author: Opinion By Justice LANG.

text:
    EXEL TRANSPORTATION SERVICES, INC.; Rick Sipkoi; and Sip-Code Logistics, Inc., Appellants, v. AIM HIGH LOGISTICS SERVICES, LLC, Appellee.
    No. 05-09-00154-CV.
    Court of Appeals of Texas, Dallas.
    June 14, 2010.
    Rehearing Overruled Aug. 19, 2010.

      Cynthia Keely Timms, Locke, Liddell & Sapp, L.L.P., Timothy R. George, Brian D. Garner, James Johnson, Fee Smith Sharp & Vitullo, L.L.P., Dallas, TX, for Appellants.
    Craig A. Albert, Cherry Petersen Landry Albert LLP, Dallas, TX, for Appellee.
    Before Justices MOSELEY, FITZGERALD, and LANG.
   OPINION

Opinion By Justice LANG.

Appellee Aim High Logistics Services, LLC (“Aim High”) sued appellants Exel Transportation Services, Inc. (“Exel”), Rick Sipkoi (“Sipkoi”), and Sip-Code Logistics, Inc. (“Sip-Code”) (collectively, “appellants”) for breach of contract and tortious interference with a contract. Following a jury trial, Aim High was awarded $367,500 in damages and $300,000 in attorney’s fees against Exel and $232,500 in damages against Sipkoi and Sip-Code.

In issues common to all appellants, they contend (1) the evidence is legally and factually insufficient to support the jury’s damage award and, alternatively, (2) the trial court erred by awarding Aim High a “double recovery.” Additionally, Exel asserts (1) the evidence is legally and factually insufficient to support the jury’s finding that Exel breached a contract with Aim High and (2) the trial court erred by combining four theories of contractual breach into a single liability question and a single damages question. Finally, in addition to the common issues described above, Sipkoi and Sip-Code argue (1) the trial court erred in entering a judgment against them for tortious interference with a contract because they were privileged to compete for customer accounts and entitled to rely on Exel’s decision in any dispute and because the evidence was legally insufficient to support the jury’s finding that certain documents at issue constituted a contract, and (2) the evidence was legally and factually insufficient to support the jury’s finding that Sipkoi, individually, tor-tiously interfered with an agreement between Aim High and Exel.

Based on the analysis below, we conclude the evidence is legally insufficient to support the jury’s damage award. We reverse the trial court’s award of damages and attorney’s fees to Aim High and render judgment that Aim High take nothing on its claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

Exel is a “third-party logistics company” that “acts as a transportation department” for other companies. Sipkoi was a regional vice president of Exel until he left Exel in the fall of 2006. Then, Sipkoi formed Sip-Code, which, like Aim High, operates as a transportation logistics independent contractor of Exel.

Representatives of Exel and Aim High signed a “Sales and Independent Contractor Operations Agreement” (the “sales agreement”), which was nonexclusive as to both parties. Pursuant to the sales agreement, Exel engaged Aim High to perform sales and service functions on behalf of Exel. Such services were to include, but were not limited to, “invoicing, assistance in collection of freight charges, fleet management, customer service and tracing, warehousing, arranging for transportation, routing of freight, logistics consulting, and supply chain management.” Aim High was to “promptly invoice the customer for all shipments” and “direct customers to make all payments directly to [Exel],” which would collect all amounts paid on such invoices and remit “sales commissions” and “operations commissions” to Aim High in accordance with specified terms of the agreement. Further, the sales agreement provided that “[b]efore calling on any customer, [Aim High] shall first obtain account clearance from management of [Exel] including confirmation that the customer has not already been assigned to or cleared for another Independent Contractor or sales representative of [Exel].” The record shows an identical agreement was entered into by representatives of Exel and Sip-Code.

According to the record, an “important” aspect of Exel’s dealings with its independent contractors like Aim High and Sip-Code was to “protect the agents with their relationships” with customers and prevent “one agent undercutting another agent from a price standpoint and from anything to confuse the customer.” Accordingly, in addition to provisions in its sales agreement, Exel initiated “account clearance” procedures and policies that generally provided a means to avoid any such “undercutting” and resolve disputes. These policies and procedures were set out in two documents that were separate from the sales agreement and were entitled “Account Clearance Procedure” (the “account procedure”) and “Account Clearance Policy” (the “account policy”)- The account procedure specified steps to be followed respecting account clearance and stated, “Also attached is the Account Clearance Policy, which each salesperson has signed and is on file at ETS Dallas.” The account policy provided in relevant part that “[b]e-fore a sales call is made on any shipper, the salesperson must contact the account clearance staff in Dallas to determine if the shipper is an existing customer.” Further, sections three and four of the account policy provided

3. Upon refusal by an existing salesperson to grant clearance, the potential salesperson may appeal to corporate for clearance. Conflicts will generally be resolved using the following guidelines:
i. If the existing salesperson is not moving freight and potential salesperson has a contact but no current business, the potential salesperson will not be allowed to contact an account for 90 days from the date' of the last correspondence or until existing salesperson authorizes contact, which ever comes first.
ii. If the potential salesperson has a proven track record of significant business with the shipper under another company, they may be given 60 days to bring the business to [Exel],
iii. If an existing [Exel] salesperson has lost the business or the business has become inexplicably dormant, they will be granted 60 days to recover the business before the potential salesperson is given authorization by corporate.
4. In all instances of conflict, corporate management will, after consideration of all facts and circumstances, have final say in resolving the conflict and his decision must be honored. Salespeople who do not follow this policy are subject to disciplinary actions to be determined by Corporate management.

In its third amended original petition, the live petition at the time of trial, Aim High asserted claims for breach of contract and fraudulent inducement against Exel and for tortious interference with contract against Sipkoi and Sip-Code. Aim High alleged in relevant part that “[d]espite [Aim High’s] outstanding performance during its time as a contractor with Defendant Exel, Defendant Exel has chosen to play favorites and has allowed at least one of its other agents, Defendant Sipkoi, a former corporate Exel employee, and Sipkoi’s agency, Sip-Code, to circumvent the [account policy and account procedure] altogether and steal [Aim High’s] customers.” Specifically, Aim High asserted that Exel, Sipkoi, and Sip-Code had “taken the Yamaha account away from [Aim High]” without first clearing the account as required by the sales agreement and account policy. Further, Aim High alleged Exel had ignored the requirements of section three of the account policy as to the Funai, Del Monte, and Electrolux accounts, on which Aim High was the “existing salesperson,” and authorized other Exel agents to develop that business.

In relevant part, Exel denied breach of any contract with Aim High. Sipkoi and Sip-Code asserted Aim High’s claims were barred by the doctrines of privilege and justification.

In a second amended response to Exel’s request for disclosure of “[t]he amount and any method of calculating economic damages,” Aim High stated it was seeking “actual damages, in the form of lost profits, for loss of the Yamaha Motor Corporation, Del Monte, Funai, and Electrolux accounts in an amount not to exceed $6,607,000.00.” Prior to trial, appellants filed motions to strike Aim High’s damages expert, E.J. Janik, and preclude Jan-ik from offering damages testimony at trial. Specifically, appellants alleged in part

All three of Mr. Janik’s damage models fail to account for the fact that [Aim High] lost the Big Lots account — [Aim High’s] largest account — in late 2006. Big Lots accounted for over $5,360,000 of Plaintiffs revenue in 2006. This amount contributed over sixty-percent of [Aim High’s] total 2006 revenue. Mr. Janik’s analysis under all three of his damage models, however, fails to account for this substantial loss. Instead, Mr. Janik unbelievably attributes all lost profits between 2006 and 2007 to the Defendants’ actions in connection with, inter alia, the Yamaha account, which contributed less than four-percent to [Aim High’s] 2006 revenue.

(citation to exhibits omitted). According to appellants’ motions, Janik’s damage report regarding lost profits “overlooks [Aim High’s] own significant losses suffered at the end of 2006 — losses that the Defendants are not responsible for- — and attributes all such loss to the Defendants.”

