Opinion issued December 30, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00785-CV
                           ———————————
                         DAVID POLLITT, Appellant
                                        V.
                  COMPUTER COMFORTS, INC., Appellee


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


                         MEMORANDUM OPINION

      Appellee Computer Comforts, Inc. sued appellant David Pollitt, along with

others, for breach of contract and fraud related to the sale of computer furniture.

The case was tried to the bench. Following trial, the court awarded Computer

Comforts its actual damages, exemplary damages, and attorney’s fees. Pollitt filed
post-judgment motions for a new trial and to modify the judgment, which the court

denied.

      On appeal, Pollitt challenges the sufficiency of the evidence to support the

judgment. He also argues that the exemplary damages were awarded jointly and

severally against multiple defendants in violation of Civil Practice and Remedies

Code section 41.006 and that the trial court abused its discretion when it denied his

motion for new trial. We reverse in part with respect to the award of exemplary

damages, and we remand for further proceedings consistent with this opinion.

                                    Background

      Computer Comforts manufactures and sells computer furniture. David Pollitt

worked for Covington Office Solutions and Covington Office Products, Inc. in the

position of chief financial officer. * In August 2010, at the request of the Covington

entities, Computer Comforts sent a written quote for the sale of computer furniture.

The Covington entities responded with a purchase order, and Computer Comforts

replied with an invoice conforming to the terms of the quote and purchase order.




*
      These two corporate entities were named as Pollitt’s codefendants in the trial
      court, along with the companies’ owner, Anthony Covington. Evidence at
      trial identified Pollitt as chief financial officer of “Covington Furniture
      Solutions.” Because the precise identity of the corporate entity responsible
      for any particular action giving rise to this dispute is irrelevant to the
      disposition of this appeal, we refer to Pollitt’s employer and Computer
      Comforts’s contractual counterparty as the “Covington entities.”

                                          2
      After Computer Comforts delivered the furniture, the Covington entities

failed to make payments under the terms of the invoice. Pollitt communicated to

Computer Comforts that the Covington entities would not be making payments

under the terms of the invoice, but he offered to arrange weekly payments to

satisfy the debt.

      Computer Comforts refused to finance the sale in this manner. Instead, it

sued the Covington entities, their owner Anthony Covington, and Pollitt for breach

of contract, quantum meruit, promissory estoppel, suit on a sworn account, fraud in

the inducement, and respondeat superior. By its lawsuit, Computer Comforts

sought to hold Pollitt and Covington personally liable with respect to the

transaction.

      Pollitt and his codefendants shared representation by the same lawyers in the

trial court. The pretrial proceedings were marked by the codefendants’ failures to

appear or respond to discovery requests. After a year of repeated discovery

requests from Computer Comforts was met with inaction, the trial court sanctioned

Pollitt and his codefendants. Among other things, the sanctions order stated:

      The Court ORDERS that the failure to produce discovery as requested
      is grounds that issues regarding the formation of a contract, the
      validity of the contract, Plaintiff’s performance, Defendant’s
      performance, the terms of payment, the existence of a corporation, the
      status of co-defendants as employees, the amount of damages, and
      issues related to fraud are conclusively decided against Defendants.
      Any issues related to the formation of a contract, the validity of the
      contract, Plaintiff’s performance, Defendant’s performance, the terms

                                         3
      of payment, the existence of a corporation, the status of defendants as
      employees, the amount of damages, and issues related to fraud shall
      be concluded based on evidence and argument provided by Computer
      Comforts, Inc. pursuant to Texas Rule of Civil Procedure 215.2(b)(3)
      and 215.2(b)(4).

      As the date for trial approached, defense counsel moved to withdraw from

representation. Concurrently, defense counsel moved for continuance of the trial

setting, arguing, among other things, that Pollitt was unable to attend because of

his wife’s failing health. The trial court granted counsel’s motion to withdraw but

denied the motion to continue the trial setting.

      One week later, the case was tried to the bench. None of the defendants

appeared through counsel or in person. After hearing testimony from the owner of

Computer Comforts, the trial court awarded judgment against Pollitt and his

codefendants, jointly and severally, for $40,000 in actual damages, $40,000 in

exemplary damages, and $11,500 in attorney’s fees, postjudgment interest, and

costs of court.

      After entry of the trial court’s final judgment, Pollitt obtained new counsel

and moved for a new trial or, in the alternative, to modify, vacate, or reform the

judgment. The trial court denied those motions. The court also entered findings of

fact and conclusions of law in support of the judgment, specifically noting the

sanctions order to the effect that numerous issues had been “conclusively decided

against Defendants.” This appeal followed.



