and later amended his petition to add a claim for fraudulent inducement against Shields, individually.
The jury found: (1) liability and damages on the breach of contract and fraudulent inducement claims; (2) Greer's reasonable and necessary attorney's fees; and (3) exemplary damages against Shields on the fraudulent inducement claim. Greer moved for entry of judgment on both theories of liability and the damages found by the jury. Appellants opposed the motion, raising the same issues they raise on appeal. The trial court rendered judgment on the jury's verdict for damages and attorney's fees on the breach of contract claim against WSP and for damages and exemplary damages on the fraudulent inducement claim against Shields. The trial court denied appellants' motion for new trial.
STANDARD OF REVIEW
When reviewing the legal sufficiency of the evidence, we determine "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We review the evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable juror could, and disregarding contrary evidence unless reasonable jurors could not. Id. A challenge to the legal sufficiency of the evidence will be sustained when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla. Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006). Evidence is more than a scintilla if it "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). However, evidence does not exceed a scintilla if it is so weak as to do no more than create a mere surmise or suspicion that the fact exists. Serv. Corp. Intern. v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011).
When reviewing the factual sufficiency of the evidence, we consider all the evidence and will set aside the verdict only if the evidence supporting the jury finding is so weak or so against the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016).
DISCUSSION
A. Fraudulent Inducement
In his fourth issue, Shields argues there is no evidence to support the finding of fraudulent inducement. To establish a claim for fraudulent inducement of a contract, a plaintiff must prove (1) the defendant made a material representation, (2) the representation was false and was either known to be false when made or made without knowledge of its truth, (3) the representation was intended to be and was relied upon by the injured party, and (4) the injury complained of was caused by the reliance. Nat'l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 423 (Tex. 2015) (per curiam).
Greer alleged Shields misrepresented that WSP had "millions" when in fact it did not. Shields argues there is no evidence to support a finding that the misrepresentation was material. However, Greer testified he would not have signed the contract if he knew the company was not funded. Specifically, Greer testified he had a family and bills to pay and would not "have left three jobs for something that offered nothing or for a hope." A rational jury could conclude from this evidence that Shields's representation that WSP already had funding to pay salaries and move forward with its business was a material representation inducing Greer to enter into the contract.
Shields also argues there is no evidence he knew that WSP had no intent to perform at the time it entered into the contract. However, a misrepresentation may be either a false statement of fact or a promise of future performance made with an intent not to perform as promised. See Bus. Staffing, Inc. v. Jackson Hot Oil Serv., 401 S.W.3d 224, 238 (Tex. App.—El Paso 2012, pet. denied). The jury was so instructed in this case. Therefore, the jury's finding of fraud is supported by the evidence that Shields made a false statement of fact that WSP had funding in place regardless of the state of the evidence relating to promissory fraud.
We overrule Shields's fourth issue.
B. Damages for Breach of Contract
In its first issue, WSP argues the evidence is factually insufficient to support the amount of damages found by the jury for breach of contract.
The jury may award damages within the range permitted by the evidence, as long as a rational basis exists for the jury's damage calculation. Curtis v. AGF Spring Creek/Coit II, Ltd., 410 S.W.3d 511, 520 (Tex. App.—Dallas 2013, no pet.). We will not disregard the jury's damage award merely because its reasoning in deciding the amount is unclear. Id. But a jury may not arbitrarily assess an amount not authorized or supported by the evidence at trial. Id.
The jury found Greer's damages for breach of contract totaled $13,375.48. WSP argues the evidence supports only $13,337.00 in contract damages based on rounded numbers used by Greer in his testimony. Greer requested $12,000 salary for the four weeks he worked and the value of his shares in the company, which Shields testified was $35, or a penny a share. These amounts are not disputed. Greer also requested "1,200 and some dollars" for paid time off and $92 for his expenses.
Appellants miscalculate the total of the rounded numbers from Greer's testimony as $13,337.00. The correct amount, without considering the exhibits and the complete calculation of paid time off, totals $13,327.00.
