Enzo Investments, LP v. Charles White ( 2015 )

Affirmed in Part; Reversed in Part; Remanded; and Opinion filed May 12,
2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00509-CV
ENZO INVESTMENTS, LP, Appellant
V.
CHARLES WHITE, Appellee
_____________________________
CHARLES WHITE, Cross-Appellant
V.
ENZO INVESTMENTS, LP; IP INVESTMENTS, LLC; AND IP REAL
ESTATE, LLC, Cross-Appellees
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Cause No. 2009-08290
OPINION
In this breach-of-contract case, Charles W. “Bill” White alleged that he
presented Enzo Investments, LP with the opportunity to acquire all of the assets of
a railcar-cleaning business through a “friendly foreclosure.” Enzo and White were
to form a new company, which would then operate a similar business. In exchange
for brokering the deal, White was to receive a $150,000 commission and 10% of
the new company. A jury found that Enzo breached its agreement with White, and
assessed damages of over $1.3 million dollars, but the trial court granted Enzo’s
motion for judgment notwithstanding the verdict on the ground that White’s
business-valuation evidence used the wrong date, and there was no evidence of the
value of White’s share of the new company at the time that he should have
received it. The trial court reduced the damages to award only the amount of the
commission that had not been paid, together with nearly $400,000 in attorney’s
fees. White contends that the trial court erred in failing to award him the damages
assessed by the jury, or alternatively, in failing to grant him equitable relief by
ordering specific performance or imposing a constructive trust. Enzo challenges
the award of attorney’s fees.
White neither introduced legally sufficient business-valuation evidence nor
established his right to equitable relief; thus, we affirm those parts of the judgment.
Because the evidence regarding White’s attorney’s fees is legally insufficient to
support the full amount awarded, we suggest a remittitur of $168,375.00 from the
trial court’s award of $377,567.50. We reverse the trial court’s award of attorney’s
fees, affirm the remainder of the judgment, and remand the case solely for
relitigation of attorney’s fees; however, if the remittitur is timely accepted, we will
modify the trial court’s judgment to change the amount of attorney’s fees awarded
to $209,192.50 and affirm the judgment as modified.
I. BACKGROUND
Business broker Bill White learned in May 2008 that a railcar-cleaning
2
company known as GalCo was insolvent and in default on a $6 million note held
by Royal Bank.1 The security for the note included GalCo’s assets and real
property owned by GalCo’s owner Ken Bigham and by Bigham’s daughter. In
order to avoid foreclosure by the Bank on his family’s individual property, Bigham
wanted to transfer GalCo’s assets through a “friendly foreclosure” with a third
party. White prepared a “Distressed Property Investment Proposal” to interest
investors in purchasing the business. In the proposal, White stated, “The carrot in
the deal is that General Electric has conditionally committed to a $30M contract
with the company subject to a change in ownership/management and the company
making ~$5.1M in capital improvements [short 3-month construction period].”2
The identity of the distressed company is not stated in the proposal.
A. Events Before Enzo’s Breach
On May 20, 2008, a friend referred White to Enzo Investments, LP as a
potential investor. White first met with Enzo’s principal Rami Amir, but White
would not disclose the identity of the distressed business until Amir signed the
“Non-circumvention & business brokerage agreement” that White had prepared.
After Amir signed the agreement, White met with Enzo’s remaining principals,
Ronnie Aliezer and Ohad Yannay, and they decided to proceed with the
acquisition. Two days later, White and Enzo signed a second agreement in which
they stated that Enzo would have the exclusive right to participate in the venture to
acquire GalCo’s assets; that GalCo’s assets would be transferred to a new
company; and that White would receive a $150,000 commission and 10%
ownership in the new company.
1
GalCo is identified in the record as “Galveston Company, LLC AKA GalCo
Environmental Specialists dba GALCO, dba GALCO LLC.”
2
Brackets in original.
3
On May 30, 2008, Enzo and GalCo signed a letter of intent concerning “the
general terms and conditions upon which a new entity to be formed by ENZO
(Purchaser) as agent for the Purchaser is offering to acquire the assets of [GalCo].”
They specified that the new entity would “operate an environmental cleaning
company similar to GalCo,” and that Bigham would receive a substantial
consulting fee for obtaining releases from certain of GalCo’s creditors. The letter
of intent also included a schedule for each step in the acquisition. Under this
timeline, the new company would foreclose on GalCo’s assets in July or August
2008.
In accordance with its agreement with White, Enzo paid White $2,500 as an
advance against his $150,000 commission when the letter of intent was signed;
however, the remaining terms of Enzo’s agreement with White and its letter of
intent with GalCo were not fulfilled. Ten days after signing the letter of intent,
Enzo missed the deadline for delivering a contract to GalCo, but the parties
continued negotiations for another month. This ended when, in the first half of
July, Bigham and White learned that Enzo did not plan to perform a friendly
foreclosure, but instead had bypassed them and was negotiating directly with the
Bank to buy the note and foreclose.
B. Events After Enzo’s Breach
Enzo did participate in another entity’s acquisition of GalCo’s assets, but
this was not done through a friendly foreclosure. Enzo’s principal Yannay
arranged for IP Investments, LLC to purchase the GalCo note from Royal Bank in
September 2008. IP Investments is owned by IP Real Estate, LLC, which is
wholly owned by Israel Pelta; Pelta is not a party to this action. Enzo’s principals
also provided all of the money for purchasing the note, but there are no documents
requiring the money to be repaid. Yannay admitted at trial that the deal was
4
structured this way because Enzo decided “to go around both Mr. Bigham and Mr.
White and try and do this deal directly with the Bank.” Angry at being cut out of
the deal, Bigham caused GalCo to file for bankruptcy protection. As a result, IP
Investments did not foreclose on the property until May or July of 2009.
C. White Sues Enzo, IP Investments, and IP Real Estate
Even before IP Investments foreclosed on GalCo’s property, White sued
Enzo, alleging that Enzo failed to pay White’s entire fee and failed “to tender to
White 10% of the ownership of the new entity formed to acquire Galco’s assets.”
