ELLISON • KELLER
A T T O R N E Y S A T L A W
Preparing Your Damages
Case/Defense
Texas Lawyer In-House Counsel Summit
May 21, 2015
Tracey N. Ellison
Kelley M. Keller
Kanchan Bhalerao
Christine C. Cockrell
5120 Woodway Dr., Suite 6019
Houston, Texas 77056
713-266-8218
1
Considerations
• Source of remedy.
• Statute and/or common law.
• Nature of damages.
• Contract, liquidated, tort, penalty, exemplary, interest, court costs.
• Pleadings.
• General or specific.
• Proof.
• Opinion (experts, lay persons), business records, valuations.
• Defenses.
• Failure to mitigate, insufficient proof, proportionate responsibility, one
satisfaction rule, after-acquired evidence rule, setoff and recoupment.
• The Number.
• Identify the damages amount/range as early as possible.
2
Case Preparation
• Begin with the jury charge.
• Texas Pattern Jury Charge – Business, Consumer, Insurance, Employment.
• TPJC Damages 115.1 through 115.46.
• Includes case law and instructions on the elements of measure of
damages and defenses.
• Sets roadmap and focuses discovery on the proof you will need at trial.
• The failure to inform the jury of the proper measure of damages is defect
and subject to reversal. Jackson Walker, LLP v. Kinsel, No. 07-13-00130-CV,
2015 Tex. App. LEXIS 3586 (Tex. App.—Amarillo April 10, 2015); see also
Acadia Healthcare Co. v. Horizon Health Corp., No. 02-13-00339-CV, 2015
Tex. App. LEXIS 1850 (Tex. App.—Fort Worth Feb. 26, 2015) (reflecting the
importance of the jury charge on damages)
• See also O’Connor’s Texas Causes of Action.
• Consider summary judgment based on no evidence of damages.
3
Statutory Claims
• Review all potential statutory bases for your claims or potential defenses for
remedy provisions.
• Civil Practice & Remedies Code
• Business & Commerce Code
• Finance Code
• Labor Code
• Occupations Code
• Health and Safety Code
• Property Code
• Transportation Code
4
Texas Civil Practice & Remedies Code
• Recoveries in certain civil actions.
•
•
Medical Liability: §§ 74.301-303, 74.501-507.
•
Determine whether the claim is a “healthcare liability claim.” Ross v. St. Lukes
Episcopal Hosp., No. 13-0439, 2015 Tex. LEXIS 361 (Tex. 2015) (slip and fall on
hospital premises was not a healthcare liability claim).
•
Limitations on liability for non-economic losses and exemplary damages.
Fraudulent court record, lien or claim against property: § 12.002(b).
•
•
Greater of actual damages or $10,000, court costs, reasonable attorneys’ fees,
and exemplary damages “in an amount to be determined by the court.”
Interception of communication: §§ 123.004.
•
Statutory damages of $10,000, plus actual damages in excess of $10,000,
punitive damages “to be determined by the court or jury,” and reasonable
attorneys’ fees and costs.
5
Texas Civil Practice & Remedies Code
• Recoveries in certain civil actions (cont’d).
•
•
Theft of trade secrets: Texas Uniform Trade Secrets Act (eff. 9/1/13) Section
134A.004.
•
A claimant is entitled to injunctive relief, exemplary damages, and actual
damages, which can include “both the actual loss caused by misappropriation
and the unjust enrichment caused by misappropriation that is not taken into
account in computing actual loss. In lieu of damages measured by any other
methods, the damages caused by misappropriation may be measured by
imposition of liability for a reasonable royalty for a misappropriator’s
unauthorized disclosure or use of a trade secret.”
•
Court may award fees to the prevailing party under certain circumstances –
generally bad faith by plaintiff or defendant or “willful and malicious
misappropriation.” § 134.005
Civil theft: § 134.005.
•
Actual damages, plus an amount not to exceed $1,000, court costs, and
reasonable attorneys’ fees.
