Brinda Redwine D/B/A Texas Working Dogs v. Brian Peckinpaugh D/B/A Monster Malaks/Natural Born Guardians , 535 S.W.3d 44 ( 2017 )

NO. 12-16-00123-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BRINDA REDWINE D/B/A TEXAS § APPEAL FROM THE 369TH
WORKING DOGS,
APPELLANT
V. § JUDICIAL DISTRICT COURT
BRIAN PECKINPAUGH D/B/A
MONSTER MALAKS/NATURAL
BORN GUARDIANS, § ANDERSON COUNTY, TEXAS
APPELLEE
OPINION
Brinda Redwine appeals the trial court’s judgment and award of damages rendered
against her for defamation of Appellee Brian Peckinpaugh d/b/a Monster Malaks (collectively
Peckinpaugh). Redwine raises five issues on appeal. We reverse and render in part, modify in
part, and affirm as modified.
BACKGROUND
Redwine has been a breeder of livestock guardian dogs in Corsicana, Texas, for twenty
years. She operates a website called WorkingDogs.com. In 2010, Peckinpaugh, who owned a
business that bred Kangal guardian dogs, contacted Redwine to ask if she would assist him with
his website. Redwine agreed, and the two became friends.
In 2011, Peckinpaugh told Redwine that he was importing a new dog breed from Turkey
called “Turkish Boz.” Redwine later researched that breed online and found pictures of its being
used as a fighting dog in Turkey. Redwine found dog fighting to be extremely objectionable. As
a result, she informed Peckinpaugh that she no longer desired to associate with him because she
feared their continued association would ruin her reputation in the livestock guardian dog
community.
Thereafter, Redwine posted statements on her website in an attempt to distance herself
from Peckinpaugh. Specifically, she posted that she had helped Peckinpaugh make his website
before she realized he was a “dog fighter.” She further wrote that the Turkish Boz dogs that
Peckinpaugh imported suffered from elbow dysplasia, were not vaccinated, and several died
from parvo or distemper. Finally, she posted that the dogs were being shipped into this country
by the Taliban and Peckinpaugh sent money from his sales of the dogs to a known hater of
Americans.
In November 2012, Peckinpaugh sued Redwine for defamation and sought to recover
actual and exemplary damages.1 The matter proceeded to a jury trial on September 21, 2015. At
trial, the court’s charge asked the jury about seven statements Peckinpaugh alleged Redwine had
made about him. The jury answered in the affirmative that (1) Redwine had made each of the
seven statements, (2) each of the statements was false, and (3) Redwine knew or should have
known, in the exercise of ordinary care, that the statements were false and had the potential to be
defamatory. As a result, the jury awarded $200,000.00 for past injury to reputation, $50,000.00
for future injury to reputation, $5,000.00 for mental anguish in the past, and $1.00 for mental
anguish in the future. The jury further awarded $40,000.00 for lost income in the past and $1.00
for lost income in the future. Finally, the jury awarded $250,000.00 in exemplary damages.
Judgment was entered on April, 21, 2016, and this appeal followed.
DECRETAL LANGUAGE IN THE JUDGMENT
In her first issue, Redwine argues that the judgment is voidable because it lacks the
necessary decretal language.
Standard of Review
An order that fails to include any decretal language will not result in a final judgment
since it adjudicates nothing. See In re Wilmington Tr., Nat’l Ass’n, No. 14-17-00074-CV, 2017
WL 946759, at *2 (Tex. App.–Houston [14th Dist.] Mar. 9, 2017, no pet.). Because the finality
1
Peckinpaugh also sued Redwine’s ex-husband, Ricky Thomas, but later nonsuited his causes of action
against him.
2
of a judgment raises the issue of jurisdiction, it is a legal question we review de novo. See In re
Guardianship of Miller, 299 S.W.3d 179, 184 (Tex. App.–Dallas 2009, no pet.).
Judgments, like other written instruments, are to be construed as a whole toward the end
of harmonizing and giving effect to all the court has written. Constance v. Constance, 544
S.W.2d 659, 660 (Tex. 1976). Conclusive effect is not to be given to the commonly employed
decretal words. See id. The determination of what the trial court adjudicates in its judgment is to
be determined from a fair reading of all the provisions of the judgment. See id. In other words, a
judgment is tested by its substance rather than by its form, and no particular phraseology is
required to make a judgment valid. See Tourtelot v. Booker, 160 S.W. 293, 296 (Tex. Civ.