In a response to appellants’ motions, Aim High asserted that appellants’ criticism “go[es] to the weight that should be given to Mr. Janik’s testimony, not whether his testimony is admissible.” Further, Aim High argued, in part, that “because Plaintiff does not concede that the loss of the Big Lots account was not the result of wrongful conduct by Defendants, it is appropriate for Mr. Janik to include the Big Lots account in his lost profits analysis.” Additionally, Aim High contended that “[e]ven if the loss of Big Lots is somehow ‘out of the ring,’ ” Texas law (1) provides that lost profit calculations do not have to include an itemization by customer as long as they are based upon objective facts, figures, and data and (2) gives juries discretion to award damages within the range of evidence presented at trial.

Prior to jury selection, the trial court held a hearing on appellants’ motions challenging the admissibility of Janik’s testimony. During that hearing, Janik testified on cross-examination that the figures in his three damage models are “company-wide” figures. Additionally, the following exchange occurred during cross-examination:

Q. All right. I’m correct in understanding you have not made any attempt to calculate lost profits as it pertains to particular accounts handled by Aim High, correct?
A. That’s correct.
Q. And so, in this instance, you would not be able to assist the jury in providing us with numbers that Aim High allegedly lost as a result of a single account?
A. Either lost or gained for a single account, no.

At the conclusion of that hearing, the trial court stated to appellants’ counsel, “I agree with you they just gave an overall number, but they provided historic numbers on each of the different accounts, and I’m sure Exel has even further back if they want to use them. So I do think you can kind of divide it out.” The trial court denied appellants’ motions challenging the admissibility of Janik’s testimony.

During trial, evidence was presented relating to the alleged wrongful actions of appellants regarding the four accounts identified in the petition. Additionally, Carl Barata, a co-owner of Aim High, testified on cross-examination that the customers Aim High serves typically have no contracts with Exel or Aim High and can take their business elsewhere if they so choose. Barata acknowledged that Aim High had approximately thirty-six customers in 2006, and nineteen of those were no longer customers of Aim High in 2007. Further, Barata acknowledged that the accounts lost by Aim High during 2006 included the Big Lots account, which was Aim High’s only account to date for which total annual sales exceeded one million dollars.

Sipkoi testified in relevant part that his Exel commissions from the Yamaha account during 2007 and early 2008 totaled approximately $145,000. An Exel document identified in the record as “Yamaha Spreadsheet,” which had been admitted into evidence at the start of trial, corroborated Sipkoi’s testimony as to his Yamaha commissions.

Dennis Muoio, another co-owner of Aim High, testified in part that before the accounts at issue were “wrestled away” from Aim High or otherwise disrupted, he had expected to handle 524 loads per month for Del Monte, 138,000 loads per year for Electrolux, and 70 to 80 loads per month for Funai. Further, Muoio testified as follows as to the effect of appellants’ alleged actions on Aim High’s “carrier network”:

Q. So when Exel turned the spigot to shut off the Yamaha account, the Menlo/Electrolux account, the Del Monte account, and the Funai account in part, what effect did that have on your carrier network?
A. Oh, it’s huge. It starts disrupting the network, because when you have carriers moving in directions for you and you start pulling accounts out, or into the pipelines of the accounts we were talking about, it starts damaging everything you put into place.

Over renewed objections by appellants, Janik testified at trial regarding his three damage models. Under “Model One,” the “no-growth model,” Janik calculated Aim High’s lost profits by subtracting Aim High’s 2007 gross income from its 2006 gross income, reducing that difference by five percent for “estimated variable costs,” then extrapolating that loss into the future and discounting it to present value. The resulting lost profits under Model One ranged from $844,643 to $995,366, depending on the discount rate applied. Under “Model Two” and “Model Three,” Janik used Aim High’s actual profits in 2006 and 2007, Aim High’s own five-year business plan, Exel’s budgets for Aim High, and rate proposals by Aim High to various shippers to calculate lost profits. Resulting losses under Model Two, the “blended” model, ranged from $1,440,000 to $3,672,000, and losses under Model Three, the “high-growth” model, ranged from $1,676,000 to $5,145,000.

On cross-examination, Janik acknowledged that in 2006, approximately 66% of Aim High’s revenue came from the Big Lots account and approximately 3.9% of Aim High’s revenue came from the Yamaha account. With respect to the loss of the Big Lots account, Janik stated, “I saw ... that there were other proposals out there that would have mitigated or taken its place.” He testified that the lost profit amounts calculated under each of his three damage models were “company-wide numbers.” Additionally, Janik testified as follows:

Q. Now, I also want to be clear on something else ... These models, Model Two, Model Three, Model One, in none of these models have you tried to do a per customer identification or I think you called it a customer build-up, correct?
A. I did not do a specific customer pricing or build-up, no.
Q. So, and I want to make sure you and I are on the same page. None of these numbers that we see in your models are intended by you to say this is damage, for example, done by the loss of Yamaha, correct?
A. I agree with that.
Q. And likewise, none of these numbers is intended by you to indicate loss of the other accounts complained of, Menlo/Electrolux, Funai, or Del Monte, correct?
A. I want to be careful. I mean, I know those are the four accounts that [Aim High] has — has claimed, so for me to say it’s not, that would be — that would be inconsistent with the assumptions. But I didn’t individually put a price tag by year for each of the four customers. So for me to say it’s no, I, I didn’t individually price tag it, no. Because you’d have to know the revenues, you’d have to know the cost, the cost structures and everything else to get to gross income number.

Dr. William Choi testified he had been retained by appellants to evaluate Janik’s analysis. Choi stated that Janik “ignored a number of real world facts that should have been incorporated under a proper damages methodology,” including Aim High’s loss of the Big Lots account in 2006. Choi testified in part that “[w]hat [Janik] has failed to do, and what he is required to do, is he must consider other evidence that would — that could potentially cause the difference to occur that’s outside of the four accounts at issue.” On cross-examination, Choi acknowledged that a lost profits analysis does not have to include a “customer-by-customer identification.” However, Choi testified, under the generally accepted accounting principals relied upon by Janik, “you have to consider relevant factual evidence that could change the financial performance outside of the four accounts.”

The trial court’s charge submitted to the jury contained eight questions. The jury found in relevant part (1) an agreement existed between Aim High and Exel, (2) Exel failed to comply with that agreement, (3) the lost profits that resulted from Exel’s breach of that agreement consisted of $91,875 in past profits and $275,625 in future profits, (4) a “reasonably recoverable” fee for the necessary services of Aim High’s attorneys with respect to Aim High’s breach of contract claim is $410,000 for preparation and trial, $50,000 for an appeal to the court of appeals, and $35,000 for an appeal to the supreme court of Texas, (5) Sipkoi and Sip-Code intentionally interfered with the agreement between Aim High and Exel, and (6) “in relation to the Yamaha and Menlo/Electrolux accounts,” the lost profits Aim High would have earned as a result of its agreement with Exel, but for the interference of Sip-koi and Sip-Code, consist of $64,375 in past lost profits and $168,125 in future lost profits. The trial court rendered judgment against appellants on November 18, 2008, awarding Aim High (1) $367,500 in damages against Exel; (2) $232,500 in damages against Sipkoi and Sip-Code; (3) costs, prejudgment interest, and post-judgment interest; and (4) $410,000 in attorney’s fees against Exel, plus additional attorney’s fees of $50,000 and $35,000 in the event of appeals to the court of appeals and supreme court, respectively.

Appellants filed various post-judgment motions, including motions for new trial, motions for judgment notwithstanding the verdict and to disregard certain findings, and a motion by Sipkoi and Sip-Code to modify the judgment. Exel contended in relevant part there is no evidence (1) that Aim High suffered $91,875 in past lost profits or $275,625 in future lost profits; (2) that damages found by the jury in response to question number three of the charge of the court were net lost profits suffered by Aim High versus gross revenues; (3) of net lost profits as to Aim High; (4) of the relationship between the damages awarded by the jury and the purported actions of Exel; or (5) that the actions of Exel caused the damages awarded by the jury. In response, Aim High asserted in part that “the jury’s exercise of discretion in weighing the evidence to arrive at a damage amount that was within the available range is appropriate under Texas law.” In a reply in support of its post-judgment motions, Exel argued that “Janik did not take into account that Aim High had no long-term contracts with any of its customers, nor did Janik consider that Aim High had lost its largest customer (producing over 65% of its revenues) through no fault of Exel, nor did Janik consider that Aim High had a history of losing 60% + of the customers it was servicing on a yearly basis.” After a hearing, appellants’ post-judgment motions were denied by the trial court.

