                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00127-CV

BEVERLY ANN GARVIN,                                                 APPELLANT
INDIVIDUALLY AND D/B/A
DENTON LIFESTYLES

                                       V.

MEISSNER PUBLISHING, LTD.;                                          APPELLEES
SHIRLEY MEISSNER, AS
EXECUTOR OF THE ESTATE OF
HAROLD MEISSNER; AND LISA
MEISSNER


                                    ----------

          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      In this restricted appeal, 2 appellant Beverly Ann Garvin, individually and

d/b/a Denton Lifestyles, appeals the trial court’s postanswer default judgment in

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. R. App. P. 30.
favor of appellees Meissner Publishing, Ltd. (Meissner Publishing); Shirley

Meissner, as executor of the estate of Harold Meissner; and Lisa Meissner

(Harold’s daughter). In five issues, appellant contends that that the evidence is

legally and factually insufficient to support findings concerning liability and

damages in the judgment; that the judgment is improper because appellant did

not receive notice of the trial; that the trial court erred by awarding a single

damage recovery to multiple plaintiffs; and that the judgment improperly awards

relief to Harold, who was dead at the time of the trial. We affirm in part and

reverse and remand in part.

                                Background Facts

      In December 2006, appellant sued Meissner Publishing, Harold, Lisa, and

Mindy Bruce. 3 In appellant’s original petition, she alleged that she had been a

sales consultant for Denton Connection (a “local advertising tabloid” that

Meissner Publishing owned), that the Meissners had agreed to sell Denton

Connection to her and Mindy for $150,000, that the Meissners had later backed

out of the deal after taking steps to consummate it, that they had prevented her

from running the Denton Connection as agreed, and that they had barred her

from entering the business’s premises.       Appellant contended that before the


      3
        The original style of the case named “Mamm Publishing Inc., d/b/a Denton
Connection and Beverly Ann Garvin” as plaintiffs. For simplicity, we will use
“appellant” to refer to filings made in the trial court by Garvin in any capacity and
will use “appellees” to refer to the parties that were adverse to appellant in the
trial court or are adverse to her on appeal.


                                         2
Meissners had backed out of the deal, they had abandoned their use of the

Denton Connection name. She also alleged that she had registered the use of

the name through an assumed name certificate with the consent of the

Messiners, that the Meissners had added her as a representative to Meissner

Publishing’s bank account, that she had signed a commercial lease for the

property where Denton Connection was produced, and that she had formed

Mamm Publishing, Inc. (Mamm Publishing) to run Denton Connection. 4

      Thus, based on her allegations that the Meissners had wrongfully backed

out of a deal to sell Denton Connection and were operating the magazine without

authority to do so, appellant brought claims for breach of contract, unfair trade,

tortious interference with actual and prospective contractual relations (between

Mamm Publishing and existing or potential advertisers), fraud, unjust enrichment,

civil conspiracy, and quantum meruit. Appellant originally asked for injunctive

relief, damages, and attorney’s fees. She attached several documents to her

petition. One of these documents established that the Meissners had abandoned

“The Denton Connection” as a business name.         In later pleadings, appellant

stated that she had started a business to compete with Denton Connection but

that Lisa had threatened criminal prosecution against her for doing so.

      Appellees brought counterclaims against appellant. They alleged that she

had unlawfully transferred money from Meissner Publishing’s bank account to

      4
      Appellant and Mindy formed Mamm Publishing in approximately
September 2006.


                                        3
Mamm Publishing’s account.          Appellees also alleged that appellant had

appropriated Meissner Publishing’s advertising contracts, revenues, and

proprietary information.     Among other allegations, appellees alleged that

appellant had taken money from Meissner Publishing to file her lawsuit against

Meissner Publishing. Appellees also alleged that appellant had used Meissner

Publishing’s data to form Denton Lifestyles, another magazine.

      Appellees alleged that appellant’s actions had caused Denton Connection

to lose all of its value. They sued appellant for conversion, tortious interference

with contractual relations, violation of the Texas Theft Liability Act (TTLA), 5 fraud,

breach of fiduciary duty, 6 and civil conspiracy (alleging that appellant had

conspired with Mamm Publishing to injure appellees). Appellees sought actual

damages, including loss of revenue; injunctive relief; and exemplary damages

based on appellant’s alleged malice or gross negligence. Appellant answered

the counterclaim through a general denial and by pleading that she owned the

business and that the Meissners had “tortiously [taken it] over.”

