Opinion issued October 4, 2018




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00067-CV
                           ———————————
                         DAVID POLLITT, Appellant
                                        V.
          COMPUTER COMFORTS, INCORPORATED, Appellee


                   On Appeal from the 212th District Court
                          Galveston County, Texas
                      Trial Court Case No. 11-CV-1203


                         MEMORANDUM OPINION

      Appellant David Pollitt appeals from the final judgment rendered against

him on fraud and contract claims. He argues that the judgment violated the one-

satisfaction rule by awarding exemplary damages for the fraud claim and

attorney’s fees for the contract claim. He also contends that postjudgment interest
was erroneously awarded from the date of an earlier judgment that was vacated as

the result of a prior appeal.

      We sustain the first issue because the amended judgment improperly awards

attorney’s fees, and we overrule the remaining issue because the amended

judgment properly awarded postjudgment interest from the date of the original

judgment.

      We modify the amended judgment to delete the award of attorney’s fees, and

otherwise we affirm.

I.    One-satisfaction rule

      The factual background of this dispute was described in our opinion in a

prior appeal in this case. See Pollitt v. Computer Comforts, Inc., No. 01-13-00785-

CV, 2014 WL 7474073 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, no pet.)

(mem. op.) (“Pollitt I”). We take judicial notice of the appellate record in the prior

appeal. See Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 806 n.1

(Tex. App.—Houston [1st Dist.] 2008, no pet.). The result of the first appeal was a

remand “for the fact-finder to determine how much in exemplary damages, if any,

should be awarded against Pollitt individually.” Pollitt I, 2014 WL 7474073, at *4.

On remand, the trial court (with a different judge presiding) requested briefing on

the exemplary-damages issue. The trial-court brief filed by appellee Computer

Comforts, Inc. included evidentiary arguments with citations to the reporter’s


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record from the trial on the merits, and Pollitt’s trial-court brief included a proffer

of the reporter’s record and his evidentiary arguments.

      The trial court awarded exemplary damages against Pollitt in the amount of

$20,000. Pollitt objected to the judgment proposed by Computer Comforts, and he

argued based on the one-satisfaction rule that there must be an election of remedy

because the trial court could not award both attorney’s fees for breach of contract

and exemplary damages on the fraud claim. The trial court signed the proposed

judgment, allowing Computer Comforts to recover: actual damages from Pollitt

and the other defendants, jointly and severally, in the amount of $40,000;

exemplary damages from the other defendants in the amount of $40,000;

exemplary damages from Pollitt in the amount of $20,000; and attorney’s fees in

the amount of $11,500 from all defendants, jointly and severally. Pollitt filed a

motion to modify the judgment, again relying upon the one-satisfaction rule, but

the motion was overruled by operation of law.

      On appeal, Pollitt continues to argue that the trial court erred in rendering a

judgment against him that includes both an award of attorney’s fees for breach of

contract and exemplary damages for fraud because it violates the one-satisfaction

rule. Pollitt asserts that we should vacate the award of attorney’s fees because the

$20,000 exemplary-damages award affords the greater recovery. Computer

Comforts did not file an appellee’s brief to respond to Pollitt’s arguments.


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      The one-satisfaction rule provides that a plaintiff is limited to only one

recovery for any damages suffered because of a single injury. Tony Gullo Motors I,

L.P. v. Chapa, 212 S.W.3d 299, 303 (Tex. 2006); Stewart Title Guar. Co. v.

Sterling, 822 S.W.2d 1, 8 (Tex. 1991); TMRJ Holdings, Inc. v. Inhance Techs.,

LLC, 540 S.W.3d 202, 208 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Pollitt

I, 2014 WL 7474073, at *4 (citing Stewart Title, 822 S.W.2d at 7). “The rule

applies when multiple defendants commit the same act as well as when defendants

commit technically different acts that result in a single injury.” Pollitt I, 2014 WL

7474073, at *4 (citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.

2000)).

      A party may seek damages based on alternate theories of liability—as

Computer Comforts did—but it is not entitled to a double recovery for a single

injury. See Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d

182, 184 (Tex. 1998); Peterson Grp., Inc. v. PLTQ Lotus Grp., L.P., 417 S.W.3d

46, 63–64 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). When a party pleads

and prevails on alternate theories of liability, “a judgment awarding damages on

each alternate theory may be upheld if the theories depend on separate and distinct

injuries and if separate and distinct damages findings are made as to each theory.”

Pollitt I, 2014 WL 7474073, at *4.




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      The one-satisfaction rule further precludes a party from mixing damage

elements from different liability theories to maximize recovery of damages. See

Chapa, 212 S.W.3d at 304; McCullough v. Scarbrough, Medlin & Assocs., 435

S.W.3d 871, 916–17 (Tex. App.—Dallas 2014, pet. denied). Thus, a party who has

suffered a single injury cannot recover exemplary damages under a fraud theory

and also recover attorney’s fees for breach of contract. See, e.g., Win Shields

Prods., Inc. v. Greer, No. 05-16-00274-CV, 2017 WL 2774443, at *5–6 (Tex.

