                                                                                                 ACCEPTED
                                                                                             01-13-00782-CV
                                                                                  FIRST COURT OF APPEALS
                                                                                          HOUSTON, TEXAS
                                                                                      10/12/2015 12:22:05 PM
                                                                                       CHRISTOPHER PRINE
                                                                                                      CLERK

                                   No. 01-13-00782-CV

                        In the Court of Appeals for the First District       FILED IN
                                                                      1st COURT OF APPEALS
                                      Houston, Texas                      HOUSTON, TEXAS
                                                                     10/12/2015 12:22:05 PM
                                                                      CHRISTOPHER A. PRINE
                                                                              Clerk
                        BANDIER REALTY PARTNERS, LLC
                        AND SWITCHBACK VENTURES, LLC,

                                                      Appellants,

                                              v.

                        SSC OPPORTUNITY PARTNERS, LLC,

                                                       Appellee.


                        On Appeal from the 215th District Court,
                      Harris County, Texas, Cause No. 2011-43194,
                          the Hon. Elaine H. Palmer, presiding


                     APPELLEE’S MOTION FOR REHEARING


TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

       Comes now, SSC Opportunity Partners, LLC (“SSC”) and files this Motion

for Rehearing. In support of this Motion, SSC shows the Court the following:

       This Court should grant rehearing and affirm the trial court’s judgment

because the evidence presented to the jury supports its finding that both Bandier

Realty Partners, LLC’s and Switchback Ventures, LLC’s (collectively the “Bandier

Defendants”) tortious actions caused SSC’s damages.                  The Court’s legal-

Appellee’s Motion for Rehearing                                                    Page 1
sufficiency analysis, however, fails to account for this evidence and, instead, rests

on a version of the facts and evidence that is different than the one that the jury

heard and accepted. As a result, the legal-sufficiency analysis does not comply

with the standards articulated by the Supreme Court and should be revised.

Similarly, because evidence supports the causation finding, the Court’s reliance on

HMC Hotel Properties II Ltd. Partnership v. Keystone-Texas Property Holding

Corporation is misplaced. 439 S.W.3d 910 (Tex. 2014). Ultimately, the jury

heard the causation evidence and resolved any conflicts in SSC’s favor. Because

the Court’s opinion fails to give proper deference to this result, rehearing is proper.

A.       Background.

         As explained at length in SSC’s brief, this case involves a real estate

transaction in which Bandier Realty (and its principals), who were acting as SSC’s

fiduciaries, continually attempted to force their way into a deal that SSC found and

put together.       [SSC Br. at 1-18].   When those attempts failed, the Bandier

Defendants schemed (without SSC’s knowledge) to cut SSC out of the deal. [Id. at

8-18].

         The Bandier Defendants’ plan succeeded because they chased off SSC’s

investor, Larry Johnson. At trial, Johnson blamed his departure on two events

attributable to the Bandier Defendants.        [8 RR 29-31].       First, the Bandier

Defendants convinced Charter Title, another SSC fiduciary, to disregard SSC’s



Appellee’s Motion for Rehearing                                                   Page 2
instructions by returning Johnson’s earnest money to him and providing

Switchback’s earnest money to the seller rather than Johnson’s. [SSC Br. at 4-11].

Second, the Bandier Defendants’ principals crashed a meeting between SSC,

Johnson, and the seller, and made misrepresentations about their alleged

participation in the deal. [Id. at 11-12]. As result of the Bandier Defendants’

behavior, Johnson “had about all the fun he could stand on that deal” and

withdrew. [Id. at 11-17; 8 RR 29].

       The Bandier Defendants then took advantage of SSC’s loss of its investor

and looming contractual deadlines by fraudulently inducing SSC to sign away its

interests in the deal. [SSC Br. at 12-18; 7 CR 9918]. As a result of the Bandier

Defendants’ actions, SSC, which put the deal together, was left with no interest in

the property and Bandier’s principals, who were supposed to be SSC’s fiduciaries,

ended up with multi-million dollar interests. [SSC Br. at 17-18].

       The jury heard all of the details of the Bandier Defendants’ actions, which

were documented through contemporaneous emails and trial testimony.          [Id.].

Ultimately, the jury determined that the Bandier Defendants committed a number

of torts and found $15 million in damages for SSC’s loss of the property, which the

trial court awarded in its judgment. [7 CR 11567-69]. This Court reversed the trial

court’s judgment and rendered judgment for the Bandier Defendants based on its

determination that SSC presented no legally-sufficient causation evidence. [Op. at



Appellee’s Motion for Rehearing                                               Page 3
22; App. A]. Although the Court recognized that evidence supported a finding that

the Bandier Defendants’ actions chased off Johnson, it held that SSC failed to

introduce evidence showing that Johnson would have moved forward with the deal

in the absence of defendants’ torts. [Id. at 14-20]. However, SSC presented

evidence that the jury properly credited, which the Court’s opinion does not

mention, showing that Johnson would have continued to work with SSC to develop

the property but for the Bandier Defendants’ actions.

B.     The Court’s legal-sufficiency analysis does not follow City of
       Keller.

       Rehearing should be granted because the Court’s legal-sufficiency analysis

does not comport with the process outlined by the Texas Supreme Court in City of

Keller v. Wilson. 168 S.W.3d 802, 807 (Tex. 2005). Specifically, the Court’s

opinion fails to follow City of Keller and its progeny because it does not review the

evidence in the light most favorable to the verdict and because it omits causation

evidence that supports the jury’s verdict. By applying the correct standard of

review to the evidence in this case, only one determination is proper—that SSC

presented legally-sufficient causation evidence.

       1.      City of Keller requires deference to the jury’s interpretation of the
               evidence.

       As the Court’s opinion recognizes, City of Keller articulated the process and

standards for conducting a legal-sufficiency review of a trial court’s judgment.



Appellee’s Motion for Rehearing                                                Page 4
168 S.W.3d at 807; [Op. at 11]. When reviewing the legal sufficiency of the

evidence, a court must “view the evidence in the light favorable to the verdict,

crediting favorable evidence if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not.” Id. at 807; see also Regal Fin. Co. v.

Tex Star Motors, Inc., 355 S.W.3d 595 (Tex. 2010). Similarly, a court should

“indulge every reasonable inference that would support” the jury’s finding.

Klentzman v. Brady, 456 S.W.3d 239, 267-68 (Tex. App.—Houston [1st Dist.]

