AFFIRM; and Opinion Filed February 24, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-01657-CV

                         MARK PALLA, Appellant
                                 V.
     BIO-ONE, INC. AYDEMIR ARAPOGLU, AND TRANSTRADE, LLC, Appellee

                       On Appeal from the 14th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 10-02222-A

                                          OPINION
                        Before Justices Moseley, FitzGerald, and Fillmore
                                   Opinion by Justice Fillmore

       Appellant Mark Palla sued appellee Bio-One, Inc. for breach of contract and sued

appellees Aydemir Arapoglu and Transtrade, LLC for tortious interference with an existing

contract. A jury returned a verdict in favor of Palla. Palla filed a motion in the trial court to

disregard a jury finding on damages relating to Palla’s tortious interference with contract claim.

The trial court overruled Palla’s motion and entered a final judgment. Palla contends on appeal

that the trial court erred by failing to apply the proper measure of damages for a tortious

interference with contract claim. According to Palla, appellees are jointly and severally liable for

the actual damages awarded by the jury on Palla’s breach of contract claim. Palla requests that

this Court render judgment awarding Palla those breach of contract damages from Bio-One,

Arapoglu, and Transtrade jointly and severally. We affirm the trial court’s judgment.
                                          Background

       The lawsuit underlying this appeal arose from the alleged breach of, and tortious

interference with, a Commission Agreement (Agreement) entered into between Palla and Bio-

One. Bio-One is a producer of an organic fertilizer replacement. According to Palla’s live

pleading, Palla began marketing Bio-One’s product in August 2003. In December 2005, Palla

and Bio-One entered into the Agreement, which memorialized their prior understanding

concerning Palla’s compensation for locating purchasers and distributors of the Bio-One product.

The Agreement provides a commission to Palla for Bio-One sales generated directly or indirectly

by Palla, Palla’s clients, or any companies associated with Palla in Turkey, Bulgaria, or any other

territories approved by BioOne, including Europe and the United States. Palla helped develop a

relationship between Bio-One and Transtrade, through Transtrade’s employee, Arapoglu, and

“established a joint effort to leverage” Arapoglu’s contacts in Turkey and Bulgaria with contacts

maintained by Palla in Romania, Europe, and throughout the Middle East. In exchange for

Palla’s efforts to develop a relationship between Bio-One and Transtrade, Bio-One and Palla

agreed Palla would receive a “commission for all sales made by Bio-One in Turkey and/or

Bulgaria, which sales were to, through, or with the assistance of Transtrade, all of which would

be under the terms of the Agreement.” In July 2007, Arapoglu severed ties with Palla. In 2009,

Palla discovered the severance of ties was “done in an effort to cut Palla out of the Transtrade

and Bio-One payment structure,” and “Arapoglu, on behalf of Transtrade, actively interfered

with Bio-One’s obligations to pay Palla his due and owing commissions.” Bio-One made sales

of its product “to, through, or with the assistance of Transtrade beginning in January 2007,” but

no commission payments were made to Palla despite the Agreement providing for such

commissions.




                                               –2–
           In his live pleading, Palla sought to recover a commission on all sales of Bio-One’s

product “sold directly to or through Transtrade, or sales by Bio-One to any customer in Turkey

and/or Bulgaria as the direct result of efforts by Transtrade.” Palla also sought an accounting of

all sales by Bio-One to any persons or entity “in Turkey and Bulgaria, or any other territory

granted consent for sales by BioOne [sic], including the United States, Romania and other

European countries, on or after December 20, 2005, so that Palla can calculate the proper amount

of commissions that are due and owing under the terms of the Agreement.”

           The case was tried before a jury. In response to question 1 of the jury charge, the jury

found Bio-One failed to comply with the Agreement. In response to question 2 of the charge, the

jury found the amount of money that would fairly and reasonably compensate Palla for his

damages that resulted from Bio-One’s failure to comply with the Agreement is $278,718.28. In

response to question 3 of the charge, the jury found Transtrade and Arapoglu intentionally

interfered with the Agreement. 1 In response to question 4 of the charge, the jury found the

amount of money that would fairly and reasonably compensate Palla for his damages

proximately caused by Transtrade and Arapoglu’s interference with the Agreement is

$100,000.00.

           Bio-One filed a motion for the trial court to disregard the jury’s answer to question 4 of

the charge and for entry of judgment. In his motion to disregard, Palla argued the damages

found on his tortious interference with contract claim were improper because the damages should

have put him in the same economic position he would have been in had the contract been

performed. Accordingly, Palla argued the jury’s finding of damages for tortious interference




     1
       The jury was instructed that the elements of intentional interference with an existing contract are (1) a contract subject to interference; (2)
an act of interference that was willful and intentional; (3) the act being the proximate cause of the Plaintiff’s damage, and (4) actual damage or
loss.