      Along with suing appellant, appellees brought claims against Troy Hurst,

who had joined with appellant to start Denton Lifestyles.               Among other

contentions, appellees claimed that Troy had financially supported appellant in


      5
      See Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001–.005 (West 2011 &
Supp. 2013).
      6
       Appellees alleged that appellant had a relationship of “trust and
confidence” with appellees and had failed to act in good faith.


                                          4
the lawsuit, had conspired with her to gain control of Denton Connection, and

had unlawfully used Denton Connection’s property and proprietary information to

start Denton Lifestyles. 7

      The trial court granted the Meissners’ request for a temporary injunction

and denied appellant’s request for a temporary injunction (in which she asked the

trial court to give her exclusive control over Denton Connection). Through the

court’s injunction, it found that no contract had been formed for the sale of

Denton Connection and that only Meissner Publishing could use Denton

Connection’s name.

      Appellant and appellees each eventually sought summary judgment. In

appellees’ traditional motions against appellant’s claims, they conceded that they

had discussed selling Denton Connection to appellant but contended that a

contract for the sale of the business was never completed. For reasons mostly

related to the alleged failure of the parties to reach a binding agreement,

appellees also sought summary judgment on appellant’s non-contractual claims.

      The trial court granted appellees’ motions for summary judgment on all of

appellant’s claims except for quantum meruit.       Appellant filed a no-evidence


      7
       Regarding his relationship with appellant, Troy testified,

             The corpus of mine and [appellant’s] meetings initially were to
      find someone to help her to publish the Denton Connection. Then it
      got to the point where she had decided that she wanted to buy the
      Denton Connection. Then it got to the point to where she wanted to
      run her own magazine.


                                         5
motion for summary judgment on appellees’ counterclaims.           The trial court

denied most of appellant’s motion but granted it to the extent that appellees had

raised a breach of contract claim against appellant.

      The court set a trial date for all of the remaining claims for early October

2011. Appellant did not personally appear at the trial and was not represented

by counsel because the trial court had disqualified him. Other parties (Troy and

appellees) appeared and presented extensive evidence of their claims against

each other to a jury. Before those parties finished their presentation of evidence,

however, they reached an agreement to dismiss all of their claims against each

other. As part of the settlement agreement, appellees expressly reserved their

claims against appellant.

      In a postanswer default judgment against appellant, the trial court found

from the “evidence and arguments of counsel” that she had committed fraud and

theft; had tortiously interfered with appellees’ contracts; and had converted

advertising revenue, contracts, and proprietary information.          The court’s

judgment awarded appellees $10,267.96 in damages and a $1,000 penalty under

the TTLA, $100,000 for attorney’s fees and $9,113.02 in costs under the TTLA,

$11,403.20 for the conversion of advertising revenue, and $150,000 for the “total

loss of [appellees’] business.” The trial court also dismissed appellant’s claims

with prejudice.




                                        6
      The trial court signed its judgment against appellant in October 2011. 8

Appellant did not file a postjudgment motion or request findings of fact and

conclusions of law. In March 2012, she brought this restricted appeal.

                             Evidentiary Sufficiency

      In her only “Rendition Issue” and her third “Remand Issue,” appellant

contends that the evidence is insufficient to support the findings contained within

the trial court’s postanswer default judgment. She asserts that appellees failed to

produce evidence of liability or damages. We construe appellant’s arguments as

challenges to the legal and factual sufficiency of the evidence to support liability

and damages. Appellees have not filed a brief.

      To prevail in a restricted appeal, an appellant must show that (1) a notice

of appeal was filed within six months of the date the complained-of judgment or

order was signed; (2) the appellant was a party to the suit but did not participate

in the hearing that resulted in the judgment or order; (3) the appellant did not

timely file a postjudgment motion, request findings of fact and conclusions of law,

or file a notice of appeal within the time permitted under rule of appellate

procedure 26.1(a); and (4) the complained-of error is apparent from the face of

the record. See Tex. R. App. P. 26.1(a), 30; Watson v. Watson, 286 S.W.3d 519,

522 (Tex. App.—Fort Worth 2009, no pet.). The fact of nonparticipation, not the



      8
      The court first signed a default judgment against appellant; later the same
month, the court signed a final judgment incorporating the default judgment.


