                            NUMBER 13-11-00113-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

MARCUS KYLE FREE,                                                          Appellant,


                                           v.

CATHY DIANE LEWIS,                                                         Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      Appellant, Marcus Kyle Free, challenges the trial court’s judgment awarding over

$17 million in damages and a permanent injunction to appellee, Cathy Diane Lewis.

Free argues that the trial court’s judgment was erroneous because:                 (1) it

unconstitutionally “coerc[es] payment of a civil debt” and “violates federal anti-peonage
statutes” by requiring “involuntary servitude”; (2) it awarded a permanent injunction

compelling specific performance of a contract; (3) it awarded contract as well as tort

damages; (4) it was based on a verdict that was corrected “after the jury had been

discharged and mingled with the parties”; and (5) it was based in part on breach of

contract even though the jury did not affirmatively find the existence of an enforceable

contract. Free also contends the trial court erred by denying his motion for new trial.

We affirm in part and reverse and render in part.

                                    I. BACKGROUND

        Free, a physician, and Lewis, a nurse, were married in 1988. In September

2004, Free decided to leave the practice of medicine and instead attempt to make

money by day trading securities. Free opened an investment account and Lewis gave

him around $200,000 to invest in it.     The $200,000 originated from offshore bank

accounts owned by Lewis prior to the marriage and which were, therefore, her separate

property. Free induced Lewis to give him the $200,000 by falsely representing to her

that he had previously made substantial profits day trading with an account in his own

name.

        Free lost the entire $200,000 in short order and, “to compensate,” he repeatedly

withdrew additional funds from Lewis’s offshore accounts without her knowledge or

consent.    Free’s fraudulent actions—which involved his repeatedly forging Lewis’s

signature and having Lewis’s bank statements rerouted to a private post office box to

which only he had access—resulted in the loss of over $5.5 million of Lewis’s separate

property.

        In October 2008, in an effort to reconcile with his family, Free executed a



                                            2
“Restitution Agreement” in which he acknowledged his wrongdoing and agreed to

“restore to Lewis the entire amount of funds fraudulently transferred . . . plus interest,

and to cooperate in the prosecution of any civil suit against [the banks, brokerage firm],

or any other entity in Lewis’s efforts to recover her funds.”          Free also agreed to

“indemnify Lewis of any liabilities, debts, obligations, including attorney’s fees, she may

incur as a result of any of Free’s acts and/or omissions.” The agreement required Free

to provide Lewis with extensive financial disclosures and included detailed instructions

as to how Free was to reimburse Lewis. Specifically, Free agreed to deposit in Lewis’s

account, on a monthly basis, all salary or other compensation he may receive that

exceeds $4,000 per month, as well as a prorated amount of any bonuses he may

receive.1 The agreement further stated:

       Event of Default. The following shall be considered an “Event of Default”
       under this agreement: (i) the failure to abide by any term and provision of
       this Restitution Agreement; (ii) any false representation made with respect
       to any disclosure, or any failure to provide disclosures or documents
       requested by Lewis as provided in the disclosure section of this
       agreement; (iii) the loss of any employment; (iv) the filing of any
       bankruptcy, receivership. Free shall give notice to Lewis of any Event of
       Default within three (3) days of said default. Lewis shall provide written
       notice to Free to cure that default within thirty (30) days of said notice.
       Upon failure of Free to cure the Event of Default, Lewis has the option of
       bringing action to enforce this Restitution Agreement or to bring an action
       against Free on the underlying Fraud. Additionally, the death of Free, or
       filing of any bankruptcy or receivership by Free shall be considered
       equivalent to an “Event of Default,” though in such event, no notice to cure
       shall be required by Lewis prior to instituting any appropriate action
       whether in bankruptcy court or probate court or other forum.

Lewis countersigned the agreement on January 6, 2009.

       Lewis filed suit in Nueces County on February 12, 2009, alleging that Free

defaulted under the agreement and also alleging fraud, breach of fiduciary duty, and

       1
         Under the agreement, the amount of the compensation Free is entitled to keep per month
automatically increases each year to track inflation.

