Affirmed as Modified and Opinion filed July 25, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-11-00819-CV


                         CLEMENT YENG, Appellant
                                       V.

               EVE ZOU AND JIAN ZHONG ZOU, Appellees


                   On Appeal from the 215th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2007-61716


                                OPINION

      This appeal arises out of a dispute between the owner of a company and two
partners who agreed to buy all of the company’s stock. The trial court rendered
judgment in favor of the partners and against the owner based upon a favorable
jury verdict on the partners’ claims for breach of contract, common-law fraud, and
statutory fraud under Chapter 27 of the Texas Business and Commerce Code. On
appeal, the owner challenges the legal and factual sufficiency of the evidence to
support various jury findings.    We conclude that the evidence is legally and
factually sufficient to support the jury’s first damage finding. We also conclude
that, even if the evidence is sufficient to support the jury’s second damage finding,
the partners cannot recover judgment based upon both findings and are deemed to
have elected recovery under the first finding.      We further conclude that the
evidence is legally and factually sufficient to support the statutory-fraud findings
challenged by the owner. Accordingly, we modify the trial court’s judgment to
change the amount of damages awarded to $180,000, and we affirm the trial
court’s judgment as modified.
                  I. FACTUAL AND PROCEDURAL BACKGROUND
    Appellee Eve Zou (“Eve”) and appellee Jian Zhong Zou (“James”) are former
spouses. Eve obtained an accounting degree in China before emigrating to the
United States. At the time of the transaction made the subject of this lawsuit, Eve
had worked as an accountant but was not a certified public accountant. James
obtained a bachelor’s degree in computer engineering in China and a master’s
degree in that field from the University of Southern California. During their
marriage, the Zous started an import/export business and a property-management
business. After their divorce, the Zous continued to operate these two businesses
together.
      Appellant Clement Yeng owned one hundred percent of the stock in Golden
Star Trading Co., Inc. (“Golden Star”), a Texas corporation and wholesaler of
Asian groceries in the Houston area. In late 2006, Yeng was interested in selling
his stock in Golden Star, and Eve was interested in buying an existing business.
The Zous previously had not purchased an existing business. In December 2006,
Eve was introduced to Yeng. After their initial meeting, Eve and Yeng began
negotiating a potential sale by Yeng of his stock in Golden Star. After considering
purchasing this stock with another person, Eve decided to go into business with
                                          2
James regarding the purchase of the Golden Star stock.
       The Zous met Yeng on March 5, 2007, at the office of Yeng’s attorney,
Andy Lai. The Zous and Yeng signed a written agreement that Lai had drafted
regarding the sale of Yeng’s stock in Golden Star to the Zous (“First Agreement”).
Under the First Agreement, the Zous agreed to make certain payments to Yeng and
to perform various covenants contained in the Agreement. If the Zous made all
payments and performed all covenants contained in the Agreement, it was
anticipated that the Zous would purchase Yeng’s stock two years later, in March
2009. An accounts receivable report and an accounts payable report for Golden
Star were attached to and made a part of the First Agreement. The Zous had not
seen these reports before they were presented with the First Agreement.
       Effective March 13, 2007, Eve and James entered into a written partnership
agreement regarding buying, selling, operating, and managing Golden Star.
Within a week, on March 19, 2007, Yeng and Eve signed a second written
agreement regarding the sale of Yeng’s stock in Golden Star to the Zous (“Second
Agreement”). James did not sign the Second Agreement but he testified that
anything Eve did regarding Golden Star from the effective date of their partnership
forward was done on behalf of their partnership.1 Many of the terms of the Second
Agreement are similar to the terms of the First Agreement, but there are
differences. A paragraph regarding accounts receivable and accounts payable from
the First Agreement is not contained in the Second Agreement.                       The First
Agreement contains warranties and representations from Yeng and accounts
receivable and accounts payable reports for Golden Star. The Second Agreement
does not contain any warranties and representations from Yeng or any reports


