Ellen E. Rhey D/B/A Rhey Properties v. Carolyne Redic and John E. Redic Individually and D/B/A Victory Warriors Drill and Dance Academy and Victory Chapel Ministries

• Court: Court of Appeals of Texas
• Decided: March 20, 2013
• Docket: 08-11-00069-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ ELLEN E. RHEY D/B/A RHEY PROPERTIES, §

Appellant, § No. 08-11-00069-CV

v. § Appeal from

CAROLYNE REDIC AND § 384th District Court JOHN E. REDIC, INDIVIDUALLY AND D/B/A VICTORY WARRIORS DRILL § of El Paso County, Texas AND DANCE ACADEMY, AND VICTORY CHAPEL MINISTRIES, § (TC # 2010-1275)

Appellees. §

OPINION

Ellen Rhey d/b/a Rhey Properties appeals from a money judgment in favor of Carolyn

Redic and John Redic, Individually and d/b/a Victory Warriors Drill and Dance Academy and

d/b/a Victory Chapel Ministries. In portions of the record, Victory Chapel Ministries is

erroneously referred to as Victory Chapel Industries. The court’s charge and the jury’s verdict

reflect the correct name, Victory Chapel Ministries, but the judgment uses the incorrect name.

We therefore reform the judgment to reflect the correct assumed name, Victory Chapel

Ministries and affirm the judgment as reformed.

FACTUAL SUMMARY

At the time of trial, Carolyne and John Redic had been married for forty-four years. The Redics lived in El Paso for a while when John was in the military and when he retired in 1978,

they decided to return to El Paso to begin a ministry. John was ordained in 1979 and Carolyne

became ordained in 2000. John became the pastor of Second Baptist Church in 1979 where he

continued to work until 1988. During that time, Carolyne worked as a youth minister in south El

Paso. In 1988, the Redics and a group of people began Victory Chapel Ministry. Carolyne

described it as an outreach ministry and explained that although they had a congregation, the

focus of the ministry was to address the needs of the community known as the “Devil’s Triangle”

located in Northeast El Paso. Victory Chapel has Sunday services and has several different

ministries including a women’s ministry, drug and alcohol ministry, and a prison ministry. It

also provides food and clothing to needy people through a program known as Abigail Pantry.

Victory Chapel is not a corporation and it does not operate for profit. John filed an assumed

name for Victory Chapel Ministries. In 1995, Carolyne began the ministry known as Victory

Warriors Drill and Dance Academy to strengthen children and families. Victory Warriors serves

children from the age of six through seventeen and the majority of the children are from single

parent families living below the poverty level. It is an after-school program and children are

referred through schools and law enforcement. It provides tutoring for children who require it

and children who are doing well in school can participate in drill, the team leadership program,

or the fine arts department. It also has a program called Court One which allows children to do

community service through Victory Warriors. Victory Warriors is not a corporation and it does

not operate for profit. Project Change El Paso is the fiscal agent for Victory Warriors. Victory

Warriors receives funding from a variety of sources and it has a number of community partners

including the El Paso Sheriff’s Department, the El Paso Police Department, the Victim’s

Council, El Paso Community College, the United States Holocaust Memorial Museum, and

-2- Wounded Warriors. It also has a relationship with three El Paso schools and the El Paso Times.

Victory Chapel and Victory Warriors have been located in a strip mall in northeast

El Paso since 2000. The Redics initially leased two units from Rhey and eventually occupied

five units due to their ministries’ growth. The leases, which were prepared by Rhey, identified

the lessees as John or Carolyne Redic d/b/a Victory Chapel or Victory Warriors. In the latter

part of 2007, the leases were about to expire but the Redics were concerned about the condition

of the premises. They discussed their concerns with both Gordon Schuetz, the property manager,

and Rhey before they signed new leases. The Redics were particularly concerned about the roof.

Schuetz agreed that the roof was the lessor’s responsibility and said it would be fixed. Nothing

was immediately done but in March 2008 Rhey spoke with Carolyne because they had not

signed a new lease. Carolyne discussed their concerns about the roof and asked if she would

repair it. Rhey said that the roof was her responsibility and she would repair it. She also said she

would look into their other concerns about the property. A short time later, Rhey had an

electrician working on the property so the Redics believed that Rhey was going to make the

repairs they had discussed and they executed the new leases in March 2008. Carolyne would not

have signed the leases if Rhey had not promised to fix the roof. The roof was not repaired and

Rhey did not have plans to do so.

One rainy day in July 2008, Carolyne heard the dance instructor and the children

screaming. She ran into the building and saw that water was gushing through the electric outlets

and the lights were “fluttering.” Fearing that someone would get electrocuted, Carolyne made

everyone exit the building. She talked to Schuetz the next day and he said that he was sorry they

had not fixed the roof and he “thought we would be able to hold out.” Two or three days later, it

rained again and flooded additional portions of the buildings. The second rain caused even more

-3- damage than the first. The Redics tried to save what they could, but they lost everything in the

children’s rooms and the pantry, including the food in the freezers because they had to cut the

electricity. Furniture and musical equipment was also damaged. The Redics had to stay out of

the buildings for about five weeks. They attempted to continue with the various programs in

tents but the summer heat eventually forced them to cancel summer camp, the food bank, and a

workshop. They also had to cancel a dance performance at the historic Plaza Theater because

the children had no facilities where they could practice. This resulted in the loss of a grant from

the Museum of Culture and the National Endowment for the Arts. The Redics also had to cancel

prayer services, and consequently, they could not collect offerings. The Redics could not meet

their financial obligations, including the rent on the property, for a period of time in 2008. Rhey

eventually repaired the roof. The Redics filed suit against Rhey for breach of contract, statutory

fraud, common-law fraud, and negligent misrepresentation. Rhey answered and filed a

counterclaim for breach of contract. The jury found in favor of the Redics on their negligent

misrepresentation claims and found that Rhey had committed statutory fraud with respect to

Carolyne, but found there was no common law fraud. The jury found against the Redics and

Rhey on the breach of contract claims. The jury awarded damages to the Redics d/b/a Victory

Warriors and Victory Chapel for expenses and loss of use in the amount of $28,085.25 It

awarded Carolyne damages in the amount of $87,500 for damage to her reputation and awarded

John Redic $50,000 for damage to his reputation. The jury awarded attorney’s fees to the Redics

d/b/a Victory Warriors and Victory Chapel in the total amount of $60,000 for preparation and

trial, and additional amounts in the event of an appeal to the Court of Appeals and the

Texas Supreme Court. The trial court rendered judgment on the verdict. Rhey appeals raising

thirty-eight issues.

-4- LIABILITY FINDINGS

In Issues 1 through 3, Rhey challenges the legal and factual sufficiency of the evidence

supporting the jury’s liability findings.

