                         COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                              NO. 02-09-00274-CV


CATHERINE WILSON AND                                               APPELLANTS
WILLIAM D. WILSON

                                        V.

SIAVASH TAVAKOLI, D.D.S.                                               APPELLEE


                                    ------------

          FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                        MEMORANDUM OPINION1
                                    ------------

      Catherine and William D. Wilson (Doug) appeal from the trial court’s take

nothing judgment on their claims against their former dentist Siavash Tavakoli.

After a trial, the jury found that Tavakoli had committed fraud against Catherine.

The jury found $3,000 in exemplary damages, but no question on actual

damages for fraud had been submitted, and, consequently, the jury made no


      1
       See Tex. R. App. P. 47.4.
finding on actual damages for fraud. After Tavakoli filed a motion for judgment,

the trial court then entered a take nothing judgment on the Wilsons’ claims. In

two issues, the Wilsons argue that the trial court erred by limiting the jury’s

consideration of fraud to the dental work performed on a single tooth and by

rendering a take nothing judgment on their claims. Because we hold that the

Wilsons have not shown harm from the limiting of the fraud question and that the

trial court did not err by granting a take nothing judgment, we affirm.

      At trial, Catherine testified that on her first visit to Tavakoli, he told her that

he could not clean her teeth unless she first had three teeth pulled. She agreed

to the tooth extractions because Tavakoli told her that she had a life-threatening

infection and needed the teeth removed immediately.

      Catherine stated that Tavakoli also told her that she needed to have

bridges put in and root canals performed. Catherine returned for subsequent

visits and had two root canals that, according to her, were not included in her

original treatment plan and were only performed in an attempt by Tavakoli to

make her bridge fit. Catherine was unsatisfied with the fit of the bridge, which,

she testified, rocked back and forth. Tavakoli ordered a new bridge to be made,

but according to Catherine, she was not told that another bridge would be made.

Tavakoli’s records listed Catherine as a ―no show‖ for an appointment to fit the

new bridge.

      Doug, like Catherine, had become Tavakoli’s patient when their insurance

plan changed to one that did not include their former dentist. Doug testified that


                                           2
when he went to Tavakoli for a cleaning, he was told by the office manager that

he needed a root canal, a crown, and a bridge. Doug did not agree to have this

work done, however. After the Wilsons’ insurance changed again, Doug returned

to their former dentist, who told him that he did not need any of the dental work

that Tavakoli had deemed necessary.

      Catherine also returned to the care of their former dentist when the

Wilsons’ insurance changed. Catherine went to Tavakoli’s office to retrieve her

dental records and informed the office manager that the bridge Tavakoli had put

in did not fit correctly. The office manager told her that a permanent bridge had

been ordered but that Catherine had not shown up for the appointment to fit it.

Catherine asked for the bridge, which she had already been charged for, but

Tavakoli’s office could not produce it.

      At trial, Tavakoli testified that on her first visit to him, Catherine’s teeth

were infected and were so loose that they were practically falling out and that

they needed to be extracted that day.          Tavakoli stated that he had referred

Catherine to a specialist for a second opinion but that she had declined the

referral. He later testified that he had not referred her to a specialist until after he

had extracted her teeth. He also admitted that one of the root canals he had

performed had been done on a healthy tooth. He testified that this had been

done to achieve a better result with the bridge and that he had discussed this

with Catherine.




                                           3
      Tavakoli also testified that the bridge he had given Catherine did not fit

properly, and so he decided to treat it as a temporary bridge. He testified that it

was not his office’s practice to contact a patient to pick up a permanent bridge.

Tavakoli also admitted that he had charged Catherine for work done on her tooth

number five, a tooth that she did not have; he stated that those charges were a

mistake.

      The Wilsons requested a jury question asking if Tavakoli performed

unnecessary dental work on Catherine for monetary gain and another asking if

Tavakoli had perpetuated fraud on Catherine primarily for his own personal

benefit. The request included a question on actual damages for negligence but

not for fraud.   The charge submitted to the jury asked whether Tavakoli

committed fraud against Catherine, but unlike the Wilsons’ requested question, it

limited the jury’s consideration to misrepresentations about Catherine’s tooth

number five. The Wilsons objected to this limitation, and the trial court overruled

the objection. Neither party objected that the charge did not contain a question

on actual damages for fraud. The charge also included a negligence question.

