                                                                                                              ACCEPTED
                                                                                                          13-14-00711-CV
                                                                                          THIRTEENTH COURT OF APPEALS
          FILED                                                                                  CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                                        8/11/2015 12:16:15 PM
  CORPUS CHRISTI - EDINBURG                                                                        CECILE FOY GSANGER
                                                                                                                   CLERK

        8/11/15                             NO. 13-14-00711-CV
CECILE FOY GSANGER, CLERK
BY DTello                      IN THE THIRTEENTH COURT OF APPEALS
                                                                FILED- IN
                                         EDINBURG, TEXAS 13th COURT  ----OF APPEALS
                                                                ----
                                                           CORPUS CHRISTI/EDINBURG,
                                                                             ---              TEXAS
                                                                    - - ---- ss ------
                                                              8/11/2015
                                                                  -
                                                                 - ID            12:16:15
                                                                                  - -     PM
                                                             ---- VO ------
                                                                  CECILE  - - -  FOY  GSANGER
                                          DOUG    GENGENBACH, ------- Clerk

                                                                             Appellant,
                                                      V.
                                                                     RECEIVED IN
                                                               13th COURT OF APPEALS
                                                            CORPUS CHRISTI/EDINBURG, TEXAS
                                           JESUS   RODRIGUEZ, 8/11/2015 12:16:15 PM
                                                                 CECILE FOY GSANGER
                                                                    Appellee.
                                                                       Clerk



                                          APPELLANT’S BRIEF



                                     On Appeal from Cause C-1553-11-H
                                      In the 389TH Judicial District Court
                                           Of Hidalgo County, Texas
                                      Hon. Letty Lopez, Judge Presiding


                                                       RICARDO GUERRA
                                                       Lead Counsel for Appellant
                                                       State Bar No. 24074331
                                                       ERIC DAYS
                                                       State Bar No. 24082907
                                                       Law Offices of Rick Guerra
                                                       2211 Rayford Rd. Ste. 111 #134
                                                       Spring, TX 77386
                                                       Direct: 281-760-4295
                                                       Fax: 866-325-0341


                                   ORAL ARGUMENT IS REQUESTED
                     IDENTITY OF PARTIES & COUNSEL

Below is the complete list required by Texas Rule of Appellate Procedure 38.1(a)

of all the parties to the trial court’s judgment and the names and addresses of all

trial counsel and appellate counsel:


      1.     Plaintiff in the trial court (Appellant in this Court):

   Doug Gengenbach

      2.     Defendant in the trial court (Appellee in this Court):

   Jesus Rodriguez

      3.     Trial and Appellate Counsel for Plaintiff/Appellant:

   Ricardo Guerra (Lead Counsel)
   Eric Days
   Brent Smith
   2211 Rayford Rd. Ste. 111 #134
   Spring, TX 77386
   281-760-4295

      4.     Trial and Appellate Counsel for Defendant/Appellee:

   Felipe Garcia Jr.
   201 E. University Dr.
   Edinburg, TX 78539
   956-386-1900




_____________________________________________________________________________
Appellant’s Brief                     ii
                                            TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................ iii	  
TABLE OF AUTHORITIES ................................................................................... iv	  
STATEMENT OF THE CASE ................................................................................ 1	  
STATEMENT REGARDING ORAL ARGUMENT .............................................. 1	  
ISSUES PRESENTED ............................................................................................. 2	  
STATEMENT OF FACTS ....................................................................................... 2	  
SUMMARY OF THE ARGUMENT ....................................................................... 4	  
ARGUMENT AND AUTHORITY .......................................................................... 7	  
  I.	   The Trial Court Committed Reversible Error by Denying the Submission of
          Gengenbach’s Breach of Fiduciary Duty Claim. ............................................. 7	  
        A.	   Standard of Review ...................................................................................... 7	  
        B.	   Joint Venture/Partnership Defined ............................................................... 9	  
  II.	   The Trial Court Committed Reversible Error by Commingling a Broad Form
          Jury Question, #11, with an Improper Damage Element in Question, #12. .. 17	  
        A.	   Standard of Review .................................................................................... 17	  
        B.	   Rodriguez failed to plead and prove fraudulent inducement; therefore out
               of pocket damages was the only remedy available, if any. ........................ 18	  
        C.	   No evidence of Out of Pocket Expenses to Willacy Co-Op ...................... 26	  
        D.	   Submission of an improper damage element in jury question # 12 was
               harmful error as the jury considered the finding in its calculation for
               exemplary damages in question #13 and #14. ........................................... 28	  
  III.	  The Trial Court Committed Reversible Error in Entering Judgment on
          Exemplary Damages ...................................................................................... 28	  
        A.	   Standard of Review .................................................................................... 29	  
        B.	   Exemplary damages are not recoverable for causes of action that sound in
               contract alone. ............................................................................................ 30	  
        C.	   No independent tort proven for exemplary damages ................................. 31	  
  IV.	  The Jury’s Damage Findings are Against the Overwhelming Weight of the
          Evidence. ....................................................................................................... 33	  
        A.	   Standard of Review .................................................................................... 33	  
        B.	   Excessiveness of Damages ........................................................................ 35	  
        C.	   Damages Awarded ..................................................................................... 38	  
  V.	   The Trial Court Committed Reversible Error in not Applying Offsets or
          Credits. ........................................................................................................... 45	  
        A.	   Standard of Review .................................................................................... 45	  
        B.	   Right to offsets ........................................................................................... 46	  
PRAYER................................................................................................................. 49	  
_____________________________________________________________________________
Appellant’s Brief                     iii
APPENDIX............................................................................................................... 1	  
 Appendix A ........................................................................................................... 2	  
 Appendix B ........................................................................................................... 6	  
 Appendix C ......................................................................................................... 27	  
 Appendix D ......................................................................................................... 40	  
 Appendix E .......................................................................................................... 87	  
 Appendix F ........................................................................................................ 102	  

                                       TABLE OF AUTHORITIES

Cases

Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 571 (Tex. 1981) _____ 30, 32, 44

Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007). ______________ 36

Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d at 756 ____________________ 18

Brown v. Am. Transfer and Storage Co., 601 S.W.2d 931, 936 (Tex. 1980) ____ 46

Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) __________________________ 34

Circle C Child Dev. Ctr., Inc. v. Travis Cent. Appraisal Dist., 981 S.W.2d 483, 485
  (Tex.App.-Austin 1998, no pet.) ____________________________________ 29

Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14 (Tex. 1996) (per curiam) ___ 32, 37

Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000) _____________ 18

D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 664 (Tex. 1998) (per
  curiam) ________________________________________________________ 32

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242 (Tex.1985),
 cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) ________ 45

Duval County Ranch Co. v. Wooldridge, 674 S.W.2d 332, 335-36 (Tex. App.—
 Austin 1984, no writ) _____________________________________________ 40

Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992) _________________________ 8

Formosa Plastics Corp. USA v. Presidio Eng. & Contractors, 960 S.W.2d 41, 49
 (Tex. 1998) _____________________________________________ 5, 35, 37, 40

George, 93 S.W. at 108 _____________________________________________ 40
_____________________________________________________________________________
Appellant’s Brief                     iv
Grant Thornton LLP v. Prospect High Income Fund, ML CBO IV (Cayman) Ltd.,
 314 S.W.3d 913, 923 (Tex. 2010) ___________________________________ 39

Haase v. Glazner, 62 S.W.3d 795 (Tex. 2001) _______________________ passim

Harlingen Irrigation Dist. Cameron County No. 1 v. Caprock Communications, 49
 S.W.3d 520, 530 (Tex.App.-Corpus Christi 2001, pet denied) _____________ 29

Harris Cnty. V. Smith, 96 S.W.3d 230, 233 34(Tex.2002) __________________ 18

Hofland v. Fireman's Fund Ins. Co., 907 S.W.2d 597, 599 (Tex.App.-Corpus
 Christi 1995, no writ) _____________________________________________ 29

In re G.M., 596 S.W.2d 846, 847 (Tex.1980) ____________________________ 34

Ingram v. Deere, 288 S.W. 3d 886, 896 (Tex.2009) _______________________ 10

Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998); _______________ 9

Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986) ________ 30, 31

La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998) ________________ 7

Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986) ______________ 34

McDonough v. Zamora, 338 S.W.2d 507, 513-14 (Tex. Civ. App.—San Antonio
 1960, writ ref’d n.r.e.) ____________________________________________ 32

Meyer v. Cathey, 167 S.W.3d 327, 330–31 (Tex.2005) _____________________ 9

Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986) _______________ 46, 48

Muller v. Nelson Sherrod & Carter, 563 S.W.2d 697, 701 (Tex.Civ.App.-Fort
 Worth 1978, no writ) _____________________________________________ 29

Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996) _________________________ 34

Police Officers Union v. Tamez, 81 S.W.3d 401, 404-05 (Tex. App.—Corpus
 Christi 2002, pet. dism'd) __________________________________________ 30

Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986) _________________ 34

Roberts v. S. Pacific Transp. Co., 44 S.W.3d 183, 187 (Tex.App.-Houston [14th
 Dist.] 2001, pet. denied) ____________________________________________ 8
_____________________________________________________________________________
Appellant’s Brief                     v
Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281, 282 (Tex. 1994) ________ 35

Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006) (per curiam) ___________ 7

SJW Prop. Commerce, Inc. v. Sw. Pinnacle Properties, Inc., 328 S.W.3d 121, 162
  (Tex. App.—Corpus Christi 2010, pet. denied) _________________________ 35

Smith–Hamm, Inc. v. Equip. Connection, 946 S.W.2d 458, 462 (Tex.App.-Houston
 [14th Dist.] 1997, no writ) __________________________________________ 8

Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493 ____________ 30, 32, 34

Stable Energy, 999 S.W.2d at 547 _____________________________________ 30

Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex.App.-Austin 1999,
  pet. denied) _____________________________________________________ 29

State v. Addington, 588 S.W.2d 569, 570 (Tex.1979) ______________________ 35

Sutton v. Estate of McCormick, 47 S.W.3d 179, 184-85 (Tex.App – Corpus Christi
  2001, no writ) ____________________________________________________ 8

Sw.	  Bell	  Tel.	  Co.	  v.	  Garza,	  164	  S.W.3d	  607,	  627	  (Tex.	  2004)	   _______________ 34

Sweet v. Port Terminal R.R., 653 S.W.2d 291, 294–95 (Tex.1983) ___________ 46

Texas Power & Light Co. v. Barnhill, 639 S.W.2d 331, 334 (Tex. App.—
  Texarkana 1982, writ ref’d n.r.e.) ___________________________________ 33

Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994) __________________ 34

Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex.2002) ____________ 8

Washburn v. Krenek, 684 S.W.2d 187, 191 (Tex.App—Houston [14th Dist.] 1984,
 writ ref’d n.r.e.) _________________________________________________ 10

Statutes

Tex. Civ. Prac. & Rem.Code Ann. § 41.001(2) (Vernon 2008) ______________ 34

TEX. BUS. ORG. CODE §152.051(b) _____________________________________ 9

TEX. BUS. ORG. CODE §152.052(a) ____________________________________ 10

_____________________________________________________________________________
Appellant’s Brief                     vi
Tex. Civ. Prac. & Rem.Code Ann.§ 41.003(a) (Vernon Supp.2009) __________ 34

Rules

Tex. R. App. P. 61.1(b) _____________________________________________ 18

Tex. R. Civ. P. 278 _________________________________________________ 8

Texas Rule of Civil Procedure 93 _____________________________________ 10




_____________________________________________________________________________
Appellant’s Brief                     vii
STATEMENT OF THE CASE

Nature of the Case: Plaintiff/Counter Defendant Doug Gengenbach initially filed

suit on June 10, 2011, against Defendant/Counter Plaintiff Jesus Rodriguez. (CR

24).   Gengenbach asserted claims for breach of contract, quantum meruit,

promissory estoppel, negligent misrepresentation, conversion and fraud. (CR 27,

28). Rodriguez asserted counter claims for fraud and intentional infliction of

emotional distress. (CR 106, 107).

Requested Disposition from This Court: Doug Gengenbach seeks a reversal of

the jury’s findings and the trial court’s entry of judgment and a rendering of

judgment consistent with this Court’s findings or in the alternative a remand of his

claims to the trial court for further proceedings.


STATEMENT REGARDING ORAL ARGUMENT

       Oral argument would provide meaningful assistance in deciding this appeal.

Although the issues before this Court are not novel, the facts of the case and the

application of the oral argument to the facts may provide additional clarity to the

Court and assist in reaching the appropriate outcome.




_____________________________________________________________________________
Appellant’s Brief
                                       1
ISSUES PRESENTED

      1.     Did the trial court commit reversible error in omitting Doug
             Gengenbach’s Breach of Fiduciary Duty claim from the jury charge?

      2.     Did the trial court commit reversible error in allowing Jesus
             Rodriguez’s Jury Question # 11-13 regarding Common Law Fraud as
             submitted?

      3.     Did the trial court commit reversible error in entering judgment on
             exemplary damages after the jury’s finding of an agreement between
             the parties?