In addition to Greer's estimates of his damages, the record includes the employment agreement and receipts for Greer's expenses. Greer explained he sought only the portion of the paid time off allowed by the agreement for the time he worked. Based on the terms of the agreement and Greer's testimony, the jury could rationally find the paid time off due for one month was $1,248. The receipts for Greer's expenses total $92.48. These two amounts plus the undisputed amounts for salary and the value of the shares total the amount found by the jury.
The agreement allows for twenty-five paid days off a year. Greer worked for one month, or one-twelfth of a year. One-twelfth of twenty-five days is 2.08 days. Greer's salary of $3,000 per week equals $600 a day. Thus, there is a rational basis in the evidence for calculating Greer's damages for the paid time off: $600 times 2.08 days equals $1,248, which is the amount Greer requested from the jury in closing argument.
$12,000 + 92.48 + 1248 + 35 = 13,375.48.
Viewing all the evidence, including the expense receipts and calculations based on the terms of the agreement, we conclude the evidence is sufficient to support the jury's finding. We overrule WSP's first issue.
C. Damages for Fraudulent Inducement
In his seventh issue, Shields argues the evidence is factually insufficient to support the jury finding on the amount of damages for fraudulent inducement. Texas recognizes two measures of direct damages for common-law fraud and fraudulent inducement: out-of-pocket and benefit-of-the-bargain. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 49-50 (Tex. 1998). Greer seeks only benefit-of-the-bargain damages in this case.
The jury found that Greer's damages for Shields's fraudulent inducement were $15,000. Greer did not offer any evidence of damages other than the breach of contract damages discussed above, nor did he argue for any other damages at trial. At closing, his attorney stated Greer's damages for fraudulent inducement were:
the same amount as what the contract would provide, $13,375.48. He is only asking for the benefit of the bargain he entered into, what he was induced to do, what he relied upon to do. He's just asking to get what he — what he expected to get on reliance on Mr. Shields'[s] representations.
Above, we concluded the evidence supports the jury's finding of breach of contract damages. However, there is no evidence in the record supporting a finding of additional damages caused by fraudulent inducement.
Greer argues on appeal the jury finding can be supported by considering the value of his shares in WSP was $3,400 instead of $35. As support for the higher value, Greer cites his own testimony:
Q. So what are you asking for — from Mr. Shields and Win Shields Productions?
A. I'm asking that he pay me the $12,000 that he owe me, he pay for my expenses. I'm asking for my $3,400 — the value of the 34 — I mean the 3,500 shares of the company, and I'm asking for reimbursement of my expenses.
It appears the mention of $3,400 was a misstatement that Greer immediately corrected. But even if we considered it as an opinion on the value of the shares, Greer never testified to facts supporting such an opinion. A rational jury could not conclude from this statement that the value of Greer's shares for purposes of fraudulent inducement was $3,400 rather than $35, which was based on Shields's undisputed testimony that the shares were worth a penny a share. Indeed, Greer's attorney used the $35 value in closing argument on breach of contract damages: "$35 for the 3,500 shares that he agreed to give him, and we get that number from Mr. Shields'[s] testimony that was one — about a penny a share."
Greer argues the damages are supported by his evidence he was required to obtain a passport before he started working for WSP and sold his car in order pay his mortgage because he was not paid by WSP. But these were items Greer admitted he was not seeking to recover and he gave no testimony providing a rational basis for calculating any damages for them. He also admitted he was not seeking damages relating to any work he performed work for WSP before the start of the contract on September 30, 2013.
The jury has discretion to award damages within the range supported by the evidence. See Curtis, 410 S.W.3d at 520. But where there is no rational basis for the calculation, the jury's finding should be set aside. See Holland v. Lovelace, 352 S.W.3d 777, 792-93 (Tex. App.—Dallas 2011, pet. denied) (citing First State Bank v. Keilman, 851 S.W.2d 914, 930-31 (Tex. App.—Austin 1993, writ denied)).