Standard of Review

On appeal, a legal sufficiency or “no evidence” challenge will be sustained if the party

suffering the adverse decision at trial shows: (1) the complete absence of a vital fact; (2) the

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

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4)

the evidences establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168

S.W.3d 802, 810 (Tex. 2005); Stanley Works v. Wichita Falls Independent School District, 366

S.W.3d 816, 828 (Tex.App.--El Paso 2012, pet. filed). When conducting a legal sufficiency

review, we must view the evidence in the light favorable to the verdict, crediting favorable

evidence if a reasonable fact finder could, and disregarding contrary evidence unless a

reasonable fact finder could not. City of Keller, 168 S.W.3d at 830. The final test for legal

sufficiency must always be whether the evidence at trial would enable reasonable and fair-

minded people to reach the verdict under review. City of Keller, 168 S.W.3d at 827.

When the appellant challenges the factual sufficiency of an adverse finding on which the

other party had the burden of proof, the appellant must demonstrate that there is insufficient

evidence to support the adverse finding. Escalante v. State Office of Risk Management, 355

S.W.3d 341, 345 (Tex.App.--El Paso 2011, no pet.); Texas Property & Casualty Guaranty

Association v. National American Insurance Company, 208 S.W.3d 523, 542 (Tex.App.--Austin

2006, pet. denied). We will consider, weigh, and examine all of the evidence in the record, both

in support of, and contrary to, the finding. Escalante, 355 S.W.3d at 345; Insurance Network of

-5- Texas v. Kloesel, 266 S.W.3d 456, 470 (Tex.App.--Corpus Christi 2008, pet. denied). The jury’s

findings will be set aside only if they are so contrary to the overwhelming weight of the evidence

as to be clearly wrong and manifestly unjust. Escalante, 355 S.W.3d at 345.

Breach of Contract and Common Law Fraud

In her first issue, Rhey attacks the sufficiency of the evidence to support the Redics’

breach of contract theory of liability.1 Similarly, she argues in a portion of Issue 3 that the

evidence is insufficient to prove common law fraud.2 The jury made negative findings on these

two theories of liability and the Redics have not brought a cross-appeal challenging the negative

findings. Consequently, these theories of liability do not form a basis for the judgment. Issue 1

and this portion of Issue 3 are overruled.

Negligent Misrepresentation

In Issue 2, Rhey challenges the sufficiency of the evidence supporting any damages

awarded to either of the Redics for negligent misrepresentation. The elements of a negligent

misrepresentation cause of action are:

1. the defendant made a representation to the plaintiff in the course of defendant’s business or in a transaction in which the defendant had an interest;

2. the defendant supplied false information for the guidance of others;

3. the defendant did not exercise reasonable care or competence in obtaining or communicating the information;

4. the plaintiff justifiably relied on the representation; and

5. the defendant’s negligent misrepresentation proximately caused the plaintiff’s injury.

1 Issue 1 states: “The evidence is legally and factually insufficient to support any damages awarded to either Appellee for the breach of contract claim.” 2 Issue 3 states: “The evidence is legally and factually insufficient to support any damages awarded to Carolyne Redic for a fraud, common law or statutory, cause of action.”

-6- McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.

1999); Miller v. LandAmerica Lawyers Title of El Paso, 362 S.W.3d 842, 845 (Tex.App.--El

Paso 2012, no pet.). The type of false information contemplated in a negligent misrepresentation

case is a misstatement of existing fact, not a promise of future conduct. Allied Vista, Inc. v. Holt,

987 S.W.2d 138, 141 (Tex.App.--Houston [14th Dist.] 1999, pet. denied); Airborne Freight

Corp., Inc. v. C.R. Lee Enterprises, Inc., 847 S.W.2d 289, 294 (Tex.App.--El Paso 1992, writ

denied).

Appellant argues that the evidence is insufficient because Rhey’s representation that she

would repair the roof is nothing more than a promise of future conduct. The Redics respond that

the sufficiency of the evidence must be measured by the jury instruction actually given because

Rhey did not object that it permitted the jury to find a negligent misrepresentation based on a

false promise. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000)(stating that when a jury

instruction is submitted without objection, the sufficiency of the evidence to support the verdict

is measured by that instruction). The trial court submitted Question No. 3 to the jury without

objection:

Did Ellen E. Rhey d/b/a Rhey Properties make a negligent misrepresentation on which Carolyne Redic and John E. Redic, Individually and d/b/a Victory Warriors Drill and Dance Academy and Victory Chapel Ministries justifiably relied?

Negligent misrepresentation occurs when:

(a) a party makes a misrepresentation in the course of his business or in a transaction in which he or her [sic] has a pecuniary interest;

(b) the representation supplies false information for the guidance of others in their business; and

(c) the party making the representation did not exercise reasonable care or competence in obtaining or communicating the information.

Answer ‘Yes’ or ‘No.’

-7- The jury answered “Yes” as to each of the Redics d/b/a Victory Warriors Drill and Dance

Academy and Victory Chapel Ministries. The Redics are correct that the court’s charge did not

instruct the jury that negligent misrepresentation occurs only where the defendant makes a

misstatement of existing fact rather than a promise of future conduct. Rhey did not object to the

charge on this ground. Accordingly, we must measure sufficiency of the evidence by the charge

actually given. There is ample evidence that Rhey represented to the Redics that the roof would

be repaired when she did not intend to do so. We conclude that the evidence is both legally and

factually sufficient to prove that Rhey provided false information to the Redics.

Rhey next argues that the element of reliance was not submitted to the jury but Question

No. 3 asked whether Rhey made a misrepresentation on which the Redics justifiably relied. The

evidence showed that the Redics were concerned about the condition of the property and were

aware that the roof needed to be repaired. The leases expired at the end of 2007 and the Redics

did not want to enter into new leases unless their concerns about the property’s condition were

addressed. Carolyne and John spoke to Rhey and Schuetz and Rhey told Carolyne that she

would repair the roof. When Carolyne saw that work was being done on the property she

believed that Rhey intended to make the repairs and they signed the new leases. Carolyne

specifically testified that she would not have signed the lease if Rhey had not represented to her

that she would fix the roof. This evidence is legally and factually sufficient to support the jury’s

finding that the Redics justifiably relied on Rhey’s representation.

Rhey also contends that the evidence is insufficient to prove causation. It is undisputed

that Rhey did not repair the roof as promised and the property flooded following heavy rains.

This evidence is both legally and factually sufficient to prove that the misrepresentation was the

cause-in-fact of the Redics’ damages. Issue 2 is overruled.

-8- Statutory Fraud

In the remaining portion of Issue 3, Rhey contends that the evidence is insufficient to

support the jury’s findings related to statutory fraud. Citing Section 27.01(a)(1) of the Texas

Business and Commerce Code, Rhey asserts that a statutory fraud claim cannot be based on a

promise to perform a future act. This argument is without merit. Section 27.01 provides that:

(a) Fraud in a transaction involving real estate or stock in a corporation or joint stock company consists of a

(1) false representation of a past or existing material fact, when the false representation is

(A) made to a person for the purpose of inducing that person to enter into a contract; and

(B) relied on by that person in entering into that contract; or

(2) false promise to do an act, when the false promise is

(A) material;

(B) made with the intention of not fulfilling it;

(C) made to a person for the purpose of inducing that person to enter into a contract; and

(D) relied on by that person in entering into that contract.

TEX.BUS.&COMM.CODE ANN. § 27.01(a)(2)(West 2009). While Section 27.01(a)(1) addresses a

false representation of a past or existing material fact, Section 27.01(a)(2) permits a party to base

a statutory fraud act on a false promise to do an act.