1
 On appeal, Yeng asserts that based upon the Zous’ theory of the case and the evidence that they
were partners when Eve signed the Second Agreement, this court must analyze this appeal on the
basis that Eve signed the Second Agreement on behalf of the partnership.
                                               3
regarding the financial status of Golden Star. The Second Agreement contains a
merger clause.
       After she signed the Second Agreement, Eve took over management of
Golden Star. Accounting discrepancies came to light. Accounts receivables were
discovered that were not reflected in the accounts receivable report contained in
the First Agreement. The Zous tried for several months to operate Golden Star’s
business but encountered various problems. By September 2007, the Zous had
stopped trying to manage Golden Star’s business and were pursuing other business
interests.
       The Zous filed suit against Yeng and other defendants in October 2007.
Yeng also filed suit against the Zous, and the suits were consolidated. The Zous
asserted various claims against Yeng, including claims for breach of contract,
fraudulent inducement, common-law fraud, and statutory fraud. The Zous also
asserted various tort claims against Andy Lai and The Law Office of Andy Lai and
Associates. Yeng asserted claims against the Zous, including claims for breach of
contract. Following a trial, the jury rendered its verdict as follows:
       Eve, James, and Yeng failed to comply with “the agreement.”

       Eve and James’s failure to comply was excused.

       Yeng’s failure to comply was not excused.

       Yeng committed common-law fraud against both Eve and James.

       Yeng committed statutory fraud against both Eve and James.

       The Zous paid $180,000 to Yeng and this sum of money, if paid now, would
       fairly and reasonably compensate the Zous for their losses resulting from the
       occurrence in question.



                                           4
      The difference between the value of the accounts payable as represented at
      the time of the sale of Golden Star and the actual value at the time the Zous
      took possession of the business is $170,600 and this sum of money, if paid
      now, would fairly and reasonably compensate the Zous for their losses
      resulting from the occurrence in question.
      The jury also found in favor of Lai as to all liability questions submitted for
claims against Lai. The trial court rendered judgment in favor of the Zous and
against Yeng for $350,600 plus awards of reasonable and necessary attorney’s
fees. The trial court denied Yeng’s motion for judgment notwithstanding the
verdict, motion to disregard jury findings, and motion for new trial. On appeal,
Yeng challenges the legal and factual sufficiency of various jury findings.

                            II. STANDARDS OF REVIEW
      When reviewing the legal sufficiency of the evidence, we consider the
evidence in the light most favorable to the challenged finding and indulge every
reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d
802, 823 (Tex. 2005). We must credit favorable evidence if reasonable jurors
could and disregard contrary evidence unless reasonable jurors could not. See id. at
827. We must determine whether the evidence at trial would enable reasonable and
fair-minded people to find the facts at issue. See id. Jurors are the sole judges of
witness credibility and the weight to give to testimony. See id. at 819.
      When reviewing a challenge to the factual sufficiency of the evidence, we
examine the entire record, considering both the evidence in favor of, and contrary
to, the challenged finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,
406–07 (Tex. 1998). After considering and weighing all the evidence, we set aside
the fact finding only if it is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust. Id. The jury is the sole judge of the credibility
of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S.

                                          5
Tex. v. Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied). We may not substitute our own judgment for that of the jury, even if
we would reach a different answer on the evidence. Maritime Overseas Corp., 971
S.W.2d at 407. The amount of evidence necessary to affirm a judgment is far less
than that necessary to reverse a judgment. Pascouet, 61 S.W.3d at 616.
                            III. ISSUES AND ANALYSIS
A.    Did the trial court err in awarding the Zous recovery based upon both
      of the jury’s damage findings?