      4.     Were the jury’s findings against the great weight of the evidence?

      5.     Did the trial court commit reversible error by disallowing any offsets
             or credits to Doug Gengenbach?


STATEMENT OF FACTS

      Doug Gengenbach offers the following statement of facts in support of his

argument that the final judgment signed by the trial court is erroneous.

      This appeal arises from a case brought by Doug Gengenbach

Plaintiff/Counter    Defendant     (“Gengenbach”       or    “Appellant”)   against

Defendant/Counter Plaintiff Jesus Rodriguez (“Rodriguez” or “Appellee”) for

claims of breach of contract, quantum meruit, promissory estoppel, negligent

misrepresentation, conversion and fraud.

      On or about August 2010, Rodriguez contacted Gengenbach regarding

potential investment in a farming transaction.          Rodriguez represented to


_____________________________________________________________________________
Appellant’s Brief                     2
Gengenbach that he had entered into farm leases of approximately 1300 acres,

within Hidalgo County, Texas.

        Following negotiations between the parties Gengenbach agreed to invest

financially in the planting, farming, and harvesting of the 1300 acres. Gengenbach

agreed to a profit split of 75% for Gengenbach and 25% for Rodriguez. Rodriguez

agreed that his personal labor would be included in the 25% as sweat capital and

that he would not seek additional labor payments.

        Despite significant investment by Gengenbach, Rodriguez reneged on his

agreement and threatened to destroy the crop if additional payments were not

made.     To protect his investment Gengenbach agreed to and began to pay

Rodriguez a monthly fee.

        Thereafter, Gengenbach was presented with an opportunity to sell a portion

of the sorghum crop for conversion to alcohol. The investor interested in the crop

advanced to Gengenbach the sum of $60,000 of which Gengenbach paid a quarter,

$15,312.00, to Rodriguez, in accordance with their profit sharing agreement.

        Without Gengenbach’s permission, consent, or knowledge, Rodriguez,

harvested the crop and delivered the crop to Willacy Co-op for storage and sale.

Rodriguez represented that he was the sole owner and possessed the right to

control the disposition of the crop. Based on this representation, Willacy paid

Rodriguez an advance of $20,000.00. (CVExh-1 pg. 22). Rodriguez also collected


_____________________________________________________________________________
Appellant’s Brief                     3
$17,552.00 from the United States Department of Agriculture, Farm Service

Agency (FSA) in 2011 with $16,267 of these payments paid after June 10, 2011.

(CVExh-1 pg. 37). However, no portions of funds collected by Rodriguez were

delivered to Gengenbach as agreed.

      On June 10, 2011, Gengenbach filed suit against Rodriguez. (CVClk Rec.

pg. 24). Gengenbach asserted claims for breach of contract, quantum meruit,

promissory estoppel, negligent misrepresentation, conversion and fraud. (CVClk

Rec. pg. 27, 28).    Rodriguez in his verified pleadings specifically denied the

existence of a contract and counter sued for claims of fraud and intentional

infliction of emotional distress. (CVClk Rec. pg. 31, 34).

      After a trial on the merits, the court submitted this cause to the jury. The

jury returned a verdict for Rodriguez. On September 25, 2015, the Trial Court

signed an Amended Final Judgment in favor of Appellee. (CVClk Rec. pg. 124).


SUMMARY OF THE ARGUMENT

      The trial court erred by refusing to submit Gengenbach’s claim for Breach of

Fiduciary Duty. Gengenbach’s pleadings included a claim for breach of fiduciary

duty and Gengenbach introduced sufficient evidence for the trier of fact.

Gengenbach tendered a breach of fiduciary question in substantially correct form,

and the question was sufficiently supported by the pleadings and the evidence.



_____________________________________________________________________________
Appellant’s Brief                     4
      Additionally, The submission of a broad form question of common law

fraud mixed with an unsupported damage element led to an improper judgment and

now prohibits Gengenbach from properly presenting his case to this Court. The

charges by Willacy County Coop were not out of pocket expenses and therefore

should not have been included in the charge. The inclusion of this question led to

the jury using a figure, unsupported by law, in deciding and calculating its answer

to jury questions # 12,13,14.

      Furthermore, Rodriquez is not entitled to exemplary damages, because the

causes of action at hand sound in contract alone. Rodriquez pleaded and

consistently claimed there was no agreement. However, Gengenbach pleaded and

providence evidence of an agreement. The jury found an agreement with their

affirmative answer to Question #1. Therefore, as a matter of law, entry of judgment

on exemplary damages was reversible error.

      The jury’s damage findings were against the great weight of the evidence.

Out of pocket damages is the appropriate method for determining damages in a

fraud case when no contract is alleged. Haase v. Glazner, 62 S.W.3d 795, 798-99

(Tex. 2001); Formosa Plastics Corp. USA v. Presidio Eng. & Contractors, 960

S.W.2d 41, 49 (Tex. 1998). Although the jury in this case found the existence of

an agreement to share profits and losses Rodriguez failed to plead and continued to

deny the existence of an agreement.


_____________________________________________________________________________
Appellant’s Brief                     5
      Therefore, Rodriguez is entitled to no more than his out of pocket damages.

Rodriguez provided no documentation at trial of his out of pocket expenses.

Additionally, even if Rodriguez’s testimony at trial is taken to be one hundred

percent true, he showed no more than $51,335.21 in out of pocket expenses while

evidence and Rodriguez’s testimony showed payments to him of at least $56,899.

(CVExh-1 pg. 43-49, 53-55, 59-65, 69, 71-79, 85-95, 97, 99, 101, 103-104;

CVExh-1 pg. 23-24). Based on his own testimony and evidence that was not

refuted at trial Rodriguez generated a profit on the 400 acres. Without more than

nominal damages the jury’s award for exemplary damages is prohibited.

      Lastly, if the jury’s award for damages is allowed Gengenbach is entitled to

the offsets and/or credits he requested from the trial court. The offsets are for

monies paid by Willacy and him for the production of and payment for the crop.

Gengenbach established payments directly to Rodriguez of $36,899.64 along with

an advance payment by Willacy of $20,000.00 for the crop. In addition

Gengenbach presented testimony and evidence of $33,612.48 he expended for

inputs to grow the crop. Lastly, Willacy placed $95,577.48 in the court registry as

payment for the harvested crop. Without offsets Rodriguez would inappropriately

receive $152,477.12 paid directly from Willacy and Gengenbach, the benefit of

$33,612.48 towards inputs for the crop, and $197,024.09 in damage awards from

the jury.


_____________________________________________________________________________
Appellant’s Brief                     6
ARGUMENT AND AUTHORITY

I.    The Trial Court Committed Reversible Error by Denying the
      Submission of Gengenbach’s Breach of Fiduciary Duty Claim.

      The trial court erred by refusing to submit Gengenbach’s claim for Breach of

Fiduciary Duty to the jury. The refusal was equivalent to summary disposition or a

directed verdict prior to reaching the jury. Gengenbach’s pleadings included a

claim for breach of fiduciary duty for joint venture, Gengenbach introduced

evidence at trial of a joint venture, Gengenbach tendered a breach of fiduciary

question in substantially correct form, and the question was sufficiently supported

by the pleadings and the evidence.


      A.     Standard of Review

      Generally, appellate courts review a trial court's decision to refuse a

particular jury question or instruction under an abuse-of-discretion standard. Shupe

v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006) (per curiam). La.-Pac. Corp. v.

Knighten, 976 S.W.2d 674, 676 (Tex.1998). However, the cases cited do not

involve the trial court’s denial of an entire cause of action. Here, the trial court’s

refusal to submit Gengenbach’s Breach of Fiduciary Duty Claim was equivalent to

summary judgment as it struck an entire cause of action, not an individual question

or instruction within an issue already before the jury.

      Texas Rule of Civil Procedure 278 requires a trial court to submit questions,


_____________________________________________________________________________
Appellant’s Brief                     7
instructions and definitions raised by the written pleadings and the evidence. TEX.

R. CIV. P. 278; Sutton v. Estate of McCormick, 47 S.W.3d 179, 184-85 (Tex.App –

Corpus Christi 2001, no writ); Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162,

166 (Tex.2002).      Rule 278 is a directive to trial courts requiring them to submit

requested questions to the jury if pleadings and any evidence support those

questions. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992); Roberts v. S. Pacific

Transp. Co., 44 S.W.3d 183, 187 (Tex.App.-Houston [14th Dist.] 2001, pet.

denied). If there is some evidence to support the submission, the trial court

commits reversible error if it fails to submit the instruction. Smith–Hamm, Inc. v.

Equip. Connection, 946 S.W.2d 458, 462 (Tex.App.-Houston [14th Dist.] 1997, no

writ)

        The refusal of the trial court to submit an entire cause of action should not be

reviewed under a different standard simply because the trial court decided the issue

at the jury charge conference. Had the trial court struck the breach of fiduciary

duty claim several days before trial, it would have been considered a dispositive

motion and would have been subject to a de novo review. The trial courts use of

an abuse of discretion test for an entire cause of action requires the Appellate court

to speculate whether the judgment was affected by the refusal of an entire cause of

action and is therefore inappropriate.

        In the alternative, if this Court were to find that abuse of discretion is the


_____________________________________________________________________________
Appellant’s Brief                     8
proper standard, Gengenbach contends that the trial court’s denial of Gengenbach’s

Breach of Fiduciary Duty claim prohibits Gengenbach from properly presenting

his claim in this appeal.


      B.     Joint Venture/Partnership Defined

      In certain formal relationships, such as attorney-client, partnership, or trustee

relationships, a fiduciary duty arises as a matter of law. Ins. Co. of N. Am. v.

Morris, 981 S.W.2d 667, 674 (Tex.1998); Meyer v. Cathey, 167 S.W.3d 327, 330–

31 (Tex.2005);

      Under Texas law, a partnership is defined as “an association of two or more

persons to carry on a business for profit as owners…, regardless of whether … the

persons intend to create a partnership; or … the association is called a ‘partnership,

‘joint venture, or other name.’” TEX. BUS. ORG. CODE §152.051(b). The Texas

Business Organizations Code also enumerates five factors that indicate that

persons have created a partnership:

             1)      receipt or right to receive a share of profits of the business;

             2)      expression of an intent to be partners in the business;

             3)      participation or right to participate in control of the business;

             4)      agreement to share or sharing:

                  A) losses of the business; or

      B) liability for claims by third parties against the business; and

_____________________________________________________________________________
Appellant’s Brief                     9
             5)    agreement to contribute or contributing money or property to
                   the business.

      TEX. BUS. ORG. CODE §152.052(a) The “most important factors” are the

sharing of profits and control over the business. Ingram v. Deere, 288 S.W. 3d 886,

896 (Tex.2009). Texas Rule of Civil Procedure 93 requires a party to specifically

deny the existence of a partnership in their pleadings; otherwise the partnership is

admitted as a matter of law. The failure to deny partnership status is an admission

of the partnership that cannot be controverted at trial. Washburn v. Krenek, 684

S.W.2d 187, 191 (Tex.App—Houston [14th Dist.] 1984, writ ref’d n.r.e.).


             1) Existence of joint venture/partnership

      Gengenbach pleaded that he entered into an agreement with Rodriguez to

farm acreage as a joint venture and thus a partnership as defined under Texas law.

(CVClkRec. pg. 42, 44-45) Gengenbach’s pleadings provide the alleged split of

75%/25%. Id.

      Rodriguez failed to specifically deny the existence of a partnership as

required by Texas Rule of Civil Procedure 93. (CVCklRec. Pg 30-38) Rodriguez

did deny the existence of any agreement or relationship with Gengenbach in a

general sense. (CVClkRec. pg. 31) Gengenbach introduced evidence at trial in

support of his pleadings as follows:



_____________________________________________________________________________
Appellant’s Brief                     10
            2) Parties agreed to share in the profits and losses of a farming
               venture

      Gengenbach introduced evidence that the parties agreed to share in the

profits and losses of the venture. The following is an excerpt from Gengenbach’s

direct examination:

      Q.    Okay. And once he approached you again, what
            were the discussions?

      A.   Well, to make a partnership or work something out
           for the 1911 crop -- or 2011 crop, excuse me.


      Q.   Okay. And once again, 2011 is September 1 through
      --   September 1, 2010 through June 2011?


      A.   Yes.


      Q.   And what was -- what's your recollection of the
           discussion? I mean, what terms were used? Was it
           a partnership? Was it --


      A.   Well, it's a crop share. I would call it a crop share.
           And the share that we talked about was 25 percent
           for Jesus, 75 percent for myself. I pay the cost, the
           expenses and he said he had machinery that he
           could do the, you know, the fieldwork with. And
           so he was going to furnish the machinery and I was
           going to furnish the expenses.


      Q.   Okay. Let me stop you there. 25/75 percent. That's
           what you said, right?


_____________________________________________________________________________
Appellant’s Brief                     11
     A.    Yes.

     Q.    Can you elaborate? I mean, was there -- if --

     A.    Well, that would be a percentage of the net profits.

     Q.    Okay. What did you take that to mean?

     A.    Well, I took it to mean that I had an obligation to pay my
           expenses of the crop. He was going to do the farming
           and that I was, with the help of God, that I would have
           a crop to harvest in June.