                                              3
conversion with respect to the underlying fraud committed prior to execution of the

Restitution Agreement. Free denied the allegations and advanced several affirmative

defenses to enforcement of the agreement, including: (1) lack of consideration; (2)

duress, in that he signed the agreement only because Lewis threatened to pursue

criminal charges against him and to permanently prevent him from seeing their

daughter; and (3) unconscionability.

        After trial, a jury found in favor of Lewis on all issues.2 Over Free’s objection, the

trial court granted Lewis’s motion for entry of judgment. The final judgment awarded

Lewis: $2,200,000 in actual damages on the pre-2008 fraud, breach of fiduciary duty,

and conversion claims; $15,500,000 in exemplary damages; $117,446.53 in trial

attorney’s fees3; and pre- and post-judgment interest. The final judgment also included

a “Decree of Specific Performance” stating that the outstanding obligation on the

Restitution Agreement as of the date of judgment was $6,943,052.16, and ordering Free

to provide extensive regular financial disclosures to Lewis, as required by the

Restitution Agreement.         Finally, the judgment included a permanent injunction (1)

restraining Free from spending “any monies received from any source” and (2) stating

that “Free is entitled only to $4,000 (adjusted per inflation) per calendar month” and any

amount he earns in excess of that must be deposited in an account for Lewis’s benefit,

all in accordance with the terms of the agreement. Free filed a motion for new trial,

which was overruled by operation of law. See TEX. R. CIV. P. 329b(c). This appeal

        2
          Out of all the affirmative defenses pleaded by Free, only one—duress—was submitted to the
jury. Question number two of the jury charge asked, “Was Marcus Free’s failure to comply with the
Restitution Agreement excused?” and instructed that “[f]ailure to comply by Marcus Free is excused if the
Restitution Agreement was made under duress caused by Diane Lewis.” The jury answered “no.”
        3
        The judgment also awarded $20,000 in attorney’s fees in the event Free appeals to this Court
and Lewis prevails on appeal; and $22,000 in attorney’s fees in the event Free appeals to the Texas
Supreme Court and Lewis prevails there.

                                                   4
followed.

                                              II. DISCUSSION

A.     Constitutional Arguments and Related Issues

       By his first issue, Free contends that the trial court’s judgment: (1) violates the

constitutional proscription against involuntary servitude, see U.S. CONST. amend. XIII

(“Neither slavery nor involuntary servitude, except as a punishment for crime whereof

the party shall have been duly convicted, shall exist within the United States, or any

place subject to their jurisdiction”); see also United States v. Kozminski, 487 U.S. 931,

952 (1988) (defining “involuntary servitude” as “a condition of servitude in which the

victim is forced to work for the defendant by the use or threat of physical restraint or

physical injury, or by the use or threat of coercion through law or the legal process”); (2)

unconstitutionally subjects him to imprisonment for debt, see TEX. CONST. art. I, § 18

(“No person shall ever be imprisoned for debt.”); (3) violates the federal anti-peonage

statute, see 42 U.S.C. § 19944; and (4) constitutes an impermissible garnishment of

current wages, see TEX. CONST. art. XVI, § 28 (“No current wages for personal service

shall ever be subject to garnishment, except for the enforcement of court-ordered: (1)

child support payments; or (2) spousal maintenance.”).




       4
           The statute, entitled “Peonage abolished,” states:

       The holding of any person to service or labor under the system known as peonage is
       abolished and forever prohibited in any Territory or State of the United States; and all
       acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which
       have heretofore established, maintained, or enforced, or by virtue of which any attempt
       shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the
       voluntary or involuntary service or labor of any persons as peons, in liquidation of any
       debt or obligation, or otherwise, are declared null and void.

42 U.S.C. § 1994.


                                                      5
      Free did not object to the judgment at trial on any of these grounds. See TEX. R.

APP. P. 33.1 (regarding preservation of error). Accordingly, we may reverse on these

grounds only if they constitute “fundamental error.” See In re B.L.D., 113 S.W.3d 340,

351 (Tex. 2003). The Supreme Court of Texas has concluded that, in the context of

civil appeals, fundamental error is a narrow doctrine, to be used only in rare instances.

