                                                                                    ACCEPTED
                                                                               01-14-00650-cv
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                          1/22/2015 2:02:04 PM
                                                                           CHRISTOPHER PRINE
                                                                                        CLERK

                 Cause No. 01-14-00650-CV
           ___________________________________
                                                             FILED IN
                                                      1st COURT OF APPEALS
                  IN THE COURT OF APPEALS                 HOUSTON, TEXAS
               FOR THE FIRST DISTRICT OF TEXAS        1/22/2015 2:02:04 PM
                       HOUSTON, TEXAS                 CHRISTOPHER A. PRINE
                                                              Clerk
           ___________________________________

            OSCAR D. TAYLOR AND DENISE TAYLOR
                          Appellants/Cross-Appellees,
                                v.

          ADRIENNE A. HENNY AND DAMON K. HENNY
                          Appellees/Cross-Appellants.
           ___________________________________

On Appeal from the 152nd Judicial District of Harris County, Texas
                    Cause No. 2008-40075
           ___________________________________

         RESPONSE OF CROSS-APPELLEES/APPELLANTS
           ___________________________________

                             Douglas Pritchett, Jr.
                             State Bar No. 24007877
                             dpritchett@johnsontrent.com
                             JOHNSON, TRENT, WEST & TAYLOR, L.L.P.
                             919 Milam Street, Suite 1700
                             Houston, Texas 77002
                             (713) 222-2323 (Telephone)
                             (713) 222-2226 (Facsimile)

                             ATTORNEY FOR APPELLANTS
                             OSCAR D. TAYLOR AND
                             DENISE TAYLOR
             STATEMENT CONCERNING ORAL ARGUMENT
      Counsel for Appellants/Cross-Appellees agree that no argument is needed on

the cross appeal. Cross-Appellants have waived error on all of the alternative

grounds for affirmance on their claims for tortious interference, the application of

the statute of limitations to Damon Henny’s claims, and lost profits. There is no

need for the Court to even consider the merits of the arguments that have been

presented or of Cross-Appellees’ arguments on the merits.




                                         i
                                         TABLE OF CONTENTS

                                                                                                                     Page
STATEMENT CONCERNING ORAL ARGUMENT ..............................................i

INDEX OF AUTHORITIES...................................................................................... v

CROSS-POINTS .......................................................................................................ix
STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 4
ARGUMENT ............................................................................................................. 5

I.       FAILURE TO CHALLENGE ALL POSSIBLE GROUNDS FOR
         AFFIRMANCE IS WAIVER, AND THE CHALLENGED RULINGS
         MUST BE AFFIRMED ......................................................................................... 5

         A.       The Taylors Challenged the Jury Verdict for
                  Tortious Interference with Contract on Multiple
                  Grounds ................................................................................................. 7

         B.       Even if There Were Some Evidence of Lost
                  Profits, the Verdict Still Must Be Disregarded on
                  the Other, Unchallenged Grounds ......................................................... 8

         C.       The Judgment Against Damon Henny Must Be
                  Affirmed on the Alternative, Unchallenged
                  Grounds ............................................................................................... 10

II.      IF THE MERITS OF THE HENNYS’ APPELLATE ISSUES ARE
         CONSIDERED, THE JUDGMENT STILL MUST BE AFFIRMED .............................. 11

         A.       The Tortious Interference Claim Was Properly
                  Dismissed ............................................................................................ 11

                  1.       There is no evidence of intentional
                           interference .............................................................................. 11



                                                            ii
             2.       Causing a person to exercise a contractual
                      right is not interference ............................................................. 13

             3.       There is no evidence that the Hennys
                      suffered damages as a result of the alleged
                      interference................................................................................ 14

       B.    Damon Henny’s Claims Were Not Asserted until
             Trial, Long after Limitations Had Expired ......................................... 15

       C.    Adrienne Henny did Not Establish Lost Profits
             with the Necessary Specificity ............................................................ 18

             1.       There is legally insufficient evidence of lost
                      profits ........................................................................................ 18

             2.       Even if the Taylors should have executed
                      the assignment, the Asset Purchase
                      Agreement still would have failed ............................................ 20

III.   ALTERNATIVELY, THE JUDGMENT SHOULD BE AFFIRMED
       ON THE OTHER GROUNDS SUBMITTED BY THE TAYLORS ................................ 23

       A.    Plaintiffs’ Tortious Interference Claims Are Not
             Viable .................................................................................................. 23

             1.       Plaintiffs’ claims sound in contract, not in
                      tort ............................................................................................. 23

             2.       The Hennys had no standing to assert the
                      tortious interference claim ........................................................ 24

       B.    None of Damon Henny’s Claims Are Viable ..................................... 25

             1.       Damon Henny did not plead any claims ................................... 25

             2.       There was no breach; the Separation
                      Agreement did not require the Taylors to
                      sign the Weingarten documents ................................................ 26


                                                       iii
                   3.       There is no causation when the harm would
                            have occurred regardless of the Taylors’
                            actions ....................................................................................... 28

                   4.       Because the Bayou Cafe’s option expired
                            before the Taylors were asked to execute the
                            documents, there is no causation .............................................. 29

                   5.       Damon Henny could not establish damages
                            for loss of credit or for mental anguish ..................................... 29

         C.        Adrienne Henny Cannot Recover the Lost Profits
                   Verdict ................................................................................................. 31

IV.      ALTERNATIVELY, THERE IS NO FACTUALLY SUFFICIENT
         EVIDENCE SUPPORTING THE JURY’S VERDICT, AND A NEW
         TRIAL IS NECESSARY ...................................................................................... 32

         A.        There Was No Factually Sufficient Evidence that
                   the Taylors Tortiously Interfered with the Asset
                   Purchase Agreement ............................................................................ 33

         B.        There Was No Factually Sufficient Evidence to
                   Support the Jury’s Verdict of Lost Profits .......................................... 34

         C.        There Was No Factually Sufficient Evidence to
                   Support the Jury’s Verdict in Favor of Damon
                   Henny .................................................................................................. 35

PRAYER .................................................................................................................. 35
CERTIFICATE OF COMPLIANCE ....................................................................... 38

CERTIFICATE OF SERVICE ................................................................................ 38




                                                             iv
                                   INDEX OF AUTHORITIES

                                                                                                      Page(s)
Cases
$27,877.00 Current Money of U.S. v. State,
   331 S.W.3d 110 (Tex. App.—Fort Worth 2010, pet. denied) ......................31, 32

ACS Investors, Inc. v. McLaughlin,
  943 S.W.2d 426 (Tex. 1997) ........................................................................13, 14

Control Solutions, Inc. v. Gharda USA, Inc.,
  394 S.W.3d 127 (Tex. App.—Houston [1st Dist.] 2012, pet. filed) .................. 17

Cram Roofing Co., Inc. v. Parker,
  131 S.W.3d 84 (Tex. App.—San Antonio 2003, no pet.) .................................. 17

Crawford v. Ace Sign, Inc.,
  917 S.W.2d 12 (Tex. 1996)................................................................................. 24
Delgado v. Methodist Hosp.,
  936 S.W.2d 479 (Tex. App.—Houston [14th Dist.] 1996, no writ) ................... 30

DeWitt County Elec. Coop. v. Parks,
  1 S.W.3d 96 (Tex. 1999)..................................................................................... 23
Employees Retirement Sys. of Tex. v. Putnam, LLC,
  294 S.W.3d 309 (Tex. App.—Austin 2009, no pet.) ....................................21, 28
ERI Consulting Engineers, Inc. v. Swinnea,
  318 S.W.3d 867 (Tex. 2010) ..................................................................19, 20, 22

Exxon Mobil Corp. v. Kinder Morgan Oper. L.P.,
   192 S.W.3d 120 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ................... 23