2014, pet. filed) (citing City of Keller, 168 S.W.3d at 822). Relevant here, a legal-

sufficiency challenge to a finding fails when more than a scintilla of evidence

supports the finding. Pointe West Ctr., LLC v. It’s Alive, Inc., No. 01-14-00779-

CV, 2015 WL 5299467, at *3 (Tex. App.—Houston [1st Dist.] Sept. 10, 2015, no

pet. h.) (citing Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex.

2005)); Klentzman, 456 S.W.3d at 268. Thus, to overcome a legal-sufficiency

challenge, an appellee must only point to evidence that “rises to a level that would

enable reasonable and fair minded people to differ in their conclusions.” Pointe

West, 2015 WL 5299467, at *3. The ultimate test for legal sufficiency is whether

“the evidence at trial would enable reasonable and fair-minded people to reach the

verdict under review.” Id.; see also Del Lago Partners, Inc. v. Smith, 307 S.W.3d

762, 770 (Tex. 2010).




Appellee’s Motion for Rehearing                                                Page 5
       When conducting a legal-sufficiency review, a court also must defer to a

jury’s determination of conflicting evidence. City of Keller, 168 S.W.3d at 820

(“[C]ourts reviewing all the evidence in a light favorable to the verdict must

assume that jurors resolved all conflicts in accordance with that verdict.”). This is

because the jury is the sole judge of the witnesses’ credibility and any weight to

give their testimony. Id. at 819; see also Republic Petroleum LLC v. Dynamic

Offshore Res. NS LLC, No. 01-14-00370-CV, 2015 WL 5076700, at *6 (Tex.

App.—Houston [1st Dist.] Aug. 27, 2015, no pet. h.); Jefferson v. Helen Fuller &

Assocs. Health, Inc., No. 01-11-00199-CV, 2012 WL 2357431, at *13 (Tex.

App.—Houston [1st Dist.] June 21, 2012, pet. denied) (mem. op.) (“As the fact-

finder, the jury had the sole responsibility to assess the credibility of the witnesses,

and it could choose to believe or disbelieve all or part of any witness’s

testimony.”).

       2.      The Court’s opinion fails to credit evidence that the jury
               accepted.

       Although the Court’s opinion briefly mentions these principles, it fails to

apply them to the evidence in this case. The Court’s legal-sufficiency analysis

rests on its determination that, although evidence established that the Bandier

Defendants’ tortious actions caused Johnson to leave the deal, SSC presented no

evidence that Johnson was going to move forward with SSC to buy the property

absent the defendant’s actions. [Op. at 14-20]. It bases that conclusion on (1)

Appellee’s Motion for Rehearing                                                   Page 6
SSC’s supposed lack of financial ability to complete the purchase; and (2) several

issues with the property that allegedly would have prevented Johnson from

partnering with SSC. [Id.]. The problem with this determination is that it ignores

evidence of SSC’s ability to proceed with the deal, testimony from Johnson that he

would have moved forward but for the defendants’ actions, and evidence

establishing that the other issues did not prevent Johnson’s participation in the

deal. [SSC Br. at 38-45].

               a.      SSC had the ability to use its option with or without an
                       investor.

       The Court’s emphasis on the fact that “SSC lacked the financial ability to

purchase the land for $5 million without an investor or equity partner” does not

affect the legal-sufficiency analysis.      [Op. at 14-15].         This is because the

undisputed evidence established that SSC could have completed the purchase with

an investor and that SSC actively sought investors for the project. [11 RR 99, 218-

19]. Based on this evidence, the jury found, in Question 32, that SSC “ha[d] the

financial capability to exercise the option . . . .” [7 CR 9923].

       Moreover, the jury also heard unchallenged expert testimony that SSC had a

variety of potential ways that it could monetize its interest in the deal without an

investor. That testimony came from SSC’s expert, Jeffrey Spilker, who explained

that SSC could also have realized the value of the option by contributing the option

to a joint venture or by selling the option. [10 RR 193-94]. Because SSC had

Appellee’s Motion for Rehearing                                                   Page 7
various avenues to exercise the option on the property, this does not negate the

causation evidence.

               b.      Johnson testified that he would have moved forward but for
                       the Bandier Defendants’ actions.

       The Court also incorrectly reaches the conclusion that “there is no evidence

that Johnson intended to purchase the 101 acres, give or loan SSC the money to do

so, invest in SSC, or form a joint business entity with SSC for the purpose of

purchasing and developing the property.” [Op. at 15-16]. This conclusion, which

the Court bolsters with anecdotal testimony about issues existing with the property,

ignores evidence that the jury could have credited that demonstrated Johnson’s

intent to move forward. Indeed, the Court’s opinion fails to mention Johnson’s

unequivocal testimony that he would have continued forward with SSC if the

Bandier Defendants had not convinced Charter to disregard SSC’s instructions and

return his earnest money on the property:

       Q       Is it a fair statement for you to say that - - well, is it a fair
               statement that you would have continued to move forward had
               that [earnest] money not been sent back to you?

       A       I think that would be a fair statement. Continuing to work on it.

[8 RR 30-31]. Similarly, Doug Britton, SSC’s principal, testified that Johnson’s

stated reasons for leaving the deal only involved the Bandier Defendants’

behavior—not other issues related to the property. [12 RR 137, 235-36].




Appellee’s Motion for Rehearing                                                    Page 8
               c.      Other evidence allowed the jury to determine that Johnson
                       would have stayed in the deal.

       Instead, the Court attempts to point to evidence of other issues that would

have kept Johnson from proceeding with the deal. This evidence does not change

the proper outcome because the jury also heard evidence and testimony

establishing that Johnson knew of the issues and moved forward anyway. To the

extent that Johnson’s testimony conflicted with his actions, this was a credibility

issue for the jury to determine. City of Keller, 168 S.W.3d at 819; Republic

Petroleum, 2015 WL 5076700, at *6; Jefferson, 2012 WL 2357431, at *13.

Because the jury determined this issue in SSC’s favor, it cannot be disregarded.

       For example, the Court concludes that because SSC failed to obtain an

extension of the inspection period in the earnest money contract, issues such as a

“lack of utilities, drainage, rights of way, access roads, and annexation by a MUD

district . . . meant that [Johnson] would not go forward with the transaction.”1 [Op.

at 15]. In reality, Johnson never testified that any of these issues caused him to

leave the deal. Instead, he stated that “we could have gotten comfortable with

some of them without having them done if we felt like it could be done later.” [8

RR 37]. Although Johnson admitted that they “weren’t to that point,” the only

reason that they did not continue with the deal was the Bandier Defendants’

1
  The extension of the inspection period and the deletion of the so-called “financial-strength”
provision in the earnest money contract were provisions included in the letter agreement
executed with Johnson. [21 RR Ex. 116].