We conclude there is no rational basis for the jury's finding of $15,000 for fraudulent inducement damages when the evidence authorizes and supports no more than the amount of damages for breach of contract, $13,375.48. See Keilman, 851 S.W.2d at 930 (jury may not "pull figures out of a hat"). We sustain Shields's seventh issue.
Because liability for fraudulent inducement was contested, we must remand for a new trial on both liability and damages for fraudulent inducement. See TEX. R. APP. P. 44.1(b) (prohibiting remand for separate trial solely on unliquidated damages when liability is contested); Qui Phuoc Ho v. MacArthur Ranch, LLC, 395 S.W.3d 325, 335 (Tex. App.—Dallas 2013, no pet.). In light of the need for a new trial on fraudulent inducement, we need not address Shields's fifth issue regarding factual sufficiency of the evidence of liability for fraudulent inducement. See TEX. R. APP. P. 47.1.
D. One-satisfaction Rule
In issues six, eight, and nine, appellants argue that the jury verdict on damages is inconsistent and the judgment violates the one-satisfaction rule by giving Greer a double recovery for the same injury.
The one-satisfaction rule states: "There can be but one recovery for one injury, and the fact that . . . there may be more than one theory of liability[] does not modify this rule." Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex. 2006) (quoting Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 (Tex. 1991)); see Utts v. Short, 81 S.W.3d 822, 831 (Tex. 2002). This rule applies when defendants commit the same act as well as when defendants commit technically different acts that result in a single injury. Emerson Elec. Co. v. Am. Permanent Ware Co., 201 S.W.3d 301, 314 (Tex. App.—Dallas 2006, no pet.). The fact that more than one defendant may have caused the injury does not modify the rule. Id.; see also Ins. All. v. Lake Texoma Highport, LLC, 452 S.W.3d 57, 78 (Tex. App.—Dallas 2014, pet. denied). The absence of tort liability does not preclude the application of the one-satisfaction rule. Emerson Elec. Co., 201 S.W.3d at 314. When the defendants' acts result in a single injury and the jury returns favorable findings on two or more theories of liability, the plaintiff "has the right to a judgment on the theory entitling him to the greatest or most favorable relief." Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988).
Appellants contend in their sixth issue the jury's verdict on both fraudulent inducement and breach of contract damages should be set aside as inconsistent and a new trial granted on both damage elements. We disagree. A party may sue and seek damages on alternative theories of liability and submit those theories to the jury. See McCullough v. Scarbrough, Medlin & Associates, Inc., 435 S.W.3d 871, 916 (Tex. App.—Dallas 2014, pet. denied). If the jury finds in favor of the plaintiff on more than one of those theories, the verdict is not inconsistent or conflicting, the plaintiff is simply required to elect the theory giving him the greatest relief. See Boyce Iron Works, Inc., 747 S.W.2d at 787. If the prevailing party fails to elect between the alternative theories of recovery, "the court should utilize the findings affording the greater recovery and render judgment accordingly." Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex. 1987). Thus, the jury's findings of damages for both fraudulent inducement and breach of contract are not inconsistent. See Boyce Iron Works, Inc., 747 S.W.2d at 787. We overrule appellants' sixth issue.
In their seventh and eighth issues, appellants argue that awarding damages for both theories of liability, plus attorney's fees and exemplary damages amounts to a double recovery for a single injury. They contend Greer presented no evidence of an injury distinct from the failure to be paid under the terms of employment agreement. As discussed under the issues on damages for fraudulent inducement, we agree that Greer presented no evidence of damages other than for breach of contract.
Greer argues he may recover damages for both breach of contract and fraudulent inducement in the same case. It is true that a "judgment awarding damages on alternate theories may be upheld if the theories depend on separate and distinct injuries and if separate and distinct damages findings are made as to each theory." McCullough, 435 S.W.3d at 916. But there is no evidence in this case of separate and distinct injuries resulting from the alternate theories of liability. The defendants' acts resulted in a single injury to Greer—WSP's failure to pay him what was owed under the contract. Greer's attorney made this clear in closing, Greer's damages for fraudulent inducement are "the same amount as what the contract would provide, $13,375.48."
