Opinion issued January 29, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01230-CV
____________
CHARLES A. GEORGE DENTAL SOCIETY, INC., Appellant
V.
ZEB F. POINDEXTER, III, Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 90-55564
MEMORANDUM OPINION
Appellant, the Charles A. George Dental Society, Inc. (the Society), challenges a judgment rendered in favor of appellee, Dr. Zeb F. Poindexter, III, in his suit for indemnification to recover the attorneys’ fees and costs that he incurred in the successful defense of an underlying defamation suit brought against him by another Society member.
In five issues, the Society contends that (1) the trial court erred in denying the Society’s “Motion for Judgment as a Matter of Law” because, under the express negligence doctrine, Poindexter was not entitled to indemnification from the Society; (2) the evidence was legally and factually insufficient to support the jury’s finding that Poindexter was sued “because he is or was an officer” of the Society; (3) the trial court erred in excluding the Society’s evidence of affirmative defenses and in refusing to submit the Society’s proposed jury questions and definitions; and (4) the evidence was legally insufficient to support the amount of attorneys’ fees awarded by the jury.
We affirm.
Factual and Procedural Background
The Society is a non-profit corporation and received its charter from the Texas Secretary of State in 1967. Its constitution and by-laws state that it was organized, in part, “[t]o promote and maintain the highest standards and practices of the profession of dentistry” among its members.
In 1990, Poindexter was an officer of the Society and served as its treasurer. At a special called meeting of the Society held in September 1990, Poindexter reported that he had received notification from a lender concerning overdue payments on two outstanding loans. One of the loans had been secured by the Society for Dr. Barbara Scott. Scott, who was present at the meeting, disputed the truth of the statements made by Poindexter concerning the status of the loan and, in response to Poindexter’s comments at the meeting, sued Poindexter for slander, slander per se, intentional infliction of emotional distress, negligent infliction of emotional distress, and gross negligence. Poindexter subsequently filed a third-party claim seeking indemnification from the Society pursuant to the provisions of the Texas Non-Profit Corporation Act (the Act). In his third-party claim, Poindexter asserted that, under the terms of the Act, he was entitled to statutory indemnity for his reasonable expenses and attorneys’ fees incurred in the defense of Scott’s lawsuit for the reason that he was named as a defendant in that suit because of his position as a director of the Society.
Following a jury trial, the trial court granted a judgment notwithstanding the verdict (j.n.o.v.) in favor of Poindexter on Scott’s causes of action. The trial court also ruled that Poindexter’s indemnification claim against the Society was time-barred by the statute of limitations, an issue that was not presented to the jury. On appeal, the court of appeals affirmed the trial court’s j.n.o.v. on Scott’s claims, but reversed the judgment on Poindexter’s indemnity claim against the Society and remanded the case for further proceedings.
At the subsequent trial on Poindexter’s indemnity claim, Poindexter testified that, in his opinion, it was his duty as the treasurer of the Society to report his concerns about what he believed to be the status of the loan payments. Poindexter testified that Scott sued him “basically because I gave an open report which questioned her, you know, payment.”
Dr. David C. Emmers, President of the Society, testified that, according to the constitution and bylaws of the Society, it was his opinion that Poindexter did not have a duty to report his concerns about the status of the loan payments to a meeting of the Society’s general body. Rather, Poindexter should have made his report concerning Scott’s loan payments to the Society’s executive body or its budget and finance committee. Emmers also testified that, after having been served with Poindexter’s suit for indemnity, the Society’s executive committee decided not to indemnify Poindexter because it considered Scott’s lawsuit against Poindexter to be “a private matter.” Emmers admitted that he did not know what Poindexter had said at the September 1990 meeting because he was not a member of the Society at that time and was not present.
In its answers to the charge, the jury affirmatively found that Poindexter had “incur[red] reasonable expenses in connection with a proceeding . . . in which he [wa]s named . . . because he is or was an officer of the [Society],” and it awarded Poindexter $65,000 in attorneys’ fees as his “reasonable expenses.” The trial court subsequently signed a final judgment in accordance with the verdict.
Express Negligence Doctrine
In its first issue, the Society argues that the trial court erred in denying its “Motion for Judgment as a Matter of Law” because Poindexter “is not entitled to indemnity under the express negligence doctrine.”