By the time the case proceeded to a jury trial, White had amended his petition to
add IP Investments and IP Real Estate as defendants. Although White raised a
number of additional claims in his pleadings, the only claims that were submitted
to the jury were White’s claims against Enzo for breach of contract, fraud, and
statutory fraud. The jury found Enzo liable under each of the three theories.
The jury was instructed to measure the damages for Enzo’s breach of
contract as “[t]he difference, if any, between the value of the benefits Enzo
Investments, LP promised to provide to Charles W. White under the agreement and
the value of the benefits Charles W. White actually received.” The jury was told to
measure the damages for Enzo’s fraud as “[t]he difference, if any, between the
value of the benefits that Charles W. White actually received and the value the
benefits would have had if they had been as Enzo Investments, LP represented.”
Both questions contained the same instruction about the time at which the
difference in value was to be measured: “The difference in value, if any, of a
benefit shall be determined at the time Charles W. White should have received the
benefit.” In answer to each damage question, the jury assessed damages of
$1,324,000. The parties have consistently treated the damages findings as the sum
of the damages from Enzo’s breach of two contractual obligations: the obligation
5
to pay White a commission of $150,000, and the obligation to convey to White a
10% ownership interest in the company acquiring GalCo’s assets.
D. Challenges to the Evidence of Damages and Attorney’s Fees
Enzo moved for judgment notwithstanding the verdict (“JNOV”), arguing
that there was no evidence that White was entitled to anything more than $147,500,
which was the amount of the unpaid commission. As for White’s promised 10%
ownership of the new company, Enzo pointed out that White’s expert used
valuation dates in November 2010. Enzo argued that White used the wrong
valuation date, and that there was no evidence of the company’s value in 2008.
The trial court granted the motion, and awarded White actual damages of $147,500
on his contract claim, together with attorney’s fees of nearly $378,000.
Enzo filed a post-judgment motion in which it challenged the award of
attorney’s fees and asked the trial court to order a new trial of the issue, to modify
the judgment, or to suggest a remittitur. The trial court denied the motion, and
Enzo brought this appeal.
White similarly filed a motion in which he asked the trial court to reconsider
the JNOV, or in the alternative, to modify the judgment to either (1) order specific
performance of Enzo’s obligation to convey 10% of IP Investments to him, or
(2) impose a constructive trust in White’s favor on an undivided 10% interest in
the IP entities’ assets. The trial court denied this motion as well, and White filed
this cross-appeal.3
3
In response to our inquiry as to whether the IP entities intended to file a brief in
response to cross-appellant White’s brief, the IP entities stated that there was no need for them to
do so because White did not appeal the take-nothing judgment against them, and thus, we lacked
jurisdiction over them. This is incorrect. White’s appeal of the final judgment confers
jurisdiction on this court over all of the parties to the judgment. See TEX. R. APP. P. 25.1(b)
(“The filing of a notice of appeal by any party invokes the appellate court’s jurisdiction over all
parties to the trial court’s judgment or order appealed from.”). The IP entities are parties to the
6
II. WHITE’S CHALLENGE TO THE JNOV
In his first issue, White contends that the trial court erred in granting Enzo’s
JNOV motion regarding damages. We review a JNOV under the legal-sufficiency
standard, crediting evidence supporting the verdict if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not. See City of
Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). The evidence is legally
sufficient if it would enable reasonable and fair-minded people to reach the
challenged verdict. See id. at 827.
We measure the sufficiency of the evidence against the relevant part of the
jury charge, where, as here, there has been no objection to it. Romero v. KPH
Consol., Inc., 166 S.W.3d 212, 221 (Tex. 2005). Here, the jury was instructed to
measure the damages for Enzo’s breach of contract as the difference between the
value of the benefits Enzo promised to provide to White under the agreement and
the value of the benefits White actually received, measured as of the time that
White should have received the benefit.
Some parts of this calculation are simple. Regarding the commission, the
equation is straightforward: it is undisputed that Enzo promised to pay White
$150,000, but only paid him $2,500, and that the difference between these two
values is $147,000. This component of the damages award is not contested on
appeal, and we do not address it further.
Regarding any other component of damages, one part of the equation also is
judgment and they are adverse to White; thus, they are, by definition, appellees. See TEX. R.
APP. P. 3.1(c). Despite the IP entities’ statement that they would not file a brief, they addressed
the merits of White’s cross-appeal in their response to our inquiry, and additionally appear to
have adopted Enzo’s cross-appellee’s brief. We accordingly treat the IP entities’ response to our
inquiry as their own cross-appellees’ brief, and treat Enzo’s cross-appellee’s brief as a brief on
behalf of all of the defendants.
7
undisputed: because White received nothing else from Enzo, the value of the
benefit he received is zero. Thus, after assessing damages for the unpaid
commission, the jury had to determine three things: (a) what other benefits did
Enzo promise to provide to White under the agreement, (b) when should White
have received that benefit, and (c) what was the value of the benefit at the time
White should have received it. We address each in turn.
A. Enzo promised to provide White a 10% ownership interest in the new
company that would acquire GalCo’s assets and operate a similar
business.
The only agreements executed both by White and by Enzo or one of its
principals are the “Non-circumvention & business brokerage agreement” of May
20, 2008 and the “Agreement” of May 22, 2008; we will refer to these as “the First
Agreement” and “the Second Agreement.”
The First Agreement provided as follows:
Rami Amir hereby acknowledges receipt of the Safe-Clean Industrial
business acquisition proposal from Charles W. White and agrees to
coordinate all efforts to obtain an ownership interest in the underlying
distressed business through White . . . . The name and address of the
distressed business slated for acquisition will be identified in Exhibit
A which will be attached hereto and made a part hereof for all
purposed [sic] upon execution of this agreement by both parties.
....
Exhibit A
The friendly foreclosure acquisition company is GalCo . . . .
Other documents prepared by White show that “Safe-Clean Industrial” was the
name he frequently used to refer to the unnamed corporation that he expected
would be formed to hold GalCo’s assets. Although there is no document titled
“Safe-Clean Industrial business acquisition proposal,” it is undisputed that the
document referred to is the “Distressed Property Investment Proposal” prepared by
8
White for potential investors. In that proposal, White stated that he was “putting
together a short-fuse investment deal to acquire a distressed industrial business.”