App.–El Paso 1913, writ ref’d). However, the language employed should indicate clearly action
of a judicial character. See id. Thus, a judgment must show intrinsically and distinctly, rather
than inferentially, that the matters in the record have been determined in favor of one of the
litigants or that the rights of the parties in litigation have been adjudicated. See id.
Governing Law
A judgment is the consideration and determination of a court of competent jurisdiction on
the matters submitted to it in an action or proceeding. See Sw. Bell Tel. Co. v. Griffith, 575
S.W.2d 92, 96 (Tex. Civ. App.–Corpus Christi 1978, writ ref’d n.r.e.); see also TEX. R. CIV. P.
301. The primary objective in rendering judgment is concluding a controversy with as high of a
degree of exact justice as possible. See In re Marriage of Grossnickle, 115 S.W.3d 238, 248
(Tex. App.–Texarkana 2003, no pet.). As a result, the judgment’s language must be certain and
definite. See id. The essence of a judgment consists of either an award or a denial of the remedy
sought. See State v. Reagan Cty. Purchasing Co., 186 S.W.2d 128, 136 (Tex. Civ. App.–El
Paso 1944, writ refused w.o.m.).
A judgment is more than mere findings of fact in the controversy or even a
recommendation as to the litigants’ future course. See In re Thompson, 991 S.W.2d 527, 532
(Tex. App.–Beaumont 1999, no pet.); see, e.g., Davis v. Hemphill, 243 S.W. 691, 693 (Tex. Civ.
App.–Fort Worth 1922, no writ). Rather, it is the solemn sentence of law pronounced by the
court on the facts found. See Davis, 243 S.W. at 693. The judgment is to be distinguished from
a judge’s mere expressions of opinion where there is no intention that the expressions are to be
accepted as the judgment of the court. See Chandler v. Reder, 635 S.W.2d 895, 897 (Tex. App.–
Amarillo 1982, no writ).
3
“Decretal” means the granting or denying of the remedy sought. Envtl. Procedures, Inc.
v. Guidry, 282 S.W.3d 602, 620 n.21 (Tex. App.–Houston [14th Dist.] 2009, pet. denied). The
factual recitations or reasons preceding the decretal portion of a judgment form no part of the
judgment itself. Alcantar v. Oklahoma Nat’l Bank, 47 S.W.3d 817, 823 (Tex. App.–Fort
Worth, 2001, no pet.); see also Hines v. Villalba, 231 S.W.3d 550, 553 (Tex. App.–Dallas 2007,
no pet.) (where judgment recited amount of appellate attorney’s fees, but lacked decretal
language ordering defendants to pay those fees, judgment could not be used to enforce payment
of those fees); Crider v. Cox, 960 S.W.2d 703, 705 (Tex. App.–Tyler 1997, writ denied).
Analysis
In the case at hand, the trial court’s judgment stated, in pertinent part, as follows:
Based on the jury’s verdict, it is ADJUDGED that:
1. On the claim of defamation, the jury finds in favor of Plaintiff, BRIAN
PECKINPAUGH, and against Defendant, BRINDA REDWINE d/b/a TEXAS WORKING
DOGS, in the amount of $295,002.00 (Two Hundred Ninety Five Thousand Two and No/100
Dollars).
2. On the claim for exemplary damages, the jury finds in favor of Plaintiff, BRIAN
PECKINPAUGH, and against Defendant, BRINDA REDWINE d/b/a TEXAS WORKING
DOGS, in the amount of $250,000.00 (Two Hundred Fifty Thousand and No/100 Dollars).
3. Plaintiff, BRIAN PECKINPAUGH, is entitled to prejudgment interest on the
damages awarded herein, measured from September 1, 2012, at the rate of 5% per annum, in the
sum of $81,750.00 (Eight One Thousand Seven Hundred Fifty and No/100 Dollars).
4. Plaintiff BRIAN PECKINPAUGH, is entitled to postjudgment interest on the
total amount of the judgment and any prejudgment interest awarded hereinabove, at the rate of 5%
per annum from the date this judgment is signed until paid.
5. Costs are hereby taxed against Defendant BRINDA REDWINE d/b/a TEXAS
WORKING DOGS.
6. All relief requested by DEFENDANTS is hereby DENIED.
7. All relief requested by PLAINTIFF against DEFENDANT RICKY THOMAS
was nonsuited in open court and PLAINTIFF is entitled to no relief against DEFENDANT
RICKY THOMAS by virtue of the nonsuit in open court.