     Q.    Okay. And net profit, is net profit a term that you use
           regularly in farming?

     A.    Yes. It's called the bottom line. In other words, that's
           what's left after everything is paid.

     Q.    Okay. And what generally happens with the money? I
           mean, I'm assuming -- what happens with the money
           that's invested, generally?

     A.    Well, the money that you invest, you know, you hope to
           get it back in the returns of a good crop.

     Q.    Okay. What is your recollection or what do you recollect
           Mr. Rodriguez saying at that time? Saying about that
           agreement and what is it that he told you or --

     A.    Well, we come to the agreement that that's what we were
           going to do. And first thing that we did was pay the rent
           and I gave him money to pay the rent. (CVRptRecV1
           pg. 43 ln. 8 – pg. 45 ln. 1)

      During Gengenbach’s cross-examination, Rodriguez’s attorney’s line of
questioning acknowledged there was some agreement to a joint venture to farm.

     Q.    All right. And your deal with Don Jesus was that you
           would pay the rent that you claim that you paid at Sal

_____________________________________________________________________________
Appellant’s Brief                     12
           Del Rey, paid no rent on irrigatable property. 375 acres,
           and put in the seed, no fertilizer and your arrangement
           with him was on a sharecropping basis, correct?

     A.    Correct.

     Q.    And you get 75 percent and he gets 25 percent?

     A.    That is correct.

     Q.    And he puts up all three of his tractors?

     A.    I don't know how many tractors he had.

     Q.    However many tractors were needed, he was supposed to
           put them up, correct?

     A.    Correct.

     Q.    Equipment?

     A.    Yes.

     Q.    And we're talking about discs?

     A.    Yes.

     Q.    Plows, cultivators?

     A.    Yes.

     Q.    Planters?

     A.    Yes.

     Q.    Now, you brought your planter down because you had a
           planter that covered more ground, did you not?

     A.    Yes, I did have a planter that covered more ground.


_____________________________________________________________________________
Appellant’s Brief                     13
       Q.    I mean, you were able to plant faster by using your
             planter rather than the one that he has, which is a little
             smaller?

       A.    Yes. And the condition of his planter wasn't in very good
             condition and so you need a good planter, so I brought a
             planter down, yes.

       Q.    But primarily because you could put more rows at a time
             than you could with his?

       A.    No, that's not really true. I didn't like the condition of his
             planter.

       Q.    But he was happy with his, apparently, because that's
             what he had been using?

       A.    That might be so. (CVRptRecV2 pg. 119 ln. 23 – pg.
             121 ln. 11).


             3) Both parties expressed intent to be partners in a joint venture
	  
       Notwithstanding the fact that Rodriguez alleged he was defrauded, there was

evidence introduced by both parties that they intended to be partners for the

farming venture. Gengenbach introduced a profit and loss accompanied by actual

cancelled checks showing payments from personal funds for rent ($14,726.00),

seed ($19,176.98), fuel ($27,136.28), labor ($18014.68), and parts & repairs

($2929.05) for a total of $81,982.99. (CVExh. pgs. 41-113, CVExh. pgs. 118-123).

Rodriguez admitted that all the payments he received from Gengenbach, were in

fact spent for the purpose of the Sal Del Rey farm. (CVRptRecV3 pg. 38 ln. 16 –

pg. 39 ln. 1). There is no other plausible reason to receive payments in these

_____________________________________________________________________________
Appellant’s Brief                     14
amounts and to have spent them on the Sal Del Rey farm without at minimum, an

initial intent to be involved in a farming venture.

      Additionally, there is a business record affidavit from Willacy Co-Op that

states that Jesus Rodriguez delivered grain that was marketed in the amount of

$171,853.70. (CVExh. pgs. 3-32). Despite his contentions of fraud, it is

implausible that Rodriguez could have expected to receive those sums of money

without any contribution towards the costs necessary to raise the crop. The record

contains sufficient evidence reflecting Rodriguez’s understanding of a business

relationship.


                4) Both parties had right to participate in control of the business
                   such as payments, labor, inputs.

      Gengenbach introduced business record affidavits from his bank containing

payments to Jesus Rodriguez and others in excess of $100,000.00. (CVExh. pgs.

41-113). Rodriguez admitted that he was in control of the property itself including

the harvesting of the crop. (CVRptRecV3 pg. 44 lns. 13-22).           Additionally,

Rodriguez introduced 31 photograph exhibits of all of the farming equipment he

used in furtherance of the farming venture. (CVExh. pgs. 167-259). As previously

discussed above, there is evidence that Rodriguez had sufficient control of the crop

to market it to Willacy Co-Op for $171,853.70. (CVExh. pgs. 3-32).




_____________________________________________________________________________
Appellant’s Brief                     15
             5) Evidence that both parties agreed to contribute money or
                property to the business.

      As shown above, Gengenbach introduced a profit and loss statement

showing an investment of personal funds in the venture in the amount at least

$81,982.99 for the payment of rent, seed, fuel, labor, parts & repairs. Rodriguez

admitted that those payments were entirely invested in the farming venture.

Rodriguez admitted to contributing farming equipment for the benefit of the joint

venture. (CVExh. Pgs. 167-259).


             6) Jury question was submitted in substantially correct form

      Plaintiff proposed a jury question in substantially correct form. (CVClkRec.

pgs. 60-62). The trial court denied Gengenbach’s question as evidenced by the jury

charge submitted. (Record 63-82 & CVRptRecV004 pg. 5 ln. 14 – pg. 9 ln. 2).

Gengenbach objected in writing to the jury charge and submitted the proposed

question to preserve the error. (CVClkRec. Pgs. 58-62).

      Based on Plaintiff’s pleadings, the evidence, and Rodriguez’s lack of

evidence to the contrary, Court erred in refusing to submit Plaintiff’s question on

Breach of Fiduciary Duty; therefore Gengenbach respectfully requests this Court to

reverse the trial court’s judgment and remand for a new trial on the merits.




_____________________________________________________________________________
Appellant’s Brief                     16
II.   The Trial Court Committed Reversible Error by Commingling a Broad
      Form Jury Question, #11, with an Improper Damage Element in
      Question, #12.

      Gengenbach submitted timely objections to Rodriguez’s jury charge

questions 11-14 and to the inclusion of damages question related to Willacy Co-Op

in Question 12. (CVClk pgs. 58-62 & CVRptRecV004 pg. 5 ln.10- pg. 9 ln.2).

Question #12 stated, “Consider the following element of damages, if any, and none

other. Fee and expenses charged by Willacy County Coop: _____ in dollars and

cents, if any…” [CVClkRec. pg. 78] After answering the Willacy County Coop

damage element in the amount of $15,617.60, the jury answered questions #13 and

#14 in favor of Rodriguez. Question #14 awarded Rodriguez exemplary damages

in the amount of $140,618.49.

      The submission of a broad form question of common law fraud mixed with

an unsupported damage element led to an improper judgment and now prohibits

Gengenbach from properly presenting his case to this Court. The charges by

Willacy County Coop were not out of pocket expenses and therefore should not

have been included in the charge. The inclusion of this question led to the jury

using a figure, unsupported by law, in its answer to jury questions # 12,13,14.

(CVClkRec. pgs 78-80).


      A.    Standard of Review

      Reversible error is presumed when a broad-form question submitted to the
_____________________________________________________________________________
Appellant’s Brief                     17
jury commingles damage elements that are unsupported by legally sufficient

evidence. Harris Cnty. V. Smith, 96 S.W.3d 230, 233 34(Tex. 2002); Crown Life

Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000). Including improper measures

of damage elements that are unsupported by legally sufficient evidence is harmful,

reversible, and a new trial required when the Court cannot determine whether the

jury based its verdict solely on the improperly submitted invalid theory or damage

element. Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d at 756. The ultimate

question is whether “the trial court’s charge error ‘probably prevented the

petitioner from properly presenting its case to the appellate courts.’” Harris Cnty,

96 S.W.3d 231; see TEX. R. APP. P. 61.1(b).


      B.    Rodriguez failed to plead and prove fraudulent inducement; therefore
            out of pocket damages was the only remedy available, if any.

      “Fraudulent inducement is a particular species of fraud that arises only in the

context of a contract and requires the existence of a contract as part of its proof.

That is, with a fraudulent inducement claim, the elements of fraud must be

established as they relate to an agreement between the parties.” Haase v. Glazner,

62 S.W.3d 795 (Tex. 2001). Without a binding agreement, there is no detrimental

reliance, and thus no fraudulent inducement claim. That is, when a party has not

incurred a contractual obligation, it has not been induced to do anything. Glazner

at 798. Glazner also clarified that although some court opinions see no distinction


_____________________________________________________________________________
Appellant’s Brief                     18
between fraud and fraudulent inducement, they are not interchangeable with

respect to the measure of damages that would be recoverable. Glazner at 798-799;

Harris Cnty, 96 S.W.3d at

       As stated in Glazner, fraudulent inducement cannot be found where one was

not induced into something to their reliance. Here, Rodriguez failed to establish

fraud as it related to the farming agreement between the parties.

       In his verified pleadings, Rodriguez stated “Defendant/Counter-Plaintiff

Jesus Rodriguez specifically denies that there was any contractual agreement or

relationship between the parties as alleged by the Plaintiff/Counter-Defendant

Doug Gengenbach that there exists no written contract between the parties as

required by the Statute of Frauds…” (CVClkRec. pg. 31). Rodriguez’s pleadings

also state, “Plaintiff-Counter Defendant Gengenbach is guilty of fraud in taking

advantage    of    the   lack    of    education   and     communication        skills   of

Defendant/Counter-Plaintiff Rodriguez. Gengenbach asked for one-hundred (150)

acres of a certain type of grain sorghum to be farmed on Defendant/Counter-

Plaintiff Rodriguez’s leasehold at the rate of $400.00 per acre.” (CVClkRec. pg.

34).

       Despite this allegation Rodriguez’s pleadings failed to request any actual

damages     such   as    out    of    pocket   expenses;    they   read    as     follows,

“Defendant/Counter-Plaintiff Jesus Rodriguez, seeks recovery for the following: a.


_____________________________________________________________________________
Appellant’s Brief                     19
Punitive and Exemplary damages in the maximum amount allowed by Texas law;

b. Attorney fees and the costs of the court; c. Pre-judgment and post-judgment

interest at the maximum rate provided by law and in the maximum amount allowed

by law.” (CVClkRec. pg. 35- pg.36).

      Rodriguez’s testimony at trial failed to provide legally sufficient evidence

that he was wrongfully induced into any agreement. Given multiple opportunities,

it was clear that Rodriguez was unsure of the damages sought as his testimony

contradicted itself on multiple occasions. Examples of his contradictions are as

follows:

      --------------------------------------------
      In his opening remarks, Rodriguez’s counsel stated that
      Gengenbach asked Rodriguez to custom farm six hundred acres
      at $400 for 240,000 dollars but then “Gengenbach backed down
      and went to 125 acres at 400 dollars…” (CVRptRecV1. pg. 14
      ln. 22- pg.15 ln. 3)
      --------------------------------------------
      When asked specifically what amount he was seeking,
      Rodriguez first stated that Gengenbach first asked for 600 acres
      to be planted then only 400. (CVRptRecV3 pg. 18 ln. 13- pg.
      19 ln. 3) Then Rodriguez stated that Gengenbach reduced it to
      125 acres. Id.
      --------------------------------------------
      Subsequently, due to difficulty understanding the translator,
      Mr. Rodriguez was asked again,

      Q.    (By Mr. Guerra) What amount of money are you asking
            this jury to award you for your fraud and emotional
            distress claims?

      A.    I'm only asking for the money that he promised me.


_____________________________________________________________________________
Appellant’s Brief                     20
     Q.    And what quantity or what amount of money is that, Mr.
           Rodriguez?

     A.  He promised me 400 dollars an acre. We planted 125
         acres. I'm not sure, but I think that's the amount of 50,000
         dollars, plus all of my equipment expenses. I am not
         good at calculating, but he needs to pay me the expenses.
         “ (CVRptRecV3 pg. 21 lns 12-23)
     --------------------------------------------
     Q.  You claim, Mr. Rodriguez, that Mr. Douglas Gengenbach
         owes you money. And it is extremely important that I
         make this -- or that we get an answer of what Douglas
         Gengenbach owes you?

     A.    He offered me -- we were talking about the harvesting,
           that here in the Court I’m talking about 90,000 dollars.

     Q.    Mr. Rodriguez, has it—did it ever occur to you to credit
           Mr. Gengenbach for what he has already given you?

     A.    No. What he’s given me.

           THE INTERPRETER: The interpreter would like to ask
           for a repetition.

     A.     The money that he has given me is for the money that he
            owes me.

     Q.    (By Mr. Guerra) And I'm going to ask it again. What is
           that amount?

     A.  Approximately 50,000 dollars. (CVRptRecV3 pg. 27 ln.
         21 – pg. 28 ln. 13)
     --------------------------------------------
     Q.  (By Mr. Guerra) Mr. Rodriguez, we were discussing that
         somebody has to pay for the seed, fuel and other
         expenses in order to grow a crop. You understand that?