      The jury answered ―no‖ on the negligence question, ―yes‖ on the fraud

question, and found $3,000 in exemplary damages. Tavakoli filed a motion for a

take nothing judgment on the Wilsons’ claims, arguing that section 41.004 of the

civil practice and remedies code2 requires an award of actual damages to

support a judgment of exemplary damages. The trial court granted the motion,

      2
       Tex. Civ. Prac. & Rem. Code Ann. § 41.004 (Vernon 2008).

                                        4
and, after the trial court denied their motion to modify and motion for new trial,

the Wilsons brought this appeal.

      In their first issue, the Wilsons argue that the trial court erred by limiting the

jury’s consideration of fraud to the dental work performed on a single tooth. They

contend that the evidence supported a broad form submission on fraud

pertaining to the rest of the dental work Tavakoli performed on Catherine, which

they argue was not necessary or reasonable. To obtain reversal of a judgment

based upon an error in the trial court, the appellant must show that the error

complained of probably caused rendition of an improper judgment or probably

prevented the appellant from properly presenting the case to this court. 3

      Although the jury was asked if Tavakoli had committed fraud, the jury

charge did not include a question for damages relating to the fraud. The only

actual damages question was specifically limited to damages for negligence. If

the Wilsons objected to the trial court’s limiting the jury’s consideration to actual

damages for negligence, they did not do so on the record,4 and we are limited to

considering the record before us.5



      3
       Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d
212, 225 (Tex. 2005).
      4
         See Tex. R. Civ. P. 274 (―Any complaint as to a question, definition, or
instruction, on account of any defect, omission, or fault in pleading, is waived
unless specifically included in the objections.‖); Ford Motor Co. v. Ledesma, 242
S.W.3d 32, 43 (Tex. 2007) (stating that ―[a] party objecting to a charge must point
out distinctly the objectionable matter and the grounds of the objection‖ and that
―[f]ailure to submit a definition or instruction shall not be deemed a ground for
reversal of the judgment unless a substantially correct definition or instruction
                                          5
      Because the jury was not asked to make a finding on actual damages for

fraud, we agree with Tavakoli that the Wilsons cannot show harm. The jury

found that Tavakoli had committed fraud against the Wilsons, but because no

actual damages question was submitted, the jury did not (and could not) make a

finding of actual damages for the fraud. Accordingly, the Wilsons are in the same

position now as they would have been if a general fraud question had been

submitted to which the jury had answered ―yes‖: a positive fraud finding by the

jury with no finding of actual damages. The Wilsons do not argue that the actual

damages question should not have been limited to negligence damages or that a

separate fraud actual damages question should have been submitted, and even

if had they made such an argument, they failed to preserve it below. 6        We

therefore hold that the Wilsons cannot show that they were harmed by the trial

court’s limitation of the jury’s consideration of fraud to tooth number five, and,

accordingly, we overrule their first issue.

      In their second issue, the Wilsons argue that the trial court erred by

rendering judgment for Tavakoli when the evidence of actual damages was

conclusively established by uncontroverted evidence. The Wilsons do not argue


has been requested in writing and tendered by the party complaining of the
judgment‖).
      5
       WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 465 n.23
(Tex. App.—Houston [14th Dist.] 2005, pet. denied) (noting that an appellate
court must decide the case based solely upon the record filed).
      6
      See Tex. R. Civ. P. 274; Tex. R. App. P. 33.1; Ford Motor Co., 242
S.W.3d at 43.

                                          6
that the trial court erred by denying their motion to modify the judgment or grant a

new trial.   Instead, they argue that the trial court should not have granted

Tavokoli’s motion for judgment in the first place. In support of that argument,

they assert that (1) they were not required to submit the question to the jury

because damages of at least $500 were conclusively established by the

evidence, or, alternatively, were judicially admitted and (2) no award of actual

damages was necessary to sustain an award of exemplary damages.

      Section 41.004(a) provides that ―exemplary damages may be awarded

only if damages other than nominal damages are awarded.‖7              Prior to the

legislature’s adoption of section 41.004, the common law likewise prohibited the

recovery of exemplary damages in the absence of actual damages.8             Some

courts, however, had only required a plaintiff to produce evidence that would

support a finding of actual damages, regardless of whether actual damages were

actually awarded.9 The Wilsons urge this court to interpret section 41.004 in

accordance with those cases and to hold that because they provided

uncontroverted evidence of actual damages, the award of exemplary damages

should be upheld.