On March 3, 2009, the trial judge signed an “Order on Plaintiffs Voluntary Remitti-tur,” in which the attorney’s fee award to Aim High was “remitted from $410,000 (exclusive of fees for an appeal to the Texas Court of Appeals and Texas Supreme Court, if necessary) to $300,000.” This appeal timely followed.

II. SUFFICIENCY OF EVIDENCE AS TO LOST PROFIT DAMAGES

We begin with appellants’ issues challenging the sufficiency of the evidence as to damages. In its second issue, Exel contends, in relevant part, that the evidence of damages is not legally or factually sufficient because there is “no evidence of a causal relationship between the supposed damages and the particular four alleged breaches, and the damages evidence is not reasonably certain, is speculative, and lacks objectivity.” Sipkoi and Sip-Code assert in their third issue that “[t]he evidence was legally and factually insufficient to support the jury’s damage award in this cause.” According to Sipkoi and Sip-Code, “[Aim High] never provided the jury with a lost profits calculation directed solely to the accounts at issue in this case, and never provided the jury with an amount or method by which they could calculate the lost profits which were ultimately awarded.” (emphasis original).

Aim High responds, in relevant part,

Texas law does not require a particular customer identification formula for proving lost profits; rather, lost profit opinions need only be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. What’s more, a jury has the discretion to award damages within the range of evidence presented at trial. Aim High’s principals, Carl Barata and Dennis Muoio, as well as Aim High’s damage expert, EJ Janik, presented sufficient testimony for the jury to calculate lost profits with reasonable certainty.

A. Standard of Review

When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate that no evidence supports the finding. See Private Mini Storage Realty, L.P. v. Larry F. Smith, Inc., 304 S.W.3d 854, 860 (Tex.App.-Dallas 2010, no pet.) (citing Cromher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983); Smith v. KNC Optical, Inc., 296 S.W.3d 807, 811 (Tex.App.-Dallas 2009, no pet.)); see also Atlas Copco Tools, Inc. v. Air Power Tool & Hoist, Inc., 131 S.W.3d 203, 206 (Tex.App.-Fort Worth 2004, pet. denied). We review the evidence presented at trial in the light most favorable to the jury’s verdict, crediting evidence favorable to that party if reasonable jurors could and disregarding evidence unless reasonable jurors could not. See Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005); Mood v. Kronos Prods., Inc., 245 S.W.3d 8, 11 (Tex.App.-Dallas 2007, pet. denied). Anything more than a “scintilla of evidence” is legally sufficient to support the jury’s finding. See Cerullo v. Gottlieb, 309 S.W.3d 160, 165-66 (Tex.App.-Dallas 2010, no pet.) (citing Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996)). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See id. at 166 (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). In conducting our review, we are mindful that the jury, as fact-finder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. See City of Keller, 168 S.W.3d at 819; Private Mini Storage Realty, L.P., 304 S.W.3d at 860. We may not substitute our judgment for the fact-finder’s, even if we would reach a different answer on the evidence. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998); Private Mini Storage Realty, L.P., 304 S.W.3d at 860.

B. Applicable Law

Lost profits are damages for the loss of net income to a business. Mood, 245 S.W.3d at 12 (citing Miga v. Jensen, 96 S.W.3d 207, 213 (Tex.2002)). The rule concerning adequate evidence of lost profit damages has been stated by the Texas Supreme Court as follows:

Recovery of lost profits does not require that the loss be susceptible to exact calculation. However, the injured party must do more than show that they suffered some lost profits. The amount of the loss must be shown by competent evidence with reasonable certainty. What constitutes reasonably certain evidence of lost profits is a fact intensive determination. At a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits may be ascertained. Recovery of lost profits must be based on one complete calculation.

Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (citations omitted).

The correct measure of damages for loss of profits is net profits. See Holt Atherton Indus, v. Heine, 835 S.W.2d 80, 83 n. 1 (Tex!992). “Net profits” are defined as “what remains in the conduct of business after deducting from its total receipts all of the expenses incurred in carrying on the business.” See Tuner v. PV InPl Corp., 765 S.W.2d 455, 456 (Tex.App.Dallas 1988), writ denied per curiam, 778 S.W.2d 865 (Tex.1989). “[W]hen the evidence supports a range of awards, an award of damages within that range may be an appropriate exercise of the jury’s discretion.” Hani v. Jimenez, 264 S.W.3d 881, 888 (Tex.App.-Dallas 2008, pet. denied).

C. Application of Law to Facts

Aim High contends that “[r]ather than requiring a particular ‘customer identification’ formula for proving lost profits, the Texas courts have emphasized the requirement that lost profit opinions ‘be based on objective facts, figures, or data from which the amount of lost profits can be ascertained.’ ” (citing Ishin Speed Sport, Inc. v. Rutherford, 933 S.W.2d 343, 350-51 (Tex.App.-Fort Worth 1996, no writ); Sw. Recreational Indus. v. Field-Turf No. 01-50073, 2002 WL 32783971, at *4-*5 (5th Cir. Aug. 13, 2002)). However, neither of the two cases cited by Aim High as authority for its position are applicable here. The Ishin case involved acts that completely prevented operation of the plaintiffs business. Ishin Speed Spoyt, Inc., 933 S.W.2d at 347 (breach prevented opening of driving school). Yet, Aim High does not contend, and no evidence shows, the acts of appellants completely prevented the operation of Aim High. The second case cited by Aim High involved a plaintiff that lost sales to twenty-nine prospective customers as a result of the defendant’s actions. Sw. Recreational Indus., 2002 WL 32783971, at *5. That plaintiff testified to the average price of its product and the typical profit margin on such sales, which was sufficient to uphold the damage award. Id. However, the record in this case is devoid of testimony regarding profit margins on the specific accounts lost as a result of the acts alleged. See id. Therefore, Sw. Recreational Indus, is also distinguishable.

Appellants argue the Szczepanik case has similar facts and is persuasive. See 883 S.W.2d at 648. In Szczepanik, First Southern Trust Company (“FST”), which managed retirement accounts, counterclaimed for lost profits in an action originally brought by a former employee who left FST in 1991 and took only certain identified customer accounts to a competing business. Id. at 649. FST offered damage evidence that it “managed assets of $350 million and expected to make a profit of $250,000 to $500,000 per year beginning in 1991.” Id. The supreme court concluded such evidence was legally insufficient to show lost profits because, in part, “there is nothing in the record that relates the total amount of profits FST expected to make beginning in 1991 to the profits FST lost as a result of the transfer of retirement accounts to [the competing business].” Id. at 650.

The record shows Aim High’s pleadings alleged wrongful acts of appellants as to four accounts: Yamaha, Funai, Del Monte, and Electrolux. In question number three of the charge of the court, the jury was asked what amount of lost profits “resulted from Exel’s breach of the Agreement.” In question number six of the charge, the jury was asked what amount of lost profits “Aim High would have earned as a result of the Agreement with Exel but for the interference” of Sipkoi and Sip-Code. Further, the jury was instructed that Aim High “is only seeking damages from Defendants Sipkoi and Sip-Code in relation to the Yamaha and Menlo/Electrolux accounts.”

The record contains no allegation or evidence of wrongful conduct of appellants involving any account other than the four identified in Aim High’s petition. However, Janik testified that his three damage models involved calculation of only “company-wide” lost profits. Additionally, Jan-ik testified he did not “price tag” damage “done by the loss of’ the four accounts at issue, individually. Aim High does not dispute that accounts lost by it during 2006 included the Big Lots account, which provided approximately 66% of Aim High’s 2006 revenue and was Aim High’s only account for which total annual sales exceeded one million dollars. Accordingly, on this record, we conclude that because the “company-wide” lost profits Janik calculated did not “relate” to the profits Aim High lost as a result of the acts alleged, Janik’s testimony, alone, did not constitute reasonably certain evidence of Aim High’s lost profits in this case. See Szczepanik, 883 S.W.2d at 650; see also Atlas Copco Tools, Inc., 131 S.W.3d at 208-09 (failure of appellee’s expert to establish lost profits with reasonable certainty was based in part on expert’s improper inclusion of lost profits from customers appellee chose to relinquish and customers who refused to purchase products due to dissatisfaction with appellee’s service).