      In his first issue, Yeng asserts that the evidence is legally and factually
insufficient to support the jury’s findings in response to parts (a) and (d) of
Question 4A, the damages question. In his second issue, Yeng asserts that the trial
court erred in rendering judgment in the Zous’ favor based upon both damage
findings. The trial court submitted a single damage question, Question 4A for the
claims for breach of contract, common-law fraud, and statutory fraud. In Question
4A, the trial court asked the jury what sum of money, if paid now in cash, would
fairly compensate the Zous for their losses, if any, resulting from the occurrence in
question. Parts (a) and (d) of Question 4A submitted two different measures of
damages. At the charge conference, no party objected to the form of this damages
question. Therefore, this court measures the sufficiency of the evidence using the
charge given. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that
appellate court could not review the sufficiency of the evidence based on a
particular legal standard because that standard was not submitted to the jury and no
party objected to the charge on this ground or requested that the jury be charged
using this standard); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201
S.W.3d 272, 283–86 (Tex. App.—Houston [14th Dist.] 2006, no. pet.) (reviewing
sufficiency of evidence based on unobjected-to jury instruction and rejecting
various arguments based on different legal standards). In his argument under the
                                          6
first issue, Yeng sets forth what he contends are the two potentially proper
measures of damages and then argues that the evidence is insufficient to show any
damage under each of these measures. But, none of the measures articulated by
Yeng on appeal were submitted to the jury, and no party objected to the damages
question. Therefore, these measures of damages are not the standard by which we
measure the sufficiency of the jury’s damage findings. See Osterberg, 12 S.W.3d
at 55; Hirschfeld Steel Co., 201 S.W.3d at 283–86.
      In response to part (a) of Question 4A, the jury found $180,000 in damages
based upon the following measure of damages: “[t]he money paid by James Zou
and/or Eve Zou to Clement Yeng.” The record contains uncontroverted evidence
that the Zous paid Yeng $190,000, and thus there is evidence supporting a finding
that the Zous paid Yeng the lower amount of $180,000. Yeng does not assert or
show how the evidence is insufficient to support a finding that the Zous paid Yeng
$180,000.    Under the applicable standards of review, we conclude that the
evidence is legally and factually sufficient to support the jury’s finding in answer
to part (a) of Question 4A. See Li Li v. 1821 West Main Development, LLC, No.
14-10-01227-CV, 2011 WL 5926679, at *5–6 (Tex. App.—Houston [14th Dist.]
Nov. 29, 2011, pet. denied) (mem. op.). Accordingly, we overrule Yeng’s first
issue as to the damage finding in response to part (a) of Question 4A.

      In response to part (d) of Question 4A, the jury found $170,600 in damages
based upon the following measure of damages: “[t]he difference between the value
of the accounts payable as represented at the time of the sale of [Golden Star] and
the actual value at the time the Zous took possession of the business.”         We
presume, without deciding, that the evidence is legally and factually sufficient to
support the jury’s damage finding in response to part (d) of Question 4A.



                                         7
       Though it is limited to accounts payable and arguably is not a correct
statement of the benefit-of-the-bargain or expectancy measure of damages,2 the
measure of damages submitted in part (d) of Question 4A is a benefit-of-the-
bargain or expectancy measure of damages, which is designed to restore the
injured party to the economic position it would have occupied had the contract
been performed or had the representation been truthful. See Leyendecker &
Assocs., Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex. 1984); Parkway Dental
Assocs., P.A. v. Ho & Huang Properties, L.P., 391 S.W.3d 596, 607–08 (Tex.
App.—Houston [14th Dist.] 2012, no pet.); Mays v. Pierce, 203 S.W.3d 564, 577–
78 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).3 Even though it is limited
to the money the Zous paid to Yeng and arguably is not a correct statement of the
out-of-pocket or reliance measure of damages, the measure of damages submitted
in part (a) of Question 4A is an out-of-pocket or reliance measure of damages,
which is designed to put the injured party in as good an economic position as it
would have occupied had the contract not been made or had the injured party not
been entangled in the transaction involving the fraud. See Leyendecker & Assocs.,
Inc., 683 S.W.2d at 373; Parkway Dental Assocs., P.A., 391 S.W.3d at 607–08;

2
 As discussed above, by failing to object at the charge conference, Yeng waived any objection
he may have had to the propriety of the measures of damages contained in the jury charge. See
Osterberg, 12 S.W.3d at 55; Hirschfeld Steel Co., 201 S.W.3d at 283–86.
3
  The Zous assert that the measure of damages submitted in part (d) of Question 4A is an out-of-
pocket or reliance measure of damages. But, in a tort context, the Supreme Court of Texas has
stated that “the ‘benefit of the bargain’ measure . . . allows the plaintiff to recover the difference
between the value as represented and the actual value received.” Leyendecker & Assocs., Inc.,
683 S.W.2d at 373. This language is similar to the language of the measure of damages
submitted in part (d) of Question 4A. See id. If buyers purchased the stock of a company in
reliance upon a misrepresentation that the company’s accounts payable were lower than they
actually were, awarding the buyers the purchase price they paid for the stock in addition to the
amount by which the payables were understated would be inconsistent and potentially would put
them in a better position than if no misrepresentation had occurred.



