                                                                                     ACCEPTED
                                                                                04-14-00614-CV
                                                                     FOURTH COURT OF APPEALS
                                                                          SAN ANTONIO, TEXAS
                                                                           2/10/2015 1:32:51 AM
                                                                                  KEITH HOTTLE
                                                                                         CLERK
                            NO. 04-14-00614-CV
               In the Fourth District Court of Appeals
                         San Antonio, Texas                     FILED IN
                                                         4th COURT OF APPEALS
                     ______________________               SAN ANTONIO, TEXAS
                                                         02/10/2015 1:32:51 AM
                                                             KEITH E. HOTTLE
                     HECTOR GONZALEZ,                             Clerk


                                      Appellant,

                                 v.

           ATENEA CAPITAL MARKETS FUND, L.P.,

                                  Appellee.
                      ___________________

        ON APPEAL FROM THE 57TH DISTRICT COURT
                 BEXAR COUNTY, TEXAS
           TRIAL COURT CAUSE NO. 2012-CI-13872
                   ___________________

                    BRIEF OF APPELLANT
                     ___________________

                           George D. Durham, Esq.
                            Attorney for Appellee
                           State Bar No. 24082940
                           gsklawfirm@gmail.com
                             517 W. Nolana Ste. 6
                             McAllen, TX 78504
                          Telephone: (956) 900-4187
                          Facsimile: (956) 524-5153

           Attorney for Appellant Hector Gonzalez
ORAL ARGUMENT REQUESTED




                                       1
                               IDENTITY OF PARTIES

Appellant:

 Hector Gonzalez

Appellate Counsel:

George D. Durham, Esq.
Attorney for Appellee
State Bar No. 24082940
gsklawfirm@gmail.com
517 W. Nolana Ste. 6
McAllen, TX 78504
Telephone: (956) 900-4187
Facsimile: (956) 524-5153

Appellee:

Atenea Capital Markets Fund, L.P.

Trial and Appellate Counsel:

Lance Geppert
Attorney at Law
SBN 24007234
8000 West Av.,
San Antonio Texas 78213
(210) 888-9836/(210) 316-0000 Phone
(210) 855-9990 Fax
GEPPERTLAW@GRANDECOM.NET




                                        2
TABLE OF CONTENTS
                                                                                                                Page

IDENTITY OF PARTIES...........................................................................................2

INDEX OF AUTHORITIES.......................................................................................5

REFERENCE CITATION GUIDE.............................................................................6

STATEMENT REGARDING ORAL ARGUMENT. ................................................7

STATEMENT OF THE CASE...................................................................................8

ISSUES PRESENTED................................................................................................9

STATEMENT OF FACTS. ......................................................................................13

SUMMARY OF ARGUMENT. ...............................................................................14

STANDARD OF REVIEW ......................................................................................15

ARGUMENT. ...........................................................................................................16

          I.       ATENEA CAPITAL MARKETS FUND, L.P. HAS NO STANDING
                   TO SUE ON BEHALF OF INDIVIDUAL INVESTORS................16

                   A.       Standing may be brought at appeal..........................................16

                   B.       The doctrine of associational standing prohibits an organization
                            from recovering money damages when the amount varies with
                            each member............................................................................17

          II.      THE ISSUES WERE NOT RIPE FOR ADJUDICATION................18

                   A.       Standing may be brought at appeal..........................................18

                   B.       On the face of the pleadings Atenea has not suffered harm.....19

          III.     THE TRIAL COURT’S JUDGMENT VIOLATES THE SINGLE

                                                           3
                    SATISFACTION RULE BY AWARDING BOTH TORT AND
                    CONTRACT DAMAGES FOR A SINGLE INJURY
                    ............................................................................................22

CONCLUSION. .........................................................................................................   24

CERTIFICATE OF SERVICE..................................................................................25

CERTIFICATE OF COMPLIANCE.........................................................................26




                                                              4
                                   INDEX OF AUTHORITIES

 Case                                                                                              Page(s)


Austin Hardwoods, Inc. v. Vanden Berghe Co.,
       917 S.W.2d 320 (Tex. App.—El Paso 1995, writ denied).............................15

Household Credit Serv., Inc. v. Driscol,
      989 S.W.2d 72 (Tex. App.—El Paso 1998, pet. Denied) .............................22