IT IS ORDERED that any party in favor of whom judgment is awarded is entitled to
enforce this judgment through abstract, execution and any other process necessary.
This judgment finally disposes of all parties and all claims and is appealable.
4
To “adjudge” means to “adjudicate” or to “award judicially.” Adjudge, BLACK’S LAW
DICTIONARY (10th ed. 2009). The word “adjudged” often is used alongside the word “decreed”
in the typical decretal language, i.e., “ordered, adjudged, and decreed.” See, e.g., In re
Wilmington Tr., 2017 WL 946759, at *2. Here, in its judgment, the trial court set forth that it
made an adjudication based on the jury’s verdict. Shortly after its use of the word “adjudged,”
the trial court used a colon, which denoted that the language that followed was part of the court’s
adjudication based on the jury’s verdict.2 In that subsequent body of text, the court found for
Peckinpaugh on the issue of defamation and awarded actual damages, exemplary damages,
prejudment interest, and postjudgment interest. The court further ordered costs taxed against
Redwine and denied her any relief sought. Lastly, the court ordered that Peckinpaugh is entitled
to enforce the judgment through abstract, execution, and any other process and explicitly set
forth its intention that the judgment “finally disposes of all parties and all claims and is
appealable.”
Based on the foregoing, we conclude that the language of the judgment in this case is
sufficiently certain and definite. See In re Marriage of Grossnickle, 115 S.W.3d at 248.
Moreover, it clearly indicates action of a judicial character and shows intrinsically and distinctly
that the matters before the court have been determined in favor of one of the litigants and that the
rights of the parties have been adjudicated. See Booker, 160 S.W. at 296. Therefore, we hold
that the judgment contains sufficient decretal language. See Guidry, 282 S.W.3d at 620 n.21.
Redwine’s first issue is overruled.
EXEMPLARY DAMAGES AND UNANIMITY OF VERDICT
In part of her second issue, Redwine argues that the trial court erred in awarding
Peckinpaugh $250,000.00 in exemplary damages because the jury’s verdict was not unanimous.
Standard of Review and Governing Law
Whether a jury’s award of exemplary damages is supported by a unanimous finding as to
liability and the amount of exemplary damages is construed as a “no evidence” or “matter of
law” issue. See Deatley v. Rodriguez, 246 S.W.3d 848, 850 (Tex. App.–Dallas 2008, no pet.).
2
Among other things, a colon introduces a list or series and introduces a clause that explains or illustrates
what has gone before. See Colon, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY: A HANDBOOK OF STYLE (11th
ed. 2011); cf. D.A. v. Tex. Health Presbyterian Hosp. of Denton, 514 S.W.3d 431, 434 (Tex. App.–Fort Worth
2017, pet. filed) (underscoring the importance of employing rules of grammar in interpreting statutory text).
5
To determine whether legally sufficient evidence supports a challenged jury finding, we must
consider evidence that favors the finding if a reasonable factfinder could consider it, and we must
disregard evidence contrary to the challenged finding unless a reasonable factfinder could not
disregard it. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We may not
sustain a legal insufficiency, or “no evidence,” point unless the record demonstrates (1) a
complete absence of evidence of a vital fact; (2) that the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the
evidence offered to prove a vital fact is no more than a mere scintilla; or (4) that the evidence
conclusively establishes the opposite of the vital fact. See id. at 810. More than a scintilla of
evidence exists when the evidence supporting the finding, as a whole, rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms.,
Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Less than a scintilla of evidence exists when
the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact.
Driskill v. Ford Motor Co., 269 S.W.3d 199, 203 (Tex. App.–Texarkana 2008, no pet.) (citing
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)).
We review legal conclusions de novo and will uphold them if the judgment can be
sustained on any legal theory supported by the evidence. See Brown v. Brown, 236 S.W.3d 343,
348 (Tex. App.–Houston [1st Dist.] 2007, no pet.). The trial court’s conclusions of law are not
subject to challenge for lack of factual sufficiency, but we may review the legal conclusions
drawn from the facts to determine their correctness. Id.
A verdict may be rendered awarding exemplary damages only if the jury was unanimous
in finding liability for and the amount of exemplary damages. TEX. R. CIV. P. 292(b); TEX. CIV.
PRAC. & REM. CODE ANN. § 41.003(d) (West 2015).