He further stated, “The carrot in the deal is that General Electric has conditionally
committed to a $30M contract with the company subject to a change in
ownership/management and the company making ~$5.1M in capital improvements
[short 3-month construction period].”4
The Second Agreement provided as follows:
[White] is arranging for investor capital in order to acquire
[GalCo]. GalCo’s assets will be transferred to a new corporation to be
named that will be formed to operate the business. The new company
will operate an environmental cleaning company similar to GalCo.
....
White to receive 10% ownership in Safe-Clean Industrial in the form
of Common Stock . . . . No dividends or other distributions shall be
payable to the common stockholder until the preferred shareholder has
first received complete repayment of its equity capital contribution.5
Thus, Enzo promised that White would “coordinate all efforts to obtain an
ownership interest” in the “friendly foreclosure acquisition company” known as
GalCo. In return, Enzo would provide to White 10% of the ownership of a new
company that would own GalCo’s assets and operate a similar business.
On appeal, White asserts that “the contract also contemplated” that (1) Enzo
would invest $5.1 million to make improvements to the facility that would be
necessary to obtain General Electric’s business; and (2) White would manage the
new company “during that re-development process,” which was expected to take
about two years. But not everything that was contemplated was promised.
4
Brackets in original.
5
White also was to have 10% of the ownership of “other G.E. Environmental projects to
follow,” together with an option to purchase an additional 5% of “each following project.”
Because there were no such projects, we do not consider this provision further.
9
Regarding the extent of Enzo’s future investment, White cites evidence that the
parties knew that General Electric would consider contracting with the new
company if the new company made certain capital improvements, but this is not
evidence that Enzo promised White that it would fund the improvements. As for
White’s management of the new company, it is undisputed that White drafted a
contract that included the provision, “White will be a preferred candidate for the
position of CEO / Operations Manager for [the new company] during the initial 2-3
years of operations.” (emphasis added). Enzo, however, required that provision to
be removed. It does not appear in the contract with White that Enzo actually
signed, and we cannot rewrite the parties’ contract to insert provisions that they
could have included. Hernandez v. Abraham, Watkins, Nichols, Sorrels & Friend,
451 S.W.3d 58, 72 (Tex. App.—Houston [14th Dist.] 2014, pet. filed).
In the language of the jury charge, and leaving aside the commission, the
only “benefit” that Enzo “promised to provide to [White] under the agreement”
was a 10% ownership interest in the new company that acquired GalCo’s assets
and operated a similar business. But, before we turn to the valuation evidence, we
must examine the evidence about when White “should have received” the
ownership interest if Enzo had complied with the agreement. Only then will we
know when the promised benefit’s value must be measured.
B. There is no evidence that if Enzo had complied with its agreement, then
the date on which White should have received a 10% ownership interest
in the new company was later than September 2008.
To determine when White “should have received” the ownership interest in
the new company, we look to the evidence to see when GalCo’s assets would have
been transferred to the new company if Enzo had not breached the contract.
Before Enzo breached the contract, Enzo and GalCo signed a letter of intent
concerning “the general terms and conditions upon which a new entity to be
10
formed by ENZO (Purchaser) as agent for the Purchaser is offering to acquire the
assets of [GalCo].” The letter of intent included the following schedule for the
acquisition:
1. Enzo and GalCo were to execute the letter of intent by May 30, 2008.
2. Within ten days after executing the letter of intent, i.e., by June 9,
2008, Enzo was to deliver a purchase contract to GalCo.
3. Within three business days after the purchase contract was delivered,
i.e., by June 12, 2008, the parties were to execute the purchase
contract.
4. Not later than forty-five days after the effective date of the purchase
contract, i.e., by July 27, 2008, Enzo or the new company was to
purchase the note from Royal Bank. The parties referred to this event
as “Preclosing.” Upon Preclosing, Bigham was to turn GalCo’s
operations over to Enzo or the new company.
5. Enzo or the new company would then schedule the foreclosure for the
first available constable’s sales date after the purchase of the note, and
the new company would purchase GalCo’s assets at the foreclosure
sale. The parties referred to this as “Closing.”
6. The parties agreed that Enzo would “make every effort to Preclose
and Close as soon as possible.”
In most instances, the parties to the letter of intent do not identify which acts were
to be performed by Enzo and which were to be performed by the new company
that would act as its agent, but in any event, the letter of intent provided that before
the foreclosure, Enzo’s interests in the agreement would be conveyed to the entity
of Enzo’s choice. Thus, if Enzo had adhered to the schedule in the letter of intent,
11
the new company would have acquired GalCo’s assets and operations by the end of
July or August 2008.
But there were delays, some of which ostensibly were associated with
attempts to obtain a commitment to a future contract between the new company
and General Electric. The letter of intent contained the following provisions
related to General Electric:
1. “Upon signing this Letter of Intent, [GalCo] will immediately
introduce [Enzo] to Royal Bank, GE Rail Services, and all existing
GalCo customers and facilitate contract talks with the new owner.”
2. The “Assets to be conveyed” were defined to include “assistance in
securing a completed contract with General Electric, [and] assistance
in securing General Electric’s agreement and concurrence of
construction commencement date for development of the rail yard and
related car inspection/cleaning buildings.”
3. “[Enzo] will provide Bank letters to appropriate parties confirming
[its] ability to fund required capital for (a) purchase funds, (b) Royal
Bank payoff, and (c) G.E. improvements.”
4. “GE contract: Should [Enzo] determine that GE is unwilling to
commit to a contract acceptable to [Enzo], [Enzo] shall have the right
to withdraw from the purchase.”
General Electric, however, was unwilling to begin contract talks until after the
foreclosure. By July 10, 2008, White had asked General Electric at least seven
times to sign a letter of intent, but General Electric did not do so.
One month after the contract between Enzo and GalCo was to have been
executed, their contract negotiations still were ongoing. As late as July 11, 2008,
12
White emailed General Electric, “I have been assured that the GalCo sale will go
through and will continue to do everything within my power to make that come to
pass sooner instead of later.” If GalCo and Enzo had executed a contract in
accordance with the letter of intent at that time, then the foreclosure date would
have been pushed back by a month, to August or September 2008. If GalCo and
Enzo had executed a purchase contract containing terms that were not in
accordance with the letter of intent, then the terms of the purchase contract would
have prevailed to the extent of any conflict. By July 16, 2008, however, White had
been informed that Enzo was no longer negotiating with Bigham to acquire
GalCo’s assets, and White’s agreement with Enzo was terminated. Consequently,
the parties never agreed to a date later than September 2008 for the new company
to acquire GalCo’s assets and operations.
