Fidelity National Title Insurance Company v. Heart of Texas Title Company

• Court: Court of Appeals of Texas
• Decided: January 6, 2000
• Docket: 03-98-00473-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00473-CV

Fidelity National Title Insurance Company, Appellant

v.

Heart of Texas Title Company, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT

NO. 97-092-C368, HONORABLE BURT CARNES, JUDGE PRESIDING

Heart of Texas Title Company, appellee, sued Fidelity National Title Insurance Company, appellant, for damages incurred when Fidelity recruited key Heart of Texas employees, who in turn recruited some of their co-workers. Finding that Fidelity and certain Heart of Texas employees conspired for those employees to breach their fiduciary duties to Heart of Texas, the jury awarded actual and exemplary damages to Heart of Texas. Fidelity now appeals the award of exemplary damages, claiming that (1) exemplary damages are not appropriate in this case because the jury did not find that Fidelity's actions constituted fraud, and, alternatively, (2) the exemplary damages awarded are excessive and manifestly unjust. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Fidelity and Heart of Texas are rival title insurance companies. Fidelity is the larger company, with nationwide operations; Heart of Texas operates only in Texas, primarily in Williamson County. As indicated by corporate records introduced at trial, Fidelity wanted to expand into the Williamson County market. From late 1995 through early 1996, Fidelity and Heart of Texas conducted preliminary negotiations for Fidelity to purchase Heart of Texas. When the two companies were unable to agree on a purchase price, Fidelity instead decided to open its own office in Williamson County and to recruit staff from other title companies.

Beginning in September 1996, seven employees left Heart of Texas for positions at Fidelity. The reasons for these departures were the heart of the dispute at trial. Fidelity contends that the employees were unhappy at Heart of Texas because the company was experiencing regulatory and financial difficulties and that the employees approached Fidelity seeking employment. Heart of Texas claims the employees left because Fidelity conspired with certain Heart of Texas employees to recruit co-workers for Fidelity.

Marnie Margos, an escrow closer for Heart of Texas, was the first employee to leave for Fidelity. At Heart of Texas, she was branch manager of her office and held the title of vice president. She testified that she was unhappy at Heart of Texas primarily because she was not paid the commissions she had earned. Margos frequently had lunch with a friend who worked at Fidelity. On September 16, 1996, that friend invited Steve Presti, a Fidelity vice president, to join them, and at the end of that meal Presti offered Margos a job at Fidelity.

On September 24th, Margos notified Heart of Texas that she would resign at the end of that month, and she began working at Fidelity on October 1. Margos's long-time closing assistant, Martha Parker, chose to go to Fidelity with her, as is apparently customary in the field. In the weeks between the job offer and commencement of her employment at Fidelity, Margos arranged meetings between Presti and Connie Lincoln, a fellow Heart of Texas closing agent whom Fidelity wanted to recruit. Margos and Presti also met with J.T. Wray, Heart of Texas's titular president ⁽¹⁾ and principal personnel manager, about employment with Fidelity. After initially accepting a position with Fidelity, Lincoln ultimately opted to remain at Heart of Texas. Wray left Heart of Texas for Fidelity in January 1997, claiming that conditions at Heart of Texas were deteriorating and that he feared his position might be eliminated.

Heart of Texas contends that between September 1996 and January 1997, Fidelity conspired with Wray to recruit Heart of Texas's remaining closing agents. Corporate reports and testimony of real estate agents show that Fidelity was planning to open a Williamson County office. Heart of Texas claims that Wray was to secure the operating staff. An extensive trail of expense reports submitted to Fidelity during those months, along with other documents, indicates that Presti and Wray were meeting during this period and that Wray was recruiting the Heart of Texas employees who eventually left to work at Fidelity.

Wray resigned from Heart of Texas on January 16. A week later, two Heart of Texas escrow closing officers left to work at Fidelity. Two more employees--an office manager and an escrow assistant--followed shortly thereafter. In all, seven Heart of Texas employees went to work for Fidelity between September 1996 and February 1997. Because of the loss of staff, Heart of Texas closed two offices and rapidly lost market share in Williamson County.