Hunt v. Washington State Apple Advertising Commission
       432 U.S. 333, 343, 97 S.Ct. 2434 53 L.Ed.2d 383 (1977)............................17

Parkway Co. v. Woodruff,
      901 S.W.2d 434 (Tex. 1995) .........................................................................22

Patterson v. Planned Parenthood,
       971 S.W.2d 439, 442-443 (Tex.1998) .....................................................18-21

Pegasus Energy Group, Inc. v. Cheyenne Petrol. Co.,
      3 S.W.3d 112 (Tex. App.—Corpus Christi 1999, pet. denied) .....................15

Precast Structures, Inc. v. City of Houston,
       942 S.W.2d 632 (Tex. App.—Houston [14th Dist.] 1996, no writ)..............15

Tex. Ass'n of Business v. Air Control Bd.,
        852 SW 2d 440, 445- (Tex.1993) ...........................................................16-19

Tigner v. City of Angleton,
       949 S.W.2d 887 (Tex. App.—Houston [14th Dist.] 1997, no writ). .............15

Tony Gullo Motors I, L.P. v. Chapa,
      212 S.W.3d 299 (Tex. 2006) .........................................................................23

Waite Hill Serv., Inc. v. World Class Metal Works, Inc.,
       959 S.W.2d 182 (Tex. 1998) .........................................................................22




                                                      5
                       REFERENCE CITATION GUIDE

The Parties

     This Brief may refer to the parties as follows:

              Hector Gonzalez                                  “Gonzalez”

              Atenea Capital Markets Fund, L.P.                “Atenea”

              Julian Mortera                                   “Mortera”

     This Brief may refer to Appellees Atenea Capital Markets Fund, L.P. And Julian
     Mortera, collectively as “Plaintiffs.”

The Record on Appeal

     This Brief will refer to the record as follows:

              Clerk’s Record                                   “CR __”




                                         6
             STATEMENT REGARDING ORAL ARGUMENT

      Gonzalez respectfully requests oral argument in this appeal. Oral argument

may be helpful to enable the Court to sort through the claims that Plaintiffs have

asserted                            against                             Gonzalez.




                                        7
                         STATEMENT OF THE CASE

Nature of the Case:          This is a dispute by Atenea against Gonzalez for
                             monies allegedly purloined in investing
                             misadventures. Atenea sought to sue for money
                             damages on behalf of investors on the basis that
                             they would eventually sue Atenea. To date no
                             investors have sued. Atenea sued multiple foreign
                             defendants under multiple theories of liability

Trial Court:                 57th Judicial District Court, Bexar County, Texas.

Course of Proceedings:       This case proceeded to a bench trial for damages
                             on May 27th, 2014. (CR_100) The trial court's
                             decision was reduced to a final judgment on June
                             20th, 2014 (CR_102) and the cause was severed
                             a f t e r a l l ot he r de f e nda nt s w e r e non- s ui t e d
                             on A ugus t 1 s t , 2014 . (CR_105)

Trial Court’s Disposition:   On June 20th, 2014, the trial court signed a final
                             judgment in Plaintiffs’ favor. (CR_102) The trial
                             court found Gonzalez liable on damages of
                             fraud, negligent misrepresentation, tortious
                             interference with a contract, breach of contract,
                             civil conspiracy, and failure to provide an
                             accounting. The Court’s judgment awarded
                             Atenea, jointly and severally, against Hector
                             Gonzalez and Gonzalez and Duarte LLC,
                             $4,224,426.00 in damages, plus costs of court.




                                        8
                              ISSUES PRESENTED

      Pursuant to Rule 38.2(a) of the Texas Rules of Appellate Procedure,

Gonzalez identifies the following issues in this appeal:

1.    DOES ATENEA CAPITAL MARKETS FUND, L.P. HAVE STANDING TO
      SUE ON BEHALF OF INDIVIDUAL INVESTORS?

      a.     Is Standing a jurisdictional defect that may be brought at appeal?

      b.     Does the doctrine of associational standing prohibit an organization
             from recovering money damages when the amount varies with each
             member?