                                         7
reason for it, determines the right to bring a restricted appeal. See Texaco, Inc.

v. Cent. Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996).

      The record establishes that appellant meets the first three requirements for

a successful restricted appeal. 9 She contends that there is error apparent on the

face of the record because the evidence is insufficient to support the judgment’s

liability and damage findings against her.

      A postanswer default judgment is rendered when a party files an answer to

another party’s affirmative claims but fails to appear at trial.        See Stoner v.

Thompson, 578 S.W.2d 679, 682 (Tex. 1979). Such a default judgment is not an

abandonment of any issues raised by the defendant’s answer. See id.; see also

Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (stating that

a trial court may not render judgment on the pleadings when an answer has been

filed). Unlike a no-answer default, a postanswer default judgment requires the

plaintiff to offer evidence to prove all factual allegations of its petition just as in a

contested trial. See Lerma, 288 S.W.3d at 930; In re K.B.A., 145 S.W.3d 685,

690 (Tex. App.—Fort Worth 2004, no pet.).

      A postanswer default judgment can be challenged for sufficiency of the

evidence. See Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270


      9
        In this court, appellees filed a motion to dismiss appellant’s appeal,
contending that it was precluded by an appearance of appellant’s already-
disqualified counsel in the trial court in opposition to the default judgment.
Through a July 2012 order, we denied the motion to dismiss, concluding that
counsel’s appearance did not qualify as participation under rule 30.


                                           8
(Tex. 1997) (recognizing that review of legal and factual sufficiency is permissible

when a postanswer default judgment is challenged by restricted appeal); Watson,

286 S.W.3d at 522 (reviewing the legal and factual sufficiency of the evidence in

a restricted appeal because evidentiary insufficiency is an error on the face of the

record). Specifically, the factual sufficiency of evidence supporting a trial court’s

award of damages in a postanswer default judgment may be challenged on

appeal. See Tex. R. Civ. P. 243; Otis Elevator Co. v. Parmelee, 850 S.W.2d

179, 180–81 (Tex. 1993); Davis v. McCully, No. 02-05-00072-CV, 2006 WL

133519, at *1 (Tex. App.—Fort Worth Jan. 19, 2006, no pet.) (mem. op.) (“When

a specific attack is made upon the legal or factual sufficiency of the evidence to

support the trial court’s determination of damages in a default judgment, the

appellant is entitled to a review of the evidence produced.”). When no legally or

factually sufficient evidence exists to support a postanswer default judgment, we

must remand the case to the trial court for a new trial. See Bennett v. McDaniel,

295 S.W.3d 644, 645 (Tex. 2009); Gonzalez v. Gonzalez, 331 S.W.3d 864, 869

(Tex. App.—Dallas 2011, no pet.); see also Brown v. Ogbolu, 331 S.W.3d 530,

535 (Tex. App.—Dallas 2011, no pet.) (explaining that successful legal and

factual sufficiency challenges to postanswer default judgments result in the same

relief).

        When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the


                                         9
credible evidence supporting the finding is so weak that the answer should be set

aside and a new trial ordered. 10 Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza

v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

Damages, penalty, attorney’s fees, and costs under the TTLA

      The trial court’s judgment awards appellees $10,267.96 in damages and a

$1,000 penalty under the TTLA. The TTLA recognizes civil liability for someone

who commits theft as defined by the penal code. 11 See Tex. Civ. Prac. & Rem.

Code Ann. §§ 134.002(2), .003(a); Beaumont v. Basham, 205 S.W.3d 608, 618

(Tex. App.—Waco 2006, pet. denied).          Under the TTLA, a prevailing plaintiff

“who has sustained damages resulting from theft” may recover “actual damages

. . . and, in addition to actual damages, damages awarded by the trier of fact in a

sum not to exceed $1,000.” Tex. Civ. Prac. & Rem. Code Ann. § 134.005(a)(1);

see Reece v. Johnson, No. 10-12-00077-CV, 2013 WL 4511930, at *3 (Tex.