Appellant next argues that the jury’s finding of statutory fraud is inconsistent with the

jury’s finding that Rhey complied with the contract. The court’s charge asked the jury in

Question No. 1 to determine whether the Redics and Rhey agreed that Rhey would repair the

roof. The jury found that the parties had such an agreement but they answered “no” to Question

-9- No. 2 which asked whether she failed to comply with the agreement. Rhey asserts that the jury’s

finding that she complied with the agreement is inconsistent with the jury’s finding that she

made the promise to repair the roof with the intention of not fulfilling it. The Redics respond

that the jury’s failure to find a breach of the contract does not equate to an affirmative finding

that she complied with the contract. We agree. The jury’s answer to Question No. 2 represents

only a refusal by the jury to find from a preponderance of the evidence that Rhey breached the

agreement to repair the roof and it means that the Redics failed to carry their burden of proof on

their breach of contract claim. See Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690

(Tex. 1989). The failure to find that Rhey breached the contract is not a finding that she

complied with the contract. Id. Consequently, the non-finding on the breach of contract issue is

not inconsistent with the jury’s finding that she did not intend to fulfill her promise to repair the

roof.

Finally, Rhey contends that there is insufficient evidence to prove that she promised to

repair the roof or she made the promise with the intention of not fulfilling it. The jury was free

to believe Carolyne’s testimony that Rhey told her she would repair the roof. Rhey made this

promise in March 2008 but had not caused the roof repairs to be done prior to the heavy rains

which occurred in July 2008. Immediately after the property flooded, Schuetz apologized and

told Carolyne that, “I thought we would be able to hold out from doing this.” Schuetz admitted

at trial that there were no plans to repair the roof prior to July 2008. This evidence permitted the

jury to draw an inference that Rhey made the promise with the intention of not fulfilling it. We

conclude that the evidence is legally and factually sufficient to support the verdict on statutory

fraud. Issue 3 is overruled.

- 10 - DAMAGES AND ATTORNEY’S FEES

In Issues 4 through 13, Rhey attacks the awards of damages and attorney’s fees.

Expenses, Loss of Use, and Lost Time

In Issues 4, 5, 6, 9, 10, and 11, Rhey first argues that there is no evidence that John or

Carolyne sustained any damages in their individual capacities for expenses sustained in the past,

loss of use, and lost time. She contends that the evidence shows only that damages were instead

sustained by Victory Chapel or Victory Warriors. Rhey makes a related argument in Issues 14

and 15. The evidence at trial established that Victory Chapel and Victory Warriors are not

corporations or separate entities but are assumed business names of the Redics. The Redics filed

suit individually and d/b/a Victory Warriors and Victory Chapel. Rhey’s first argument is

without merit.

Rhey also contends that the Redics cannot recover damages for expenses sustained in the

past, loss of use, or lost time because only actual damages can be recovered in a statutory fraud

case. Section 27.01 provides that a person who commits statutory fraud is liable to the person

defrauded for “actual damages.” TEX.BUS.&COMM.CODE ANN. § 27.01(b). The statute does not

define actual damages, so we look to the common law for guidance. Swinnea v. ERI Consulting

Engineers, Inc., 236 S.W.3d 825, 835-36 (Tex.App.--Tyler 2007), rev’d on other grounds, 318

S.W.3d 867 (Tex. 2010). Actual damages are those damages recoverable under common law.

Arthur Andersen & Company v. Perry Equipment Corporation, 945 S.W.2d 812, 816 (Tex.

1997). At common law, actual damages are either “direct” or “consequential.” Id. Texas

recognizes two measures of direct damages for fraud: the out-of-pocket measure and the benefit-

of-the-bargain measure. Hawkins v. Walker, 233 S.W.3d 380, 391-92 (Tex.App.--Fort Worth

2007, no pet.), citing Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc.,

- 11 - 960 S.W.2d 41, 49 (Tex. 1998). The out-of-pocket measure computes the difference between the

value paid and the value received, while the benefit-of-the-bargain measure computes the

difference between the value as represented and the value received. Hawkins, 233 S.W.3d at

392. The defrauded party is also entitled to recover special damages for other pecuniary losses

proximately caused by the misrepresentation. Id. Rhey’s contention that the measure of

damages is limited to the benefit of the bargain measure is without merit.

Rhey next argues that the evidence is insufficient to support the damages awards because

the evidence is speculative since the Redics relied on “guesstimates” and figures “pulled out of a

hat.” The Redics concede that some of the components of the damage calculation were estimates

but Carolyne had the documents to support the figures. The trier of fact is given broad discretion

to award damages within the range of evidence presented at trial. Powell Electrical Systems, Inc.

v. Hewlett Packard Company, 356 S.W.3d 113, 126 (Tex.App.--Houston [1st Dist.] 2011, no

pet.). Damages must be established with reasonable certainty, not mathematical precision.

O and B Farms, Inc. v. Black, 300 S.W.3d 418, 422 (Tex.App.--Houston [14th Dist.] 2009, pet.

denied); Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 890 (Tex.App.--Dallas 2004,

pet. denied). If the fact of damages has been established, then the inability to calculate the exact

amount of damages is not fatal. O and B Farms, 300 S.W.3d at 422. If the best available

evidence affords a reasonable basis for the jury to calculate damages, then recovery cannot be

denied because the exact amount of damages cannot be ascertained. Id.

The Redics presented evidence regarding the cost of the ministry being closed for a

period of time, the cost of relocating classes, broken and damaged equipment, cleaning expenses,

destroyed food and clothing, excessive electric and water bills attributable to the damage, and the

loss of workshop and performance revenue. The total amount of expenses was $30,601 and the

- 12 - jury awarded a total of $28,085.25 for expenses and loss of use. We conclude that the evidence

of damages was not speculative or a mere “guesstimate” and the Redics established the amount

of damages with reasonable certainty. Issues 4, 5, 6, 9, 10, and 11 are overruled.

Injury to Reputation

In Issues 7 and 12, Rhey maintains that neither of the Redics can recover damages for

injury to reputation because they failed to prove the elements of a defamation claim. Rhey has

not cited any authority in support of her argument that the Redics were required to prove

defamation in order to recover damages for injury to reputation in connection with a fraud claim.

Damages for injury to reputation caused by tortious conduct can be recovered. See Beneficial

Personnel Services of Texas, Inc. v. Rey, 927 S.W.2d 157, 173 (Tex.App.--El Paso 1996),

vacated pursuant to settlement, 938 S.W.2d 717 (Tex. 1997)(holding that damages for injury to

credit reputation recoverable in fraud suit). Issues 7 and 12 are overruled.

Attorney’s Fees

In Issues 8 and 13, Rhey challenges the award of attorney’s fees. Rhey first argues that

the evidence is legally insufficient to support the award because the testimony of the Redics’

expert, Richard Bischoff, was conclusory. Bischoff is an El Paso attorney familiar with

reasonable rates for attorneys in El Paso County. He reviewed the contents of the file, including

the docket sheet, the pleadings, the depositions, and discovery. After considering the difficulty

of the case, the experience, reputation, and experience of counsel, and other factors, Bischoff

offered his expert opinion that a hourly rate of $275 to $325 would be appropriate and reasonable

in El Paso County and that 200 hours would be necessary for prosecution of the case for a total

fee of $55,000 to $65,000. Bischoff’s testimony was not conclusory.