Heart of Texas sued Fidelity, Margos, and Wray for breach of fiduciary duty, civil conspiracy, and commercial bribery. ⁽²⁾ Margos and Wray were dropped from the suit on the eve of trial, and only Fidelity remained a defendant when the case went before the jury. The jury found that one or more employees had breached their fiduciary duties to Heart of Texas and that Fidelity had participated in or conspired to commit those breaches of fiduciary duty. The jury awarded only $6,700 in actual damages, a figure apparently representing some calculation of the salaries paid to Wray and Margos by Heart of Texas during the period they were recruiting for Fidelity. Fidelity does not challenge the award of actual damages on appeal.

In answer to predicate questions for the award of exemplary damages, the jury found that Fidelity did not act with malice, but that the harm suffered by Heart of Texas was the result of breaches of fiduciary duty constituting fraud committed by the breaching fiduciary. The jury awarded $800,000 in exemplary damages to Heart of Texas. The trial judge reduced that award to $200,000 to comport with the statutory limits imposed by the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 41.008 (West 1997). In two issues on appeal, Fidelity challenges the propriety and, alternatively, the amount of exemplary damages awarded against it.

DISCUSSION

Submission of Exemplary Damages Issue to the Jury

In its first issue on appeal, Fidelity argues that there is no basis for an award of exemplary damages. Fidelity approaches this argument in two ways, first arguing that exemplary damages should not have been submitted to the jury at all, and alternatively arguing that even if the issue was properly submitted, the answers given by the jury do not support an award in this case.

Chapter 41 of the Texas Civil Practice and Remedies Code contains statutory guidelines for the submission and award of exemplary damages. In a suit for breach of fiduciary duty, exemplary damages may generally be awarded only when the jury makes a predicate finding that the harm suffered by the claimant resulted from fraud or malice on the part of the defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a) (West 1997). ⁽³⁾ Chapter 41 specifically defines fraud as "fraud other than constructive fraud." Id. § 41.001(6). Fidelity argues that breach of fiduciary duty is always constructive fraud and that the tort is therefore specifically excluded as a basis of an award of exemplary damages. Since the only claim against Fidelity submitted to the jury was conspiracy to commit a breach of fiduciary duty, Fidelity argues that the jury should not have been able to consider the issue of exemplary damages. We disagree.

Fidelity overstates the law when it argues that breach of fiduciary duty is always constructive fraud and can never be actual fraud. In support of its contention, Fidelity cites to several cases that seem to equate breach of fiduciary duty with constructive fraud. See Welder v. Green, 985 S.W.2d 170, 175 (Tex. App.--Corpus Christi 1998, pet. denied) ("[I]n the context before us, constructive fraud and breach of fiduciary duty amount to identical causes of action"); In re Estate of Herring, 970 S.W.2d 583, 586 n.3 (Tex. App.--Corpus Christi 1998, no pet.) ("Constructive fraud is the breach of a legal or equitable duty which the law declares fraudulent because it violates a fiduciary relationship"); Hatton v. Turner, 622 S.W.2d 450, 458 (Tex. Civ. App.--Tyler 1981, no writ) ("Among the types of constructive fraud is breach of a confidential relationship"); see also Miller v. Huebner, 474 S.W.2d 587, 591 (Tex. Civ. App.--Houston [14th Dist.] 1971, writ ref'd n.r.e.). The quotes from the foregoing authorities, however, are taken out of context; it is more accurate to say that breach of fiduciary duty is at least constructive fraud, but the offense may rise to the level of actual fraud in appropriate circumstances.

The distinction between constructive and actual fraud was articulated by the Texas Supreme Court when it wrote: "Actual fraud usually involves dishonesty of purpose or intent to deceive, whereas constructive fraud is the breach of some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests." Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964). This Court has also noted the distinction between actual and constructive fraud, writing that actual fraud "encompasses intentional breaches of duty," while constructive fraud "encompasses those breaches that the law condemns as 'fraudulent' merely because they tend to deceive others, violate confidences, or cause injury to public interests, the actor's mental state being immaterial." Chien v. Chen, 759 S.W.2d 484, 494-95 (Tex. App.--Austin 1988, no writ). In this context, a breach of a fiduciary duty that causes injury to another is always fraudulent; whether that fraud is actual or constructive is determined by the actor's mental state or moral culpability. See id.