Appellee’s Motion for Rehearing                                                          Page 9
actions. [8 RR 29-31, 37]. Similarly, when Britton learned Johnson’s reasons for

leaving the deal, the inspection period and property issues were not mentioned.

[12 RR 137, 230, 235-36]. Because there is no evidence that these issues played a

role in Johnson’s departure or prevented him from moving forward with the deal,

they cannot affect the legal-sufficiency analysis.

        The Court also determines that SSC presented no evidence that Johnson

“would have retreated from his demand to eliminate the financial-strength

condition or to extend the inspection period [in the earnest money contract].” [Op.

at 19]. This statement fails to account for SSC’s evidence showing that Johnson

knew that the financial-strength provision would not be deleted and that no

extension would be granted but that he moved forward anyway by giving SSC

$32,500 that Johnson knew would become non-refundable.              This is legally-

sufficient causation evidence to allow the jury to infer that those provisions did not

prevent Johnson from participating in the deal. See Ford Motor Co. v. Castillo,

444 S.W.3d 616, 621 (Tex. 2014) (“[W]here the circumstantial evidence is not

equally consistent with either of two facts, and the inference drawn by the jury is

within the ‘zone of reasonable disagreement,’ a reviewing court cannot substitute

its judgment for that of the trier-of-fact.”) (quoting City of Keller, 168 S.W.3d at

822).




Appellee’s Motion for Rehearing                                                Page 10
       With regard to SSC’s inability to obtain deletion of the earnest money

contract’s financial-strength provision, the evidence at trial established that

Johnson knew that, at the time he gave SSC the $32,500 in earnest money, the

seller “would like to have [the financials] by the end of the week if possible.” [21

RR Ex. 115, 119]. Yet, Johnson continued to move forward with the deal until the

Bandier Defendants interfered. Britton gave similar testimony:

       Q       Well, you didn’t get . . . a deletion of the financial strength
               provision.

       A       Larry Johnson in a phone call that day asked me to extend it
               throughout the week. I got that, and then we had all of the
               events that took place this week.

[12 RR 189]. Similarly, Johnson never testified that SSC’s inability to obtain

deletion of the financial-strength provision caused him to leave the deal or that it

would have prevented him from going forward. This allowed the jury to determine

that the financial-strength provision did not prevent Johnson from moving forward.

       The jury also heard evidence that allowed it to determine that SSC’s

inability to obtain an extension of the inspection period did not affect Johnson’s

participation in the deal. Although the Court’s opinion states that “[t]here is no

evidence in the record that Johnson abandoned [his] demands [for an extension of

the inspection period],” the evidence established that Johnson knew that no

extension would be given at least one week before he gave SSC the $32,500. [Op.

at 16; 8 RR 18-19, 21, 37-39; 20 RR Ex. 89-90]. Despite this knowledge, Johnson

Appellee’s Motion for Rehearing                                                  Page 11
gave Britton $32,500 in earnest money that Johnson knew would become non-

refundable. [8 RR 21-22, 24; 20 RR Ex. 85]. After giving SSC the earnest money,

Johnson continued to work on the deal. [8 RR 18-19, 23, 31; 21 RR Ex. 119, 132,

147-48, 150-51]. In fact, at no time did Johnson ever tell Britton or the seller that

he would not move forward without an extension. [8 RR 18-19, 23]. It was not

until after the Bandier Defendants’ actions at the December 1 meeting that Johnson

finally decided to withdraw. [8 RR 39-40]. Moreover, Britton testified that, while

Johnson initially required an extension to move forward, he later “changed his

mind” on that issue. [12 RR 128]. Given this evidence, the jury properly could

have determined that the inspection period did not play a role in Johnson’s

departure or prevent him from moving forward.2

        The Court’s opinion casts this evidence aside by concluding that Johnson’s

$32,500 was a loan secured by a promissory note and was thus “not at risk.” [Op.

at 16]. Whether or not Johnson’s money was at risk does not affect the analysis.

The jury heard evidence that Johnson, with full knowledge that the seller would

not meet his demands to delete the financial-strength provision or extend the

inspection period, continued to move forward with the SSC deal. This evidence

created an issue for the jury to determine—Johnson’s intent—which it resolved in


2
  Although the Court’s opinion states that Johnson’s “testimony unequivocally showed that he
would not proceed with the deal without an extension of the inspection period,” it does not
provide any such testimony. [Op. at 16-17].


Appellee’s Motion for Rehearing                                                      Page 12
SSC’s favor. A reasonable juror could credit Johnson’s actions and testimony,

while disregarding any conflicting testimony, to conclude that Johnson would have

continued with the deal without an extension, deletion of the financial-strength

provision, or resolution of the other issues. Because the evidence allowed the jury

to make that finding, this Court cannot set it aside. City of Keller, 168 S.W.3d at

827.

       3.      The HMC Hotel Properties decision does not control the outcome
               in this case.

       The Court’s opinion also relies upon the Supreme Court’s recent HMC Hotel

Properties decision to support its legal-sufficiency holding. [Op. at 17-19]; 439

S.W.3d at 910. The HMC Hotel Properties decision, which involves very different

facts, offers no applicable analysis. In HMC Hotel Properties, the hotel (referred

to as “Host”) leased the Riverwalk hotel in San Antonio from Keystone, which

owned the property beneath the hotel along with the Riverwalk Mall. Id. at 911.

Under the terms of their lease agreement, Keystone was obligated to give Host

notice when it decided to sell to a third party “and afford [Host] a reasonable

period of time” of up to 90 days in which to attempt to negotiate to purchase the

property. Id. at 912.

       When Keystone decided to sell both the hotel and the mall to a third party, it

provided Host with 75 days’ notice. Host never made an offer and, after initially

telling Keystone it would waive its negotiation rights under the lease, Host

Appellee’s Motion for Rehearing                                                Page 13
eventually sent a letter stating it would not provide a waiver. Id. Keystone sued

after the sale fell through, claiming in relevant part that Host’s letter caused the

deal to falter because Keystone could not secure title insurance without a waiver.

Id.