Rhey next contends that attorney’s fees should not have been awarded because the Redics

- 13 - did not recover on their breach of contract claim and attorney’s fees are not available for

negligent misrepresentation. Attorney’s fees are available for statutory fraud under Section

27.01 of the Texas Business and Commerce Code. See TEX.BUS.&COMM.CODE ANN. §

27.01(e). We have already determined that the jury’s findings made with respect to statutory

fraud under Section 27.01(a)(2) are supported by the evidence.

Finally, Rhey maintains that attorney’s fees should not have been awarded because the

Redics have not “incurred” any attorney’s fees. The Redics’ counsel agreed to represent them

for whatever fees were awarded by the jury. Bischoff discussed this type of fee arrangement,

which he referred to as a conditional fee, and he contrasted it with a contingent fee. In his

opinion, counsel was entitled to be awarded attorney’s fees based on a higher hourly rate because

he had accepted the risk that the jury might award zero attorney’s fees. Rhey has not cited any

authority in support of her assertion that attorney’s fees cannot be awarded when an attorney has

this type of arrangement with his clients and we are aware of none. Issues 8 and 13 are

overruled.

STANDING AND CAPACITY TO SUE

In Issues 14 and 15, Rhey complains that John and Carolyne lacked standing or capacity

to sue as individuals because they appeared only as representatives of Victory Chapel and

Victory Warriors. She first argues that Victory Chapel and Victory Warriors are corporations

and the Redics lack standing to sue individually for damages to those corporations.

A plaintiff must have both standing and capacity to bring suit. Austin Nursing Center,

Inc. v. Lovato, 171 S.W.3d 845, 847 (Tex. 2005); Dakil v. Lege, --- S.W.3d ----, 2012 WL

5247300 at *2 (Tex.App.--El Paso 2012, no pet. h.). Standing focuses on whether a party has a

sufficient relationship with the lawsuit so as to have a justiciable interest in the outcome, whereas

- 14 - capacity is a procedural issue addressing the personal qualifications of a party to litigate. Dakil,

2012 WL 5247300 at *1. “A plaintiff has standing when it is personally aggrieved, regardless of

whether it is acting with legal authority; a party has capacity when it has the legal authority to

act, regardless of whether it has a justiciable interest in the controversy.” Dakil, 2012 WL

5247300 at *1, quoting Nootsie, Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659,

661 (Tex. 1996). A challenge to who owns a claim raises the issue of capacity, not standing.

Dakil, 2012 WL 5247300 at *2; Prostok v. Browning, 112 S.W.3d 876, 921 (Tex.App.--Dallas

2003), rev’d in part on other grounds, 165 S.W.3d 336 (Tex. 2005).

Rule 79 requires the petition to state the names of the parties. TEX.R.CIV.P. 79. The

petition reflects on its face that the Redics filed suit individually and d/b/a Victory Chapel and

Victory Warriors. The Redics specifically alleged in the petition that they operate Victory

Warriors and Victory Chapel “as assumed names.” The evidence established that Victory

Chapel and Victory Warriors are not corporate entities, but are the Redics’ assumed business

names. Carolyne testified that Victory Chapel is not a corporation. The Redics filed an assumed

name certificate for Victory Chapel. Likewise, Victory Warriors is not incorporated and the

Redics filed an assumed name certificate for it. Prior to the facts giving rise to this case,

Carolyne began the process of incorporating Victory Warriors but she dropped it because Project

Change El Paso offered to serve as the fiscal agent. The record reflects that John and Carolyne

have standing to sue individually.

Rhey next argues that the Redics’ petition did not allege that they operate Victory

Warriors and Victory Chapel under assumed names. This argument raises the issue of capacity.

See Dakil, 2012 WL 5247300 at *2. As we have already noted, the Redics specifically alleged in

the petition that they operate Victory Warriors and Victory Chapel “as assumed names.”

- 15 - Finally, Rhey points to Carolyne’s testimony that she was appearing at trial in a

representative capacity on behalf of Victory Warriors and Victory Chapel and argues that it

proves the Redics lack capacity to sue individually. During cross-examination, Rhey’s counsel

asked Carolyne whether she was seeking money as an individual and she responded: “I’m here

in my individual capacity representing Victory Warriors Drill and Dance Academy and Victory

Chapel Ministries.” We agree with the Redics that Carolyne’s testimony described the purpose

of her appearance at trial and she did not purport to describe her “capacity” as that term is used

legally. The determination of capacity is made by looking at the pleadings and the relevant and

material evidence. The pleadings and the evidence conclusively established that the Redics

operated Victory Warriors and Victory Chapel as assumed names, and therefore, they had

capacity to sue individually. Issues 14 and 15 are overruled.

EVIDENTIARY RULINGS

In Issues 16 through 30, Rhey challenges several evidentiary rulings. Evidentiary rulings

are committed to the sound discretion of the trial court. Bay Area Healthcare Group, Ltd. v.

McShane, 239 S.W.3d 231, 234 (Tex. 2007). Accordingly, we review a trial court’s evidentiary

determinations under an abuse-of-discretion standard. National Liability and Fire Insurance

Company v. Allen, 15 S.W.3d 525, 527-28 (Tex. 2000). A trial court abuses its discretion

when its decision is arbitrary, unreasonable, and without reference to any guiding rules or

principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Even if the trial court abused

its discretion in admitting certain evidence, reversal is only appropriate if the error was harmful,

i.e., it probably resulted in an improper judgment. Nissan Motor Company, Ltd. v. Armstrong,

145 S.W.3d 131 (Tex. 2004); TEX.R.APP.P. 44.1.

- 16 - Exclusion of Tax Returns

In Issue 16, Rhey contends that the trial court erred by not allowing her to review the

Redics’ tax returns and offer them into evidence. Although the issue seems to indicate that Rhey

is complaining about a discovery ruling and an evidentiary ruling, she has not provided any

briefing on a discovery ruling. Consequently, we will limit our review to the alleged exclusion

of evidence. See TEX.R.APP.P. 38.1(i)(requiring the brief to contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the record).

The Redics filed a motion in limine which the trial court considered prior to the

beginning of trial. The Redics requested that Rhey’s counsel refrain from addressing certain

topics without first approaching the bench so that the admissibility of evidence could be

determined outside of the jury’s presence. The trial court granted the motion in limine on several

topics including the amount of benefits received by John Redic from the Veteran’s

Administration. At this same hearing, Rhey asked the court to address the non-production of

certain documents. Shortly before trial, Rhey served a subpoena duces tecum on the Redics’

counsel requiring him to produce the Redics’ income tax returns and documents related to John

Redic’s military retirement. The Redics objected to both requests on the ground that the

evidence was not relevant to any issue in the case and did not produce them. After hearing the

parties arguments regarding the relevance of the documents, the court noted that it had already

granted the motion in limine on the VA benefits. The court subsequently ruled by stating:

“Well, I grant it as to the income taxes, and as to retirement benefits . . . .” Rhey’s counsel then

asked that the income tax returns be sealed and marked as Court’s Exhibit 1 so they could be

made part of the appellate record.