Further, we cannot agree with Aim High that other evidence supports the damages in this case. Aim High asserts in its brief on appeal that Sipkoi earned approximately $145,000 in “net profit sales commissions” generated on the Yamaha account in 2007 and 2008. However, although the record contains one of Exel’s documents identified as “Yamaha Spreadsheet” that lists a total of approximately $145,000 in payments by Exel to Sipkoi, there is no indication in the record that those payments, which Sipkoi referred to at trial as “commissions,” constituted Sip-koi’s “net profit.” See Turner, 765 S.W.2d at 456 (net profits are “what remains in the conduct of business after deducting from its total receipts all of the expenses incurred in carrying on the business”). Additionally, Aim High asserts Muoio testified (1) he had expected to handle 524 loads per month for Del Monte, 138,000 loads per year for Electrolux, and 70 to 80 loads per month for Funai; and (2) loss of the four accounts at issue was “disrupting” to Aim High’s carrier network. However, Muoio’s testimony did not address Aim High’s net profits. See id. A review of the record shows no evidence of net profits made by any independent contractor with respect to any of the four accounts at issue, nor is there any evidence in the record from which such profits could be calculated. See id.; see also Mood, 245 S.W.3d at 11-12 (trial court did not err by disregarding jury’s award of lost profits where there was no evidence from which jury could calculate lost profits as a result of actions alleged).

Finally, Aim High argues “the jury’s exercise of discretion in weighing the evidence to arrive at a damage amount that was within or below the available range is appropriate under Texas law.” According to Aim High, a jury has the discretion to award damages within or below “the range of evidence presented at trial.” However, the rule more specifically stated by this Court is that “when the evidence supports a range of awards, an award of damages within that range may be an appropriate exercise of the jury’s discretion.” Hani, 264 S.W.3d at 888; see also Howell Crude Oil Co. v. Donna Refinery Partners, Ltd., 928 S.W.2d 100, 108 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (amount of damages below amount supported by evidence was appropriate where jury could have made reductions based on evidence). We concluded above that Janik’s testimony did not constitute reasonably certain evidence of Aim High’s lost profits in this case, and no other evidence in the record supported the lost profit damages at issue. Thus, because the evidence of the acts alleged as to the four specific accounts at issue did not “relate” to the company-wide lost profits calculations, an award of damages within the range of awards described by Janik was not “an appropriate exercise of the jury’s discretion.” See Szczepanik, 883 S.W.2d at 650; Hani, 264 S.W.3d at 888.

Based on foregoing analysis, we conclude the evidence of lost profit damages in this case is legally insufficient to support the jury’s damage award. See Szczepanik, 883 S.W.2d at 650. We decide in favor of Exel on the portion of its second issue challenging the sufficiency of the evidence as to damages and in favor of Sipkoi and Sip-Code on their third issue. Further, because this is a situation “where no evidence establishes any amount of lost profit damages with reasonable certainty,” a take-nothing judgment against Aim High is appropriate with respect to lost profit damages. ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex.2010) (contrasting situation in which rendering of judgment is appropriate with situation in which “competent evidence exists to establish some reasonably certain amount of lost profits — just not the particular amount awarded by the trial court,” which requires remittitur or remand); see also MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 666 (Tex.2009) (while remand for new trial is appropriate when there is “some evidence to support an amount of actual damages,” rendering of judgment was proper when there was “no evidence about the amount of damages at all”).

III. ATTORNEY’S FEES

In the remaining portion of its second issue, Exel contends that “if there is no evidence of a breach of contract or proper damages, or if the case is reversed and remanded, then Aim High is no longer entitled to recover attorney’s fees.” Section 38.001(8) of the Texas Civil Practice and Remedies Code provides that a party “may recover reasonable attorney’s fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for ... an oral or written contract.” Tex. Civ. Prac. & Rem. Code § 38.001(8) (Vernon 2008); see also MBM Fin. Corp., 292 S.W.3d at 666. To recover attorney’s fees under section 38.001(8), a party must (1) prevail on the cause of action for which attorney’s fees are recoverable and (2) recover damages. MBM Fin. Corp., 292 S.W.3d at 666; see also Intercontinental Group P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 651 (Tex.2009); Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997). Because we have concluded that Aim High is not entitled to lost profits, it has recovered no damages, precluding any award of attorney’s fees. See MBM Fin. Corp., 292 S.W.3d at 666; Intercontinental Group P’ship, 295 S.W.3d at 651; Solis, 951 S.W.2d at 390. Accordingly, we decide in favor of Exel on the portion of its second issue respecting attorney’s fees.

IV. CONCLUSION

Based on the record and the appropriate standard of review, we conclude the evidence in this case is legally insufficient to support the jury’s damage award. Additionally, we conclude Aim High is not entitled to recovery of attorney’s fees. We decide in favor of Exel on its second issue and in favor of Sipkoi and Sip-Code on their third issue. In light of the resolution of those issues, we need not address appellants’ remaining issues.

We reverse the judgment of the trial court and render judgment that Aim High take nothing on its claims.

      . Aim High’s fraudulent inducement claim against Exel was nonsuited during trial and is not at issue in this appeal.


source: Caselaw Access Project

author: Opinion by Justice RODRIGUEZ.

license: Public Domain

text:
    ROBINSON & HARRISON POULTRY CO., INC., Appellant, v. Marcelo GALVAN, Analicia R. Galvan, and Proveedores International, Inc., Appellees.
    No. 13-08-00650-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    June 17, 2010.
    Rehearing and Rehearing En Banc and Reconsideration Denied Aug. 26, 2010.

      Sidney R. Meadows, McAllen, Leticia Hinojosa, Edinburg, for Appellant.
    David H. Jones, Tracy A. Spillman, Michael A. McGurk, Raymond L. Thomas, Adam J. Gonzalez, Kittleman, Thomas & Gonzalez, McAllen, for Appellees.
    Before Justices RODRIGUEZ, GARZA, and BENAVIDES.
   OPINION

Opinion by Justice RODRIGUEZ.

Appellant/cross-appellee Robinson & Harrison Poultry Co., Inc. (Robinson & Harrison) sued appellee/cross-appellant Marcelo Galvan and appellees Analicia R. Galvan and Proveedores International, Inc. (International) asserting causes of action that arose from commercial transactions between the parties. The Galvans and International also filed claims against Robinson & Harrison, including a counterclaim for usury. By five issues, which we reorganize as three, Robinson & Harrison complains that the trial court committed reversible error in awarding attorney’s fees to the Galvans and International because (1) the charge issue on usury liability was improper, (2) no actual damages were awarded, and (3) there was a limitations bar. By a single issue on cross-appeal, Marcelo claims that the trial court erred in failing to calculate damages on the usury claim. We affirm.

I.Background

The undisputed facts reveal that Marcelo, together with Juan Trevino, owned and operated a business known as Proveedores de Tejas (Tejas). With Robinson & Harrison, Tejas exported poultry products to customers in Mexico. Tejas provided the customers; Robinson & Harrison the product and financing. Because of an unpaid debt of $40,000, owed to Robinson & Harrison by Tejas, Robinson & Harrison stopped doing business -with Tejas. When Marcelo and Robinson & Harrison later discussed renewing the export business through International, a new company wholly owned by the Galvans, Robinson & Harrison agreed to extend credit but only on the condition that Marcelo and Analicia would assume the past indebtedness of Tejas. They did so on March 20, 1995, and Robinson extended new credit in the amount of $10,000. The money was to be re-paid within twenty-one days with no agreed rate of interest on this transaction. Marcelo successfully paid Tejas’s past debt owed to Robinson & Harrison. However, as Thomas Robinson, president of Robinson & Harrison, testified at trial, by the end of 2003, International owed Robinson & Harrison over $100,000 for missing products.

Robinson & Harrison filed suit against Marcelo, Analicia, and International in County Court at Law No. 4, Hidalgo County, Texas, asserting multiple causes of action including fraud, conversion, and suit on an unpaid account. Robinson & Harrison alleged that International defaulted by failing to make payments on its account and that the principal balance due was over $100,000. Marcelo, Analicia, and International counterclaimed for usury asserting that the entire debt that they assumed as a condition for Robinson & Harrison’s extension of credit constituted interest under Texas law, thus, the transaction was usurious. They also filed a new and separate lawsuit against Robinson & Harrison in the 389th District Court, Hidalgo County, Texas, asserting, among other claims, breach of fiduciary duty and interference with contracts. By agreement, all claims were joined in the 389th District Court.