       The jury awarded damages against Host and the trial court entered judgment

for Keystone. Id. The court of appeals affirmed the damage award, but the

Supreme Court reversed, finding that Keystone presented no evidence that Host’s

actions caused its damages. Specifically, the Supreme Court held that no evidence

supported causation because, among other things, (1) the title insurers never were

going to insure without a waiver from Host; and (2) Host was never obligated to

waive its rights. Id. at 913-17. Thus, the Court determined that Host’s letter did

not lead to the destruction of the deal. Id. at 915 (“The deal failed not because of a

letter, but because Keystone was unable to convince Host to voluntarily relinquish

its rights.”).

       This is far different from Johnson’s explicit testimony that it was the

Bandier Defendants’ actions that caused him to change his mind and abandon the

deal. [8 RR 29-31]. Even more importantly, unlike HMC Hotel Properties,

Johnson explicitly testified that he would have continued forward with the deal if

the Bandier Defendants had not caused Charter to reject Johnson’s earnest money.

[Id.]. Unlike HMC Hotel Properties, the jury also heard evidence of Johnson’s



Appellee’s Motion for Rehearing                                                Page 14
actions in moving forward with the deal despite knowledge that certain issues had

not been resolved. See supra 10-13. Because the jury in this case had sufficient

evidence to determine that the Bandier Defendants’ actions caused SSC’s damages,

HMC Hotel Properties does not control and rehearing is proper.

C.     The Court’s decision creates bad policy.

       In addition to its failure to comply with City of Keller, the Court’s opinion

also creates a scenario in which a tortfeasor can insulate itself from liability by

sabotaging a deal early enough to render damages uncertain. Indeed, under this

Court’s analysis, if a defendant breaks up a business relationship or transaction

early enough in the process, it never can be liable for damages because the parties

have not consummated a final deal:

       Here, the evidence showed only that Johnson might have
       consummated the deal or provided SSC with the funds to do so. This
       is not sufficient to establish to the but-for element of cause in fact,
       which requires reasonable certainty and cannot rest on a mere
       possibility.

[Op. at 20].

       In addition to failing to properly credit evidence of Johnson’s intention to

continue with the deal absent the Bandier Defendants’ actions, such a holding

creates an incentive for wrongdoers to scuttle a transaction at the earliest point to

prevent any liability for damages. The Court brushes these concerns aside and

suggests that SSC should have sought equitable fee forfeiture. [Op. at 21-22].



Appellee’s Motion for Rehearing                                                  Page 15
This does not answer the problem created by the Court’s holding. Although fee

forfeiture may be available in certain fiduciary situations, it only applies when a

deal has actually been consummated involving the fiduciary. Factually, this is a

rare situation and, in any event, if a tortfeasor breaches its fiduciary duty

effectively enough, then under the Court’s holding, there would not be sufficient

evidence to hold them liable for their actions—whether in equity or in damages.

The Court can easily solve this problem by rehearing this case and altering its

legal-sufficiency analysis to take into account the other evidence showing

Johnson’s willingness to move forward with the deal but for the Bandier

Defendants’ actions.

                                  CONCLUSION

       For the foregoing reasons, SSC respectfully requests that the Court grant its

motion for rehearing and affirm the trial court’s judgment.




Appellee’s Motion for Rehearing                                               Page 16
                                      Respectfully submitted,



                                      /s/ David Keltner
                                      David E. Keltner
                                      State Bar No. 11249500
                                      david.keltner@kellyhart.com
                                      Jody S. Sanders
                                      State Bar No. 24051287
                                      jody.sanders@kellyhart.com
                                      KELLY HART & HALLMAN LLP
                                      201 Main Street, Suite 2500
                                      Fort Worth, Texas 76102
                                      817.332.2500—Telephone
                                      817.878.9280—Telecopier

                                      ATTORNEYS FOR APPELLEE


                           CERTIFICATE OF COMPLIANCE

1.     This motion complies with the type-volume limitations of Texas Rule of
       Appellate Procedure 9.4(i)(2)(B) because it contains 3,619 words, excluding
       the parts of the motion exempted by Texas Rule of Appellate Procedure
       9.4(i)(1).

2.     This motion complies with the typeface requirements of Texas Rule of
       Procedure 9.4(e) because this motion has been prepared in a proportionally
       spaced typeface using “Microsoft Word 2010” in fourteen (14) point “Times
       New Roman” style font.

                                      /s/ David Keltner
                                      David E. Keltner




Appellee’s Motion for Rehearing                                             Page 17
                                  CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the above
and foregoing document has been served upon counsel via electronic filing on
October 12, 2015:

       David M. Gunn
       dgunn@beckredden.com
       Erin H. Huber
       ehuber@beckredden.com
       Beck Redden LLP
       1221 McKinney, Suite 4500
       Houston, Texas 77010
       Counsel for Appellants
       Bandier Realty Partners, LLC
       and Switchback Ventures, LLC


                                          /s/ David Keltner
                                          David E. Keltner




Appellee’s Motion for Rehearing                                           Page 18
Appendix A
Opinion issued August 27, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00782-CV
                          ———————————
                 BANDIER REALTY PARTNERS, LLC
            AND SWITCHBACK VENTURES, LLC, Appellants
                                      V.
             SSC OPPORTUNITY PARTNERS, LLC, Appellee


                   On Appeal from the 215th District Court
                            Harris County, Texas
                      Trial Court Case No. 2011-43194


                        MEMORANDUM OPINION

      A jury awarded appellee SSC Opportunity Partners, LLC $15 million in

actual damages for fraud and breach of fiduciary duty in connection with a real-

estate transaction. Appellants Bandier Realty Partners, LLC and Switchback

Ventures, LLC appeal from the adverse judgment against them.
      We conclude that, as in the case of HMC Hotel Properties II LP v. Keystone-

Texas Property Holding Corp., 439 S.W.3d 910 (Tex. 2014), the evidence is

legally insufficient to support the jury’s verdict with respect to its finding that any

actual damages suffered by SSC were caused by the actions of Bandier Realty and

Switchback. Since SSC did not pursue any other theory of recovery, we sustain the

appellants’ fourth issue, reverse the judgment of the trial court, and render

judgment that SSC take nothing.

                                    Background

      Douglas Britton formed SSC Opportunity Partners, LLC for the purpose of

purchasing and developing real estate in the northern suburbs of Houston, where

Exxon eventually built a corporate campus. Britton engaged the services of a real-

estate broker, Bandier Realty Partners, LLC, in connection with this transaction.