     A.    Yes.


_____________________________________________________________________________
Appellant’s Brief                     21
     Q.    And you're not claiming today that you paid for those
           items, are you?

     A.  No, but how does he know how much money was used
         for diesel fuel? I would take the tank of diesel to him
         with my truck, to the land that we were harvesting on.
         (CVRptRecV3 pg. 33 ln. 5- ln. 13)
     --------------------------------------------
     Q.  You've also asked your attorney to bring counter claims
         against Mr. Gengenbach for what you allege to be fraud
         and emotional distress. Is that correct?

     A.    I never asked for a lawsuit to be filed against him.

     Q.    Going back through the questions from earlier, sir, can
           you please state to the jury what amount of money you
           are requesting from Mr. Gengenbach?

     A.    I'm not asking for an amount. I'm just asking for what he
           owes me and what's at Willacy Co-op.

     Q.    And what does he owe you and what do you state is at
           Willacy Co-op, sir?

     A.    Well, I'm not sure how much remains because there has
           been Court costs and there have been expenses in taking
           the grain over to where it's at, so I'm not sure how much
           remains.

     Q.    So you're asking -- Mr. Rodriguez, you're asking the
           Court or you're asking the jury just to write you a check
           for whatever is in the Court registry?

     A.    I am not asking for anything I should not be asking for.
           All my life I have worked, I have never committed fraud,
           I have never filed a lawsuit, I have never been in a
           lawsuit. This is the first time ever.

     Q.    Mr. Rodriguez, do you understand that if you are not able
           to state either damages or any money that you are owed
_____________________________________________________________________________
Appellant’s Brief                     22
           that you may not be entitled to anything from the Court?

     A.  I should receive it because I believe that the sum of
         money is already here, the one sent from the Co-op.
         (CVRptRecV3 pg. 36 ln. 3 –pg. 37 ln. 7)
     --------------------------------------------
     Q.  Sir, that's not the question I'm asking you. I ask the
         question, you provide the answer. Do you have
         accounting for this particular check?

     A.    All the checks were used at the work down in Sal Del
           Rey.

     Q.    And isn't it true that Sal Del Rey is the property that you
           farmed with Mr. Gengenbach?

     A.  I did all the work in Sal Del Rey -- and I Mr.
         Gengenbach did the farming in Sal Del Rey. Every check
         that I received, every expense that was made was used
         only for Sal Del Rey. (CVRptRecV3 pg. 38-ln. 16 – pg.
         39 ln. 1)
     --------------------------------------------
     Q.  (By Mr. Guerra) And is Sal Del Rey the property that
         you allege you had an agreement with Mr. Doug?

     A.    Yes.

     Q.    Okay. And doesn't this check say Jesus Rodriguez, Sal
           Del Rey?

     A.    All the checks that are made out to my name is all for the
           work done on Sal Del Rey or for paying things that have
           to do with Sal Del Rey.

     Q.    So you're admitting to the jury, Mr. Rodriguez, that these
           checks, that you cashed these checks and that went to the
           Sal Del Rey property?

     A.    All of them, all the checks were used for Sal Del Rey. He
           did give me some 8,000 dollars and I paid that back
_____________________________________________________________________________
Appellant’s Brief                     23
         quickly, but all the other checks he gave me were used to
         pay for Sal Del Rey. Nothing was used for my personal
         use. (CVRptRecV3 pg. 39 ln. 11 – pg. 40 ln. 1)
     --------------------------------------------
     Q.  Mr. Rodriguez, nobody has stated that you used it for
         your personal expenses, but please understand, sir that
         you have brought a fraud claim against my client.

     A.    That's true.

     Q.    Do you know what fraud means, sir?

     A.    That you are not fulfilling your promises.

     Q.    Do you realize that these documents will live forever in a
           court record?

     A.    Yes.

     Q.    And do you understand that you are claiming fraud
           against my client, yet you don't have any documents in
           front of you or you have presented no documents
           yourself?

     A.  No, because I have no experience. Again, I repeat I have
         no experience in this and this is the first I'm I'm in a
         Court of Law. (CVRptRecV3 pg. 40 ln. 2 – ln. 17)
     --------------------------------------------
     Q.  Sir, because we talked about a contract that Mr.
         Gengenbach had yesterday for 490 dollars an acre.

     A.    There's a mistake there. At no time did Mr. Douglas want
           to do a contract with me and I asked him for it several
           times.

     Q.    That wasn't my question, sir. We are talking about the
           125 acres of grain sorghum. You got this check and you
           stated to Mr. Gengenbach that if you didn't get this, then
           it was time to cut that down and do something else,
           correct?
_____________________________________________________________________________
Appellant’s Brief                     24
      A.  Yes. (CVRptRecV3 pg. 46 ln. 16 - pg. 47 ln. 1)
      --------------------------------------------
      Q.  (By Mr. Guerra) And Mr. Rodriguez, because you're a
          man of older age or your health is not good, that gives
          you the right to be bringing fraud claims against Mr.
          Gengenbach?

      A.    I'm not filing any lawsuit against this man. All I'm asking
            is that -- to be granted what is rightfully mine.

      Q.    But you do understand, sir that, actually, your attorney
            did bring a fraud claim against my client?

      A.    If he did so, he's in his full right because he is my
            attorney and he is here to defend me.

      Q.    Is that something you're requesting, sir or is that
            something that you're allowing him to do on his behalf?

      A.    Oh, no. He's never done anything out of order. And
            personally speaking, he's always been a very honest man
            with me.

      Q.    And I didn't say he wasn't, sir. But what I'm asking you
            today to clarify for this jury is do you -- are you wanting
            a fraud charge against my client, Mr. Doug Gengenbach?

      A.    I already answered no. I just want what's rightfully mine.
            (CVRptRecV3 pg. 74 ln. 23 – pg. 75 ln. 20)

      Rodriguez’s pleadings failed to request specific affirmative relief for

fraudulent inducement as set out in Glazner and Formosa.              Additionally,

Rodriguez’s testimony and exhibits fail to provide any evidence that he was

induced into any agreement. In fact, Rodriguez specifically denies through his

verified petition that he did not enter into the agreement as alleged by Gengenbach.
_____________________________________________________________________________
Appellant’s Brief                     25
At best, Rodriguez was entitled to a common law fraud question regarding out of

pocket expenses.


        C.    No evidence of Out of Pocket Expenses to Willacy Co-Op

        Jury charge question #12, “fees and expenses paid to Willacy” was not a

proper question in calculating out of pocket expenses. Rodriguez offered no proof

of out of pocket expenses paid to Willacy Co-op in reliance of a fraudulent

representation. All of the expenses paid to Willacy Co-Op, “including drying

charges, grain sorghum check-off remittance, and Willacy’s accounts receivable

balance as related to Rodriguez” in the amount of $26,835.21 were necessary

expenses incurred in harvesting the crop. (CVExh. pg. 6) The same crop that

Rodriguez then sold and collected an advance of $20,000.00. (CVExh. pg. 22)

Without Willacy’s services, there would be no money in the court registry to fight

over.

        The following discussion at the jury charge conference is evidence that even

Rodriguez’s counsel and the trial court acknowledged the question might not be

worded correctly,

        “ Mr. GARCIA: ….So -- and the same thing with Willacy
        County, I think I stated earlier, I'm not going to be looking for
        the $26,000. I'm going to be looking for the 4,400 dollars that is
        the attorney's fees that had to be spent by Willacy County that
        was taken out of this money on item two.

        THE COURT: Whatever the jury decides is the appropriate

_____________________________________________________________________________
Appellant’s Brief                     26
       amount.

       MR. GARCIA: Well, I'm going to be asking for $4,400.

       THE COURT: The thing about $26,000, $20,000 of that went
       to your client, so you really can't be asking for something that
       your client received, which was he received 20,000 dollars.

       MR. GARCIA: Then –

       THE COURT: And part of that $26- -- you can't get what
       you've already gotten.
       MR. GARCIA: They never pled a credit to begin with.

       THE COURT: But you can't get what you've already gotten.
       There's testimony that –

       MR. GARCIA: And I'm just clarifying that all I'm going to ask
       for is $4,400.

       THE COURT: Okay. Is that your response to his argument?

       MR. GARCIA: Yes, ma'am.

       THE COURT: Okay. Your objections are overruled. Mr.
       Guerra, the charge is going to remain the way it is….”

       (CVRptRecV004 pg. 7 ln. 23 – pg. 9 ln. 2)
	  
       Neither the trial court nor Appellee’s counsel can controvert the record. The

trial court was clearly aware of the flaws within the question prior to submitting it

to the jury and Rodriguez was clearly rewarded with more than even his counsel

sought.




_____________________________________________________________________________
Appellant’s Brief                     27
       D.    Submission of an improper damage element in jury question # 12
             was harmful error as the jury considered the finding in its
             calculation for exemplary damages in question #13 and #14.

       The trial court’s submission of damages element in question #12, “Fee and

expenses charged by Willacy County Coop:” led to an improper judgment.           By

answering the aforementioned damages element in the amount of $15,617.60

without any evidence or testimony to support the answer, the jury then used that

figure in its calculation for exemplary damages. Since this Court cannot determine

from the record, how the jury calculated or arrived at its exemplary damages, it can

be presumed that the answer played a role in the finding of exemplary damages in

the amount of $140,618.49. The trial court’s error now prevents Gengenbach from

properly presenting his claims before this Court, as it requires speculation to

determine what factor the improper damage element played in the jury’s overall

award. Based on the foregoing, Gengenbach respectfully requests that this Court

reverse the trial court’s judgment and remands this case for a new trial on the

merits.


III.   The Trial Court Committed Reversible Error in Entering Judgment on
       Exemplary Damages

       The Court committed reversible error by entering judgment on exemplary

damages, because the causes of action sound completely in contract, and

exemplary damages are improper. Rodriquez pleaded and consistently claimed

_____________________________________________________________________________
Appellant’s Brief                     28
there was no agreement. Gengenbach pleaded and provided evidence there was an

agreement, and the jury found an agreement in their answer to Question #1. As a

matter of law, when the cause of action sounds in contract alone, the court errs by

awarding exemplary damages.


      A.     Standard of Review

      A trial court's conclusions of law are not binding on an Appellate Court, and

the Appellate Court is free to make its own legal conclusions. Harlingen Irrigation

Dist. Cameron County No. 1 v. Caprock Communications, 49 S.W.3d 520, 530

(Tex.App.-Corpus Christi 2001, pet denied); Muller v. Nelson Sherrod & Carter,

563 S.W.2d 697, 701 (Tex.Civ.App.-Fort Worth 1978, no writ). “Conclusions of

law are reviewed de novo as a question of law and will be upheld if the judgment

can be sustained on any legal theory supported by the evidence.” Harlingen

Irrigation Dist., 49 S.W.3d at 520 (citing Circle C Child Dev. Ctr., Inc. v. Travis

Cent. Appraisal Dist., 981 S.W.2d 483, 485 (Tex.App.-Austin 1998, no pet.)). A

trial court's conclusions of law may not be reviewed for factual sufficiency. Id.

Conclusions of law may be reversed only if they are erroneous as a matter of law.

Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex.App.-Austin 1999,

pet. denied); Hofland v. Fireman's Fund Ins. Co., 907 S.W.2d 597, 599 (Tex.App.-

Corpus Christi 1995, no writ). Incorrect conclusions of law do not require reversal,

provided that the controlling findings of fact support a correct legal theory. Stable

_____________________________________________________________________________
Appellant’s Brief                     29
Energy, 999 S.W.2d at 547; McAllen Police Officers Union v. Tamez, 81 S.W.3d

401, 404-05 (Tex. App.—Corpus Christi 2002, pet. dism'd).


      B.     Exemplary damages are not recoverable for causes of action that sound
             in contract alone.

      The causes of action between Gengenbach and Rodriguez sound in contract

alone, and exemplary damages are not recoverable. Exemplary damages are

generally not recoverable in contract actions. Amoco Prod. Co. v. Alexander, 622

S.W.2d 563, 571 (Tex. 1981). In determining whether the plaintiff may recover on

a tort theory, it is also instructive to examine the nature of the plaintiff's loss. When

the only loss or damage is to the subject matter of the contract, the plaintiff's action

is ordinarily on the contract. Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494

(Tex. 1991). When the injury is only the economic loss to the subject of a contract

itself, the action sounds in contract alone. Jim Walter Homes, Inc. v. Reed, 711

S.W.2d 617, 618 (Tex. 1986). A suit that can only be characterized as a breach of

contract cannot support recovery of exemplary damages. Id. at 618.

      But contractual relationships may create duties under both contract and tort

law. See Jim Walter Homes, 711 S.W.2d at 618. “The acts of a party may breach

duties in tort or contract alone or simultaneously in both. The nature of the injury

most often determines which duty or duties are breached. When the injury is only

the economic loss to the subject of a contract itself, the action sounds in contract


_____________________________________________________________________________
Appellant’s Brief                     30
alone.” Id.