                                          4
                                          Analysis

I.     Sufficiency of the evidence to support liability findings

       In his first three issues, Pollitt challenges the sufficiency of the evidence to

support the trial court’s findings that he breached the contract, that he committed

fraud, and that he was vicariously liable for the actions of Covington Office

Solutions.

       In an appeal of a judgment rendered after a bench trial, the trial court’s

findings of fact have the same weight as a jury’s verdict, and we review the legal

and factual sufficiency of the evidence to support them as we would review a

jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In

determining whether legally sufficient evidence supports a challenged finding, we

must consider the evidence that favors the finding if a reasonable fact-finder could,

and we must disregard evidence contrary to the challenged finding unless a

reasonable fact-finder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827

(Tex. 2005). We may not sustain a legal sufficiency, or “no evidence,” point unless

the record demonstrates: (1) a complete absence of a vital fact; (2) the court is

barred by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no

more than a mere scintilla; or (4) the evidence conclusively establishes the

opposite of the vital fact. Id. at 810.



                                             5
         Pollitt argues that he cannot be held liable for breach of the contract because

there was no evidence that he was a party to it. He further argues that he could not

have committed fraud because he was not a party to the agreement and therefore

did not make any promise of future performance. Pollitt thus asserts that no

evidence supports the trial court’s findings holding him liable for breach of

contract and fraud. In so arguing, however, Pollitt entirely disregards the sanctions

order, in which the trial court ordered that “issues regarding the formation of a

contract, the validity of the contract, Plaintiff’s performance, Defendant’s

performance, the terms of payment, the existence of a corporation, the status of co-

defendants as employees, the amount of damages, and issues related to fraud are

conclusively decided against Defendants.” Pollitt presents no argument to

challenge the validity of the sanctions order, nor does he address whether it was

sufficient to support the trial court’s findings of fact and conclusions of law.

         The unchallenged sanctions order specifies that issues “regarding the

formation of a contract” and “issues related to fraud” were established against

Pollitt. Thus the order provides an independent ground, expressly referenced by the

trial court, to support the challenged findings regarding breach of contract and

fraud.

         Pollitt asserts that no evidence supports the court’s finding holding him

liable for the actions of Covington Office Products. Specifically, he contends that



                                            6
there is no evidence that he committed an actual fraud for his own benefit, and that

there is no evidence that he was a person who may be held liable for a corporate

contract obligation because he was not a holder or subscriber of shares in

Covington Office Products. But as explained above, the trial court ordered that

“issues related to fraud” were conclusively established as a sanction for discovery

violations, yet Pollitt does not challenge the sanctions order or its sufficiency to

support the judgment.

      Pollitt further contends, however, that there was no evidence that he could

be held liable for a corporate contract obligation. On this point, Pollitt relies upon

the Texas Business Organizations Code, which provides:

      A holder of shares, an owner of any beneficial interest in shares, or a
      subscriber for shares whose subscription has been accepted, or any
      affiliate of such a holder, owner, or subscriber or of the corporation,
      may not be held liable to the corporation or its obliges with respect to:
      . . . any contractual obligation of the corporation or any matter relating
      to or arising from the obligation on the basis that the holder . . . is or
      was the alter ego of the corporation or on the basis of actual or
      constructive fraud, sham to perpetrate a fraud, or other similar
      theory . . . .

TEX. BUS. ORGS. CODE ANN. § 21.223(a)(2). Pollitt contends that, because he is not

a shareholder or owner of the corporation, he is not a party who may be held

responsible for a contractual obligation or related liabilities under the statute. But

Pollitt misinterprets the provision, which limits the circumstances under which a

shareholder can be held liable for corporate debts. See Willis v. Donnelly, 199



                                          7
S.W.3d 262, 271–72 & n.12 (Tex. 2006). By its terms, it has no application to

shield an individual acting in his capacity as a corporate officer from responsibility

for abuse of the corporate form. See TEX. BUS. ORGS. CODE ANN. § 21.223(b).

Pollitt does not dispute that he is an officer of the corporation—a fact established

by testimony at trial. Thus, we conclude that Pollitt has failed to demonstrate that

the evidence is insufficient to uphold the trial court’s finding that Pollitt was held

liable for the actions of Covington Office Products. The sanctions order

conclusively established “issues related to fraud,” and the trial court consequently

concluded that Pollitt abused the corporate form as a sham to perpetrate an actual

fraud for his own benefit. We overrule Pollitt’s first three issues.