      On August 2, 2010, SSC entered into an earnest-money contract to purchase

a 101-acre tract of land in Harris County for approximately $5 million. Within

three days of the contract’s execution, the buyer was required to deposit $25,000 in

earnest money, which would become non-refundable after a period of due

diligence. A down payment of $1 million was due at closing, and the sellers agreed

to finance the remaining $4 million balance if the purchaser or its assignee could

demonstrate its “financial strength” and close the transaction within the time

allotted by the contract.



                                          2
      SSC lacked the $25,000 that was needed for the initial earnest-money

payment. Robert D. Banzhaf and L.S. “Trey” Halberdier, III, who jointly owned

Bandier Realty, began working with Britton to find investors. On August 4, 2010,

Switchback Ventures, LLC—a company owned by Banzhaf and Halberdier—

deposited $25,000 as earnest money.

      Halberdier then asked Britton to sign a document that he said was intended

to protect Switchback’s $25,000 investment. Halberdier had drafted this

agreement, which the parties call the “Switchback Agreement,” in the form of a

letter from Britton to Switchback, which identified Britton as “[t]rustee and agent

to assist in the acquisition and/or contractual arrangements of . . . referenced land

in Harris County.” It stated that Britton was authorized by Switchback “to

represent the interest, monetary consideration of Earnest Money in said Contracts,

and perform Contracts for Trey Halberdier or any other Managing Member of

Switchback Ventures, LLC and any other subsidiaries, partners or affiliates.” The

only land referenced was the 101 acres, and the only contract identified was the

earnest-money contract that Britton had signed on behalf of SSC. The Switchback

Agreement also stated that Britton would “take full directive from [Switchback] in

terms of duties to perform, responsibilities, and any other actions that relate to the

$25,000.00 earnest money deposit.” Without reading it, Britton signed the

document.



                                          3
      Britton, Halberdier, and Banzhaf then decided to search for a partner or

purchaser to execute the real-estate transaction, and the men concurrently began

discussions with different potential investors.

      Britton began discussions with Larry Johnson, a successful Houston-area

real-estate developer, about partnering to purchase and develop the property.

Without committing to the investment, Johnson began due diligence, which

revealed several concerns, including the availability of utilities, lack of road access

to the 101 acres, and the conditions upon which sellers had predicated their offer of

financing.

      Halberdier and Banzhaf began discussions with other potential investors:

Omero “Rocky” Del Papa, III, Kenneth R. Vaught, Jr., and their business entities

Kenroc Development, LLC and Kenroc, LLC (collectively “Kenroc”). Britton

encouraged Halberdier and Banzhaf’s negotiations with Kenroc, and he gave them

investment information to use in their presentations. Britton would later testify that

he had authorized Bandier Realty to engage in these negotiations. Bandier Realty

negotiated a potential deal with Kenroc. Contemporaneous emails from Britton

showed that he understood the terms of the proposed deal—assignment of the

earnest-money contract to Kenroc with both Bandier Realty and SSC later serving

as real-estate brokers for subdivided parcels of land and both sharing in the

commissions.



                                          4
      In addition, Bandier Realty negotiated its own contingent agreement with

Kenroc and the sellers’ agent. In an email dated November 28, Halberdier told the

sellers’ agent that if “Britton (SSC)” did not approve the Kenroc proposal, Bandier

Realty would withdraw the earnest money from escrow, causing a default on the

contract. At that point, Kenroc and Bandier Realty would enter into a new contract

with the sellers with the same closing date, terms, and conditions. In another email

sent later that day, Halberdier told Banzhaf, Del Papa, and Vaught that Britton had

agreed to the Kenroc deal in principle.

      But the next day, Britton entered into a letter agreement with Johnson. In

exchange for a loan of $32,500, which was secured by a promissory note, Britton

agreed to obtain an extension of the inspection period in the earnest-money

contract and the deletion of its financial-strength provision. Britton further agreed

that he would “work together exclusively” with Johnson “towards a mutually

acceptable agreement for the assignment of the [earnest money] [c]ontract from

Britton’s affiliate to an affiliate of Johnson.” That day, Britton gave Johnson a

copy of the Switchback Agreement, which he referenced as “the only single

document I have executed with Bandier.”

      Britton delivered to the title company a cashier’s check in the amount of

$32,500, representing the $25,000 earnest money and a payment of $7,500 to

extend the inspection period. He also delivered a letter that he termed a “release,”



                                          5
addressed to Switchback Ventures. Britton instructed the title company that it was

“not authorized to release the Cashier’s Check contained herewith until you receive

a signed counterpart of the release and return a copy to me by email.”

      The letter to Switchback stated that its purpose was to return the $25,000

earnest money in full satisfaction of any duties Britton owed by virtue of the

Switchback Agreement. It continued:

             Please acknowledge your receipt and acceptance of the
      foregoing in the appropriate place below, which shall in any event be
      deemed upon your acceptance of the Deposit being returned to you
      herewith, and which acceptance shall also be deemed an absolute
      quitclaim and release of any interest you may claim to any earnest
      money heretofore deposited pursuant to that certain purchase and sale
      agreement by and between SSC Opportunity Partners, LLC and OU
      Land Acquisition, LP and OU Land Acquisition Two, LP for a certain
      100.61 acre tract of land located in Harris County, Texas (the
      “Contract”).

            You are hereby again advised that your offer to invest money
      with Purchaser under the Contract is not accepted. The foregoing shall
      not be deemed to otherwise affect any commission to which you may
      be expressly entitled pursuant to the Contract.

Halberdier refused to sign the release. Rather, he asked Britton to assign the

earnest-money contract from SSC to Bandier Realty.

      The next day, the seller’s agent contacted the title company to inquire about

the earnest money, which had not yet been transferred. The Switchback earnest

money was then sent to the sellers, and Johnson’s earnest money was returned.




                                         6
      By now hostility had grown among the parties. Britton, Halberdier, and

Banzhaf met at Johnson’s office to attempt to resolve their differences. Johnson

and the seller’s agent were also present, but they left the room to allow the men to

work out their problems. Two days later, Johnson informed Britton that he was no

longer interested in the investment opportunity.

      By early December 2010, there had been no showing of financial strength by

SSC, Britton, Halberdier, Banzhaf, Switchback, or Bandier Realty. On

December 6, the sellers informed SSC that it had two business days to deliver a

letter of intent or an agreement among SSC, Bandier Realty, and Del Papa, the

proposed equity partner, to be signed by all parties. In addition, the sellers offered

one additional business day for Del Papa to satisfy the financial-strength provision.