Id. at 350–51.     In B.L.D., the Court recognized that, despite the fact that the

fundamental-error doctrine has been labeled “‘discredited,’” id. at 350 (quoting Cox v.

Johnson, 638 S.W.2d 867, 868 (Tex. 1982) (per curiam)), the doctrine has been

employed in “rare instances” to review “certain types” of unpreserved or unassigned

error in civil cases.   Id.   For example, the doctrine has been invoked to review

unpreserved issues regarding: (1) whether the record shows on its face that the trial

court lacked jurisdiction, id. (citing McCauley v. Consol. Underwriters, 157 Tex. 475, 304

S.W.2d 265, 266 (1957) (per curiam)); (2) the failure to give mandatory statutory

admonishments in a juvenile delinquency proceeding, id. (citing In re C.O.S., 988

S.W.2d 760, 767 (Tex. 1999)); and (3) the constitutionality of the burden of proof

instruction in a juvenile delinquency proceeding, id. (citing State v. Santana, 444 S.W.2d

614, 615 (Tex. 1969)). The Court noted that its application of the fundamental-error

doctrine in the latter two cases rested on the “quasi-criminal” nature of juvenile

delinquency cases. Id. (citing C.O.S., 988 S.W.2d at 765; Santana, 444 S.W.2d at 615).

In B.L.D., the supreme court declined to extend the fundamental-error doctrine to jury

charge error in parental termination cases. See id. at 351.




                                            6
       None of the errors alleged by Free in his first issue fall within the narrow scope of

the fundamental-error doctrine as recognized by the supreme court in the civil context.

See id. Accordingly, the doctrine does not apply, and we overrule the issue.

B.     Specific Performance as Remedy for Breach of Contract

       By his second issue, Free argues that the trial court erred in awarding a

permanent injunction requiring specific performance of the Restitution Agreement, for

three reasons.      First, he argues that injunctive relief was improper because Lewis

conceded, and the jury found, that money damages were an adequate remedy.

Second, he contends that specific performance of the Restitution Agreement is

forbidden because present performance of the contract is not possible.                      Third, he

contends the award of injunctive relief is void because it was not based on a jury

finding.

       In examining whether specific performance via injunctive relief 5 is available as a

contractual remedy, we generally examine whether (1) an adequate remedy at law

exists, (2) present performance is possible, (3) the agreement contains precise terms

capable of enforcement, and (4) the injunction comports with the terms of the

agreement. Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 487 (Tex. App.—Houston [1st

Dist.] 2006, pet. denied).         Free does not dispute that the Restitution Agreement

“contains precise terms capable of enforcement” or that the injunction comports with

those terms. See id.

       5
           The final judgment contained one section entitled “Specific Performance” and a separate
section entitled “Permanent Injunction.” The former section included only (1) a statement of the amount
outstanding and payable under the Restitution Agreement as of August 30, 2010, and (2) an incorporation
and restatement of the disclosure requirements as set forth in the Restitution Agreement. The latter
section restated the payment provisions of the Restitution Agreement. For purposes of this analysis, and
despite the section titles, we consider both sections together to be a permanent injunction requiring
specific performance of the Restitution Agreement.


                                                   7
        We first address Free’s contention that the jury implicitly found, and Lewis

conceded, that money damages were an adequate remedy for Free’s breach of

contract. Question number seven of the jury charge asked, in its entirety: “What sum of

money, if paid now in cash, would fairly and reasonably compensate Diane Lewis for

[Free’s] failure to comply with the Restitution Agreement? Answer in dollars and cents,

if any[.]” The jury answered: “6,943.052.16.”6 Free argues that the jury implicitly found,

by its answer to jury charge question number seven, that an award of actual damages

would be an adequate remedy for Lewis. He further contends that Lewis, by submitting

the question, conceded that actual damages can reasonably compensate her. We

disagree. Courts will not enforce contractual rights by permanent injunction unless the

aggrieved party shows an inadequate remedy at law and irreparable injury. Id.; see

Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—

Dallas 1989, no writ) (“Generally, contractual rights are not enforced by writs of

injunction, since inadequate remedy at law and irreparable injury are rarely shown when

a suit for damages for breach of contract is available.”). An “irreparable injury” is one for

which actual damages will not adequately compensate the injured party or the damages

cannot be measured by any certain pecuniary standard. Cytogenix, 213 S.W.3d at 487


        6
            It is important to emphasize that the trial court’s final decree did not contain a money judgment
for the amount of damages found by the jury in its answer to question number seven. Rather, the
judgment contained money judgments of: (1) $2,200,000, reflecting actual damages on the fraud, breach
of fiduciary duty, and conversion claims, all of which were based on Free’s acts prior to the execution of
the Restitution Agreement in October 2008; (2) $15,500,000 in exemplary damages; (3) $117,446.53 for
trial attorney’s fees; and (4) conditional appellate attorney’s fees.

         Rather than awarding a money judgment for the amount of damages found by the jury to be
attributable to Free’s breach of contract, the trial court apparently chose, by granting Lewis’s motion for
entry of judgment, to remedy the breach of contract claims by instead awarding a permanent injunction
compelling specific performance of the contract. This is despite the fact that none of Lewis’s written
pleadings—including a third amended petition filed after trial with leave of court—request permanent
injunctive relief.


                                                     8
(citing Canteen Corp., 773 S.W.2d at 401). Here, the evidence showed that the amount

of damages caused by Free’s failure to comply with the Restitution Agreement “cannot

be measured by any certain pecuniary standard” because, in the words of Lewis, it

“involve[s] an impossible mix of Free’s future wages, bonuses, and other benefits, future

Federal and State income tax rates, and changes in the average Consumer Price

Index.” As noted, the Restitution Agreement requires Free to make monthly payments

to Lewis to repay his losses, and the amount of each monthly payment is indeed

dependent on the amount Free earns in any given month, the amount of taxes applied

to those earnings, with the amount adjusted annually for inflation. We find that Lewis

has shown an inadequate remedy at law and irreparable injury.

      However, it is also well-established that, to order specific performance of a

contract via an injunction, present performance must be possible. Id. (citing Canteen

Corp., 773 S.W.2d at 401). “A court should not decree future contractual performance

by requiring a party to perform a continuous series of acts, extending through a long

period of time, over which the court exercises its supervision.” Id. at 487–88 (citing

Canteen Corp., 773 S.W.2d at 401; Tex. & Pac. Ry. Co. v. City of Marshall, 136 U.S.

393, 407 (1890); Am. Hous. Res., Inc. v. Slaughter, 597 S.W.2d 13, 15 (Tex. Civ.

App.—Dallas 1980, writ ref’d n.r.e.)); see Beckham v. Munger Oil & Cotton Co., 185

S.W. 991, 992 (Tex. Civ. App. 1916); United Coin Meter Co. v. Johnson-Campbell

Lumber Co., 493 S.W.2d 882, 888 (Tex. Civ. App.—Fort Worth 1973, no writ) (“It is a

settled principle that a court of equity will ordinarily decree specific performance only

when it can dispose of the matter in controversy by a decree capable of present

performance . . . .”) (citing 81 C.J.S. Specific Performance § 75, at 584); see also



                                           9
Samson Lone Star, L.P. v. Hooks, No. 01-09-00328-CV, 2012 Tex. App. LEXIS 4353, at

*69 (Tex. App.—Houston [1st Dist.] May 31, 2012, no pet.) (mem. op.); Pickard v. LJH

Enters., No. 01-07-01105-CV, 2010 Tex. App. LEXIS 2727, at *9 (Tex. App.—Houston

[1st Dist.] Apr. 15, 2010, no pet.) (mem. op.).      Instead, absent a significant public

interest, parties to a private contract are left to their remedies at law. Cytogenix, 213

S.W.3d at 487 (citing Canteen Corp., 773 S.W.2d at 401).