First Nat’l Bank v. Levine,
   721 S.W.2d 287 (Tex. 1986) .............................................................................. 15

Holt Atherton Indus., Inc. v. Heine,
  835 S.W.2d 80 (Tex. 1992)................................................................................. 19




                                                       v
Jackson v. Henderson,
   2004 WL 1631394 (Tex. App.—Houston [1st Dist.]
   July 22, 2003, no pet.)...................................................................................21, 28

Kenneth H. Hughes Interests, Inc. v. Westrup,
  879 S.W.2d 229 (Tex. App.—Houston [1st Dist.] 1994,
  writ denied) ......................................................................................................... 24

Lopez v. Muñoz, Hockema & Reed, L.L.P.,
  22 S.W.3d 857 (Tex. 2000)................................................................................. 16

MasTex N. Am., Inc. v. El Paso Field Servs., L.P.,
  317 S.W.3d 431 (Tex. App.—Houston [1st Dist.] 2010),
  rev’d on other grounds, 389 S.W.3d 802 (Tex. 2012) ..................................6, 7, 8
Mead v. Johnson Group, Inc.,
  615 S.W.2d 685 (Tex. 1981) .............................................................................. 28
Milestone Props., Inc. v. Federated Metals Corp.,
   867 S.W.2d 113 (Tex. App.—Austin 1993, no writ) ......................................... 17

Moore v. Memorial Hermann Hosp. Sys.,
  140 S.W.3d 870 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ................... 31

Nall v. Plunkett,
  404 S.W.3d 552 (Tex. 2013) ..............................................................5, 6, 8, 9, 10
Provident Am. Ins. Co. v. Casteneda,
   988 S.W.2d 189 (Tex. 1998) .............................................................................. 30
Ritchie v. Rupe,
   443 S.W.3d 856 (Tex. 2014) .............................................................................. 34

Saenz v. Fidelity & Guar. Ins. Underwriters,
   925 S.W.2d 607 (Tex. 1996) .............................................................................. 15
Singh v. Duane Morris, L.L.P.,
   338 S.W.3d 176 (Tex. App.—Houston [14th Dist.] 2011,
   pet. denied) .......................................................................................................... 24
Soukup v. Sedgwick Claims Mgmt. Servs.,
   2012 WL 3134223 (Tex. App.—Houston [1st Dist.] Aug. 2, 2012,
   pet. denied) .......................................................................................................... 30

                                                             vi
Southwestern Bell Tel. Co. v. DeLanney,
   809 S.W.2d 493 (Tex. 1991) .............................................................................. 23

Southwestern Bell Tel. Co. v. John Carlo Tex., Inc.,
   843 S.W.2d 470 (Tex. 1992) .............................................................................. 12

St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co.,
    974 S.W.2d 51 (Tex. 1998)................................................................................. 30

State Farm Fire & Cas. Co. v. Morua,
   979 S.W.2d 616 (Tex. 1998) .............................................................................. 32

Stine v. Stewart,
   80 S.W.3d 586 (Tex. 2002)................................................................................. 15

Texas Instruments, Inc. v. Teletron Energy Mgmt.,
   877 S.W.2d 276 (Tex. 1994) .............................................................................. 19

Tiller v. McLure,
    121 S.W.3d 709 (Tex. 2003) ..................................................................32, 33, 34
Univ. of Tex. Health Sci. Ctr. at San Antonio v. Bailey,
  332 S.W.3d 395 (Tex. 2011) .............................................................................. 17

Voss Road Exxon LLC v. Vlahakos,
  2011 WL 2623989 (Tex. App.—Houston [1st Dist.]
  June 30, 2011, no pet.) ............................................................................22, 24, 29
Wingate v. Hajdik,
  795 S.W.2d 717 (Tex. 1990) ........................................................................22, 24

Statutes
TEX. BUS. ORG. CODE § 2.101 ................................................................................. 25

TEX. BUS. ORG. CODE § 3.103 .................................................................................. 13

TEX. CIV. PRAC. & REM. CODE §§ 16.003(a), 16.051 .............................................. 15

Rules
TEX. R. APP. P. 38.1(f) ............................................................................................... 5
TEX. R. APP. P. 44.1(b) ............................................................................................. 34

                                                          vii
TEX. R. CIV. P. 193.6 ................................................................................................ 32
TEX. R. CIV. P. 193.6(a) ........................................................................................... 31

TEX. R. CIV. P. 194 ................................................................................................... 31




                                                          viii
                         CROSS-POINTS
1.   The Hennys have waived consideration of the Taylors’ alternative
     grounds presented in the motion for judgment notwithstanding the
     verdict as to tortious interference, the claims by Damon Henny, and
     the lost profits damages.
2.   The judgment dismissing the tortious interference claims, all of
     Damon Henny’s claims, and Adrienne Henny’s claim for lost profits
     should be affirmed on the merits of the Taylors’ alternative grounds
     presented in the motion for judgment notwithstanding the verdict.

3.   There is factually insufficient evidence to support the jury’s verdict
     finding tortious interference and damages resulting from such
     interference.

4.   There is factually insufficient evidence to support the jury’s verdict of
     lost profits by Adrienne Henny.
5.   There is factually insufficient evidence to support the jury’s verdict in
     favor of Damon Henny.




                                 ix
                           STATEMENT OF FACTS
      The sticking point in this dispute was the lease for the Kirby location of

what became the Bayou Cafe. Cayennes Restaurant, Inc. (“Cayennes”) signed a

five year lease on the Kirby location on November 10, 2003. DX4:10RR2. It was

not a ten year lease, and it was set to expire in early 2009. Id. The ten year lease

mentioned by the Hennys in their statement of facts was the lease for the FM 1960

location. DX2:8RR2 (primary address is 4551 FM 1960 West).

      There is no disagreement that in 2005, the Hennys and the Taylors fell into a

dispute about Denise Taylor’s management of Cayennes Restaurants. There was a

genuine disagreement concerning the facts of that dispute as follows. The Hennys

claim that Denise Taylor, who quit her job to manage the restaurants, gave herself

a raise without their knowledge. The Taylors pointed out that Adrienne Henny

signed the paychecks and, therefore, must have approved it either explicitly or

tacitly or, at the very least, been aware of it and had not objected. 3RR129-31.

The Hennys and Taylors resolved this dispute in the Separation Agreement.

PX2:7RR2-4.

      The Hennys would divert this Court into jury argument. They attack Denise

Taylor’s reputation concerning the 2005 dispute (1) that was resolved in the

Separation Agreement; (2) that could not have been litigated in this case not only

because it had been resolved but also because it was far beyond any applicable


                                         1
statute of limitations; and (3) about which no fact findings were made by or

presented to the jury. The facts of the 2005 dispute have no relevance here.

      What is relevant here are the terms of the 2005 Separation Agreement.

Those terms are best understood by reading the actual language of the Agreement,

not the paraphrased version set out in the Hennys’ statement of facts. Thus, there

was no agreement to “work together,” and “work with all third parties to effectuate

these transfers.” Cross-Appellants’ Brief at 9. Rather, each party agreed to go

their own separate ways:

      Oscar and Denise Taylor will operate, manage and own Cayenne’s
      Restaurant located on Woodforest Boulevard without interference
      from any other party. Damon and Adrienne Henny will operate
      manage and own Cayenne’s Restaurant located on Kirby and the
      Cayenne’s Restaurant located at FM 1960 without interference from
      any party.

      ...

      [A]ll administrative changes . . . will be completed by February 1,
      2006.
      ...

      After March 31, 2006 no party will use the Cayenne’s Restaurant
      name, identity or logo in any form.

      ...

      [A]ll parties will assume operation, management, administration and
      ownership of the respective restaurants as indicated herein upon
      approval of this document or 12:00 a.m. on January 18, 2006,
      whichever is first.
PX1:7RR2.