On appeal, White admits that “it is reasonable to infer that if Enzo had dealt
forthrightly with GalCo, it would have acquired GalCo’s assets through the
friendly foreclosure process in late July or August 2008.” White argues, however,
that the jury reasonably could have determined that it would be two additional
years before White would have “received the benefits Enzo promised him,”
because he contends that the promised benefits included (1) Enzo’s investment of
$5.1 in capital improvements, and (2) White’s management of the company for
two years. As previously discussed, however, these were not benefits that Enzo
promised to provide to White under their agreement.
These premises also fail to support an inference that the date on which White
“should have received” the benefit that Enzo promised to provide him did not
arrive until late 2010—more than two years after the new company should have
acquired GalCo’s assets and begun operating a similar business. For example,
even if White’s agreement with Enzo had incorporated the references in White’s
13
business proposal to the improvements needed to secure General Electric’s
business, the proposed improvements were to have been made within three months.
Thus, even if the foreclosure on GalCo’s assets had been delayed until September
2008, the improvements should have been completed in December 2008, not in
November 2010. As for White’s assertions about managing the new company,
even in the rejected draft agreement, White’s compensation for managing the
company would have been a salary, not a percentage of the company. White does
not contend on appeal that the damages assessed by the jury include a salary that
he would have received for managing the company; he argues only that such a
provision affects the time at which the value of the company should be determined.
The jury, however, was instructed to measure the value of the promised benefit at
the time that White should have received it, and White does not contend that the
agreement permitted Enzo to refuse to convey an ownership interest in the new
company to him until after he had finished managing the company for two years.
To the contrary, White maintained both at trial and on appeal that the new
company was to be “formed” by Enzo and White, and at trial, he denied that his
promised 10% ownership interest “cover[ed] anything besides Enzo’s acquisition
of the GalCo business and assets.”
White also identifies various times when Enzo “could still have fully
complied with the Agreement,” but we must measure the sufficiency of the
evidence in accordance with the jury charge. Given the instructions in the charge,
we must determine whether there is legally sufficient evidence of the value of a
10% interest in the new company measured at the time when White “should have
received” it if Enzo had complied with the agreement, not the ownership interest’s
value at a later time when, despite the delays caused by Enzo’s breach of the
agreement, Enzo “could still have” conveyed the ownership interest.
14
In sum, the jury could have concluded that White should have received a
10% interest in the new company as early as June 2008 or as late as September
2008, but in the language of the charge, there is no evidence that the date on which
White “should have received the benefit” that Enzo “promised to provide” to him
under the agreement was later than September 2008.
C. There is no evidence of the value of the promised ownership interest in
the new company at the time White should have received it.
Although the jury was required to determine the value of the benefit that
Enzo promised to provide to White under the agreement, determined as of the time
that White should have received it, White introduced evidence of the value of “the
benefit’s benefits,” that is, the benefits he would have received in 2010 if he had
owned 10% of the new company at that time. As White’s expert phrased it, “In
2010 we are seeing the results of the investors having equity.”
To see why this is the answer to the wrong question, let us look at White’s
damage model and the events on which it is based. After the breach, Enzo’s
principals funded IP Investments’ purchase of the note held by Royal Bank and
secured by GalCo’s assets. Bigham reacted to this by causing GalCo to file for
bankruptcy protection, thereby delaying the foreclosure until the summer of 2009.
From September 2008 onwards, Enzo’s principals helped IP Investments acquire
GalCo’s assets and run its operations by “loaning” money to the IP entities, paying
expenses on the companies’ behalf, or funding improvements to the real property
formerly owned by GalCo. White’s valuation expert Jeffery Compton opined that
all of these monies were really capital contributions in IP Investment. Then, on
November 16, 2010, Enzo’s principals signed documents for a loan of
approximately $8 million. After paying closing costs, prepaying interest, and
putting a small fraction of the money into IP Investments, $7.35 million of the
$8 million loan was paid to Enzo’s principals. Compton characterized this
15
payment as a return of capital to the investors, and he reasoned that if White had
owned 10% of IP Investments at that time, then 10% of that amount would have
been distributed to him. Compton therefore concluded that in November 2010, the
value of the benefit that White would have received from his ownership interest
was $735,000.
This was only one component of the damages White sought. Compton next
testified about the amount of equity that would have remained in IP Investments
after this return of capital. According to an appraisal performed in connection with
the $8 million loan, IP Investments’ real property had a value of approximately
$11.2 million on November 1, 2010. To this figure, Compton added the value of
other assets that IP Investments owned in November 2010, and calculated that IP
Investments’ total value at that time was approximately $11.7 million. From this
figure, Compton subtracted the $7.35 million payment to Enzo’s principals, and
concluded that after the return of capital, there was still $4.39 million in equity in
the company. According to Compton, if White had owned 10% of the company at
that time, then the value of his ownership interest after the return of capital was
$439,000.
White accordingly argued to the jury that the value of the benefit Enzo
“promised to provide to [White] under the agreement,” measured at the time that
White should have received it, was the sum of (a) a $735,000 payment for “return
of capital,” (b) $439,000 in “residual equity, and (c) the $150,000 commission—a
total of $1,324,000. This is exactly the amount that the jury assessed.6
In its agreement with White, however, Enzo did not “promise to provide”
6
The damages question associated with the fraud findings similarly required the value of
a benefit to be measured at the time that White should have received it. White’s attorney stated,
“I am just going to tell you it is the same elements. It is the exact same element[s] and it [sic] the
same calculation.”
16
White a return of capital, a distribution, or residual equity in 2010. Enzo did not
even promise that the company still would be in existence in 2010. The only
things that Enzo promised that White would receive were his commission and a
10% ownership interest in the company that acquired GalCo’s assets and operated
a similar business.