Preservation of Error
An appellant must preserve error on a no evidence or a matter of law issue. See Deatley,
246 S.W.3d at 850; United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.–
Houston [14th Dist.] 2000, pet. denied); see also TEX. R. APP. P. 33.1(a)(2). Error preservation
can occur in several different ways. See TEX. R. APP. P. 33.1(a)(1) (preservation can be
accomplished by “request, objection, or motion”); T.O. Stanley Boot Co., Inc. v. Bank of El
Paso, 847 S.W.2d 218, 220 (Tex. 1992); C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768,
786 (Tex. App.–Houston [1st Dist.] 2004, no pet.) (legal sufficiency challenge preserved by
6
motion for directed verdict, motion for judgment notwithstanding the verdict, objection to
submitting issue to jury, motion to disregard jury finding on issue, or motion for new trial); see
also TXU Portfolio Mgmt. Co., L.P. v. FPL Energy, LLC, No. 05-08-01584-CV, 2016 WL
4410252, at *5 (Tex. App.–Dallas Aug. 18, 2016, no pet.). The common characteristic, however,
is that the party seeking to preserve a legal argument for our review usually must invoke a
procedure that apprises the trial court of the argument in a way that calls for the trial court to
decide that issue. See TEX. R. APP. P. 33.1(a) (preservation requires either a ruling or a refusal to
rule); Burbage v. Burbage, 447 S.W.3d 249, 257 (Tex. 2014) (“[T]he objection must apprise the
trial court of the error alleged such that the court has the opportunity to correct the problem.”); In
re S.H.V., 434 S.W.3d 792, 801 (Tex. App.–Dallas 2014, no pet.) (party must “take proper
action to make the trial judge aware of the complaint and obtain a ruling, either express or
implied”).
In the instant case, Redwine filed a pro se written objection to Peckinpaugh’s proposed
judgment. In it, she argued, among other things, that the award of exemplary damages is not
proper or sustainable because the jury was not unanimous. Below her objection, Redwine set
forth verbatim the pertinent language from Texas Civil Practice and Remedies Code, Section
41.003(d). Redwine’s written objection, in substance, amounted to a motion to disregard the
jury’s nonunanimous finding on exemplary damages. Thus, we conclude that Redwine’s timely3
written objection properly apprised the trial court of the issue now before us. See TEX. R. APP. P.
33.1; Deatley, 246 S.W.3d at 850.
Lack of Unanimity
The record in this case reflects that the jury verdict was not unanimous. Despite its
having answered the exemplary damages question, which was predicated on its unanimously
having found that Redwine made multiple defamatory statements, the jury stated in the charge
that its verdict was not unanimous. Specifically, the jury set forth as follows: “Our verdict is not
unanimous. 11 of us have agreed to each and every answer, and signed the certificate below.”
As a result, the trial court polled the jury and stated that the result was that only eleven jurors
indicated, by a show of hands, their respective agreement with the verdict.
3
Redwine filed her written objection on April 21, 2016 at 11:56 a.m. The trial court signed its judgment
that same day. The judgment is file marked April 21, 2016 at 2:00 p.m.
7
Peckinpaugh first argues that Redwine bore the burden to object to this conflict in the
verdict since a juror’s failure to sign the verdict is a clerical error, which can be corrected. See
Andres v. Koch, 702 S.W.2d 584, 586 (Tex. 1986). First, the record does not support that a juror
simply forgot to sign the verdict. Rather, the jury expressly sets forth in the charge that the
verdict “is not unanimous” and only was agreed upon by eleven jurors. The trial court confirmed
this fact by polling the jury, and neither party objected to the method by which the jury was
polled. See J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87, 95–96 (Tex. App.–Houston [1st Dist.]
1998, pet denied) (contention that jury was improperly polled can be waived by failure to
object). Moreover, this situation does not amount to a conflicting jury finding, where a party
must object before the jury is discharged to preserve error. See, e.g., Columbia Med. Ctr. of Las
Colinas v. Bush, 122 S.W.3d 835, 861 (Tex. App.–Fort Worth 2003, pet. denied). This is not a
situation in which further jury deliberation was required to resolve the matter. Instead, the issue
of whether an award of exemplary damages is supported by a unanimous verdict is reviewed as a
no evidence issue and can be preserved by a post judgment motion. See Deatley, 246 S.W.3d at
850.