                                         2
       Contrary to this agreement, the Bayou Cafe (and the Hennys) continued to

use the Cayennes name by operating under the original leases for the Kirby and

FM 1960 locations through 2008. 3RR89; DX2:8RR2; DX4:10RR2. Rather than

“effectuat[ing] the final separation,” see Cross-Appellants’ Brief at 11, the Hennys

proposal would have extended the use of the Cayennes’ name for five more years.

DX17:10RR69, 80. That the Hennys failed to comply with their obligation to

operate under their own leases came home to roost in 2008 when they tried to sell

their business.

       The Hennys’ discussion of damages is either intentionally vague (as is the

case of the settlement of the AdvanceMe, Sysco, San Antonio Federal Credit

Union, and Weingarten claims), or it is unsupported by a record cite (as is the case

of the alleged but not proven $251,814.33 claim by JPMorgan Chase Bank).

Cross-Appellants Br. at 13. The Hennys claim that they spent money from their

retirement accounts but, again, no amount appears in the record. In short, the

Hennys said they were damaged; they talked about categories of damages, but they

never tallied up an amount that would support the jury’s verdict in the Record or in

their brief to this Court.




                                         3
                      SUMMARY OF THE ARGUMENT
      The Hennys challenge (1) the dismissal of their tortious interference claim;

on evidentiary grounds; (2) the dismissal of Damon Henny’s claims on limitations

grounds; and (3) the dismissal of Adrienne Henny’s claim for lost profits on

evidentiary grounds. In the trial court, the Taylors challenged these claims on

several grounds, not only on the grounds briefed by the Hennys. The Hennys have

waived error on the alternative grounds for affirmance, and the Court should affirm

on these alternative grounds without consideration of their merits.

      Alternatively, the Court should affirm on the merits because there was no

evidence of tortious interference; Damon Hennys’ claims were barred by

limitations under well-established law; and there was no evidence supporting lost

profits by Adrienne Henny.

      The Taylors also present cross points that would be alternative grounds to

affirm. At the very least, a new trial must be had because there is factually

insufficient evidence supporting these claims.




                                         4
                                   ARGUMENT
      The judgment on these matters should be affirmed for the reasons stated

below.

I.    FAILURE TO CHALLENGE ALL POSSIBLE GROUNDS FOR AFFIRMANCE IS
      WAIVER, AND THE CHALLENGED RULINGS MUST BE AFFIRMED.
      By failing to present appellate issues challenging all of the Taylors’

arguments to disregard the jury’s verdict (which the trial court granted), the

Hennys have waived error.       The judgment dismissing the claim for tortious

interference, the claims against Damon Henny, and the claims for lost profits must

be affirmed without reference to the merits.

      Any grounds that the trial court relied upon in rendering its judgment that

are not included in a party’s initial brief are waived. TEX. R. APP. P. 38.1(f); Nall

v. Plunkett, 404 S.W.3d 552, 556 (Tex. 2013). In Nall, the defendant obtained a no

duty summary judgment on two causes of action: negligence and negligent

undertaking. Nall, 404 S.W.3d at 554.

      The plaintiff appealed and raised as the single issue that the judgment should

be reversed in part because the defendant’s no duty argument was not directed

toward the negligent undertaking theory, therefore no grounds existed for the

summary judgment on that claim. Id. at 554. The court of appeals reversed based

on this issue, and the defendant petitioned for review.




                                          5
      In the Supreme Court, the plaintiff argued that the court of appeals had

correctly decided the procedural issue and raised a new issue in the alternative that

contested the merits of the defendant’s argument. Id. at 556. The Supreme Court

held (1) that the motion contained grounds for summary judgment addressed to

both causes of action and (2) that the plaintiff waived argument on the merits of the

grounds presented because he only raised the single, procedural issue on appeal.

Id. at 556. The Court reversed the court of appeals and affirmed the judgment by

the trial court without considering whether the trial court’s rulings were correct on

their merits. Id. at 556-57. Similarly, the Hennys have appealed the trial court’s

legal rulings on limited grounds, but not on all of the grounds supporting the trial

court’s judgment.

      It is anticipated that the Hennys will argue in their Reply that the trial court’s

order granting the motion for judgment notwithstanding the verdict is limited in

scope to the issues they have raised. CR253-56. However, an order that does not

specify its legal basis must be challenged as to all possible grounds. See MasTex

N. Am., Inc. v. El Paso Field Servs., L.P., 317 S.W.3d 431, 446 (Tex. App.—

Houston [1st Dist.] 2010), rev’d on other grounds, 389 S.W.3d 802 (Tex. 2012)

(when a trial court specifies the grounds for JNOV, the appellant need only

challenge those grounds). The order here did not specify the legal grounds upon

which it was based.


                                          6
      The Hennys’ argument would confuse fact findings with legal rulings. The

court made a number of fact-findings concerning the terms of the Separation

Agreement (¶¶ 1-3), the evidence supporting tortious interference (¶¶ 4-6), the

application of limitations to Damon Henny’s claims (¶ 7), and the evidence

supporting attorneys’ fees (¶¶ 8-10). CR253-55. The court then made a blanket

legal ruling disregarding the verdict as to certain questions. CR255. The trial

court did not state the basis for its legal ruling, did not limit the legal ruling to the

fact findings, and did not reject any of the Taylors’ arguments for the disregarded

responses. Id. The order, as written, was not limited in scope.

      Even if the trial court’s fact findings do limit the scope of its legal ruling, the

Hennys have not challenged all of the possible grounds included within the scope

of those findings. CR169, 286. So, alternatively, if the orders disregarding various

aspects of the verdict are to be read narrowly, they still include unchallenged

grounds for affirmance and must be affirmed under the Nall decision.

      In short, the Hennys have not challenged all of the possible grounds for

affirmance as to tortious interference, lost profits, and the statute of limitations.

Therefore, this Court should affirm the judgment without considering the merits.

      A.     The Taylors Challenged the Jury Verdict for Tortious
             Interference with Contract on Multiple Grounds.
      In addition to the Hennys’ evidentiary arguments concerning knowledge and

intent, causation, and damages, the Taylors’ justified refusal to execute the

                                           7
assignments, guarantees, and lease extensions required by Weingarten meant that

Plaintiffs’ evidence was legally insufficient to support a verdict of tortious

interference. CR186. The refusal was justified based on the freedom to contract.

Id. The trial court held that the Taylors had no contractual duty to consent to the

assignments, the continuing guaranties, or to the amendment adding five years to

the lease for the Kirby location. CR253-54. Therefore, the trial court’s judgment

could be affirmed on the basis of justification. The Hennys did not challenge this

legal ground for affirmance of the judgment in their brief. Cross-Appellants Brief

at 17-23.

      If the trial court order is broad in scope, the Taylors asserted many other

grounds for a judgment notwithstanding the verdict as to tortious interference.

CR180-186. The Hennys have not challenged these other grounds.

      Even if the Hennys’ evidentiary arguments concerning tortious interference

had merit (and they do not, see infra, pp. 11-15), the take nothing judgment on the

claim for tortious interference could be affirmed on one or more of these

unchallenged grounds. Nall, 404 S.W.3d at 556-57. Therefore, the Court should

affirm without consideration of the merit. Id.

      B.    Even if There Were Some Evidence of Lost Profits, the Verdict
            Still Must Be Disregarded on the Other, Unchallenged Grounds.
      The Taylors challenged the lost profits verdict in favor of Adrienne Henny

on other evidentiary grounds in addition to the evidence of the actual amount of

                                         8
lost profits, which Adrienne Henny challenges. These other evidentiary grounds

fall within the scope of the trial court’s order.

      The court finds that there was legally insufficient evidence that
      Adrienne Henny suffered lost profits from the operation of Cayennes
      Restaurant or the failure of the sale of [the Bayou Cafe].
CR286. This order encompasses elements of both the amount of damages and

causation.