2.    WERE THE ISSUES RIPE FOR ADJUDICATION?

      a.     Is Standing a jurisdictional defect that may be brought at appeal?

      b.     Has Atenea suffered harm?

3.    DOES THE TRIAL COURT’S JUDGMENT VIOLATE THE
      SINGLE SATISFACTION RULE BY AWARDING BOTH TORT
      AND CONTRACT DAMAGES FOR A SINGLE INJURY?

      a.     Single Satisfaction Rule — Does the trial court’s judgment violate the
             single satisfaction rule by awarding both tort damages and contract
             damages for a single indivisible injury arising from G o n z a l e z '
             actions?




                                          9
                NO. 04-14-00614-CV

  In the Fourth District Court of Appeals
            San Antonio, Texas
        ______________________


        HECTOR GONZALEZ,

                         Appellant,

                    v.

ATENEA CAPITAL MARKETS FUND, L.P.,

                     Appellee.
         ___________________

       BRIEF OF APPELLANT
        ___________________




                          10
TO THE HONORABLE FOURTH COURT OF APPEALS:

       Appellant Hector Gonzalez respectfully files this Brief of Appellant asking

that this Court reverse the trial court’s $4.2 million judgment against Gonzalez in

Cause No. 2012 CI-13872, Atenea Capital Markets Fund, L.P. v. Gonzalez et al, in the 5 7 th

Judicial District Court of Bexar County, Texas. Gonzalez requests that this Court

render judgment that Appellee Atenea take nothing on its claims against Gonzalez.

Each of Appellee's claims rests on an alleged authority that is prohibited by law

and                                 theoretical                                 damages.




                                            11
                                     STATEMENT OF FACTS
        Summary
         This case arises arises from Plaintiff, a foreign entity registered to do business in the State of

 Texas, allegedly representing foreign investors, against foreign Defendants for acts allegedly accruing in

 Texas. (CR_1)

        According to the face of the pleadings the company was created by the Defendants. Some

foreign investors may have been limited members of Plaintiff, but their names and claims were never

alleged. The only people explicitly named as members of Plaintiff on the face of Plaintiff's petition are

Defendant Aracely Duarte Mendez, “General Partner”, and third-party Julian Mortera, “General Partner

in nominee” and “Director of the Fund”. On the face of the Pleadings Mr. Mortera never had control over

the fund or its proceeds. (CR_1-7)

        Plaintiff alleged that the unnamed investors placed money with the Defendants by and through

Plaintiff. Some investors may have become limited partners with Plaintiff, while others may not be.

Although there are multiple investors with varying degrees of potential claims, they are unilaterally

lumped with Plaintiff. Plaintiff has not suffered actual damages, had not been sued, and has not otherwise

been harmed by investors' claims. On the face of its pleadings Plaintiff, is subject to potential liability to

the unnamed and unjoined investors. It is not shown how Plaintiff would allocate any recovery among

potential unnamed claimants. (CR_1-7).

        Taking the mantle of theoretical liability to its investors, Plaintiff caused its action for fraud,

negligent misrepresentation, tortious interference with a contract, breach of


                                                      12
contract, civil conspiracy, and failure to provide an accounting.                          (CR_1-7).

Moreover, after failing to serve the other Defendant's/Its owners, Plaintiff has severed them and non-

suited them from this cause of action. (CR_93, CR_25). The interests of any investors in the other

Defendant's is not Plaintiff's concern.

         Procedural History

        On August 23rd, 2012, Atenea sought to sue for money damages on behalf of

 investors on the basis that they would eventually sue Atenea. To date no investors

 have sued. (CR_1-7).

        After multiple motions to compel discovery, Plaintiff was granted death

penalty sanctions against Gonzalez. (CR_22-88). This case proceeded to a bench

trial in the 57th Judicial District Court, Bexar County, Texas for damages on

May 27th, 2014. (CR_100). The trial court's decision was reduced to a final

judgment on June 20th, 2014 (CR_102) and the cause was severed a f t e r a l l ot he r

de f e n d a n t s w e r e n on -s ui t e d on A ugus t 1 s t , 2014. (CR_105).

        The trial court found Gonzalez liable on damages of fraud, negligent

 misrepresentation, tortious interference with a contract, breach of contract, civil

 conspiracy, and failure to provide an accounting. The Court’s judgment awarded

 Atenea, jointly and severally, against Hector Gonzalez and Gonzalez and

 Duarte, $4,224,426.00 in damages, plus costs of court.