App.—Waco Aug. 22, 2013, no pet.) (mem. op.) (explaining that the TTLA

requires a plaintiff to prove a possessory right to property, unlawful appropriation

of that property in violation of the penal code, and resulting damages).

      10
        Because appellant’s legal sufficiency challenge would not result in
greater relief than her factual sufficiency challenge and because appellant’s
burden to sustain her factual sufficiency challenge is less onerous, we will review
the evidence only for factual sufficiency. See Brown, 331 S.W.3d at 535.
      11
        Theft occurs when a person appropriates property with the intent to
deprive the owner of it and without the owner’s consent. Tex. Penal Code Ann.
§ 31.03(a), (b)(1) (West Supp. 2013).


                                        10
      Appellant argues in part that appellees did not present sufficient evidence

of damages that resulted from her alleged theft. Some evidence supports the

trial court’s finding that appellant committed theft, although other evidence,

including appellant’s testimony, weighs against the finding. 12

      When Harold and Lisa began operating Denton Connection in 2002 (with

the first issue published in 2003), Lisa was managing the magazine and Harold

was “basically providing the funding.”        In 2005, appellant became a sales

representative for Denton Connection. In 2006, Lisa moved away from Denton

County so that Mindy, who had been working for Denton Connection since 2003,

could have “an opportunity to run the magazine on her own.”

      Mindy began running the company in May 2006 with a plan to possibly

purchase it later.   Appellant called Lisa in June 2006 to express interest in

managing the magazine with Mindy.          That month, the Meissners set up a

meeting with appellant and Mindy to discuss a possible sale of the magazine.




      12
         Appellant’s testimony was produced through her pretrial deposition. She
stated that she never intentionally converted any funds or software that she knew
belonged to the Meissners. She testified that when she started managing
Denton Lifestyles, she sold advertising by cold-calling businesses.           She
explained that she did not use preexisting software or templates in Denton
Lifestyles’s layout. Appellant stated that when the Meissners abandoned
Denton Connection’s name and allowed her to claim the name, she believed that
she owned the magazine.


                                         11
Between themselves, the Meissners initially discussed selling the magazine to

appellant and Mindy for $250,000. 13

      The Meissners abandoned the “Denton Connection” name in early July

2006, and on the same day, appellant filed an assumed name certificate claiming

ownership of the name.        When asked why she transferred the Denton

Connection name to appellant, Lisa testified,

             On the day we met with [appellant and Mindy] to discuss what
      different things you do when you start a business and things in
      particular of how to run the business, [Harold] and I determined that
      we would go ahead and release the DBA at the courthouse. . . .

              [Appellant] went with us. We showed her exactly where to go
      and what to do. She became very nervous when we got down to the
      courthouse, and she was worried that someone else would assume
      it in the interim . . . .

              So she asked us if she could please go ahead and assume it
      . . . and we said, sure, that would be fine.

      Similarly, Lisa testified that appellant was placed on Meissner Publishing’s

bank account in July 2006 because the Meissners “needed someone local to be

able to sign checks” and therefore pay bills that the business incurred. 14



      13
         Lisa testified that she and Harold, as partners, had put an initial
investment of approximately $150,000 into Meissner Publishing. Mindy testified
that appellant had approached her in the middle of 2006 with the idea of forming
a partnership to purchase Denton Connection for $150,000. According to Mindy,
one of the reasons that the sale could not be completed is that the parties could
not agree about how the $150,000 would be paid.
      14
         Appellant testified that the Meissners asked her to form Mamm
Publishing and to write checks on Meissner Publishing’s account so that she
could “run the business.” Appellant testified that from June 2006 until November
2006, the Meissners did not participate in managing the business or its finances.

                                       12
According to Lisa, when she added appellant’s name to Meissner Publishing’s

bank account, the Meissners were intending to sell Denton Connection to

appellant and Mindy.

      From May to late November 2006, Lisa went to Denton only “a couple

times” to check on the status of Denton Connection. Lisa disputed that appellant

ran Denton Connection in mid to late 2006, but she admitted that appellant had

been added as a signatory on the magazine’s business account at that time.