White should have received the ownership interest when the new company
foreclosed on GalCo’s assets. Before that time, the new company was first an
empty shell that owned nothing, and then, when it acquired the note from the Bank,
it was a company that owned a GalCo liability, not a GalCo asset. The value of
White’s ownership interest was not be measured at these times, because he was not
promised an ownership interest in an empty shell or in a company that owned a
GalCo liability. But once the new company acquired an ownership interest in
GalCo’s assets, nothing in Enzo’s agreement with White authorized Enzo to delay
performance of its contractual obligation to convey 10% of the company to White.
If Enzo had complied with its agreement with White, then the new company
would have acquired GalCo’s assets and operations through a friendly foreclosure
sometime between June 2008 (if Enzo had been able to expedite matters in
accordance with its stated intent to “make every effort to Preclose and Close as
soon as possible”) and September 2008. There is no evidence that, absent Enzo’s
breach, the new company would have acquired GalCo’s assets any later than
September 2008. Thus, under the agreement, the value of White’s promised
ownership interest at the time he should have received it was the value of a 10%
interest in the new company sometime between June 2008 and September 2008.
In post-judgment motions and on appeal, White argued that the real estate
appraisal performed on November 1, 2010 supports an inference of some amount
of damages from Enzo’s failure to convey an ownership interest in the new
17
company to him. He pointed out that the appraiser testified that the real property
would have been appraised at the same value for the preceding eighteen months,
minus the amounts that were expended for capital improvements during that time.
White accordingly reasoned that the jury could have taken the appraised value of
the real estate on November 1, 2010; subtracted the amounts expended for capital
improvements during the preceding eighteen months to arrive at the value of IP
Investments’ real estate in May 2009; and inferred that the value of White’s 10%
interest in the new company would have been 10% of that figure. We express no
opinion about whether this method would have supported an inference about the
value of White’s promised 10% interest in the new company in May 2009, because
as previously discussed, there is no evidence that White should have received the
ownership interest later than September 2008.
We conclude that the trial court did not err in granting judgment
notwithstanding the verdict. We therefore overrule this issue.
III. WHITE’S CHALLENGE TO THE DENIAL OF EQUITABLE RELIEF
In his second issue, White argues that if the evidence is legally insufficient
to support an award of monetary damages for the value of his promised ownership
interest in the new company, then the trial court erred in refusing White’s requests
for the alternative remedies of specific performance or imposition of a constructive
trust on 10% of the IP entities’ assets. White made these requests to the trial court
in his motion to modify the judgment, and we review the trial court’s ruling for
abuse of discretion. See Kamat v. Prakash, 420 S.W.3d 890, 905 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (applying the abuse-of-discretion standard
when reviewing the trial court’s ruling on a motion to modify); see also Wilz v.
Flournoy, 228 S.W.3d 674, 677 (Tex. 2007) (per curiam) (reviewing the
imposition of a constructive trust under the abuse-of-discretion standard); Chevron
18
Phillips Chem. Co. LP v. Kingwood Crossroads, L.P., 346 S.W.3d 37, 61 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied) (applying the same standard when
reviewing a trial court’s ruling on a request for specific performance). For several
reasons, we conclude that the trial court did not abuse its discretion by refusing to
order specific performance or to impose a constructive trust.
As the trial court explained at the hearing on White’s motion to modify the
judgment, ordering specific performance or imposing a constructive trust would
“be doing exactly what the [Texas Supreme] Court said you can’t do” in Miga v.
Jensen. 96 S.W.3d 207 (Tex. 2002). Miga concerned the breach of a stock-option
agreement, for which the plaintiff erroneously sought to recover the stock’s value
as of the time of trial, rather than at the time of breach. Id. at 213. The court
explained the importance of using the correct valuation date:
All assets, whether property or cash, fluctuate in value over time. But
the proper way to make [the plaintiff] whole is not by allowing him to
recover the market gain he would have reaped had he received his
stock as promised . . . . The proper way to compensate [the plaintiff]
for his lost investment opportunity is through the award of
interest . . . .
Id. at 217. As the trial court indicated here, to give White a legal or equitable
interest in the company at the time of trial would be to give him more than he had
bargained for: gain without risk. Instead of receiving an interest in a distressed
company, he would reap its benefits years later, after others had invested in capital
improvements and paid the company’s expenses.
The reasoning in Miga applies both to White’s request for specific
performance and to his request for a constructive trust. There are, however,
additional reasons to conclude that the trial court did not abuse its discretion in
denying each of the equitable remedies sought.
19
A. The trial court did not abuse its discretion in denying White’s request
for specific performance.
In seeking specific performance, White asked the trial court to order the
conveyance of 10% of the membership interest in “IP” to him, and he analogized
the membership interests in the IP limited liability companies to stock in a closely-
held corporation. Courts generally will not order specific enforcement of a
contract concerning personal property unless a remedy at law is inadequate. See
Am. Apparel Prods., Inc. v. Brabs, Inc., 880 S.W.2d 267, 269 (Tex. App.—
Houston [14th Dist.] 1994, no writ). But if a closely-held corporation’s stock has
no ascertainable market value, a party may seek specific performance to enforce a
stock-purchase agreement. See Miga, 96 S.W.3d at 217 & n.55 (citing Bendalin v.
Delgado, 406 S.W.2d 897 (Tex. 1966)).
White asserts that his valuation expert Jeffery Compton “presented the only
possible means of valuing White’s 10% interest in IP,” and reasons that if this
constituted “no evidence,” then this is a case in which “a closely-held corporation’s
stock has no ascertainable value.” But, both the premise and the reasoning are
flawed. Money damages were available and ascertainable; White simply failed to
introduce legally sufficient evidence of the value of White’s promised 10% interest
in the new company as of the correct time. Compton testified that he used a
valuation date of November 15, 2010 because that was the date White’s attorney
wanted Compton to use, and that White’s attorney could have picked any valuation
date. As to whether the market value of White’s promised interest in the new
company was ascertainable, Compton explained that he did not address the
marketability of White’s promised share of the company because he was not
testifying about a “conclusion” of value, but instead was testifying about a
“calculation” of value. He explained that this approach did not require him to take
the marketability of a limited share of the company into account, because he
20
instead calculated the value of “the entire entity,” and “[a]s to marketability[,]
when you are looking at the entire entity[,] in particular when it has real estate like
this[,] selling real estate usually can occur in a really short period of time . . . .”