We conclude Greer did not suffer an injury from the fraudulent inducement that was independent of his injury for the breach of contract. For this single injury, Greer "can recover only those damages authorized under the single theory that affords the greatest recovery." McCullough, 435 S.W.3d at 917. On the breach of contract claim, Greer could recover actual damages and attorney's fees, but not exemplary damages. See Chapa, 212 S.W.2d at 303-04. On the fraudulent inducement claim, Greer could recover actual damages and exemplary damages, but not attorney's fees. See id.
Normally, where the successful party fails to make an election on alternative theories of recovery for a single injury, the court should use the findings on the theory affording the greatest recovery and render judgment accordingly. Birchfield, 747 S.W.2d at 367; McCullough, 435 S.W.3d at 917. In this case, however, it is unclear which theory gives Greer the greater recovery because of the necessity for a new trial on the fraudulent inducement claim and on attorney's fees as discussed below.
This was also the situation in the Chapa decision. The supreme court reversed both the award of exemplary damages for fraud and the amount of attorney's fees for breach of contract. Chapa, 212 S.W.3d at 310, 314. The court determined that although an election was necessary, the prevailing party was not required to make the election until it knew the available choices. Id. at 314. The court remanded the case for the court of appeals to reassess the exemplary damages and for a jury to determine the amount of segregated attorney's fees. Id. Once these amounts were determined on remand, the successful plaintiff would be required to elect the theory giving her the greater recovery. Id. at 315. We reach the same conclusion here. Before making an election, Greer must know the amounts recoverable under each theory. See id. at 314. Therefore, a remand is required.
We sustain appellants' eighth and ninth issues to this extent.
E. Segregation of Attorney's Fees
In issues two and three, WSP argues the trial court erred by awarding attorney's fees because Greer's attorney failed to segregate fees incurred on the fraudulent inducement claim from fees incurred on the breach of contract claim. WSP raised this issue during cross-examination and in its objections to the jury charge, motion for judgment notwithstanding the verdict, and motion for new trial.
Where attorney's fees are authorized for some, but not all, of a party's claims, the party has the duty to "segregate fees between claims for which they are recoverable and claims for which they are not." Chapa, 212 S.W.3d at 311. "Intertwined facts do not make tort fees recoverable; it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated." Id. at 313-14. This standard does not require more precise proof for attorney's fees than for other claims. Id. at 314. Attorneys need not keep separate time records for recoverable and unrecoverable work, rather "an opinion would . . . suffice[] stating that, for example, 95 percent of their drafting time would have been necessary even if there had been no fraud claim." Id.
Greer's agreement with his attorneys was for a contingent fee. His attorney testified to the amount of attorney's fees based on the hourly rates of the attorneys involved and the time worked on the case. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997) (requiring proof that attorney's fees were both reasonably incurred and necessary to prosecution of the claim and that juries award fees in a specific dollar amount, not as a percentage of the judgment). Based on the attorney's billing records, Greer's attorney testified that reasonable and necessary fees through trial were $35,000. The jury found these amounts were Greer's reasonable and necessary attorney's fees in this case.
Greer's attorney agreed that attorney's fees are not recoverable on a claim for fraudulent inducement—the only claim against Shields. However, the billing records include several entries for work related solely to the claim against Shields. There are time entries for legal research on potential claims against Shields individually and for drafting amended pleadings to include a claim against Shields. There are also entries referring to preparation of discovery to Shields, research for a motion for summary judgment and for preparing a trial brief on Shields's affirmative defenses. Greer's attorneys also prepared jury questions and instructions on fraudulent inducement, damages for fraudulent inducement, and questions relating to exemplary damages.