App.—Dallas June 27, 2017, pet. denied) (mem. op.) (applying one-satisfaction

rule to fraudulent-inducement and breach-of-contract claims); McCullough, 435

S.W.3d at 916–17 (applying one-satisfaction rule to alternate liability theories of

breach of contract, fraud, and breach of fiduciary duty); see also Chapa, 212

S.W.3d at 304 (noting that plaintiff could recover attorney’s fees but not

exemplary damages for breach of contract and that plaintiff could recover

exemplary damages but not attorney’s fees for fraud).

      When a party does prevail on alternate theories, the party is entitled to elect

recovery on the theory affording the greatest recovery. Chapa, 212 S.W.3d at 304,

314; Madison v. Williamson, 241 S.W.3d 135, 158 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied). If the prevailing party fails to elect between the alternate

theories, the court should render judgment using the findings that afford the




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greatest recovery. McCullough, 435 S.W.3d at 917 (citing Birchfield v. Texarkana

Mem’l Hosp., 747 S.W.2d 361, 367 (Tex. 1987)).

      The origin of this dispute was an order placed by the Covington entities to

buy computer furniture from Computer Comforts. After the furniture was

delivered, the Covington entities did not pay. Computer Comforts asserted its

breach-of-contract claim against the defendants, including Pollitt, for failure to pay

for the furniture. Its fraudulent-inducement claim was that the defendants,

including Pollitt, ordered the furniture with no intent to pay for it. Computer

Comforts suffered a single injury—the loss associated with receiving no payment

for the furniture—and there is no argument and no evidence that Computer

Comforts suffered separate and distinct injuries resulting from the alternate

liability theories of fraud and breach of contract. See, e.g., Win Shields, 2017 WL

2774443, at *6; McCullough, 435 S.W.3d at 916–17. Based on the facts of this

case, Computer Comforts cannot recover from Pollitt an award of attorney’s fees

for breach of contract in the amount of $11,500 and exemplary damages for fraud

in the amount of $20,000. The trial court erroneously awarded both of those

damages amounts. We therefore sustain Pollitt’s first issue. Because the $20,000

exemplary-damages award for fraud provides the greater recovery, we reverse the

portion of the amended judgment that awarded attorney’s fees.




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II.   Postjudgment interest

      The judgment on remand awarded postjudgment interest on “the total

amount of the judgment here rendered” “at the rate of 6% from June 10, 2013 until

paid.” June 10, 2013 was the date of the original judgment. Pollitt asserts in his

second issue that postjudgment interest was erroneously awarded from the date of

the original judgment and that it should be awarded from the date of the amended

judgment.

      In the first appeal, after finding error in the original judgment’s award of

exemplary damages against all defendants jointly and severally, this court

remanded the case for a determination of how much in exemplary damages, if any,

should be awarded against Pollitt. As noted above, the trial court corrected its error

in the amended judgment, awarding exemplary damages against Pollitt

individually in the amount of $20,000. Postjudgment interest “accrues during the

period beginning on the date the judgment is rendered and ending on the date the

judgment is satisfied.” TEX. FIN. CODE § 304.005(a). In a recent series of cases, the

Supreme Court of Texas formulated rules for which judgment should be used for

postjudgment-interest accrual when there is more than one judgment as a result of

an appellate-court remand. See Ventling v. Johnson, 466 S.W.3d 143, 149–51 (Tex.

2015); Long v. Castle Tex. Prod. Ltd. P’ship, 426 S.W.3d 73, 77–82 (Tex. 2014);




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Phillips v. Bramlett, 407 S.W.3d 229, 238–43 (Tex. 2013); see also Whittington v.

City of Austin, 456 S.W.3d 692, 707–08 (Tex. App.—Austin 2015, pet. denied).

      In Ventling, the Court reiterated the rule that it had formulated in Phillips on

which judgment controls for the purpose of postjudgment-interest accrual, noting

that the answer “depends on whether additional evidence is required on remand.”

Ventling, 466 S.W.3d at 149. “‘[W]hen an appellate court remands a case to the

trial court for entry of judgment consistent with the appellate court’s opinion, and

the trial court is not required to admit new or additional evidence to enter that

judgment . . . the date the trial court entered the original judgment is the ‘date the

judgment is rendered,’ and postjudgment interest begins to accrue . . . as of that

date.’” Id. at 150 (quoting Phillips, 407 S.W.3d at 239).

      The trial court did not reopen the record on remand; it did not require or

allow new or additional evidence, and thus it possessed a sufficient record as of the

date of the original judgment to render an accurate judgment. See Long, 426

S.W.3d at 76 (“The rationale behind the postjudgment-interest accrual rule and

exception is that a claimant is entitled to postjudgment interest from the judgment

date once the trial court possesses a sufficient record to render an accurate

judgment.”); Whittington, 456 S.W.3d at 707–08 (concluding that postjudgment

interest properly awarded from original judgment’s date because trial court

disposed of condemnation compensation on remand without considering additional


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evidence or reopening record). Therefore the trial court did not err by awarding

postjudgment interest from the date of the original judgment. We overrule Pollitt’s

second issue.

                                   Conclusion

      We modify the amended judgment to delete the $11,500 award of attorney’s

fees to Computer Comforts, and we affirm the amended judgment as modified.




                                            Michael Massengale
                                            Justice

Panel consists of Justices Jennings, Higley, and Massengale.




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