Thus, the record shows that White chose to present a calculation of the value
of IP Investment as a whole in November 2010. From this evidence, it is not
possible to infer that White’s promised 10% interest in the new company would
have had no ascertainable value in the period from June 2008 to September 2008.
B. The trial court did not abuse its discretion in denying White’s request
for a constructive trust.
In connection with his request for a constructive trust, White relies on the
Texas Supreme Court’s statement that a constructive trust is available “wherever it
is necessary for the obtaining of complete justice, although the law may also give
the remedy of damages against the wrong-doer.” Fitz-Gerald v. Hull, 150 Tex. 39,
51, 237 S.W.2d 256, 263 (1951). But to say that a remedy may be available is not
to say that it is required. There are limits. See KCM Fin. LLC v. Bradshaw, No.
13-0199, 2015 WL 1029652, at *13 (Tex. Mar. 6, 2015). “A constructive trust is
not merely a vehicle for collecting assets as a form of damages.” Id., 2015 WL
1029652, at *14. And here, a constructive trust is not “necessary for the obtaining
of complete justice.” As in Miga, the way to make White whole was through
monetary damages and interest, and these were available to him at trial. Equity
does not require the imposition of a constructive trust simply because White failed
to meet his burden of proof of monetary damages. To hold otherwise would be to
place White in a better position than he would have occupied if he had met his
burden of proof.
This is not the only problem. As the Texas Supreme Court recently stated,
“Definitive, designated property, wrongfully withheld from another, is the very
21
heart and soul of the constructive trust theory.” Id., 2015 WL 1029652, at *13
(quoting Wheeler v. Blacklands Prod. Credit Ass’n, 627 S.W.2d 846, 851 (Tex.
App.—Fort Worth 1982, no writ)). But in his motion to modify, White stated that
he sought a constructive trust over the assets of “IP,” without specifying whether
he was referring to IP Real Estate, IP Investments, or both. It makes a difference.
IP Real Estate’s only asset is its ownership of 100% of the membership interests in
the limited liability company, IP Investments. A member in a limited liability
company does not have an interest in any specific property owned by the company.
TEX. BUS. ORGS. CODE ANN. § 101.106(b) (West 2015). In contrast, IP
Investments’ assets include all of the property it owns, whether tangible or
intangible, real or personal. An interest in IP Investments’ assets is an interest in
the company’s property. Given the ambiguity in the relief that White requested in
his motion to modify, we cannot conclude that the trial court abused its discretion
in refusing to impose a constructive trust.
We overrule this issue.
IV. ENZO’S CHALLENGE TO THE AWARD OF ATTORNEY’S FEES
In its own appeal, Enzo challenges the award of attorney’s fees on the
grounds that (a) the evidence is legally insufficient to support the amount of fees
awarded, (b) the amount awarded is excessive, and (c) the prevailing party in a
contract action is not statutorily authorized to recover attorney’s fees from a
limited partnership. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West
2015). We generally address first those issues that could require rendition of
judgment. See TEX. R. APP. P. 43.3. Because only Enzo’s third issue, if
successful, would require us to render a take-nothing judgment on the issue of
attorney’s fees, we begin with that issue.
22
A. Enzo failed to preserve the complaint that the statute does not authorize
recovery of attorney’s fees from a limited partnership.
White sought recovery of attorney’s fees under Texas Civil Practice and
Remedies Code section 38.001(8), which provides that “[a] person may recover
reasonable attorney’s fees from an individual or corporation, in addition to the
amount of a valid claim and costs, if the claim is for . . . an oral or written
contract.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8). On appeal, Enzo
argues that this statute does not authorize a person to recover attorney’s fees
against a partnership. See Fleming & Assocs., LLP v. Barton, 425 S.W.3d 560,
576 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Enzo admits, however,
that it did not raise this argument in the trial court. See TEX. R. APP. P. 33.1(a).
We have held that a party wishing to argue on appeal that a statute does not
authorize an award of attorney’s fees must preserve its complaint in the trial court.
See Office of Attorney Gen. v. Phillips, No. 14-03-01040-CV, 2004 WL 2559934,
at *2 n.1 (Tex. App.—Houston [14th Dist.] Nov. 12, 2004, no pet.) (supp. mem.
op. on reh’g). Although Enzo argues that it can raise the complaint for the first
time on appeal because the issue is either an instance of fundamental error or is
jurisdictional, it cites no authorities that have so held. There is authority, however,
for the contrary proposition. See City of Port Isabel v. Shiba, 976 S.W.2d 856,
860–61 (Tex. App.—Corpus Christi 1998, pet. denied) (holding that a complaint
that section 38.001 does not authorize an award of attorney’s fees against a
defendant is neither fundamental error nor jurisdictional, and thus, must be
preserved in the trial court by a timely request, objection, or motion).
We agree with the reasoning of the Thirteenth Court of Appeals in Shiba that
this is neither a complaint of fundamental error nor a jurisdictional matter, and we
continue to follow our own precedent that the complaint must be preserved in the
23
trial court. We overrule this issue.
B. The evidence is legally insufficient to support the amount awarded.
Enzo also argues that, for two reasons, the evidence is legally insufficient to
support the trial court’s award of attorney’s fees. First, he asserts that White failed
to segregate fees for work performed to advance claims for which fees are
recoverable from fees for work performed solely in connection with claims for
which no such award is available. Second, he contends that attorney Perry Zivley
Jr.’s affidavit lacks the specificity that is required when, as here, a party uses the
lodestar method to establish the reasonableness and necessity of the attorney’s fees
he seeks.
1. Attorneys Carrigan and Walker sufficiently segregated
recoverable from non-recoverable fees; attorney Zivley did not.
If any attorney’s fees relate solely to a claim for which such fees are
unrecoverable, the party seeking an award of attorney’s fees must segregate
recoverable from unrecoverable fees. See Tony Gullo Motors I, L.P. v. Chapa, 212
S.W.3d 299, 313 (Tex. 2006). According to Enzo, we must reverse the trial court’s
fee award because “White made no attempt to segregate its attorney’s fees other
than to make an arbitrary statement that approximately 95% of counsels’ time was
devoted to pursuing claims for which fees are recoverable.”