Following a trial on the merits, the jury returned a mixed verdict. The jury found for Robinson & Harrison on its suit on an unpaid account against Marcelo and International and awarded it $97,000 in actual damages and a total of $295,405 in attorney’s fees. The jury also found for Marcelo and International on their claim against Robinson & Harrison for interfering with their contractual relations. The jury awarded Marcelo and International $50,000 in actual damages. As to the usury claim, although the jury found that Robinson & Harrison required the Galvans to assume the past indebtedness of Tejas as a condition of Robinson & Harrison extending credit to Marcelo, it awarded no actual damages based on this finding. The jury did, however, award the following “reasonable fee for the necessary services of [the Galvans and International’s] attorney”: $272,502.50 for preparation and trial, plus $125,000 if appealed to the court of appeals and $50,000 if appealed to the supreme court. The trial court rendered judgment in conformity with the verdict. It is from the usury findings that all parties appeal.

II. Discussion

By three issues, Robinson & Harrison contends that the trial court committed reversible error in ordering that the Gal-vans and International recover attorney’s fees based on their usury claim because there was no jury question that would support a liability finding and because the award of attorney’s fees was not supported by an award of actual damages. It also asserts a limitations bar.

A. Waiver

Before reaching Robinson & Harrison’s complaints, we address the Gal-vans and International’s assertion that Robinson & Harrison waived its right to complain because it moved for judgment on the entire jury verdict. When a party moves for entry of judgment and the trial court enters the judgment, the party cannot later complain of that judgment. Casu v. Marathon Ref. Co., 896 S.W.2d 388, 389 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (op. on reh’g); Transmission Exch., Inc. v. Long, 821 S.W.2d 265, 275 (Tex.App.-Houston [1st Dist.] 1991, writ denied); see First Nat’l Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex.1989) (per curiam). However, the right to complain about a judgment on appeal is preserved when a movant for judgment states “in its motion to enter judgment that it agrees only with the form of the judgment,” and notes “its disagreement with the content and result of the judgment.” Casu, 896 S.W.2d at 390 (citing Fojtik, 775 S.W.2d at 633). A motion for entry of judgment should contain an express reservation to preserve the right to complain about a judgment on appeal. See Fojtik, 775 S.W.2d at 633.

The jury in this case reached a verdict on June 15, 2006, awarding, among other things, attorney’s fees to the Galvans and International to be paid by Robinson & Harrison. On June 21, 2006, Robinson & Harrison filed its original motion for entry of judgment. In this motion, and relevant to this appeal, Robinson & Harrison noted that although the verdict shows that the trial court should render judgment for Marcelo and International against Robinson & Harrison for $50,000 for tortious interference,

[t]he verdict further shows that [the Galvans and International] are not entitled to attorney[’]s fees on the issue of Usury because there was no issue submitted by [the Galvans and International] to determine Usury liability and the jury’s response to Issue No. 7 was that there are no Usury damages. Taken as a whole, [the Galvans and International] failed to meet their burden to prevail on a cause of action that would entitle them to a recovery of attorney[’]s fees.

Although Robinson & Harrison requested “that the Court render judgment in accordance with the jury verdict,” it also requested that the trial court “render judgment in accordance with the proposed form of Judgment attached to this motion as Exhibit ‘A’.... ” Its proposed final judgment granted Robinson & Harrison’s motion for entry of judgment on the ver-diet and decreed that Marcelo receive judgment for tortious interference against Robinson & Harrison and be awarded $50,000 plus pre-judgment interest. It also decreed that the Galvans and International “are not awarded any attorney[’]s fees on Usury because the jury found there were no damages due for Usury.”

Based on this language, we conclude Robinson & Harrison preserved its right to complain on appeal about the award of attorney’s fees to Marcelo and International. Robinson & Harrison noted in its motion for entry of judgment that it disagreed with the jury’s award of attorney’s fees to the Galvans and International based on the usury cause of action. See Casu, 896 S.W.2d at 390 (citing Fojtik, 775 S.W.2d at 633). It specifically set out the basis for its disagreement, and its proposed judgment reflected the same basis. Thus, the motion contained an express reservation to preserve the right to complain on appeal about this portion of the judgment. See Fojtik, 775 S.W.2d at 633.

Furthermore, Robinson & Harrison’s second motion for new trial filed on September 2, 2006, referenced its earlier filed motion, its proposed judgment, and a July 5, 2006 hearing held on these matters. In its second motion, Robinson & Harrison outlined that it had been fourteen weeks since the jury returned its verdict, eleven weeks since the hearing, and more than ten weeks since the court deadline to submit briefs. Finally, Robinson & Harrison requested that the trial court enter judgment herein. In its third and final motion for entry of judgment filed on November 13, 2006, Robinson & Harrison again reviewed the timing of the verdict and the filing of its earlier motions for entry of judgment and specifically noted that it had been five months since the jury returned its verdict. Robinson & Harrison then requested that the court “immediately enter a [jjudgment consistent with the verdict herein.”

Courts must read a pleading for its content rather than its label. See generally Tex.R. Civ. P. 71 (addressing a misnomer of a pleading); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (providing that a court looks to the substance of a plea for relief, not merely the title, to determine the nature of a pleading). Looking at the substance of Robinson & Harrison’s motions, we construe the second and third motions for entry of judgment as supplemental motions, not amended motions or new motions. See Tex.R. Civ. P. 62, 63 (defining and explaining amendments of petitions, answers, pleadings, responses, or pleas for relief), 69 (explaining supplementation of a petition or answer), 71; In re Fifty-One Gambling Devices, 298 S.W.3d 768, 771-73 (Tex.App.Amarillo 2009, pet. denied) (concluding that the use of the terms “supplemental” and “amended” in the title of the motions did not alter their effect but rather, after reviewing the purpose of the pleadings and the substance of the motions, expanded the original recusal claim to include a constitutional claim of denial of due process and a claim of improper ex parte communication between the trial court and counsel for the State); Bennett v. Wood County, 200 S.W.3d 239, 241 (Tex.App.-Tyler 2006, no pet.) (“An amended pleading supplants earlier pleadings, and the supplanted pleading is no longer part of the pleading in the cause.”); J.M. Huber Corp. v. Santa Fe Energy Res., 871 S.W.2d 842, 844 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (“An amended petition ... supersedes all prior petitions.... ”). It is apparent that Robinson & Harrison’s second and third motions for entry of judgment were not intended to supersede the original motion. Rather, by filing second and third motions, Robinson & Harrison was attempting to bring to the trial court’s attention that there had been one extended delay after another in the entry of judgment and that a judgment as proposed in its first motion should be rendered in the case. Robinson & Harrison was asserting its position that a significant time period had passed since the filing of each previous motion and yet no judgment had been entered. Thus, we construe Robinson & Harrison’s second and third motions for entry of judgment as supplemental motions to be read in conjunction with its first-filed motion. Accordingly, Robinson & Harrison did not waive its right to complain about the award of attorney’s fees to the Galvans and International.

B. Usury Liability

By its first issue, Robinson & Harrison complains of charge error, arguing that it properly objected to Question 6. In response, the Galvans and International assert that Robinson & Harrison failed to preserve error.

The proposed charge included two usury questions. Question 6 asked “Did Robinson & Harrison Poultry Co. require Marcelo Galvan and Analicia Galvan to assume the past indebtedness of Tejas as a condition of extending credit to Marcelo Gal-van?” If the jury answered “yes” to Question 6, it was to answer Question 7, the damages question, which provided the following:

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Plaintiffs for their damages, if any, that resulted from such usury?
Consider the following elements of damages, if any, and none other.
(1) Twenty percent of the amount of the principal, (2) plus the principal amount on which the interest was charged and received, (3) plus the interest charged and received.

At the charge conference on June 14, 2006, Robinson & Harrison objected as follows:

[W]e have challenged the damage[s] question on usury. We feel that asking the jury to consider — there is [sic] three parts of the damages. And we feel that by submitting Parts 2 and 3, that’s an impermissible comment on the weight of the evidence!] because it presumes double usury.[]

The only objection voiced by Robinson & Harrison at the charge conference was to the instruction given as part of the usury damages question; the basis for the objection was that the instruction was “an impermissible comment on the weight of the evidence because it presumes double usury.” The trial court overruled this objection and stated that the charge would be submitted “as is.” Because of the late hour, the trial court informed the parties that it would sign the charge at the hearing but would not file it until the next morning before it was read to the jury. The trial court asked if counsel for Robinson & Harrison had “[a]ny problem with that?”. Counsel responded, “No, Your Honor. Given the hour, that seems to be logical.” The trial court signed the charge, stated that it would be “filed officially tomorrow morning,” and again overruled Robinson & Harrison’s objections.