       The permanent injunction awarded in this case is a prime example of the type of

remedy that Texas courts have, for over a century, strived to avoid in breach of contract

cases. The portion of the judgment entitled “Permanent Injunction” states, in its entirety,

as follows:

       1. EXCEPT AS WHERE OTHERWISE PROVIDED HEREIN, IT IS
          HEREBY ORDERED, ADJUDGED, AND DECREED that Marcus Kyle
          Free is immediately and permanently restrained from spending any
          monies received from any source, including without limitation [Free’s
          current employer], and any other present or future employer,
          contractor, principal, or payor of any kind, or whether this
          remuneration is characterized as wages, fees, draws, bonuses, or
          some other characterization. This includes any amounts received
          from any governmental body for benefits, taxes, tax credits, or tax
          reimbursements, and includes, further, any rebates received from any
          entity, and any bonuses received by Free in addition to his regular
          salary.

       2. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that [with]
          respect to any such amounts received, Free is entitled to only $4,000
          (adjusted per inflation) per calendar month whether said amount is in
          the form of cash or as a result of other remuneration, including
          housing, welfare or health benefits. Any amounts in excess of $4,000
          per calendar month, net only of any withheld Federal income or State
          income taxes relating to those earnings and not of any other
          deductions, are to be placed in the “Account” as further defined
          herein, to be distributed in accordance with the parties’ agreement or
          order of this Court. Adjusted for inflation, said amount through
          October 2010 is $4,285.04. Said amounts shall be applied to the
          $6,9043,052.16, which is the Restitution Amount under the Restitution



                                            10
           Agreement as of August 30, 2010, and any post-judgment interest on
           that amount from the date of judgment until paid.

      3. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that within
         one day of receipt by Free of any monies from his employer,
         contractor, principal, or payor, including any rebates, reimbursement
         of taxes of any kind, bonuses of any kind, Marcus Kyle Free is to
         obtain a cashier’s check of said amounts and send such check by
         Federal Express to the law firm of Harris & Greenwell, or its designee,
         who shall then deposit said cashier’s check in the “Account” as further
         defined herein.

      4. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Free,
         be, and hereby is, commanded forthwith to desist and refrain from
         destroying any financial, tax, judicial, or other records of any kind.

      5. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the
         law firm of Harris & Greenwell or its designee shall place such funds in
         an interest bearing account (the “Account”), and shall thereafter pay
         from that fund, amounts due to Cathy Diane Lewis under the
         Restitution Agreement, subject to any provision for its attorney’s fees
         until such have been paid. Any amounts paid for attorney’s fees shall
         not be considered as credits under the Restitution Amount.

      6. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that any
         amounts currently in the registry of the Court shall be delivered over to
         Lewis and her attorney, Harris & Greenwell.

The final judgment also ordered Free to “obtain a life insurance policy on his life in the

amount of $5,000,000.00, with such terms are [sic] acceptable to Lewis, and

denominating the beneficiary of such policy in a manner as elected by Lewis . . . .”

      This permanent injunction requires Free to deposit with Lewis’s attorneys a

certain amount of money every month, by a specific method, with the precise amount of

the payment only determinable once it is certain how much Free earned in that month

and what the proper adjustment for taxes and inflation would be. The order states that

Free is “entitled” to $4,000 per month but it bars Free from “spending any monies

received from any source” without any explicit exception. It commands Free not to



                                           11
destroy any “records of any kind.” It requires Free to obtain a life insurance policy with

terms “acceptable to Lewis.” Enforcement of this decree would unquestionably require

constant supervision by the trial court over an indeterminate number of years or

decades.7 Present performance is not possible, and Lewis has identified no significant

public interest compelling an order of specific performance; therefore, specific

performance via injunction was improper.8 See, e.g., Cytogenix, 213 S.W.3d at 487

(citing Canteen Corp., 773 S.W.2d at 401).

        We sustain Free’s second issue in part and reverse those portions of the final

judgment awarding permanent injunctive relief requiring specific performance as a

remedy for Free’s breach of contract.9 We proceed to consider Free’s remaining issues.