      The major factors demonstrating the causes of action in this case sound only

in contract are that there were only damages of economic loss and the fact that the

jury found an agreement between the parties. The claims between Gengenbach and

Rodriguez all stem from their agreement in a joint venture for the business of

farming a tract of land. The actual damages, if any, that Rodriguez could contend

he suffered resulted from economic loss related to the contract. As in Jim Walter

Homes, when economic loss on the contract makes up the injury, then the action

sounds in contract alone.

      Gengenbach pleaded and proved an agreement demonstrated by the jury’s

affirmative answer to Question #1 regarding a “verbal agreement to share profits

and losses.” (CVClkRec pg. 67). The jury determined there was an agreement

demonstrating that the proper determination should have been that these causes of

action sounded in contract alone. Economic loss as the characterization of the

injury, if any, and the jury finding of an agreement points to the determination that,

because these claims sound in contract alone exemplary damages are improper as a

matter of law, and judgment should not have been entered on those amounts.

      C.      No independent tort proven for exemplary damages

      Rodriguez did not prove an independent tort that would allow for the

awarding of exemplary damages. There have been exceptions to the doctrine of


_____________________________________________________________________________
Appellant’s Brief                     31
only sounding in contract, and the exception cases usually involve the existence of

an extra-contractual duty imposed by law, or a tort independent of the contract. See

McDonough v. Zamora, 338 S.W.2d 507, 513-14 (Tex. Civ. App.—San Antonio

1960, writ ref’d n.r.e.).

       Even if a breach of contract is malicious, intentional or capricious,

exemplary damages may not be recovered unless a distinct tort theory is alleged

and proved. Amoco, 622 S.W.2d at 571. Neither gross negligence in a breach of

contract nor gross negligence in the inducement to contract will entitle a non-

breaching party to exemplary damages. D.S.A., Inc. v. Hillsboro Indep. Sch. Dist.,

973 S.W.2d 662, 664 (Tex. 1998) (per curiam).

       A party alleging that exemplary damages are recoverable due to the

existence of an independent tort duty must plead and prove the independent tort in

addition to the breach of contract. Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14

(Tex. 1996) (per curiam) (holding that absent proof that defendant’s conduct would

give rise to liability outside the contract, the action sounds in contract);

Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494-95 (Tex. 1991)

(finding that action was in contract and not in tort, because plaintiff’s claims

against telephone company for failure to publish yellow pages advertisement arose

solely from the contract, and the damages were only for economic loss); Texas

Power & Light Co. v. Barnhill, 639 S.W.2d 331, 334 (Tex. App.—Texarkana


_____________________________________________________________________________
Appellant’s Brief                     32
1982, writ ref’d n.r.e.) (denying exemplary damages where evidence was factually

insufficient to prove independent tort).

      Rodriquez was unable to demonstrate any costs he actually suffered.

Rodriquez’s counsel agreed he would not be asking for the money he already

received from Willacy, the Court was well aware that Rodriquez had received

payments, and agreed that Rodriguez could not request damages for amounts

already received. (CVRptRecV004 pg. 7 ln. 24 – pg. 8 ln. 20) Rodriquez made a

profit, did not suffer any actual damages, and is not entitled to exemplary damages.

Rodriguez did not prove an independent tort, was unable to even demonstrate

damages, and all of the arguments and evidence points to a breach of the

agreement between the parties. There was no independent fraud or other tort

proven by Rodriquez. Therefore, Gengenbach respectfully requests this Court to

reverse the trial court’s judgment and remand for a new trial on the merits.


IV.   The Jury’s Damage Findings are Against the Overwhelming Weight of
      the Evidence.

      Rodriguez did not present evidence at trial that was factually sufficient to

support the jury’s finding of fraud damages in Question No. 12 of the Charge of

the Court or its finding of exemplary damages in Question No. 14.

      A.     Standard of Review

      When considering a factual sufficiency challenge to a jury's verdict, courts


_____________________________________________________________________________
Appellant’s Brief                     33
of appeals must consider and weigh all of the evidence, not just that evidence

which supports the verdict. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996);

Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). A court of appeals

can set aside the verdict only if it is so contrary to the overwhelming weight of the

evidence that the verdict is clearly wrong and unjust. Ortiz, 917 S.W.2d at 772;

Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The court of appeals is not a fact

finder. Accordingly, the court of appeals may not pass upon the witnesses'

credibility or substitute its judgment for that of the jury, even if the evidence would

clearly support a different result. Pool v. Ford Motor Co., 715 S.W.2d 629, 634

(Tex.1986).

      However, Exemplary damages must be established by clear and convincing

evidence; thus, an elevated standard of review. Sw. Bell Tel. Co. v. Garza, 164

S.W.3d 607, 627 (Tex. 2004); TEX. CIV. PRAC. & REM. CODE § 41.003(a) (Vernon

Supp.2009). Clear and convincing evidence is that “measure or degree of proof

that will produce in the mind of the trier of fact a firm belief or conviction as to the

truth of the allegations sought to be established.” TEX. CIV. PRAC. & REM. CODE §

41.001(2) (Vernon 2008); see Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31

(Tex.1994). This intermediate standard falls between the preponderance standard

of civil proceedings and the reasonable doubt standard of criminal proceedings. In

re G.M., 596 S.W.2d 846, 847 (Tex.1980); State v. Addington, 588 S.W.2d 569,

_____________________________________________________________________________
Appellant’s Brief                     34
570 (Tex.1979); W.L. Lindemann Operating Co. v. Strange, 256 S.W.3d 766, 775

(Tex. App.-Fort Worth 2008, pet denied). “While the proof must weigh heavier

than merely the greater weight of the credible evidence, there is no requirement

that the evidence be unequivocal or undisputed.” Strange, 256 S.W.3d at 775

(citing Addington, 588 S.W.2d at 570); SJW Prop. Commerce, Inc. v. Sw. Pinnacle

Properties, Inc., 328 S.W.3d 121, 162 (Tex. App.—Corpus Christi 2010, pet.

denied).

      B.    Excessiveness of Damages

      A plaintiff alleging fraud in Texas must prove a material misrepresentation,

which was false, and which was either known to be false when made or was

asserted without knowledge of its truth, which was intended to be acted upon,

which was relied upon, and which caused injury.        Sears, Roebuck & Co. v.

Meadows, 877 S.W.2d 281, 282 (Tex. 1994). There are three types of damages for

fraud recognized by Texas law: out of pocket damages, consequential damages and

benefit of the bargain damages. Formosa Plastics Corp. USA v. Presidio Eng. &

Contractors, 960 S.W.2d 41, 49 (Tex. 1998).

            1) Consequential damages

      Consequential damages allow plaintiffs to recover for damages “that are

foreseeable and directly traceable to the fraud and result from it” and must be

properly pled and proved. Formosa Plastics, 960 S.W.2d at 49 n.1. However,

_____________________________________________________________________________
Appellant’s Brief                     35
Rodriguez did not plead or present evidence at trial of any lost opportunities based

on Gengenbach’s alleged misrepresentation and is therefore not entitled to

consequential damages. (CVRptRec V3 pgs. 15-153).

             2) Benefit of the bargain damages

      Benefit of the bargain damages arise from the expectancy theory and

compare the difference between the value represented and the value actually

received. Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 636 (Tex. 2007).

      There are limited situations in which benefit of the bargain damages can be

awarded. However, Texas courts have refused to award benefit of the bargain

damages in the absence of an enforceable contract. Haase v. Glazner, 62 S.W.3d

795, 798-99 (Tex. 2001); Baylor Univ., 221 S.W.3d at 636 (if the measure of

damages Sonnicshen seeks for fraud are benefit of the bargain damages he sought

to recover for breach of contract, his fraud claim fails).

      While economic losses may be recoverable under either fraud or fraudulent

inducement that should not be interpreted to mean that fraud and fraudulent

inducement are substitutes with regards to the measure of recoverable damages.

Glazner, 62 S.W.3d at 798-99.

      The jury found an agreement between the parties to share profits and losses.

(CVClk Rec. pg. 67). However, Rodriguez stated numerous times during trial

testimony that he did not have a contract with Gengenbach. (CVRptRec V3 pg. 46

_____________________________________________________________________________
Appellant’s Brief                     36
lns. 18-20; pg. 102 lns. 12, 13; pg. 134 lns. 14-16; pg. 141 lns. 13-15; pg. 150 ln. 5,

6). Additionally, in his verified pleadings Rodriguez made no claim for breach of

contract and denied the existence of a contractual agreement with Gengenbach.

(CVClk Rec. pg. 31). A party alleging that exemplary damages are recoverable

due to the existence of an independent tort duty must plead and prove the

independent tort in addition to the breach of contract. Crawford v. Ace Sign, Inc.,

917 S.W.2d 12, 14 (Tex. 1996) (per curiam). Rodriguez is not entitled to benefit

of the bargain damages when recovery requires the existence of a contract that he

failed to plead and continued to deny at trial.

             3) Out of pocket damages

      The purpose of out of pocket damages is to allow the injured party the

ability to recover the actual injury suffered measured by the difference between the

value of that which he has parted with, and the value of what he has received.

Formosa Plastics, 960 S.W.2d at 49.

      Assuming arguendo that Rodriguez is entitled to a recovery of damages of

any kind, out of pocket damages would be the appropriate method of calculation.

Therefore, “the out of pocket measure only compensates for actual injuries a party

sustains through parting with something, no loss of profits on a bid not made, and a

profit never realized, in a hypothetical bargain never struck. Id. at 49-50.

Rodriguez is not entitled to more than his out of pocket damages.

_____________________________________________________________________________
Appellant’s Brief                     37
      C.     Damages Awarded

             1) Willacy Co-Op

      The evidence is insufficient to support the Jury’s award for fees and

expenses charged by Willacy County Co-op of $15,617.60. (CVClk Rec. pg. 78).

Rodriguez put on no testimony stating what amounts if any he personally paid to

Willacy. In fact Willacy made an advance payment of $20,000.00 to Rodriguez.

(CVExh-1 pg. 22).

      Rodriguez delivered grain to Willacy with a total value of $171,853.70.

(CVExh-1 pg. 22). Willacy tendered a check to Mr. Rodriguez for $20,000.00 as

partial payment for the grain delivered. Id. Following filing of the underlying

lawsuit, Willacy submitted a payment to the court registry of $140,618.49. Id. at

23. The payment represented the total amount due for grain delivered by Mr.

Rodriguez less the $20,000.00 Rodriguez had already received. The additional

$11,235.21 withheld or actually charged by Willacy includes $4,819.42

outstanding on Mr. Rodriguez’s account, $4,400.00 for attorney’s fees, and

$2,015.79 for the cost of storing and drying the grain. Id. at 23-24.

      All additional withdrawals of funds were by court order. $24,702.89 was

payable to Pedro Mata and Salazar Custom Harvesting for harvesting of the grain.

(CVExh-1 pg. 115). $20,338.12 was payable to NAV County Insurance Co. for

insurance charges for crop year 2011. (CVExh-1 pg. 117).                The remaining

_____________________________________________________________________________
Appellant’s Brief                     38
$95,577.48 was left in the court registry until the conclusion of the underlying

case. (CVClk Rec. pg. 128).

      The expenses charged by Willacy could not have been incurred in reliance

on Gengenbach’s misrepresentations, they were necessary expenses to produce a

crop, they are not damages that resulted from the fraud as required by the jury

charge, and Rodriguez cannot recover them as out-of-pocket damages for his fraud

claim. See Grant Thornton LLP v. Prospect High Income Fund, ML CBO IV

(Cayman) Ltd., 314 S.W.3d 913, 923 (Tex. 2010)

      Gengenbach provided $27,136.28 in funds payable to Willacy. (CVExh-1

pgs. 51, 57, 67, 81, 83, 96, 98, 100, 102). Rodriguez provided no testimony or

evidence regarding his out of pocket payments to Willacy. The fees and expenses

charged by Willacy were directly related to processing the crop, amounts owed by

Rodriguez on his Willacy account, and attorney’s fees related to the court case.

(CVExh-1 pg. 23). The $11,235.21 of expenses charged by Willacy was $4,382.39

less than those awarded by the jury. Rodriguez is not entitled to recover more than

the expenses charged. Additionally, the $20,000.00 paid to Rodriguez reduced his

out of pocket expenses by the value of the payment resulting in a profit of at least

$8,764.79. The Jury’s award for fees and expenses charged by Willacy County

Co-op is unsupported by the evidence. Therefore, Gengenbach respectfully

requests this Court to reverse the trial court’s judgment and remand for a new trial

_____________________________________________________________________________
Appellant’s Brief                     39
on the merits.

             2) Farming services

      The evidence is insufficient to support the Jury’s award for unpaid farming

services rendered on 400 acres of $24,688.00. (CVClk Rec. pg. 78). Gengenbach

provided proof of payment to Rodriguez in excess of the amount awarded by the

jury. (CVExh-1 pg. 43-49, 53-55, 59-65, 69, 71-79, 85-95, 97, 99, 101, 103-104).

Rodriguez provided no proof at trial of any out of pocket expenses. Furthermore,

Rodriguez’s trial testimony if taken as true does not demonstrate total farming

costs on the 400 acres of $24,688.00.