      The Taylors argued at trial that (1) there was no evidence of causation,

CR189 and (2) that evidence of lost profits should be excluded for failure to

specifically plead or as a discovery sanction for failing to respond to disclosures,

CR192; 2RR7-8. All of these arguments, if accepted, would support the trial

court’s decision. CR286. Adrienne Henny has not challenged these alternative

grounds for affirmance of the take nothing judgment on lost profits by raising an

issue in her Cross-Appellants’ Brief.

      Even if Adrienne Henny could establish that there is some evidence of the

amount of lost profits (and she does not, see infra, pp. 18-22), the take nothing

judgment on her claim of lost profits could be affirmed on one or both of these

alternative grounds. Nall, 404 S.W.3d at 556-57. Therefore, the Court should

affirm without considering the merits of these unchallenged legal positions. Id.




                                            9
      C.      The Judgment Against Damon Henny Must Be Affirmed on the
              Alternative, Unchallenged Grounds.
      In addition to the issue briefed by the Hennys (the statute of limitations),

Damon Henny’s claims were also challenged on numerous other grounds,

including (1) there was no breach of the separation agreement by the Taylors,

CR172; (2) he lacked standing to bring a claim for tortious interference, CR180;

(3) his claim sounded in contract if at all, CR181; (4) the Taylors did not interfere

as a matter of law, CR182-86; (5) any interference was justified, CR 186; (6)

discovery abuse resulted in the exclusion of all damage evidence, CR187; (7) lack

of causation, CR189; (8) failure to specifically plead damages barred claims on

those damages, CR192; (9) various legal bars existed as to damages, CR193-95;

and (10) there is no evidence of loss of credit reputation, CR198. Damon Henny

has not raised an appellate issue as to any of these alternative grounds for

affirmance.

      Even if Damon Henny’s argument concerning the statute of limitations had

merit (and it does not, see infra, pp. 15-17), the take nothing judgment on all of his

claims could be affirmed on these alternative grounds. Nall, 404 S.W.3d at 556-

57. Therefore, the Court should affirm without considering the merits of these

unchallenged legal positions. Id.




                                         10
II.   IFTHE MERITS OF THE HENNYS’ APPELLATE ISSUES              ARE CONSIDERED,
      THE JUDGMENT STILL MUST BE AFFIRMED.

      If the trial court’s ruling were to be reviewed solely on the limited issues

raised by the Hennys, it must be affirmed.

      A.     The Tortious Interference Claim Was Properly Dismissed.
      The premise of the Hennys claim is that the Taylors’ refusal to execute the

lease assignment, the continuing guaranties, and the lease extension caused

Coozans and/or the Bayou Cafe to fail in August 2008 and caused Coozans to opt

out of the February 2008 Asset Purchase Agreement. 4RR138.

             1.    There is no evidence of intentional interference.
      The Hennys cannot show an intentional interference with the Asset Purchase

Agreement. The Hennys’ argument that there was evidence of interference is

based on the premise that the Taylors’ refusal to participate in the assignment of

the lease from Cayennes Restaurant to the Bayou Cafe “made the Hennys’

performance impossible” in the Asset Purchase Agreement. Cross-Appellant’s

Brief at 19. There are several problems with this position.

      First, there is no evidence that the Taylors were notified of the existence of

the Asset Purchase Agreement, much less that they had the power to frustrated its

consummation. Indeed, the earliest that they could have been aware of the details

of the assignments, guarantees, and lease extension under the record was after

Weingarten’s offer to accept these new lease documents had expired.


                                         11
DX17:10RR71, 89. Therefore, there is no evidence to support a finding that the

Taylors knew about the terms of the Asset Purchase Agreement, how the

assignments, continuing guarantees, and lease extension related to the Agreement,

or how they might interfere with the transaction. See Southwestern Bell Tel. Co. v.

John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992).

      In Southwestern Bell, Justice Hecht distinguished between the intent to take

(or refuse to take) action, which is not tortious, and the knowledge that “the

consequences [of his act] are substantially certain to result from it,” which may be

tortious. Id. In that case, the defendant intentionally failed to timely relocate its

facilities, but this intent was not sufficient. Id. The plaintiff must prove that the

defendant “believed that interference was substantially certain to result from its

actions.” Id.

      In that case, there was apparently no evidence and certainly no finding by

the jury that the defendant was aware of terms of the plaintiff’s contract or of the

difficulties that its conduct may have caused. Id. at 471-72. The Texas Supreme

Court held “it does not follow, however, from Bell’s relocation of its facilities that

it intended to interfere with Carlo’s contract.” Id. at 472. Similarly, there is no

evidence here that the Taylors were aware of the terms of the Asset Purchase

Agreement so that they could know with substantial certainty that their failure to




                                         12
sign the new Weingarten lease documents would allow Coozans to withdraw from

the sale.

       Second, the record shows that Adrienne Henny was a vice-president and

secretary of Cayennes, and Damon Henny was a director. PX13 (7RR21, 39). As

an officer twice over, nothing prevented Adrienne Henny from executing the lease

assignment on behalf of Cayennes. TEX. BUS. ORG. CODE § 3.103 (officers “shall

perform the duties in the management of the entity and have the authority as

provided by the governing documents of the entity or the governing authority that

elects or appoints the officer.”). Thus, it was not “impossible” for Adrienne Henny

to make the assignment in her official corporate capacities without the need for

Denise Taylor’s participation.

       There was no evidence presented by the Hennys that the Taylors interfered

with the Asset Purchase Agreement or that any interference would have been

intentional.

               2.   Causing a person to exercise a contractual right is not
                    interference.
       Evidence that the Taylors may have caused Coozans to exercise its

contractual right to cancel its purchase of the Bayou Cafe is not evidence of

interference. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.

1997). The Bayou Cafe agreed in the Asset Purchase Agreement that Coozans

would not be bound in the event the purchase could not be completed. PX2

                                        13
(9RR5, ¶ 7.02). Thus, even if the Cayennes to Bayou Cafe lease assignment were

“impossible” without Denise Taylor’s signature, her refusal merely allowed

Coozans to invoke its contract rights. Thus, it had no more effect than to give

Coozans the right to opt-out of the Asset Purchase Agreement, a right to which the

Bayou Cafe had agreed. There is no evidence that interference caused any harm to

the Hennys.

              3.   There is no evidence that the Hennys suffered damages as a
                   result of the alleged interference.
      The $400,000 awarded by the jury to Adrienne Henny as the lost benefit of

the bargain has no connection to any evidence of any actual loss established in the

record.

      The evidence established that Coozans paid the cash portion of the purchase

price in full and that it assumed operation of the restaurants, including taking

responsibility for servicing the liabilities of the company from the accounts for the

new company that were funded by Bruce Pollack. 5RR48; 3RR147-48. The

Hennys state that when Coozans terminated the purchase in August 2008, some

amount of debt remained. 4RR139-42. But they do not specify what that amount

was or what it cost Adrienne Henny, if anything, to retire it. Id.

      Damon Henny likewise did not present legally sufficient evidence of mental

anguish. His statement that he suffered “heartache” due to the difficulties in

wrapping up the business is legally insufficient to support a mental anguish award.

                                          14
Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)

(requiring evidence of the nature, duration, and severity of mental anguish). There

was no evidence of mental anguish that was sufficient under Texas legal standards

even if it were a proper measure.

      B.    Damon Henny’s Claims Were Not Asserted until Trial, Long after
            Limitations Had Expired.
      The only attempt to plead a cause of action on behalf of Damon Henny did

not occur until May 24, 2013, a few days before trial, when his attorneys filed a

motion to adopt the pleadings of Adrienne Henny. Supp.CR91. Assuming that his

motion had the effect of making a claim (which it did not, see infra pp. 25-26), his

claims were barred by limitations.