•
Actual damages not to exceed $5,000 recoverable from a parent or person with
the duty of control or reasonable discipline of a child.
6
Texas Business & Commerce Code
• Recoveries in certain civil actions.
• DTPA: § 17.50.
• Economic damages, mental anguish damages (if conduct was
committed knowingly), plus not more than three times the economic
damages, or if the conduct was committed intentionally, not more than
three times the economic damages and mental anguish damages, plus
costs and attorneys’ fees.
• Award for attorneys’ fees and costs if the action was groundless in law
or brought in bad faith or for the purpose of harassment.
• Fraudulent transfers: §§ 24.009, 24.013.
• Creditor may recover the value of the asset at the time of transfer, or
the amount necessary to satisfy the creditor’s claim, plus costs and
attorneys’ fees “as are equitable and just.”
• Fraud in a real estate or stock transaction: § 27.01(b), (e).
• Actual and exemplary damages, attorneys’ fees, expert witness fees,
costs for copies of depositions, costs of court.
7
Texas Business & Commerce Code
• Recoveries in certain civil actions (cont’d).
•
Contracts for sale of goods.
•
•
Seller’s breach.
•
§ 2.711 (recovery of purchase price paid for rejected goods).
•
§ 2.712 (difference between cost of cover and contract price, less
expenses saved).
•
§ 2.713 (measure of damages for non-delivery or repudiation by the seller
is “the difference between the market prices at the time when the buyer
learned of the breach and the contract price, together with any incidental
and consequential damages,” less expenses saved).
•
§ 2.714-15 (measure of damages for breach of warranty, consequential
and incidental damages, including injury to person or property proximately
resulting from any breach of warranty).
Buyer’s breach.
•
§ 2.708 (difference between contract price and market value at time of
breach, lost profits, incidental damages).
•
§ 2.709 (contract price if buyer has accepted goods).
8
Texas Business & Commerce Code
• Recoveries in certain civil actions (cont’d).
• Wrongful dishonor or repudiation of letter of credit: § 5.111.
• Plaintiff may recover the amount subject of the dishonor or
repudiation and incidental, but not consequential damages, reduced
by the amount of damages avoided, plus attorneys’ fees and “other
expenses of litigation.”
9
Pleading Damages
• General pleading.
•
An original pleading must state that the amount sought “is within the jurisdictional
limits the Court.” TEX. R. CIV. P. 47.
•
Except in suits governed by the Family Code, the pleading must include a statement
that the party seeks:
(1) only monetary relief of $100,000 or less, including damages of any kind,
penalties, costs, expenses, pre-judgment interest, and attorney fees; or
(2) monetary relief of $100,000 or less and non-monetary relief; or
(3) monetary relief over $100,000 but not more than $200,000; or
(4) monetary relief over $200,000 but not more than $1,000,000; or
(5) monetary relief over $1,000,000.
•
Defendant may request pleading in a specific amount. TEX. R. CIV. P. 47.
• “[U]pon special exception the court shall require the pleader to amend so as to
specify the maximum amount claimed.” (emphasis added).
• Specific pleading required.
•
A party should specifically plead special damages such as nominal and exemplary
damages. See TEX. R. CIV. P. 56; Harkins v. Crews, 907 S.W.2d 51, 61 (Tex. App.—San
Antonio 1995, writ denied); ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248, 257
(Tex. App.—Dallas 1990, no writ); K-Mart Apparel Fashions Corp. v. Ramsey, 695
S.W.2d 243, 247 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).
10
Nature of the Damages
• Contractual and business damages.
• Out-of-pocket losses – restitutionary, e.g. the difference between the value
given and the value received. Jackson Walker, LLP v. Kinsel, No. 07-1300130-CV, 2015 Tex. App. LEXIS 3586 (Tex. App.—Amarillo April 10, 2015).
• Benefit of the bargain – expectancy, e.g. the difference between the value
as represented and the actual value.