“ ‘[A] party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection.’ ” Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex.2007) (quoting Tex.R. Civ. P. 274). Objections to the charge and requests for instructions must, however, comport with the arguments made on appeal. See Isaacs v. Bishop, 249 S.W.3d 100, 113 n. 13 (Tex.App.-Texarkana 2008, pet. denied); Coke v. Coke, 802 S.W.2d 270, 275 (Tex.App.-Dallas 1990, writ denied). “In the absence of an objection at trial that matches the complaint on appeal, nothing has been preserved for our review.” Isaacs, 249 S.W.3d at 113 n. 13 (citing Tex.R.App. P. 33.1).

Robinson & Harrison objected to Question 7, pointing out distinctly the objectionable matter — namely parts 2 and 3, which instructed the jury on the damage calculation. See Ledesma, 242 S.W.3d at 43; see also Tex.R. Civ. P. 274; Tex.R.App. P. 33.1(a). Furthermore, Robinson & Harrison stated that the ground of its objection was that the objectionable matter was a comment on the weight of the evidence. See Ledesma, 242 S.W.3d at 43; see also Tex.R. Civ. P. 274; Tex.R.App. P. 33.1(a). The trial court overruled Robinson & Harrison’s objection to the usury damages question. See TexRApp. P. 33.1(a).

On appeal, Robinson & Harrison does not challenge Question 7. Complaining only of Question 6, Robinson & Harrison generally asserts that Question 6 was not worded properly to support a finding of usury. Specifically, Robinson & Harrison now asserts the following bases for charge error: (1) there cannot be a finding of usury because there is no proof of any loan to Marcelo; (2) Question 6 is not sufficient to support a finding of usury liability because there is no evidence of any legal interest; (3) Tejas is an alter ego of Marcelo and not a third party; and (4) the jury could have found that the debt assumed was legal interest depending on the amount and duration of the loan. By these contentions, Robinson & Harrison complains of the omission of elements from the charge and evidentiary matters, not of the trial court’s alleged comment on the weight of the evidence. We conclude that Robinson & Harrison’s arguments on appeal do not comport with the objection raised in the trial court. See Isaacs, 249 S.W.3d at 113 n. 13. Therefore, because Robinson & Harrison’s objection at trial does not match its complaint on appeal, nothing has been preserved for our review. See id. (citing Tex.R.App. P. 33.1).

We also note that on June 15, 2006, the morning following the charge conference and immediately before the hearing on Robinson & Harrison’s motion for instructed verdict, Robinson & Harrison filed the following objection to the proposed jury charge issues on usury:

Defendants will show that Plaintiffs have the burden of proof as to each element of each cause of action. The elements of usury are: (1) a loan of money; (2) an absolute obligation to repay the princip[al]; (3) the exaction of a greater compensation than allowed by law for the use of the money by the borrower. First Bank v. Tony’s Tortilla Factory, Inc.[,] 877 S.W.2d 285, 287 (Tex.1994).
Plaintiffs failed to submit any evidence regarding the principal] amount of the loan or the duration of the loan. Therefore plaintiffs failed to meet their burden to present evidence that would allow the jury to calculate the “compensation allowed by law”.

In this written objection, Robinson & Harrison asked the trial court to strike plaintiffs’ issues submitted to the jury for usury liability and damages. At the hearing later that morning, the following exchange occurred between the trial court and Robinson & Harrison’s counsel:

[Counsel]: Your Honor, I have also prepared — which I stated yesterday, verbally, which I had prepared — a ... proposed issue on Question Number 6 with existence of usury, a question for — I have a new 6(a) for the user [sic] liability, [and] Number 7 for usury damages.... I would like — I have filed these with the Court. I would like to bring these to the Court’s attention.
The Court: [Counsel], you didn’t file these in writing yesterday. You made your objections yesterday orally. These are what they are.
I had already signed with no objections from any party yesterday and formally file-stamped it this morning, but it was signed yesterday.
These were filed after we have [sic] already completed the objections on the charge yesterday.
[Counsel]: I had filed other written questions, and I did make objections. These — in particular, on the issue — on the issue of the usury, Question Number 6 simply asks—
The Court: [Counsel], with all due respect, these were filed after we had already finished the charge yesterday. You were supposed to file those things in writing before the charge.
[Counsel]: Your Honor, we need to file these after the parties close and before issues are submitted to the jury.
The Court: I disagree. You are supposed to file it before we are finished with the charge. We finished the charge yesterday.
But they are what they are, and my rulings are what they are. And if this is taken up, you can make that issue.
[Counsel]: I just want to make sure — I want to make sure I didn’t pick up the Court’s copy. Does the court have?
The Court: ... I don’t actually have originals. These were actually copies, but they are file-stamped.
[Counsel]: Okay. Thank you, Your Honor.
[Counsel]: I am objecting] — I’m objecting to the submission of these proposed jury issues since it’s a greater weight of preponderance of the evidence and since there is no evidence of these jury issues.
The Court: With all due respect, that was done after we had already filed the charge, your objection. You should have made your objection before the filing of the charge.
[Counsel]: For the record, these objections have already been done outside the presence of the jury and before the jury has been advised of the Court.
The Court: Okay.

No ruling appears in the record.

After counsel for Robinson & Harrison stated that it had prepared new proposed issues for the usury questions that he would like to bring to the Court’s attention, the trial court, referring to its rulings made during the June 14 charge conference, informed counsel that “my rulings are what they are.” The trial court made no explicit ruling on this objection, and, from our review of the record, we cannot conclude that the trial court implicitly ruled on this objection or refused to rule and Robinson & Harrison objected to the refusal. See Tex.R.App. P. 33.1(a)(2)(A). Because Robinson failed to obtain a ruling, this objection has not been preserved for our review. See id. at Rule 33.1.

Having concluded neither objection was preserved for our review, we overrule Robinson & Harrison’s first issue.

C. Attorney’s Fees Award

By its second issue, Robinson & Harrison contends that, even if usury liability is found, the award of attorney’s fees is not supported by the usury claim because no actual damages awarded. The availability of attorney’s fees under a particular statute is a question of law for the court. Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94 (Tex.1999) (per curiam). We therefore review the issue de novo. El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999); see The Cadle Co. v. Ortiz, 227 S.W.3d 831, 835 (Tex.App.-Corpus Christi 2007, pet. denied).

1. Section 38.001 of the Civil Practice and Remedies Code

Robinson & Harrison first asserts that no attorney’s fees should have been awarded to Marcelo and International under section 38.001 of the Texas Civil Practice and Remedies Code. See Tex. Crv. Prac. & Rem.Code Ann. § 38.001 (Vernon 2008). We agree that, pursuant to section 38.001, when no damages are awarded in claims for rendered services, performed labor, furnished material, freight or express overcharges, lost or damaged freight or express, killed or injured stock, a sworn account, or an oral or written contract, no attorney’s fees may be awarded. Id.; see, e.g., Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex.1997) (“Because Green failed to recover damages on its breach of contract claim, Green was not entitled to recover attorney’s fees under Section 38.001.”). Marcelo and International’s claim is not, however, a claim covered by section 38.001. See Tex. Civ. PRAC. & Rem. Code Ann. § 38.001. It is a claim for usury. Therefore, Robinson & Harrison’s reliance on section 38.001 of the civil practice and remedies code is misplaced.