                                                  13
                           SUMMARY OF ARGUMENT

      Doctrine of Associational Standing. Atenea does not have standing to sue on

behalf of individual investors with disparate claims and interests. As the Texas

Supreme Court Ruled in Air Control, Atenea is barred as a matter of law from

asserting a claim without the joinder of the true owners of the interests as bar.

Because standing is a jurisdictional defect it may be alleged at any time. Any

judgment stemming from this action constitutes an advisory opinion and is

constitutionally barred.

      Ripeness. Because Atenea has not actually been sued by anyone with

interests in this matter, it has not suffered harm. As the Texas Supreme Court

Ruled in Planned Parenthood, Atenea lacks standing and is barred as a matter of

law from bringing a suit for potential claims. Because standing is a jurisdictional

defect it may be alleged at any time. Any judgment stemming from this action

constitutes an advisory opinion and is constitutionally barred.

      Single Satisfaction Rule. The trial court’s judgment impermissibly awards both

a contract remedy and a tort remedy. As the Texas Supreme Court ruled in Chapa,

a plaintiff may recover attorney’s fees on a contract claim or exemplary damages on

a tort claim, but it may not recover both on a single injury. The trial court’s judgment

violates the rule in Chapa.

     Gonzalez respectfully asks this Court to reverse the trial court’s judgment


                                          14
and render judgment that Plaintiff take nothing.

                                STANDARD OF REVIEW

       After a bench trial, the trial court’s findings of fact have the same effect as a

 jury’s verdict. Tigner v. City of Angleton, 949 S.W.2d 887, 888 (Tex. App.—Houston

 [14th Dist.] 1997, no writ).

       A trial court’s conclusions of law likewise are not binding on this Court. See

 Austin Hardwoods, Inc. v. Vanden Berghe Co., 917 S.W.2d 320, 322 (Tex. App.—El

 Paso 1995, writ denied). This Court must review a trial court’s conclusions of law

 de novo. Precast Structures, Inc. v. City of Houston, 942 S.W.2d 632, 636 (Tex.

 App.—Houston [14th Dist.] 1996, no writ). “As the final arbiter of the law, the

 appellate court has the power and the duty to evaluate independently the legal

 determinations of the trial court.” Pegasus Energy Group, Inc. v. Cheyenne Petrol.

 Co., 3 S.W.3d 112, 121 (Tex. App.—Corpus Christi 1999, pet. denied).




                                          15
                                        ARGUMENT

  I. ATENEA CAPITAL MARKETS FUND, L.P. HAS NO STANDING TO
     SUE ON BEHALF OF INDIVIDUAL INVESTORS


      A. Standing may be raised on appeal

      Atenea's pleadings do not raise certain fundamental facts necessary for the

court to exercise jurisdiction. Atenea's pleadings are deficient and may be attacked

at the appellate level:

            “Subject matter jurisdiction is an issue that may be raised for the first time

            on appeal; it may not be waived by the parties. Texas Employment

            Comm'n v. International Union of Elec., Radio and Mach. Workers, Local

            Union No. 782, 163 Tex. 135, 352 S.W.2d 252, 253 (1961);

            RESTATEMENT (SECOND) OF JUDGMENTS § 11, comment c

            (1982). This court recently reiterated that axiom in Gorman v. Life

            Insurance Co., 811 S.W.2d 542, 547 (Tex.), cert. denied, ___ U.S. ___,

            112 S.Ct.     88,   116   L.Ed.2d   60   (1991).   Because    we    conclude

            that standing is a component of subject matter jurisdiction, it cannot be

            waived and may be raised for the first time on appeal. “

Tex. Ass'n of Business v. Air Control Bd., 852 SW 2d 440, 445- Tex: Supreme

Court 1993. As stated by the Texas Supreme Court, standing is a component of

subject matter jurisdiction. If Atenea does not have standing then the Court does

not have subject matter jurisdiction.

      B. The doctrine of associational standing prohibits an organization

                                                16
 from recovering money damages when the amount varies with each member.