C.      Election of Remedies

        7
          By way of example, if Free is able to consistently earn $15,000 in monthly after-tax income, he
would be required to pay $11,000 each month to Lewis, not taking into account inflation adjustments. At
that rate, it would take him 631 months—that is, over 52 years—to pay off his $6,943,052.16 debt to
Lewis.
        8
            In her appellate brief, Lewis states:

        The restitution structure [as provided in the permanent injunction] is of great importance
        to Lewis and it is part and parcel of her bargained for consideration. It is impossible to
        suggest that a money judgment in the amount of $6,943,052.16, which . . . relegates
        Lewis to the cumbersome and costly post-judgment collection process, is equivalent to
        an orderly repayment structure contemplated under the Restitution Agreement. In short,
        Free is better off if the Restitution Agreement is not enforced by permanent injunction and
        specific performance, and Lewis will be much worse off. That is exactly why Free wants
        the injunction reversed. Why Free—the fraudfeasor par excellence—should be better off
        for breaching the Restitution Agreement, and Lewis—the innocent victim—worse off is
        something that conscience simply cannot justify.

Lewis has not, however, cited any authority establishing a “conscience”-based exception to the well-
established rule that, to order specific performance of a contract via an injunction, present performance
must be possible. See Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 487 (Tex. App.—Houston [1st Dist.]
2006, pet. denied) (citing Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex.
App.—Dallas 1989, no writ)). We decline to fashion such an exception here.
        9
            We have noted that Lewis’s written pleadings did not actually request permanent injunctive
relief. In light of our conclusion, however, we need not address whether that fact is fatal to the permanent
injunction. See TEX. R. APP. P. 47.1. Moreover, we need not address Free’s argument that the
permanent injunction was invalid because it was not based on a jury finding. See id.


                                                    12
       By his third issue, Free contends that the trial court erred in rendering a final

judgment for both contract damages and tort damages. He claims that, “[w]hile Lewis

was entitled to submit jury issues to determine the ‘greatest satisfaction,’ she cannot be

awarded the contract damages and the tort claims that the contract sought to

extinguish.” In response, Lewis contends that the Restitution Agreement did not contain

a waiver or release of any claims on the part of Free, and she argues that the tort and

contract claims addressed different injuries and therefore the award of relief under both

theories did not constitute a double recovery. We do not address this issue because

Free has not directed this Court to any case law, statute, or other authority in support

thereof. See TEX. R. APP. P. 38.1(i). His third issue is overruled.

D.     Correction of Jury Verdict

       By his fourth issue, Free alleges that the award of $2,000,000 in economic loss

damages on Lewis’s tort claims is invalid because it reflected a post-discharge

correction of a mistake in the initial jury verdict. Instead, he argues, a new trial should

have been awarded. See In re Bradle, 83 S.W.3d 923, 927 (Tex. App.—Austin 2002,

orig. proceeding) (“‘[W]hen the verdict has been affirmed in open court and the jury

have separated and become accessible to the parties, the only remedy for a mistake is

by setting the verdict aside and granting a new trial . . . .’”) (quoting Caylat v. Houston E.

& W. Ry. Co., 113 Tex. 131, 252 S.W. 478, 482 (1923)).

       Question number eight of the jury charge asked: “What sum of money, if paid

now in cash, would fairly and reasonably compensate Diane Lewis for damages

proximately caused by [Free’s fraud, breach of fiduciary duty, and conversion]?” 10 The


       10
            Question number eight was accompanied by the following instruction:


                                                   13
charge asked the jury to answer separately for (a) mental anguish sustained in the past,

(b) mental anguish that Lewis will in reasonable probability sustain in the future, and (c)

economic loss. The jury answered “$200,000.00” to part 8(a), zero to part 8(b), and

“$2,000.00” to part 8(c). When the verdict was reached, the trial court read it in open

court. The following then occurred:

       THE COURT:                      . . . . Court is going to accept the verdict of the jury
                                       as the verdict of this court. I thank you very much
                                       for your time and attention. It is not easy serving
                                       as jurors but we appreciate your time very much.

                                       What I generally do is I excuse you to the jury
                                       room. You may have some questions either for
                                       the court or the attorneys. So the attorneys and I
                                       will go back and visit with you for a little bit. You
                                       are released from your instructions. You can talk
                                       to anyone about the case or you don’t have to talk
                                       to anyone. But in case you have any lingering
                                       questions, we will be happy to answer that.