                                                  8
Mays, 203 S.W.3d at 577–78; Foley v. Parlier, 68 S.W.3d 870, 884–85 (Tex.
App.—Fort Worth 2002, no pet.).
       Recovering both benefit-of-the-bargain or expectancy damages and out-of-
pocket or reliance damages for the same loss is inconsistent and impermissible
because it is a double recovery. See Waite Hill Servs., Inc. v. World Class Metal
Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998); Leyendecker, 683 S.W.2d at 373;
Foley, 68 S.W.3d at 882–83; Hendon v. Glover, 761 S.W.2d 120, 122 (Tex.
App.—Beaumont 1988, writ denied).                 Yeng preserved error regarding this
complaint by his post-verdict motion raising this issue. See Waite Hill Servs., Inc.,
959 S.W.2d at 184; Royce Homes, L.P. v. Humphrey, 244 S.W.3d 570, 581–82
(Tex. App.—Beaumont 2008, pet. denied). Because the Zous did not designate
which of the two possible damage findings they wished to elect, the trial court
should have rendered judgment on the finding in response to part (a) of Question
4A, because it yielded the greater recovery. See Birchfield v. Texarkana Mem’l
Hosp., 747 S.W.2d 361, 367 (Tex. 1987); Hatfield v. Solomon, 316 S.W.3d 50, 59
(Tex. App.—Houston [14th Dist.] 2010, no pet.). By rendering judgment awarding
the Zous both damage amounts instead of the greater of the two, the trial court
erred. See Waite Hill Servs., Inc., 959 S.W.2d at 184; Leyendecker, 683 S.W.2d at
373; Foley, 68 S.W.3d at 882–83; Hendon, 761 S.W.2d at 122. Accordingly, we
sustain Yeng’s second issue and modify the trial court’s judgment to delete the
damage award based upon the damage finding in response to part (d) of Question
4A.4




4
 We need not and do not address Yeng’s first issue as to the damage finding in response to part
(d) of Question 4A.


                                              9
B.    Is the evidence legally and factually sufficient to support the jury’s
      finding that Yeng made a false representation of a past or existing
      material fact?

      Under his fourth issue, Yeng asserts that the evidence is legally and factually
insufficient to support the jury’s finding that Yeng made “a false representation of
a past or existing material fact” in response to Question 3 regarding liability for
statutory fraud. At the charge conference, no party objected to the form of this
question. Therefore, this court measures the sufficiency of the evidence using the
charge given. See Osterberg, 12 S.W.3d at 55 (Tex. 2000); Hirschfeld Steel Co.,
201 S.W.3d at 283–86. On the day the parties signed the First Agreement, Yeng
gave the Zous the accounts receivable report and the accounts payable report for
Golden Star that were contained in that document. Presuming that the Zous did not
review these reports on that day, there is evidence upon which the jury reasonably
could have concluded that the Zous reviewed these reports after the First
Agreement was signed and before the Second Agreement was signed two weeks
later. These reports purported to state Golden Star’s accounts receivable and
accounts payable as of February 22, 2007. There was evidence at trial that would
allow reasonable jurors to conclude that these reports contained false
representations of Golden Star’s accounts receivable and accounts payable that
were material to the Zous’ decision to enter into the Second Agreement. In
addition, in the First Agreement, Yeng made the following representations and
warranties:

      (c) Financial Status. [Yeng] has fully disclosed the financial status of
      [Golden Star’s] financial disclosure [sic]. [Yeng] further represents
      that there are no liabilities or obligations of [Golden Star], accrued,
      absolute, contingent, inchoate, or otherwise that arose out of or relate
      to any matter, act, or omission occurring from the date of [Yeng’s]
      disclosure to the date of [the First Agreement], other than liabilities or
      obligations incurred in the normal course of business.

                                         10
      ...
      (j) Full Disclosure. No representation, warranty, or covenant made to
      [the Zous] in this Agreement nor any document, certificate, exhibit, or
      other information given or delivered to [the Zous] pursuant to this
      Agreement contains or will contain any untrue statement of a material
      fact, or omits or will omit a material fact necessary to make the
      statements contained in this Agreement or the matters disclosed in the
      related documents, certificates, information, or exhibits not
      misleading.

      On appeal, Yeng argues that the accounts receivable report and the accounts
payable report cannot be representations because their purpose in the First
Agreement was to identify the accounts that the Zous agreed to assume.
Presuming, without deciding, that these reports served this purpose in the First
Agreement, this would not change the fact that Yeng gave these reports to the Zous
the day they signed the First Agreement, and that these reports purport to state
Golden Star’s accounts receivable and accounts payable as of February 22, 2007.
In addition, as shown in the above-quoted excerpt, Yeng represented in the First
Agreement that these reports did not contain any untrue statement of a material fact
or any omission of a material fact necessary to make the statements contained in
the reports not misleading.