This Court and others apparently agree that exemplary damages can be awarded for breach of fiduciary duty, for there are numerous cases upholding such awards. See Hawthorne v. Guenther, 917 S.W.2d 924, 936 (Tex. App.--Beaumont 1996, writ denied) ("An award of exemplary damages is . . . supported by a finding that the partner's breach of fiduciary duty was willful and intentional"); NRC, Inc. v. Huddleston, 886 S.W.2d 526, 533 (Tex. App.--Austin 1994, no writ) (upholding portion of district court's judgment awarding actual and punitive damages for breach of fiduciary duty); Cheek v. Humphreys, 800 S.W.2d 596, 599 (Tex. App.-- Houston [14th Dist.] 1990, writ denied) ("Exemplary damages are proper where a fiduciary has engaged in self-dealing"); see also Schlueter v. Schlueter, 975 S.W.2d 584, 592-93 (Tex. 1998) (Spector, J., dissenting). We must reject Fidelity's broad claim that exemplary damages cannot properly be submitted to the jury in an action premised on breach of fiduciary duty. In a case such as this one, with this factual background, exemplary damages may be awarded where the jury finds that the claimant's harm resulted from fraud or malice, for either finding establishes the requisite "moral guilt" for a breach of fiduciary duty to rise from constructive fraud to the level of actual fraud. We therefore hold that the trial court did not err by including the issue in the jury charge.

Fidelity argues alternatively that even if exemplary damages may properly be submitted, the jury's answers to the questions before it do not support the damages awarded. The Texas Pattern Jury Charges suggest that the jury be asked two separate questions to determine if the plaintiff's harm resulted from fraud or from malice. See State Bar of Texas, Texas Pattern Jury Charges PJC 110.29 (1997). ⁽⁴⁾ These are predicate questions to be answered before the jury considers an award of exemplary damages. See id. at PJC 110.29, .30. In the first phase of this trial, where liability was established and actual damages were assessed, the jury was presented with the questions concerning fraud and malice that enabled it to proceed to the second phase, where the sole question was what amount of exemplary damages should be awarded.

Fidelity claims that the jury's answers in the first phase of the trial did not establish that it acted with either fraud or malice, and therefore the issue of exemplary damages should not have been submitted to the jury at all. In response to jury question four, which asked, "Do you find by clear and convincing evidence that the harm to Heart of Texas Title Company resulted from malice on the part of Fidelity National Title Insurance Company?" the jury answered "No." This question elicited an unequivocal finding that Fidelity did not act with malice. However, question five, which was apparently intended to determine whether Fidelity acted with fraud, presented the jury with a more complex question. It asked, "Do you find by clear and convincing evidence [that] the harm to Heart of Texas Title was the result of a breach or breaches of fiduciary duty that constituted fraud by the breaching fiduciary?" The jury answered this question affirmatively, but Fidelity argues that the question did not properly submit to the jury the issue of whether Fidelity itself acted fraudulently.

We agree that the jury questions contained a small gap that leaves some ambiguity in the verdict. In answering the first five questions presented to it, the jury found that (1) Heart of Texas fiduciaries (presumably Wray and Margos) breached their fiduciary duties and caused damages to Heart of Texas; (2) Fidelity participated in or conspired to commit those breaches of fiduciary duty to Heart of Texas; (3) $6,700 damages would compensate Heart of Texas for actual damages caused by the breach of fiduciary duty in which Fidelity participated; (4) Fidelity did not act with malice; and (5) the harm to Heart of Texas was the result of breaches of fiduciary duty that constituted fraud by Heart of Texas employees. Although the fifth question was clearly intended to be the second predicate question on the issue of exemplary damages, the question as submitted did not squarely ask the question that the jury needed to decide. The jury found only that the Heart of Texas employees, with whom Fidelity conspired, committed fraudulent breaches of fiduciary duty. The jury was not asked whether the actions of Fidelity itself constituted fraud.