      The Hennys made their demand on May 28, 2008, almost five years before

the earliest date that Damon Henny arguably attempted to assert a cause of action.

His tortious interference and breach of contract claims were barred on that date.

TEX. CIV. PRAC. & REM. CODE §§ 16.003(a), 16.051; First Nat’l Bank v. Levine,

721 S.W.2d 287, 289 (Tex. 1986) (tortious interference is governed by a two-year

statute); Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002) (breach of contract is

governed by a four-year statute of limitations). DX17:10RR69; PX24:7RR41.

      Contrary to the Hennys’ argument, this defense was not waived, it was

pleaded in Defendants’ First Supplemental Answer. CR80. Leave to file the



                                        15
supplemental answer was granted. CR252. The defense was not waived by any

failure in the Taylors’ pleadings.

      Furthermore, the Taylors did not waive the defense by seeking to join

Damon Henny as an involuntary third party plaintiff, and there is no authority cited

by the Hennys that supports waiver or estoppel. To show estoppel, Damon Henny

must present evidence that the Taylors (1) accepted a benefit under a transaction,

(2) are now taking a position that is inconsistent with the position they took in

accepting the benefit, and (3) that it is unconscionable to allow them to do so.

Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000).

Damon Henny does not establish any of these elements, but the failure with regard

to the second is most obvious.

      Though unconventional, the Taylors’ motion to join Damon Henny was a

calculated strategic choice that required his claims, if any, to be adjudicated at the

same time that Adrienne Henny’s claim were presented. Supp.CR62. He chose

not to pursue any claims. See infra pp. 25-26. The Taylors never took the position

that Damon Henny’s claims were not barred by limitations. Supp.CR61-63. The

purpose of the tactic was to avoid a second trial and to allow the dispute to be

finally resolved by obtaining a ruling on Damon Henny’s claims, whatever they

might be. Supp. CR62. It accomplished this purpose when the trial court agreed

that Damon Henny’s claims were barred by limitations. CR254.


                                         16
      Finally, Damon Henny’s claims did not relate back to the original filing date

by Adrienne Henny. First, his motion to adopt Adrienne Henny’s causes of action

was never granted, and his amended petition was never filed.               But more

importantly, a new party does not get the benefit of the relation back rule. Univ. of

Tex. Health Sci. Ctr. at San Antonio v. Bailey, 332 S.W.3d 395, 400 (Tex. 2011).

Both of the cases cited by the Hennys involved the original party asserting a new

cause of action. Cram Roofing Co., Inc. v. Parker, 131 S.W.3d 84, 88-89 (Tex.

App.—San Antonio 2003, no pet.); Milestone Props., Inc. v. Federated Metals

Corp., 867 S.W.2d 113, 115-18 (Tex. App.—Austin 1993, no writ). Neither case

is applicable.

      This Court has recognized that “[g]enerally, ‘an amended pleading adding a

new party does not relate back to the original pleading.’” Control Solutions, Inc. v.

Gharda USA, Inc., 394 S.W.3d 127, 166 (Tex. App.—Houston [1st Dist.] 2012,

pet. filed) (quoting Univ. of Tex. Health Sci. Ctr. at San Antonio, 332 S.W.3d at

400). While misnomer is an exception, Damon Henny was not misnamed as

Adrienne Henny in the original petition, and the Hennys did not propose that he be

substituted as the proper plaintiff as is the procedure in misnomer cases. Id.

      Thus, the premise of Damon Henny’s relation-back argument is entirely

unsupported by any cited law, is contrary to Texas Supreme Court law, and Damon

Henny does not provide any argument for the extension, modification, or reversal


                                         17
of this existing law. Damon Henny’s claims were properly dismissed as barred by

the applicable statutes of limitations.

       C.     Adrienne Henny Did Not Establish Lost Profits with the
              Necessary Specificity.
       Recognizing that the lost profits verdict was fatally flawed, the trial court

granted the Taylors’ motion to modify and eliminated $165,000.00 from the

judgment. The order encompasses all of the Taylors’ legal bases for elimination of

the lost profits verdict: (1) that the evidence of lost profits offered was insufficient

and (2) that there was insufficient evidence of causation. CR286. As argued

above, the Hennys raise only the first issue before this Court, but the evidence is

insufficient under either defensive theory.

              1.    There is legally insufficient evidence of lost profits.
       The Asset Purchase Agreement alone (which is the only evidence cited by

the Hennys) is insufficient evidence of lost profits. The Asset Purchase Agreement

purchase price was $547,730.00. PX2:7RR5. The price was paid by a cash

payment ($34,160.00), assumption of debt ($505,876.76)), and 600 shares of

Coozans stock.      PX2:7RR6, 8RR32.          The cash and debt assumption totals

$540,036.76, leaving very little that could be attributed to establish the value of the

stock at the time of the asset purchase. In any event, loss of the value of stock is

not lost profit.




                                          18
      The Hennys do not explain where these lost profits come from or how they

are calculated. It is clear, however, that their “lost profits” could not be the loss of

income attributable to the 600 Coozans shares. PX2:7RR6. Lost profits must be

shown with reasonable certainty and by competent evidence.             ERI Consulting

Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 876 (Tex. 2010).                Competent

evidence must be based on objective facts, figures, and data that allows one

complete calculation. Id.; see also Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d

80, 84 (Tex. 1992). The evidence may not be speculative. Texas Instruments, Inc.

v. Teletron Energy Mgmt., 877 S.W.2d 276, 279 (Tex. 1994).

      The Asset Purchase Agreement does not specify the profits that Adrienne

Henny could expect to earn from her portion of the 600 shares of stock.

PX2:7RR5. The Hennys’ statement of facts discusses mitigation costs in very

general terms, but it does not attempt to show any lost profits from the loss of the

stock. Indeed, there was no testimony, expert or otherwise, as to the stock value,

the profit that was expected from Adrienne Henny’s share of the 600 shares, or as

to the Coozans’ prospects for profitability. Nonetheless, the jury gave a verdict of

lost profits in the past (i.e., lost profits between February 2008 and the day of trial)

of $165,000. CR154. The trial court properly disregarded this verdict.

      Adrienne Henny did offer a loan application purportedly showing the Bayou

Cafe’s past profits of $109,000 in 2006. PX2:9RR17. But when taxes and debt


                                          19
service are subtracted, the Bayou Cafe showed a final profit of only $19,132 for

that year. PX2:9RR17. Adrienne Henny did not provide one complete calculation

that explained how this $19,132 actual profit in 2006 would have grown after the

Asset Purchase Agreement was signed such that her interest in the 600 shares of

stock, if any, would accumulate profits of $165,000 between the February 2008

sale of the Bayou Cafe and the trial in May 2013. ERI Consulting, 318 S.W.3d at

876 (must show one complete calculation). Without such a calculation, there is no

evidence of lost profits.

      For example, the Hennys cite no evidence of the ownership percentage that

the Hennys held in Coozans so that Adrienne Henny’s share of the company’s

profitability could be measured.    Even if her ownership percentage could be

established, the Hennys cite no evidence that Coozans was earning a profit in 2008,

whether that profit would continue into 2009, 2010, 2011, 2012, and 2013, or

whether that profit would be distributed to the shareholders during those years, if

ever. Adrienne Henny not only did not provide a calculation or a formula, she did

not provide the evidence necessary to make a calculation.

             2.     Even if the Taylors should have executed the assignment,
                    the Asset Purchase Agreement still would have failed.
      The Taylors have set this argument out in full in their Brief of Appellants.

See Brief of Appellants at 16-21. In short, Adrienne Henny cannot establish that

the Taylors’ action caused her any harm.