The Society argues that it owes no contractual duty to indemnify Poindexter, and it relies on Fisk Electric Co. v. Constructors & Associates, Inc., 888 S.W.2d 813 (Tex. 1994), for the proposition that an obligation to indemnify an indemnitee for its costs and expenses resulting from a claim made against it for its own negligence does not arise unless the contractual indemnity provisions comply with the express negligence test. Id. at 814-15. However, the express negligence test applies to the interpretation of contractual indemnity provisions, not statutory duties created by the legislature. See id. at 815 (“The purpose of the express negligence rule ‘is to require scriveners to make it clear when the intent of the parties is to exculpate an indemnitee for the indemnitee’s own negligence.’”) (quoting Atlantic Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex. 1989)).
Here, Poindexter does not rely on any provision of the Society’s constitution or bylaws as providing him with a contractual right to indemnification. Rather, he argues that the provisions of the Act created a statutory duty for the Society to indemnify him under these circumstances. Article 1396-2.22A of the Act provides, in part, as follows:
A corporation shall indemnify a director against reasonable expenses incurred by him in connection with a proceeding in which he is a named defendant or respondent because he is or was a director if he has been wholly successful, on the merits or otherwise, in the defense of the proceeding.
Tex. Rev. Civ. Stat. Ann. art. 1396–2.22A(H) (Vernon 2003). Thus, the absence of a contractual indemnity provision in the constitution and bylaws of the Society has no bearing on Poindexter’s claim for statutory indemnity. Accordingly, we hold that the trial court did not err in denying the Society’s motion for judgment based on the express negligence doctrine.
We overrule the Society’s first issue.
Sufficiency of the Evidence
In its second issue, the Society contends that the evidence was legally and factually insufficient to support the jury’s answer to question number one of the charge. As noted above, in its answer to question number one, the jury found that Poindexter had “incur[red] reasonable expenses in connection with a proceeding . . . in which he [wa]s named . . . because he is or was an officer of the [Society].” See Tex. Rev. Civ. Stat. Ann. art. 1396–2.22A(H). The Society argues that the evidence was legally and factually insufficient to support the jury’s affirmative answer to question number one because Poindexter never introduced into evidence a copy of the pleadings filed by Scott. The Society argues that Poindexter thus did not establish that he was sued “because of his former status as Treasurer [of the Society] and not in his individual capacity.”
With regard to the legal sufficiency of the evidence, in reviewing a “no evidence” point, we view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). If more than a scintilla of evidence supports the jury’s findings, the verdict must be upheld. Id. In reviewing the factual sufficiency of the evidence, we consider all the evidence supporting and contradicting the finding, and we may set aside the verdict only if the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Here, viewing the evidence in the light most favorable to the verdict, Poindexter testified that, in his opinion, it was his duty as treasurer of the Society to report what he believed to be the status of the payments that Scott was making on the loan that she owed and that was secured by the Society. Poindexter also testified that Scott sued him “because I gave an open report which questioned her . . . payment” of the loans. Although Poindexter did not offer into evidence a copy of Scott’s pleadings, it was undisputed that Scott’s lawsuit concerned statements made by Poindexter at a Society meeting concerning a matter that, as he testified, fell within his duties as a director, and specifically as treasurer, of that organization. Accordingly, we hold that the evidence was legally sufficient to support the jury’s answer to question number one. See Miller, 102 S.W.3d at 709.
With regard to the factual sufficiency of the evidence, the Society presented testimony indicating that, under its constitution and bylaws, Poindexter, as treasurer, had no duty to present his concerns about the loan to Scott at a meeting of the general body of the Society. Emmers testified that, instead, Poindexter should have presented his concerns to the executive body or the budget and finance committee. Emmers also testified that, in its opinion, the Society’s executive committee considered Scott’s lawsuit against Poindexter to be “a private matter.”
However, the Society did not present testimony from any witnesses who were present at the meeting concerning the remarks in question. Nor did it contradict Poindexter’s testimony as to what formed the basis for Scott’s lawsuit, namely, statements that Poindexter had made concerning the status of the Society’s financial dealings at a Society meeting. Based on the record presented, we hold that the evidence was not “so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust” and was factually sufficient to support the jury’s answer to question number one. See Cain, 709 S.W.2d at 176.
We overrule the Society’s second issue.
Evidence of Affirmative Defenses
In its third issue, the Society contends that the trial court erred in “sustain[ing] objections and repeatedly frustrat[ing] the [Society’s] attempts to more fully develop evidence and testimony on its corporate affirmative defenses.” In support of this contention, the Society cites this Court to 11 different pages of the reporter’s record. However, the Society provides no specific discussion, argument, or authorities concerning the individual objections that it contends that the trial court erroneously sustained.
A brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). In its briefing on this issue, the Society makes no application of the law to the specific facts of this case to support the issue presented. Accordingly, this issue is waived. See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128(Tex. App.—Houston [1st Dist.] 2002, pet. denied).