                                                                        –3–
with contract should have been in the same amount as the jury’s finding of damages for his

breach of contract claim.

       The trial court denied Palla’s motion to disregard the jury’s answer to question 4 of the

charge, and the trial court signed a judgment in favor of Palla against Bio-One, Arapoglu, and

Transtrade, jointly and severally, in the amount of $100,000.00 and against Bio-One in the

amount of $178,718.28. Palla filed this appeal, attacking the trial court’s judgment.

                                             Damages

       In his first issue, Palla asserts the trial court erred by failing to apply the proper measure

of damages for a tortious interference with contract claim.         Palla contends the trial court

incorrectly denied his motion to disregard the jury’s finding of damages for Arapoglu’s and

Transtrade’s tortious interference in response to question 4 of the jury charge. In his second

issue, Palla asserts the final judgment should be reversed and a judgment rendered awarding

Palla the amount of breach of contract damages found by the jury in response to question 2 of the

charge from Bio-One, Arapoglu, and Transtrade jointly and severally. Appellees argue that jury

charge questions 2 and 4 are not in conflict, but instead have been harmonized by the jury

because in response to question 2 of the charge, the jury found the damages proximately caused

by Bio-One’s failure to comply with the Agreement, and in response to question 4 of the charge,

the jury found the damages proximately caused by Arapoglu and Transtrade’s tortious

interference with the Agreement.

                                        Standard of Review

       “A trial court should disregard a jury finding if the jury question to which the finding

responds is legally defective; the answer to a legally defective question is immaterial to the

judgment.” Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 394 (Tex. App.—Houston

[1st Dist. 2013, pet. denied) (en banc). “Similarly, a trial court should disregard a jury finding if

                                                –4–
the evidence is legally insufficient to support it, or if a directed verdict would have been proper

because a legal principle precludes recovery.” Id.; see also TEX. R. CIV. P. 301.

         Whether a jury finding is supported by the evidence is resolved under the same standard

of review applied to challenges to the legal sufficiency of the evidence. McAlpin v. Sanchez, 858

S.W.2d 501, 508 (Tex. App.—Corpus Christi 1993, writ denied). Accordingly, we consider only

evidence and inferences supporting the finding and disregard all contrary evidence and

inferences. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Cantu v.

Butron, 921 S.W.2d 344, 348 (Tex. App.—Corpus Christi 1996, writ denied). In so doing, we

must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless

reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

                                              Analysis

       Palla contends he is entitled to recover from Bio-One, Arapoglu, and Transtrade, jointly

and severally, $278,718.28 in breach of contract damages found by the jury. Palla asserts the

trial court erred in failing to sign a judgment imposing joint and several liability of appellees for

the breach of contract damages because in a case such as this involving tortious interference with

contract, the party aggrieved by the tortious interference is entitled, as a matter of law, to recover

benefit of the bargain damages, the same measure of damages applied by the jury to Palla’s

breach of contract claim.

       “The basic measure of actual damages for tortious interference with contract is the same

as the measure of damages for breach of the contract interfered with, to put the plaintiff in the

same economic position he would have been in had the contract interfered with been actually

performed.” Am. Nat’l. Petroleum Co. v. Transcontinental Gas Pipe Line Corp., 798 S.W.2d

274, 278 (Tex. 1990); see also Sandare Chem. Co. v. WAKO Int’l, Inc., 820 S.W.2d 21, 24 (Tex.

App.—Fort Worth 1991, no pet.) (“[T]he general rule [is] that the measure of damages for

                                                 –5–
tortious interference with contract is the same as for breach of contract, attempting to put the

plaintiff in the same economic position he would have been in had the contract not been

breached.”) (citing Armendariz v. Mora, 553 S.W.2d 400, 406 (Tex. Civ. App.—El Paso 1977,

writ ref’d n.r.e.)); Maxvill-Glasco Drilling Co., Inc. v. Royal Oil & Gas Corp., 800 S.W.2d 384,

386 (Tex. App.—Corpus Christi 1990, writ denied) (“Generally, the basic measure of actual

damages for tortious interference with a contract is the same as the measure of damages for the

breach of the contract.”) (citing Am. Nat’l. Petroleum Co., 798 S.W.2d at 278).