      Out-of-pocket damages measure the difference between the value paid by

the aggrieved party and the value received. Formosa Plastics, 960 S.W.2d at 49;

George v. Hess, 93 S.W. 107, 108 (Tex. 1906). Several courts have stated that the

goal in measuring out-of-pocket damages is to provide actual compensation for

injury, not profit. Duval County Ranch Co. v. Wooldridge, 674 S.W.2d 332, 335-

36 (Tex. App.—Austin 1984, no writ). The theory is that if the plaintiff receives a

sum of money that makes what the plaintiff received equal to what was actually

conveyed, the plaintiff is made whole. George, 93 S.W. at 108.

      At trial Gengenbach presented testimony regarding payments along with

cancelled checks totaling $36,899.64 made payable to Rodriguez. (CVExh-1 pg.

43-49, 53-55, 59-65, 69, 71-79, 85-95, 97, 99, 101, 103-104). In addition to the

_____________________________________________________________________________
Appellant’s Brief                     40
checks payable to Rodriguez, Gengenbach presented testimony and cancelled

checks for costs associated with inputs for growing the crop of $33,612.48, which

included $27,136.28 payable to Willacy. (CVExh-1 pgs. 51, 57, 67, 81, 83, 96, 98,

100, 102).

      At trial Rodriguez was asked to estimate the cost of his work including

equipment, employees, his labor, and expenses including diesel. (CVRptRec V3

pg. 119 lns. 19-21). Rodriguez’s response was that including labor, equipment,

and diesel the cost was between $55.00 and $60.00 per acre. (CVRptRec V3 pg.

119 lns. 23-25). Rodriguez did not provide any additional testimony related to out

of pocket expenses. Assuming no offsets or credits and taking his testimony as

true Rodriguez’s out of pocket expenses would be between $22,000.00 and

$24,000.00 for the 400 acres in question. According to Rodriguez’s own estimate

of costs the jury awarded at least $688.00 more than he was entitled to.

      $36,899.64 in checks from Gengenbach were made payable to Rodriguez.

(CVExh-1 pg. 43-49, 53-55, 59-65, 69, 71-79, 85-95, 97, 99, 101, 103-104).

Rodriguez’s testimony at trial was:

      A.     All the checks were used at the work down in Sal Del
             Rey.

      Q.     And isn't it true that Sal Del Rey is the property that you
             farmed with Mr. Gengenbach?

      A.     I did all the work in Sal Del Rey -- and I Mr.
             Gengenbach did the farming in Sal Del Rey. Every check
_____________________________________________________________________________
Appellant’s Brief                     41
            that I received, every expense that was made was used
            only for Sal Del Rey.

      A.    all the checks I received -- all the work, all the farming I
            did was for Sal Del Rey and every check I received was
            for the expenses for the farming in Sal Del Rey.

      Q.    And is Sal Del Rey the property that you allege you had
            an agreement with Mr. Doug?

      A.    Yes.

      Q.    Okay. And doesn't this check say Jesus Rodriguez, Sal
            Del Rey?

      A.    All the checks that are made out to my name is all for the
            work done on Sal Del Rey or for paying things that have
            to do with Sal Del Rey.

      Q.    So you're admitting to the jury, Mr. Rodriguez that these
            checks, that you cashed these checks and that went to the
            Sal Del Rey property?

      A.    All of them, all the checks were used for Sal Del Rey. He
            did give me some 8,000 dollars and I paid that back
            quickly, but all the other checks he gave me were used to
            pay for Sal Del Rey. Nothing was used for my personal
            use. (CVRptRec V3 pg. 38 ln. 19- pg. 39 ln. 1; pg. 39 ln.
            7-pg. 40 ln. 1).

      As previously stated, based on Rodriguez’s testimony at trial the most his

out of pocket expenses could have been was $24,000.00 on the 400 acres.

(CVRptRec V3 pg. 119 lns. 23-25).            Furthermore, he acknowledged that

$36,899.64 was paid directly to him by Gengenbach for the 400 acres. (CVRptRec

V3 pg. 38 ln. 19- pg. 39 ln. 1; pg. 39 ln. 7-pg. 40 ln. 1). An additional $33,612.48

_____________________________________________________________________________
Appellant’s Brief                     42
used for purchase of inputs on the crop. (CVExh-1 pgs. 51, 57, 67, 81, 83, 96, 98,

100, 102).

      Therefore, Rodriguez did not have any out of pocket expenses but he

received a profit of $12,899.64 in payments from Gengenbach. Rodriguez spent

no money and received a minimum of $12,899.64 for farming on the 400 acres.

That figure is correct without considering any of the $33,612.48 for inputs. The

Jury’s award for unpaid farming services rendered on 400 acres is unsupported by

the evidence. Therefore, Gengenbach respectfully requests this Court to reverse

the trial court’s judgment and remand for a new trial on the merits.

             3) Exemplary damages

      The evidence is insufficient to support the Jury’s award for exemplary

damages of $140,618.49. (CVClk Rec. pg. 80). Despite Rodriguez’s testimony to

the contrary the jury believed that a contract existed between the parties. In their

answer to Charge of the Court Question No. 1, “Did Doug Gengenbach and Jesus

Rodriguez enter into a verbal agreement to share in the profits and losses of crops

at Sal Del Rey and Floral Rd. properties?” the jury answered Yes. (CVClk Rec.

pg. 67). The mere fact that there is a dispute between the parties regarding the

terms of an agreement does not transform a contractual disagreement into a fraud

claim. Miga v. Jensen, 96 S.W.3d 207, 211 (Tex. 2002).

      Exemplary damages are generally not recoverable in contract actions.

_____________________________________________________________________________
Appellant’s Brief                     43
Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 571 (Tex. 1981). When the

plaintiff’s injury is nothing more than the economic loss of a contract, the action

sounds in contract alone and tort damages are not recoverable. Southwestern Bell

Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991).

      When the injury is only the economic loss to the subject of a contract itself,

the action sounds in contract alone.” Jim Walter Homes at 618. Therefore, the

Jury’s award of $140,618.49 for exemplary damages is unsupported by the

evidence and should be reversed.

      However, if an award of punitive damages is allowable under Rodriguez’s

fraud claim the recovery is still limited by his out of pocket expenses. Considering

the testimony provided by Rodriguez related to farming costs on the 400 acres and

the accounting provided by Willacy, total out of pocket expenses for the two

claims could not have exceeded $35,235.21. (CVExh-1 pg. 23-24; CVRptRec V3

pg. 119 lns. 23-25). Rodriguez received $56,899.64 in payments from Gengenbach

and Willacy resulting in a minimum profit of $21,664.43. (CVExh-1 pg. 43-49,

53-55, 59-65, 69, 71-79, 85-95, 97, 99, 101, 103-104; CVExh-1 pg. 23-24). There

is no evidence that Rodriguez had any out of pocket expenses in excess of the

remaining damage award of $16,100.00 for down payment on the tractor.

Deducting the out of pocket expense of $16,100.00 from Gengenbach and

Willacy’s payments Rodriguez profited $5,564.43 on the 400 acres.

_____________________________________________________________________________
Appellant’s Brief                     44
      Exemplary damages cannot be awarded for nominal or zero damages. Tex.

Civ. Prac. Rem. Code 41.004. The Jury’s award of $140,618.49 for exemplary

damages is unsupported by the evidence. Therefore, Gengenbach respectfully

requests this Court to reverse the trial court’s judgment and remand for a new trial

on the merits.


V.    The Trial Court Committed Reversible Error in not Applying Offsets or
      Credits.

      After finding an agreement between Gengenbach and Rodriguez to share

profits and losses the jury awarded Rodriguez damages including exemplary

damages totaling $197,024.09. (CVClk Rec. pgs. 67, 78, 80). Gengenbach plead

the fact to the trial court that the jury award provided no offsets for payments made

to Rodriguez by Willacy, the Federal Farm Service Agency (FSA), and

Gengenbach, nor did it factor in the existence of the $95,577.48 in funds placed in

the courts registry.


      A.     Standard of Review

      A trial court abuses its discretion when it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242 (Tex.1985), cert. denied,

476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). In ascertaining whether the

trial court abused its discretion, the reviewing court must determine if the trial
_____________________________________________________________________________
Appellant’s Brief                     45
court acted without reference to any guiding rules and principles. Morrow v.

H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986).        Texas courts of appeal have the

power to review excessiveness of damages and to order remittitur. Sweet v. Port

Terminal R.R., 653 S.W.2d 291, 294–95 (Tex.1983).

      B.     Right to offsets

      The right to an offset is an affirmative defense. Brown v. Am. Transfer and

Storage Co., 601 S.W.2d 931, 936 (Tex. 1980). The party asserting offset has the

burden of pleading offset and of proving facts necessary to support it. Id.

Gengenbach through counsel stated that without allowing for offsets Rodriguez

would receive $80,829.37 in payments and credits from the agreement to share

profits and losses, $197,024.09 in damages from the jury, and $95,577.48 from the

court registry. (CVClk Rec. pg. 89). Gengenbach argued in his Motion for New

Trial that he had provided thousands of dollars in cancelled checks made payable

to Rodriguez and for inputs to grow the crop. (CVClk Rec. pg. 133 ¶ 11-136 ¶ 15).

It was also argued that the jury’s award was compensating Rodriguez for inputs

without offsetting to allow for sharing of profits. Id.

      Willacy withheld $11,235.21 including $4,819.42 outstanding on Mr.

Rodriguez’s account, $4,400.00 for attorney’s fees, and $2,015.79 for the cost of

storing and drying the grain from its payment to the court registry. (CVExh pg.

23-24). Rodriguez did not provide a single cancelled check or document

_____________________________________________________________________________
Appellant’s Brief                     46
demonstrating expenses above and beyond those withheld by Willacy. However,

evidence presented at trial showed that Rodriguez received a $20,000.00 payment

from Willacy. Id. pg. 22.

       Rodriguez’s own testimony was that his expenses on the 400 acres were no

more than $24,000.00. (CVRptRec V3 pg. 119 lns. 23-25). Rodriguez did not

provide a single cancelled check or document demonstrating expenses above and

beyond those he testified to. Furthermore, Rodriguez admitted that Gengenbach

paid him $36,899.64 toward the 400 acres. (CVRptRec V3 pg. 38 ln. 19- pg. 39 ln.

1; pg. 39 ln. 7-pg. 40 ln. 1).

       The funds on deposit in the court’s registry were from the sale of the crop

produced by Rodriguez and Gengenbach. Following the trial, the Trial Court

signed an Order of Dissolution of Temporary Injunction issuing funds of

$95,577.48 to Rodriguez. (CVClk Rec. pg. 128).

       Rodriguez did not unilaterally incur expenses on the crop. Additionally, the

evidence of his out of pocket expenses if assumed one hundred percent true

demonstrates a maximum amount of $51,335.21 including charges by Willacy,

$60.00 per acre on the 400 acres and $16,100.00 for the tractor. Gengenbach

presented evidence of $56,899.64 paid directly to Rodriguez including $36,899.64

paid by Gengenbach and $20,000.00 paid by Willacy.       (CVExh-1 pg. 43-49, 53-

55, 59-65, 69, 71-79, 85-95, 97, 99, 101, 103-104; CVExh pg. 23-24).

_____________________________________________________________________________
Appellant’s Brief                     47
Gengenbach also presented evidence of $33,612.48 for inputs on the crop.

(CVExh-1 pgs. 51, 57, 67, 81, 83, 96, 98, 100, 102). The $95,577.48 in the court

registry along with the $20,000 was payment for the crop farmed by Gengenbach

and Rodriguez in an agreement to share profits and losses.

      The trial court must act with reference to guiding rules and principles.

Morrow 714 S.W.2d at 298. The Trial Court had access to all the evidence

presented at trial and Gengenbach’s request for offsets.       However, the Court

determined prior to the jury’s determination of liability or damages that “whatever

the jury decides is the appropriate amount,” and that “fees and expenses are

whatever they believe it is.” (CVRptRecV004 pg. 8 lns. 4-5; pg. 11 lns. 7-8).

      During   the   hearing   on   dissolution   of   the   temporary   injunction,

Genganbach’s counsel argued to the court about the excessiveness of the damages

and that the $95,577.48 in the court registry should be applied as an offset to

damages.    (CVRptRecV005 pg. 14 lns. 7-17).           The trial court stated that

Gengenbach did not win and “the money goes to Mr. Rodriguez.”

(CVRptRecV005 pg. 15 lns. 23-24). At the hearing on Gengenbach’s Motion for

Trial counsel again requested offsets for inputs and the $95,577.48 in the court

registry. (CVRptRecV006 pg. 10 lns. 1-20).

      Gengenbach was entitled to offset the damage award by monies already

given to Rodriguez, monies paid towards inputs, and the $95,577.48 in the court

_____________________________________________________________________________
Appellant’s Brief                     48
registry. The Trial Court erred by not applying offsets or credits to the jury’s

award for damages of $197,024.09. Therefore, Gengenbach respectfully requests

this Court to reverse the trial court’s judgment and remand for a new trial on the

merits.