When asked on cross-examination if she segregated the fees for the work on the breach of contract claim from the fraudulent inducement claim, Greer's attorney stated her opinion that "segregation of the fees is not required in this case because the discrete legal service advanced, both recoverable and unrecoverable claim[s] and are so intertwined they need not be segregated." She testified segregation was not required because the defendants were closely aligned and the same facts related to both claims. She said that responding to Shields's discovery requests required the same facts and documents as the response to discovery on the breach of contract claim.
Intertwined facts do not make non-recoverable fees recoverable. See Chapa, 212 S.W.3d at 313-14. Although Greer's attorney concluded that discrete legal services advanced both recoverable and unrecoverable claims, the attorney offered no explanation for how fees incurred researching and drafting pleadings on the fraudulent inducement claim, preparing jury questions on that claim, or researching and briefing Shields's affirmative defense to that claim served to advance the breach of contract claim against WSP. The mere statement of an unsupported opinion that "discrete legal services advance both a recoverable and unrecoverable claim" does not relieve a party of the duty to segregate fees. When "it cannot be denied that at least some of the attorney's fees are attributable only to claims for which fees are not recoverable, segregation of fees ought to be required and the jury ought to decide the rest." Id. at 314. Like the plaintiff in Chapa, Greer is not entitled to recover attorney's fees incurred for work related solely to his tort claim, such as drafting paragraphs of pleadings, researching, briefing, preparing the jury charge, or other work specific to that claim. Id. at 313 ("But when Chapa's attorneys were drafting her pleadings or the jury charge relating to fraud, there is no question those fees were not recoverable.").
Based on the record before us, the trial court improperly awarded attorney's fees for at least some legal work that related solely to the tort claim. "Because there is not a de minimis exception to the requirement to segregate recoverable attorney's fees from non-recoverable and there was evidence of unsegregated non-recoverable attorney's fees included in the amount awarded by the trial court, a new trial on attorney's fees is required." CTMI, LLC v. Fischer, No. 05-11-01221-CV, 2013 WL 2725580, at *3 (Tex. App.—Dallas June 12, 2013, no pet.) (mem. op.); see also Chapa, 212 S.W.3d at 314 (evidence of unsegregated attorney's fees is some evidence of what segregated fees would be).
We sustain WSP's second and third issues.
F. Incurable Jury Argument
In his tenth issue, Shields argues he is entitled to a new trial because Greer's attorney engaged in incurable jury argument. Shields raised this issue in a motion for mistrial filed after the jury's verdict and in his motion for new trial.
A complaint of improper jury argument must be preserved by a timely objection and request for an instruction that the jury disregard the improper remark. TEX. R. APP. P. 33.1(a); Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009); Tex. Employers' Ins. Ass'n v. Haywood, 266 S.W.2d 856, 858 (Tex. 1954). In rare cases, however, the probable harm or prejudice cannot be cured and the improper argument is incurable. Haywood, 266 S.W.2d at 858. A complaint of incurable jury argument may be preserved in a motion for new trial even without an objection and ruling during the trial. Phillips, 288 S.W.3d at 883; see also TEX. R. CIV. P. 324(b)(5). To rise to the level of being incurable, the complaining party generally must show that the improper argument "strikes at the very core of the judicial process," Phillips, 288 S.W.3d at 883, and "by its nature, degree, and extent constitute[s] such error that an instruction from the court or retraction of the argument could not remove its effects." Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680-81 (Tex. 2008) (per curiam).
Examples of incurable arguments are appeals to racial prejudice, extreme unsupported personal attacks on parties or witnesses, and unfounded accusations of manipulating a witness. Living Ctrs. of Tex., Inc., 256 S.W.3d at 681; PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied). The complaining party must show that based on the record as a whole, the offensive argument was so extreme that a "juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument." Phillips, 288 S.W.3d at 883 (quoting Goforth v. Alvey, 271 S.W.2d 404, 404 (Tex. 1954)).