• Lost profits. Must prove “by competent evidence with reasonable
certainty.” Texas Instrs., Inc. v. Teletron Energy Mgmt., 877 S.W.2d 276,
279 (Tex 1994).
• Considerations:
• Established business v. new venture.
• Uncertain or changing market conditions.
• Opinion evidence admissible if based on objective facts. Holt
Atherton Indus. V. Heine, 835 S.W.2d 80, 84 (Tex. 1992).
• Quantum meruit (restitution).
• No express contract/contract implied by law. Plaintiff may recover the
reasonable value of work performed and/or materials furnished.
11
Nature of the Damages (cont’d)
• Contractual and business damages.
• Special or consequential.
• Damages that flow naturally, but not necessarily, from the breach.
• Requires that the damages would be foreseeable by the non-breaching
party and are “directly traceable to and result from the wrongful
conduct, ”e.g. lost profits.
• Loss of credit. See Roberts v. U.S. Home Corp., 694 S.W.2d 129, 134
(Tex. App.—San Antonio 1985, no writ).
• Loss of goodwill. See Texas & Pac. Ry v. Mercer, 90 S.W.2d 557, 560
(Tex. 1936); Checker Bag Co. v. Washington, 27 S.W.3d 625, 637 (Tex.
App.—Waco 2000, pet. denied).
• Liquidated damages.
• Nominal damages.
• Available when the injured party has not suffered an actual loss or
cannot prove the amount of loss.
12
Attorneys’ Fees
• Authority for a recovery of attorneys’ fees.
• TEX. CIV. PRAC. & REM. CODE.
• § 38.001 (breach of contract, sworn account, services, labor, material,
etc.).
• § 37.009 (declaratory judgment – “court may award costs and
reasonable and necessary attorneys’ fees as are equitable and just”).
• § 30.021 (motion to dismiss – prevailing party).
• “In a civil proceeding, on a trial court’s granting or denial, in
whole or in part, of a motion to dismiss filed under the rules
adopted by the supreme court under Section 22.004(g),
Government Code, the court shall award costs and reasonable
and necessary attorney’s fees to the prevailing party.”
• No reported cases on this section.
• See also § 27.009 (motion to dismiss action in response to
exercise of right to free speech, right to petition, or right of
association).
13
Attorneys’ Fees (cont’d)
• Authority for recovery (cont’d).
• TEX. BUS. & COMM. CODE.
• § 15.50 (non-competition agreements). Recoverable by the
defendant/employee under certain conditions.
• § 17.50(c) (d) (DTPA).
• § 24.013 (fraudulent transfers).
• § 27.01(e) (fraud in a real estate or stock transaction).
• See O’Connor’s CPRC plus 2012-13 pp. 910-921 for a chart of 155 statutes
providing for a recovery of attorneys’ fees. Many statutes will provide for a
recovery by the “prevailing party.”
14
Attorneys’ Fees (cont’d)
• Segregating Fees.
• Ensure that counsel segregate fees for time spent on claims for which fees
are recoverable from time spent on claims for which fees are not
recoverable. See Jackson Walker, LLP v. Kinsel, No. 07-13-00130-CV, 2015
Tex. App. LEXIS 3586 (Tex. App.—Amarillo April 10, 2015); Alief Indep. Sch.
Dist. v. Perry, No. 14-12-00532-CV, 2013 Tex. App. LEXIS 13522 (Tex. App.—
Houston [14th Dist.] Oct. 31, 2013).
• Failure to introduce evidence of segregation can result in a new trial or
remand on the issue of segregation.
• Ensure charge includes instruction on segregation of fees. See Green Int’l v.
Solis, 951 S.W.2d 384, 390 (Tex. 1997) (“While the jury question regarding
attorneys’ fees failed to segregate the fees between the different projects
and the various claims and defenses, neither party objected to the failure to
segregate. Therefore, the error was waived.”).
15
Texas Civil Practice & Remedies Code
• The Damages Act, TEX. CIV. PRAC. & REM. Code §§ 41.001, et seq.