        Atenea has presented a lawsuit to recover money damages on behalf of

 investors who may potentially sue it. (CR_4). There are multiple investors, many

 of whom are limited liability partners in Plaintiff, some of whom presumably are

 not. (CR_4). These investors are not enumerated. There is no showing in Plaintiff's

 pleadings which investors have been damaged to what extent. (CR_4)

             “Furthermore, an organization should not be allowed to sue on behalf of

             its members when the claim asserted requires the participation of the

             members individually rather than as an association, such as when the

             members seek to recover money damages and the amount of damages

             varies with each member.”

Tex. Ass'n of Business v. Air Control Bd., 852 SW 2d 440, 447 - Tex: Supreme Court

1993

       The United States has articulated a standard for associational standing: “a) its

members would otherwise have standing to sue in their own right; (b) the interests it

seeks to protect are germane to the organization's purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of individual members in

the lawsuit.” Hunt v. Washington State Apple Advertising Commission 432 U.S. 333,

343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). In the case at bar, it is alleged by

Plaintiff that its members/investors would have standing to sue Plaintiff in their own

right. (CR_4). It would appear by Plaintiff's own pleadings that it passes prong (a).


                                             17
Plaintiff likewise alleges that its purpose is to attract investors. However, some

investors are not limited liability partners with Plaintiff. (Cr_4). Plaintiff never

includes those investors as part of its petition, and does not explain how much each is

owed by Plaintiff. (CR_1-7). This would fail prong (b). Likewise, in order to prove

its potential liability, Plaintiff would need to prove its investor's interests were lost,

necessitating their involvement. Thus, Plaintiff would fail prong (c).

      Because Atenea fails the last two prongs of Hunt, it may not bring suit on

behalf of its potential investor litigants. Moreover, such defects constitute an

advisory opinion. As Planned Parenthood states:

             “The   constitutional roots of justiciability doctrines such as ripeness, as well as

             standing and mootness, lie in the prohibition on advisory opinions, which in turn

             stems from the separation of powers doctrine. See TEX. CONST. art. II, § 1

             (separation of powers), art. IV, §§ 1, 22...The courts of this state are not empowered

             to give advisory opinions. Wessely Energy Corp. v. Jennings, 736 S.W.2d 624, 628

             (Tex.1987); United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 859

             (Tex.1965); Alamo Express v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815,

             827 (1958). This prohibition extends to cases that are not yet ripe. See Camarena v.

             Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex.1988); Public Util. Comm'n

             v. Houston Lighting & Power Co., 748 S.W.2d 439, 442 (Tex.1987); City of

             Garland v. Louton, 691 S.W.2d 603, 605 (Tex.1985); California Prod., Inc. v.

             Puretex Lemon Juice, 160 Tex. 586, 334 S.W.2d 780, 783 (1960). A case is not ripe

             when its resolution depends on contingent or hypothetical facts, or upon events that

             have not yet come to pass. See Camarena, 754 S.W.2d at 151”



                                                    18
Patterson v. Planned Parenthood, 971 S.W.2d 439, 442-443 (Tex.1998)

Because this order constitutes an advisory opinion, and because the court is not

empowered to make an advisory opinion, Plaintiff therefore should take nothing.

II    THE ISSUES WERE NOT RIPE FOR ADJUDICATION

      A. Standing May be Raised on Appeal

      As above, ripeness falls within the ambit of standing: “While the trial court

framed this issue as one of standing, we view it more precisely as one

of ripeness. Ripeness, like standing, is a threshold issue that implicates subject

matter jurisdiction, Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928

(Tex.1998),” Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998).

Relating back to what the Texas Supreme Court has already noted on subject matter

jurisdiction,

                “Subject matter jurisdiction is an issue that may be raised for the first

                time on appeal; it may not be waived by the parties. Texas Employment

                Comm'n v. International Union of Elec., Radio and Mach. Workers,

                Local Union No. 782, 163 Tex. 135, 352 S.W.2d 252, 253 (1961);

                RESTATEMENT (SECOND) OF JUDGMENTS § 11, comment c

                (1982). This court recently reiterated that axiom in Gorman v. Life

                Insurance Co., 811 S.W.2d 542, 547 (Tex.), cert. denied, ___ U.S. ___,

                112 S.Ct. 88, 116 L.Ed.2d 60 (1991). Because we conclude

                that standing is a component of subject matter jurisdiction, it cannot be

                waived and may be raised for the first time on appeal. “

                                                  19
 Tex. Ass'n of Business v. Air Control Bd., 852 SW 2d 440, 445- Tex: Supreme

 Court        1993. Thus, ripeness is an issue which may be addressed for the first

 time on appeal.