       The general rule, however, is not without exception. “Although breach of the interfered-

with contract is probably the most common measure of damage, tortious interference does not

limit the damage for the tort to that alone.” Fridl v. Cook, 908 S.W.2d 507, 513 (Tex. App.—El

Paso 1995, writ dismissed w.o.j.).       “Damages for tortious interference with contract are

necessarily limited to damages proximately caused by the act of interference and do not extend

to any other breach of the contract that the contracting party happened to commit.” Homoki v.

Conversion Servs., Inc., 717 F.3d 388, 401 (5th Cir. 2013) (applying Texas law) (amounts for

breach of contract and tortious interference were the same because defendant admitted the only

contractual breach at issue was caused by the interference).

       A “plaintiff must adduce substantial, competent evidence of a character that can permit

reasonable men and women to determine that damage was caused by the breach [of contract] or

[tortious] interference, and to assess with reasonable certainty the amount of damage and degree

of causation of the damage by the breach [of contract] or [tortious] interference relative to other

factors.” Univ. Computing Co. v. Mgmt. Sci. Am., 810 F.2d 1395, 1398 (5th Cir. 1987) (applying

Texas law); see also RESTATEMENT (SECOND) OF TORTS §774A cmt. e (1979) (“The [party who

tortiously interfered] and the contract breaker are both wrongdoers . . ., and each is liable for the

entire loss that he has caused.”).

                                                –6–
           A court may not strike down jury answers on the ground of conflict if there is any

reasonable basis on which the answers may be reconciled. Consol. Tex. Fin. v. Shearer, 739

S.W.2d 477, 482 (Tex. App.—Fort Worth 1987, pet. ref’d) (divergent answers to jury questions

concerning damages that, while potentially overlapping, are not identical, do not present a case

of conflict requiring the court to strike them down). Here, the question is whether there is

sufficient evidence that Arapoglu and Transtrade’s interference with the Agreement was the

proximate cause of the entire amount of damages the jury found for breach of the Agreement. 2 If

the evidence on that question is insufficient, the jury’s responses to questions 2 and 4 in the jury

charge are not necessarily inconsistent; the jury could have determined that Arapoglu and

Transtrade were responsible for some, but not all, of the damages resulting from Bio-One’s

breach of the Agreement. No record of the evidence admitted at trial was brought forward on

appeal, and there is, therefore, no evidence that the tortious interference found by the jury was

the proximate cause of the entire amount of breach of contract damages. See id. (“The record

does not reveal whether [the party claiming tortious interference] depends upon breach of the . . .

contract to establish damages under his tortious interference claim.”). 3

           An appellant bears the burden to bring forward a record that enables the appellate court to

determine whether appellant’s complaints constitute reversible error. See Enter. Leasing Co. of

Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam); Christiansen v. Prezelski,


     2
       Palla’s proposed jury charge did not request an instruction that the measure of damages for breach of contract and tortious interference
was the same. Palla did not request a jury question as to whether Arapoglu and Transtrade’s tortious interference proximately caused the breach
of contract. In fact, jury questions 1 and 2, regarding Bio-One’s breach of contract and Palla’s damages resulting from Bio-One’s failure to
comply with the Agreement, and jury questions 3 and 4, regarding Arapoglu and Transtrade’s tortious interference with the Agreement and the
damages proximately caused by the tortious interference, were questions specifically requested by Palla in his proposed jury charge. A party
cannot ask something of the trial court and then complain that the court erred by granting his request. See Tittizer v. Union Gas Corp., 171
S.W.3d 857, 861 (Tex. 2005) (citing Ne. Tex. Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487, 488 (1942)). Even if we assume, without
deciding, that the charge was erroneous, the doctrine of invited error provides that a party may not complain of an error which the party invited.
In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009); Tittizer, 171 S.W.3d at 862.
     3
       The reporter’s record consists of a seventeen-page record of the hearing of Palla’s Motion for Findings of Attorney’s Fees and Motion to
Disregard Jury Finding Number 4 and Entry of Judgment. While the record on appeal contains a discussion between the trial judge and the
attorneys for the parties regarding evidence from which the jury could make a damage finding of $100,000.00 for tortious interference, there is no
record of the evidence admitted at trial regarding damages.



                                                                      –7–
782 S.W.2d 842, 843 (Tex. 1990) (stating that burden is on appellant to present sufficient record

to show error requiring reversal); Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 582 (Tex.