2. Section 305.005 of the Finance Code

While acknowledging that section 305.005 of the finance code allows for attorney’s fees related to usury, Robinson & Harrison asserts, nonetheless, that the jury verdict in this case does not support a claim for attorney’s fees because there is no finding here that Robinson & Harrison was liable for usury and no actual damages were awarded. See Tex. Fin.Code Ann. § 305.005 (Vernon 2006); C & K Invs. v. Fiesta Group, Inc., 248 S.W.3d 234, 251 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (confirming that under finance code section 305 a party can only recover attorney’s fees when the defendant is first found liable for usury); Hoxie Implement v. Baker, 65 S.W.3d 140, 150 (Tex.App.Amarillo 2001, pet. denied) (holding that before a plaintiff can hold a defendant liable for attorney’s fees, the jury must first find a defendant liable under the finance code). The jury, however, found in response to Question 6 that Robinson & Harrison required the Galvans to assume the past indebtedness of Tejas as a condition of extending credit to Marcelo. Having concluded that Robinson & Harrison preserved no charge error as to Question 6 and that it has presented no evidentiary issues for our review, Question 6 was the only usury liability question before the jury. See Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990) (citing 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 no objection is made and they are supported by some evidence.”). By answering this question in the affirmative, the jury found Robinson & Harrison liable for usury.

Furthermore, section B05.005 of the finance code states that “[a] creditor who is liable under Section 305.001 or 305.003 is also liable to the obligor for reasonable attorney’s fees set by the court.” Tex. Fin.Code Ann. § 305.005; see id. § 305.001(a — 1) (Yernon 2006) (providing for creditor liability for contracting for, charging, or receiving usurious interest in connection with a commercial transaction); see also § 305.003 (Vernon 2006) (providing for creditor liability for charging or receiving legal interest that is greater than the amount authorized by the subtitle, entitled “Interest”). The award of reasonable attorney’s fees under section 305.005 is dependent only on the establishment of creditor liability, not on a finding of actual damages. See id. § 305.005; see also Dyer v. Atteberry, No. 05-07-00284-CV, 2008 WL 541824, at *4, 2008 Tex.App. LEXIS 1508, at *10 (Tex.App.-Dallas Feb. 29, 2008) (mem. op.) (holding that because the counterclaim for attorney’s fees was dependent upon a usury claim which the claimant failed to establish, the court found no error in the failure to award attorney’s fees) (citing Tex. Fin.Code. Ann. § 305.005); cf. Johns v. Ram-Forwarding, Inc., 29 S.W.3d 635, 637-38 (Tex.App.Houston [1st Dist.] 2000, no pet.) (holding, pursuant to section 134.005(b) of the civil practice and remedies code which provides “each person who prevails in a suit under this chapter shall be awarded court costs and reasonable and necessary attorney’s fees,” that the plaintiff who received zero damages on his Theft Liability Act claim was entitled to recover attorney’s fees because the jury found that the defendant committed civil theft); Nw. Bank v. Couie, 642 S.W.2d 847, 851 (Tex.App.-Fort Worth 1982, no writ) (finding, under predecessor statute to section 349.003 of the finance code, that “actual damages were not necessary items of proof to be made ... in order to recover under ... [article 5060, section 8.01(b) of the Consumer Credit] Code” because these penalties are not compensatory in nature and do not require a showing of actual damage); Stephens v. Friendly Chevrolet, Ltd., No. 05-04-00788-CV, 2005 WL 977834, at *2, *4, 2005 Tex.App. LEXIS 3170, at *5, *11 (Tex. App.-Dallas Apr. 28, 2005, pet. denied) (mem. op.) (explaining that section 349.001 of the finance code provides statutory penalties for violations of the provisions of chapter 348 and because “these penalties are not compensatory in nature” they “do not require a showing of actual damage”). Even though no actual damages were found, we conclude that the trial court properly concluded that attorney’s fees were available in this case because the jury found liability. We overrule Robinson & Harrison’s second issue.

3. Statute of Limitations

By its third issue, Robinson & Harrison contends that the usury claim is barred by the four-year statute of limitations. However, this contention is not supported by clear and concise arguments with appropriate citations to authorities and to the record and is, thus, inadequately briefed. See Tex.R.App. P. 38.1(i). We overrule Robinson & Harrison’s third and final issue.

4. No Actual Damages Awarded

By his sole issue, cross-appellant Marcelo complains that the trial court erred in refusing to calculate damages on his usury claim and that the zero damages awarded by the jury is immaterial and must be disregarded because it is outside the jury’s province. Marcelo now seeks to have this Court correct the trial court’s alleged error through a proper calculation of actual damages and modification of the final judgment.

Parties, however, may not invite error by requesting that an issue be included in the charge and then by objecting to its submission. See, e.g., Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex.1993); Winkle v. Tullas, 917 S.W.2d 304, 316 (Tex.App.-Houston [14th Dist.] 1996, writ denied); see also Maddox v. Denka Chem. Corp., 930 S.W.2d 668, 670-71 (Tex.App.-Houston [1st Dist.] 1996, no writ) (“A party cannot complain when the judge submits an issue substantially similar to the one it requested.”). After finding that Robinson & Harrison required the Galvans to assume the past indebtedness of Tejas as a condition of extending credit to Marcelo, the jury was asked to answer a damages question based on what Marcelo submitted as the measure of recoverable damages. The question instructed the jury to calculate damages as twenty percent of the amount of the principal, plus the principal amount on which the interest was charged and received, plus the interest charged and received. As instructed, the jury considered the elements set out in the charge and awarded zero damages.

Marcelo did not object to the submission of this damages question. At the charge conference, counsel for Marcelo stated that, in respect to the final form of the charge, he did “not have any proposed instructions, objections or requests.” He had “no objections to the charge.” Before the jury returned its verdict, Marcelo did not bring to the trial court’s attention that the damages issue either failed to apply the proper measure of damages or applied an improper measure of damages. Instead, Marcelo requested the very issue that he now seeks to avoid. Thus, Marcelo invited the error about which he now complains. Maddox, 930 S.W.2d at 670-71.

Nonetheless, Marcelo argues that the invited error doctrine does not apply in this case because he requested that the error be corrected while the court had plenary power to do so and the trial court refused to do so. See Yaquinto v. Britt, 188 S.W.3d 819, 829 (Tex.App.-Fort Worth 2006, pet. denied) (explaining that the invited-error doctrine did not apply under the facts of the case because a trial court may reconsider and change its order any time as long as it has plenary power); see also McLendon v. McLendon, 847 S.W.2d 601, 604-05 (Tex.App.-Dallas 1992, writ denied) (concluding that the invited-error doctrine did not apply because the appellant made the objections to the agreed divorce decree known to the trial court following the agreement). After the verdict was received, Marcelo filed a motion for judgment notwithstanding the verdict, motion to disregard jury findings and, in the alternative, motion for new trial with a supplemental brief in support thereof, asking the trial court to apply other measures of damages. After the judgment was entered, Marcelo filed a motion to modify, correct, or reform the judgment. In his motions, Marcelo alleged that the jury’s finding to Question 7, concerning usury damages, was immaterial and that the trial court had a duty to calculate actual damages. The motions and brief described, in detail, what Marcelo referred to as a proper measure for calculating damages and an alternative measure. Now, on appeal, Marcelo reasons that because he informed the trial court of the error with time to correct it and the trial court refused, he neither waived his complaint on appeal nor is estopped from complaining. We disagree because “the trial court was not authorized to disregard the jury’s finding of damages on that ground when [Marcelo made] no distinct objection to the measure of damages ... before submission.” Mowery v. Fantastic Homes, Inc., 568 S.W.2d 171, 172-173 (Tex.Civ.App.-Dallas 1978, no writ) (citing Allen v. Am. Nat’l Ins. Co., 380 S.W.2d 604, 609 (Tex.1964); Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922, 930 (Tex.Civ.App.-Austin 1936, no writ)). “If a party is precluded from urging errors in the charge if no distinct objection is made prior to submission, then surely the trial court may not ... disregard material issues which have been submitted without a proper objection.” Mowery, 568 S.W.2d at 172-173; see Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex.1987) (“Although we agree that damages must be measured by a legal standard which serves to guide the jury in determining compensation for the injured party, the Bonds waived any error in the submission by failure to properly object.”); Iron Mountain Bison Ranch, Inc. v. Easley Trailer Mfg., Inc., 42 S.W.3d 149, 156-57 (Tex.App.-Amarillo 2000, no pet.); see also Tex.R. Civ. P. 274.

Therefore, even if the measure of damages in the charge was improper, Marcelo cannot complain because the trial court submitted the damages question he requested; he invited the error. See Maddox, 930 S.W.2d at 670-71. Moreover, the trial court was not authorized to disregard the jury’s finding of zero usury damages when no distinct objection to the measure of those damages was made before submission. See Mowery, 568 S.W.2d at 172-173.