      On December 8, SSC, Bandier Realty, and Switchback entered into a

memorandum of agreement (“MOA”) calling for the formation of a business entity

called “Newco”—to be owned by Bandier Realty, SSC, and a majority equity

investor—that would acquire and develop the 101 acres. Bandier Realty and SSC

would own equal minority shares of the entity. The following day, the sellers

approved Del Papa’s financial statements as satisfying the financial-strength

provision.

      Bandier Realty and Switchback then asked SSC to assign the earnest-money

contract to Del Papa as trustee of yet another entity to be formed in the future. The



                                          7
document that was sent to Britton, which the parties call the “Del Papa Assignment

Agreement (DPAA),” included a provision, paragraph 8, which canceled and

nullified the MOA signed the previous day by Bandier Realty and SSC. Britton

struck out the language in paragraph 8 that canceled the MOA, signed the revised

document, and sent it to Halberdier, Banzhaf, their attorneys, and the sellers’ agent.

With Britton’s revisions, there were then two documents purporting to assign the

earnest-money contract: the MOA which assigned the contract to Newco; and the

DPAA as revised by Britton, which assigned it to Del Papa, as trustee, without

nullifying the MOA. The sellers’ agent informed Britton that unless he executed

the assignment without striking through paragraph 8, the sellers would declare the

earnest-money contract in default. Britton thereafter signed a clean copy of the

DPAA. The DPAA provided that SSC would share equally in any commission

received by Bandier Realty as a result of the earnest-money contract. But the

DPAA made no provision for any further participation by SSC in the development

of the 101 acres, and SSC did not participate further.

      In July 2011, after Exxon announced its plans to build a corporate campus

adjacent to the 101 acres, SSC filed the underlying lawsuit against the Bandier

parties (Halberdier, Banzhaf, Bandier Realty Partners, LLC, Switchback Ventures,

LLC, and Bandier Management Partners, LLC), the investors who had worked

with them, and the title company that had handled the escrow. SSC alleged various



                                          8
tort theories including breach of fiduciary duty and fraud. SSC also sought

exemplary damages.

      The case was tried to a jury. Britton’s theory of the case was that SSC lost its

opportunity to partner with Johnson to purchase and develop the 101 acres because

the defendants—including Bandier Realty and Switchback—interfered and caused

Johnson to back out of the transaction. Britton testified about how he came up with

the idea for this particular development and the time and effort he spent to research

its potential viability. He also testified that he had no money to finance it and had

even borrowed money from his parents. Britton testified that Johnson had been

very interested in pursuing this opportunity. Although the sellers’ agent had

already denied Johnson’s request to extend additional time, Britton nevertheless

believed he could persuade the sellers to extend the due-diligence period. Britton

testified that when Johnson loaned him the earnest money, it was for the purpose of

moving “forward towards closing.” Britton contended that as a result of the

defendants’ actions, “SSC lost the option which it valued at $20 million.”

      Johnson testified, however, that he and Britton never reached an agreement

about purchasing the 101-acre tract. He said that he had been confused about who

had the rights to the contract and “still unsettled” on due diligence. He testified that

there were numerous unresolved issues, any one of which would have been enough

to end the deal. He identified a number of specific concerns, including: “when the



                                           9
roads would be built,” “whether Exxon was really going to go forward with their

deal,” “how the drainage would end up working,” “getting road right-of-ways to

extend some of the roads,” and “how we were going to do the MUD districts.”

Johnson also said that he was not prepared to finalize a deal without an extension

of the inspection period, and the sellers had not agreed to extend it.

      The jury found in favor of SSC on its claims for fraud and breach of

fiduciary duty, awarding $15 million in actual damages, plus exemplary damages

against Bandier Realty Partners, Banzhaf, and Halberdier in the amount of

$500,000 each.

                                      Analysis

      “Generally, when a party presents multiple grounds for reversal of a

judgment on appeal, the appellate court should first address those points that would

afford the party the greatest relief.” Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co.,

995 S.W.2d 675, 677 (Tex. 1999). Accordingly, we begin by addressing the

appellants’ sufficiency-of-the-evidence arguments because they apply to all claims

and both remaining defendants. In addition, reversal on the grounds of legal

insufficiency would result in rendition of judgment for Bandier Realty and

Switchback. See id.; see also TEX. R. APP. P. 43.3 (“When reversing a trial court’s

judgment, the court must render the judgment that the trial court should have




                                          10
rendered, except when: (a) remand is necessary for further proceedings; or (b) the

interests of justice require a remand for another trial.”).

      We review legal sufficiency challenges to determine whether the evidence

“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). In

determining whether legally sufficient evidence supports a challenged finding, we

must consider the evidence that favors the finding if a reasonable factfinder could,

and we must disregard evidence contrary to the challenged finding unless a

reasonable factfinder could not. Id. We may not sustain a legal sufficiency, or “no

evidence,” point unless the record demonstrates: (1) a complete absence of a vital

fact; (2) the court is barred by rules of law or of evidence from giving weight to the

only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital

fact is no more than a mere scintilla; or (4) the evidence conclusively establishes

the opposite of the vital fact. Id. at 810. The factfinder may choose to “believe one

witness and disbelieve others” and “may resolve inconsistencies in the testimony

of any witness.” McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see

City of Keller, 168 S.W.3d at 820–21.

      Proximate cause is an element of each of SSC’s tort claims. See Nat’l Prop.

Holdings, L.P. v. Westergren, 453 S.W.3d 419, 423 (Tex. 2015) (fraudulent

inducement); ERI Consulting Eng’rs v. Swinnea, 318 S.W.3d 867, 881 (Tex. 2010)



                                           11
(civil conspiracy); Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29

S.W.3d 74, 77 (Tex. 2000) (tortious interference with a contract); Finger v. Ray,

326 S.W.3d 285, 291 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (breach of

fiduciary duty). There may be more than one proximate cause of an occurrence.

Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010).

      “The components of proximate cause are cause in fact and foreseeability.”

Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 929 (Tex.

2015). “Cause in fact is essentially but-for causation.” Id. A tortious act satisfies

the cause-in-fact component of proximate cause when it is “a substantial factor in

causing the injury and without which the injury would not have occurred.” Del

Lago Partners, 307 S.W.3d at 774 (citing W. Invs., Inc. v. Urena, 162 S.W.3d 547,

551 (Tex. 2005)). “If the defendant’s negligence merely furnished a condition that

made the injury possible, there can be no cause in fact.” Urena, 162 S.W.3d at 551.