                                        20
      Weingarten conditioned its consent to consummation of the Asset Purchase

Agreement on Denise Taylor’s agreement to guaranty the new lease and on her

agreement to a five year lease extension at the Kirby location, not just on her

agreement to execute the assignment from Cayennes to the Bayou Cafe.

DX17:10RR71, 89. The trial court held that the Separation Agreement’s terms did

not require Denise Taylor to execute the continuing guaranty or the lease

extension. CR253-54. This holding has not been challenged on appeal.

      There is no causation if a loss would have occurred even in the absence of a

breach. Employees Retirement Sys. of Tex. v. Putnam, LLC, 294 S.W.3d 309, 319

(Tex. App.—Austin 2009, no pet.); Jackson v. Henderson, 2004 WL 1631394, at

*4-5 (Tex. App.—Houston [1st Dist.] July 22, 2003, no pet.). Weingarten would

not have consented if the Taylors had executed only the assignment and nothing

more. Thus, the transaction would have failed even had Denise Taylor executed

the initial assignment (i.e., from Cayennes to the Bayou Cafe). This inevitable

failure destroyed any causal link.

      Furthermore, Weingarten’s offer had lapsed before the Hennys sent the

documents to the Taylors.      DX17:10RR71, 89.     Even if the Taylors had the

obligation under the Separation Agreement to execute all of the Weingarten lease

documents (the assignment from Cayennes to the Bayou Cafe, the lease extension,

and the continuing guaranties), their compliance would have achieved nothing


                                       21
because the option had already expired. See Voss Road Exxon LLC v. Vlahakos,

2011 WL 2623989, at *7 (Tex. App.—Houston [1st Dist.] June 30, 2011, no pet.).

Weingarten required the documents to be executed and returned by May 5, 2008.

DX17:10RR71, 89. Adrienne Henny did not send the documents to the Taylors

until May 28, 2008, three weeks after the option expired.          DX17:10RR69;

PX24:7RR41. If the Taylors had executed the documents on the day they were

received, the transaction would still have failed.

      Finally, there is no causative link between the Taylors conduct and any harm

to Adrienne Henny because she lacked standing to bring the claim. Brief of

Appellants at 19-21. The 600 shares of Coozans stock was promised to the Bayou

Cafe. 5RR15-17; PX2:7RR5. Harm to a corporate entity does not cause harm to

the shareholder that may be recovered personally. Wingate v. Hajdik, 795 S.W.2d

717, 719 (Tex. 1990). This claim, if viable, belonged to the Bayou Cafe, not to

Adrienne Henny.

      Alternatively, the evidence is legally insufficient to show that she suffered

direct harm. ERI Consulting Engineers, Inc., 318 S.W.3d at 876. There is no

evidence that the restaurants failed in August 2008 for any reason other than their

abandonment by the Hennys. The lease on the Kirby location did not expire until

early 2009. PX2:9RR45. In any event, even without the Kirby location, the Bayou




                                          22
Cafe had three other locations (FM 1960, Fondren, and Uvalde). 3RR171-72.

Adrienne Henny did not show that her harm was caused by the Taylors’ conduct.

III.   ALTERNATIVELY, THE JUDGMENT SHOULD BE AFFIRMED                 ON THE   OTHER
       GROUNDS SUBMITTED BY THE TAYLORS.
       Without waiving their right to insist that the Hennys challenge all of the

possible grounds for affirmance in their initial brief, the Taylors present these

cross-points supporting affirmance.

       A.    Plaintiffs’ Tortious Interference Claims Are Not Viable.
       Neither Damon Henny nor Adrienne Henny can recover for tortious

interference even if they were able to show some evidence of intent or damages.

             1.      Plaintiffs’ claims sound in contract, not in tort.
       A claim for tortious interference with an existing contract or with

prospective contractual relations cannot be based on the breach of a contractual

duty. In other words, if the act of interference violates a contract duty rather than a

legal (i.e., tort) duty, then only the contract claim is viable.

       If the defendant’s conduct . . . would give rise to liability independent
       of the fact that a contract exists between the parties, the plaintiff’s
       claim may also sound in tort. Conversely, if the defendant’s conduct .
       . . would give rise to liability only because it breaches the parties’
       agreement, the plaintiff’s claim ordinarily only sounds in contract.

DeWitt County Elec. Coop. v. Parks, 1 S.W.3d 96, 105 (Tex. 1999); Southwestern

Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 496 (Tex. 1991); Exxon Mobil Corp.

v. Kinder Morgan Oper. L.P., 192 S.W.3d 120, 126-27 (Tex. App.—Houston [14th


                                            23
Dist.] 2006, no pet.). In short, there is no tort liability for nonfeasance, that is, for

failing to perform under a contract. See Crawford v. Ace Sign, Inc., 917 S.W.2d

12, 13 (Tex. 1996).

      The only duty that the Hennys argue that was breached by the Taylors was a

supposed contractual duty under the Separation Agreement. Assuming for the sake

of argument that a contractual duty exists in the Separation Agreement that

required the Taylors to execute the assignments, the lease extension, and the

guaranties, the very existence of such a duty under contract would foreclose the

Hennys’ tort claim for interference with contract.

             2.     The Hennys had no standing to assert the tortious
                    interference claim.
      The Hennys claim that the Taylors interfered with the Asset Purchase

Agreement. But shareholders cannot recover damages personally for a wrong done

to the corporate entity. Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990);

Singh v. Duane Morris, L.L.P., 338 S.W.3d 176, 182 (Tex. App.—Houston [14th

Dist.] 2011, pet. denied); Kenneth H. Hughes Interests, Inc. v. Westrup, 879

S.W.2d 229, 235 (Tex. App.—Houston [1st Dist.] 1994, writ denied); Voss Road

Exxon LLC v. Vlahakos, 2011 WL 2623989, *5 (Tex. App.—Houston [1st Dist.]

2011, no pet.). This is true even if the shareholders suffer a loss indirectly due to

the injury to the entity. Wingate, 795 S.W.2d at 719.



                                           24
      The Asset Purchase Agreement was between the Bayou Cafe and Coozans.

DX 16. The Bayou Cafe was a distinct entity from the Hennys. TEX. BUS. ORG.

CODE § 2.101. Thus, the Hennys are not a party to the Asset Purchase Agreement

and cannot sue for tortious interference with that agreement.

      B.     None of Damon Henny’s Claims Are Viable.
      The judgment that Damon Henny take nothing is supported by several

alternative grounds that must be considered if the Court holds that the statute of

limitations does not bar his claims.

             1.    Damon Henny did not plead any claims.
      Damon Henny did not plead any causes of action. CR21, 43; 4RR146-47;

5RR156-59. He admitted at trial that he was not asserting any claims against the

Taylors.

      Q.     Okay. And you haven’t asserted any claims in this lawsuit,
             correct?
      A.     I haven’t.
4RR149. The record bears this out.

      His attorneys requested permission to file an amended petition on the eve of

trial, but the trial court never granted leave for the untimely filing. The Fifth

Amended Third Party Petition was not filed, was not accepted, and does not appear

in the Clerk’s Record. Supp.CR111.




                                         25
      His attorneys also moved to adopt Adrienne Henny’s pleadings.

Supp.CR91. The trial court considered this motion, but it never ruled, ultimately

deciding to defer the issue until after the verdict and agreeing that the issues were

not tried by consent. 5RR152-162. After the verdict, the Court did not grant either

motion and disregarded the jury’s findings in favor of Damon Henny. CR253.

Thus, this defect in Damon Henny’s claims was raised before the trial court and

constitutes an independent ground for affirmance.

             2.    There was no breach; the Separation Agreement did not
                   require the Taylors to sign the Weingarten documents.
      It was not the Taylors who had the responsibility under the Separation

Agreement to establish, operate, or manage the Hennys’ restaurants (i.e., the

Bayou Cafe). Rather, the Separation Agreement required the Hennys to remove

Cayennes from the leases at Kirby and FM 1960.