      Yeng also argues that the merger clause in the Second Agreement precludes
as a matter of law any misrepresentation related to the First Agreement. That
merger clause states:

      (d) Entire Agreement. This Agreement, together with any documents
      and exhibits given or delivered pursuant to this Agreement, constitutes
      the entire agreement between the parties to this Agreement. No party
      shall be bound by any communications between them on the subject
      matter of this Agreement unless the communication is (a) in writing,
      (b) bears a date contemporaneous with or subsequent to the date of
      this Agreement, and (c) is agreed to by all parties to this Agreement.

                                        11
       On execution of this Agreement, all prior agreements or
       understandings between the parties shall be null and void.

Under the merger clause, the Second Agreement, once effective, takes the place of
the First Agreement, and the First Agreement is no longer a valid contract.
Nonetheless, the superseding of the First Agreement does not mean that the reports
Yeng gave the Zous cannot form the basis of a claim that the Zous were
fraudulently induced to enter into the Second Agreement based upon material
misrepresentations contained in these reports regarding Golden Star’s accounts
receivable and accounts payable.5 See Italian Cowboy Partners, Ltd. v. Prudential
Ins. Co. of America, 341 S.W.3d 323, 332 (Tex. 2011) (stating that standard
merger clause does not bar fraudulent-inducement claim).6 In addition, even
presuming for the sake of argument that the Second Agreement vitiated any
express material misrepresentations by Yeng contained in the First Agreement, the
Second Agreement did not take effect until the Zous entered into it. Thus, even
under this presumption, these material misrepresentations were in effect before the
execution of the Second Agreement, so the Zous could have relied upon them in
deciding to enter into the Second Agreement.7


5
  Thus, even if, under the Second Agreement, the Zous no longer had any contractual obligation
to assume any of Golden Star’s accounts, this change in the Zous’ contract obligations did not
change Yeng’s potential fraudulent-inducement liability based upon material misrepresentations
in the reports that he gave the Zous the day they signed the First Agreement.
6
  Yeng cites Spring Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 870–71
(Tex. App.—Austin 2006, pet. granted, judgm’t vacated w.r.m.). We conclude that the part of
this opinion upon which Yeng relies conflicts with and was abrogated by the Supreme Court of
Texas in Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of America, 341 S.W.3d 323, 331–
36 (Tex. 2011).
7
  Yeng also asserts that, by finding that the Zous failed to prove any damages in response to
damage questions regarding inventory and the accounts receivable, the jury found no actionable
representation was made by Yeng regarding Golden Star’s inventory and accounts receivable.
The proper interpretation of the jury’s answers to parts (b) and (c) of Question 4A is that the jury
                                                12
       Considering the evidence in the light most favorable to the challenged
finding, indulging every reasonable inference that would support it, crediting
favorable evidence if reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not, the trial evidence would enable reasonable and
fair-minded people to find that Yeng made “a false representation of a past or
existing material fact” in response to Question 3. See City of Keller, 168 S.W.3d at
823, 827; Energy Maintenance Services Group I, LLC v. Sandt, No. 14-09-00907-
CV, —S.W.3d,—,—, 2012 WL 1038043, at *5–7 (Tex. App.—Houston [14th
Dist.] Mar. 29, 2012, pet. denied). Examining the entire record, considering both
the evidence in favor of, and contrary to, the challenged finding, and considering
and weighing all the evidence, we conclude that the jury’s finding that Yeng made
“a false representation of a past or existing material fact” is not so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. See
Maritime Overseas Corp., 971 S.W.2d at 406–07; Energy Maintenance Services
Group I, LLC,—S.W.3d at —, 2012 WL 1038043, at *5–8.                           Therefore, the
evidence is legally and factually sufficient to support this jury finding.8




found the Zous did not prove by a preponderance of the evidence that they sustained any damage
under these two measures of damages; these findings do not constitute findings by the jury that
no actionable representation was made by Yeng regarding Golden Star’s inventory and accounts
receivable. See Kormanik v. Seghers, 362 S.W.3d 679, 689–90 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied).
8
 In a post-submission letter brief, Yeng asserts that the Zous may not recover based upon alleged
misrepresentations in these two reports because, in Section 7(b) of the First Agreement, the Zous
released all claims related to execution of the First Agreement. Yeng did not raise this argument
in his opening brief, so we need not and do not address it. See Continental Carbon Co. v.
National Union Fire Ins. Co. of Pittsburgh, No. 14-11-00162-CV, 2012 WL 1345748, at *4
(Tex. App.—Houston [14th Dist.] Apr. 17, 2012, no pet.).