Marcelo also asserts that the jury’s zero damages award is immaterial and must be disregarded because it was outside the jury’s province. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.1994) (op. on reh’g) (defining an immaterial jury question as one that “should not have been submitted” and as “[a] question which calls for a finding beyond the province of the jury, such as a question of law”). Again, this contention is not persuasive because Marcelo requested that the jury determine damages. See Moody v. Main Bank of Houston, 667 S.W.2d 613, 620 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.) (holding, in a “debt assumption” usury case, that a debt- or’s request that a question be submitted to the jury estops him from subsequently complaining that the question and jury finding were irrelevant or immaterial).

Finally, relying on Duggan v. Marshall and Miller v. First State Bank, Marcelo sets out the following proposition of law: When usury is properly pleaded and supported by the record, the measure of damages is a matter of law, and the trial court has the duty to apply the proper measure of damages. Duggan, 7 S.W.3d 888, 892 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (applying this proposition in a common-law usury case and concluding that a common-law usury claim survived to Marshall’s estate and that, therefore, “the trial court was authorized to render judgment for Marshall’s estate in the amount of $191,800 against Duggan upon the jury’s finding that Duggan and Marshall had agreed to a 20 percent interest rate, which the parties agree is usurious”); Miller, 551 S.W.2d 89, 102 (Tex.Civ.App.-Fort Worth 1977) (op. on reh’g) (applying this proposition in a non-jury trial), modified on other grounds, 563 S.W.2d 572 (Tex.1978). By his appellate arguments, Marcelo asserts that the trial court had a duty to apply the correct measure of damages and to calculate the damages based on that measure. The cases cited, however, do not stand for the proposition that the trial court must apply the correct measure of damages and calculate the damages as a matter of law when the damages issue is submitted to the jury, without objection. See Duggan, 7 S.W.3d at 892; Miller, 551 S.W.2d at 102; see also Iron Mountain Bison Ranch, Inc., 42 S.W.3d at 156-57 (explaining that reversal is required when a damages question incorporates a legally-incorrect measure of damages only if there was a rule 274 objection made) (citing Tex.R. Civ. P. 274). Marcelo has cited no authority supporting his argument under the facts of this case, and we find none. Marcelo’s cross-issue is overruled.

III. Conclusion

Having overruled Robinson & Harrison’s issues and Marcelo Galvan’s cross-issue, we affirm the judgment of the trial court.

      . Juan Trevino was not a party in the underlying litigation.

      . This is the transaction that forms the basis of Marcelo's usury claim.

      . The foregoing facts form the basis of Robinson & Harrison's claims.

      . Marcelo and International do not challenge this finding of liability, the award of actual damages, or the award of attorney's fees against them.

      . Robinson & Harrison does not complain of this liability finding or the damages awarded against it based on the finding.

      . The trial court also entered judgment that Robinson & Harrison take nothing from Ana-licia and that it take nothing from Marcelo on its claims of conversion and fraud. Robinson & Harrison does not challenge these take-nothing judgments.

      . We note that a transcript of the July 5, 2006 hearing does not appear in the appellate record.

      . "Herein” is defined as "a vague word in legal documents, for the reader can rarely be certain whether it means in this subsection, in this section (or paragraph), in this document, or in this transaction. A more precise phrase, such as any of the three just listed, is preferable.” Bryan Garner, A Dictionary of Modern legal Usage 401 (1995). While a more precise phrase would have been preferable in this case, we construe the use of the word "herein” as referring to the verdict as proposed in Robinson & Harrison's first-filed motion for entry of judgment and referred to in its second motion.

      . Texas Rule of Civil Procedure 277 provides that,
      [t]he court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court’s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.
      Tex.R. Civ. P. 277. "To be a direct comment on the weight of the evidence, the issue submitted must suggest to the jury the trial court’s opinion on the matter.” Indian Beach Prop. Owners’ Ass’n v. Linden, 222 S.W.3d 682, 702-03 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (citing H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 24 (Tex.1998); South

        mark Mgmt. Corp. v. Vick, 692 S.W.2d 157, 160 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.)).

      . "Double usury” is "interest in excess of double the amount of legal interest.” Danziger v. San Jacinto Sav. Ass’n, 732 S.W.2d 300, 303 (Tex.1987). As a remedy for doubly usury, the usury statutes provide for the remedy of cancellation of the principal debt as well as other penalties. See Armstrong v. Steppes Apts. Ltd., 57 S.W.3d 37, 48 (Tex.App.-Fort Worth 2001, pet. denied) (explaining that "the current finance code contains both a forfeiture penalty and a penalty for double usury”) (citing Tex. Fin.Code Ann. §§ 305.001, 305.002).

      . Robinson & Harrison also asserts, as a basis for error, that the jury's zero award of damages in response to Question 7 affirmatively negated any possible finding of usury. To the extent Robinson & Harrison is attempting to argue conflicting jury findings when it contends that ‘‘[t]he zero damages is also a basis to show that the Jury did not in fact make a finding on any Usury liability," it did not raise that contention in the trial court before the jury was discharged and has, therefore, not preserved the argument for our review. See Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 865 (Tex.App.-Corpus Christi 1999, pet. denied) ("In order to preserve error, the appellant must object to the conflict or inconsistency before the jury is discharged.”); see also Tex.R. Civ. P. 295 (providing that if the jury's verdict is "incomplete, or not responsive to the questions contained in the court's charge, or the answers to the questions are in conflict, the court shall in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict, provide the jury such additional instructions as may be proper, and retire the jury for further deliberations”).
      Furthermore, Robinson & Harrison's attempt, if any, to raise challenges to the sufficiency of the evidence is inadequately briefed. See Tex.R.App. P. 38.1 (i) (providing that issues on appeal must be supported by clear and concise arguments with appropriate citations to authorities and to the record).

      . Marcelo and International . prevailed against Robinson & Harrison on their claim of tortious interference with a contract. It is undisputed, however, that this liability finding does not support an award of attorney’s fees. See Smith v. Hennington, 249 S.W.3d 600, 606 (Tex.App.-Eastland 2008, pet. denied) (providing that attorney's fees may be recovered from an opposing party only when permitted by statute or by contract, and no statutory or contractual basis exists for the recovery of attorney’s fees under the plaintiffs’ tortious interference claims) (citing Hoi-

        land. v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex.1999) (per curiam)).

      . Robinson & Harrison also asserts that the damages requested — i.e., "the principal amount on which the interest is charged and received” — are available only when there is a contract or transaction for personal, family, or household use. See Tex. Fin.Code Ann. §§ 305.002(b), 349.002(a) (Vernon 2006). The jury was asked to determine damages founded, in part, on this language. Robinson & Harrison, however, did not present this objection to the trial court. See Tex.R. Civ. P. 274; Tex.R.App. P. 33.1(a); see also Tex.R. Civ. P. 278. We, therefore, conclude that this argument is waived.

      . In his motion for judgment notwithstanding the verdict and motion to disregard the jury findings and, in the alternative, motion for new trial, Marcelo asked the trial court to apply the proper measure of damages set forth in sections 349.001 and 349.002 of the finance code, which, in combination, provided for (1) twice the amount of interest contracted for, charged, or received, and (2) forfeiture of all interest and all principal charged as an additional penalty. See Tex. Fin Code Ann. §§ 349.001, 349.002 (Vernon 2006). Using this measure of damages, Marcelo calculated the following actual damage amount:
      Twice the interest $ 107,200
      Interest 53,600
      Principal 10,000
      Total $ 170,[8]00
      In his supplemental brief in support of its motion, Marcelo calculated actual damages under an alternative method using sections 305.003 and 305.004 of the finance code, see id. §§ 305.003, 305.004, as follows:

      Penalty under 305.004
      Principal 10,000.00
      Interest 40,000.00
      Total $16[9],896.05
      Marcelo calculated the section 305.003 penalty of $119,896.05 by determining that the maximum interest allowed by law on the $10,000 principal at six percent interest for twenty-one days was $34.65. See id. § 302.002 (Vernon 2006). Deducting $34.65 from the "interest charged” or $40,000 and multiplying that amount by three, Marcelo calculated a section 305.003 penalty of $119,896.05. See id. § 305.003. Marcelo also used this alternative measure of damages in his motion to modify, correct or reform the judgment filed two years after judgment was entered.