      It is agreed all administrative changes, including but not limited to
      contacting vendors, employees and/or any necessary third parties, will
      be completed by February 1, 2006.

      ...
      It is further agreed all parties will establish new company identities by
      March 31, 2006 to properly dissolve the existing corporation. After
      March 31, 2006 no party will use the Cayenne Restaurant name,
      identity or logo in any form.

PX 1:7RR2-3. In short, the Separation Agreement required the Hennys to take all

the steps necessary to accomplish the separation of their business from Cayennes,

including removal of Cayennes from the leases. PX1:7RR2.

                                         26
      The Hennys were responsible for administrative changes at their business.

They agreed that they would “operate, manage and own” the two restaurants that

became the Bayou Cafe. PX1:7RR2-3. They also agreed that they would “assume

operation, management, administration and ownership . . . upon approval of this

document.”    PX1:7RR2-3.     Coupled with the obligation to cease using the

Cayennes name, the Hennys were responsible for operating under their own leases,

not the leases in Cayennes’ name that were guaranteed by Denise Taylor.

Furthermore, the Hennys, not the Taylors, had operational and administrative

control of the Bayou Cafe at the time the administrative changes provision was to

be performed. PX24:7RR41; DX17:10RR69; PX1:7RR2.

      In short, the Hennys took control of the Bayou Cafe restaurants in December

2005. By continuing to operate the restaurants for over two years under a lease in

the name of Cayennes, the Hennys failed to perform their obligations to make

administrative changes, to notify Weingarten, and to cease doing business under

the name of Cayennes. The Taylors did not breach the Separation Agreement by

failing to perform a task that was the Hennys’ responsibility to complete or in

refusing to cooperate in a scheme that would not accomplish the removal of

Cayennes from the lease. Indeed, it is the Taylors, and not the Hennys, who have a

grievance here.




                                       27
            3.     There is no causation when the harm would have occurred
                   regardless of the Taylors’ actions.
      A loss is not caused by a breach when the loss would have occurred even in

the absence of the breach. See Employees Retirement Sys. of Tex. v. Putnam, LLC,

294 S.W.3d 309, 319 (Tex. App.—Austin 2009, no pet.); Jackson v. Henderson,

2004 WL 1631394, at *4-5 (Tex. App.—Houston [1st Dist.] July 22, 2004, no

pet.); see also Mead v. Johnson Group, Inc., 615 S.W.2d 685, 687 (Tex. 1981).

Even if the Taylors’ failure to execute the assignment from Cayenne to the Bayou

Cafe was a breach, the Asset Purchase Agreement would still have failed.

      Here, the asset purchase was conditioned on Coozans’ ability to assume the

leases. PX2:9RR5. Weingarten would only agree to the assumption if the Taylors

remained obligated. Thus, execution of the assignment alone was not sufficient to

ensure that the asset purchase would be completed.

      According to Weingarten, the Taylors had to (1) assign Cayennes

Restaurants’ leases to the Bayou Cafe, (2) agree to a five-year lease extension for

the Kirby location, and (3) sign a continuing guarantee of both amended leases.

DX17:10RR71, 89. The trial court held that the Separation Agreement does not

require the Taylors to assume new obligations such as the extension or the

guaranty. CR253. Damon Henny does not challenge this holding.

      Because Damon Henny would have suffered the loss of the bargain with

Coozans whether the Taylors executed the assignment or not, there is no causation.

                                        28
            4.     Because the Bayou Cafe’s option expired before the Taylors
                   were asked to execute the documents, there is no causation.
      There also was no causation because the option period had expired on

Weingarten’s offer before a demand was made to the Taylors. On April 14, 2008,

Weingarten made an offer to the Bayou Cafe of a new bargain on each lease (Kirby

and 1960), but specified that “time is of the essence” and warned that its offer

expired if the lease amendment, guaranties, and assignments were not executed by

May 5, 2008. DX17:10RR71, 89.

      Damon Henny did not send a copy of the lease amendments, guaranties, and

assignments to the Taylors until May 28, 2008, over three weeks after the offer

expired. DX17:10RR69; PX24:7RR41. When an option has expired, another

party’s conduct occurring afterwards could not cause a loss of the opportunity. See

Voss Road Exxon LLC, 2011 WL 2623989, at *7. The Taylors’ conduct could not

have caused damages under the contract because Weingarten’s offers had expired

long before the Taylors could have even seen what they were being asked to do.

Id.

            5.     Damon Henny could not establish damages for loss of credit
                   or for mental anguish.
      To establish damages for a loss of credit reputation, Damon Henny had to

present evidence (1) that he was denied a loan and that failing to obtain the loan

caused an economic loss, or (2) that he obtained a loan and paid a higher interest


                                        29
rate because of their diminished credit. St. Paul Surplus Lines Ins. Co. v. Dal-

Worth Tank Co., 974 S.W.2d 51, 53 (Tex. 1998). Mere loss of credit reputation is

not compensable. Id.; see also Provident Am. Ins. Co. v. Casteneda, 988 S.W.2d

189, 199 (Tex. 1998).

      Damon Henny gave no testimony concerning a loss in credit reputation. See

4RR121-148.     But the Texas Supreme Court requires particular proof of the

elements of a claim for loss of credit. Casteneda, 988 S.W.2d at 199. He did not

testify that the inability to get a credit card caused an economic loss or that he had

paid a higher interest rate on a loan. Id. There is no evidence of damages for a

loss of credit reputation by Damon Henny, only argument. 6RR63.

      As for his mental anguish verdict, Damon Henny simply cannot recover

mental anguish damages, even if he had presented evidence of such damages,

which he did not. See supra, pp. 14-15. Mental anguish damages are not available

in a tortious interference with contract claim. Delgado v. Methodist Hosp., 936

S.W.2d 479, 486 (Tex. App.—Houston [14th Dist.] 1996, no writ); Soukup v.

Sedgwick Claims Mgmt. Servs., 2012 WL 3134223, at *6 (Tex. App.—Houston

[1st Dist.] Aug. 2, 2012, pet. denied). Therefore, the jury finding of mental

anguish by Damon Henny was properly disregarded.




                                         30
      C.     Adrienne Henny Cannot Recover the Lost Profits Verdict.
      Even if the evidence presented at trial were some evidence of lost profits, the

evidence must be excluded and the judgment affirmed. Adrienne Henny forfeited

her right to present her damage model when she failed to provide her calculation of

damages in response to the Taylors’ timely request for disclosure. CR210, 215,

244, 247.

       The rules governing requests for disclosure are intended to frustrate “legal

gamesmanship and trial by ambush.” $

      27,877.00 Current Money of U.S. v. State, 331 S.W.3d 110, 120-21 (Tex.

App.—Fort Worth 2010, pet. denied). The verdict in this case is tainted by the

Adrienne Henny’s disregard for her obligations under the disclosure rules.

      Disclosure is designed to afford parties basic discovery of specific
      categories of information . . . . [A] failure to respond fully to a
      request for disclosure would be an abuse of the discovery process.
TEX. R. CIV. P. 194 (cmt. 1).

      The remedy for failing to respond in a timely manner to a discovery request,

including a request for disclosure, is automatic exclusion of the evidence. TEX. R.

CIV. P. 193.6(a); Moore v. Memorial Hermann Hosp. Sys., 140 S.W.3d 870, 875

(Tex. App.—Houston [14th Dist.] 2004, no pet.).

      Adrienne Henny’s responses to the Taylors’ request for disclosures did not

specify the amount and method of calculating the economic damages, as requested.


                                         31
CR:210, 215, 244, 247; $27,877.00 Current Money of U.S., 331 S.W.3d at 120-21

(citing State Farm Fire & Cas. Co. v. Morua, 979 S.W.2d 616, 619-20 (Tex.