The court’s ruling is confusing because the issue before the court was whether the Redics

- 17 - should be required to produce the documents. We do not interpret the trial court’s ruling as

indicating that it was granting Rhey’s request to produce the documents because everyone

present seemed to understand that the income tax returns and records related to John’s VA

benefits were not going to be produced. At the same time, the court did not sustain the Redics’

relevance objection or purport to exclude the evidence. Instead, it appears that the court was

refusing to order the Redics produce the income tax returns and records related to John’s VA

benefits. Rhey has not, however, briefed that issue on appeal.

To the extent that the court’s ruling could be construed as granting a motion in limine,

such a ruling does not preserve error. Wyler Industrial Works, Inc. v. Garcia, 999 S.W.2d 494,

511 (Tex.App.--El Paso 1999, no writ). To preserve error concerning the exclusion of evidence,

the complaining party must actually offer the evidence and secure an adverse ruling from the

court. Perez v. Lopez, 74 S.W.3d 60, 66 (Tex.App.--El Paso 2002, no pet.). Rhey did not

preserve the issue presented on appeal.

Even assuming that Rhey preserved the issue, she has failed to show that the trial court

abused its discretion. Once an objection is asserted, the party seeking discovery of income tax

returns has the burden of showing relevance and materiality. In re Sullivan, 214 S.W.3d 622,

624 (Tex.App.--Austin 2006, orig. proceeding); El Centro del Barrio, Inc. v. Barlow, 894

S.W.2d 775, 779 (Tex.App.--San Antonio 1994, orig. proceeding). Federal income tax returns

are not material if the same information can be obtained from another source. In re Sullivan, 214

S.W.3d at 624-25; El Centro del Barrio, 894 S.W.2d at 780.

Rhey argues that the tax returns were admissible to show the capacity of the Redics.

Both of the Redics testified at trial and the assumed name certificates were admitted into

evidence. Rhey has failed to show that the tax returns had information relevant to capacity that

- 18 - she could not have gotten from another source.

Rhey also contends that the income tax returns were relevant to show that the Redics did

not suffer any losses in connection with Victory Chapel or Victory Warriors. Rhey has failed to

show that the tax returns would have shown anything different than the evidence offered at trial

on the subject. The trial court would not have abused its discretion by excluding this evidence.

Issue 16 is overruled.

Expert Testimony on Attorney’s Fees

In Issue 17, Rhey asserts that the trial court erred by admitting the testimony of Richard

Bischoff as an expert witness on attorney’s fees because he was not named as an expert witness

ninety days before the end of the discovery period as required by TEX.R.CIV.P. 195.2(a). The

Redics respond that the trial court correctly determined that the failure to disclose Bischoff as an

expert on the issue of attorney’s fees did not unfairly surprise or prejudice Rhey.

Rule 195.2(a) provides that unless otherwise ordered by the court, a party must designate

experts testifying for a party seeking affirmative relief by the later of two dates: Thirty days

after the request is served or ninety days before the end of the discovery period. A party who

fails to make, amend, or supplement a discovery response in a timely manner may not introduce

in evidence the material or information that was not timely disclosed, unless the court finds that

(1) there was good cause for the failure to timely disclose or (2) the failure will not unfairly

surprise or prejudice the other parties. TEX.R.CIV.P. 193.6(a). The burden of establishing good

cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the

evidence or call the witness. TEX.R.CIV.P. 193.6(b). While the trial court has discretion to

determine whether a party has met its burden under this rule, a finding of good cause or of the

lack of unfair surprise or unfair prejudice must be supported by the record. Id.; Morales v. Rice,

- 19 - --- S.W.3d ----, 2012 WL 2499004 at *8 (Tex.App.--El Paso 2012, no pet.); Texas Municipal

League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 817 (Tex.App.--Fort Worth

2006, no pet.).

The Redics included a request for attorney’s fees in their original petition filed on April

8, 2010. The trial in this case began on September 10, 2010, only five months after the Redics

filed suit. The Redics disclosed the witness on August 10, 2010, thirty-one days before trial

commenced. Under these circumstances, the trial court did not abuse its discretion by finding a

lack of unfair surprise or unfair prejudice. See City of El Paso v. Parsons, 353 S.W.3d 215, 229

(Tex.App.--El Paso 2011, no pet.)(in action brought under the Whistleblower Act, trial court did

not abuse its discretion by implicitly finding good cause and no unfair surprise under Rule 193.6

where plaintiff filed application for attorney’s fees and costs after jury verdict was received; the

original petition showed that attorney’s fees were being sought as part of the relief requested, and

the court, to cure any alleged surprise, provided parties six weeks to conduct additional discovery

before hearing on the plaintiff’s application for attorney fees); Beard Family Partnership v.

Commercial Indemnity Insurance Company, 116 S.W.3d 839, 850 (Tex.App.--Austin 2003, no

pet.)(admitting expert testimony on attorney fees despite untimely designation of expert until

thirty days before trial was not abuse of discretion; the trial court found good cause to allow the

expert to testify because the failure to timely designate was because of inadvertence of counsel,

and there was no unfair surprise or prejudice because the surety’s pleadings contained the request

for attorney fees from the lawsuit’s inception). Issue 17 is overruled.

Carolyne’s Testimony about Activities of Victory Warriors

In Issue 18, Rhey argues that the trial court erred by admitting Carolyne’s testimony

about the activities of Victory Warriors. The Redics respond that the issue is not preserved. We

- 20 - agree. To preserve this issue for review on appeal, Rhey was required to make the trial court

aware of her complaint by making a timely and specific objection. See TEX.R.APP.P. 33.1(a).

Carolyne testified at length about the activities of Victory Warriors, but Rhey made only two

relevance objections during the course of that testimony and she did not obtain a running

objection. Consequently, she failed to preserve her complaint. See Low v. Henry, 221 S.W.3d

609, 619 (Tex. 2007)(in a hearing on motions for sanctions against attorney arising out of

medical negligence case, attorney waived, by failing to establish a running exception, any

objection to relevance of testimony regarding attorney’s conduct in other cases; attorney

requested a running objection as to relevance without specifying what he intended the objection

to cover, trial court overruled the objection and instructed counsel to make objections as

necessary, and counsel thereafter made occasional objections but failed to object to much

testimony about attorney’s conduct in other cases). Issue 18 is overruled.

Admission of Program Documenting John as Pastor

Issue 19 concerns the admission of Plaintiff’s Exhibit 1, a written program memorializing

the installation of John Redic as pastor of Victory Chapel. Rhey contends that the trial court

erred by overruling her relevance objection.

Evidence is relevant, and therefore admissible, if it has any tendency to “make the

existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” TEX.R.EVID. 401, 402; Service

Corporation International v. Guerra, 348 S.W.3d 221, 237-38 (Tex. 2011). To determine

relevancy, the court must look at the purpose for offering the evidence. Service Lloyds

Insurance Company v. Martin, 855 S.W.2d 816, 822 (Tex.App.--Dallas 1993, no writ). There

must be some logical connection either directly or by inference between the fact offered and the

- 21 - fact to be proved. Service Lloyds, 855 S.W.2d at 822.