•
Applies “to any action in which a claimant seeks damages relating to a cause of
action.”
•
Establishes the maximum damages that may be awarded in an action subject to the
chapter, “including an action for which damages are awarded under another law of
this state.”
•
Does not apply to the extent another law establishes a lower maximum amount of
damages for a particular claim.
•
§ 41.002: Exclusions from the Damages Act:
•
Actions under TEX. BUS. & COMM. CODE § 15.21 (Texas Free Enterprise and
Antitrust Act of 1983);
•
DTPA actions, “except as specifically provided in Section 17.50 of that Act.”
•
Actions under Chapter 36 of the Human Resources Code (Medicaid Fraud
Prevention); and
•
Actions under Chapter 21 of the Insurance Code (bad faith).
16
Exemplary Damages
• Statutory authorization for recovery of exemplary damages.
• TEX. CIV. PRAC. & REM. CODE §§ 41.003, 41.004.
• Exemplary damages are recoverable “only if the claimant proves by
clear and convincing evidence that the harm with respect to which the
claimant seeks recovery of exemplary damages results from”:
• Fraud
• Malice, or
• Gross negligence.
• Jury must be unanimous in its finding of liability for and amount of
exemplary damages.
• Jury must be instructed that to find exemplary damages, the answer
regarding the amount must be unanimous.
• May be awarded only if damages other than nominal damages are
awarded.
• May not be awarded if the claimant elects to have his recovery
multiplied under another statute.
17
Exemplary Damages
• Statutory authorization for recovery of exemplary damages.
• “Clear and convincing” means “the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.” TEX. CIV. PRAC. & REM CODE
§ 41.001(2)
• “This intermediate standard falls between the preponderance standard of
civil proceedings and the reasonable doubt standard of criminal
proceedings.” Alahmad v. Abukhdair, No. 02-12-00084-CV, 2014 Tex. App.
LEXIS 6137 (Tex. App.—Fort Worth June 5, 2014).
18
Exemplary Damages
• Statutory authorization for recovery of exemplary damages.
• TEX. CIV. PRAC. & REM. CODE §§ 41.009.
• On motion by a defendant, made prior to voir dire or other deadline
set by the court, the court shall bifurcate the trial.
• TEX. CIV. PRAC. & REM. CODE §§ 41.011.
• The trier of fact “shall consider evidence, if any, relating to”:
• The nature of the wrong;
• The character of the conduct involved;
• The degree of culpability of the wrongdoer;
• The situation and sensibilities of the parties concerned;
• The extent to which such conduct offends a public sense of justice
and propriety; (the Alamo National Bank v. Kraus factors) and
• The net worth of the defendants.
• Evidence relevant solely to the question of exemplary damages is not
admissible during the first phase of a bifurcated trial.
19
Exemplary Damages (cont’d)
• Statutory authorization for recovery of exemplary damages.
• TEX. CIV. PRAC. & REM. CODE §§ 41.005 (harm resulting from criminal act).
• In actions arising from assault, theft, or other criminal act, a court may
not award exemplary damages against a defendant because of the
criminal act of another, except under certain circumstances, including
criminal actions by an employee of the defendant if:
• The principal authorized the doing and manner of the act;
• The agent was unfit and the principal acted with malice in
employing or retaining him;
• The agent was employed in a managerial capacity and was acting
in the scope of employment; or
• The employer or a manager of the employer ratified or approved
the act.
20
Exemplary Damages (cont’d)
• Statutory authorization for recovery of exemplary damages.
• TEX. BUS. & COMM. CODE § 27.01(c), (d) (fraud in a stock transaction).
• Recoverable on proof of the defendant’s actual awareness of the falsity
of a representation or promise.
• TEX. CIV. PRAC. & REM. CODE § 71.009 (wrongful death).
• If caused by willful act or omission or by gross negligence.