1998)). The trial court agreed:

      There is no way that this could be an acceptable Pleading under our
      Rules of Procedure. I don’t know that you have an argument with me
      on that.

3RR 9. A response lacking substance is a complete failure to respond, triggering

the automatic exclusion. TEX. R. CIV. P. 193.6.

      With the testimony and exhibits offered to support Adrienne Henny’s

untimely damage model excluded automatically, there is no evidence of damages

and judgment should be rendered that Adrienne Henny take nothing. See Tiller v.

McLure, 121 S.W.3d 709, 713 (Tex. 2003).

IV.   ALTERNATIVELY, THERE IS NO FACTUALLY SUFFICIENT EVIDENCE
      SUPPORTING THE JURY’S VERDICT, AND A NEW TRIAL IS NECESSARY.
      The Hennys’ trial strategy in this case was to overcome their lack of

evidence that the Taylors did anything wrong by creating prejudice and bias

against the Taylors in the minds of the jury. A keystone of the Hennys’ jury

argument concerned their allegation that Denise Taylor embezzled funds when she

managed Cayennes Restaurants in 2005, a claim that the Hennys did not plead and

that was resolved in the Separation Agreement.       3RR38-41, 65-85, 132-33;

4RR122-30.




                                        32
      The Hennys’ focus on the 2005 dispute had nothing to do with whether the

Separation Agreement required the Taylors to execute the lease assignment or

whether their failure to do so caused the Hennys any harm. But it did enrage the

jury against the Taylors, and it did paint them as untrustworthy. And when the

Hennys’ counsel told the jury how to answer the charge questions, the jury

complied without regard to the evidence.

      A.    There Was No Factually Sufficient Evidence that the Taylors
            Tortiously Interfered with the Asset Purchase Agreement.
      When all of the evidence is considered, the Hennys can only establish that

the Taylors were asked (at some unspecified date) to execute an assignment to

Coozans or (on May 28, 2008) to execute the Weingarten instruments and that the

Taylors refused.    4RR138; DX17:10RR69.        The evidence also shows that

Weingarten offered to agree to an assignment from Cayennes to the Bayou Cafe

and to Coozans, but only if the Taylors would (1) execute the assignment from

Cayennes to the Bayou Cafe, (2) agree to a five year extension of the Kirby

location, and (3) sign a continuing guaranty. DX17:10RR71. Of course, Cayennes

was to remain obligated on the lease in violation of the Hennys’ promises in the

Separation Agreement. Id.; PX2:7RR2. Weingarten’s offer expired on May 5,

2008. Id. The Hennys delivered Weingarten’s terms and the required instruments

to the Taylors or to the Taylors’ agent on May 28, 2008.          PX24:7RR41;

DX17:10RR69. The Hennys’ claim for interference is based on the Taylors’

                                       33
refusal to alter the terms of the Separation Agreement to allow Coozans to continue

the Bayou Cafe’s practice of using Cayennes’ name.

       As for the unliquidated tortious interference damages, they too are

unsupported by factually sufficient evidence.1 The only evidence in the record is

that some amount of the Bayou Cafe’s debts remained in August 2008 when

Coozans opted out of the Asset Purchase Agreement. 4RR39-42. There is no

statement in the record establishing what that amount was or what the Hennys

paid, if anything, to satisfy it. Id.

       This evidence is legally insufficient to establish a claim for tortious

interference, or the claim is legally barred. See supra, pp. 11-15, 20-25. However,

if the Court is of the opinion that there is some evidence, then the Taylors argue

that it is still factually insufficient to support the verdict that the Taylors tortiously

interfered with the Asset Purchase Agreement or suffered any specific amount of

damages. The Taylors conditionally request a new trial on these questions.

       B.     There Was No Factually Sufficient Evidence to Support the
              Jury’s Verdict of Lost Profits.
       When all the evidence is considered, there is evidence that the Bayou Cafe

earned a final profit (after all expenses were deducted) of $19,132 in 2006.

PX2:9RR17. There is evidence that the Bayou Cafe was to receive 600 shares of

1
         In any event, they would have to be reversed and remanded for new trial along with the
liability issue as the two elements are not separable. TEX. R. APP. P. 44.1(b); Ritchie v. Rupe,
443 S.W.3d 856, 908 (Tex. 2014).

                                              34
Coozans stock, and that Adrienne Henny was one of the owners of the Bayou Cafe.

PX2:7RR6. There is also evidence that one of the four Bayou Cafe restaurants was

failing in February 2008. 3RR171. The jury awarded lost profits in the past (i.e.,

from approximately February 2008 until May 2013) of $165,000. CR154.

      As argued above, see supra pp. 18-22, 30-31 this evidence is legally

insufficient to provide one complete calculation of lost profits for the time period

before trial or should be disregarded for other reasons. At the very least, this

evidence is factually insufficient to show that Adrienne Henny suffered lost profits

of $165,000.     Therefore, the Taylors conditionally request a new trial on the

question of lost profits.

      C.     There Was No Factually Sufficient Evidence to Support the
             Jury’s Verdict in Favor of Damon Henny.
      As argued above, see supra, pp. 11-17, 23-30, there is legally insufficient

evidence to support the jury’s verdict in favor of Damon Henny or that verdict was

legally barred in whole or in part.     Alternatively, the evidence was factually

insufficient, for the reasons discussed above to support the verdict in favor of

Damon Henny. Id. Therefore, the Taylors conditionally request a new trial on the

jury’s verdict in Questions Number 3, 4, 7, and 8.

                                    PRAYER
      WHERFORE, PREMISES CONSIDERED, Appellants/Cross-Appellees

Oscar D. Taylor and Denise Taylor respectfully request that this Court affirm the

                                        35
trial court’s judgment dismissing all tortious interference claims, all of Damon

Henny’s claims, and Adrienne Henny’s claim for lost profits. The Taylors also

request all of the relief prayed for in their Brief of Appellants. Alternatively, the

Taylors conditionally request a new trial on one or all of these questions. The

Taylor also ask for all such other and further relief to which they might be entitled

at law or in equity.




                                         36
Respectfully submitted,

JOHNSON, TRENT, WEST & TAYLOR, L.L.P.


By:     /s/ Douglas Pritchett, Jr.
      Douglas Pritchett, Jr.
      Texas Bar No. 24007877
      dpritchett@johnsontrent.com
      919 Milam, Suite 1700
      Houston, Texas 77002
      (713) 222-2323 – Telephone
      (713) 222-2226 – Facsimile

      ATTORNEYS FOR APPELLANTS
      OSCAR D. TAYLOR AND
      DENISE TAYLOR




      37
                       CERTIFICATE OF COMPLIANCE
         This brief complies with the type-volume limitation of Texas Rule of

Appellate Procedure 9.4(i)(2)(B) because the brief contains 8,157 words, excluding

the parts exempted by Texas Rule of Appellate Procedure 9.4(i)(1).

         This brief complies with the typeface and type style requirements of Texas

Rule of Appellate Procedure 9.4(e) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Word in 14-point Times New

Roman font for text in the body and 12-point Times New Roman font for

footnotes.

                                       /s/ Douglas Pritchett, Jr.
                                       Douglas Pritchett, Jr.


                          CERTIFICATE OF SERVICE
     On this the 22nd day of January 2015, the foregoing Response of Cross-
Appellees/Appellants was served on the following persons by electronic service:
         Eric G. Carter
         THE CARTER LAW FIRM
         1811 Southmore Boulevard
         Houston, Texas 77004
         (713) 227-0042 (Telephone)
         (713) 227-7001 (Facsimile)
         Attorney for Plaintiffs
         Adrienne A. Henny and Damon K. Henny



                                       /s/ Douglas Pritchett, Jr.
                                       Douglas Pritchett, Jr.
387398



                                         38