App.—Houston [1st. Dist.] 2007, no pet.) (it is appellant’s burden to bring forward a sufficient

record to show the error committed by the trial court). Issues depending on the state of the

evidence cannot be reviewed without a complete record, including the reporter’s record. See

Favaloro v. Comm’n for Lawyer Discipline, 994 S.W.2d 815, 820 (Tex. App.—Dallas 1999, pet.

stricken). At oral submission of the appeal, Palla’s counsel stated the reporter’s record of trial

was not requested, because it is Palla’s position he is entitled to prevail on appeal as a matter of

law. “[W]hen a record is incomplete (and the rules on partial records do not apply—which they

do not), we must presume that the missing portion of the record supports the factual

determinations made by the fact-finder.” In re Estate of Arrendell, 213 S.W.3d 496, 503 (Tex.

App.—Texarkana 2006, no pet.) (citing Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002)). 4

           Total damages for Bio-One’s failure to pay Palla commissions due under the Agreement

would not necessarily have been the same amount Bio-One should have paid Palla had Arapoglu

and Transtrade not interfered with the relationship between Bio-One and Palla. Indeed, Palla’s

live pleading sought an accounting:

           of all sales by Bio-One to any person or entity in the territory of Turkey and
           Bulgaria, or any other territory granted consent for sales by Bio-One, including
           the United States, Romania and other European countries, on or after December
           20, 2005, so that Palla can calculate the proper amount of commissions that are
           due and owing under the terms of the Agreement.

The record on appeal contains no evidence concerning the location of product sales allegedly

justifying Palla’s unpaid commissions, and whether those product sales arose from the

relationship between Bio-One and Transtrade or otherwise. Accordingly, we have no basis in the

     4
        Where only a partial reporter’s record has been designated, we must presume the partial record constitutes the entire record for purposes of
reviewing the stated issues. TEX. R. APP. P. 34.6(c)(4). “This presumption applies even if the statement [of the points or issues to be presented
on appeal] includes a point or issue complaining of the legal or factual sufficiency of the evidence to support a specific factual finding identified
in that point or issue.” Id.



                                                                       –8–
record for concluding the entire amount of the breach of contract damages in this case related to

Bio-One product sales arising from the relationship between Bio-One and Transtrade.

       The jury apparently found $278,718.28 to be the proper amount of damages resulting

from Bio-One’s breach of the Agreement, and the jury apparently found $100,000.00 be the

proper amount of damages resulting from Arapoglu and Transtrade’s tortious interference with

the relationship between Palla and Bio-One. The jury’s findings indicate it determined the

damages related to the breach of contract claim and the damages related to the tortious

interference with contract claim were coextensive only with respect to the lost benefits of the

Agreement which were a consequence of the tortious interference. Thus, the damages related to

tortious interference could, and apparently did, differ from the total damages for Bio-One’s

breach of the Agreement, and the variance between the damages found for breach of the

Agreement and for tortious interference with contract reflects the jury’s judgment that Arapoglu

and Transtrade were not responsible for all of the damages caused Palla by Bio-One’s breach of

the Agreement. See Am. Nat’l. Petroleum Co., 798 S.W.2d at 278; Homoki, 717 F.3d at 401. On

this record, question 4 of the jury charge inquiring about the amount of money necessary to

compensate Palla for tortious interference with contract was not immaterial to this dispute.

Accordingly, we cannot conclude the trial court erred by denying Palla’s motion to disregard the

jury’s response to question 4 of the jury charge. We resolve Palla’s first issue against him.

       Having concluded there was no error in the trial court’s denial of Palla’s motion to

disregard the jury’s response to question 4 of the charge, we conclude the trial court did not err

by entering its judgment that Bio-One, Arapoglu, and Transtrade are jointly and severally liable

for damages in the amount of $100,000, rather than jointly and severally liable for damages in

the amount of $278,718.28. Accordingly, we resolve Palla’s second issue against him.

                                           Conclusion

                                               –9–
      Having resolved Palla’s first and second issues against him, we affirm the trial court’s

judgment.




                                                /Robert M. Fillmore/
                                                ROBERT M. FILLMORE
                                                JUSTICE



121657F.P05




                                           –10–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

MARK PALLA, Appellant                                On Appeal from the 14th Judicial District
                                                     Court, Dallas County, Texas,
No. 05-12-01657-CV         V.                        Trial Court Cause No. 10-02222-A.
                                                     Opinion delivered by Justice Fillmore,
BIO-ONE, INC., AYDEMIR ARAPOGLU,                     Justices Moseley and FitzGerald
AND TRANSTRADE, LLC, Appellees                       participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellees Bio-One, Inc., Aydemir Arapoglu, and Transtrade, LLC
recover their costs of this appeal from appellant MARK PALLA.


Judgment entered this 24th day of February, 2014.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE




                                              –11–