Plaintiff’s Exhibit 1 was part of a series of exhibits and testimony showing the Redics’

background and their activities at the premises prior to the flooding. When Rhey objected to the

exhibit as being collateral and irrelevant, the Redics specifically offered it to rebut assertions

made by Rhey’s counsel during opening argument that the Redics were operating Victory Chapel

and Victory Warriors in a fraudulent manner and as part of a ruse to obtain money from the

community for personal benefit. We conclude that the trial court did not abuse its discretion by

finding this evidence relevant to rebut the defensive theory raised during open argument. Even if

the trial court abused its discretion by admitting the program, there is no evidence it resulted in

the rendition of an improper judgment. TEX.R.APP.P. 44.1. Issue 19 is overruled.

Admission of Photographs

In Issues 20 through 26, Rhey complains about the admission of seven photographs

depicting the interior and exterior of the premises. One of those photographs, Plaintiffs’ Exhibit

3C, also depicts children seated in a classroom. The Redics respond that Rhey waived her

complaints regarding Exhibits 3E, 3H, 3I, and 3J because she failed to object. We agree. In fact,

our review of the record shows that Rhey expressly stated that she did not object to the

admission of Exhibits 3E, 3H, 3I, and 3J. See TEX.R.APP.P. 33.1(a)(1). Accordingly, Issues 22,

24, 25, and 26 are overruled.

Rhey did raise a relevance objection to Exhibits 3C, 3D, and 3G. As noted above,

Exhibit 3C depicts a classroom with several children seated at tables. Carolyne explained that

this room also contains a galley where snacks are prepared. Exhibit 3D is a photograph of two

large metal shelving units containing dozens of canned goods as well as cereal and other boxed

food items. Carolyne testified that the photograph shows part of the food bank. Exhibit 3G is a

- 22 - close-up of what appears to be a large painting or mural on a wall in the chapel. The

photographs depicted the appearance of the premises prior to the flooding and showed how the

premises were being used by the Redics. These photographs are relevant because they provide

the jury with background evidence. Further, the photographs of the classroom and food pantry

are relevant to the issue of damages as part of the Redics’ losses was based on the expense of

relocating classes and the loss of food. The trial court did not abuse its discretion by admitting

Exhibits 3C, 3D, and 3G. Issues 20, 21, and 23 are overruled.

The PowerPoint Presentation

In Issue 27, Rhey argues that the trial court abused its discretion by admitting Plaintiffs’

Exhibit 14 over her relevance objection. Exhibit 14 is a PowerPoint presentation showing the

history and operations of Victory Warriors. The trial court addressed the admissibility of Exhibit

14 outside of the presence of the jury. The Redics’ counsel began by explaining the purpose of

Exhibit 14. Counsel stated that one of the central issues was how the misrepresentation and

breach of contract impacted the operations of Victory Warriors and Victory Chapel. He

explained that the jury had to understand the nature of the operation to fully appreciate how the

operations would have been disrupted by the flood and resulting damages. He also offered it to

counter the statements made by Rhey’s counsel during opening argument that the jury would see

that Carolyne was using the children and pocketing 90 percent of the money going to Victory

Warriors. The court overruled several objections to specific slides, but sustained one objection

and required a portion of the PowerPoint to be deleted. In the jury’s presence, Rhey objected to

Exhibit 14 on the ground that it is “collateral matter.” The trial court overruled that objection.

The court did not abuse its discretion by overruling Rhey’s objection to the PowerPoint

presentation because it assisted the jury to understand the nature of the Victory Warriors

- 23 - operation. It also tended to rebut the assertions made by Rhey’s counsel during opening

statement that Victory Warriors was not a legitimate operation. Issue 27 is overruled.

Testimony of District Judge Linda Chew

In Issue 28, Rhey contends that the trial court erred by permitting the Honorable Linda

Chew, Judge of the 327th District Court, to testify because her testimony was not relevant. Rhey

does not identify any particular portion of Judge Chew’s testimony as being inadmissible. She

instead argues generally that Judge Chew should not have been allowed to testify at all. Rhey

did not preserve her complaint because she failed to object at trial. See TEX.R.APP.P. 33.1(a).

Issue 28 is overruled.

Testimony of District Attorney Jaime Esparza

In Issue 29, Rhey challenges the admission of the testimony of District Attorney Jaime

Esparza. Rhey argues on appeal that Esparza should not have been permitted to testify at all.

After the Redics called Esparza as a witness, Rhey objected on the ground that his

testimony did not “go to any issue in this case.” The trial court overruled that objection, adding:

“I will find out if he does have relevant testimony.” Esparza testified that he was familiar with

Carolyne and Victory Warriors through his office’s community outreach. Rhey lodged a

relevance objection when the Redics’ counsel asked Esparza to describe his office’s community

outreach. The trial court overruled that objection and Esparza testified briefly that his office

engages in community outreach and works with community organizations, such as Victory

Warriors, as part of an effort to reduce crime. Esparza went on to explain, without objection,

that the District Attorney’s office applies for funding for programs that his office operates. The

majority of that funding comes from El Paso County and grants from the State of Texas and the

federal government. The trial court overruled Rhey’s relevance objection when Esparza testified

- 24 - about the eligibility requirements for those grants as well as the monitoring of grant recipients.

The Redics offered Esparza’s testimony to rebut the defensive theory that the Redics had

fraudulently obtained grant money for personal gain. Esparza’s testimony, if believed by the

jury, tended to rebut Rhey’s assertions of fraud by the Redics. The trial court did not abuse its

discretion by overruling Rhey’s relevance objection and admitting Esparza’s testimony. Issue 29

is overruled.

Cumulative Error

In Issue 30, Rhey argues that the trial court “erred in allowing so much irrelevant,

collateral matter in the trial of the case.” This amounts to a cumulative error issue based on the

contentions raised in Issues 18 through 29.

A reviewing court may reverse a lower-court judgment under the cumulative-error

doctrine when the record shows a number of instances of error, no one instance being sufficient

to call for reversal, yet all the instances taken together may do so. University of Texas at Austin

v. Hinton, 822 S.W.2d 197, 205 (Tex.App.--Austin 1991, no writ), citing Sproles Motor Freight

Lines, Inc. v. Long, 140 Tex. 494, 168 S.W.2d 642, 645 (Tex. 1943). To show cumulative error,

an appellant must show that, based on the record as a whole, but for the alleged errors, the jury

would have rendered a verdict favorable to it. Hinton, 822 S.W.2d at 205. Because we have

overruled Issues 18 through 29, there can be no cumulative error. See Hinton, 822 S.W.2d at

205. Issue 30 is overruled.

CHARGE ERROR

Rhey has raised four complaints of charge error. A trial court must submit questions,

instructions, and definitions to the jury as are necessary to enable the jury to render a verdict.

See TEX.R.CIV.P. 278. The trial court enjoys considerable discretion in framing a jury charge

- 25 - and is given broad latitude to determine the propriety of explanatory instructions and definitions.