II.   Denial of trial continuance

      In his sixth and seventh issues, Pollitt complains of the trial court’s rulings

allowing the withdrawal of counsel a week before trial while denying his motion

for continuance. Computer Comforts contends that there was no error, and even if

there was one, it was harmless.

      Even assuming that the trial court abused its discretion by denying the

continuance under circumstances that left Pollitt without counsel and without a

reasonable opportunity to obtain counsel, it remains the case that the scope of the

trial was significantly limited by the sanctions orders previously entered by the

court. Despite that, it is conceivable that Pollitt may have benefited by the presence



                                           8
of counsel at trial. To obtain relief on appeal, however, it is Pollitt’s obligation to

demonstrate that he was harmed by the trial court’s denial of his motion for

continuance. See TEX. R. APP. P. 44.1(a) (“No judgment may be reversed on appeal

on the ground that the trial court made an error of law unless the court of appeals

concludes that the error complained of: (1) probably caused the rendition of an

improper judgment; or (2) probably prevented the appellant from properly

presenting the case to the court of appeals.”). Because Pollitt has made no

argument about what would have happened differently at trial had he been

represented by counsel, or how he has been prevented from properly presenting his

appeal, he has not demonstrated harm. We overrule his sixth and seventh issues.

III.   Joint and several award of exemplary damages

       In his fifth issue, Pollitt argues that the award of exemplary damages was

improperly awarded against all defendants jointly and severally, in violation of

Civil Practice and Remedies Code section 41.006. That statute provides that “in

any action in which there are two or more defendants, an award of exemplary

damages must be specific as to a defendant, and each defendant is liable only for

the amount of the award made against that defendant.” See TEX. CIV. PRAC. &

REM. CODE ANN. § 41.006. Computer Comforts does not dispute the error, but

instead asks us to reform the judgment to award exemplary damages against Pollitt




                                          9
individually, or remand for “additional evidence or findings.” Computer Comforts

provides no authority to support either suggestion, nor are we aware of any.

      The trial court awarded exemplary damages against “Covington Office

Products, Inc., Anthony Covington, and David Pollitt, jointly and severally . . . .”

Because the trial court’s award of damages was not specific as to each defendant,

we sustain Pollitt’s fifth issue, reverse the judgment on the issue of exemplary

damages, and remand the case to the trial court to determine whether to award

exemplary damages against Pollitt individually. Id.; see also Computek Computer

& Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 224 (Tex. App.—Dallas 2005,

no pet.).

IV.   Other damages issues

      In his fourth issue, Pollitt challenges the award of both attorney’s fees,

which were based on breach of contract, and the award of exemplary damages,

which were based on fraud. Pollitt asserts that the two recoveries—one in contract,

and one in tort—violate the one-satisfaction rule, which applies to prevent a

plaintiff from obtaining more than one recovery for the same injury. Stewart Title

Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991). The rule applies when multiple

defendants commit the same act as well as when defendants commit technically

different acts that result in a single injury. Crown Life Ins. Co. v. Casteel, 22

S.W.3d 378, 390 (Tex. 2000). However, when a plaintiff pleads alternate theories



                                        10
of liability, a judgment awarding damages on each alternate theory may be upheld

if the theories depend on separate and distinct injuries and if separate and distinct

damages findings are made as to each theory. Peterson Group, Inc. v. PLTQ Lotus

Group, L.P., 417 S.W.3d 46, 64 (Tex. App.—Houston [1st Dist.] 2013, pet.

denied); Madison v. Williamson, 241 S.W.3d 145, 158 (Tex. App.—Houston [1st

Dist.] 2007, pet. denied).

      Here, we have sustained Pollitt’s fifth issue, reversing the trial court’s award

of exemplary damages and remanding the case for the fact-finder to determine how

much in exemplary damages, if any, should be awarded against Pollitt individually.

Accordingly, we need not address Pollitt’s fourth issue. See, e.g., VanDevender v.

Woods, 222 S.W.3d 430, 432–33 (Tex.2007) (noting “the cardinal principle of

judicial restraint—if it is not necessary to decide more, it is necessary not to decide

more” (quoting PDK Labs., Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786,

799 (D.C. Cir. 2004) (Roberts, J., concurring))).




                                          11
                                    Conclusion

      We reverse the portion of the trial court’s judgment concerning exemplary

damages, as it applies to Pollitt, and remand the case to the trial court for further

proceedings consistent with this opinion.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Jennings, Sharp, and Massengale.




                                         12