Lisa testified that she was “always in control of . . . Denton Connection,” even

after moving away from Denton.

      Lisa knew at some point in 2006 that appellant and Mindy had formed

Mamm Publishing, but she did not initially know that Mamm Publishing was

paying Mindy or Denton Connection’s bills. Mindy signed checks from Mamm

Publishing’s account.

      In October 2006, Lisa discovered that Mamm Publishing had opened a

bank account when appellant presented the Meissners with a proposed purchase

agreement and a check from the account. In November 2006, Lisa learned that

appellant had closed Meissner Publishing’s bank account. She also learned that

appellant had attempted to fire Mindy and that appellant was operating Denton




She explained, however, that when she attempted to fire Mindy, the Meissners
“stepped back in and said that [appellant] didn’t own the company.” According to
appellant, when she began managing the magazine, it was not making a profit,
but she “pulled it up out of [a] hole.”


                                      13
Connection through Mamm Publishing’s account. 15 Upon learning these facts,

Lisa became angry.     Meissner Publishing terminated appellant’s employment

with Denton Connection on November 20, 2006.

      Lisa testified that she had commanded appellant to return Meissner

Publishing’s money and property but that appellant had never done so. Lisa also

testified that the trial court had ordered appellant to release the assumed name

certificate but that she had never done so. According to Lisa, appellant used

money belonging to Meissner Publishing to sue appellees. Lisa testified explicitly

that appellant had stolen appellees’ money and property, including bank records.

She also testified that appellant had stolen personnel information.

      Mindy worked for Denton Connection—first as a sales representative and

later as an editor—from July 2003 until its last issue was published in December

2008. Mindy testified that although she was a part of Mamm Publishing and

wrote some of Mamm Publishing’s checks, she considered herself to be an

employee of Meissner Publishing. According to Mindy, there was no agreement

by Meissner Publishing for Mamm Publishing to manage the magazine; Mindy

testified that Mamm Publishing was “formed for the sole purpose to purchase the

. . . magazine.”




      15
        When appellant attempted to fire Mindy, Mindy told appellant that she
was “crazy,” that she did not have a right to make employment decisions, and
that she did not own Denton Connection.


                                        14
      Mindy testified that appellant had said that she had informed Lisa about

the transfer of money from Meissner Publishing’s checking account to Mamm

Publishing’s checking account. Mindy also said that appellant had told her that

Lisa had given a “blessing” on that transaction. Mindy explained that deposits

that entered the Mamm Publishing checking account were revenues from

Meissner Publishing’s advertisers.

      Mindy said that in November 2006, appellant took sales materials, layout

templates, source data, and CDs from Denton Connection’s office.              Mindy

classified these items as “proprietary.” She testified that appellant did not inform

Lisa of the closing of Meissner Publishing’s bank account and the transfer of

money to Mamm Publishing’s account in October 2006. Mindy also testified that

appellant had possessed CDs and software related to Denton Connection’s

media kit, which the magazine distributed to potential advertisers. Mindy testified

that Meissner Publishing’s money was used to form Mamm Publishing and to put

money in Mamm Publishing’s account.

      When appellant attempted to fire Mindy, Mindy called Lisa and Harold. At

a meeting later that day that appellant, her counsel, and the Meissners attended,

Lisa “learned the full breadth of the monies not being in the Meissner Publishing

account.” On the day that appellant attempted to fire Mindy, she also changed

locks on the office and took customer lists, files, sales materials, and software.

      Mindy testified that when a Meissner Publishing employee stopped

working for the company, management would ask the employee to return sales


                                         15
material, business cards, and “backstock” of magazines. According to Mindy,

appellant never returned such information, which was in digital form.