      B. Has Atenea suffered harm?

      Ripeness presupposes that the Plaintiff has suffered harm or is about to suffer

imminent harm. The test for ripeness is enumerated in Patterson v. Planned

Parenthood:

            “At the time a lawsuit is filed,ripeness asks whether the facts have

            developed sufficiently so that an injury has occurred or is likely to occur,

            rather than being contingent or remote. See Nichol,Ripeness and the

            Constitution, 54 U. CHI. L.REV. 153, 169 (1987); 13A WRIGHT ET

            AL., FEDERAL PRACTICE AND PROCEDURE, § 3532.1, at 130 (2d

            ed.1984).Ripeness thus focuses on whether the case involves "uncertain or

            contingent future events that may not occur as anticipated, or indeed may

            not occur at all." Wright, supra,§ 3532, at 112. By maintaining this focus,

            the ripeness doctrine serves to avoid premature adjudication.”

Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998)

      On the face of its pleadings, Atenea has never been sued or otherwise harmed

in any way. The entity itself is not being threatened. (CR_1-7). Atenea has sued

Gonzalez under the theory that its investors MIGHT sue, but none actually have to

this day. (CR_4). Atenea does not allege that it has a possessory or fiduciary interest

over the investor's funds. (CR_1-7). While Atenea alleges that Gonzalez had such a

                                              20
fiduciary relationship (CR_5), Atenea declines to place that same relationship on

itself, instead calling it a “valid relationship” (CR_5). Atenea would seek to be a

third-party beneficiary, but it does not have a justiciable controversy against it

(CR_1-7). There is nothing to prevent the potential litigants from suing Gonzalez of

their own volition. Atenea thus does not to this day have any causes of action against

it, and thus did not satisfy the ripeness doctrine for standing.

      Because Atenea fails the ripeness test, it may not bring suit on behalf of its

potential investor litigants. Moreover, such defects constitute an advisory opinion.

As Planned Parenthood states:

             “The constitutional roots of justiciability doctrines such as ripeness, as

             well as standing and mootness, lie in the prohibition on advisory opinions,

             which in turn stems from the separation of powers doctrine. See TEX.

             CONST. art. II, § 1 (separation of powers), art. IV, §§ 1, 22...The courts

             of this state are not empowered to give advisory opinions. Wessely

             Energy Corp. v. Jennings, 736 S.W.2d 624, 628 (Tex.1987); United

             Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 859 (Tex.1965); Alamo

             Express v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815, 827

             (1958).   This   prohibition   extends   to   cases   that   are   not   yet

             ripe. See Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151

             (Tex.1988); Public Util. Comm'n v. Houston Lighting & Power Co., 748

             S.W.2d 439, 442 (Tex.1987); City of Garland v. Louton, 691 S.W.2d 603,

             605 (Tex.1985); California Prod., Inc. v. Puretex Lemon Juice, 160 Tex.


                                               21
            586, 334 S.W.2d 780, 783 (1960). A case is not ripe when its resolution

            depends on contingent or hypothetical facts, or upon events that have not

            yet come to pass. See Camarena, 754 S.W.2d at 151”

Patterson v. Planned Parenthood, 971 S.W.2d 439, 442-443 (Tex.1998)

      Because this order constitutes an advisory opinion, and because the court is

not empowered to make an advisory opinion, Plaintiff therefore should take nothing.

       III The Trial Court’s Judgment Violates the Single Satisfaction
       Rule by Awarding Both Tort and Contract Damages for a Single Injury

       Under the single satisfaction rule, a plaintiff may not receive more than one

recovery for the same injury. Waite Hill Serv., Inc. v. World Class Metal Works, Inc.,

959 S.W.2d 182, 184 (Tex. 1998). A trial court’s judgment violates this rule if it

allows the plaintiff to recover on two or more overlapping theories of liability for a

single injury. Parkway Co. v. Woodruff, 901 S.W.2d 434, 441 (Tex. 1995). “[T]he

one satisfaction rule limits a plaintiff’s recovery to one of several overlapping

theories, notwithstanding that elements required under the separate theories of action

vary somewhat and notwithstanding that the amounts awarded vary from claim to

claim.” Household Credit Serv., Inc. v. Driscol, 989 S.W.2d 72, 80 (Tex. App.—El

Paso 1998, pet. denied).