H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998); Hatfield v. Solomon, 316

S.W.3d 50, 62 (Tex.App.--Houston [14th Dist.] 2010, no pet.). We review the trial court’s

submission of instructions and jury questions under an abuse of discretion standard. Shupe v.

Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). A trial court abuses its discretion if it acts

arbitrarily, unreasonably, or without reference to any guiding principles. Echostar Satellite

L.L.C. v. Aguilar, --- S.W.3d ----, 2012 WL 4910018 at *10 (Tex.App.--El Paso 2012, no pet. h.).

To determine whether an alleged error in the jury charge is reversible, we consider the

pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Island

Recreational Development Corporation v. Republic of Texas Savings Association, 710 S.W.2d

551, 555 (Tex. 1986); Texas Mutual Insurance Company v. Boetsch, 307 S.W.3d 874, 880

(Tex.App.--Dallas 2010, pet. denied). We reverse the trial court only when the error in the

charge amounted to such a denial of the rights of the complaining party that it probably caused

the rendition of an improper judgment. TEX.R.APP.P. 44.1(a)(1); Wal-Mart Stores, Inc. v.

Johnson, 106 S.W.3d 718, 723 (Tex. 2003). Charge error is generally considered harmful if it

relates to a contested, critical issue. Columbia Rio Grande Healthcare, L.P. v. Hawley, 284

S.W.3d 851, 856 (Tex. 2009).

Act of God

In Issue 31, Rhey argues that the trial court should have submitted a question in the

charge asking the jury to determine whether the Redics’ damages were caused by an act of God.

The trial court provided the jury with an act of God instruction in the form requested by Rhey. A

party is not entitled to a separate jury finding on an “act of God” defense because it is an

inferential rebuttal issue. Scott v. Atchison, Topeka & Santa Fe Railway, Company, 572 S.W.2d

- 26 - 273, 279-80 (Tex. 1978); TEX.R.CIV.P. 277. The trial court properly submitted the issue in the

charge as an instruction. Issue 31 is overruled.

Identities of the Plaintiffs

In Issue 32, Rhey maintains that the trial court erred by not submitting a question asking

the jury to determine “[w]hich part(ies), if any, are seeking recovery as Plaintiffs in this

lawsuit?” Rhey’s proposed question would have asked the jury to answer by placing “yes” or

“no” next to (a) John Redic, individually; (b) Carolyne Redic, individually; (c) Victory Warriors

Drill and Dance Academy, a nonprofit corporation; (d) Victory Chapel Ministries, a nonprofit

corporation; and (e) Project Change El Paso, a nonprofit corporation.

Rhey’s brief does not cite any authority in support of her assertion that the trial court

erred by not submitting this question and we are aware of none. The question of who are the

parties to the case is a legal question determined primarily by reviewing the pleadings. See

TEX.R.CIV.P. 79. To the extent Rhey’s argument is related to the standing and capacity to sue

issues raised in Issues 14 and 15, both issues are legal questions which would not be submitted to

the jury. Standing is typically addressed in a plea to the jurisdiction, motion for summary

judgment, or motion to dismiss. See Bland Independent School District v. Blue, 34 S.W.3d 547,

554 (Tex. 2000); Green Tree Servicing, LLC v. Woods, --- S.W.3d ----, 2012 WL 3222360 at *4

(Tex.App.--Houston [1st Dist.] 2012, no pet.); Haddy v. Caldwell, 355 S.W.3d 247, 250

(Tex.App.--El Paso 2011, no pet.). A party who wishes to contest the opponent’s lack of

capacity to sue must do so in a verified plea in abatement. Bluebonnet Farms, Inc. v. Gibraltar

Savings Association, 618 S.W.2d 81, 83 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref’d

n.r.e.).

We have already determined that the John and Carolyne filed suit individually d/b/a

- 27 - Victory Warriors and Victory Chapel and they had both standing and capacity to sue. The jury

charge is consistent with the pleadings and refers to the Redics by their individual names and

assumed business names. The trial court did not abuse its discretion by refusing to submit this

question to the jury. Issue 32 is overruled.

New and Independent Cause

In Issue 33, Rhey complains that the trial court refused to submit an instruction on new

and independent cause. She argues that the Redics’ damages were caused by rain, not by her

failure to repair the roof.

In Dillard v. Texas Electric Co-operative, 157 S.W.3d 429, 432 (Tex. 2005), the Texas

Supreme Court explained that when defendants blame an occurrence on someone or something

other than themselves, the Texas Pattern Jury Charges provide multiple alternatives, including

new and independent cause and act of God. Id. The new-and-independent-cause instruction is

available if the occurrence is caused by someone else later. Id. The act-of-God instruction

applies where the occurrence is caused by “the violence of nature.” Id. The purpose of these

instructions is to advise the jurors, in the appropriate case, that they do not have to place blame

on a party to the suit if the evidence shows that conditions beyond the party’s control caused the

accident in question or that the conduct of some person not a party to the litigation caused it. Id.,

citing Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995). Giving multiple instructions on

every possible rebuttal inference has the potential to skew the jury’s analysis in the other

direction. Dillard, 157 S.W.3d at 433.

Rhey did not argue that some other person was responsible for the Redics’ injuries. She

had the ability to argue, through the act of God instruction, that the Redics’ injuries were caused

by rain and she was not responsible for those injuries. The trial court did not abuse its discretion

- 28 - by refusing to give the jury a new and independent cause instruction. Issue 33 is overruled.

Instruction on Redics’ Defenses to Rhey’s Breach of Contract Claim

In Issue 38, Rhey asserts that there is no evidence to support submission of the Redics’

defenses to her breach of contract claim. Question 8 asked the jury whether the Redics d/b/a

Victory Warriors and Victory Chapel failed to comply with their lease agreement when failure to

comply was not excused. The question included instructions on the Redics’ affirmative defenses

of failure of consideration and equitable estoppel.

The failure to raise a complaint at trial to a jury charge waives review of that complaint

on appeal. TEX.R.CIV.P. 274; TEX.R.APP.P. 33.1; In re B.L.D., 113 S.W.3d 340, 349 (Tex.

2003). Rhey objected to the jury in writing and made several objections to Question 8, but all of

those objections relate to Rhey’s arguments about standing and capacity to sue. She did not

object to the instructions on the affirmative defenses of failure of consideration and equitable

estoppel. Because she failed to preserve these complaints about the charge, Issue 38 is

overruled. See Fish v. Dallas Independent School District, 170 S.W.3d 226, 230 (Tex.App.--

Dallas 2005, pet. denied).

CONFLICT IN THE JURY FINDINGS

In Issues 34 and 35, Rhey maintains that there is an irreconcilable conflict in the jury’s

answers. The Redics counter that Rhey failed to preserve error. We agree.

Rule 295 of the Texas Rules of Civil Procedure provides that if the jury’s answers to the

questions are in conflict, the trial court must instruct the jury of the nature of the problem, give

the jury additional instructions as necessary, and allow the jury to further deliberate.