      Some of the record, and particularly these highlights from Lisa’s and

Mindy’s testimonies, provide support for the trial court’s finding that appellant

violated the TTLA. But upon a careful review of the record, we have not located

evidence fully substantiating the trial court’s damage award of $10,267.96 under

the TTLA. Lisa opined that appellant had stolen $2,390.78, 16 explaining that this

was the amount contained in Mamm Publishing’s Denton Connection accounts

and then transferred into an account related to Denton Lifestyles.       She also

explained that all of the money that had been placed in Mamm Publishing’s

account 17 from September to December 2006 was revenue from Denton

Connection’s advertising, which belonged to Meissner Publishing. Although one

part of Lisa’s testimony contains other particular amounts of money that she

believed appellant stole, 18 those amounts plus the $2,390.78 do not equal or

surpass $10,267.96.     The exhibit volumes of the reporter’s record contain

hundreds of pages of bank records and financial statements, but we have found


      16
      Appellant testified that this money was generated from advertisers while
she managed Denton Connection and was owed to her.
      17
       Presumably, Lisa was referring to Mamm Publishing’s checking account.
According to Mindy, Mamm Publishing also had a savings account, but that
account had “very little money.”
      18
         For example, in response to a question of “what additional money”
appellant took other than the $2,390.78, Lisa testified that appellant wrote checks
of over $5,000 from Mamm Publishing’s account to her attorney.


                                        16
no testimony linking those records to particular amounts allegedly stolen by

appellant.

      Therefore, we conclude that the evidence is too weak, and is therefore

factually insufficient, to support the trial court’s $10,267.96 damage award under

the TTLA. See Pool, 715 S.W.2d at 635. Because the issue of damages was

contested by appellant through her general denial to appellees’ counterclaims, 19

we cannot render judgment in favor of appellees on an amount less than

$10,267.96. See Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors,

Inc., 960 S.W.2d 41, 51 (Tex. 1998) (op. on reh’g). Rather, because there is no

factually sufficient evidence “to support the entire amount of damages,” but there

is some evidence of damages, we must reverse the judgment and remand the

case for a new trial on liability and damages. See id.; see also Tex. R. App. P.

44.1(b) (“The court may not order a separate trial solely on unliquidated damages

if liability is contested.”); Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007);

Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 682 (Tex. 2000) (“The

evidence in this case does not . . . support the amount of the damages found by

the jury. . . . Under these circumstances, the plaintiffs’ fraud claims must be

remanded to the trial court for another trial.”); Ghosh v. Grover, 412 S.W.3d 749,

758 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Playboy Enters., Inc. v.

Editorial Caballero, S.A. de C.V., 202 S.W.3d 250, 271–72 (Tex. App.—Corpus


      19
        See Tex. R. Civ. P. 92.


                                       17
Christi 2006, pets. denied) (reversing a judgment and remanding for a new trial

on liability and damages when the evidence proved some damages but did not

support the entire amount awarded in the judgment).

      Because we cannot affirm any amount of damages under appellees’ TTLA

claim and because we have not located any evidence supporting the amounts of

attorney’s fees and costs that the trial court awarded under the TTLA, 20 we

conclude that we also cannot affirm the $1,000 penalty, the $100,000 in

attorney’s fees, or the $9,113.02 in costs that the trial court awarded. See Tex.

Civ. Prac. & Rem. Code Ann. § 134.005(a)(1) (conditioning the $1,000 statutory

penalty on a finding that a person has “sustained damages resulting from theft”);

Hawkins v. Hawkins, No. 14-09-01000-CV, 2010 WL 5514344, at *4 (Tex. App.—

Houston [14th Dist.] Dec. 28, 2010, no pet.) (mem. op.) (“[I]t is well-settled that

an award of attorney’s fees can be challenged on appeal for the sufficiency of the

evidence.”); see also Alcatel USA, Inc. v. Cisco Sys., Inc., 239 F. Supp. 2d 660,

674 (E.D. Tex. 2002) (“A plain reading of [the TTLA] clearly reveals that an award

of $1,000 statutory damages is contingent upon an award of actual damages.”).

Damages for conversion of advertising revenue

      Next, the trial court awarded “$11,403.20 in damages created by the

conversion of advertising revenue belonging to” appellees.        Similarly to our

conclusion above, we have not found evidence that is factually sufficient to

      20
       When Lisa was asked how much she had paid her attorneys, she
responded that she did not know.


                                        18
support this award. No witness testified to damages matching the award, the

lesser damages that the witnesses testified about do not cumulate to $11,403.20,

and the witnesses’ testimonies are insufficient to link the hundreds of pages of

financial records, introduced as exhibits before testimony began, to the

conversion of advertising revenue.      We hold that the evidence is factually

insufficient to support the trial court’s award of $11,403.20 for conversion. See

Pool, 715 S.W.2d at 635. We therefore reverse that part of the trial court’s

judgment and remand for a new trial on liability and damages for conversion.