Enzo is partially correct. White’s evidence of attorney’s fees consisted of
the affidavit testimony of Mark Carrigan, Darrin Walker, and Perry Zivley Jr., but
Carrigan and Walker adequately segregated the fees associated with White’s
breach-of-contract claim against Enzo from fees attributable solely to other
defendants or claims.7 Carrigan stated the number of hours spent in performing
7
Because Zivley is the only attorney mentioned in this section of Enzo’s brief, it is not
clear whether Enzo contends that all three attorneys failed to adequately segregate recoverable
24
various tasks to advance White’s breach-of-contract claim against Enzo, and he
attested that he omitted from his affidavit any work he performed solely to advance
a different claim. For each task included in Walker’s fee affidavit, Walker
identified the percentage of time that was attributable to White’s breach-of-
contract claim against Enzo. This is sufficient segregation. See id. at 314 (“[A]n
opinion would have sufficed stating that, for example, 95 percent of their drafting
time would have been necessary even if there had been no fraud claim.”).
Zivley, however, stated, “In my opinion, 95% of my attorney time in this
case was attributable to the prosecution of Plaintiff’s breach of contract claims
against Defendants and/or the response to Defendants’ counterclaims and
affirmative defenses to Plaintiff’s breach of contract claim.” Although White
prevailed in a breach-of-contract claim only against Enzo, Zivley failed to
segregate fees associated with that claim from fees related to contract claims
against IP Investments or IP Real Estate. Zivley also does not identify the
counterclaims to which he refers. It is impossible to tell how much of Zivley’s
work was necessary to the successful prosecution of White’s breach-of-contract
claim against Enzo. Thus, Zivley failed to adequately segregate recoverable from
non-recoverable fees.
2. Zivley’s affidavit lacks the specificity required to prove attorney’s
fees using the lodestar method.
To assess a reasonable amount for attorney’s fees using the lodestar method,
the factfinder “must determine the reasonable hours spent by counsel in the case
and a reasonable hourly rate for such work.” El Apple I, Ltd. v. Olivas, 370
S.W.3d 757, 760 (Tex. 2012). The product of those two numbers is the “lodestar.”
from non-recoverable fees. Because Enzo does not expressly state that this argument is intended
to apply only to Zivley’s affidavit, we have examined each of White’s three attorney affidavits
for evidence of adequate segregation.
25
Id. If necessary, a multiplier may be applied to the lodestar to adjust it up or down
in order to reach a fee that is reasonable under the circumstances. Id. A party who
chooses to use the lodestar method to establish the amount of his reasonable and
necessary attorney’s fees “must provide evidence of the time expended on specific
tasks to enable the fact finder to meaningfully review the fee application.” Long v.
Griffin, 442 S.W.3d 253, 253 (Tex. 2014) (per curiam).
Here, White chose to use the lodestar method to establish the amount of
reasonable and necessary attorney’s fees attributable to the successful prosecution
of his breach-of-contract claim against Enzo; thus, he was required to provide
evidence of the time expended on specific tasks. Enzo concedes that Carrigan and
Walker “arguably provided enough detail to support the work done and time spent
on each task,” but contends that Zivley’s affidavit is insufficiently specific because
he only lists general categories of work without stating the amount of time spent on
specific tasks. We agree.
Zivley attested that he spent a total of 280 hours prosecuting White’s breach-
of-contract claims against Enzo, IP Investments, and IP Real Estate; in defending
against their counterclaims; and in overcoming their affirmative defenses. His
description of the work he performed is as follows:
The specific work I performed in this case includes, but is not limited
to, the following:
a. Reviewed pleadings of the parties.
b. Drafted, revised and reviewed Plaintiff’s pleadings.
c. Reviewed, drafted and revised discovery to Defendants and
discovery responses (including thousands of pages of
documents produced).
d. Prepared for, attended and/or reviewed depositions taken in this
case.
e. Attended hearings before the court.
26
f. Prepared, reviewed and revised responses to multiple Motions
for Summary Judgment filed by Defendants.
g. Numerous meetings with Plaintiff throughout all stages of the
litigation, in preparation for trial testimony and throughout trial.
h. Attended numerous meetings and strategy sessions with co-
counsel in preparation for trial.
i. Researched legal issues relating to the prosecution of the case.
j. Prepared trial and demonstrative exhibits presented in the case.
k. Prepared for and attended mediation.
l. Attended and directly participated in the trial of this case
through direct and cross-examination of witnesses.
m. Participated in the development and review of the court’s
charge.
From this information, it is impossible to evaluate the extent to which Zivley’s
work was reasonable and necessary to the prosecution of White’s breach-of-
contract claim against Enzo.8
White does not dispute that Zivley’s affidavit lacks the specificity required
under the lodestar method. White instead contends that Enzo failed to preserve its
legal-insufficiency complaint in the trial court. He argues in the alternative that we
cannot address the merits of the complaint, but must overrule it because Enzo
failed to request the appropriate relief. We disagree with both assertions.
In support of the contention that Enzo failed to preserve his legal-
8
The total fees awarded also cannot be sustained based on a contingency-fee
arrangement. See Long, 442 S.W.3d at 256 (determining whether a fee award that could not be
sustained under the lodestar method could be sustained as a contingency fee). Zivley attested
that he represented White on a contingent-fee basis, and although he stated that 40% of the gross
recovery would be a reasonable contingent fee, he did not state that this is what their agreement
provided. Of the remaining two attorneys, Mark Carrigan also stated that he worked on a
contingent-fee basis, but he neither stated its terms nor identified any particular percentage as
reasonable, but instead introduced evidence that his reasonable and necessary fees exceeded the
damages awarded to White in the judgment. The third attorney, Darrin Walker, attested that he
is paid a fixed fee of an unstated amount by the other attorneys.
27
insufficiency complaint in the trial court, White cites the general rule of error
preservation set forth in Texas Rule of Appellate Procedure 33.1(a) (providing that
to preserve a complaint for appeal, a party must present the complaint to the trial
court through a timely request, objection, or motion, and must either obtain an
express or implicit ruling from the trial court or must object to the trial court’s
failure to rule). But when an issue is tried without a jury, a complaint that the
evidence is legally or factually insufficient to support the trial court’s finding on
the issue is not required to be raised in the trial court, but instead can be raised for
the first time on appeal. See TEX. R. APP. P. 33.1(d). By agreement of the parties,
the issue of attorney’s fees was decided by the trial court based on affidavits; thus,
Enzo was not required to preserve this complaint in the trial court.