Shields's attorney argued at closing that Valerie Roach, a key witness for Shields, had no interest in the lawsuit and nothing to gain from her testimony. In response, Greer's attorney stated that Roach's husband is the current CEO of WSP. Shields objected to this statement as not supported by the evidence. The trial court sustained the objection, but Shields did not request an instruction to disregard the statement. Greer's attorney next argued that Roach's husband was mentioned in the e-mails in evidence as someone involved in the company and that he had a "stake" in WSP. Shields objected that there was no evidence Mr. Roach had a "stake" in the company. The trial court sustained the objection, but Shields failed to request an instruction to disregard. Greer's attorney then asked the jury to look at the e-mails and not rely on his statements if they were inconsistent with the evidence.
The record shows that Roach testified she and her husband were friends of Shields and that her husband was going to take over operation of the company after Shields. Further, in an October 27, 2013 e-mail to Greer, Shields stated Roach's husband spent many years building the reputation of the company to the point that people would consider investing in it.
The statement that Roach's husband was CEO and has a "stake" in the company, made in response to Shields's argument that Roach had no reason to lie, does not rise to the level of incurable jury argument. PopCap Games, 350 S.W.3d at 722 (credibility of witnesses is proper subject of jury argument). The argument did not involve appeals to racial prejudice, extreme personal attacks on the opposing party or witnesses, unfounded accusations of witness manipulation, or anything striking at the court's impartiality, equality or fairness. See Living Ctrs. of Tex., Inc., 256 S.W.3d at 681. Indeed, the argument appears to be a reasonable deduction from evidence that Roach's husband built the reputation of the company over several years and was taking over operation after Shields. See PopCap Games, 350 S.W.3d at 721 (reasonable inferences and deductions from evidence are permissible in closing argument). Based on the record as a whole, we cannot say that a juror of ordinary intelligence could have been persuaded by this argument to reach a verdict contrary to that which they would have reached without the argument. See Phillips, 288 S.W.3d at 883.
We overrule issue ten.
G. Remaining Issues
In its eleventh and twelfth issues, WSP asks whether the trial court's judgment improperly awards prejudgment interest on attorney's fees.
Although the judgment is not clearly worded, we conclude it does not award prejudgment interest on attorney's fees. However, in light of the remand of this case for a new trial, it will be necessary for the trial court to assess the amount of prejudgment interest awarded in the final judgment after further proceedings. Therefore, we need not address WSP's eleventh and twelfth issues to resolve this appeal. TEX. R. APP. P. 47.1.
CONCLUSION
Greer is entitled to recover on the most favorable theory supported by the pleadings, the evidence, and the verdict. See Chapa, 212 S.W.3d at 304. But he is not required to elect that theory until he knows his choices. Id. at 314. In light of the remand for a new trial on liability and damages for fraudulent inducement and for a new trial on attorney's fees, we are unable to render judgment using the findings on the theory affording the greater recovery. See id.; Birchfield, 747 S.W.2d at 367; McCullough, 435 S.W.3d at 917. If he is successful on retrial of the fraudulent inducement claim and after the amount of properly segregated attorney's fees is determined, Greer must elect between his alternative theories of recovery for his single injury. If he fails to do so, the trial court should use the findings and render judgment on the theory that results in the greater recovery. See Birchfield, 757 S.W.2d at 367; McCullough, 435 S.W.3d at 917. The court will also need to reassess the appropriate amount of prejudgment interest.
We affirm the trial court's judgment as to liability and damages for breach of contract, reverse the trial court's judgment in all other respects, and remand this case for further proceedings consistent with this opinion. 160274F.P05
/Craig Stoddart/
CRAIG STODDART
JUSTICE
JUDGMENT
On Appeal from the 191st Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-13-13903.
Opinion delivered by Justice Stoddart. Justices Evans and Boatright participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We AFFIRM that portion of the trial court's judgment awarding actual damages of $13,375.48 for breach of contract to Sernerick Greer against Win Shields Productions, Inc. In all other respects, the trial court's judgment is REVERSED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered this 27th day of June, 2017.