PRAYER

      Gengenbach presented sufficient evidence at trial to establish the existence

of a joint venture. Therefore, the trial court erred by denying the submission of

Gengenbach’s breach of fiduciary duty claim. Additionally, the establishment of

an agreement between Gengenbach and Rodriguez should have precluded the

award of exemplary damages without the establishment of a separate and distinct

tort claim. Moreover, Rodriguez was not entitled to anything more than out of

pocket reliance damages without establishing an independent tort claim. The cash

payments to Rodriguez by Willacy and Gengenbach that Gengenbach requested as

offsets or credits should have been applied to reduce Rodriguez’s out of pocket

expense and/or the overall damages award. Accordingly, the entry of judgment

against Gengenbach should be reversed, and the action should be remanded to the

389TH Judicial District Court Of Hidalgo County, for further consideration.




_____________________________________________________________________________
Appellant’s Brief                     49
                                   Respectfully submitted,

                                   Law Offices of Rick Guerra, PLLC


                                   By: /s/ Ricardo Guerra
                                   Ricardo Guerra
                                   Texas Bar No. 24074331
                                   Email: service@rickguerra.com
                                   Law Offices of Rick Guerra, PLLC
                                   2211 Rayford Rd Ste 111 #134
                                   Spring, Texas 77386
                                   Tel. (281) 760-4295
                                   Fax. (866) 325-0341
                                   Attorney for Plaintiff/Counter Defendant
                                   Doug Gengenbach




_____________________________________________________________________________
Appellant’s Brief                     50
                            APPENDIX




_____________________________________________________________________________
Appellant’s Brief
                                      1
                             Appendix A




_____________________________________________________________________________
Appellant’s Brief
                                      2
Electronically Filed
9/23/2014 5:50:20 PM
Hidalgo County District Clerks
Reviewed By: Claudia Rodriguez




             124
               Electronically Filed
               9/23/2014 5:50:20 PM
               Hidalgo County District Clerks
               Reviewed By: Claudia Rodriguez




September 25




                            125
Electronically Filed
9/23/2014 5:50:20 PM
Hidalgo County District Clerks
Reviewed By: Claudia Rodriguez




             126
                              Appendix B




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Appellant’s Brief
                                      6
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
                              Appendix C




_____________________________________________________________________________
Appellant’s Brief
                                      27
Rule 278. Submission of Questions, Definitions, and Instructions, TX R RCP Rule 278




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 11. Trial of Causes
           D. Charge to the Jury

                                           TX Rules of Civil Procedure, Rule 278

                            Rule 278. Submission of Questions, Definitions, and Instructions

                                                          Currentness


The court shall submit the questions, instructions and definitions in the form provided by Rule 277, which are raised by the
written pleadings and the evidence. Except in trespass to try title, statutory partition proceedings, and other special proceedings
in which the pleadings are specially defined by statutes or procedural rules, a party shall not be entitled to any submission of
any question raised only by a general denial and not raised by affirmative written pleading by that party. Nothing herein shall
change the burden of proof from what it would have been under a general denial. A judgment shall not be reversed because of
the failure to submit other and various phases or different shades of the same question. Failure to submit a question shall not
be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in
writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice
in such respect if the question is one relied upon by the opposing party. Failure to submit a definition or instruction shall not
be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in
writing and tendered by the party complaining of the judgment.


Credits
July 15, 1987, eff. Jan. 1, 1988.


Editors' Notes

COMMENT--1988
   Formerly a part of Rule 279.



Notes of Decisions (313)

Vernon's Ann. Texas Rules Civ. Proc., Rule 278, TX R RCP Rule 278
Current with amendments received through 6/1/2015

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 1
Rule 93. Certain Pleas to Be Verified, TX R RCP Rule 93




  Vernon's Texas Rules Annotated
    Texas Rules of Civil Procedure
      Part II. Rules of Practice in District and County Courts
        Section 4. Pleading
           C. Pleadings of Defendant

                                              TX Rules of Civil Procedure, Rule 93

                                              Rule 93. Certain Pleas to Be Verified

                                                            Currentness


A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.


1. That the plaintiff has not legal capacity to sue or that the defendant has not legal capacity to be sued.


2. That the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity
in which he is sued.


3. That there is another suit pending in this State between the same parties involving the same claim.


4. That there is a defect of parties, plaintiff or defendant.


5. A denial of partnership as alleged in any pleading as to any party to the suit.


6. That any party alleged in any pleading to be a corporation is not incorporated as alleged.


7. Denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in
whole or in part and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where
such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it
states that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his
authority. In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.


8. A denial of the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an
indorsee or assignee and in the absence of such a sworn plea, the indorsement or assignment thereof shall be held as fully
proved. The denial required by this subdivision of the rule may be made upon information and belief.


9. That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same
has failed in whole or in part.


10. A denial of an account which is the foundation of the plaintiff's action, and supported by affidavit.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
Rule 93. Certain Pleas to Be Verified, TX R RCP Rule 93




11. That a contract sued upon is usurious. Unless such plea is filed, no evidence of usurious interest as a defense shall be received.


12. That notice and proof of loss or claim for damage has not been given as alleged. Unless such plea is filed such notice and
proof shall be presumed and no evidence to the contrary shall be admitted. A denial of such notice or such proof shall be made
specifically and with particularity.



13. In the trial of any case appealed to the court from the Industrial Accident Board 1 the following, if pleaded, shall be presumed
to be true as pleaded and have been done and filed in legal time and manner, unless denied by verified pleadings:


  (a) Notice of injury.


  (b) Claim for compensation.


  (c) Award of the Board.


  (d) Notice of intention not to abide by the award of the Board.


  (e) Filing of suit to set aside the award.


  (f) That the insurance company alleged to have been the carrier of the workers' compensation insurance at the time of the
  alleged injury was in fact the carrier thereof.



  (g) That there was good cause for not filing claim with the Industrial Accident Board 1 within the one year period provided
  by statute.


  (h) Wage rate.

A denial of any of the matters set forth in subdivisions (a) or (g) of paragraph 13 may be made on information and belief.

Any such denial may be made in original or amended pleadings; but if in amended pleadings the same must be filed not less
than seven days before the case proceeds to trial. In case of such denial the things so denied shall not be presumed to be true,
and if essential to the case of the party alleging them, must be proved.


14. That a party plaintiff or defendant is not doing business under an assumed name or trade name as alleged.


15. In the trial of any case brought against an automobile insurance company by an insured under the provisions of an insurance
policy in force providing protection against uninsured motorists, an allegation that the insured has complied with all the terms




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Rule 93. Certain Pleas to Be Verified, TX R RCP Rule 93


of the policy as a condition precedent to bringing the suit shall be presumed to be true unless denied by verified pleadings which
may be upon information and belief.


16. Any other matter required by statute to be pleaded under oath.


Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of March 31, 1941, eff. Sept. 1, 1941; Sept. 20, 1941, eff. Dec. 31, 1941;
June 16, 1943, eff. Dec. 31, 1943; Oct. 12, 1949, eff. March 1, 1950; July 21, 1970, eff. Jan. 1, 1971; July 22, 1975, eff. Jan.
1, 1976; June 15, 1983, eff. Sept. 1, 1983; Dec. 5, 1983, eff. April 1, 1984.



Notes of Decisions (794)



Footnotes
1      The name of the Industrial Accident Board was changed to the Texas Workers' Compensation Commission pursuant to Acts 1989,
       71st Leg., 2nd C.S., ch. 1, § 17.01. The Texas Workers' Compensation Commission was abolished and the Workers' Compensation
       Division of the Texas Department of Insurance was established pursuant to Acts 2005, 79th Leg., ch. 265, § 1.003.
Vernon's Ann. Texas Rules Civ. Proc., Rule 93, TX R RCP Rule 93
Current with amendments received through 6/1/2015

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    3
§ 152.051. Partnership Defined, TX BUS ORG § 152.051




  Vernon's Texas Statutes and Codes Annotated
    Business Organizations Code (Refs & Annos)
      Title 4. Partnerships (Refs & Annos)
        Chapter 152. General Partnerships
           Subchapter B. Nature and Creation of Partnership

                                     V.T.C.A., Business Organizations Code § 152.051

                                                § 152.051. Partnership Defined

                                                  Effective: January 1, 2006
                                                         Currentness


(a) In this section, “association” does not have the meaning of the term “association” under Section 1.002.


(b) Except as provided by Subsection (c) and Section 152.053(a), an association of two or more persons to carry on a business
for profit as owners creates a partnership, regardless of whether:


  (1) the persons intend to create a partnership; or


  (2) the association is called a “partnership,” “joint venture,” or other name.


(c) An association or organization is not a partnership if it was created under a statute other than:


  (1) this title and the provisions of Title 1 applicable to partnerships and limited partnerships;


  (2) a predecessor to a statute referred to in Subdivision (1); or


  (3) a comparable statute of another jurisdiction.


(d) The provisions of this chapter govern limited partnerships only to the extent provided by Sections 153.003 and 153.152
and Subchapter H, Chapter 153.


Credits
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.



Notes of Decisions (2)

V. T. C. A., Business Organizations Code § 152.051, TX BUS ORG § 152.051
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
§ 152.051. Partnership Defined, TX BUS ORG § 152.051




End of Document                                         © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        2
§ 152.052. Rules for Determining if Partnership is Created, TX BUS ORG § 152.052




  Vernon's Texas Statutes and Codes Annotated
    Business Organizations Code (Refs & Annos)
      Title 4. Partnerships (Refs & Annos)
        Chapter 152. General Partnerships
           Subchapter B. Nature and Creation of Partnership

                                      V.T.C.A., Business Organizations Code § 152.052

                                § 152.052. Rules for Determining if Partnership is Created

                                                   Effective: January 1, 2006
                                                          Currentness


(a) Factors indicating that persons have created a partnership include the persons':


  (1) receipt or right to receive a share of profits of the business;


  (2) expression of an intent to be partners in the business;


  (3) participation or right to participate in control of the business;


  (4) agreement to share or sharing:


     (A) losses of the business; or


     (B) liability for claims by third parties against the business; and


  (5) agreement to contribute or contributing money or property to the business.


(b) One of the following circumstances, by itself, does not indicate that a person is a partner in the business:


  (1) the receipt or right to receive a share of profits as payment:


     (A) of a debt, including repayment by installments;


     (B) of wages or other compensation to an employee or independent contractor;


     (C) of rent;




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                1
§ 152.052. Rules for Determining if Partnership is Created, TX BUS ORG § 152.052




     (D) to a former partner, surviving spouse or representative of a deceased or disabled partner, or transferee of a partnership
     interest;


     (E) of interest or other charge on a loan, regardless of whether the amount varies with the profits of the business, including
     a direct or indirect present or future ownership interest in collateral or rights to income, proceeds, or increase in value
     derived from collateral; or


     (F) of consideration for the sale of a business or other property, including payment by installments;


  (2) co-ownership of property, regardless of whether the co-ownership:


     (A) is a joint tenancy, tenancy in common, tenancy by the entirety, joint property, community property, or part ownership;
     or


     (B) is combined with sharing of profits from the property;


  (3) the right to share or sharing gross returns or revenues, regardless of whether the persons sharing the gross returns or
  revenues have a common or joint interest in the property from which the returns or revenues are derived; or


  (4) ownership of mineral property under a joint operating agreement.


(c) An agreement by the owners of a business to share losses is not necessary to create a partnership.


Credits
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.



Notes of Decisions (129)

V. T. C. A., Business Organizations Code § 152.052, TX BUS ORG § 152.052
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   2
61.1. Standard for Reversible Error, TX R APP Rule 61.1




  Vernon's Texas Rules Annotated
    Texas Rules of Appellate Procedure
      Section Four. Proceedings in the Supreme Court
        Rule 61. Reversible Error (Refs & Annos)

                                               TX Rules App.Proc., Rule 61.1

                                            61.1. Standard for Reversible Error

                                                         Currentness


No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the Supreme Court
concludes that the error complained of:


(a) probably caused the rendition of an improper judgment; or


(b) probably prevented the petitioner from properly presenting the case to the appellate courts.


Credits
Eff. Sept. 1, 1997.



Notes of Decisions (45)

Rules App. Proc., Rule 61.1, TX R APP Rule 61.1
Current with amendments received through 6/1/2015

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
§ 41.001. Definitions, TX CIV PRAC & REM § 41.001




  Vernon's Texas Statutes and Codes Annotated
    Civil Practice and Remedies Code (Refs & Annos)
      Title 2. Trial, Judgment, and Appeal
         Subtitle C. Judgments
           Chapter 41. Damages (Refs & Annos)

                                    V.T.C.A., Civil Practice & Remedies Code § 41.001

                                                    § 41.001. Definitions

                                                Effective: September 1, 2003
                                                         Currentness


In this chapter:


  (1) “Claimant” means a party, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff, seeking recovery
  of damages. In a cause of action in which a party seeks recovery of damages related to injury to another person, damage to
  the property of another person, death of another person, or other harm to another person, “claimant” includes both that other
  person and the party seeking recovery of damages.


  (2) “Clear and convincing” means the measure or degree of proof that will produce in the mind of the trier of fact a firm
  belief or conviction as to the truth of the allegations sought to be established.