Fidelity argues that question five can only be read to find that fiduciaries of Heart of Texas breached their fiduciary duty, a finding that would expose Margos and Wray to liability for exemplary damages, but not Fidelity. Such an interpretation is inappropriate in the context of this case, however, because Margos and Wray were released as defendants before the trial began. The jury therefore had no reason to consider their personal liability for damages arising from their acts. Any question about fraudulent behavior can only have been intended to relate to the liability of the sole defendant in this case, Fidelity.

Although question five might be characterized as imprecise, the jury's answers to all the questions, taken together, leave no doubt what it intended by its verdict. To the extent necessary, we will deem found the appropriate finding that fraud was committed by Fidelity, pursuant to rule 279 of the Texas Rules of Civil Procedure and consistent with the jury verdict.

It is proper for a court to deem jury findings to support a judgment if no request or objection is raised to a question omitted from the jury charge. See Tex. R. Civ. P. 279. "Where . . . issues are omitted which constitute only a part of a complete and independent ground and other issues necessarily referable to that ground are submitted and answered, the omitted elements are deemed found in support of the judgment if . . . they are supported by some evidence." Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex. 1990); see also Tex. R. Civ. P. 279.

At trial, neither party objected on the record to the form of question five as submitted. Fidelity objected to the inclusion of questions relating to exemplary damages at all, and that objection preserved its right to appeal the issue already discussed above. But Fidelity did not object to the form of question five as it was submitted to the jury, nor did it offer a substantially correct version of the question in the requested jury charge it submitted to the court. There is therefore no procedural bar to applying the deemed-finding rule.

In this case, the jury found that Fidelity had participated in or conspired to commit a breach of fiduciary duty to Heart of Texas and determined that Fidelity had not acted with malice. These questions are part of an independent ground of recovery against Fidelity for exemplary damages for malice. The trial court apparently tried to submit another independent ground of recovery against Fidelity for exemplary damages for fraud, but failed to ask directly whether Fidelity itself acted fraudulently. We believe the trial court intended to submit this ground of recovery in question five, in response to which the jury found that the conspiracy to commit fraud in which Fidelity was an active participant was actually carried out by co-conspirators Wray and Margos. Even assuming question five is inadequate, however, the question of fraud raised in question five is "necessarily referable" to a ground of recovery for exemplary damages for fraud against Fidelity. Therefore, a deemed finding that Fidelity's actions constituted fraud is consistent with the judgment rendered by the trial court.

We must next determine whether the deemed finding that Fidelity's actions constituted fraud is supported by some evidence. See Ramos, 784 S.W.2d at 668. There was testimony that Fidelity actively encouraged Margos to recruit her co-workers while she was still employed at Heart of Texas. Evidence from expense reports, corporate records, and testifying witnesses also supported Heart of Texas's theory that Fidelity was planning to open a Williamson County office and conspired with Wray to recruit Heart of Texas employees to staff that new office. We conclude that the record contains some evidence that could convince a reasonable jury that the harm to Heart of Texas was caused by fraud committed by Fidelity.

Fidelity could have prevented this deemed finding against it by objecting to the omission of the element of Fidelity's fraud at trial or by offering a question with a substantially correct statement of the law. Since Fidelity did not object or request, and since there is some evidence to support the finding that Fidelity's actions constituted fraud, we hold that the trial court must have made the finding necessary to uphold the judgment. In effect, the jury's answer to question five is tantamount to a finding that Fidelity's actions constituted fraud. The error raised in Fidelity's first issue is overruled.

Amount of Damages Awarded

In its second issue on appeal, Fidelity argues that, even if we hold that exemplary damages were properly submitted to the jury and that the jury affirmatively answered the predicate question on fraud, the $200,000 ultimately awarded is excessive. In the second phase of the trial, the jury returned an award of $800,000 in exemplary damages. The trial court then reduced that award to $200,000 as required by section 41.008 of the Civil Practice and Remedies Code, which limits the amount of recovery permitted to the greater of: (1) two times the amount of economic damages plus any noneconomic damages, not to exceed $750,000, or (2) $200,000. See Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b). Fidelity argues that even this reduced figure, lowered 75 percent from the jury's initial assessment, is so high as to be manifestly unjust.