Lastly, Peckinpaugh argues that the verdict was, in fact, unanimous. In support of this
contention, he directs us to the affidavit of Jennifer Nicole Autery, which was filed in the trial
court one day before the trial court signed the judgment. In her affidavit, Autery states, in
pertinent part, as follows:
I was one of the jurors selected for Cause No. XXX-XX-XXXX; Brian Peckinpaugh d/b/a/
National Born Guardians vs. Brinda Redwine d/b/a/ Texas Working Dogs and Ricky Thomas;
369th Judicial District Court in Anderson County, Texas. I was in agreement with the other jurors
in the findings of exemplary damages but I failed to sign the verdict.
Even assuming arguendo that we may consider Autery’s affidavit, 4 the outcome would not
change. As set forth above, a verdict may be rendered awarding exemplary damages only if the
jury was unanimous in finding liability and the amount of exemplary damages. See TEX. R. CIV.
P. 292(b); TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(d). Autery’s affidavit only sets forth
that she was in agreement with the other jurors in finding exemplary damages. She makes no
mention whether she agreed with the other jurors regarding Redwine’s liability for defamation.
4
See, e.g., TEX. R. CIV. P. 327(b).
8
Because Rule 292(b) and Section 41.003(d) require a unanimous jury finding as to both
liability and the amount of exemplary damages, the nonunanimous verdict in this case as to
liability is insufficient as a matter of law to support an award of exemplary damages. See TEX.
R. CIV. P. 292(b); TEX. CIV. PRAC. & REM CODE ANN. § 41.003(d). Accordingly, we hold that
the trial court erred in entering judgment awarding exemplary damages to Peckinpaugh.
Redwine’s second issue is sustained in part.5
EVIDENTIARY SUFFICIENCY - DAMAGES
In her third issue, Redwine argues that the evidence is insufficient to support the award of
past and future reputation damages to Peckinpaugh. In her fourth issue, she contends that the
evidence is insufficient to support the award of damages to Peckinpaugh for past and future lost
income.
As set forth above, an appellant must preserve error before raising an issue of legal or
factual sufficiency on appeal. See Tensor, Inc., 135 S.W.3d at 786 (legal sufficiency challenge
preserved by motion for directed verdict, motion for judgment notwithstanding the verdict,
objection to submitting issue to jury, motion to disregard jury finding on issue, or motion for new
trial); In re C.E.M., 64 S.W.3d 425, 428 (Tex. App.–Houston [1st Dist.] 2000, no pet.)
(including complaint in motion for new trial is only way to preserve factual sufficiency
challenge); see also Burbage, 447 S.W.3d at 257 (objection must apprise trial court of error
alleged such that court has opportunity to correct problem); In re S.H.V., 434 S.W.3d at 801
(party must take proper action to make trial judge aware of complaint and obtain a ruling).
In the instant case, Redwine made no objections to the court’s charge concerning a lack
of evidence supporting the award of past or future reputation damages or damages for past or
future lost income. Furthermore, Redwine filed no post judgment motions, in which she made
any argument pertaining to such damages. Therefore, since Redwine failed to raise this issue to
the trial court, we hold she has failed to preserve such error, if any, for appeal. See Tensor, Inc.,
135 S.W.3d at 786; In re C.E.M., 64 S.W.3d at 428. Redwine’s third and fourth issues are
overruled.
5
As a result of our holding, we do not consider the remainder of Redwine’s second issue, in which she
argues that the award of exemplary damages is improper because the jury failed to make a finding on the issue of
whether Redwine acted with malice. See TEX. R. APP. P. 47.1
9
PREJUDGMENT INTEREST
In her fifth issue, Redwine argues that the trial court’s award of prejudgment interest on
exemplary damages and future damages was erroneous as a matter of law and its award of
prejudgment interest on actual damages was erroneously calculated. Peckinpaugh consents to
the recalculation of prejudgment interest.
Governing Law
Prejudgment interest may not be assessed or recovered on an award of exemplary
damages or an award of future damages. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.007
(West 2015); TEX. FIN. CODE ANN. § 304.1045 (West 2016). Moreover, prejudgment interest is
computed as simple interest and does not compound. See TEX. FIN. CODE ANN. § 304.104 (West
2016). Lastly, prejudgment interest accrues at the earlier of the 180th day after the date the
defendant receives written notice of a claim or the date suit is filed. See id.