      Proximate cause “cannot be established by mere conjecture, guess or

speculation.” Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477

(Tex. 1995). To establish causation, the evidence “must show more than a

possibility.” Lenger v. Physician’s Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex.

1970). “Verdicts must rest upon reasonable certainty of proof.” Id. Cause in fact

may be established by direct or circumstantial evidence, including expert-opinion

testimony. See, e.g., Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.



                                         12
1992). However, “[b]are baseless opinions will not support a judgment even if

there is no objection to their admission in evidence.” City of San Antonio v.

Pollock, 284 S.W.3d 809, 816 (Tex. 2009). When an expert opinion is admitted

without objection, it may be considered probative even if its basis is unreliable. Id.

at 818. “But if no basis for the opinion is offered, or the basis offered provides no

support, the opinion is merely a conclusory statement and cannot be considered

probative evidence, regardless of whether there is no objection.” Id. “[A] claim

will not stand or fall on the mere ipse dixit of a credentialed witness.” Burrow v.

Arce, 997 S.W.2d 229, 235 (Tex. 1999).

      The jury in this case found that Bandier Realty breached its fiduciary duty to

SSC, intentionally interfered with the earnest-money contract, participated in a

civil conspiracy that damaged SSC, and fraudulently induced SSC to enter into the

Del Papa Assignment Agreement. The jury also found that Switchback participated

in Bandier Realty’s breach of fiduciary duty, participated in a civil conspiracy that

damaged SSC, and assisted or encouraged Bandier Realty’s interference with the

earnest-money contract.

      Appellants challenge the evidentiary basis for the jury’s conclusions.

Specifically, they contend that SSC lacked the financial ability to exercise the

option by purchasing the land for $5 million on its own, and its only potential

investor, Larry Johnson, would not have invested in the project regardless of their



                                         13
actions. As such, the appellants argue there was legally insufficient evidence that

their actions were a but-for cause of SSC’s failure to acquire the property.

      In response, SSC argues that Johnson’s actions and testimony created a fact

issue about whether he would have “proceeded with the SSC deal” but for the

actions of Bandier Realty and Switchback. In particular, it contends that Johnson’s

action in “giving SSC the non-refundable earnest money,” despite knowing that the

sellers had not extended the inspection period or deleted the financial-strength

provision, showed that he would have moved forward with the deal. SSC argues

that this action conflicted with Johnson’s testimony, creating a credibility issue that

the jury resolved in its favor and which we must credit under the applicable

standard of review. SSC argues that the jury was “free to conclude” that both the

conduct of Bandier Realty and other concerns about the property “played a role in

Johnson’s departure.” Thus, SSC reasons that the jury’s finding that Bandier

Realty and Switchback proximately caused its injuries is supported by sufficient

evidence.

      We disagree with SSC’s depiction of the record. First, the evidence showed

that SSC lacked the financial ability to purchase the land for $5 million without an

investor or equity partner. Although Britton asserted at trial that he could have

closed the deal, he conceded on cross-examination that he could not have done so

without investors. Similarly, the sellers’ agent also testified that SSC lacked the



                                          14
financial ability to purchase the property independently. In addition, SSC never

satisfied the financial-strength provision, which was a necessary condition for the

sellers to finance the $4 million balance that would have remained after the

$1 million down payment. Under the earnest-money contract, the failure to satisfy

the financial-strength provision was grounds for the sellers to declare the contract

in default.

      Second, there is no evidence that Johnson intended to purchase the

101 acres, give or loan SSC the money to do so, invest in SSC, or form a joint

business entity with SSC for the purpose of purchasing and developing the

property. Johnson testified that he was interested in the property, but the unfinished

due diligence would have been enough to end the deal for him. He testified that he

was concerned about the lack of utilities, drainage, rights of way, access roads, and

annexation by a MUD district. Without an extension of the inspection period, any

one of these unresolved issues was “a killer,” significant enough for him to decline

the investment opportunity. Yet he never received any assurance that the

inspection period would be extended, which meant that he would not go forward

with the transaction.

      The only written agreement between Johnson and SSC was the

November 29 “Letter Agreement Regarding Assignment of Contract.” This

document did not purport to actually assign the earnest-money contract. Instead,



                                         15
the parties agreed “to work together exclusively towards a mutually acceptable

agreement for the assignment of the Contract from Britton’s affiliate to an affiliate

of Johnson which benefits both Britton and Johnson prior to the end of the

Inspection Period.” It also required Britton to obtain an extension of the inspection

period and deletion of the financial-strength condition. This agreement did not

provide any terms of financial compensation, carried interest, or any sort of profit

sharing. By its plain terms it was an executory contract that did not immediately

assign the earnest-money contract.

      Still SSC argues that Johnson’s provision of $32,500 in nonrefundable

earnest money showed, contrary to his testimony, that he was prepared to assume

the contract and consummate the deal and was willing to abandon his demands to

delete the financial-strength condition and extend the inspection period. However,

the evidence in the record shows that the $32,500 was a loan secured by a

promissory note. Thus, while the earnest money was nonrefundable as to SSC,

Johnson’s investment was not at risk: he could recover his money from Britton. In

addition, Johnson’s letter agreement with Britton provided that the consideration

for the loan was Britton’s promise to obtain an extension of the inspection period

and a deletion of the financial-strength condition. There is no evidence in the

record that Johnson abandoned these demands. Instead, his testimony

unequivocally showed that he would not proceed with the deal without an



                                         16
extension of the inspection period, an option that was available to him under the

letter agreement with Britton.

      The insufficiency of this evidence is evident in light of a similar case

recently decided by the Supreme Court of Texas, addressing an issue of but-for

causation in a case arising from a real estate deal that fell through. The case of

HMC Hotel Properties II LP v. Keystone-Texas Property Holding Corp., 439

S.W.3d 910 (Tex. 2014), involved the attempted sale of the Rivercenter Mall and

the land beneath the San Antonio Riverwalk hotel. HMC Hotel Props. II LP, 439

S.W.3d at 911. The hotel leased the land beneath it from Keystone-Texas Property

Holding Corporation. Id. The lease included a right-of-first refusal provision,

affording it up to 90 days to attempt to negotiate an agreement to purchase the land

if Keystone decided to sell it. Id. at 911–12. Nothing in the lease required the hotel

to execute a waiver of this provision if it chose not to purchase under those

circumstances. Id. at 914–15.