Whether an exemplary damages award is excessive is reviewed on a factual sufficiency standard. See Peco Constr. Co. v. Guajardo, 919 S.W.2d 736, 741 (Tex. App.--San Antonio 1996, writ denied). We may not substitute our own judgment for that of the jury, but must assess all the evidence and reverse for a new trial only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See id. at 741-42. In reviewing the jury's award, we must detail the relevant evidence and explain why the evidence does or does not support the punitive damage award. See id. at 742; see also Tex. Civ. Prac. & Rem. Code Ann. § 41.013 (West 1997).

Generally, a jury has broad discretion to determine the amount of punitive damages. See City of Fort Worth v. Zimlich, 975 S.W.2d 399, 410 (Tex. App.--Austin 1998, pet. granted) (citing Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994)). In setting its initial award of damages (which was later reduced), the jury in this case was instructed to consider (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety; (6) Fidelity's net worth; (7) the frequency of similar wrongs, if any, committed by Fidelity; and (8) the inconvenience to, and attorney's fees and expenses incurred by, Heart of Texas as a result of Fidelity's conduct. These instructions closely mirror the factors for jury consideration enumerated in both the statute and the Pattern Jury Charges. See Tex. Civ. Prac. & Rem. Code Ann. § 41.011 (West 1997); Texas Pattern Jury Charges PJC 110.30.

The evidence of Fidelity's participation in a conspiracy to encourage Heart of Texas employees to breach their fiduciary duties, already discussed above, certainly factored into the jury's evaluation of Fidelity's culpability and the impropriety of its conduct. It is the final three factors, however, that appear to have formed the central basis for the jury's large exemplary damages award. During the second phase of the trial, the jury heard evidence that Fidelity is one of the larger title insurance companies in the nation, with an income of over $230 million in 1996. The jury also heard testimony that Fidelity was engaged in similar lawsuits in other states as a result of its nationwide "predator practice" of targeting competitors' employees for recruitment. Heart of Texas's counsel also testified that his client had incurred over $200,000 in attorney's fees and $70,000 in expenses to pursue the case against Fidelity. Aside from downplaying the significance of the other similar lawsuits Fidelity was involved in, Fidelity did not seriously dispute any of the evidence offered in the second phase of the trial. After hearing this evidence, the jury apparently determined that an exemplary damage award of $800,000 was required to punish Fidelity for its actions. The trial court reduced that award to $200,000. In light of the foregoing facts, we cannot agree with Fidelity that the reduced award is unsupported by factually sufficient evidence.

Fidelity emphasizes that $200,000 in exemplary damages is disproportionate to the $6,700 actual damages awarded to Heart of Texas and that the approximately thirty-to-one ratio between punitive and actual damages is so high as to be manifestly unjust. Although exemplary damages must bear some reasonable relationship to actual damages, "there is no set rule of ratio between the amount of actual and exemplary damages that will be considered reasonable." Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 835 (Tex. App.--Austin 1992, writ denied); see also Donnel v. Lara, 703 S.W.2d 257, 261 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.). That the $200,000 punitive award is approximately thirty times the $6,700 awarded in actual damages in itself says nothing about the reasonableness of the award. ⁽⁵⁾

A reviewing court should consider whether the exemplary damages award serves the purpose of punishing the wrongdoer and setting an example to other potential wrongdoers. See Corporate Wings, Inc. v. King, 767 S.W.2d 485, 488 (Tex. App.--Dallas 1989, no writ). The reviewing court should focus on the defendant's conduct; the harm suffered by the plaintiff is but a secondary consideration. See id. at 489. Therefore, we may de-emphasize the fact that only $6,700 in actual damages were awarded to Heart of Texas and instead focus on what amount of exemplary damages would sufficiently punish Fidelity for its actions and prevent similar conduct in the future. To this end, the evidence of Fidelity's annual income was highly relevant. We cannot say that exemplary damages of $200,000 are disproportionately high, given the $230 million income Fidelity enjoyed in 1996. We therefore overrule Fidelity's second issue and hold that the exemplary damages awarded are not so excessive as to be manifestly unjust.