      7
       Tex. Civ. Prac. & Rem. Code Ann. § 41.004(a) (emphasis added).
      8
         Cherry v. Turner, 560 S.W.2d 794, 795–96 (Tex. Civ. App.—Austin 1978,
writ ref’d n.r.e.).
      9
      See Prudential Corp. v. Bazaman, 512 S.W.2d 85, 94 (Tex. Civ. App.—
Corpus Christi 1974, no writ) (citing cases so holding).

                                         7
      The Supreme Court of Texas has held that to recover exemplary damages,

a plaintiff must allege, prove, and secure findings on the existence and amount of

actual damages.10 That court has created a very narrow exception to this rule in

the limited context of a wrongful death action for the death of an employee

covered by worker’s compensation.        In Wright v. Gifford-Hill & Co., Inc., the

plaintiff had sued under a provision in the worker’s compensation act that

expressly allowed for exemplary damages; under that act, actual damages were

not recoverable.11    The plaintiff introduced evidence of actual damages, but,

because of the act, she could not have been awarded those damages.12 The

court held that in the interest of judicial economy, no jury finding of actual

damages was necessary to recover exemplary damages in such an action.13

The court concluded that ―it is nonsensical to require a plaintiff to plead and

submit special issues on actual damages which cannot be recovered.‖14 But the

court did nothing to abrogate the general rule than ordinarily, there must be a

finding of actual damages.15



      10
         Nabours v. Longview Sav. & Loan Ass’n, 700 S.W.2d 901, 903 (Tex.
1985).
      11
         Wright v. Gifford-Hill & Co., Inc., 725 S.W.2d 712, 714 (Tex. 1987).
      12
         Id.
      13
         Id.
      14
         Id. (emphasis added).
      15
        See, e.g., Travelers Indem. Co. of Ill. v. Fuller, 892 S.W.2d 848, 852
(Tex. 1995) (holding that plaintiff suing under the Texas wrongful death act could
                                         8
      The Wilsons argue, and we agree, that under section 41.004, the term

―awarded‖ includes an award by the trial court.16 Thus, if the trial court had

awarded the Wilsons actual damages, section 41.004 would not bar an award of

exemplary damages. But the trial court did not award any actual damages to the

Wilsons, and the Wilsons did not ask for any such award in lieu of submitting a

damages question to the jury. They did not file a motion for judgment asking for

the trial court to award $500 in actual damages.      Nor did they did file any

response or objection to Tavakoli’s motion for judgment in which he argued that

because no actual damages had been awarded, the Wilsons were not entitled to

the exemplary damages found by the jury.       Accordingly, to reverse the trial

court’s judgment based on the arguments made by the Wilsons on appeal, 17 we

would have to hold that because the Wilsons introduced evidence that they paid

$500 for work on a tooth that Catherine did not have (conduct that the jury found

was fraud) and this evidence was uncontroverted by Tavakoli, the trial court had




not recover exemplary damages when her claim for compensable damages was
barred by the worker’s compensation act).
      16
       See, e.g., Myers v. Walker, 61 S.W.3d 722, 725–26 (Tex. App.—
Eastland 2001, pet. denied) (upholding an award for actual and exemplary
damages after a bench trial).
      17
         See Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998)
(noting that an appellate court cannot reverse on unassigned error).

                                       9
a duty to sua sponte enter an award of $500 in actual damages. We decline to

so hold.18

         We acknowledge that one reason for requiring an award of actual

damages as a prerequisite to recovery of exemplary damages is that the law will

not punish conduct that does not cause injury19 and that the evidence was

uncontradicted that Catherine paid $500 for work on a tooth she did not have.

But the statute plainly requires an award of actual damages, which the Wilsons

did not receive and never asked for until after judgment when they filed their

motion to modify. The supreme court has not created an exception to section

41.004 for cases such as this one. Accordingly, we overrule the Wilsons second

issue.

         Having overruled both of the Wilsons issues, we affirm the trial court’s

judgment.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: February 10, 2011

         18
        See Mullins v. TestAmerica, Inc., 564 F.3d 386, 417 (5th Cir. 2009)
(applying Texas law and holding that exemplary damages were not recoverable
because no actual damages resulting from the defendant’s tortious conduct were
requested or awarded).
         19
          Wright, 725 S.W.2d at 714.

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