See Tex. R. App. P. 44.1(b); Ghosh, 412 S.W.3d at 758.

“[T]otal loss” damages of $150,000

      Finally, the trial court awarded $150,000 to appellees for the “total loss of

their business The Denton Connection magazine that was valued at $150,000.00

before the knowing and intentional acts of theft, fraud, conversion, breach of

[appellant’s] fiduciary duty . . . , and tortious interference with the Denton

Connection contracts.”    Lisa testified that the Meissners considered selling

Denton Connection for $150,000 because that amount represented the

approximate initial investment into the business. Mindy testified that she and

appellant had considered purchasing Denton Connection for $150,000.           She

explained that her consideration of that number was based on the magazine’s

reputation, its readership, the Meissners’ initial investment, and the magazine’s

existing contracts.




                                       19
      Assuming that this testimony from Mindy and Lisa is sufficient to establish

a $150,000 value for Denton Connection, 21 we have not found sufficient evidence

substantiating that appellant’s allegedly tortious acts caused the “total loss” of the

business. Instead, the evidence establishes that appellees fired appellant from

Denton Connection in November 2006, that the trial court enjoined her from

using Denton Connection’s name and data in January 2007, and that Denton

Connection continued to publish for nearly two years afterward. The evidence

also shows that by 2006, Lisa had already decided that she wanted to “leave the

Denton market” and be less involved in managing Denton Connection. That

year, by Lisa’s and Mindy’s decision, Denton Connection lowered its distribution

by 20,000 copies because it “needed to increase [its] profit margin.”           Mindy

testified that “a lot [of factors] contributed to the magazine going out of business.”

      We have not located sufficient evidence establishing a causal link between

appellant’s acts in 2006 and the total demise of Denton Connection in December

2008. Therefore, because we conclude that the evidence is factually insufficient

to establish $150,000 in damages to appellees for the “total loss” of Denton

Connection, we must reverse that damage award and remand this case to the

trial court for a new trial on damages and liability for “intentional acts of theft,

      21
         Lisa did not produce records or testimony establishing the extent of
Denton Connection’s profit in 2005 or 2006. She admitted that she was not an
accounting expert and that she was not responsible for running the company’s
financial books. Mindy rejected appellant’s assertion that Denton Connection
was not profitable in 2006, but she did not produce evidence at trial concerning
the particular extent of any profit.


                                         20
fraud, conversion, breach of . . . fiduciary duty . . . , and tortious interference with

the Denton Connection Contracts.”         See Tex. R. App. P. 44.1(b); Pool, 715

S.W.2d at 635; Ghosh, 412 S.W.3d at 758.

                                     Conclusion

      For all of these reasons, we sustain appellant’s factual sufficiency issue as

to damages awarded, which she labels as her third “Remand Issue.” We reverse

all parts of the trial court’s judgment that contain findings concerning liability or

damages against appellant, and we remand all of appellees’ claims against

appellant for a new trial. 22   See Tex. R. App. P. 43.2(d), 44.1(b).         Because

appellant has not challenged the part of the trial court’s judgment that dismisses

her claims against appellees with prejudice, we affirm that part of the judgment. 23

See Tex. R. App. P. 43.2(a).

                                                      /s/ Terrie Livingston

                                                      TERRIE LIVINGSTON
                                                      CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DELIVERED: May 22, 2014




      22
       Because appellant’s other four issues would not provide greater relief
than reversal of the judgment and a remand for a new trial, we decline to
consider them. See Tex. R. App. P. 47.1; Davis v. Conveyor-Matic Inc., 139
S.W.3d 423, 432 n.6 (Tex. App.—Fort Worth 2004, no pet.).
      23
        Appellant states in her brief that she “appeals from the [postanswer]
Default Judgment . . . awarding monetary damages against her.”


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