In his alternative argument, White points out that in the prayer for relief in
Enzo’s brief, Enzo asked us to render judgment denying White any award of
attorney’s fees, even though that is not the appropriate remedy. See United Nat’l
Ins. Co. v. AMJ Invs., LLC, 447 S.W.3d 1, 17–18 (Tex. App.—Houston [14th
Dist.] 2014, pet. dism’d by agr.). We disagree, however, with White’s conclusion
that we are foreclosed from reversing the fee award and awarding less relief than
Enzo requested. See TEX. R. APP. P. 43.3(a) (“When reversing a trial court’s
judgment, the court must render the judgment that the trial court should have
rendered, except when . . . a remand is necessary for further proceedings . . . .”);
Advanced Pers. Care, LLC v. Churchill, 437 S.W.3d 41, 49 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (“Although the Buyer has requested rendition rather
than remand, remand is the relief to which it is entitled. We therefore reverse the
trial court’s judgment and remand the case.” (citations omitted)); compare Stevens
v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185, 186 (Tex. 2000) (per curiam) (denying
review where the petitioner raised a complaint for which remand would have been
28
the appropriate remedy, but the petitioner “specifically requested that this Court
not remand for a new trial”) with Garza v. Cantu, 431 S.W.3d 96, 108–10 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied) (sub. op.) (remanding for a new
trial where remand was the appropriate remedy, because although the appellant
asked only for rendition, it “did not adopt a ‘rendition-or-bust’ strategy”).
But this brings us to the question: what is the correct disposition of the
challenge to the award of attorney’s fees, given that the affidavits of both Carrigan
and Walker are legally sufficient?
When the evidence is sufficient to support some of the amount awarded, the
Texas Supreme Court at some times has remanded the case to the intermediate
appellate court to consider suggesting remittitur; at other times, it has remanded the
case to the trial court for a new trial. See Guevara v. Ferrer, 247 S.W.3d 662, 670
(Tex. 2007) (citing Tony Gullo Motors I, L.P., 212 S.W.3d at 310 (remanding to
the court of appeals to consider suggesting remittitur) and Minn. Mining & Mfg.
Co. v. Nishika Ltd., 953 S.W.2d 733, 739–40 (Tex. 1997) (remanding to the trial
court for a new trial)).9 And, where the intermediate appellate court has both
suggested a remittitur of the total fee award and treated the reduced amount as the
sum of separate awards to each of three attorneys, the Texas Supreme Court has
followed the same approach, affirming the appellate court’s decision as to one
attorney, and reversing and remanding the question of another attorney’s
reasonable and necessary fees to the trial court. See City of Laredo v. Montano,
414 S.W.3d 731, 737 (Tex. 2013) (per curiam).
Here, the evidence is legally sufficient to support a total fee award of
9
Although Guevara dealt with medical expenses, the Texas Supreme Court cited Tony
Gullo Motors I, L.P., in which the court analogized an award of attorney’s fees to awards of
medical expenses. See Guevara, 247 S.W.3d at 669–70 (citing Tony Gullo Motors I, L.P., 212
S.W.3d at 314–15).
29
$209,192.50, which is the sum of the specific dollar amounts requested in the
Carrigan and Walker attorney-fee affidavits. This is $168,375.00 less than the
amount awarded by the trial court. We therefore suggest a remittitur of
$168,375.00 from the trial court’s fee award of $377,567.50. If the remittitur is
timely accepted, we will modify the trial court’s judgment to change the amount of
attorney’s fees awarded to $209,192.50. If the remittitur is not accepted, we will
let stand our current judgment reversing the trial court’s award of attorney’s fees
and remanding the case for relitigation of that issue alone.10 See Long, 442 S.W.3d
at 254; AMJ Invs., 447 S.W.3d at 17–18.
Because we have sustained Enzo’s legal-sufficiency challenge to the trial
court’s award of attorney’s fees and suggested a remittitur that would result in a
total attorney-fee award that is not excessive, we do not reach Enzo’s remaining
issue.
V. CONCLUSION
Because White failed to introduce legally sufficient evidence of the value of
his promised share of the business at the time he was to receive it, we conclude that
the trial court did not err in granting judgment notwithstanding the verdict as to
that component of the damages award. In addition, we conclude that the trial court
did not abuse its discretion in denying White’s alternative requests for equitable
relief. We accordingly affirm the portion of the judgment in which the trial court
10
Unlike our sister court in Montano, we do not treat the attorney’s fees awarded by the
trial court as the sum of separate awards to each attorney. See City of Laredo v. Montano, 415
S.W.3d 1, 6 (Tex. App.—San Antonio 2012) (mem. op.), rev’d in part, 414 S.W.3d 731 (Tex.
2013) (per curiam). Here, two of the three attorneys in this case asked the trial court to apply a
multiplier to some or all of the fees, and the amount awarded by the trial court is greater than the
sum of the lodestar amounts to which the attorneys attested. The trial court could have reached
this result by applying a small multiplier to the lodestar fees of all three attorneys, or by applying
a larger multiplier to the sum of the lodestar fees of some combination of two attorneys, or by
applying a still larger multiplier to the lodestar fees of a single attorney.
30
awarded White actual damages in the amount of $147,500.00.
We further hold that the evidence is legally insufficient to support the full
amount of attorney’s fees awarded, but the evidence is legally sufficient to support
a fee award of $209,192.50. We suggest a remittitur of $168,375.00 from the trial
court’s award of $377,567.50. If White files in this Court a remittitur of
$168,375.00 within fifteen days after the issuance of our opinion, we will modify
the judgment to reduce the award of attorney’s fees to $209,192.50 and affirm the
judgment as modified. If the suggested remittitur is not timely filed, we will let
stand our current judgment reversing the award of attorney’s fees, affirming the
remainder of the judgment, and remanding the case for a new trial solely on the
issue of attorney’s fees. See TEX. R. APP. P. 46.3.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Donovan, and Wise.
31