  (3) “Defendant” means a party, including a counterdefendant, cross-defendant, or third-party defendant, from whom a
  claimant seeks relief.


  (4) “Economic damages” means compensatory damages intended to compensate a claimant for actual economic or pecuniary
  loss; the term does not include exemplary damages or noneconomic damages.


  (5) “Exemplary damages” means any damages awarded as a penalty or by way of punishment but not for compensatory
  purposes. Exemplary damages are neither economic nor noneconomic damages. “Exemplary damages” includes punitive
  damages.


  (6) “Fraud” means fraud other than constructive fraud.


  (7) “Malice” means a specific intent by the defendant to cause substantial injury or harm to the claimant.


  (8) “Compensatory damages” means economic and noneconomic damages. The term does not include exemplary damages.


  (9) “Future damages” means damages that are incurred after the date of the judgment. Future damages do not include
  exemplary damages.



                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
§ 41.001. Definitions, TX CIV PRAC & REM § 41.001




  (10) “Future loss of earnings” means a pecuniary loss incurred after the date of the judgment, including:


     (A) loss of income, wages, or earning capacity; and


     (B) loss of inheritance.


  (11) “Gross negligence” means an act or omission:


     (A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme
     degree of risk, considering the probability and magnitude of the potential harm to others; and


     (B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious
     indifference to the rights, safety, or welfare of others.


  (12) “Noneconomic damages” means damages awarded for the purpose of compensating a claimant for physical pain
  and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of
  companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses
  of any kind other than exemplary damages.


  (13) “Periodic payments” means the payment of money or its equivalent to the recipient of future damages at defined intervals.


Credits
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, eff. Sept. 2, 1987. Amended by Acts 1995, 74th Leg., ch. 19, § 1, eff.
Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, § 13.02, eff. Sept. 1, 2003.



Notes of Decisions (178)

V. T. C. A., Civil Practice & Remedies Code § 41.001, TX CIV PRAC & REM § 41.001
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
§ 41.003. Standards for Recovery of Exemplary Damages, TX CIV PRAC & REM § 41.003




  Vernon's Texas Statutes and Codes Annotated
    Civil Practice and Remedies Code (Refs & Annos)
      Title 2. Trial, Judgment, and Appeal
         Subtitle C. Judgments
           Chapter 41. Damages (Refs & Annos)

                                    V.T.C.A., Civil Practice & Remedies Code § 41.003

                                § 41.003. Standards for Recovery of Exemplary Damages

                                                Effective: September 1, 2003
                                                         Currentness


(a) Except as provided by Subsection (c), exemplary damages may be awarded only if the claimant proves by clear and
convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from:


  (1) fraud;


  (2) malice; or


  (3) gross negligence.


(b) The claimant must prove by clear and convincing evidence the elements of exemplary damages as provided by this section.
This burden of proof may not be shifted to the defendant or satisfied by evidence of ordinary negligence, bad faith, or a deceptive
trade practice.


(c) If the claimant relies on a statute establishing a cause of action and authorizing exemplary damages in specified circumstances
or in conjunction with a specified culpable mental state, exemplary damages may be awarded only if the claimant proves by
clear and convincing evidence that the damages result from the specified circumstances or culpable mental state.


(d) Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of
exemplary damages.


(e) In all cases where the issue of exemplary damages is submitted to the jury, the following instruction shall be included in
the charge of the court:

“You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of
such damages must be unanimous.”


Credits
Added by Acts 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 19, § 1, eff.
Sept. 1, 1995; Acts 2003, 78th Leg., ch. 204, § 13.04, eff. Sept. 1, 2003.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
§ 41.003. Standards for Recovery of Exemplary Damages, TX CIV PRAC & REM § 41.003




Notes of Decisions (282)

V. T. C. A., Civil Practice & Remedies Code § 41.003, TX CIV PRAC & REM § 41.003
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
                             Appendix D




_____________________________________________________________________________
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                                                                                10/3/201311:44:13.
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       DOUGLAS OENGENBACH
       75211 RD422
       EUSTIS NE 69028




DDA Debits - 01/04/2011



 ·')
                                             20110103006000511474 3800

                                          2G110103006000S11474 3300




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DDA Debits               01/04/2011
                                                                                  Electronically Fil
                                                                               10/3/201311:44:13
                                                                        Hidalgo County District Cler




   DOUGLAS GENGENBACH
   76211 RD422                                                   1333
   EUSTIS NE: 69028




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DDA Debits - 01/04/2011



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DDA Debits - 01/04/2011
                                                                                                      Electronically Fil
                                                                                                  10/3/201311:44:13,
                                                                                          Hidalgo County District Cieri




  DOUGLAS GENGENBACH
   75211 R0422                                                     1334
   EUSTIS NE 59028                    (\    :1~                    75·235/104t
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DDA Debits - 01/11/2011



                         20110110006000513430 3799

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DDA Debits - 01/11/2011
                                                                                                                 Electronically Fil
                                                                                                             10/3/201311:44:13.
                                                                                                      Hidalgo County District Cieri




                                                                                           1335
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DDA Debits -       01/19/2011




                                 2011011 .            If 01:> f 1:> f    ,ji:JU 1

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DDA Debits -       01/19/2011
                                                                                          Electronically Fil,
                                                                                      10/3/201311:44:13.
                                                                              Hidalgo County District Cieri




                                                  ·,
                                                                       1340




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DDA Debits - 01/26/2011



                              20110125005600..32247 3799

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DDA Debits - 01/26/2011
                                                                                                                                    Electronically Fil<
                                                                                                                                101312013 11:44:131
                                                                                                                         Hidalgo County District Cieri




     DOUGLAS GENGENBACH                                                                                        1344
     76211 RD 422
                                                                                                  r'   ~~ tJ
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     EUSTIS NE 69028                                                            0?\...)   ;;2._                76-236/104:




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DDA Debits - 02/01/2011



            ......        -                          20 11 0131 003900286304 3817

                                                 2011ll1-1100390Q288'!04 3817                          It:-'




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DDA Debits - 02/01/2011
                                                                                        Electronically Fil,
                                                                                    10/3/201311:44:13.
                                                                            Hidalgo County District Cieri




  DOUGLAS OENGENBACH
  76211 RD 422                                               1347
  eUSTIS Ne 60028                                            711·!38/1040
                                                                        I




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DDA Debits          02/08/2011
                                                                                         Electronically Fil
                                                                                     10/3/201311:44:13,
                                                                             Hidalgo County District Cieri




       DOUGLAS GENGENBACH
       76211 AD 4l!2                                            1361
       EUSTIS NE 69028
                                                                16·23B/IOU
                                                                         I




DDA Debits -               03/01/2011




                                    20110228006000517404 3802




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                  .......... ,.""
                            03/01/2011
                                                  Electronically Fil
                                              10/3/201311:44:13.
                                      Hidalgo County District Cieri




  DOUGLAS GENGENBACH
  76211 RD 422.         1362
  EUSTIS NE e902e
                        76·236/1049
                                  0




DDA               011
                                                                           Electronically Fil<
                                                                       10/3/201311:44:131
                                                                Hidalgo County District Cieri




     DOUGLAS GENGENBACH
     75211 RD 422
     EUSTIS NE 69026




DDA Debits -           03/08/2011




                                    20110307006000510235 3800


                                 201103070060005102!)6 33GO




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                                                                            Electronically Fil
                                                                         10/3/201311:44:13.
                                                                  Hidalgo County District Cler




DDA Debits -       06/01/2011




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DDA Debits - 06/01/2011
                              Appendix E




_____________________________________________________________________________
Appellant’s Brief
                                      87
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ill§~ DOUGLAS GEN.GENBACH                                                                                                                                        ~
   ~~      75211 RD 4.22                                                                                                                   1284
       ~ EUSTIS NE 69028                                                                                                     7?
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                                                                                    .    . 10/3/201311:4,4:13.
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                                                                                                          Electronically Fil
                                                                                                      10131201311:44:13
                                                                                               Hidalgo County District Cler




                                                                                        1342




DDA Debits - 01/26/2011



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DDA Debits - 01/26/2011
                                                                                          Electronically Fil
                                                                                      10/3/2013 11:44:13.
                                                                              Hidalgo County District Cieri




         DOUGLASGENGENBACH
         76211 AD 422                                           1345
         Et!SJIS NE 69<128
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DDA Debits -                 01/27/2011




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                                                                                                     Electronically Fil•
                                                                                                  10/3/201311:44:13,
                                                                                           Hidalgo County District Cieri




      DOUGLAS GENGENBACH
      76211 RD422                                                          1359
      EUSTIS NE 69028                                   7q                 7B·233/IIl41l
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DDA Debits -            03/10/2011




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DDA Debits              03/10/2011
                               Appendix F




_____________________________________________________________________________
Appellant’s Brief
                                      102
                                                                                                                            Electronically Filed
                                                                                                                       10/11/201310:34:27 AM
                                                                                                                  Hidalgo County District Clerks


ZS BRADY & Co.
A Professional CorfJtlfOI ion o(Attorncys and Cmm.'it:fcw.\



                                                           July I, 20ll

     Vja Hrst Class Majf

    Mr. Isaac J. Tawil
    GARCIA QUINTANILLA&: PALACIOS
    5526 N.IO'h Street
    McAllen, Texas 78504

    Mr. Felipe Garcia, Jr.
    LAW OFFICE OF FELIPE GARCIA,JR.
    201 E. University Drive
    Edinburg, Texas 78539

             Re:      Cause No. C·155l·Il·H; Doug Gengenbach v. Jesus Rodriquez and Willacy Co·op; In the
                      389'h District Court of Hidalgo Councy, Texas

    Dear Mr. Tawil and Mr. Garcia:

          Pursuant to the Temporary Injunction entered by the 389'h District Court in the above
   referenced matter, please find enclosed an accounting of the grain that has been delivered to
   Willacy Co·op by Jesus Rodriguez, and marketed and/or sold by Willacy Co·op, together will
   all expenses, charges, fees, or other advances that have been charged against the Account of
   Jesus Rodriguez.

           As the first page of the accounting enclosure shows, to date, grain that has been delivered
    to Willacy Co·op by Jesus Rodriquez has been marketed and/or sold for a total value of
    $171,853.70; the total costs for drying charges, grain sorghum check·off remittance, and Willacy's
    accounts receivable balance as related to Rodriquez are $26,835.21.

            In addition, please find enclosed an affidavit I have prepared, setting forth the attorney's
    fees that Willacy Co·op has incurred clue to its involvement in this matter, revolving around the
    ownership of the grain that has been delivered to Willacy Co·op. Under the terms of the
    Court's Temporary Injunction, Willacy Co·op has effectively gained status as an Interpleader.
    See TEXAS RULE CIVIL PROCEDURE 43; Union Gas Corp. v. Gisler, 129 S.W.3d 145, 152 (Tex. App.-
    Corpus Christi 2003, no pet.). The parties have agreed that Willacy Co·op is an innocent party,
    as Willacy was unaware of this dispute until this lawsuit was filed, and as set forth above,
    Willacy Co·op is depositing the disputed funds into the registry of the court. Therefore, Willacy
    Co·op is withholding the $4400.00 it has incurred in attorneys' fees due to its involvement in
    this matter between your clients. Olmos v. Pecan Grove Municipal Utility Dist., 857 S.W.2d 734, 742
    (Tex. App - Houston [I4'h Dist.] 1993, pet. denied); General American Life Ins. v. Rodriguez, 641
    S.W.2cl264, 268 (Tex. App.- Houston [l4'h Dist.]l982, no writ) .


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                                                                                              Electronically Filed
                                                                                         10/11/201310:34:27 AM
                                                                                    Hidalgo County District Clerks

July l, 20ll
Page 2 of 2


       Therefore, Willacy Co-op will deposit $140,618.49 into the registry of the Court,
according to the Court's Order in the Temporary Injunction.

         Thank you for your attention to this matter. Should you have any questions, please feel
free to contact this office at the number below.


                                                   Best regards,



                                                   ~A:hb
                                                   AmberS. Brady,
                                                   Attorney for Willacy Co-O

Enclosures
cc:    Mr. Chris Breedlove
       WILLACYCO-OP
             Via Email
                         CERTIFICATE OF SERVICE

I certify that on July 10, 2015 a true and correct copy of Appellant’s Brief and
Appendix was served on Felipe Garcia Jr. electronically at fgjr201@hotmail.com,
and the electronic transmission was reported as complete.


                                    /s/ Ricardo Guerra
                                    Ricardo Guerra
                                    E-mail:service@rickguerra.com




                      CERTIFICATE OF COMPLIANCE

      I, Rick Guerra, attorney for Appellant Doug Gengenbach certify that this
Appellant’s Brief was generated by a computer using Microsoft Word for Mac
2011 version 14.0.0, which indicates that the word count of this document is
11,635 per Tex. R. App. P. 9.4 (i).


                                    /s/ Ricardo Guerra
                                    Ricardo Guerra
                                    E-mail:service@rickguerra.com




_____________________________________________________________________________
Appellant’s Brief                     105