                                               13
C.    Is the evidence legally and factually sufficient to support the jury’s
      finding that the Zous relied upon a false representation by Yeng?

      Under his fourth issue, Yeng also asserts that the evidence is legally and
factually insufficient to support the jury’s finding that the Zous relied upon a false
representation by Yeng in response to Question 3 regarding liability for statutory
fraud. At the charge conference, no party objected to the form of this question.
Therefore, we measure the sufficiency of the evidence using the charge given. See
Osterberg, 12 S.W.3d at 55 (Tex. 2000); Hirschfeld Steel Co., 201 S.W.3d at 283–
86. The record contains the following trial testimony from James:
      [James’s Attorney]:        And likewise, if you had known that the
                                 accounts receivable, as they were listed for
                                 you in March 5th, were different than what
                                 they really were, would you have purchased
                                 this business?

      [James]:                   No.
      [James’s Attorney]:        And are the accounts payable different than
                                 what was represented to you, [sic] if you had
                                 known that, would you have purchased the
                                 business?

      [James]:                   No.


Considering the evidence in the light most favorable to the challenged finding,
indulging inferences and crediting and disregarding evidence in accordance with
the governing standard of review, we conclude the trial evidence would enable
reasonable and fair-minded people to find that the Zous relied upon a false
representation by Yeng. See City of Keller, 168 S.W.3d at 823, 827. Examining
the entire record, considering both the evidence in favor of, and contrary to, the
challenged finding, and considering and weighing all the evidence, we conclude


                                         14
that a finding that the Zous relied upon a false representation by Yeng is not so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust.9 See Maritime Overseas Corp., 971 S.W.2d at 406–07. Therefore, the
evidence is legally and factually sufficient to support this jury finding.10

       Having rejected all of Yeng’s arguments regarding the Zous’ statutory-fraud
claim under his fourth issue, we overrule this issue as to the statutory-fraud claim.

                                       IV. CONCLUSION
       The evidence is legally and factually sufficient to support the jury’s damages
finding in answer to part (a) of Question 4A. Presuming, without deciding, that the
evidence is legally and factually sufficient to support the jury’s damages finding in
answer to part (d) of Question 4A, the trial court erred in awarding the Zous
recovery under both damage findings because these findings were based upon
inconsistent measures of damages. In light of the Zous’ failure to elect between
these two damage findings, the trial court should have rendered judgment awarding
the Zous recovery only on the finding in response to part (a) of Question 4A,
because it yielded the greater recovery. All of Yeng’s arguments under the fourth
issue regarding the Zous’ statutory-fraud claim lack merit. Because we can affirm
the trial court’s judgment based upon the statutory-fraud claim, we need not and do

9
  Yeng also asserts that the evidence is legally and factually sufficient to support a finding that
any such reliance was justifiable. Presuming for the sake of argument that reliance in a statutory-
fraud claim must be justifiable, the jury charge did not require that the reliance be justifiable;
therefore, in measuring the sufficiency of the evidence, we do not consider whether there is
sufficient evidence of justifiable reliance. See Energy Maintenance Services Group I, LLC, —
S.W.3d at —,2012 WL 1038043, at *7.
10
  Yeng contends that the Zous’ fraud claims are barred by the economic-loss rule and sound
only in contract. This assertion lacks merit as to the Zous’ claims for fraudulent inducement.
See Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 417 (Tex. 2011); Formosa
Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998).



                                                15
not address Yeng’s third issue regarding the breach-of-contract claim or his
arguments under the fourth issue regarding the Zous’ common-law-fraud claim.
Accordingly, we modify the trial court’s judgment so that in it the Zous recover
from Yeng actual damages in the total amount of $180,000, and we affirm the trial
court’s judgment as modified.




                                       /s/    Kem Thompson Frost
                                              Justice


Panel consists of Justices Frost, Christopher, and Jamison.




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