TEX.R.CIV.P. 295. The trial court must be made aware of the conflict before the jury is

discharged because, once the jury is discharged, “a conflict in the jury’s answers cannot be

- 29 - reformed.” Beltran v. Brookshire Grocery Company, 358 S.W.3d 263, 268 (Tex.App.--

Dallas 2011, pet. denied), quoting Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107, 109

(Tex.App.--Eastland 1992, writ denied). Under Rule 33.1(a), a party is required to raise its

complaint to the trial court by a “timely request, objection, or motion” in order to preserve error.

Consequently, a Rule 295 objection must be made before the jury is discharged. See Fleet v.

Fleet, 711 S.W.2d 1, 3 (Tex. 1986); Lundy v. Masson, 260 S.W.3d 482, 495 (Tex.App.--Houston

[14th Dist.] 2008, pet. denied). Rhey failed to preserve Issues 34 and 35 for our review because

she did not object to the allegedly conflicting jury answers prior to the jury being discharged.

Issues 34 and 35 are overruled.

CLOSING ARGUMENT AND PERSONAL ATTACKS

In Issue 36, Rhey complains about closing argument and what she characterizes as

“personal attacks” on her attorney.3 Rhey first contends that counsel for the Redics made an

incurable closing argument by urging the jury to award between $300,000 and $500,000 in

damages. Rhey asserts there was no evidence to support such an award.

The court instructed the jury to consider loss of the benefit of the bargain, expenses, loss

of use of the premises, lost time, damage to reputation, and mental anguish. The Redics’

attorney argued during closing argument that the jury, in determining the damages, should

consider what the Redics had lost and he acknowledged that some of the damages are subjective.

He urged the jury to consider that the Redics had lost years of hard work and the opportunity to

provide for the community they love. Counsel then suggested that the jury should award

between $300,000 and $500,000 in damages. The jury awarded damages in the total amount of

$175,585.25 for expenses, loss of use, lost time, and damage to reputation. Appellate complaints

of improper jury argument must ordinarily be preserved by timely objection and request for an 3 In the body of her brief, Rhey has included two separate issues both numbered as “Issue No. 36.”

- 30 - instruction that the jury disregard the improper remark. TEX.R.APP.P. 33.1; Phillips v. Bramlett,

288 S.W.3d 876, 883 (Tex. 2009). A complaint of incurable argument may be asserted and

preserved in a motion for new trial, even without a complaint and ruling during the trial.

Phillips, 288 S.W.3d at 883; TEX.R.CIV.P. 324(b)(5). Rhey did not object to the argument at

trial but she preserved the issue by raising it in her motion for new trial. Denial of a motion for

new trial is reviewed under the abuse of discretion standard. Waffle House, Inc. v. Williams, 313

S.W.3d 796, 813 (Tex. 2010).

Rhey offers no authority to support her assertion that counsel’s closing argument is

improper or incurable. There are only rare instances of incurable harm from improper argument.

Phillips, 288 S.W.3d at 883; Standard Fire Insurance Company v. Reese, 584 S.W.2d 835, 839

(Tex. 1979). The party claiming incurable harm must persuade the court that, based on the

record as a whole, the offensive argument was so extreme that a juror of ordinary intelligence

could have been persuaded by that argument to agree to a verdict contrary to that to which he

would have agreed but for such argument. Phillips, 288 S.W.3d at 883. Even assuming that

counsel’s argument was improper, it does not rise to the level of incurable argument. See e.g.,

Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 758 (Tex.App.--Texarkana 1992, writ

denied)(argument found to be incurable where attorney accused opposing counsel of

manufacturing evidence); Texas Employers Insurance Association v. Guerrero, 800 S.W.2d 859,

866-67 (Tex.App.--San Antonio 1990, writ denied)(argument appealing to prejudice against a

party’s ethnicity found to be incurable).

Rhey next argues that the trial court erred by not granting a mistrial when Redics’

counsel made personal attacks against her counsel on two occasions during trial. Rhey’s

attorney, Anthony Aguilar, testified during trial in support of Rhey’s request for an award of

- 31 - attorney’s fees. During cross-examination, the Redics’ attorney asked Mr. Aguilar whether he

had ever been suspended by the State Bar. The attorneys approached the bench and Mr. Aguilar

objected to the Redics’ attempt to introduce a prior conviction without first giving him notice.

The trial court instructed Redics’ counsel to only ask what the sanction was and not to go into the

conviction. In the jury’s presence, Mr. Aguilar testified that he voluntarily surrendered his

license for three years. Rhey never voiced any objection in the trial court that this amounted to a

personal attack on her counsel. Consequently, she has waived this part of Issue 36. See

TEX.R.APP.P. 33.1.

In the third portion of her argument under Issue 36, Rhey contends that Redics’ counsel

made an improper attack on her attorney by stating during closing argument that “the amount of

attorney fees for Rhey are a rip off.” During final argument, the Redics’ counsel argued during

rebuttal as follows:

The suggestion has been made that John and Carolyne Redic are ripping off the community. Ladies and gentlemen, let me be clear, I am proud to represent the Redics, Victory Warriors, and Victory Chapel Ministries. I think that the Redics are remarkable people. I think they are heroic people. I don’t think they are good people, I think they are great people.

I am proud to stand next to the people that turned the Devil’s Triangle into the Angel’s Triangle. I wished at times that they might be more sophisticated. I wished at times that they might have more resources to help this community. I wished that they maybe had not been as trusting.

But it is wrong, it is unjust, it is ironic for the people that put them in this predicament to suggest that they are ripping anybody off. Not from the people that start off with a $10,000 debt and convert it into $140,000.4 Who’s ripping who off? Not with a lawyer that comes to this courtroom and tells you he wants $150,000. Who is ripping who off?

Rhey did not object to the argument when it occurred. In her motion for new trial, Rhey

4 Counsel’s comments referred to the damages sought by Rhey for non-payment of rent. As a result of the flood damage, the Redics did not make rent payments for approximately five months in 2008, for a total of approximately $10,000. Rhey sued the Redics under the leases seeking approximately $140,000 in late fees and penalties.

- 32 - included a section on “incurable jury argument.” but she did not address this portion of closing

argument. Consequently, Rhey failed to preserve the issues. For these reasons, Issue 36 is

DOUBLE RECOVERY OF ATTORNEY’S FEES

In Issue 37, Rhey argues that the judgment includes a double recovery of attorney’s fees

because fees were awarded to each of the Redics. A double recovery exists when a plaintiff

obtains more than one recovery for the same injury. Waite Hill Services, Inc. v. World Class

Metal Works, Inc., 959 S.W.2d 182, 184 (Tex. 1998). The judgment is consistent with the jury’s

verdict which awarded attorney’s fees in the amount of $30,000 to Carolyne Redic d/b/a Victory

Warriors and Victory Chapel and $30,000 to John Redic d/b/a Victory Warriors and Victory

Chapel. The judgment does not compensate either John or Carolyne twice for the same loss.

Issue 37 is overruled.

Having overruled each issue presented on appeal, but having reformed the judgment to

reflect the correct assumed name of Victory Chapel Ministries, we affirm the judgment of the

trial court as so modified.

March 20, 2013 ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ. Antcliff, J., not participating

- 33 -