                                       Thank you again for you time.

                                       (Jury is excused to the jury room.)

       THE COURT:                      We are back on the record. We were going to—
                                       the attorneys and the judge were going to talk to
                                       the jury and the presiding juror let us know that
                                       one of the responses—one of the answers was
                                       incorrect. That was on Question Number 9(c).
                                       Instead of the 2,000 that was initially said, it was 2
                                       million. Is that the jury’s verdict?

       JURY[11]:                       Yes, it is.

       [Free’s counsel]:               8(c).

       Consider the elements of damage listed below [past mental anguish, future mental
       anguish, and economic loss] and none other. Consider each element separately. Do not
       award any sum of money on any element if you have otherwise, under some other
       element, awarded a sum of money for the same loss. That is, do not compensate twice
       for the same loss, if any. Do not include interest on any amount of damages you find.
       11
            As in the reporter’s record.


                                                     14
         THE COURT:                      What did I say? Okay. It is 8(c). That’s $2
                                         million. That was the verdict of the jury, correct?

         PRESIDING JUROR: Yes.

The trial court then asked each individual juror if that was their verdict; each of the six

jurors replied “yes.”            The jury charge included in the clerk’s record shows that

“$2,000.00” was written, crossed out, and replaced with “2 million.”12

         Free’s counsel did not express any timely objection to the trial court regarding the

correction of the verdict.13 Moreover, we do not believe the fundamental-error doctrine

applies here. See In re B.L.D., 113 S.W.3d at 350–51. Accordingly, Free has waived

any error. See TEX. R. APP. P. 33.1. In any event, we note that the comments of the

trial court upon calling the jury back to the courtroom show that, although the jury was

technically free to discuss the case with anyone, it did not actually do so prior to the

correction of the verdict. Free therefore has not shown that he was harmed by any

error.    See TEX. R. APP. P. 44.1(a) (stating that an error is not reversible unless it

“probably caused the rendition of an improper judgment” or “probably prevented the

appellant from properly presenting the case to the court of appeals”).

         We overrule Free’s fourth issue.

E.       Jury Question on Existence of Enforceable Contract

         By his fifth issue, Free argues that the trial court erred by rendering judgment on

the jury’s contract verdict because the jury was not asked whether an enforceable

agreement existed. Question number one of the jury charge asked: “Did Marcus Free

         12
              The corrected figure was initialed by the presiding juror.
         13
           Free did make this objection in his motion for new trial and in his objection to Lewis’s motion for
entry of judgment. However, it is incumbent upon an appellant to object in a timely manner. See TEX. R.
APP. P. 33.1.

                                                        15
fail to comply with the Restitution Agreement?” The jury answered “yes.” The jury was

not asked whether the Restitution Agreement was enforceable. Free contends that

Lewis’s failure to submit such a question precluded the trial court from rendering

judgment on the verdict, because the existence of an enforceable contract was not

conclusively established as a matter of law.                 He claims that the evidence, in fact,

showed that there was no enforceable contract because “there was no common

understanding” as to the essential terms of the Restitution Agreement, or alternatively,

because the agreement was not supported by consideration.14

        In response, Lewis asserts that (1) Free waived the issue because he did not

himself submit a question on the affirmative defenses of lack of consideration or

ambiguity, and (2) no question was necessary in any event because an enforceable

contract was established as a matter of law.

        Without deciding whether an enforceable contract was established as a matter of

law, we agree with Lewis that Free has not preserved the issue for appeal. Texas Rule

of Civil Procedure 279 provides, in part, as follows:

        Upon appeal all independent grounds of recovery or of defense not
        conclusively established under the evidence and no element of which is
        submitted or requested are waived. When a ground of recovery or
        defense consists of more than one element, if one or more of such
        elements necessary to sustain such ground of recovery or defense, and
        necessarily referable thereto, are submitted to and found by the jury, and