• See O’Connor’s CPRC plus 2012-13 pp. 926 for a chart of 23 statutes
providing for a recovery of exemplary damages.
21
Exemplary Damages (cont’d)
• Limitations on the recovery of exemplary damages.
• In any action in which there are two or more defendants, the award must
be “specific to a defendant, and each defendant is liable only for the
amount of the award made against that defendant.” TEX. CIV. PRAC. & REM.
CODE § 41.006.
• TEX. CIV. PRAC. & REM. CODE § 41.008.
• Generally, exemplary damages are limited to the greater of (1) two
times the amount of “economic damages” an amount equal to any
noneconomic damages found by the jury, not to exceed $750K or (2)
$200K.
• The cap on exemplary damages does not apply to actions based on
certain conduct described as a felony in the Texas Penal Code, e.g.
forgery, commercial bribery, misapplication of fiduciary property or
property of financial institution, securing execution of a
document by deception, etc.
• A defendant must plead the statutory cap. Davis v. White, 2014 Tex.
App. LEXIS 13807 (Tex. App.—Fort Worth Dec. 29, 2014).
22
Mitigation
• Plaintiffs’ duty to mitigate.
• Generally, a plaintiff has a duty to exercise reasonable care to mitigate
damages. See Great Am. Ins. Co. v. North Austin MUD, 908 S.W.2d 415, 426
(Tex. 1995); Wilmot v. Bouknight, No 01-13-00738-CV, Tex. App LEXIS 1967
(Tex. App.—Houston [1st Dist.] March 3, 2015) (noting plaintiff is required to
mitigate if damages can be avoided “with only slight expense and
reasonable effort”).
• For example, in employment litigation, a plaintiff’s damages will be
reduced by amount that the plaintiff earned or should have earned in
the exercise of reasonable diligence through other employment. Gulf
Consol. Int’l v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983); Wal-Mart
Stores, Inc. v. Amos, 79 S.W.3d 178, 194 (Tex. App.—Texarkana 2002, no
pet.).
• Mitigation is an affirmative defense that must be plead and proven by the
defendant.
23
One Satisfaction Rule
• The “one satisfaction rule” ensures that the plaintiff does
not receive a duplicative recovery.
• Applicable when “multiple defendants commit the same act as well as when
defendants commit technically different acts that result in a single injury.”
Alief Indep. Sch. Dist. v. Perry, No. 14-12-00532-CV, 2013 Tex. App. LEXIS
13522, *36 (Tex. App.—Houston [14th Dist.] Oct. 31, 2013).
• “If a party received favorable findings on two or more theories of recovery
that are consistent with each other and result in the same damages, then
the trial court may render judgment awarding a single recovery of these
damages, and the judgment may be based on all theories.” Id.
• “Because the damages recoverable under the [Texas] whistleblower and
First Amendment claims are identical (but for the statutorily capped amount
as to AISD) and because the trial court awarded a single recovery of
damages, [Plaintiff] was not required to elect between these theories of
recovery.” Alief Indep. Sch. Dist., 2013 Tex. App. LEXIS 13522, at *36.
24
One Satisfaction Rule (cont’d)
• Joint and Several Liability.
• “[T]he imposition of joint and several liability avoids the possibility of a
double recovery.” Alief Indep. Sch. Dist., 2013 Tex. App. LEXIS 13522, at
**36-37.
• Settlement credits.
• Available to a non-settling defendant as a credit against the judgment. See
First Title Co. v. Garrett, 680 S.W.2d 74, 78 (Tex. 1993).
• Exception to the one satisfaction rule.
• The collateral source rule. Evidentiary rule preventing introduction of
evidence regarding benefits received by plaintiff from an outside source,
e.g., insurance, government assistance, tax deductions, worker’s
compensation benefits. See Brown v. Am. Transfer & Storage Co., 601
S.W.2d 931, 934 (Tex. 1980) (insurance).