Prejudgment Interest Calculation
In its judgment, the trial court set forth that “Plaintiff, BRIAN PECKINPAUGH, is
entitled to prejudgment interest on the damages awarded herein, measured from September 1,
2012, at the rate of 5% per annum, in the sum of $81,750.00 (Eighty One Thousand Seven
Hundred Fifty and No/100 Dollars).” Excluding its award of $250,000.00 in exemplary damages
and $50,002.00 in future damages, the amount of damages upon which prejudgment interest can
be awarded is $245,000.00. Since the record does not contain a written notice of claim,
prejudgment interest is calculated from the date on which suit was filed (November 21, 2012)
until the date of judgment (April 21, 2016). Thus, the amount of time upon which interest is
calculated is 1,247 days or 3.416 years. Therefore, the amount of prejudgment interest that
should have been awarded at 5% per annum is $41,846.00.6
When the trial court errs in calculating the amount of prejudgment interest, the court of
appeals has the authority to reform the judgment. See CDS Enters., Inc. v. Myrad Real Estate,
Inc., No. 14-97-00197-CV, 1999 WL 548226, at *16 (Tex. App.–Houston [14th Dist.] July 29,
1999, no pet.) (op., not designated for publication) (citing GXG, Inc. v. Texacal Oil & Gas, 977
S.W.2d 403, 423 (Tex. App.–Corpus Christi 1998, pet. denied) and H.J. Thywissen Corp. v.
Cron, 781 S.W.2d 682, 687 (Tex. App.–Houston [1st Dist.] 1989, writ denied)). Accordingly,
6
To calculate the amount of prejudgment interest, we multiplied the principal ($245,000) by the interest
rate (0.05) by the amount of time in years (3.416).
10
we will modify the judgment to reflect an award of $41,846.00 in prejudgment interest.
Redwine’s fifth issue is sustained.
CONCLUSION
We have sustained Redwine’s second issue in part. Having done so, we reverse the trial
court’s judgment insofar as it awards exemplary damages to Peckinpaugh and render a judgment
that Peckinpaugh takes nothing in exemplary damages. We also have sustained Redwine’s fifth
issue. Having done so, we modify Paragraph 3 of the trial court’s judgment by deleting the
award of prejudgment interest “in the sum of $81,750.00 (Eighty One Thousand Seven Hundred
Fifty and No/100 Dollars)” and replacing it with an award of prejudgment interest “in the
amount of $41,846.00 (FORTY-ONE THOUSAND EIGHT HUNDRED FORTY-SIX AND
NO/100 DOLLARS).” Having overruled Redwine’s first, third, and fourth issues, and without
the necessity of considering the remainder of her second issue, we affirm the remainder of the
trial court’s judgment as modified.
GREG NEELEY
Justice
Opinion delivered September 20, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
11
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 20, 2017
NO. 12-16-00123-CV
BRINDA REDWINE D/B/A TEXAS WORKING DOGS,
Appellant
V.
BRIAN PECKINPAUGH D/B/A
MONSTER MALAKS/NATURAL BORN GUARDIANS,
Appellee
Appeal from the 369th District Court
of Anderson County, Texas (Tr.Ct.No. XXX-XX-XXXX)
THIS CAUSE came on to be heard on the oral arguments, appellate record
and the briefs filed herein; and the same being inspected, it is the opinion of the Court that there
was error in the judgment regarding exemplary damages awarded to Brian Peckinpaugh d/b/a
Monster Malaks/Natural Born Guardians as entered by the trial court below and that the same
should be reversed and judgment rendered that Brian Peckingpaugh d/b/a Monster
Malaks/Natural Born Guardians takes nothing in exemplary damages, and that a portion of the
trial court’s judgment should be modified and, as modified, is affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be reversed insofar as it awards exemplary damages to Brian
Peckinpaugh d/b/a Monster Malaks/Natural Born Guardians and judgment rendered that Brian
Peckinpaugh d/b/a Monster Malaks/Natural Born Guardians takes nothing in exemplary
damages; that Paragraph 3 of the trial court’s judgment be modified by deleting the award of
prejudgment interest “in the sum of $81,750.00 (Eighty One Thousand Seven Hundred Fifty and
No/100 Dollars)” and replacing it with an award of prejudgment interest “in the amount of
$41,846.00 (FORTY-ONE THOUSAND EIGHT HUNDRED FORTY-SIX AND NO/100
DOLLARS);” the remainder of the trial court’s judgment is affirmed as modified; and that this
decision be certified to the trial court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.