Also in its second issue, Fidelity urges us to hold that the trial court erred by allowing the jury to consider the attorney's fees incurred by Heart of Texas in pursuing this lawsuit. We do not need to decide this issue, for Fidelity is unable to demonstrate any harm suffered as a result of the jury's consideration of this factor. We may not reverse a judgment unless the appellant can show that the error complained of "probably caused rendition of an improper judgment." Tex. R. App. P. 44.1. At the second phase of the trial, Heart of Texas introduced evidence that it had incurred over $200,000 in attorney's fees in this case. Even if we assume that the jury intended to compensate Heart of Texas for every penny it had spent, only $200,000 of the jury's $800,000 award could be attributed to attorney's fees, with the remaining $600,000 attributable to other factors. Since the trial court reduced the jury's award to comply with the applicable statutory limit, the final $200,000 award can be credited to the remaining, unchallenged factors the jury was asked to consider. To show harm, Fidelity would have to demonstrate that the jury's award would have been less than the $200,000 ultimately awarded if it had not considered attorney's fees incurred by Heart of Texas. On the record before us, Fidelity is unable to satisfy this requirement.

CONCLUSION

We hold that the jury was properly allowed to entertain the question of exemplary damages in this case, for participation in a breach of fiduciary duty can be the basis of an award of exemplary damages where the jury finds the defendant acted with fraud or malice. Although the jury in this case did not squarely make a finding of fraud, we hold that the deemed-finding rule applies in order to uphold the trial court's judgment. Finally, the exemplary damages award is factually and legally supported by the record and is not so excessive as to be manifestly unjust. We therefore affirm the trial court's judgment.

J. Woodfin Jones, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: January 6, 2000

Do Not Publish

1. The evidence was disputed as to the real extent of Wray's authority as president of Heart of Texas. The owners of Heart of Texas, Jim Goldrick and Rudy Mendoza, were actively involved in the management and operations of the business and denied that Wray held the powers normally associated with the title of president.

2. Because the jury found that Fidelity did not commit commercial bribery, that cause of action does not factor into this appeal.

3. The statute provides additional criteria for when exemplary damages may be awarded, but they apply only to wrongful death actions. See Tex. Civ. Prac. & Rem. Code § 41.003(a)(3).

4. All citations to the Pattern Jury Charges refer to the volume containing instructions on Business, Commerce, Insurance, and Employment.

5. Indeed, one court approved an exemplary damage award that was 2,250 times the actual damage award of $2, a ratio that far exceeds the ratio involved in this case. See Donnel v. Lara, 703 S.W.2d at 262.

the purpose of punishing the wrongdoer and setting an example to other potential wrongdoers. See Corporate Wings, Inc. v. King, 767 S.W.2d 485, 488 (Tex. App.--Dallas 1989, no writ). The reviewing court should focus on the defendant's conduct; the harm suffered by the plaintiff is but a secondary consideration. See id. at 489. Therefore, we may de-emphasize the fact that only $6,700 in actual damages were awarded to Heart of Texas and instead focus on what amount of exemplary damages would sufficiently punish Fidelity for its actions and prevent similar conduct in the future. To this end, the evidence of Fidelity's annual income was highly relevant. We cannot say that exemplary damages of $200,000 are disproportionately high, given the $230 million income Fidelity enjoyed in 1996. We therefore overrule Fidelity's second issue and hold that the exemplary damages awarded are not so excessive as to be manifestly unjust.

Also in its second issue, Fidelity urges us to hold that the trial court erred by allowing the jury to consider the attorney's fees incurred by Heart of Texas in pursuing this lawsuit. We do not need to decide this issue, for Fidelity is unable to demonstrate any harm suffered as a result of the jury's consideration of this factor. We may not reverse a judgment unless the appellant can show that the error complained of "probably caused rendition of an improper judgment." Tex. R. App. P. 44.1. At the second phase of the trial, Heart of Texas introduced evidence that it had incurred over $200,000 in attorney's fees in this case. Even if we assume that the jury intended to compensate Heart of Texas for every penny it had spent, only $200,000 of the jury's $800,000 award could be attributed to at