      After the properties were listed for sale, a potential buyer emerged for the

two properties, offering $166 million for both. Id. at 911. Keystone invited the

hotel to make an offer to purchase, but it also requested the hotel waive its rights

under the lease provision. Id. at 912. The hotel initially indicated that it would sign

the requested waiver, but after meeting with the potential buyer, the hotel

suspected that the purchase price had been inflated to discourage it from making an



                                          17
offer. Id. At that point, the hotel informed Keystone by letter that no waiver was

forthcoming. Id. Notably, at all relevant times, the title insurers had stated that they

required a waiver from the hotel in order to issue a “clean” title insurance policy.

Id. at 913–14.

      When the sale of the land beneath the hotel fell through, the hotel sued for

breach of contract, and Keystone countersued for tortious interference with a

contract. Id. at 912. The jury found for Keystone, which had argued that the letter

from the hotel had been “passed to the proposed title insurers, [and had] scuttled

the sale.” Id. The court of appeals held that the evidence was sufficient to show

that the letter “proximately caused the deal’s demise.” Id.

      In the Supreme Court, the hotel argued that there was no evidence of but-for

causation, i.e., “no evidence show[ed] the outcome would have been different if

[the hotel] had not sent its letter.” Id. at 913. The Supreme Court agreed. First, it

observed that the hotel had no obligation to provide the waiver that the title

insurers demanded, and that there was no evidence that the insurers would have

dropped that demand. Id. at 915. Second it rejected testimony about how the title

insurers might have “insured around” the lease provision after the expiration of 90

days and in the absence of the hotel’s letter. Id. at 916. The Supreme Court said,

“[I]n the end, all of this testimony is simply speculation about what the title

insurers might have done had [the hotel] handled itself differently. Testimony



                                          18
based on nothing but speculation is evidence of nothing at all.” Id. Third, the Court

agreed that the evidence showed that the hotel’s letter had a “substantial effect” on

the deal, but it explained that “testimony that the letter was a substantial factor in

bringing about harm to Keystone is only half of the cause-in-fact element. . . .

Keystone also had to show that absent [the hotel’s] letter, the harm would not have

occurred.” Id. at 917 (citation omitted).

        This case is similar to HMC Hotel Properties. SSC’s argument that Johnson

would have provided the funding it needed to exercise the option but for the

actions of the appellants fails because it is too speculative. Nothing in the evidence

shows that Johnson would have provided SSC with funding but for the actions of

Bandier Realty and Switchback. Rather, the evidence shows that even if the

substituted earnest money had been accepted, and even if Halberdier, Banzhaf, and

Britton had comported themselves amicably and with civility at the meeting on

December 1, Johnson still would have harbored doubts about the investment

because his due diligence was incomplete. There is no evidence in the record that

Johnson would have retreated from his demand to eliminate the financial-strength

condition or to extend the inspection period. And his loan of money to Britton did

not require him to abandon those demands. To the contrary, it was predicated upon

them.




                                            19
      Here, the evidence showed only that Johnson might have consummated the

deal or provided SSC with the funds to do so. This is not sufficient to establish to

the but-for element of cause in fact, which requires reasonable certainty and cannot

rest on a mere possibility. See Lenger, 455 S.W.2d at 706.

      SSC argues that because there can be more than one proximate cause, the

jury was “free to conclude” that the conduct of Bandier Realty and Switchback

“played a role in Johnson’s departure.” We agree that the evidence supports such a

conclusion. Johnson testified that he became “disgusted” by the conduct of Bandier

Realty, i.e., Halberdier and Banzhaf, as well as that of Britton. He testified that it

created doubt as to who was in control of the earnest-money contract. But the

question before us is whether the evidence supports the verdict actually rendered,

which included an award of actual damages. Actual damages require proof of

causation. See Doe, 907 S.W.2d at 477; Lenger, 455 S.W.2d at 706. And evidence

that the appellants played a role in bringing about the injury SSC complains of “is

only half of the cause-in-fact element.” HMC Hotel Props., 439 S.W.3d at 917.

SSC also had to show that absent the conduct of Bandier Realty and Switchback,

the injury would not have occurred. Id. This they failed to do.

      Finally, SSC argues that as a matter of policy, a finding that the evidence

was insufficient to support the verdict as to causation would “create an unintended

safe-harbor from liability for defendants who breach their fiduciary duties early in



                                         20
a transaction.” It argues that the appellants’ actions “chas[ed] off Johnson before

he could finalize the SSC deal.” It argues that we therefore should affirm based on

“the settled principles that a fiduciary should be punished for its breaches and that

relationships of trust should be protected.”

      Texas law provides equitable remedies for breach of fiduciary duty that are

distinct from awards of actual damages. See, e.g., ERI Consulting Eng’rs, Inc., 318

S.W.3d at 874 (equitable forfeiture is distinguishable from an award of actual

damages because it serves a separate function of protecting fiduciary

relationships); Burrow, 997 S.W.2d at 240 (fee forfeiture available in absence of

proof of actual damages for an attorney’s breach of fiduciary duty); Kinzbach Tool

Co. v. Corbett-Wallace Corp., 138 Tex. 565, 573–74, 160 S.W.2d 509, 514 (1942)

(“It would be a dangerous precedent for us to say that unless some affirmative loss

can be shown, the person who has violated his fiduciary relationship with another

may hold on to any secret gain or benefit he may have thereby acquired.”); Saden

v. Smith, 415 S.W.3d 450, 469 (Tex. App.—Houston [1st Dist.] 2013, pet. denied)

(“Even if a fiduciary does not obtain a benefit by violating his duty, he still may be

required to forfeit the right to compensation for his work.”).

      SSC did not seek the alternative remedy available to it under Texas law: fee

forfeiture. Bandier Realty was SSC’s broker, and its payment was the commission

it earned when the sale of the 101 acres was closed. SSC did not seek recompense



                                          21
for the commission Bandier Realty earned. In addition, although SSC did seek

damages for unjust enrichment, the jury returned a take-nothing verdict on that

question. Thus, we reject SSC’s policy-based arguments.

      We sustain the appellants’ fourth issue, and we hold that the evidence is

legally insufficient to support the verdict as to causation. As a result of our

resolution of this issue, it is unnecessary for us to address the other arguments

raised by the appellants. TEX. R. APP. P. 47.1.

                                    Conclusion

      We reverse the judgment of the trial court and render judgment that SSC

take nothing from appellees Bandier Realty Partners and Switchback Ventures.




                                              Michael Massengale
                                              Justice

Panel consists of Chief Justice Radack, and Justices Higley and Massengale.




                                         22