        14
           Free points to a single clause in the Restitution Agreement in arguing that “there was no
common understanding” as to the contract’s essential terms. Specifically, the agreement provided in part:
“Upon failure of Free to cure the Event of Default, Lewis has the option of bringing action to enforce this
Restitution Agreement or to bring an action against Free on the underlying Fraud.” Free contends that
there was no “meeting of the minds” as to this clause because he believed that it allowed Lewis to seek
only one remedy in the event of default—i.e., he believed she could either sue on the contract or on the
underlying fraud, but not both—whereas Lewis believed that both remedies were available to her. Free
further argues that the clause’s use of the word “or” rather than “and/or,” and its use of the word “option,”
show conclusively that Lewis was forbidden from suing for both breach of the agreement and the
underlying fraud in the event of default. Alternatively, Free contends that, if Lewis’s interpretation of this
clause controls, then there is no consideration supporting the contract.

                                                     16
       one or more of such elements are omitted from the charge, without
       request or objection, and there is factually sufficient evidence to support a
       finding thereon, the trial court, at the request of either party, may after
       notice and hearing and at any time before the judgment is rendered, make
       and file written findings on such omitted element or elements in support of
       the judgment. If no such written findings are made, such omitted element
       or elements shall be deemed found by the court in such manner as to
       support the judgment. . . .

TEX. R. CIV. P. 279 (emphasis added). Here, the ground of recovery challenged by

Free, breach of contract, contains more than one element. See, e.g., Tex. Dep’t of

Transp. v. Crockett, 257 S.W.3d 412, 416 (Tex. App.—Corpus Christi 2008, pet. denied)

(“The elements of a breach of contract action are: (1) the existence of a valid contract;

(2) performance or tendered performance by the plaintiff; (3) breach by the defendant;

and (4) damages sustained by the plaintiff as a result of the breach.”). One of those

elements, breach, see id., was submitted and found by the jury. Another one of the

elements, the existence of an enforceable contract, see id., was not. No objection was

lodged at the charge conference to the lack of a question on enforceability. The trial

court did not make written findings as to the omitted element.               Under such

circumstances, Rule 279 directs us to deem the omitted element to be found “in such

manner as to support the judgment.” TEX. R. CIV. P. 279. Accordingly, the existence of

an enforceable contract must be deemed as found by the jury. See id. We overrule

Free’s fifth issue.

F.     Motion for New Trial

       By his sixth issue, Free contends that the trial court erred in denying his motion

for new trial. He argues specifically that he was entitled to a new trial because: (1)

there was jury misconduct; (2) there was newly discovered evidence; (3) the damages

question was “improperly predicated”; (4) the exemplary damages finding could not

                                            17
have been based on a breach of fiduciary duty, and (5) there was cumulative error. In

his appellate brief, Free has not cited any case law, statute, or other authority in support

of this issue. Accordingly, it is waived. See TEX. R. APP. P. 38.1(i).

                                          III. CONCLUSION

       We reverse the portion of the trial court’s judgment awarding specific

performance via permanent injunctive relief as a remedy for Free’s breach of contract.

We render judgment, in full accordance with the jury’s verdict, that Lewis have and

recover judgment against Free for actual damages attributable to Lewis’s breach of

contract claim in the amount of $6,943,052.16.15 See TEX. R. APP. P. 43.3 (stating that,

when reversing a trial court judgment, an appellate court must generally render the

judgment that the trial court should have rendered).                The amount shall bear post-

judgment interest as provided in the trial court’s judgment.                 The remainder of the

judgment is affirmed.




                                                       DORI CONTRERAS GARZA
                                                       Justice

Delivered and filed the
9th day of August, 2012.




       15
             We note that, in the event Free files for bankruptcy protection, this judgment will not be
dischargeable. See 11 U.S.C. § 523(a)(2)(A) (providing that a discharge under the Bankruptcy Code
“does not discharge an individual debtor from any debt . . . for money . . . to the extent obtained
by . . . false pretenses, a false representation, or actual fraud . . .”). Moreover, the judgment may be
domesticated in Free’s home state of Michigan, see MICH. COMP. LAWS SERV. §§ 671.1171–1179
(LexisNexis 2012) (Uniform Enforcement of Foreign Judgments Act), and garnishment of wages is an
available method of executing a judgment in that state, see id. §§ 600.4011–4012 (LexisNexis 2012).

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