We overrule the Society’s third issue.
Jury Questions and Definitions
In its fourth issue, the Society contends that the trial court erred in refusing, over the Society’s objections, to submit its “proposed jury questions and definitions concerning its corporate affirmative defenses” in the charge.
It is well-established that litigants have a right to a fair trial before a jury that is properly instructed on the issues authorized and supported by the law governing the case. Harris County v. Smith, 96 S.W.3d 230, 234 (Tex. 2002). It is the duty of the trial court to submit only those questions, instructions, and definitions raised by the pleadings and the evidence. Id. at 236; see Tex. R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). A trial court’s refusal to submit an instruction is reversible error if it “probably caused the rendition of an improper verdict.” Tex. R. App. P. 44.1(a)(1).
Here, the Society objected to the trial court’s refusal to include in the charge the Society’s proposed definitions of the terms “Non-Profit Corporation,” “Articles of [I]ncorporation,” “By-laws,” “Board of Directors,” “Director,” “Ordinary Care,” and “Proximate Cause.” The Society also objected to the trial court’s refusal to include two proposed questions asking the jury to determine (1) whether Scott had sued Poindexter “because of his official capacity” as treasurer of the Society and (2) whether, as a director of the Society, Poindexter “acted in good faith in disseminating erroneous information about the status of [Scott’s] loan” at the September 1990 meeting.
As a basis for the submission of its proposed instructions, the Society relies on certain definitions provided in the Act. See Tex. Rev. Civ. Stat. Ann. arts. 1396–2.22A(A)(4)(a), (A)(4)(b), (B), (D) (Vernon 2003). However, at trial, there was no dispute between the parties that Poindexter was a director of the Society or that the Society was a non-profit corporation. Nor was there any dispute as to the documents introduced as copies of the Society’s articles of incorporation, constitution, and bylaws. Moreover, although the Society proposed including definitions of the terms “Ordinary care” and “Proximate cause,” neither the proposed questions submitted to the trial court by the Society nor the questions included in the charge given to the jury included or made use of these terms. Thus, we hold that the trial court’s refusal to include the Society’s proposed instructions did not probably cause the rendition of an improper verdict. See Tex. R. App. P. 44.1(a)(1).
Additionally, the Society relies on certain provisions of the Act in support of its contention that the trial court erred in refusing to include the proposed jury questions in the charge. See Tex. Rev. Civ. Stat. Ann. arts. 1396–2.22A(A)(4)(a), (A)(4)(b), (B), (D). A careful reading of these statutory provisions indicates that the two questions submitted by the Society are applicable to, and are drawn from provisions in the Act addressing, a situation in which a non-profit corporation may choose to exercise its discretion to indemnify a director named as a defendant in a proceeding before the final resolution of the proceeding that results in a finding of liability against the director. See id. In contrast, Poindexter relied on the provision of the Act requiring a non-profit corporation to indemnify its director when the director has already been “wholly successful” in the defense of such a proceeding. Id. at 1396–2.22A(H). There was no dispute that Poindexter was successful in his defense and appeal of Scott’s lawsuit and that the Society’s board of directors had never exercised its discretion to indemnify Poindexter before the final resolution of Scott’s lawsuit. Therefore, the proposed questions and definitions submitted by the Society were inapplicable to the situation presented by the evidence in this case. Accordingly, we hold that the trial court did not err in refusing to submit the Society’s proposed questions and definitions.
We overrule the Society’s fourth issue.
Attorneys’ Fees
In its fifth issue, the Society argues that there was “no competent evidence” introduced to justify an award of attorneys’ fees to Poindexter greater than $55,000. We consider this issue a legal sufficiency challenge. In its answer to question number two of the charge, the jury awarded Poindexter $65,000 in attorneys’ fees, and the trial court signed a final judgment in accordance with this award.
The Society does not contest that Poindexter’s trial counsel presented competent evidence that the amount of reasonable attorneys’ fees incurred by Poindexter for trial counsel’s representation of him in this lawsuit was $55,000. However, Poindexter also testified, without objection, that, in his successful defense and appeal of the underlying claims brought against him by Scott, Poindexter paid two other attorneys $5,000 each for their representation at various stages of those proceedings. The Society did not contradict this evidence. Accordingly, we hold that the evidence was legally sufficient to support the jury’s finding that Poindexter incurred $65,000 in attorneys’ fees as a result of Scott’s lawsuit and his own suit for indemnification.
We overrule the Society’s fifth issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Higley.