       Here, Plaintiffs do not, and cannot, deny that their breach of contract and tort

claims address a single injury — i.e., the injury that Plaintiffs purportedly incurred

when Gonzalez failed to return monies to investors. (CR_1-7). Yet, Plaintiffs did not


                                             22
elect a remedy from one of their overlapping claims. They instead asked the trial

court to enter a judgment that allowed them to recover on all of their claims. The

trial court did so, allowing Plaintiffs to recover both (i) attorney’s fees from Gonzalez

on Plaintiffs’s contract claim and (ii) mental anguish and exemplary damages from

Gonzalez on Plaintiffs’ tort claims.Plaintiffs had to elect either a contract recovery or a

tort recovery. They could not elect both. Tony Gullo Motors I, L.P. v. Chapa, 212

S.W.3d 299, 303-04 (Tex. 2006). Chapa is on point. The court of appeals in

Chapa rendered a judgment that permitted the plaintiff, Nury Chapa, to recover

$21,639 in mental anguish damages, $20,000 in attorney’s fees, and $125,000 in

exemplary damages. The Texas Supreme Court concluded that the court of appeals’s

judgment           violated         the          single         satisfaction          rule:

       “Chapa alleged only one injury — delivery of a base-model
       Highlander rather than a Highlander Limited. While she could
       certainly plead more than one theory of liability, she could not recover
       on more than one.

       For breach of contract, Chapa could recover economic damages and
       attorney’s fees, but not mental anguish or exemplary damages. For
       fraud, she could recover economic damages, mental anguish, and
       exemplary damages, but not attorney’s fees. . . . The court of appeals
       erred by simply awarding them all.”

Id. (emphasis added). See Business Staffing, Inc. v. Jackson Hot Oil Serv., 401

S.W.3d 224, 244-45 (Tex. App.—El Paso 2012, pet. denied).

       The trial court’s judgment here impermissibly allows Plaintiffs to recover both

in contract and in tort for a single injury. If this Court does not reverse the trial

                                            23
court it will cause irreversable harm.


                                  CONCLUSION

      The trial court’s judgment in Plaintiffs’ favor is erroneous. Gonzalez

respectfully requests that this Court reverse the trial court’s judgment, render

judgment that Plaintiff take nothing on its claims against G o n z a l e z .

Alternatively, Gonzalez requests that the Court reverse the trial court’s judgment

and remand the case for further proceedings consistent with this Court’s

opinion. Gonzalez further requests that the Court award such further relief as this

Court deems appropriate and just.

                                         Respectfully submitted,

                                                           George D. Durham, Esq.
                                                              Attorney for Appellee
                                                            State Bar No. 24082940
                                                            gsklawfirm@gmail.com
                                                               517 W. Nolana Ste. 6
                                                                McAllen, TX 78504
                                                         Telephone: (956) 900-4187
                                                     Facsimile: (956) 524-5153




                                           24
                          CERTIFICATE OF SERVICE

       I hereby certify that on this 10th day of February, 2014, a true and correct copy
of the foregoing was served upon the following counsel by electronic filing, according
to the rules of civil procedure.

                                                      /S/ George D. Durham
                                                        George D. Durham




                                          25
                      CERTIFICATE OF COMPLIANCE

       The undersigned certifies that this Brief of Appellant Hector Gonzalez complies
with the typeface requirements in Tex. R. App. P. 9.4(e) because it has been prepared
in a conventional typeface no smaller than 14-point for text and 12-point for
footnotes.

      Additionally, the undersigned certifies that this brief complies with the word-
count limitations of Tex. R. App. P. 9.4(i )(2) because, excluding all parts exempted
under Tex. R. App. P. 9.4(i)(1), the brief contains 3033 words.


                                                    /S/ George D. Durham
                                                      George D. Durham




                                         26