• Independently compensable interests, e.g. “equitable disgorgement” and
“actual damages.” McCullough v. Scarbrough, Medlin & Assocs., 435 S.W.3d
871 (Tex. App.—Dallas 2014, pet. denied).
25
Economic Loss Rule
• Economic Loss Rule.
•
A party may not recover in tort for purely economic losses suffered to the subject
matter of a contract. Peterson Group, Inc. v. PLTQ Lotus Group, L.P., No. 01-1000529-CV, 2013 Tex. App. LEXIS 12960 (Tex. App.—Houston [1st Dist.] Oct. 17, 2013)
(citations omitted).
•
The court considers the “source of the defendant's duty to act (whether it arose
solely out of the contract or from some common-law duty) and the nature of the
remedy sought by the plaintiff.“ Id., quoting Formosa Plastics Corp. USA v. Presidia
Eng’rs & Contractors, Inc., 960 S.W.2d 41, 45 (Tex. 1998).
•
“When the injury is only the economic loss to the subject of a contract itself, the
action sounds in contract alone.“ Jim Walter Homes, Inc. v. Reed , 711 S.W.2d 617,
618 (Tex. 1986). However, under some circumstances, “a party's actions may breach
duties simultaneously in contract and in tort.” Peterson Group. “To maintain a
separate tort cause of action, the plaintiff must show that he has ‘suffered an injury
that is distinct, separate, and independent from the economic losses recoverable
under a breach of contract claim.’" Peterson Group, quoting Sterling Chems, Inc. v.
Texaco Inc., 259 S.W.3d 793, 797 (Tex. App.--Houston [1st Dist.] 2007, pet denied).
•
“It is well established that the legal duty not to fraudulently procure a contract is
separate and independent from the duties established by the contract itself.” Forman
v. Classic Century Homes, Ltd., No. 01-12-00362-CV, 2014 Tex. App. LEXIS 12986 (Tex.
App.—Forth Worth Dec. 4, 2014).
26
Proportionate Responsibility
• Proportionate Responsibility under the TEX. CIV. PRAC. & REM. CODE §§
33.001-017.
•
A claimant may not recover damages if his percentage of responsibility is greater than
50 percent. § 33.001.
•
Applies to actions in tort and under the DTPA “in which a defendant, settling person,
or responsible third party is found responsible for a percentage of the harm for which
relief is sought.” § 33.002.
•
The trier of fact as to each cause of action shall determine the percentage of
responsibility for (1) each claimant; (2) each defendant; (3) each settling person; and
(4) each responsible third party who has been designated under Section 33.004. §
33.003.
•
If the claimant is not barred from recovery by § 33.001, the court shall reduce the
damages with respect to a cause of action by a percentage equal to the claimant’s
percentage of responsibility. § 33.012(a).
•
The award must further be reduced by the “sum of the dollar amounts of all
settlements.” § 33.012(b).
•
The award in a health care liability claim is reduced, at the election of the defendant,
by (1) the sum of all settlements or (2) a percentage equal to each settling person’s
percentage of responsibility. § 33.012(c).
27
Proportionate Responsibility (cont’d)
• Proportionate Responsibility under the TEX. CIV. PRAC. & REM. CODE §§ 33.001017.
• A defendant is liable to a claimant only for the percentage of damages
found by the trier of fact equal to the defendant’s percentage of
responsibility with respect to the harm for which the damages are allowed,
unless the defendant’s percentage of responsibility is greater than 50
percent or “the defendant, with the specific intent to do harm to others,
acted in concert with another person to engage in” certain conduct
described in specific provisions of the Texas Penal Code. § 33.013.
• The defendant should tender a question on proportionate responsibility for
submission to the jury with the jury charge. See Soon Phat, L.P. v. Alvarado,
396 S.W.3d 78 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
• The proportionate responsibility scheme is not applicable in a statutory tort
action where the statute contains a separate and conflicting fault-allocation
scheme. See Challenger Gaming Solutions, Inc. v. Earp, 402 S.W.3d 290 (Tex.
App.—Dallas 2013, no pet. hist.) (not applicable in an action under the
Uniform Fraudulent Transfers Act, TEX. BUS. & COMM. CODE § 24.008(a)(2)).
28
Recent Cases
• Acadia Healthcare Co. v. Horizon Health Corp., No. 02-13-00339-CV, 2015 Tex.
App. LEXIS 1850 (Tex. App.—Fort Worth Feb. 26, 2015).
• Found that expert opinion on lost profits was to speculative, such that there
was no evidence to support an award of lost profits on the claim for fraud.
• Based on “nothing more than speculation” that an at-will employee
would have remained employed and produced at a certain level and a
specific contract would have been awarded.
• Expert challenge – need to ensure proper challenge to the expert
testimony on damages is made pre-trial and at trial.
• Reduced exemplary damages award as excessive.
• Notes that “[f]ew awards that exceed a single-digit ratio [exemplary to
compensatory] will satisfy due process, and the Supreme Court has
suggested that a four-to-one ration perhaps is the limit of what the
constitution will allow.” **47-48.
• Remedy for excessive exemplary damages award is a remittitur or
possibly remand for new trial. *48. Court suggested a remittitur – up to
the plaintiff to accept, or matter would go back for a new trial on the
limited issue.
29
Recent Cases
• Alahmad v. Abukhdair, No. 02-12-00084-CV, 2014 Tex. App. LEXIS 6137 (Tex.
App.—Fort Worth June 5, 2014).
• Held that counterclaim “by its very definition ‘embraces both setoff and
recoupment’” and so, if proven, would be deducted from any award to the
plaintiff.
• Cummins v. Bat World Sanctuary, No. 02-12-000285-CV, 2015 Tex. App. LEXIS
3472 (Tex. App.—Fort Worth Apr. 9, 2015)
• Exemplary damages in a defamation action and sufficiency of the evidence
on noneconomic damages.
• Failure to plead statutory cap on exemplary damages precluded point on
appeal.
• Insufficient evidence on breach of contract damages.
• Davis v. White, No. 02-13-00191-CV, 2014 Tex. App. LEXIS 13807 (Tex. App.—Fort
Worth Dec. 29, 2014, no pet.).
• Holding trial court erred allowing post-trial amendment to raise the cap on
exemplary damages and reinstating the jury’s higher award of exemplary
damages.
30
Recent Cases
• Dernick Res., Inc. v. Wilstein, No. 01-13-00853-CV, 2014 Tex. App. LEXIS 9148
(Tex. App.—Houston [1st Dist.] Aug. 19, 2014)
• Bond, deposit, or security on appeal must equal the sum of compensatory
damages (synonymous with actual damages), interest for duration of the
appeal, and costs. Subject to cap not to exceed the lesser of 50% of the
judgment debtor’s net worth or $25 million. TEX. R. CIV. P. 24; TEX. CIV. PRAC.
& REM. CODE § 52.006. Note the statutory cap does not apply in federal
court actions.
• Exemplary damages not to be included in the total.
• Amount of equitable fee forfeiture was not compensatory damages – intent
was to protect relationships of trust – and so was not to be included in
total.
• In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168, 174-75 (Tex. 2013).
• Attorneys’ fees are not to be included in calculation of the supersedeas
bond.
31
Recent Cases
• Iroh v. Igwe, No. 05-13-00027-CV, 2015 Tex. App. LEXIS 2630 (Tex. App.—Dallas
March 19, 2015)
• Actual and exemplary damages in a defamation case. Exemplary damages
must be reasonably proportional to actual damages.
• McCullough v. Scarbrough, Medline & Assocs., 435 S.W.3d 871 (Tex. App.—Dallas
2014).
• Plaintiff could recover actual damages as well as equitable disgorgement.
• Smith v. Davis, No. 12-14-00007-CV, 2015 Tex. App. LEXIS 4008 (Tex. App.—Tyler
April 22, 2015)
32